The Governor’s partial veto is the key to checking the legislative use of the emergency clause. If the Governor chooses to make a stand on the issue, he or she could eliminate the use of the emergency clause for non-emergencies, or based on whatever standard he or she felt was appropriate or politically feasible. The following is my proposal for how an incumbent governor could reassert the constitutional right to referendum:
1. Campaign on it: The incumbent governor should include the emergency clause issue as a minor plank in his or her reelection platform. This will not lose the governor any votes, since there is not constituency or special interest that is in favor of the emergency clause. It will also gain the governor a small number of votes from direct democracy populists. The number of votes picked up will likely be insignificant, but if spun right, the platform will give the governor a more populist air. Therefore this strategy will be most beneficial for a governor who suffers from seeming like an
2. Set standards: The Governor should not veto emergency clauses that seem to be constitutionally appropriate. If the bill needs to be enacted within 90 days (i.e. is an emergency) or is for the support of existing public institutions, the emergency clause is appropriate and the governor will lose credibility and political capital by vetoing it. The governor should make this clear in his or her platform.
The nightmare scenario here is that the governor vetoes a bill that is non-emergent, but has the capacity to avert a tragedy. If the governor vetoes a sex offender bill which isn’t emergent, and a child gets hurt within the 90 days the bill would have been in effect with the emergency clause, the governor would be in serious political trouble and might have to drop the whole program. Not only is vetoing those sorts of public safety bills dangerous, those bills are rarely going to be challenged by referendum. The governor should therefore make it clear that he or she will not veto emergency clauses on those types of public safety bills. This prevents the governor from appearing to cause a tragedy and fails to protect the referendum right solely in situations where it isn’t likely to be exercised. These two exceptions, actual emergencies and public safety bills, essentially focus the governor’s veto program on the real problem areas: non-controversial bills that the sponsor wants to speed up, and controversial bills that the sponsor wants to protect from referendum.
If the governor uses the issue in his or her reelection campaign, and applies the two exceptions outlined above, the legislature and public should be at least neutral and probably happy with the program. The governor will have single-handedly saved the referendum from demise, earning him or her the admiration and possibly the votes of independent populists. If the governor vetoes every inappropriate emergency clause consistently for four years, it is likely to become a tradition, and it may be a near-permanent fix. If the next governor does not continue the tradition, the cycle can be started again by the governor after. Once the idea is used successfully once, any governor who feels the emergency clause is being overused can step in to protect the people’s rights, with virtual impunity. In this way, the right to referendum can remain meaningful in