Now that the 2019 Legislative Session has concluded and Governor Gavin Newsom has acted on the 1042 bills that reached his Desk this year, it is of interest to review not only the measures that he signed, but also the 172 bills that he vetoed. In reviewing the bills that were vetoed this year, are there any particular themes that might assist legislators, staff and interest groups in navigating the Governor’s Office during the next Legislative Session?
Before we take a closer look at Governor Newsom’s vetoes, let us start with some of the standard bases for gubernatorial vetoes according to political scientists:
- • Agency objection – does an executive branch agency object to the bill on policy and/or fiscal grounds?
- • Separation of powers – does the executive branch perceive the legislative branch as encroaching on the executive branch’s authority?
- • Impact on the state budget – does the bill negatively impact funding for the state’s budget?
- • Public outcry – has there been a significant outpouring of objection to the bill?
February 13, 2019 marked the first time that Governor Newsom acted on legislation, when he signed his first two bills. It was not until July 12 that he vetoed his first bill. He actually vetoed two bills that day while signing 38 measures.
While we can never be certain what other, non-written factors may account partially or fully for a bill’s veto by any chief executive, we can glean some of the following themes from Governor Newsom’s vetoes during his first year in office:
- No need for a formal study. A study can be conducted without enacting a statute. Ask a government entity to do the study, rather than try to pass a law mandating the study. Newsom made this clear when he said, “Rather than convening a third work group to study these same issues, the Legislature should consider the recommendations [already made].”
- If an executive branch agency is already working on an issue administratively, then he will likely choose that approach over a legislative solution. The governor doesn’t need to sign a bill to enact a statute to have one of his agencies do work that they are already completing. According to Newsom, “The bill is not needed because these entities are already sharing the information as authorized by law.” Put another way, “Legislation is not necessary to accomplish these goals” or “this issue can be addressed administratively.” Likewise, “creating a new board to accomplish that goal is unnecessary.”
- As with prior governors, and certainly with those that will follow him, the executive branch agencies play a critical role in the legislative process because they have a great deal of influence with any governor. If that agency is the executive branch’s expert or has regulatory jurisdiction over the matter, then the governor and his or her staff are going to greatly value the opinion of that agency. So, if the agency is opposed to your bill, you have an uphill battle to win. Similarly, if the Department of Finance is opposed to your bill on fiscal grounds, you are more likely than not headed for a veto. For example, if a state agency believes your bill will be burdensome to implement, Newsom may react with “these requests often have significant programmatic and budgetary implications that need to be analyzed…”
- If a local government or state agency can do it, then a bill might not be necessary. Also, tying the hands of other government entities may not be viewed favorably. As Newsom put it, “The educational institutions affected by the bill are already providing much of this information.” Newsom also stated in another veto message, “completely removing these tax options from local decision makers is the wrong approach.”
- If the bill imposes rules on local governments that will result in a reimbursable mandate by the state government, that is likely to be viewed as an unacceptable state cost. “This bill, however, would create a potentially significant state reimbursable mandate,” explained Newsom.
- If the bill will result in a revenue loss to the State’s General Fund, the governor will prefer that bill be considered as part of the annual budget process. Newsom stated that, “These bills create an exception to existing law that would negatively impact the General Fund by millions of dollars.” Newsom explained in another veto message, “This bill would impose substantial ongoing costs, a matter that should be considered within the state budget process, where the Administration and Legislature can balance the competing demands with limited resources.”
- Pending litigation may need to be resolved before legislation should be adopted. Newsom said, “Amendments are premature until ongoing litigation is resolved.”
- Has a sufficient case been made for the bill? “It is unclear why additional authority is needed,” Newsom said in one veto.
- Don’t try taking authority from one state agency and give it to another, or to a local agency. For example, Newsom stated, “It is not clear that the Commission has the appropriate expertise to fulfill this direction.”
- Try not to duplicate existing activities that are currently being undertaken. Newsom explained, “This bill creates a redundant, and potentially conflicting, grant program.”
- Give changes in the law that were recently made a sufficient amount of time to be implemented and determine whether the recently-changed law is working or not. “I believe the recently enacted changes should be given a chance to work before these additional requirements should be considered,” Newsom explained.
- If the Governor can implement the goal of a bill without legislation, that may be the preferred route. Newsom states, “I am directing [my agency] to develop a pilot program to implement this concept in a thoughtful manner.”
- Maybe a comprehensive solution is better than single bills. Newsom wrote, “A number of bills have been enacted … but this is a piecemeal approach I cannot support.” He also opined more than once that, “I believe this issue needs to be tackled in a comprehensive manner…”
- Perhaps there are federal or state constitutional concerns with the bill. Or federal law might dictate the outcome of a bill. “This bill could be interpreted as a violation of the … U.S. Constitution,” wrote Newsom. Also, “this bill would create significant conflicts between federal and state law that cannot be taken lightly.”
- Don’t tie the hands of the executive or judicial branches of government. Newsom proclaimed that “I am not persuaded that limiting judicial discretion for these cases is warranted.”
- If he already signed one bill on this topic, there probably isn’t a need to sign a second one as well. Newsom explained, “This bill is unnecessary as it is duplicative of [another bill] which I signed.”
- Perhaps the issue isn’t quite ripe for legislation just yet. For example, Newsom said “I encourage the Legislature to work collaboratively with [my department] to evaluate if and how the [law] can be enhanced.”
- Like other chief executives, bills that grant something that is better left to the collective bargaining table will likely face a veto. Newsom stated “This issue is best left to the collective bargaining process so that governing authorities and public employee unions can best determine their priorities and needs at the bargaining table.”
- The bill might not be ready for “prime time,” meaning more work needs to be done. “After reviewing this bill, it is clear that a substantial amount of work is still needed to develop a program that my administration can implement,” Newsom wrote.
- Sometimes dueling parties will need to try to come together and work out a deal before the governor is willing to make a decision. Newsom put it this way: “I encourage the counties and cities impacted by this bill to work together to reach a resolution on this matter that is in the best interests of the public they serve.”
I am sure there are other themes that can be gleaned and, of course, future years of bill actions will give us additional insights into Governor Newsom’s thinking on bills. In the meantime, you can at least examine the 172 veto messages from the 2019 Session to ascertain possible guidance in pursuing measures in the California Legislature next year and beyond.
Chris Micheli is a Principal with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He can be reached at (916) 448-3075 or cmicheli@apreamicheli.com. He serves as an Adjunct Professor at McGeorge School of Law.