August 7, 2014

PLS: Senate Lawyer Steve MacNett Talks About Line-Item Veto Litigation Potential

Talk to Steve MacNett, the attorney retained by the Senate Republican leaders to evaluate the legitimacy of the governor’s line-item veto of certain portions of the Fiscal Code, and one thing becomes clear: Whether the governor’s action stands is more than about who is able to have state-paid parking.
Click Here for video of Part I of the interview.  Click Here for Part II.
The stakes are high for who has the power to create policy in the Commonwealth and whether the particulars of that policy can withstand the scrutiny of one man’s blue pen.
“If a governor has the authority to blue-line language like this, what are the limits on his blue-line authority,” he questioned while noting the precedential nature of whether the vetoes will ultimately fall or stand. “[There is a] real concern—that if this is left unchecked—that the ability of the General Assembly as the policy arm of the Commonwealth’s government could be severely handicapped.”
The language that MacNett is referring to was removed from the Fiscal Code by the governor in mid-July arguing that they were appropriations.
Under Article 4, Section 16 of the Pennsylvania Constitution, the governor may line-item veto or—as it is colloquially known: blue-line—“any item of any bill making appropriations of money.”
MacNett said some of the items the governor line-item vetoed do not meet the definition of “appropriations of money.”
“Just because [the provisions vetoed] direct spending, doesn’t make them appropriations,” he explained. “Appropriation is a separate part of the legislative powers.”
He went on to explain the operative difference between the appropriations in the General Appropriations Act and the items vetoed in the Fiscal Code is that the code language is substantive direction on how the money is to be spent and not merely a line-item allocation of money.
“Here we have language that directs how a certain amount of money in the General Appropriation bill is to be allocated for certain purposes and that to me is not an appropriation.”
MacNett believes, while the particulars of the case would be one of first impression in Pennsylvania, the controlling precedent in the case will likely be Jubelirer v. Rendell, a 2008 Pennsylvania Supreme Court case that limited the governor’s line-item veto authority to just the amounts of appropriations, not their purpose.
“I think, fundamentally, that decision is controlling here,” he said. “It fundamentally stands for the proposition that while the governor can reduce or eliminate an appropriation, he really can’t change the terms, the conditions, the directions, the instructions that the General Assembly has provided for the use of that money.”
While MacNett noted the “foundational work” of a potential lawsuit is progressing, he said his client hopes to avoid litigation and have the process resolved through the normal political course of operations.
“I think what is at play is a bona fide effort to find a resolve on this issue short of litigation,” he said. “First they are trying to deal with it at a lower key and in a more economical way.”
He said this is why the effort has commenced to see if the State Treasurer would honor the vetoed language in processing requisitions.
“The Treasurer makes a judgment as to legality and availability of funds when a requisition has presented itself and constitutionality is part of legality,” MacNett explained.
However, if litigation becomes the only option, MacNett said the leaders stand at the ready to put its full effort behind a court battle between the legislature and the Administration.
“The Administration’s attitude seems to be ‘Well, if you think there’s a problem, litigate it,’” he said. “If that’s the direction that becomes necessary, I’d expect the leaders may well move to that step.”
(Reprinted From PLS Reporter, written by Jason Gottesman)