OPINION: High court could get final say in gubernatorial veto uproar

ACKSON – Tucked away in Section 73 of Mississippi’s 119-year-old state Constitution is a rarely-used “line-item” veto
provision by which a governor can strike any money separately set out in an appropriation bill without disapproving the overall spending measure.
On the national level, presidents have sought the same authority, but without success since that would be one way that they could possibly eliminate some of the maligned “earmarks” lawmakers love to stick into appropriations.
While on one hand, Mississippi’s line-item veto can be a good thing, it can also be abused if a governor tries to twist the authority around to grab some executive power he doesn’t have under the state Constitution.
No question, the 1890 constitution drafters intended to make the Legislative branch top banana, in contrast with the executive branch. Don’t like it? Well, you’ve had 119 years to write a new document and you haven’t done it.
Of note, Mississippi’s only two Republican governors since the state Constitution was written have tried to abuse the line-item veto power in Section 73 to assert executive authority and thwart the Legislature’s will.
When Republican Kirk Fordice tried it in the mid-1990s, Attorney General Mike Moore took him to court and Fordice’s effort was struck down as unconstitutional by the state Supreme Court. Now Attorney General Jim Hood has taken Haley Barbour to court when on June 30 he used Section 73 to strike language written by the Legislature in the State Highway Patrol appropriation to allow patrol officers of the rank of lieutenant or above to receive extra compensation for overtime.
So far, the latest line-item brouhaha is yet to be aired in Hinds County Chancery Court where it now resides. But some preliminary skirmishing is underway over who Barbour will hire to represent him and how much he will be paid. State law gives the AG a say-so in the hiring of outside counsel for the governor. Ironically, Barbour wants to hire Mike Wallace, who several years ago got an unacceptable rating from the American Bar Association when he was mentioned for the U.S. 5th Circuit Court of Appeals.
Hood seems to be on solid ground in his constitutional challenge of the Barbour line-item veto, because footnotes of Section 73 expressly say that the section does not give the governor power to veto a condition of an appropriation set by the Legislature. In his lawsuit, Hood notes that the Department of Public Safety is not required to comply with the conditions set by the Legislature, but if it does not, that portion of the appropriation cannot be spent and will lapse to the general fund. That would be tantamount to giving the governor control of the money.
Barbour has already shrewdly co-opted the Legislature’s primacy in state government by controlling the Senate, even without a numerical Republican majority, and holding slavish loyalty of House Republicans. So his line veto gambit to stake out more executive power vis-a-vis the Legislature is virtually just flexing his muscle.
Back in the 1990s when Fordice tried the Section 73 route to trump the Legislature, he even went further than Barbour. He attempted to change (reduce, actually) amounts set out in a bond issue. The Supreme Court nixed that.
Speaking of the state Supreme Court brings up another side of the governmental triangle where Barbour’s tentacles seemingly have reached, at least in the winning streak he was having until 2008 when he attempted to juggle the state general election U.S. Senate ballot. His interim appointee, Roger Wicker, was opposed by Democrat Ronnie Musgrove, the former governor. Barbour tried to stick Musgrove’s name at the bottom of the ballot, but the Supreme Court by 8 to 1, blocked it.
Barbour’s sway over the high court hasn’t been tested lately, and certainly the constitutional challenge to his line item veto would be a biggie. When pro-Barbour chief Justice Jim Smith was ousted in an upset by Jim Kitchens last year, Smith was succeeded as chief justice by Justice Bill Waller, Jr. It just happens that Waller is in the mix for GOP gubernatorial nominee in 2011 to oppose Lt. Gov. Phil Bryant who is a certainty to seek the party nomination.

Bill Minor is a syndicated columnist who has covered Mississippi politics since 1947. His address is Box 1243, Jackson, MS 39215. Send e-mails to Minor through edinman@earthlink.net.

Bill Minor