Constitutional Powers
3:42 pm
Fri April 18, 2014

Does W.Va.'s Governor Have Too Much Power?

The question of gubernatorial power in West Virginia was forced into the spotlight after two decisions by Governor Tomblin following the 2014 legislative session; two vetoes, to be more specific. Now lawmakers, the Governor’s Office and even the Attorney General are trying to figure out what’s next for these rejected bills.

Gov. Tomblin signed a ceremonial bill after the completion of the 2014 legislative session.
Credit Ashton Marra / West Virginia Public Broadcasting

The Debate:

Tomblin exercised line item vetoes in the legislatively approved budget for the Fiscal Year 2015 to the tune of $67 million, slashing family and senior service programs, a move that was not popular with many lawmakers and community action groups.

Next, the hotly debated “Pain Capable Unborn Child Protection Act” (H.B. 4588) was placed on his desk, but in his veto message to Secretary of State Natalie Tennant, Tomblin wrote:
 

“I hereby disapprove and return enrolled House Bill 4588. I am advised the bill is unconstitutional under controlling precedent of the Supreme Court of the United States.”
 

The debate, in both the budget and abortion decisions, is not over whether or not the Governor has the power to veto legislation or specific items. The debate now is what power do lawmakers have to reverse his decision?  

The Budget:

When it comes to the state budget, the governor has a great deal of influence. The office provides revenue estimates for the fiscal year, presenting a set amount of money lawmakers can spend, but also influences policy through his appropriation decisions.

The governor’s budget powers were expanded in 1968 with the passage of a Constitutional amendment benefiting Republican Governor Arch Moore. The “Modern Budget Amendment” meant the governor and his executive staff would fully prepare the budget to present to the Legislature. Previously, it was prepared by the governor and the Board of Public Works who must all come to an agreement on spending.

Ted Boettner, executive director of the West Virginia Center on Budget and Policy, said in a January

Senate Finance Chairman Roman Prezioso discusses a bill on the Senate floor with Senator Doug Facemire.
Credit Ashton Marra / West Virginia Public Broadcasting

interview the state would be better served if the budget powers were dispersed more evenly between the Legislature and governor, but Senate Finance Chairman Roman Prezioso disagreed, calling the governor the CEO of the state who needs strong budgetary powers to keep it running.

“It’s no different from any big business or organization where you have an individual that’s the head of a company,” he said. “It’s that person’s responsibility to se the parameters and guidelines for their particular business and it’s not different for the governor (to do that) for the state.”

The Veto:

When a bill passes both the House and Senate with an overwhelming majority, but the governor refuses to sign, who gets the final say on whether or not that legislation becomes law?

The current administration maintains that authority rests within the executive. The West Virginia Constitution provides, after a bill is agreed to and approved by both chambers, the governor has five days to consider it and either sign or register his veto with the bill’s originating body. From there, with a simple majority vote of each chamber, legislators can vote to override the veto and the bill becomes law.

In the early 1970s, the Constitution was amended adding language that says if the legislature has already adjourned sine die, the governor then has 15 days to consider the legislation and register his objections with the Secretary of State, but there is no clarity provided for how lawmakers can overturn a decision once the regular session is over.
 

House Minority Leader Tim Armstead stands on the House Floor to discuss legislation.
Credit Ashton Marra / West Virginia Public Broadcasting

House Minority Leader Tim Armstead said there should be no debate over whether or not the legislature can override a veto. That power is clearly provided by the state Constitution, he said, but being questioned because it so rarely occurs.

“I think people are scratching their heads because there hasn’t been a willingness to do that,” he said. “It’s a difference of opinion on what the law should be and those are just natural parts of the process.”

Former Gov. Bob Wise agreed the power to override is contained within the Constitution, but the legislature is ceding that power to the governor by waiting until the final night of the regular session to vote on a majority of the considered bills. In doing so, he said lawmakers are giving up their veto power.

“What really needs to be looked at is does the legislature have the tools it needs in order to be able to perform its functions in a timely manner and a quality manner,” he said, “and is the legislature acting in a timely fashion.”

The Opinions:

Since the vetoes, Republicans and Democrats alike have specifically expressed concern over their ability to override the veto of the abortion bill, but there is some confusion as to the power available to them. The Attorney General’s Office was asked for an opinion on the power and House attorneys are researching the issue.

In his opinion letter, dated April 9 and addressed to legislative leaders, Morissey concluded could override the veto in a Legislature-initiated special session, or one called after three-fifths of each body petitions the governor, but goes on to say his office could find no precedent on the matter and suggest an alternative route to passing the legislation.

Morissey’s stance that a Legislature-initiated session gives lawmakers the right to set the agenda for that session is backed by an opinion written in 1954 by then Attorney General John Fox. Clips from that opinion are below.

Gov. Tomblin is already calling for a special session during May interims to address overtime issues with the recently approved minimum wage increase, but, as per his Constitutional powers, he reserves the right to set the agenda for that extraordinary session. It is unlikely a bill he called unconstitutional will make that call.
 

The Politics:

The power of veto is not a new one for the state’s executive. West Virginia’s governor has reserved that power since the creation of the state Constitution and it mimics the powers not just of other states, but of the federal system as well.

Armstead said an increase in focus on the balance of power may be because of a narrowing gap between the two political parties in the state, but Wise disagreed, calling it a natural tension present in the foundation of our system.
 

“Even when one party might have a clear dominance in the Senate and the House, you still have different factions within that party that were always pressing to either limit the governor’s power or to somehow alter the balance of power. So, this is, to me, not necessarily partisan. It’s just a natural tension that exists between the branches. This is a natural process regardless of what party is in control.”
 

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