The Constitution forbids it. A unanimous Supreme Court slapped their hands. But when it comes to loading up budget bills with extraneous goodies, the Legislature just can’t resist.
Bowing to the demands of their allies in organized labor, the Legislature inserted into a budget trailer bill (Section 48 of Assembly Bill 76) substantive language designed to force a successor employer that provides food and beverage services at the Honda Center in Anaheim to hire the prior contractor’s employees. This mandate has no bearing on the state budget or any state operations. (It’s also lousy policy, but that’s a debate for another day.)
The California Supreme Court faced just such an issue nearly 30 years ago. In 1984, the Legislature included a provision in a budget bill that governed timing of county welfare payments that the court deemed extraneous under the California Constitution’s “single subject rule.” Governor Deukmejian recognized this and vetoed that section of the bill (one of literally hundreds of sections in a voluminous measure).
The Court agreed that the section was extraneous and illegitimate, and in fact threw it out of the bill. But the Court ruled that the Governor’s veto was likewise illegitimate. According to the Court, he had no power to pick-and-choose among substantive provisions of legislation to veto one provision but let others stand. That is, a governor’s item veto authority applies only to “items of appropriation.”
Now Governor Brown faces a dilemma: Does he sign a budget trailer bill that includes an abusive and possibly unconstitutional provision inserted by the Legislature, or does he veto a bill largely drafted by his administration that includes important budget-related items?
Fortunately, there is a third way.
When voters approved Proposition 25 in 2010, they not only reduced the vote requirement to pass a budget, they also created a new category of legislation called “other bills providing for appropriations related to the budget bill.” These so-called “budget trailer bills” either appropriate money or create conditions under which Budget Bill appropriations must be used. Trailer bills may not include substantive language unrelated to the Budget, since that would mean the Legislature could pass any substantive measure under the extraordinary Proposition 25 procedures, including allowing a measure to go into immediate effect upon approval. That would be an absurd construction of the ballot measure, which was intended and advertised to apply only to the Budget and related implementing legislation.
Since inclusion of this labor code section in the budget trailer bill violates the constitutional requirements of both single subject and budget relatedness, the section is illegitimate. But since it is included in a trailer bill that by its nature includes only items of appropriation or controlling language, then it is legitimate for the Governor to veto this provision, as he could any item of appropriation or any language that conditions an item of appropriation. Inclusion of this language in a budget trailer bill distinguishes this item veto from the circumstances proscribed by the California Supreme Court in the 1984 case, which concerned purported item vetoes of substantive provisions in general legislation.
The Governor should be further motivated to veto this section of the bill, since allowing it to remain would set a terrible precedent for the balance of power between the executive and legislative branches. If the Legislative tactic of inserting substantive legislative language into budget-related legislation is allowed to prevail, then a simple majority of the Legislature would be able to leverage a governor to accept substantive statutory changes in critical budget implementation legislation. These substantive statutory changes should be the province of separate, stand-alone legislation that the Governor can consider on its own merits.
(AB 76 also contains the controversial loosening of state’s public records act. As this is written, the Assembly Speaker, governor and Senate President pro tem are publicly debating the merits of leaving this provision in the bill. While contentious, the provision is legitimately budget-related, so is not implicated in this constitutional issue.)