It’s time for the Legislature to act

What has become a needlessly protracted saga is reaching its crescendo and it’s up to the legislature to decide how to end it appropriately.

Weeks ago, we told you about the Governor’s erroneous veto, which we termed the Big Oops, and followed the story when the Attorney General essentially boasted that only he had the authority to clarify the matter. After he then issued perhaps the weakest, most groundless Attorney General’s Opinion in memory, which did more to confuse the matter than to solve it, we opined, just as the North Dakota Legislative Council had, that the logical solution is for the Legislature to deal with the botched veto or ask the North Dakota Supreme Court to act. We suggest the former.

Understandably, Legislative leaders asked their legal counsel — the North Dakota Legislative Council — for advice on how to deal with the Governor’s error, which was the appropriate thing to do. It’s not a simple matter.  

Only in budget bills do North Dakota governors have the luxury of the line item veto. This is appropriate and is designed as a function of fiscal responsibility, as it affords them the opportunity to scale back perceived unnecessary spending or overspending by the Legislature. The Legislature then has the opportunity, just as it does with any gubernatorial veto, to seek to override such line-item vetoes.  

The problem is that our Legislature typically adjourns before the governor’s deadline for issuing line-item vetoes. This can be solved by routinely doing what most states do — planning a veto session to preserve this important Constitutional authority.

Because that’s not been the tradition in North Dakota (but should be its future practice), the executive branch can reflexively object on the rare occasion when the Legislature may need to reconvene to address one or more line-item vetoes by complaining about the cost, just as it has in this instance.  

Few complain about the cost of running the executive branch of government for a day. For the executive to complain about one more day’s work by the branch of government which is so efficient that it only operates fully for less than four months every two years is truly the pot calling the kettle black. The $65,000 number being thrown around is a drop in the bucket, in comparison, and a far cry from the $35 million at stake as a result of the veto error by the Governor’s office…and it’s important to remember that this entire issue is the result of an error by the Governor, not the Legislature.

Because the AG’s opinion lacked the due diligence of legal research and analysis on this issue which undergird most such documents, the Legislative Council was forced to provide it. The Attorney General’s criticism of the Legislative Council doing its job, in the brief period while his office hastily prepared a sorely lacking document, was arrogant and disrespectful. One can only conclude that it was a desperate attempt to justify a predetermined conclusion in search of a foundation.

To their credit, Legislative Council attorneys simply continued to do their job in the days following, preparing an impressive, even more in depth legal analysis for the Legislative Management Committee to consider at its meeting last week.  

Overlooked by the AG’s Opinion was the fact that the Constitution specifically refers to a vetoed bill or “item” (a portion of a bill vetoed in a “line item” veto), not a letter. Relying, instead, upon a cover letter which contradicted both that item, and even another letter accompanying it, as the operative substance of such a veto required legal reasoning, the gymnastics of which have rarely been on display. What’s more, the Opinion ignored not only clear Constitutional language, but also past gubernatorial practice, Supreme Court findings and even an Opinion on the topic by a previous North Dakota Attorney General — the stuff usually cited in, rather than ignored by, AG’s Opinions.

Now, Legislative leaders must determine how best to act.

That, coupled with the Governor’s apparent desire to hide behind the flawed Opinion, has created the unnecessary standoff with the Legislature.

While the question could easily be thrust to the Court (probably at greater cost), there is no good reason to involve the third branch of government in a matter that can and should easily be resolved by the other two branches, which are directly involved.  They can do so, as they should have when it first arose, by the Legislature dealing with the Governor’s veto. 

The Governor made an error. He admitted it. He should have simply asked the Legislature to fix it, as he first seemed willing to do before the flawed AG’s Opinion muddied the water. 

The sad thing is that North Dakota didn’t need to find itself in this regrettable situation. 

The Legislature must not allow the ambiguity the situation has created, and the future confusion and litigation it could spawn, to stand. Furthermore, as the Supreme Court noted when the Legislature was forced to sue former Gov. Doug Burgum a few years ago, confusion over line item vetoes cannot be solved simply by agreement between a governor and an attorney general. 

It’s time for the Legislature to step up to the plate and do its job. It should convene a brief (perhaps one day) special session to act. It would be the clearest, most efficient and probably least costly way to resolve the matter.