By Andrew Graham

WyoFile.com

To cheers from the Wyoming Republican Party and even some lawmakers, Gov. Mark Gordon took a swipe at the Legislature’s budgeting process with a strongly worded veto letter about reining in practices he deemed unconstitutional.

In the letter, Gordon warned lawmakers away from using budget bills in place of “single-topic pieces of legislation.” And for the second time this session, he suggested the Legislature has infringed on the authority of the executive branch. He vetoed 14 budget footnotes that established task forces or called for reports and studies from state agencies.

The House managed to override just four of the governor’s vetoes as the Legislature worked through Wednesday night and into the early hours of Thursday morning. The Senate mustered support for two of the House override votes. When the Legislature adjourned the 2019 general session, it left 12 of the governor’s vetoes to stand uncontested.

Some of the line items Gordon vetoed were priorities of legislative leadership, including a substantive task force on the future of Wyoming career and technical education that was pushed by Speaker of the House Steve Harshman (R-Casper). Harshman had sponsored a separate bill creating the task force as a separate bill, but it failed in the Senate.

In his letter to Harshman, Gordon said he wanted to rein in a budgeting process he saw as growing overly expansive in recent years. Gordon’s letter made clear that he expects his challenge of the Legislature’s use of the budget bill to prompt a change in direction.

“I have attempted in this review to be forbearing, objecting to only the most grievous examples of ‘legislating from within the budget,’” the governor wrote.

The task force Harshman sought was an example of unconstitutional use of a budget footnote to create law, Gordon said. “This provision is not related to the ‘ordinary expenses’ of State government as required in Article 3, Section 34 of the State Constitution and should be a single-topic piece of legislation,” he wrote.

The Wyoming Republican Party put out a statement Wednesday morning praising Gordon for his “Constitutional approach to the budgeting process.”

Early on Wednesday, Gordon declined to say how far he’d take his stance if the Legislature overruled his vetoes. He consulted with new Wyoming Attorney General Bridget Hill in crafting the letter, he said, and is confident in its assertions that some budget practices in recent years had deviated from the constitutionally mandated process.

“It’s always a conversation,” Gordon told WyoFile. “I guess I was hoping my opening sentence would say, ‘Let’s try to be more traditional as we move forward.’”

But, he said, he swore an oath to defend the Wyoming Constitution.

“I’m not trying to sound antagonistic or jingoistic or anything,” he said. “I just feel that the Constitution guides the way we do government and it’s important that we adhere to it.”

Gordon has not hesitated to take other elected officials to court in the past. As Wyoming State Treasurer he sued legislative leadership and former Gov. Matt Mead over the Capitol Restoration Project. The Wyoming Supreme Court ultimately ruled in Gordon’s favor, saying the Legislature and Mead had violated the Wyoming Constitution with parts of the statute structuring the project.   

When presenting the veto letter to representatives on Tuesday night, House Appropriations Committee Chairman Bob Nicholas (R-Cheyenne) suggested he wanted the body to take a stand and protect its authority.

“If we’re going to draw a line in the sand, we might as well just do it now,” Nicholas said.

But if a showdown between Gordon and lawmakers is to come, it won’t be this year.

Perhaps lacking the votes and recognizing support for Gordon’s stance among lawmakers, the House overrode just four vetoes Wednesday night before stopping. On the fourth veto line-item, one to preserve a legislative call for a report from the Wyoming Business Council, the vote to override nearly failed. Needing 40 votes to override, leadership came up short until five lawmakers switched their votes.

The House did not take a vote to override Gordon’s veto of Harshman’s education task force.

The Senate upheld only two of the House’s veto overrides, one of which was a mere technical correction. The only significant veto override the Legislature passed preserved the elimination of a position in the State Engineer’s office.

Among lawmakers, support for Gordon’s veto message spanned the political spectrum. In the Legislature, a bloc of lawmakers who decry a legislative “spending problem” but haven’t been able to pass the deep cuts they want feels they’re largely shut out of the budget-writing process by leadership.

“There is definitely a new sheriff in town!” wrote one such lawmaker, Sen. Bo Biteman (R-Sheridan), in an email to WyoFile. “I applaud his adherence to the Constitution and desire to return to standard budgeting procedures; away from legislating in the budget.”

Some moderates also liked to see the governor flexing his muscle. “Gov. Mead did not veto enough the first couple of years and the balance of power swung to the legislature,” said Rep. Dan Zwonitzer (R-Cheyenne). “Gordon is coming out strong from the beginning.”

“Over the last decade we’ve seen an increasing creep of putting legislative bills into the budget bill. I think this is a good pushback,” Zwonitzer said.

Leadership of the two legislative chambers initially brushed off Gordon’s budget veto letter, though some senators said there was some validity to his points. And as with other scraps over the budget this session, there was a sense of strong words in public but collegial negotiations in private. Senate Vice President Ogden Driskill told reporters that after issuing his veto letter the night before, the governor had attended an annual get together for lawmakers where he laughed and joked with House leaders.

“I was not surprised that he vetoed something. I would’ve been surprised if he hadn’t,” said House Speaker Pro Tempore Albert Sommers (R-Pinedale).

“I think it’s kinda neat actually,” said Harshman on Wednesday morning, calling the vetoes part of the legislative process. “We’re kinda gonna put our toes in the water and see how this thing comes out,” Harshman said.   

Beyond ordinary expenses

Gordon became concerned when the budget bill dictated actions beyond “appropriations for the ordinary expenses” of government, he wrote, quoting the Wyoming Constitution. He suggested over time the Wyoming Legislature drifted away from the constitutional prescription for writing the state budget and had continued that trend in this year’s supplemental budget bill.

“There may be elements of recent custom reflected in this budget that are potentially at odds with the more prescribed nature of Wyoming’s Constitution,” he wrote.

In particular, Gordon wrote, he was concerned by budget footnotes that create committees, task forces or call on state agencies to write studies and reports unrelated to budget matters.

“I am confident it was not the intent of the legislature [sic] to offend the Constitution but rather was simply a practice born of recent convention,” Gordon wrote.

This year’s budget bill was a supplementary one that comes midway through a two-year biennial budget. The new governor implied he was looking to set the tone for this coming fall, when he will submit his first full budget to the Joint Appropriations Committee.

“I do look forward to our upcoming budget efforts,” he wrote, “wherein we might migrate to a more traditional approach.”

Gordon’s vetoes

Among other things, Gordon’s vetoes included a mandate for the governor’s office to report to the Joint Appropriations Committee an explanation of methods to “inflation-proof” the state’s large permanent trust fund. He likewise vetoed a mandate for a report from the Department of Administration and Information to create procedures for cost-benefit analyses on state building leases.

He vetoed part of a footnote that forced the state’s aeronautic commission to consult with a senator and representative before negotiating contracts with private airlines. The order would have given the Legislature some oversight over a $15 million appropriation it made to maintain air service throughout the state.

Gordon also vetoed lawmakers’ attempts to commission a study of the Department of Transportation’s Cessna airplane. The study was a compromise between the House and the Senate — the Senate had wanted to sell the plane outright.

Gordon vetoed a $100,000 appropriation for the Wyoming Business Council to market agricultural products in Asia, saying the agency should draw out of the ENDOW account. ENDOW is Mead’s flagship economic diversification effort.

Gordon also vetoed a mandate that the Business Council spend $250,000 to hire a new staff member to pursue aerospace and federal defense contracts. The Business Council vetoes do not strip those amounts of money out of the budget, but only eliminate mandates from lawmakers directing agency spending of its allotment of state funds.