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How Gretchen Whitmer could fight GOP budget, avoid Michigan government shutdown

Update: Michigan government won’t shut down, state tells workers

LANSING— Michigan’s Republican-led Legislature is boxing in Democratic Gov. Gretchen Whitmer by approving budgets without her input days before a constitutional deadline for her to sign them or trigger the state’s first government shutdown in a decade.  

But Whitmer, a former lawmaker familiar with the levers of power in Lansing, has several options to prevent a shutdown while challenging the $59.9 billion GOP spending plan she has called “a mess.”

Lansing insiders don’t expect Whitmer to acquiesce and embrace the budgets after Republicans left some of her top priorities on the cutting room floor. Chief among them: Whitmer’s $2.5 billion plan to boost fuel taxes by 45 cents per gallon over two years to “fix the damn roads.”

Related: Michigan GOP budget contains 7 big surprises for Gov. Gretchen Whitmer
Related: What to expect when you're expecting a Michigan government shutdown

“It’s the wrong process to do budgets without the governor involved, and I think the governor will have a strong response back,” state Sen. Curtis Heretel Jr., D-East Lansing, predicted Wednesday. “The governor has an enormous amount of power in this process.”

The budget bills, approved by the Legislature over the past two weeks but not yet formally sent to Whitmer’s desk, include $400 million in additional one-time money for roads. The governor has criticized that as a half-measure that won’t fix the problem and she also proposed more funding for K-12 schools and universities.

The appropriations legislation would also shift funding for a new independent redistricting commission to the Legislature from Democratic Secretary of State Jocelyn Benson’s office, require Democratic Attorney General Dana Nessel to inform lawmakers of any federal lawsuit she joins and withhold funding for jails in counties with “sanctuary” policies that prohibit full cooperation with immigration authorities. 

The Legislature is expected to send the bills across the street to the governor’s office by the end of the week. Whitmer must decide what to do with the bills by Monday at midnight, when the current fiscal year ends. 

Whitmer spokeswoman Tiffany Brown said Wednesday it’s “too soon” to start talking about what actions the administration may take with the budget bills since they have not yet reached the governor’s desk. 

Here are some options, ranging metaphorically from a nuclear bomb to a scalpel.

Going to war: Administrative Board

Whitmer could use the State Administrative Board for an aggressive but arcane maneuver to shift money within department budgets to better reflect her own priorities without the need for legislative approval. 

The power was established — but not used — by former Gov. John Engler, a Republican who was known for testing his power in Lansing from the onset of his 12-year tenure. 

In 1991, Engler’s first year in office, he wanted to scrap general assistance welfare aid for able-bodied adults, but Democratic lawmakers refused and took him to court when he used the governor-controlled Administrative Board to transfer money out of the program. 

They ended up compromising, but the lawsuit continued. And in 1993, the Michigan Supreme Court ruled 4-3 that Engler’s Administrative Board transfer passed legal muster

Since then, no governor has used the power, according to Zach Gorchow, editor of Gongwer subscription news service, who has unearthed archival coverage of the 1990s debate and explored Whitmer’s potential use of the power. 

“The governor would basically be unilaterally moving funds and moving away from what might be called normal order — that being the regular budget process,” Gorchow said. 

“You’re doing a total end run around the Legislature. It’s a legal end run, but most people would say that the way money is to be appropriated and expended is a collaboration between the executive and legislative branches, and here you have a mechanism that sidelines that.”

The maneuver would have limited effect because Whitmer could not transfer money between departmental budgets, only within them. That would limit her ability to, say, redirect money from other parts of the budget to pump more into K-12 schools. 

Senate Majority Leader Mike Shirkey, R-Clarklake, said Wednesday he is well aware of the option and has recently discussed it with a primary source.

“It may humor you to know that I actually talked to former Gov. Engler about that little trick that he revealed when he was governor,” Shirkey said, declining to divulge further details about the conversation. 

Whitmer has “some latitude” to shift funds within a department budget, Shirkey acknowledged, but “I don’t know that’d be the most prudent thing to do… because I think that they would then create other concerns with our negotiations going forward.”

The governor and GOP leaders have vowed to resume long-term road funding talks after completing the budget, and Shirkey suggested Whitmer would alienate lawmakers if she uses the administrative board process to transfer funds away from their priorities and toward her own. 

“The Legislature at the end of the day is the body which decides how to spend money,” he said. “There’s no interest in fragmenting and fracturing our relationship going forward. We got a lot of work to do over the next three years plus. So let’s get about it.”

Shotgun approach: Veto individual budgets

Unlike previous years under Republican former Gov. Rick Snyder, the GOP-led Legislature approved and is planning to send Whitmer 16 individual budget bills for each state department rather than combine them into larger “omnibus” legislation. 

Republicans contend that gives each budget greater weight and puts lawmakers on the record for each vote, but it also gives Whitmer the option to veto one or more budget bills without shutting down all non-essential functions of state government.

While Lansing insiders might applaud a more nuanced approach, vetoing a department budget or large government program could send a strong message that Whitmer is fighting for priorities she was elected to pursue, said John Sellek, a GOP strategist and president of Harbor Strategic Public Affairs. 

“If she really was going to make an impression, and start wielding her gubernatorial-powers sword and force the Legislature back on something, that should happen now,” Sellek said. “But I’m not sure she’s determined there is an issue to do that on.”

Whitmer has blasted the School Aid Fund budget and could consider vetoing the GOP spending plan despite support from House Democrats and a desire to provide funding assurance for local districts, Sellek suggested.

Gorchow said Whitmer may be more likely to use the Administrative Board to transfer funds within the School Aid budget to more closely reflect her original budget proposal that provided extra money to K-12 districts with larger numbers of at-risk, special education or career technical training students. 

“That’s the one where it holds the most potential because there’s a lot of Republican priorities in that budget,” Gorchow said. “And these are all items that Gov. Whitmer wiped out the funding for in her recommendations. If you add it all together it’s probably tens of millions of dollars.”

Scalpel approach: line-item vetoes

Experts say the most likely scenario is that Whitmer signs each department budget in order to avoid a state government shutdown but makes liberal use of her line-item veto power, rejecting spending plans to force continued negotiations on the unallocated money.

Shirkey effectively advocated for that approach Wednesday, suggesting funding from Whitmer’s line-item vetoes could be set aside for a future supplemental spending bills, and then “we’re back at the table negotiating again.”

“There’s no reason for a government shutdown when we have a difference of opinion, not a deficit problem,” he said. “So there’s no financial crisis. Let’s keep government working.”

Whitmer has authority to veto any line-item spending, and the GOP-led Legislature appears to have given her a friendly opening to reject at least one controversial provision they know she opposes.

The transportation budget would prohibit the state from awarding contracts to road building firms that have already agreed to controversial new union contracts, but it now includes $50,000 in funding for a state study, an appropriation that will allow Whitmer to veto the entire line. 

For boilerplate language that does not include an appropriation, Whitmer could declare some provisions unenforceable if they conflict in some way with state law or the constitution. 

It’s an approach Snyder often took to sidestep controversial provisions without vetoing a GOP priority, including a 2019 budget language that sought to divert money away from healthcare providers that perform abortions. 

Bill Ballenger, a longtime political insider and former GOP state legislator, said Whitmer may use a combination of line-item vetoes and department shifts to fine-tune the budget. 

But “who the hell knows at this point,” he said. “Based on the back and forth and the flip flops on everything else we’ve seen in the last couple of weeks, anything could happen.”

Whitmer opposes putting more one-time funding into roads while negotiations consider on a long-term plan, but it may be a public relations challenge to explain using her line-item veto power to reject money for what has long been one of her top priorities. 

“That is a tough position to be in,” said Jen Eyer, a Democratic strategist and partner at Vanguard Public Affairs. “She and her team certainly I think have worked hard to try to communicate to the general public and to voters the magnitude of the problem. Experts agree that $2.5 billion or more is needed every year in new revenue in order to fix the roads.”

The nuclear option: Full budget veto

Whitmer this month backed off her threat to veto any budget without a long-term road funding plan but has hinted that her red pen remains at the ready. 

Still, a full veto remains the most unlikely scenario in coming days because it would trigger a government shutdown and force layoffs for roughly 30,000 of the state’s 48,000 employees in offices across Michigan.

While the state has begun preparing for a potential shutdown, Whitmer has personally reached out to state employees with a video message saying she has their backs.

“I don’t think the government will shut down,” said Hertel, the Democratic lawmaker.

“I think there are lots of different options that are short of that, but I think she has to be strong and show that this process, which has been fundamentally broken and this unprecedented (act) of doing a one-party budget in bipartisan rule can’t stand.”

The peacemaker approach: Full budget signature

Conversely, Whitmer could choose to sign the GOP budgets in a goodwill gesture to rekindle bipartisan relationships as she seeks to resume long-term road funding talks with legislative leaders.

But after months of heated rhetoric, few in Lansing expect that to happen. 

“The speaker of the House and the Majority Leader certainly have a lot of say in this process, but at the end of the day there’s only one person who can actually make massive changes in these budgets –  and that’s the governor,” Hertel said.

Whitmer has “lots of options available to her,” Shirkey acknowledged, listing likely scenarios that did not include the option of full approval. 

“She can veto a budget, she can veto a line item, she can pull the string of administrative board or she can just veto the whole kit and caboodle,” he said. “We’ll just have to wait and see what she does.”

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