The Legislature may finally get it right

A usually sleepy North Dakota legislative Committee which typically deals with mundane procedural matters — the Procedure and Arrangements Committee — could have a major impact on Constitutional governance. It may have hatched a way to deal with the next “Big Oops”, which we wrote about months ago. 

Last month, the panel approved a bill to be forwarded to the Legislature for action, when it next meets, which creates a process for the Legislature to return for veto sessions, if necessary, after regular sessions have adjourned. The concept makes sense and it is the norm in many states, but not in North Dakota.

Previously, the same Committee wisely forwarded a bill draft which clarifies what constitutes a line item veto — obviously, the portion of the bill which is struck out of the bill. The matter nonsensically became an issue when the Attorney General reached a different conclusion than both the Constitution and the Court had previously made clear.

In our state, governors have line-item veto authority, only in budget bills. They also have 15 days to act upon bills after they reach a governor’s desk. Budget bills are often the last bills to be passed by the Legislature, as a session comes to a close.

That means that, often, the Legislature has already adjourned and legislators have left town by the time a governor exercises the line-item veto authority. Many times, that’s not a practical issue but it does deny the Legislature its rightful Constitutional authority to override a Governor’s veto with which it disagrees. That undermines the checks and balances which are built into our Constitutional system of government.

Although a biennial veto session should probably have been on legislators’ radar long before now, this year’s events have brought the issue into crystal clear focus.

When Gov. Kelly Armstrong muddled a line item veto of a budget bill after this year’s session of the North Dakota Legislative Assembly had adjourned, questions swirled about how to handle it. We explained, in detail, what we then called The Big Oops.

As we wrote then, the veto error could have been handled by the Legislature returning for a brief special session in order to set things straight, but that didn’t happen. 

That was unfortunate because the Governor could have corrected the error by calling legislators back for this purpose, a possibility he initially entertained.

Legislative leaders could have done so, as well, even if the Governor failed to call the Legislature back to properly correct his error, but it would have counted against the precious “days” remaining with which the Legislature could work.

The North Dakota Constitution limits the Legislature to meeting for 80 days in a biennium. The Governor may call the Legislature in for a special session, which does not count against those days. State law allows the Legislature to call itself back into session, as well, but then the 80 day limit comes into play. The Legislature typically “saves days” by not consuming all 80 during a regular session, in case it finds the need to reconvene. Accordingly, legislative leaders guard remaining days jealously and are reluctant to consume them unless absolutely necessary.

Rather than working in a cooperative, collegial, sensible manner to solve the problem and correct the error, the Governor’s office reversed course and dug in. The result was a standoff, of sorts. Buoyed by an errant Attorney General’s Opinion, the Governor moved forward with business as usual and spending money as if he hadn’t vetoed the section of law under which it was appropriated. In a disappointing bit if theater, he even dared the Legislature, in effect, chiding it for even considering returning to the Capitol by warning of the comparably nominal cost, while ignoring the millions involved in his veto error.

Rather than exercising its authority and promptly returning to do the work necessary to correct the error, the Legislature, instead, essentially “blinked” in the standoff by failing to call itself back into session to clean up the mess the Governor’s office had created.

Doing the Right Thing

It now appears that the Legislature may eventually do the right thing, after all, if both bills advanced by the Procedure and Arrangements Committee eventually become law.

It all brings to mind a famous quote by a distinguished leader:

“You can always count on the Americans to do the right thing, after they’ve tried everything else”

– Winston Churchill

The proposed solution would not only have solved the problem encountered this year, it would initiate the practice we’ve long called for — routinely scheduling veto sessions.

Under the bill, the Legislature would be poised to convene on the third Wednesday in June, following each legislative session, to consider action on any gubernatorial vetoes issued after it had adjourned. If no such veto session is needed, Legislative leaders would simply not call for it (it’s optional) but the practice would be in law to reserve the Legislature’s check and balance authority.

The bill draft also clears up a rather silly “in the weeds” encumbrance prompted by a 1991 Opinion issued by former Attorney General Nicholas Spaeth, in which he stated that the Legislature could not act upon a veto issued by the Governor after it had adjourned because it was no longer in possession of the bill.

Bills vetoed during a session are returned to the Legislature by the Governor. It can then vote to override the veto, which requires a 2/3 vote of both House and Senate. If the Legislature has already left town, there is nowhere for the bill to be returned so, the Opinion concluded, there is no opportunity for the Legislature to vote to override it. In that case, the bill then goes to the Secretary of State with the Governor’s objections and, unchallenged, those vetoes stand.

Notably, that Opinion was issued before the Legislature had passed the law (and overridden a governor’s veto, incidentally) which gave it the authority to call itself back into session. Before that, only a governor could call the Legislature back into special session.

Under the proposed legislation, if a veto session convenes, the Secretary of State will also be required to return a bill with a gubernatorial veto issued after the Legislature adjourns to the Legislature for possible veto override consideration, resolving that technicality.

The Procedure and Arrangements Committee approved the bill, aptly drafted by the Legislative Council which, if passed, could go a long way toward restoring the appropriate checks and balances between these branches of state government.