SINCE THE adoption of the 1970 Constitution the debate over the amendatory veto has been quiet on two significant issues. The proponents of the veto neglect to point out that the amendatory veto was but a constitutional adoption of a practice that had existed in Illinois since statehood. Opponents ignore the question of pursuing judicial interpretation that might make the amendatory veto in practice more to their liking. The history of the amendatory veto was unfortunately not developed for the Illinois Constitutional Convention delegates. Under our first constitution, the veto power was held in a "Council of Revision" consisting of the justices of the Supreme Court and the governor. This council repeatedly sent enacted bills back to the General Assembly with suggested specific amendments which were then offered to the previously enacted bills, adopted, and sent back to the council for final approval. Two-thirds of all vetoed bills were handled this way for 30 years. When the council was abolished with the 1848 Constitution, a new procedure with the same effect was adopted although not used as widely. If the governor received a bill which he did not like but was reluctant to veto, the originating house would pass a resolution requesting the governor to return the bill. The governor would oblige, and the bill would be returned, amended and returned to the governor for final consideration after the other house had approved the change.

Under the 1870 Constitution, a more direct procedure was employed. On at least one occasion, the governor vetoed a bill but stated in his message what was necessary to make the bill acceptable. The originating house amended the bill to comply with the governor's corrections, repassed it, sent it to the other house for approval, and then sent it back to the governor who signed it into law. Although this incident occurred in 1907, the action was not exactly an obscurity since the Illinois Supreme Court gave its subsequent blessing to the constitutionality of the proposal and reviewed the procedure without judicial comment. (People v. Brundage, 296 Ill. 197, 129 N.E. 500 (1921))

As an informal practice in Illinois, the accommodation that permitted amendatory revisions of vetoed bills between the governor and the legislature appar-
ently fell into disuse for 50 years. So when the delegates to the 1970 Constitutional Convention spoke of it as something "new" to Illinois, everyone assumed it was. However, all that the 1970 Constitution did was to formalize and stimulate an informal practice that had existed since 1818.

Since the new Constitution has taken effect the amendatory veto power has been broadly employed. It has been a "new" constitutional experience to the legislature, and some uses of the power clearly ruffled legislative feathers even though legislators who sponsored bills had specifically requested the governor to apply his amendatory veto power.

The principal approach of opponents has been to seek a constitutional amendment to repeal the amendatory veto or to limit it to "technical changes" (which admits at least a limited value of the power). A constitutional amendment requires approval by the electorate which would not likely approve it or perhaps even understand this issue.

If the members of the General Assembly feel that a governor is abusing the power, they should look first to their own branch or to the courts to correct the abuse. The legislature has shown certain prerogatives it can exercise. First, it has rejected an amendment proposed by the governor and overrode the veto. Second, it has passed an amendment of its own — different from that proposed by the governor. (This practice has not been passed on by the courts.) Third, the legislature has done nothing and let a bill die. The legislature can also ignore a bill with an amendatory veto, let it die, and pass an entirely new substitute bill. If the General Assembly doesn't like these options, it can go into court asking that the bill be declared law notwithstanding the amendatory veto.

The Illinois Supreme Court has had an occasion to speak in dictum on the amendatory veto concerning parochial aid legislation passed in 1971. (People ex rel Klingert v. Howlett, 50.111. 2d 242, 278 N.E. 2d 84 (1972)) The Illinois Supreme Court was confronted with Gov. Richard B. Ogilvie's amendatory veto which amended the title of the bill and substituted a reworded proposal for all of the text after the enacting clause, although reiterating verbatum much of the language of the bill as originally passed. The court was obviously trou-

Continued at bottom of page 12.

The Constitution states "The Governor may return a bill together with specific recommendations for change to the house in which it originated. The bill shall be considered in the same manner as a vetoed bill but the specific recommendations may be accepted by a record vote of a majority of the members elected to each house. Such bill shall be presented again to the Governor and if he certifies that such acceptance conforms to his specific recommendations, the bill shall become law. If he does not so certify, he shall return it as a vetoed bill to the house in which it originated." -Illinois Constitution, Article IV, Section 9, paragraph (e)

September 1977 / Illinois Issues / 11

Continued from page 11.

No:

Retain the amendatory veto, but guidelines should be set by legislature — or court — to prevent abuse

bled that the scope of the governor's authority in the new Constitution was not clearly stated nor could it be found in the committee reports or debates. The justices did not attempt to delineate the exact kinds of changes that would fall within the power of the governor, but merely stated that "substitution of complete new bills, as attempted in the present case, is not authorized."

But what is "authorized?" Clearly, something more than technical changes is authorized, but how much more? One answer lies in the tests which the courts have approved as to what the legislature itself may do by way of an amendment to a bill. This is the test of "germaneness." Stated simply, an amendment to a bill is permissable if the amendment promotes the object and the purpose of the act to which it belongs. The Illinois courts have also held for decades that the governor is a participant in the legislative process. I submit that one path for unscrambling the scope of his power in the amendatory veto is to recognize this legislative role of the governor and hold him to the same restraints as the legislature.

Such an analysis is not intended to be cavalier. It recognizes that the courts have in some instances come up with tortured applications of the "germaneness" doctrine, and that the legislature has engaged in practices of near constitutional "magic" in the conference committee process. It also recognizes that under the "germaneness test" the 1971 parochial aid amendatory veto would have been proper. However, if an acceptable answer is to be found where the constitutional record offers no clear guidance, then the "germaneness''' doctrine may well be the answer.

In the meantime, it should be recognized that the amendatory veto has served to save much worthwhile legislation.

The trouble with the amendatory veto power is not the power itself, but the abuse of the power. If abused, the instruments of checks and balances are there for correcting its abuse. The abuse can be corrected by the General Assembly or by the courts. As the Supreme Court has demonstrated, it has not hesitated to act where in its opinion the power is abused. What is needed are clear guidelines. Either the legislature has to establish them by its own action in the review of amendatory vetoes or take the question to the courts to decide. The guidelines should not place the governor in any different relationship to legislation than the General Assembly has so that a consistent and uniform policy concerning the manner in which legislation is considered would ultimately be adopted. In this way, constitutional harmony can best be obtained and the debate over the power ended. 

12 / September 1977 / Illinois Issues