Herbert stokes tensions with lawmakers by using ‘signing letters’ for state funds

Can it be that there is really nothing new in politics, the old just gets repackaged into a different face?

Utah GOP legislative leaders are quietly looking into an issue once resolved by the U.S. Supreme Court – can a government executive “impound” funds the legislative branch approved in an appropriation bill?

Let’s go way back to President Richard Nixon, who once (or maybe more than once) refused to spend Congress-approved spending – saying he was “impounding” the funds.

Congress sued.

And the high court ruled back in the 1970s that if Congress told the executive branch to spend a set amount of money on a program, the president had to do it.

Fast forward to now:

GOP Gov. Gary Herbert has started a practice of signing a budget bill, but then sending Senate President Wayne Niederhauser and House Speaker Greg Hughes a letter detailing his “intent” to spend the money differently than the Legislature approved of.

These are called “signing letters” – and they rarely have, if ever, been used by previous Utah governors, UtahPolicy is told.

Legislative sources tell UtahPolicy top GOP leaders are studying, as a general review of legislative vs. executive powers, what to do about them.

For now, a showdown has been averted – the disputed state spending has gone to independent agencies, who have ignored what Herbert wanted to do, UtahPolicy is told.

But GOP legislative leaders are worried.

What to do if Herbert – or any future governor – starts telling state agencies under his direct control not to spend Legislature-approved monies on a program, or to spend that money differently than the appropriation calls for?

In a comment to this issue, Paul Edwards, Herbert’s deputy for communications told UtahPolicy, in part:

“In an effort to be as transparent and communicative as possible with legislative leadership, Gov. Herbert has sent a handful of letters to legislative leadership that express his thoughts about a few pieces of legislation that he has signed into law as well as about those pieces of legislation that he allowed to go into law without his signature,” he said.”

“These statements are not binding, but they do help to identify issues of potential concern.”

Edwards also tells UtahPolicy.com there’s no diabolical intent behind the letters.

“These letters are not meant in any way to denigrate the great work done by our legislature, but rather to make sure that salient issues raised by legislation are quickly identified, communicated and memorialized.”

However, GOP leaders UtahPolicy spoke to say some of the letters seem to go beyond “non-binding.”

In any case, finishing up his post-2017 bill-signing, on March 29 Herbert sent Niederhauser and Hughes a “signing letter” stating he would not use any of the $250,000 appropriated for the Teen Chef Masters TV show competition for that program.

Rather, said Herbert, the quarter-million-dollars would be used for culinary in-school instruction instead.

The State Board didn’t listen to Herbert, UtahPolicy is told, and the TV program/competition is going forward as lawmakers intended.

“It is my belief,” wrote Herbert, “that this reality television program shouldn’t be funded with non-taxpayer funds.”

(You may recall, Herbert and lawmakers have gone the rounds over the taxpayer-funded TV show/competition before, with Herbert vetoing the $275,000 appropriation several years ago – a veto that was later restored.)

Herbert also sent a “signing letter” saying the State Trust Lands wouldn’t get an extra $1 million for allowing the public and hunters on SITLA lands. But SITLA is also an independent agency, and it will get its money, anyway.

There are other “signing letters” that bother GOP legislative leaders. Thus the desire to do something about them.

The letters’ issue is just one of the legislative powers/executive actions lawmakers are looking at this summer and fall.

As reported previously by UtahPolicy, it’s likely GOP leaders will have at least one constitutional amendment prepared for the January 2018 general session – this one dealing with calling themselves into special session.

Utah’s Constitution – like other western states’ – only allows a governor to call the part-time Legislature into special session, or in Utah a session outside of the annual 45-day general session.

The general session starts on the fourth Monday in January and ends in early March. So, for the rest of the year, legislators can’t take formal action on anything.

If Herbert vetoes a bill or budget line item, lawmakers can call themselves into an override session – seeking to get two-thirds votes in the House and Senate to override a veto and make the vetoed bill or appropriation become law anyway.

Herbert refused to call lawmakers into a special spring session after U.S. Rep. Jason Chaffetz said he would resign his seat June 30.

Leaders from both the House and Senate, both political parties, asked Herbert to call a SS so they, not the governor, could decide on the rules for the special 3rd District election.

He refused, and along with Lt. Gov. Spencer Cox, the chief election officer, set up a SB54 process that allowed candidates to make the Aug. 15 party primary by gathering signatures, going through the special delegate convention, or both.

Provo Mayor John Curtis is a friend of Herbert’s, claimed disgruntled GOP lawmakers. And allowing Curtis – who is a former Democrat – to use signatures to get on the primary ballot angered some right-wing GOP lawmakers.

Indeed, Curtis used both routes at the same time, lost badly in the 3rd District GOP convention, but got on the ballot via signatures, and thumped delegate-approved right-wing candidate Chris Herrod, a former Utah House member.

There are other legislative/executive issues roiling, as well.

And GOP legislative leaders are looking to settle some of those come January.

Watch for the “signing letter” issue to be just one of them.