The Congressional Institute
1700 Diagonal Road. #730
Alexandria, VA 22314

Phone: (703) 837-8812

The Sausage Factory

Perry’s Veto Case: A New–and Potentially Dangerous–Form of Judicial Review?

Texas Governor Rick Perry was indicted last week on charges of “abuse of official capacity” and “coercion of public servant”. His alleged crime was threatening to veto and then vetoing an appropriation for an office under the supervision of Rosemary Lehmberg, a District Attorney who had pleaded guilty to drunk driving, but who refused to step down. From the point of view of the legislative process, this is an absurd indictment that undermines the powers of elected officials even though it tries to defend them.

According to the indictment, the first charge is that he “intentionally or knowingly misused government property…such property being monies…which were approved and authorized by the Legislature of the State of Texas”. This charge is laughable because it mistakenly identifies what actually Governor Perry used. He did not use or misuse any money here. Properly speaking, there was no money available for him to misuse at all. For him to use the monies in the first place, it wasn’t enough that the legislature had authorized them for the Public Integrity Unit. To actually be available, the Governor needed to sign the appropriations law or the legislature needed to override a veto. However, since the Governor used a line-item veto, that provision did not become law. Instead of using or misusing state monies, Governor Perry actually used the veto power, granted by the Texas Constitution. So the first charge of the indictment falls for being mistaken on the facts of the case.

The second charge concerns whether the veto was coercive. By its very nature, a veto threat is coercive; it is supposed to change a person’s behavior on the basis of considerations aside from reasoned arguments. However, the law against influencing or coercing a public official, which is the basis of the second charge, cannot easily be applied without wreaking havoc on the legislative process.  Would every veto threat, but not the veto itself, be illegal then? If that were the case, we’d have an absurd regime where the Governor would not be permitted to speak publicly about whether or not he would sign a bill.

Perhaps you can grant that veto threats are necessarily coercive, but this one should be considered illegal because it was unjustly coercive. After all, the alleged target of coercion was not the legislature but a Democratic District Attorney, elected by the people, and who was in charge of a unit that had the power to investigate elected officials, most of whom were Republicans; further, if she did resign, he could install a Republican replacement (even though in actuality, he had pledged to replace her with a Democrat). That might be the case; it might not be—who is to say? That is exactly the problem. Judges and juries would have to decide when the law at hand is quite vague and the ethical issues subtle.

If this goes forward, there are plenty of instances where an elected official could be accused of coercion. Let’s consider this on a Federal level – say, for instance, the President threatens to veto the National Security Administration’s (NSA) appropriation unless they stop collecting the cell phone records of Americans.  Could NSA officials argue that the President was threatening them for merely carrying out their constitutional duty to defend the people of the United States?  If their appropriation did not go through, the agency would be shut down and the employees would not be paid.   Could they argue that the President was threatening their livelihood over a difference of opinion?  Would that amount to criminal intimidation?  Of course not.  That’s called governing, and its what we elect presidents and governors to do—but if this Texas case were the standard, it’s not clear that a judge or jury would not consider it coercion.

When Lois Lerner refused to testify before Congress, would Congress have been guilty of a criminal action by threatening to cut the appropriation of the IRS office that was intimidating the Tea Party organizations?  No.  Oversight is one of the primary responsibilities of legislators and executives. Threatening to cut an appropriation is a way of putting bureaucrats on notice that they are accountable to the people’s representatives—but again, under this new standard brought by this Texas prosecutor, it’s not clear that a judge or jury would not consider it coercion.

Launching judicial cases for actions committed during the legislative process, whether usual or not, would just further politicize the courts, which are rife with such disputes as it is. Furthermore, the Texas law on coercion is very vague, and its authors probably did not imagine that it could be used to target a Governor using his veto power. In trying such a case, the judge wouldn’t be merely saying what the law is—since the law doesn’t say much—but making law in an area of ethics where people of good will can disagree greatly. Without clear parameters for what is acceptable or not, a Governor who is contemplating a veto threat is left guessing what a judge or jury might say.  If the veto power is to be limited, it should be done via the constitutional amendment process. (We say the amendment process because the legislature probably does not have the constitutional authority to limit the veto power.)

One further consideration about using the courts to go after what may be called “aggressive” vetoes: Even if the law were clearly written, it would probably not be hard to evade. Let’s say the people of Texas decide to amend their constitution to forbid the Governor from using the veto as a tool to force someone out of office. Previously, the Governor was able to say, “I will not approve this appropriation unless John Doe resigns.” To evade prosecution, perhaps the Governor could instead say, “I object to John Doe’s stewardship of the office, so I cannot in good conscience approve funding for this program.” Or would the Governor be fine if “he simply cut the funding with little more than a smirk”, to borrow a phrase from George Washington University legal scholar Jonathan Turley? In practice, litigating vetoes would probably be extremely difficult.

Ruling vetoes illegal actually leads to another important constitutional question: Supposing a veto was found to be an abuse of power, what would the status of the related bill be? The Texas Constitution, like the U.S. Constitution, lays out a procedure by which a bill moves from the Legislature to the Governor. If a veto were illegal, would a judge say that the related bill should then be considered a law? Would the bill still be considered vetoed? Would he say the legislature has to start from scratch? Something else? Again, either the courts have to establish very large new realms of law or concede that cases like these do not fall under their purview. If the framers of the constitution felt thought was important enough to enshrine the fundamental elements of the legislative process in the document itself, that power should remain with the people.  The court here sets up an impossible constitutional entanglement by unconstitutionally imposing itself directly into the legislative process before a bill becomes law.

You can argue over whether or not it was appropriate for the Governor to try to force Rosemary Lehmberg’s resignation, but that is a whole other question that we do not want to address here. The real issue is whether the judicial branch is attempting to prevent a Governor from using a power clearly granted by his state constitution – a power the President and every governor has.  Violating this separation of powers is a slippery slope that should worry people of any political persuasion that believe in the legislative process. It is clear to us that this case has the potential to wreak havoc on the legislative process, so the courts should dismiss this case post haste.

Sign up for email updates