New Mexico’s veto problem

COMMENTARY: Normally New Mexico has a bit of a veto problem, but this year was different. In the 2017 session we saw a veto avalanche, although the crisis seemed tame next to our budget apocalypse. Now that the budget dust is clearing, it may be worthwhile to examine the veto system separately to see if problems could have been avoided with a process less susceptible to abuse.

So let’s take a look at some veto facts. In the 2015 legislative session Gov. Susana Martinez vetoed 33 bills; in 2017 she vetoed 140 bills. In 2015 she vetoed 14 bills that passed unanimously in both the Senate and the House; in 2017 she vetoed 55 bills that passed unanimously. You can see that 2017 is a different order of magnitude.

You might think that the Legislature would be annoyed about those 55 vetoes of unanimous bills (plus 46 more that passed both houses by at least three-fourths). But historically the Legislature’s right to override a veto with a two-thirds vote has been an illusion.

You could say that the New Mexico Legislature has three branches — the House of Representatives, the Senate, and the governor — and you need all three to pass a bill.

You have to go back many years to find an example of the Legislature overriding a veto.

But this year we saw several very unusual veto events. First, legislators claim that 10 of the governor’s vetoes were invalid and that the bills in question are law. Second, the Senate did override a veto, although the House didn’t follow suit. Third, legislators threatened to call an extraordinary session to override vetoes.

Those 10 vetoes

We need to look closely at the veto system to understand why these events are so unusual. Article IV, Section 22 of the N.M. Constitution specifies veto procedures. Although the text is long and dense, the details are so important that we must quote the whole thing. Sections that will be important in the discussion are highlighted:

Every bill passed by the legislature shall, before it becomes a law, be presented to the governor for approval. If he approves, he shall sign it, and deposit it with the secretary of state; otherwise, he shall return it to the house in which it originated, with his objections, which shall be entered at large upon the journal; and such bill shall not become a law unless thereafter approved by two-thirds of the members present and voting in each house by yea and nay vote entered upon its journal. Any bill not returned by the governor within three days, Sundays excepted, after being presented to him, shall become a law, whether signed by him or not, unless the legislature by adjournment prevent such return. Every bill presented to the governor during the last three days of the session shall be approved by him within twenty days after the adjournment and shall be by him immediately deposited with the secretary of state. Unless so approved and signed by him such bill shall not become a law…

The masculine pronoun grates a little when we have a female governor, but we’ll ignore that and concentrate on the phrase “with his objections.” The problem is that Gov. Martinez vetoed ten bills — Senate bills 6, 24, 64, 67, 134, 184, 222 and 356, and House bills 126 and 144 — without stating any objection. The theory is that if the governor explains what’s wrong with the bill, the Legislature can revise it to meet her objections. This happened at least once in 2015, but there was no such cooperation in the toxic atmosphere of 2017.

The 10 challenged bills were passed between March 3 and 11, more than three days before the close of the session on March 18, although some were not submitted for several days after passage. The governor vetoed each of them with a message like this one: “Pursuant to the Constitution of the State of New Mexico, Article IV, Section 22, I hereby VETO and return SENATE BILL 6, as amended, enacted by the Fifty Third Legislature, First Session, 2017.” No reason given. The governor’s message on all other vetoes contained a justification.

After her failure to state a reason became a controversy, she wrote messages on March 16 (past the three-day deadline) explaining that she had vetoed the eight listed bills “on the grounds that that they are not necessary for the health, safety, and welfare of the citizens of this great state.” That’s not really an explanation, but it might be legally sufficient if given within the deadline.

Democratic legislative leaders say the bills are law and in the database of bills, label them as “LAW WITHOUT SIGNATURE” rather than “Vetoed by the Governor.” The governor’s response: “That’s ridiculous. The veto messages were sent, received and read within the three-day period without objection. This stunt exposes the arrogance of the good ol’ boy system that is the State Senate where they think they can enact laws on their own.”

Legislative leaders have sued, requesting courts to declare the challenged bills to be law. Judges will decide which side is “ridiculous” and arrogant. If you read the words of the Constitution carefully, as courts tend to do, it looks like at least some of these bills will be law.

Politics

There are two theories of how vetoes fit into the political system. One is that they represent the difference not between parties or ideas, but between legislatures and executives. The other is that they are just part of the battle between parties. The governor is the head of her party and a vote to override her by a member of her own party is a sign of disloyalty.

As an example, consider House Bill 241, titled “Use of Attendance in Teacher Evaluations.” The purpose of the bill was to say that teachers shouldn’t be penalized in their evaluations for being sick, but the governor responded that more sick days would mean more expense for substitute teachers. You might understand both positions without seeing either as distinctly partisan. But partisanship was how the issue was resolved.

The bill passed 64-3 in the House and 39-0 in the Senate. The governor vetoed it on March 9, leaving plenty of time for an override vote. The Senate overrode it 34-7 (83 percent), with 8 of the 15 Republicans voting with the Democrats. The House voted 36-31 (54 percent) for the override, far short of the required two-thirds. No Democrats voted against and no Republicans voted for — and 28 Republicans who voted for the bill voted against the override.

It’s clear that the Senate voted based on the first theory of legislature versus the executive, while the House voted party-line to support the governor’s veto.

Most legislative business is usually finished during the three hectic last days of the session. For example, in 2015 only three of the bills vetoed by the governor had a chance to be considered for an override. This year there were 31 bills vetoed before the last few days, but only one was brought to the floor for an override vote. Most of the bills vetoed by the governor didn’t even have a chance for an override. In fact, 56 were pocket vetoes, which can’t be overridden by definition.

Bills that pass late in the session can face several fates. The governor can sign them and they become law. The governor can veto them with a message explaining her reason. Or the governor can simply ignore them — a pocket veto. If the governor ignores bills that passed before the three-day cutoff, they become law without her signature (as four bills did). If she ignores them after the cutoff, they don’t.

There are two ways for bills that have been vetoed or pocket vetoed to become law. First, the bill can get an override vote in the next session. That’s unlikely because the next session is a long time away and the new legislature will have new members and new issues. It hasn’t happened since 2002. The other way is to override them in an extraordinary session.

Special sessions called by the governor are limited to the topics she chooses, and she didn’t choose to reconsider her vetoes. So that leaves the sessions that can be called by a two-thirds vote of both houses. Normally this is so difficult that it wouldn’t even be discussed. This year it was threatened in the heat of the budget battle, although it hasn’t been mentioned since the special session. Apparently Democratic leaders didn’t have the votes.

Even if an extraordinary session were called, there’s no guarantee that a veto override would get the same votes as the original bill. It certainly didn’t on House Bill 421, where 28 Republicans changed their votes to support the governor. On unimportant bills, some of those “yes” votes may be legislative horse-trading and back-slapping that wouldn’t hold up for an override.

In fact, you might question the cause and effect. Does the governor veto unanimous bills because she is arrogantly opposing legislators? Or are so many bills unanimous because opponents can take credit for support knowing the governor will veto them?

The bigger issue overriding vetoes of individual bills is the item veto of whole departments including the Legislature and the higher education system. Until that issue was resolved at the governor’s special session, overriding vetoes was secondary.

Retribution

There was evidence that the governor didn’t just veto the bills she disagreed with. There may have been some political retribution involved. The Senate’s override may have been punished and the House’s support may have been rewarded. The relatively calm atmosphere of the 2015 session may have been the result of a split legislature — Republican House, Democratic Senate — compared to this year when Democrats control both houses and have major budget disagreements with the Republican governor.

For example, did the governor pocket veto almost twice as many Senate bills (37) as House bills (19) to punish the Senate for overriding her veto and challenging some of her vetoes?

So far we are counting vetoed bills rather than reading them. Evaluating is more subjective, but it did seem that many vetoed bills were not very controversial. For example, SB 356 simply required that the state notify the county treasurer when a public improvement district is formed. Is that really worth vetoing?

The governor warned before the session that she would veto any bill that raised taxes, but most of the vetoed bills did not raise taxes and many of them did not directly cost money. In other words, some bills failed not because anyone strongly opposed them, but because of a political power struggle. Legislators may think of this as part of the game, but each of those bills was supported by advocates who won’t forget.

What to do about it

So what could we do about veto problems? First, get rid of pocket vetoes. They are an anachronism. Since the session ends automatically and most bills are passed in the last few days, there is no reason to distinguish between vetoes. Most states don’t have pocket vetoes because they have no purpose other than to decrease accountability and increase the governor’s punishment powers.

Senator Jacob Candelaria (D-Albuquerque) proposed a constitutional amendment, first in 2014 and again in 2017, to eliminate the difference between vetoes and pocket vetoes. All passed bills, whether before or after the three-day cutoff, would become law unless specifically vetoed with a justification. Candelaria proposals went nowhere, but after this year’s veto deluge perhaps the legislature would be more open to it.

There are other possible veto reforms. A constitutional amendment could say that if a bill passes unanimously or with a high margin — say 75 percent in both houses — the governor could not veto. In other words, the vote would contain an automatic override. This would certainly focus legislators’ attention and discourage uninformed votes.

Also, New Mexico could establish a regular veto session. Many other states have a short session a month or so after the regular session to override, uphold or modify vetoed bills. Veto sessions are automatic. This changes the legislative culture and expectation.

In New Mexico, the governor bats last. She can veto as partisan punishment. In states with veto sessions, the legislature bats last. Vetoed bills may be considered on their merits. That wouldn’t eliminate partisanship, but it would increase accountability.

Next spring might be a good time to consider fundamental reforms that change the legislative culture. No one knows what will happen in the fall 2018 election except that we will have a new governor. Legislators from both sides of the aisle might look at this year’s debacle and decide that a less partisan atmosphere would be more productive. Many voters want bills to be considered on their merits rather than as a test of loyalty. Proposing a constitutional amendment bypasses the governor’s veto and gives voters the final veto opportunity.

The New Mexico veto system is dysfunctional, and it’s time to consider a permanent fix. The intricate dance between legislative and executive branches has become unbalanced. The governor has too much advantage — more like a parliament where the monarch has the only vote that matters. The veto is a useful tool in a democracy, but it shouldn’t be the final word.

Bruce McKinney is a constitutional nerd who has written about the U.S. Constitution, the N.M. Constitution, and the Silver City Charter. He lives in Silver City and is semi-retired from careers in real estate, software and reporting.