New governor tells us how he intends to circumvent a need to veto
We’ve been privileged to converse with each of Indiana’s last nine governors –everyone who has led the state in the past 50+ years to gain their insight about the philosophy that each possessed for approaching whether to sign, veto, or allow a bill to become law without his signature.
Indeed, no governor elected after 1984 has had the first piece of legislation land on his desk from the General Assembly without first sharing with us the criteria he would use to evaluate whether to allow legislation to pass the final stage before becoming law (in the early 1990s, Govs. Otis Bowen (R) and Bob Orr (R) recalled for us their respective thought processes).
Governor Mike Braun (R) was the most recent state leader to sit down with us to outline his thoughts – shortly before the election – and we can now place his mindset in a 52-year historical context – covering some 25% of the state’s history and almost 20% of the state’s 52 governors.
Indiana’s founding fathers took the veto power seriously, with only two other subjects taking up more text in the state Constitution . . . so just what will go through Governor Braun’s mind when he is faced with any enrolled act that requires his signature to become law?
Gov. Orr told us back in 1989 that he only vetoed an average of one or two measures per session because he preferred to rely upon other informal avenues of conciliation with his Republican legislative majority and avoided the veto by convincing legislators “to modify things to make them acceptable …. ahead of time.”
We expect that Gov. Braun – who, like Gov. Orr possessed experience as a state lawmaker before being elected governor, and understood the veto from the perspective of a lawmaker – will resemble the Orr model, but likely with even fewer vetoes.
“I think you’d want to be real collaborative with the legislators,” Gov. Braun tells us, “and I’m going to get along with them because I served with them. And if you’re collaborating and talking – and I’m going to wear them out on meeting at the State House or at the (Governor’s) Residence – because that is the way you craft legislation to where probably you’d obviate a veto, because you’re working with them.”
His thought process is also similar to that of Gov. Mitch Daniels (R), who told your favorite newsletter 20 years ago, “a good cooperative process would produce, ideally, no vetoes.”
While Gov. Daniels only led one biennium with a Republican supermajority (and that was just in the Senate), each of his successors – including the new incumbent – enjoy the advantage of same-party supermajorities in both chambers. Gov. Braun further benefits from having legislative leaders with whom he is familiar from his service in the General Assembly (he joined the House in 2014, one term short of both leaders, who were each first elected to their respective chambers in 2012).
Given the same-party control of both branches and the general agreement on key overarching matters, such as not spending beyond what the government is expected to collect, there should be nothing coming up this session to confront Gov. Braun that, in the words of Gov Daniels, “could contravene something that I believe is philosophical bedrock.”
Gov. Eric Holcomb (R) told us eight years ago that he learned a great deal from his mentor, Gov. Daniels, who told us in 2005 that the governor has “a very important obligation … to see trouble coming – problematic bills coming – and indicate our reservations up front and where possible be constructive and indicate what changes would make it acceptable.”
Look for Gov. Braun to adopt the same approach. “It just takes a simple majority to override,” he recognizes. “And that would mean that if you’re overriding, you were not communicating to the extent you probably needed to. And I’ll be very cognizant of that. I’ve successfully led in the business world, and a few years as a legislator, and even in a difficult place like the (U.S.) Senate, because you get along with other people, you’ve got good ideas, and you’re going to have to bring folks on board crafting a solution collaboratively, collectively. And then most likely vetoes won’t come into play,” he recognizes.
But, as a former legislator, Gov. Braun understands that the process isn’t always tidy. Late-session compromises can potentially alter the trajectory of favored measures and last-minute drafting can introduce both unintended and unforeseen consequences. As for conference committee action, “there’s that too,” Gov. Braun acknowledges. “That’s just kind of icing on the cake-baking – let’s just say that’s the finished product of making sausage great legislatively,” and he will be prepared to address the consequences.
Note that Gov. Braun is the second successive non-lawyer to be elected governor, after the four governors elected since Gov. Orr were attorneys. While Gov. Holcomb made an interesting pledge to read “every single word and I will know where the commas are; that can make a difference And we’ll make sure that it meets constitutional muster – at the least,” we expect that Gov. Braun will leave the legal parsing to aides and external evaluators.
There was no mention by Gov. Braun in his initial thoughts on his reckoning with the veto power about the constitutionality of measures, their fiscal impact, and whether he simply believed a measure constitutes good public policy or not. Presumably fiscal questions will be resolved by the General Assembly, with leaders pledging a balanced budget and reduced spending. Constitutionality has been an issue in recent years, with several legislative measures later overturned by the courts over such concerns, and Gov. Holcomb vetoed at least one high-profile measure because of its policy implications despite it being supported by an overwhelming majority in the GOP supermajority.
“I have pretty firm views … about balancing the state’s books and that would be [a] category of potential difficulty,” Gov. Daniels told us in January 2005. That was also a key consideration for Gov. Evan Bayh (D), who cited to us back in 1989 the “fiscal impact” of any measure as his first concern. He told us that he had to feel comfortable that the funds were readily available to pay for the cost of the program he was being asked to implement.
“My two lodestars are constitutionality and fiscal responsibility,” Gov. Mike Pence (R) told us in his first month of office in 2013. “I think any bill that comes across our desk will primarily be considered in that prism. I think that the oath I took on Monday was an oath to the Constitution of the State of Indiana and to the Constitution of the United States, and so my first obligation is to ensure that any act of the legislature meets that criteria, and I think that’s enshrined in both constitutions.” He believed that under the Indiana Constitution “it’s the function of the executive to make that judgment first, and then secondly, to consider each measure with regard to its fiscal stewardship and its fiscal responsibility.”
Gov. Bayh told us in early 1989 that one key intangible question for him was a “consideration for the wishes of the legislature,” examining whether the item is one in which he believes the legislature has the prerogative to act upon its own initiative (such as a legislative pay raise), or if it is one in which there has been a clear legislative examination of the issue, with an equally clear resultant decision. Gov. Daniels 16 years later called the perspective of his predecessor twice removed “a point well made,” observing that “I have a great deal of respect and in some cases, deference to legislators,” and their “ ‘first position’ with regard to many issues.”
When we put the question to the state’s 50th governor, Gov. Pence allowed that “sometimes people think that beyond ‘constitutionality’ and ‘fiscal responsibility’ that a ‘best interest’ standard” be applied, but “I would be – and maybe it comes from the fact that I’m a former legislator – I would be less inclined to use the veto authority in ways that I thought would
be subjective, or would supplant the judgment of the executive branch for the judgment of the legislative branch. I believe in the legislative process. But I also believe that there is, under our state constitution, the governor is imbued with the authority to provide that both the constitutional – and I think a fiscal stewardship check – through the veto authority, and, as you know, through other means – through expending resources.”
Gov. Frank O’Bannon (D) had told us coming into office that he would not hesitate to wield the veto pen if he believed that a measure is simply “bad public policy” – or if the proposal in front of him was just “not of benefit to the people of Indiana.”
His successor, Gov. Joe Kernan (D), told us a few years down the road that he would ask “what harm; what good?” about each bill. Recognizing from his time presiding over the Senate that many of the bills would be loaded up with extras – some positive and some negative – Gov. Kernan explained to us that “There’s going to be a balancing on some of them.”
Don’t look for Governor Braun to push for line-item veto, a power that Gov. Kernan (D) requested in his 2004 State of the State address, and one which Gov. Daniels told us he backed “just as a matter of good government.” We believe that Gov. Braun will, just as Gov. Holcomb, realize that “the governor’s fiscal apportionment powers are strong,” and that the same need can be addressed with even more direct authority.
The Braun Bottom Line: Look for early intervention to ensure that there are no surprises and that the Governor’s wishes are accommodated as best as can be. We expect that he will largely work through leadership to address his concerns, but if he has a particularly strong relationship with a key member, he could reach out directly.
Working with a strong legislative majority of his own party, he should be able to avoid the problems faced by Govs. Bayh and O’Bannon, who were often presented with untenable choices by a legislative majority inimical to the interests of the chief executive (including, with Gov. Bayh, at time even his fellow Democrats), and were sometimes relegated to letting legislation slide simply because they had to chalk it up to matters of legislative deference or prerogative.
When session draws to a close, bear in mind that it only takes a simple majority to override a gubernatorial veto, so lawmakers hold the upper hand . . . and an aggrieved governor is forced to resort to use the bully pulpit if he wants to carry a crusade further.