When a governor wants to kill a bill, he has two weapons at his disposal. He can veto it and say why. Or he can take no action whatsoever. The latter maneuver is known as the “pocket veto.”
Or, as political blogger Mario Burgos describes it, the “passive-aggressive approach to government.”
“Historically, one of the reasons the governor uses pocket vetoes is to avoid putting himself in the crosshairs for making unpopular decisions,” Burgos tells SFR. “It’s a way for him to appease legislators or special interests instead of making the hard decision by vetoing it.”
Gov. Bill Richardson is hands-down the contemporary King of Pocket Vetoes. His Republican predecessor, Gov. Gary Johnson, only pocket vetoed a couple of bills each session. There were no pocket vetoes recorded between 1976 and 1995.
In contrast, Richardson pocket vetoed 75 bills during his first 60-day session in 2003, 69 bills in 2005 and 79 in 2007.
“Gov. Johnson prided himself for the gridlock he created with the Legislature. His veto messages, sometimes irrelevant to the bills themselves were often in-your-face messages meant to solicit a reaction from legislators,” Richardson Deputy Chief of Staff Gilbert Gallegos tells SFR via email. “Gov. Richardson, on the other hand, will write a veto message if he believes it is necessary and practical. If there is no reason for a message, he will use his pocket veto authority.”
(Johnson tells SFR he was surprised to learn he had any pocket vetoes in his record. “I just view it as if they were going to put the work into it, they deserved a message as to why I was going to veto it,” he says.)
President Franklin Roosevelt may be a better comparison for Richardson than Johnson. According to Michael Rocca, an assistant professor of political science at the University of New Mexico, Roosevelt holds the record for presidential pocket vetoes: 263. Richardson is currently at 258.
“We don’t have a policy on pocket vetoes,” Gallegos says. “I don’t really understand the criticism that the governor is making unpopular decisions under the radar. The governor either signs or vetoes every bill that reaches his desk…A veto is a veto. Period.”
Gallegos adds that with hundreds of bills to act on (386 in 2009), the governor’s office can’t write messages for every bill. The governor pocket vetoed 23 bills in the last session; 11 bills were vetoed with messages.
Nevertheless, there are common threads among the pocket vetoed bills: oversight, transparency and executive branch autonomy, particularly regarding health care.
Sen. Steven Neville, R-San Juan, had no illusions about what would happen to SB 460, his bill to strip Richardson’s control of the State Investment Council and create more oversight.
“The day it was passed, I figured it would be vetoed,” Neville tells SFR. “Most of us who were involved with the bill pretty well felt that the governor would not want to lose that control over the Investment Council.”
In an April 22 press release, Neville demanded Richardson explain the pocket veto in light of allegations of “insiders” kickbacks from the SIC for steering contracts.
“I’ve had no official word at all from the governor’s office,” Neville says. “That’s the beauty of the pocket veto. They don’t have to comment either way.”
Richardson also pocket vetoed two bills that would have expanded legislative oversight over state programs. The sponsors—a Republican representative and a Democratic senator—tell SFR Richardson didn’t speak to them about his intentions.
“Apparently, [the governor] doesn’t want the Legislature to be involved,” Rep. Keith Gardner, R-Chaves, says of HB 578, which would have required legislative review of federal stimulus package spending. “I think the governor wishes he could appropriate every penny. I’m not sure that he really thinks he needs us to do a budget.”
Gallegos says the Legislature was overstepping its authority.
“On the SIC and LFC-related bills, the governor has consistently opposed efforts by the Legislature to expand its reach into the day-to-day functions of the Executive Branch of government,” Gallegos writes. “The governor has, and will continue to veto bills and language in the budget that would otherwise allow the Legislature to micromanage the Executive branch.”
Some legislators say the governor may be too defensive of his powers. Sen. Timothy Keller, D-Bernalillo, says the governor did not indicate any objection to his bill, SB 531.
The legislation would have authorized the Legislative Finance Committee to review confidential materials from state agencies. Currently, the LFC must issue subpoenas when agencies refuse to comply with its information requests. The bill also would have granted the LFC oversight over the New Mexico Finance Authority, another agency caught up in pay-to-play scandals. Currently, the LFC’s authority over NMFA is unclear.
“I feel the merits of this bill might have been overshadowed by general branch rivalry,” Keller tells SFR via email. “We are one of the few states left that doesn’t have a cross-confidentiality agreement…In part because of this, it has been difficult for the [L]egislature to work with the executive branch on healthcare reform.”
Reps. Mimi Stewart and Danice Picraux, both Bernalillo County Democrats, say their bills to increase transparency in the Department of Health and the Human Services Department met similar fates because of objections by the cabinet
“When I spoke with him, he showed me he was weighing both sides,” Stewart says of HB 130, a bill requiring HSD to share Medicaid data with the Legislature. “I was hopeful he would weigh in on the side of sunshine and good government. I think [the pocket veto] reflects some ambivalence on his part.”
Inquiries to HSD were forwarded to the governor’s office, which declined to comment.
The governor also pocket vetoed three of Picraux’s bills, including HB 613, which would have increased outside funding for the Health Policy Commission, an independent state agency.
“The governor doesn’t want these independent agencies; they want their own cabinet looking at [health policy] and they don’t want that outside voice,” Picraux says.
Richardson pocket vetoed another health-related bill, sponsored by Sen. Gerald Ortiz y Pino, D-Bernalillo, that would have specified how much money DOH should set aside for young children showing lags in their development.
“No one from any of the state agencies or departments involved ever indicated it would cause problems,” Ortiz y Pino writes to SFR via email. “Hence the governor’s pocket veto was a genuine sucker punch…”
Richardson also let die SB 464, Ortiz y Pino’s bill to limit what student information high schools release to military recruiters.
“The amended version ‘seemed’ to have had the Public Education Department’s blessing: they certainly never said a word negatively during any of our many hearings on the measure,” Ortiz y Pino says.
“Then, zoom, veto lightening. Again, no explanation.”
Freshman Rep. Benjamin Rodefer, D-Bernalillo, faced similar frustration over HB 349’s pocket veto. The bill would have allowed for a study of whether students would be better served with less tests and more teaching. After the veto, Rodefer says the governor’s office indicated the PED and the New Mexico Business Roundtable for Educational Excellence had swayed Richardson’s decision.
NMBREE President Larry Langley tells SFR the organization opposed the bill from the beginning, but did not ask Richardson to veto it.
“We figured the governor would [veto it] without even having to go to him because it really was against what the Public Education Department has been working on for years,” Langley says.
Rodefer expected one of the pocket vetoes he received—for HB 893. He says he asked Richardson to kill his bill and instead pass SB 647, a broader renewable energy bill sponsored by Sen. Peter Wirth, D-Santa Fe.
“The governor said, ‘You really don’t mind?’” Rodefer says. “I said. ‘No, I’m asking you do it because it’s in the best interest of what we’re trying to do.’”