Legislative Counsel Opinion Suggests Governor Overstepped Authority on Line Item Vetoes

Last week Gov. Arnold Schwarzenegger attempted to balance the budget by using his line-item veto authority to cut from various sectors of government in order to balance the budget while building a half billion dollars into the reserve.  He focused his cuts on social services and health programs that have already experienced huge cuts.

While the Governor argued that he was forced to do by the Assembly which removed some of the money from the budget they passed including taking local money that goes for infrastructure and also removing offshore oil leases as a solution, Democrats such as Assemblymember John Perez (D-Los Angeles) immediately cried foul.

Assemblymember Perez specifically argued that the Governor vetoed funding that was already approved by his signature this past winter in a previous budget signed.

In his radio address this past Saturday the Assemblymember argued:

“According to the Supreme Court, the Governor’s authority to line-item veto only applies to new appropriations…that is, only new spending. The fact that the Legislature reduced previously approved spending in the bill package does not make this a new appropriation. Our State Constitution only allows the Governor to reduce or eliminate spending when it’s first enacted. He does not get a second bite at the apple now.”

Assemblymember Perez told the California Progress Report last week:

“What the governor did this week was to go back in time and reduce appropriations that are current. He violated the law and he violated the constitution.”

This week, the Assemblymember gets new backing from an opinion from the Legislative Counsel Bureau which issued a four-page opinion that claims that the bulk of the line-item vetoes are illegal.

Writes Diane Boyer-Vine, Legislative Council:

“We conclude that, in vetoing items and sections of A.B. 1 that proposed only reductions to existing appropriations enacted by the Budget Act of2009, the Governor exceeded his “line-item” veto authority.”

Ms. Boyer-Vine continues:

“The fact that provisions of A.B. 1 are related to existing appropriations previously authorized by the Budget Act of 2009 does not mean that those provisions are items of appropriation subject to the Governor’s line-item veto. Rather, that line-item veto authority is applicable to the provisions of A.B. 1 only to the extent that those provisions themselves are items of appropriation, namely, that their effect, if enacted into law, would be to grant authority to expend, from the public treasury, a certain sum of money for a specified purpose. We conclude here that the items and sections of A.B. 1 that proposed only to make reductions in existing, previously enacted appropriations do not satisfy this requirement and, thus, do not constitute items of appropriation that are subject to the Governor’s line-item veto power.”

She concludes that items that only make reduction in an existing item of appropriation previously enacted is not an appropriation item subject to the Governor’s line-item veto authority.  Therefore only items that constitute new appropriations would be subject to such authority.

This legal opinion is not a formal or binding decision but rather represents the advice of counsel to the legislature.  Assemblymember Perez said on Wednesday that the legislators themselves would not file suit against the vetoes.  Rather groups who represent the people who directly are impacted by the cuts are preparing for legal action.  However, he also suggested that the legislators might file amicus briefs in support of the actions.

The Sacramento Bee reports that Senate President Pro Tem Darrell Steinberg said yesterday that restoration of the cuts would be the first priority when lawmakers return later this month.  There was also some suggestion that the legislative leaders and Governor would work out a deal that would restore or reverse some of the cuts in an effort to avoid another legal show down.

The Governor’s line item vetoes including $52 million in cuts to the Office of AIDS, elimination of the Domestic Violation Program ($16 million), elimination of the Adolescent Family Life Program and the Black Infant Health Program.  The Governor also cut funds to several program under the Department of Aging, $50 million in additional reduction for services to children under the age of 5, $38 million in additional cuts to In-Home Supportive Services (IHSS), $4 million in addition cuts to mental health programs, nearly $100 million from Medi-Cal, around $80 million from child wealth services, $4 million from student transportation allowances for State Special Schools, and another $50 million from healthy families.

HD Palmer, deputy director of the state Department of Finance argued that the governor was sent a budget that was not balanced and therefore he was compelled to take action.  “We think from a legal standpoint, that’s cut-and-dried.”

There are really two points that need to be made here.  First is that the Governor somehow believes he is above the law.  The legislature did not do enough in his opinion to solve the budget deficit so he took it upon himself to find a solution.  And some people will undoubtedly applaud him for it.  The irony is that had he approved a partial budget plan that was agreed to on the evening of June 30, 2009, the state would have had $3 billion less to cut.  Instead he drew a line in the sand and told the legislature that if they did not solve the entire budget deficit, he would veto the legislation and in fact he did.  That action cost this state $3 billion.  Very few people are talking about that fact today.

The second point is that legal decision aside all of the money that the governor cut in his line-item vetoes went to social services–programs that help the poor, the sick, the mentally ill, children and the aged.  These are by far the most vulnerable groups in society.  These are the groups that saw the majority of cuts in the original budget in September of last year, again in February of this year, and again now.  Three times already they had cuts.  These cuts are the equivalent of taxes on the poor.  These are people who are barely surviving as it is.

We can argue about what the right mix of cuts is.  We can argue that we should do a better job of controlling spending.  We can argue that we increased spending too quickly.  These would all be arguments.  However no one can realistically argue who was disproportionately impacted by this round of budget cuts.  And the truth of the matter is that while Democrats will throw up their hands and complain, they did not do nearly enough to stop it.  The Republicans were prepared to shut down government to avoid “solutions” that impacted their pet projects, Democrats seemed determined to capitulate rather than allow that shutdown to occur.  The result is the Democrats have allowed social services and education to be gutted.

In fact it is a double-whammy.  Not only did Democrats allow these programs to be cut, they allowed a raiding of local funds.  On Tuesday, we learned how much it would cost Yolo County.  According to Assistant County Administrator Pat Leary, the impact of the new state budget will be about $11.4 million in cuts to social services.  This is on top of the county’s own budget crisis that saw it have to cut one-third of its operating budget.

The breakdown for this county is $1.1 million in reductions to child welfare services, $600,000 to Medi-Cal, $1.2 million to mental health, $112,000 to a program to immunize children that would be shifted to the county if the county decides to continue the program.

The bottom line is that the state budget cuts will have a huge impact on the most vulnerable in society.  The added cuts from the line item veto may be the proverbial straw to break the camel’s back.  Much of this likely amounts to posturing by the Legislative Democrats that will in the end wind up causing some form of compromise but are unlikely to roll back cuts that have taken a huge toll on a vulnerable group.

—David M. Greenwald reporting