CommentsCAL MATTERS - Republicans running to replace Democratic Gov. Gavin Newsom in the recall election have talked about making some big changes in California: Cut taxes.
Give parents vouchers for private schools. Roll back some landmark environmental laws.
But while the governor’s office comes with a lot of power, it does not include a magic wand.
To make many significant policy changes, a governor must work with the Legislature to pass new laws, approve a budget and appoint key leaders to state agencies. And in California, Democrats have a complete lock on the Legislature — holding such a huge supermajority in both chambers that they have more than enough votes to override a governor’s veto, or to pass their own budgets.
So if the Sept. 14 recall is successful and a Republican is sworn in as governor of this deep-blue state — a once far-fetched notion that polls now show is within the realm of possibility — what would change at the state Capitol come late October?
The one-party control Democrats have enjoyed for the last decade would give way to a divided government. That could spur bipartisan compromises — or partisan gridlock. Most significantly, it could make historically rare power plays a lot more common:
The Legislature could override vetoes to turn its bills into law and still set policy in a wide range of areas. And the governor could try to do the same or push back through executive orders and emergency declarations.
“If the Democrats coordinate and present a united front, and defy political norms that have historically been in place, they could resist a lot of what the governor wanted to do,” said Kim Nalder, a political science professor at California State University, Sacramento.
“But there is that issue of emergency powers. And potentially a governor, if they wanted to be contentious and implement some sweeping changes, they could claim those emergency powers.”
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How far can a governor take emergency powers?
Republicans have criticized Newsom’s use of emergency power during the coronavirus pandemic, saying he’s exerted too much control without the usual checks and balances. As the pandemic sidelined normal work in the Legislature last year, Newsom issued as many executive orders in 2020 as his predecessor did in eight years.
Assembly member Kevin Kiley — a Rocklin Republican now running in the recall election — sued Newsom to try to limit his emergency power, but ultimately lost in court. With that ruling that a governor has broad authority to change or rescind laws during an emergency, GOP candidates are now talking about how they’d use such power themselves.
“I would not use executive authority to create new laws and new policies, as this governor has,” Kiley said in an interview with CalMatters. “But I would use it to unwind things that never should’ve been there to begin with.”
Kiley said he would end Newsom’s pandemic emergency declaration, which would set the stage for reversing related public health rules, such as the requirement that children wear masks at school and that state employees and health care workers get vaccinated against COVID-19 (or be subject to routine testing). Other GOP candidates also pledge to reverse Newsom’s mask and vax orders.
But the major Republican recall candidates are talking about using emergency powers for a lot more than the pandemic.
Kevin Faulconer, the Republican former mayor of San Diego, said he would declare an emergency over wildfires to speed up prevention efforts to clear trees and brush.
Republican talk radio host Larry Elder said he’d declare emergencies over homelessness, drought and schools and use the power to change environmental and education rules.
“I have a lot more power than I thought I did, even dealing with a hostile Legislature,” Elder said in an interview with CalMatters.
Of course, using emergency power to address longstanding issues would almost certainly get tested in court. A plaintiff could argue that an ongoing and predictable problem is not a proper use of a governor’s emergency orders. But under the Emergency Services Act, the governor’s powers are intended to be very broad, and courts have been lenient in defining emergency power, said David A. Carrillo, executive director of UC Berkeley Law’s California Constitution Center.
“That’s a potentially dangerous combination,” he said.
Conceivably, Democrats could try to prevent a new governor from using emergency power by revoking the Emergency Services Act some time between the Sept. 14 election and a new governor being sworn in, Carrillo said. Hypothetically, if Newsom loses the recall, he could call an emergency session of the Legislature and lawmakers could vote to repeal the law, or put it on hold until after the 2022 gubernatorial election.
“A power move like that would hobble a new governor’s emergency powers,” Carrillo said.
“I have a lot more power than I thought I did, even dealing with a hostile Legislature.”
REPUBLICAN RECALL CANDIDATE LARRY ELDER
Beyond emergencies, Elder said he would reverse executive orders Newsom has issued on environmental issues, such as a ban on oil fracking and phasing out the sale of gas-powered cars.
“They’ll be repealed,” Elder said. “I believe that we ought to be encouraging fracking, not discouraging fracking. It can be done safely.”
But Elder said he would not only govern by executive power and said he believes he can also find ways to work with the Legislature — a conclusion he said he was surprised to reach after consulting with former Gov. Pete Wilson, a Republican who worked with a Democratic-controlled Legislature in the 1990s.
“One of the reasons I initially did not want to run is because of the supermajority Democrat Legislature we have in Sacramento and my assumption that whenever I vetoed something, it would be readily overridden,” Elder said.
“Much to my surprise, a bill has not been overridden since I think the early 1980s.”
Political dynamics are different now
It’s true that overriding a veto is rare. Lawmakers have only used that power a handful of times in the last 50 years, according to the state Senate Office of Research.
But political dynamics at the Capitol are substantially different now than they were in previous eras, when state government was politically divided. That makes use of the override more likely.
“The fundamental rules have changed — because of the supermajority the Democrats have, and the majority-vote budget rule.”
FORMER STATE SENATE LEADER BILL LOCKYER
In both the Assembly and state Senate, Democrats now hold more than the two-thirds majorities needed to override a veto, if moderates and progressives stay united. During the terms of the last two Republican governors — Wilson, from 1991 to 1999, and Arnold Schwarznegger, who won the 2003 recall and served until 2011 — Democrats did not have a supermajority.
And the rules for passing a budget have changed significantly since then, too. It only takes a simple majority to pass the budget now; not the two-thirds vote that forced bipartisanship (and lots of partisan gridlock) until voters changed the law in 2010.
“The fundamental rules have changed — because of the supermajority the Democrats have, and the majority-vote budget rule — that have made the situation really different,” said Bill Lockyer, who was the Democratic leader of the state Senate during much of Wilson’s time as governor.
“There’ll be lots of pressure to do overrides.”
One thing that won’t be different? The Democratic Senate’s ability to block appointments by a Republican governor. Though a governor has authority to appoint members of the state Board of Education, California Air Resources Board and other powerful bodies, and to fill thousands of positions throughout state government, the most significant appointments that play a role in shaping policy must be approved by the state Senate.
“There were numerous examples of where we refused to confirm a gubernatorial appointment, and that’s highly likely to occur with the (recall candidates) we see on the Republican side,” Lockyer said.
Laurel Rosenhall covers California politics for CalMatters, with a focus on power and personalities in the state Capitol. She's been included in the Washington Post’s list of outstanding state politics reporters and was named Journalist of the Year by the Sacramento Press Club. Laurel helped launch CalMatters in 2015 after more than a dozen years covering politics and education for the Sacramento Bee. A lifelong Californian, Laurel holds a master’s degree from the Graduate School of Journalism at the University of California, Berkeley.