Override the Governor's Veto of HB 1903 on September 15

On July 14, Governor Jay Nixon vetoed House Bill No. 1903. His reasons for rejecting the bill, though several, revolved around his disagreement on the handling of federal funds transmitted to the states from the federal government. How are we to think of this turf war between the Governor and the General Assembly in the state of Missouri? The best way is to return to an understanding of the respective functions the legislative and executive branches of our government.

In 2009, the Missouri General Assembly passed and the Governor signed Senate Bill No. 313. SB 313 established two funds within the state treasury, which funds were virtually identical, except that one was for collecting federal budget stabilization funds and one was for collecting federal stimulus funds, both granted to the state due to the American Recovery and Reinvestment Act of 2009. The bill directed the state treasurer to invest the money in the funds for the benefit of the funds. It also specified that the funds would not revert to the credit of the general revenue fund.

In 2010, the Missouri General Assembly passed House Bill No. 1903 which created two additional funds for subsequent gifts from the federal to the state government. These two funds, again, were virtually identical to the two funds created by SB 313, except that they were created for (1) subsequent federal appropriations to the states for extended budget stabilization or a temporary increase in the Medicaid Federal Medical Assistance Percentage and for (2) federal appropriations to the states as part of the federal race to the top program. The federal race to the top program is a race established by the federal government to provide financial incentives to states for complying with federal education standards. The key differences in these two funds are that the legislature required the commissioner of education to seek approval of the distribution of funds from a joint legislative committee and that moneys remaining in the fund at the end of a specified period would revert to the general revenue fund.

In his veto message, Governor Nixon cited three reasons for his rejection of HB 1903:
• The two additional funds are an unnecessary duplication of funds created by SB 313.
• The joint committee’s approval of the distribution of the race to the top funds is an improper intrusion by the legislature into the duties of the executive branch. And the process would unnecessarily delay distribution of funds to the schools of the state.
• By allowing the moneys to revert to the general revenue fund, the legislation violates several federal conditions on the race to the top money and subject the state to sanctions.

The first two stand or fall together with an understanding of the respective roles of the legislative and executive branches of the government. The third is far more complex and becomes an issue of wisdom. Article III, Section 1 of the Missouri Constitution declares that, “The legislative power shall be vested in a senate and house of representatives.” Simply put, the General Assembly has the duty to write law. Article IV, Section 2, more explicitly sets forth the duties of the Governor. “The governor shall take care that the laws are distributed and faithfully executed, and shall be the conservator of the peace throughout the state.” The duties of the Governor are to carry out the law written by the General Assembly.

The Constitution does not stop there. Section 36 of Article III provides that all money received by the state shall go into the treasury and none shall be withdrawn except in pursuance of appropriations made by law. Section 28 of Article IV makes this provision applicable to the Governor by specifying that now money shall be withdrawn from the treasury except by warrant drawn in accordance with an appropriation made by law. Therefore, it is the General Assembly’s obligation in the first place to appropriate moneys from the state treasury. Moneys received by the state from the federal government must first be appropriated by the General Assembly by law.

The real concern with the method of reviewing distributions proposed by the commissioner of education is not so much that it is an intrusion into the duties of the executive branch as it is whether the General Assembly may appropriate money via a joint committee and not an act of the entire General Assembly in passing a law. The General Assembly in HB 1903 undertook its Constitutional authority and created two new funds to collect additional distributions that it deemed SB 313 inadequate to address. And it did so for one fund that would give it additional oversight on how the moneys from a race to the top fund would be expended to safeguard the state. This is a legitimate role for the legislative function to fulfill. Certainly, the Governor has the authority to veto legislation, but it is not a reason for the veto of the legislation that it is an intrusion into the duties of executive branch.

While I accept the Governor’s third point and understand his reasoning, I confess that I find the General Assembly’s approach wiser. It is repeatedly and rightly claimed that the federal government is a government of enumerated and limited authority. The U.S. Supreme Court, some 16 years after the adoption of the U.S. Constitution, declared in its opinion in Marbury v. Madison, that, “The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.” The U.S. Constitution makes no provision for the federal legislature to legislate on matters of education. Therefore, the race to the top is wholly outside of the purview of the federal government. I would argue that it is inappropriate for the federal government to take money from the citizens of these united State for the purpose of dangling carrots before states to get them to adopt federal education standards. However, I am practical enough to understand the coercive power of money to the state. In light of the fact that money is so coercive, I prefer that the General Assembly, as the elected legislative body over the people, maintain its oversight of the money so bounteously tied to us by the federal government.