One of the most simple phrases in the vocabulary of legislative policy-making is “legislative intent.” However in the process of making new law, the meaning of the legislative intent language accompanying that new law is often in the eye of the beholder.
I learned this first hand when I worked as former Gov. Jay Hammond’s top aide. At the end of every legislative session, Hammond’s senior staff spent countless hours reviewing intent language in the operating and capital budgets for veto candidates.
Alaska’s governor has sweeping constitutional powers that most chief executives in other states do not possess. One of those powers is the line item veto. The line item veto allows the governor to veto single items in an appropriation bill and if the governor exercises that veto power, it take a three-quarters vote of the legislature to override it.
The net effect of this high constitutional bar is that a three-quarters vote presents such a high legislative hurdle that appropriation vetoes are seldom overridden.
During my second year on Hammond’s staff, Prudhoe Bay revenues from oil production were beginning to cascade into the state treasury. And these increased revenues led to large capital budgets.
One of the biggest capital budgets during Hammond’s second term occurred during the 1980 legislative session. The House and Senate, whose members had felt the sting of Hammond’s line item vetoes in past legislative sessions, stuffed volumes of legislative intent language into the 1980 capital budget signaling to the governor — in legislative shorthand: “don’t you dare veto any part of this appropriation.”
The first major issue we confronted in reviewing the capital budget intent language was linked to line item appropriations to nonprofit organizations. Essentially these appropriations were designated grants, an idea which Hammond opposed. He believed these types of grants should be subject to a competitive bidding process.
He also believed that when the House and Senate awarded a single entity a state grant in an appropriation bill, the legislature had effectively encroached on executive powers.
The net result of the veto review exercise was that Hammond liberally exercised his line veto authority to strike intent language which singled out grant beneficiaries. However, the governor left the remainder of the appropriation untouched. He then followed up his veto action by directing departments to proceed with awarding the grants through a competitive bidding process.
Hammond’s action outraged the Legislature and they filed a lawsuit to overturn the governor’s intent language vetoes. The lawsuit brought by the legislature ended in 1983 with a 69-page decision by then-Alaska Superior Court Judge Walter Carpeneti which largely supported the Legislature’s position.
However, two years later, when the governor and senior staff were reviewing the 1982 capital budget bill’s intent language, Hammond found an opportunity to remind the Legislature that — despite the ongoing lawsuit — he still wasn’t a big fan of legislative intent language. One intent language item in particular caught his eye.
The legislative intent language read as follows: “The program has been 3/4 year funded in an effort to encourage the right-of-way agency not to unjustifiably delay projects.”
After Hammond’s partial veto the intent language it now read: “The program has been 3/4 year funded to unjustifiably delay projects.” His veto flipped the Legislature’s intent on its head and further enflamed the veto controversy.
However, I don’t believe the Carpeneti decision will end the constitutional pushing match between the executive and legislative branches of government over the Legislature’s intent contained in appropriation bills. At some point in the future, Legislature is certain to once again flex its muscle by adding contingency language in an appropriation bill which pushes the outer boundaries of its legislative powers.
That almost happened 2011 when the Senate added contingency language to its capital budget bill which nearly triggered what would have been a whopper of a constitutional crisis with Gov. Sean Parnell. However, the upper chamber ultimately decided to delete the contingency language and fight that battle another day.
So, stay tuned.
• Jerry Reinwand was Gov. Jay Hammond’s chief of staff during Hammond’s second term. He has also served in the same position for then-Sen. Frank Murkowski in the senator’s Washington, D.C. office. Reinwand is a lobbyist living in Juneau.
