From the classroom: Looking at the offices of governor, president

At first glance, comparing the roles of the President and the California Governor with regard to the lawmaking processes of their respective governments appears to be an esoteric exercise for ivory tower academics. Our students often ask, “Why is it important that I be able to compare the respective powers and prerogatives of the President and the Governor? Is it not enough for me to know what the President can do in the federal system, and what the Governor can do in the California system?”

Indeed, reading even the most basic comparison of the similarities and differences in the respective roles of the President and the California Governor can cause one’s eyes to glaze over. How could all these obscure and technical distinctions ever be important? In practice, however, it is these similarities and differences that can cause a legislative proposal to succeed or fail.

The Governor is very powerful in budget negotiations because he or she can reduce or eliminate budget appropriations. On the other hand, the President’s options upon receiving the Budget are either to sign or veto the package in its entirety.

It is these similarities and differences that can inform the strategies one takes in developing and lobbying legislation. It is these similarities and differences that allow some aspects of the legislative process to work effectively, while causing other aspects to become gridlocked. And, finally, knowing these similarities and differences enhances critical thinking and problem-solving skills for those who work, or aspire to work, in connection with state or federal government.

To illustrate, let us start by looking at some of the key differences in the roles of the President and the California Governor regarding the respective federal and state lawmaking processes. Probably the most significant differences are in matters related to the annual Budget. While both the President and the Governor are provided with the important power to propose the Budget, processes and executive powers tend to be different from this point on.

In California, the Governor proposes the state Budget in early January, detailing specific appropriations for state and local government for the fiscal year that is to begin in approximately six months (July 1). The Governor’s spending plan, which is prepared by the Department of Finance (DOF), is converted into identical budget bills that are introduced in the Assembly and the Senate.

Significantly, the legislative bodies use the Governor’s proposals as the template. The various Budget Committees and subcommittees of the Assembly and Senate focus their efforts on whether the Governor’s specific proposals should be accepted, rejected, or modified. Even the Legislative Analyst’s Office (LAO), an arm of the Legislature, uses the Governor’s spending plan as the template for its analysis and recommendations regarding the Budget.

In the federal system, the President proposes the budget each February, detailing specific appropriations for all federal agencies and programs for the coming fiscal year which begins October 1. The President’s Budget is prepared by the Office of Management and Budget (OMB), an executive branch agency like the Department of Finance. The President’s budget submission is referred to the House and Senate Budget Committees and to the Congressional Budget Office (CBO), an arm of Congress that provides its analysis of the President’s proposals. House and Senate committees then hold hearings on the President’s budget and report a concurrent resolution on the budget (known as the “Budget Resolution”) that sets each committee’s allocation of spending authority.

Significantly, as the process plays out, the Budget template for future deliberations shifts from the President’s recommendations to those produced via a concurrent resolution of Congress. The Budget Resolution is beyond the control of the President, as it does not require the executive’s signature and cannot be vetoed. In the ensuing months, the House considers and adopts 12 separate annual appropriation bills that are constrained by the levels and allocations in the Budget Resolution. As the process proceeds to completion, it is Congress’ blueprint that is the focus of discussions, not the President’s recommendations.

The major differences in the President’s and Governor’s role with respect to the annual Budget culminate with the executive’s prerogatives upon receiving the package adopted by the legislative branch. The California Constitution provides the Governor with “line-item veto” authority, meaning the Governor can reduce or eliminate any of thousands of individual appropriations contained in the Budget adopted by the Legislature.

This authority makes the Governor very powerful in budget negotiations because he or she can reduce or eliminate budget appropriations. On the other hand, the President’s options upon receiving the Budget are either to sign or veto the package in its entirety. The impracticality of vetoing the entire Budget usually forces the President to accept many appropriations that he or she might otherwise oppose.

The cumulative effect of constitutional and statutory provisions regarding the Budget give the California Governor much more leverage and control over spending and spending priorities than the President. Consequently, if you are a special interest and want to get your priorities funded, you would be best served by trying to get the Governor to include this funding in his/her proposed budget.

Generally speaking, the California system is more effective in controlling spending, especially deficit spending

In the federal system, you would be best served by having your funding priorities included by the budget committee that has jurisdiction over the appropriation. If you are against an appropriation, especially one added by the Legislature, you can lobby the Governor for a line-item veto; whereas, in the federal system, you need to focus your efforts on the subcommittee with jurisdiction to consider the appropriation.

Similarly, distinctions regarding the President’s and Governor’s roles can influence the choice of political arena in which proponents proceed. It is often the case in public policy that a given proposal can be pursued in several political arenas. A key component of the Capital Lawyering program at University of the Pacific McGeorge School of Law is to train our students to examine all potential political arenas for a particular proposal and to choose the arena in which there is the best potential for success.

For instance, a new social services program, along with attendant funding, could be created at either the federal or state level. A California Governor who happens to be receptive to the new program–versus federal budget committees which might likely oppose the new program or funding—could tip the scales toward proceeding in the state arena.

All these differences regarding the President’s and Governor’s roles with respect to the Budget also inform us about strengths and weaknesses of the respective systems. Generally speaking, the California system is more effective in controlling spending, especially deficit spending. The State Constitution prohibits the Governor from either proposing or signing a Budget this is not balanced.

In addition, the Governor, with line-item veto authority, has the last say on appropriations. This provides the Governor with much more leverage in dealing with the Legislature regarding specific appropriations. Finally, when we look at the massive debt that has been accumulated by the federal government, it raises the question about whether the country might be better served by empowering its President with line-item veto authority.

A second area where the roles of the President and Governor differ derives not so much from the law itself, but rather from legislative practices and procedures. While both the President and Governor possess the power to veto legislation, historical practices and procedures of the California Legislature and Congress provide the executive with very different leverage when it comes to the exercise of the veto power.

It should come as no surprise that California Governors exercise the veto power far more often than U.S. Presidents.

For instance, in the just completed 113th Congress, some 10,637 bills were introduced, but fewer than 300 made it to the President’s desk. The vast majority of bills—over 80%–were introduced and referred to committee, with no further action. Given the relatively small volume of legislation that even passes its house of origin, the President is in a much better position to engage in negotiations on these measures. The President can dictate what he or she will or will not sign, and can engage in specific negotiations to create a mutually agreeable compromise.

On the other hand, consider the metrics of the California legislative process where 4,000 to 4,500 pieces of legislation are introduced each two-year session. Of these, about 900 to 1,200 per year make it to the Governor’s desk. Practically speaking, it is virtually impossible for the Governor to engage in specific negotiations regarding each of these measures as they make their way through the Legislature.

Instead, for all but the most important measures, the Governor awaits final legislative disposition before making a decision to sign or veto. Consequently, it should come as no surprise that California Governors exercise the veto power far more often than U.S. Presidents. Historically, California Governors have vetoed between 10% and 35% of the proposals presented to them, while U.S. Presidents veto less than 1% of bills.

Given legislative practices and procedures, what is important to know about veto power of the President and the Governor? In California, the sheer volume of legislation makes it difficult to secure commitments or engage in negotiations with the Administration while bills are still in the Legislature. The Governor will choose to be a player only on selected legislation and, on these measures, he or she enjoys considerable negotiating leverage. On the vast majority of measures, proponents are usually left to make educated guesses about what the Governor will sign and what concessions might be necessary to prevent a veto.

In California, the State of the State speech has not tended to be a major media event, whether presented in the morning or the evening.

Meanwhile, at the federal level, the President enjoys considerable negotiating leverage on the relatively small number of bills that pass their house of origin. Knowing these distinctions enables our students to make better assessments about the political feasibility of particular proposals, as well as appropriate lobbying strategies in federal and state arenas. Our students also better understand why some aspects of the state and federal legislative processes work effectively, while other aspects contribute to gridlock.

Knowing similarities in the roles of the President and the Governor in the respective lawmaking processes can also help students and practitioners make better judgments about political feasibility, arena choice, lobbying strategies, and other important matters. Three important areas where the President and Governor have similar roles are the responsibility to inform the legislative bodies of matters that need attention, the power to convene legislatures via extraordinary sessions, and the power to introduce legislation via a member of the legislative body.

Both the President and the Governor are called upon to inform their respective legislative bodies regarding matters that need attention. The President is to provide Congress “information on the state of the union, and recommend to their consideration such matters as he shall judge necessary and expedient.” Meanwhile, the Governor is required to “report to the Legislature each calendar year on the condition of the State and may make recommendations.”

In what we have come to know as the “State of the Union” and the “State of the State” the President and Governor make major policy addresses to the jointly assembled legislative bodies each January, in conjunction with the start of the legislative session. These addresses to the assembled legislators provide the executive with an opportunity to outline major policy initiatives and budget priorities for the coming year.

When we look back to the time that the federal and California Constitutions were first written, these “state of the union” addresses made a great deal of sense. Information traveled much more slowly and there were fewer sources that reported the news. Legislators genuinely needed to be informed of issues needing attention. By the 20th Century, and especially with the advent of radio and television, the “state of the union” had evolved to provide the President and Governor with an opportunity to present and sell their legislative agenda to the public, and not simply inform the legislative body.

An important objective of the speech is to develop public support and political pressure for the President’s agenda. To assure widespread exposure, the State of the Union speech was first moved to the evening in 1965; and, by 1966, media time was afforded for the opposition response. In California, the State of the State speech has not tended to be a major media event, whether presented in the morning or the evening.

The U.S. Constitution provides that the President, “may, on extraordinary occasions, convene both Houses, or either of them . . .“ On the other hand, the California Constitution provides that, “on extraordinary occasions the Governor by proclamation may cause the Legislature to assemble in special session. When so assembled it has power to legislate only on subjects specified in the proclamation . . .” While these authorizations appear to be similar in nature, the results have been very different in practice.

In the federal legislative process, the President only has the authority to convene an extraordinary session when Congress is out of session. On the other hand, the Governor can convene an extraordinary session both during a regular legislative session as well as when the Legislature is out of session. Also, the Governor has the power to establish and limit the subjects needing attention; whereas, under federal law, Congress can act on other matters during an extraordinary session.

By convening an extraordinary session during a regular legislative session, and by specifying the particular matters that need attention, the Governor thus has far greater authority than the President to focus legislative attention and action. Extraordinary sessions of the California Legislature have regularly produced adopted legislation, whereas the President’s authority to call extraordinary sessions of Congress has seldom been used since 1945.

While neither the President nor the Governor have the power to introduce legislation in their own name, they have similar powers that essentially enable them to propose and advocate specific legislative proposals. Through the “State of the Union” and “State of the State,” the chief executives can introduce and outline major legislative initiatives. And, the executives can draft specific legislation which, in turn, is introduced and carried on behalf of the executive by a legislator. These prerogatives, when combined with the power to veto legislation, clearly give the President and Governor quasi-legislative powers.

Finally, in California, the Governor can propose specific legislation via the initiative process. This entails filing a specific legislative proposal with the Secretary of State, securing title and summary from the Attorney General, circulating the proposal, and collecting the requisite number of signatures to qualify the proposal for the ballot. Because the federal government does not have an initiative process, the President does not have the authority to carry legislation via this method.

When we examine the totality of the similarities and differences in the roles of the President and the Governor in their respective legislative processes it is clear that the Governor has a more robust array of powers and prerogatives. The Governor’s Budget recommendations remain a major focus of attention throughout the budget process; whereas, the joint Budget Resolution of Congress and the various appropriations bills are the focus of attention in Congress. The Governor has line-item veto authority, whereas the President does not. The Governor has ability to move specific legislation via the initiative process, whereas the President does not. And, the Governor has broader authority to call and set the specific agenda for extraordinary sessions. Finally, given procedural rules of the U.S. Senate that require at least 60 votes to end a filibuster, a minority of 41 Senators can prevent a proposal of the President from passing Congress.
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Ed’s Note: Thomas Nussbaum is the former Chancellor of the California Community Colleges. Chris Micheli is a lobbyist with Aprea & Micheli. Both are Adjunct Professors of Law at the University of the Pacific McGeorge School of Law.