Last year, as they worked to COVID-19 had created in the state鈥檚 budget, Oregon lawmakers bristled at Gov. Kate Brown鈥檚 decision to .
Top lawmakers and budget writers were so incensed by the line-item vetoes, which they believed were unconstitutional, that they even over the matter. That would鈥檝e been similar to legal squabbles over vetoes that have taken place around the country.
But lawmakers didn鈥檛 sue. Instead, they simply chose not to honor Brown鈥檚 decision.
In a move that has surprised observers, the Legislature has behaved essentially as if Brown didn鈥檛 issue vetoes at all. Lawmakers even passed two bills during the 2021 session that built upon language the governor had specifically sought to scrub from the books.
Perhaps even more unexpected: Brown signed those bills.
The actual policies at issue in this push-and-pull are the mundane stuff of state budgeting 鈥� highly technical tweaks to the way assets flow through Oregon鈥檚 many accounts and subaccounts. But underneath those details are larger questions about the limitations of executive power in Oregon.
The ultimate answers to those questions would need to come from Oregon courts, but neither side appears in a rush to get them. The Legislature and governor鈥檚 office have instead been content to let the contradiction linger, while both insist they are correct.
鈥淚f the legislative branch questioned the Governor鈥檚 authority to veto these items, it could have brought a lawsuit to settle them,鈥� Liz Merah, a spokeswoman for Brown, said in an email Monday. 鈥淭he legislature did not.鈥�
House Speaker Tina Kotek鈥檚 office offered a different take.
鈥淭he issue is that the Governor took actions that the constitution does not authorize her to take in the first place,鈥� spokesman Danny Moran said. 鈥淭he veto was not valid.鈥�
Under the Oregon Constitution, Brown has wide latitude to veto whole bills as she sees fit. But executive power is far more limited when it comes to deleting single items from bills that are otherwise passed into law. This 鈥渓ine-item鈥� authority is only granted for appropriations bills that spend public money, and for eliminating an emergency clause that would make a bill take effect immediately.
Last year, following a special session to balance the state budget, Brown excised elements of two bills lawmakers had passed to save money. The governor she wanted to block some $18 million in cuts to ensure state agencies had the funding they needed to battle historic wildfires that had ignited since lawmakers passed the policies.
But while many of her vetoes were unquestionably legal, Brown took aim at one bill, House Bill 4304, that legislative officials said was not an 鈥渁ppropriations鈥� bill. As a result, lawmakers say the bill wasn鈥檛 fair game for a line-item veto.
鈥淚f you look at the four corners of the bill, there鈥檚 a whole bunch of different things going on,鈥� Dexter Johnson, the Legislature鈥檚 top attorney, told OPB at the time. 鈥淚t鈥檚 very hard to say that the bill is an appropriations bill.鈥�
Others were even more strident, and Senate President Peter Courtney said last year lawmakers were seriously considering filing suit to block what they viewed as an overreach by the governor.
鈥淚鈥檓 deeply bothered ... philosophically in terms of how I view the legislative body,鈥� Courtney, a Salem Democrat, said in September.
Courtney and others also worried that a legal tussle would be distracting and expensive as wildfires raged and COVID-19 posed an extreme health threat. No lawsuit emerged 鈥� but neither did any impact from Brown鈥檚 disputed veto.
Courtney鈥檚 office did not answer questions about the situation this week. Kotek鈥檚 office, meanwhile, insisted that lawmakers did not ignore Brown鈥檚 directive, saying it was acknowledged on the House floor as a 鈥減urported veto.鈥�
How that meaningfully differs from simply disregarding the decision is unclear. Two bills passed earlier this year 鈥� House Bills and 鈥� included some of the very language Brown had tried to delete, as if no veto had been issued. The governor gave her blessing to both.
鈥淭echnically, the Governor acknowledged the ineffectiveness of the single-item vetoes by signing into law HB 2433 and HB 2158 this year,鈥� Moran, the spokesman for the House speaker, said in an email. The governor鈥檚 office said Tuesday that the changes enshrined in the bill were 鈥渋mmaterial and do not change the fact that the items... were constitutionally vetoed.鈥�
Johnson, the top legislative attorney, said last week that the Legislature鈥檚 action is not unprecedented. He pointed to instances where former Gov. Ted Kulongoski issued vetoes lawmakers thought were unlawful. The Legislature subsequently passed bills formally repealing the laws Kulongoski had tried to veto.
鈥淭he repeals would have been unnecessary, and would not have been done, if the legislature had believed the Governor鈥檚 vetoes were effective,鈥� Johnson said.
But honoring a governor鈥檚 intentions with a later bill is not the same as disregarding their decision, as happened in this case. Greg Chaimov, a Portland attorney who formerly served as the lead counsel for the Legislature, said he could not recall an instance during his tenure where lawmakers flatly refused a veto. That鈥檚 particularly notable since Chaimov worked at the Legislature during a time when former Gov. John Kitzhaber earned the nickname 鈥淒r. No鈥� for his frequent use of the veto pen.
鈥淗e did line item stuff, but I can鈥檛 think of a veto in a way which we thought was unlawful,鈥� Chaimov said.
Both Chaimov and Jim Moore, a political science professor at Pacific University, noted it鈥檚 not unheard of in Oregon for one branch of government to discount the will of another. As Moore put it: 鈥淭here have been cases where governors do not completely execute what the Legislature has legislated, but that is pretty normal behavior.鈥�
Legislatures elsewhere have been less restrained in challenging a governor鈥檚 vetoes. Lawmakers in Arizona, Minnesota ands have filed court challenges over the years, many of them posing the same question that exists in Oregon: whether an item constitutes an 鈥渁ppropriation鈥� that is fair game for a line-item veto.
In Washington, lawmakers are with Gov. Jay Inslee over a similar issue.
In Oregon, all parties appear to agree that any question of the legitimacy of Brown鈥檚 vetoes could ultimately be answered by an appeals court decision. None have indicated they will seek such a ruling.
Copyright 2021 Oregon Public Broadcasting
