Breaking down the Legislature’s ARPA veto options

Perhaps Baker can reassure lawmakers in early January

WHEN THE LEGISLATURE ended its formal business for 2021 on the third Wednesday of November, as its rules require, it left behind one of the year’s biggest bills, a spending measure allocating federal American Rescue Plan (ARPA) money. The bill, which the governor had filed in June with considerable emphasis on the urgency of the needs it would address, was not on its way to the governor’s desk, but instead remained stranded in a legislative conference committee.

The conference committee belatedly finished its work two weeks later, and on December 3 the few legislators in attendance (four in the House and three in the Senate) agreed unanimously, as the rules of informal sessions demand, to send the bill to the governor.

Now, as 2021 passes into 2022, a parliamentary question has lingered – will the Legislature still have the opportunity to override the governor’s vetoes?

Under the Legislature’s rules, most bills carry over from the first to the second year of the two-year session, but, per Rule 12B, budget bills do not. Described more specifically under that rule as measures “making or supplementing an appropriation for a fiscal year,” budget bills “cease to exist” at the end of the first year – a potential obstacle confronting the Legislature when formal sessions resume on January 5.

The Legislature will certainly not want the opportunity to exercise its constitutional right to override vetoes to be thwarted, especially by one of its own rules, especially a rule that calls unwanted attention to its own rather dilatory behavior.

This past Monday, the governor signed nearly all the bill into law, but he did veto provisions concerning a $500 million fund for bonus payments to be awarded to essential employees who worked during the pandemic. The Legislature had specified that payments ranging between $500 and $2000 would go to workers with incomes of 300 percent of the federal poverty level or less (in 2021, about $66,000 annually for a family of three), the details to be sorted out by a 28-member advisory panel charged with imposing any additional eligibility criteria, setting bonus payment amounts within the designated range, and getting the money out the door by the end of March 2022.

Worried that a 28-member advisory panel doing such time-sensitive work “virtually guaranteed” that the disbursement of the funds would be hindered significantly, the governor vetoed all the Legislature’s conditions.

(In support of his argument that advisory panels, like task forces, commissions, working groups and other similarly designated entities, commonly fail to meet their deadlines, the governor might have pointed out that this same bill gave a commission on childhood vision and eye health, whose recommendations were already more than three years late, more time to finish its work.)

Had the Legislature acted during its final day of formal sessions to suspend the rule mandating the end-of-year recess, it might have returned to override the vetoes as soon as the governor issued them, as it did in 2001. In that year, protracted sparring between House Speaker Tom Finneran and Senate President Tom Birmingham left the annual budget unfinished into September, and then the economic collapse after 9/11 complicated the fiscal picture much further.

On the last day of formal sessions that November, the Legislature enacted the annual budget and suspended the end-of-year recess rule so that it could return to conduct the formal business of veto overrides on December 5. This year’s Legislature failed to take that precaution, and Republican members of the Legislature will not provide the required unanimous consent to take any curative action during the recess.

Their options dwindling, legislators turned to the problematic rule itself, seizing upon the language of the rule referring to “an appropriation for a fiscal year.” They noted that this bill makes an appropriation for several fiscal years (in keeping with the federal law requiring the money to be spent by June 2027). If one simply disregards the fact that the rule does not say “a single fiscal year,” a possible escape hatch presents itself.

In an apparent endorsement of this reading, the clerk of the House of Representatives late last week ruled that the vetoed provisions are not “exceptions that are identified” in the rule, and that therefore the Legislature may vote on overrides come January. The Senate Clerk has not yet offered his opinion.

The governor has said that his administration would be able to distribute the funds by the March deadline set in the vetoed provision. If in January he can convince lawmakers that his allocation plans reflect its wishes closely enough, the Legislature might allow the vetoes to stand, a result that would further the interest of conforming to the bill’s title, “An Act relative to immediate COVID-19 recovery needs.”

And the Legislature would still have plenty of pressing issues to consider — mail-in voting and the conditions of hen confinement, for two.