Michigan’s GOP-led Legislature considers rare veto override against Whitmer

LANSING — Republican legislators are pushing for rare veto override votes this week at the Michigan Capitol after Democratic Gov. Gretchen Whitmer rejected bills to strengthen whistleblower protections for state workers and delay summer tax bills for property owners.

Both proposals previously passed the House and Senate with bipartisan support – and by wide enough margins to overturn vetoes by Whitmer, who argued one was constitutionally flawed and the other a constitutional overreach. 

But it’s not clear how many Democrats might support an override vote, or if legislative leaders want to risk inflaming an already volatile relationship with Whitmer as they try to work together and finalize details of a $2.2 billion deal to fill a current-year budget hole. 

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Majority Leader Mike Shirkey, R-Clarklake, has not decided whether to hold any veto override votes when the Senate reconvenes Wednesday and Thursday, spokesperson Ambre McCann said Monday. However, “multiple caucus members have expressed interest” in doing so, she said of Republicans in the upper chamber. 

Rep. Jim Lower, R-Greenville, is urging an override vote on his legislation to delay summer property tax deadlines until March 2021 for property owners reeling from the coronavirus pandemic, economic shutdown or historic Midland-area flooding. 

Whitmer vetoed the two-bill package July 8, telling lawmakers she thinks they "suffer from fatal constitutional flaws" and would "create more problems than they solve" for local governments that rely on property tax collections to fund essential services.  

Lower disagrees, however, and told Bridge the legislation was developed in a workgroup process that included local government representatives. The real sticking point, he said, appears to be Michigan Treasury opposition to proposed borrowing and lending provisions.

Under the bills, Treasury would use short-term financing, such as bonding, to provide "advance payments" to local governments that rely on property tax collections. That means local governments would still receive funding even if property owners don’t have to pay on time.

The Michigan Constitution limits how much general obligation bonding the state can pursue, but it would allow up to $1.6 billion in borrowing against future property tax revenue, and the legislation is more likely to require $1 billion or less in borrowing, Lower told GOP colleagues and House Speaker Lee Chatfield in a Friday memo obtained by Bridge. 

"Treasury simply does not want to do the work involved," Lower argued in the memo. "If the administration needs help meeting some of the deadlines, then we can adjust the timing later. Flood victims and those affected by the COVID-19 shutdown need relief now. They need us to stand up and override this veto."

The Michigan Treasury declined comment and instead referred Bridge to an outside attorney at the Dykema Gossett law firm in Lansing. A spokesperson for Chatfield, R-Levering, did not immediately respond to questions over possible override votes in the House. 

Whistleblower protections

Sen. Tom Barrett, R-Charlotte, is urging a separate veto override vote on legislation to strengthen whistleblower protections for state workers who tell lawmakers about their concerns with government malfeasance, inefficiencies or other issues. 

The proposal would prohibit state departments from disciplining an employee for communicating with a lawmaker or legislative staff. It would also prohibit legislators from taking retaliatory action against non-partisan staffers because of their communication with other lawmakers.

Whitmer, in her July 8 veto letter, argued the legislation violates the Michigan Constitution, including separation of powers provisions. Michigan law already provides "robust" whistleblower protections, and Civil Service Commission rules prohibit the state government from retaliating against employees for reporting a violation of law, the governor said. 

The legislation ignores those existing protections "to score political points," Whitmer wrote.

But those existing rules "are not sufficient to protect members of the state Civil Service who come forward to give credible guidance and information to state lawmakers and their staff," said Barrett, who has feuded with the governor over her emergency powers during the pandemic.

Current protections only apply to state workers who expose illegal activity, he said. That means a state government employee who raised concerns over water testing methodology during the Flint water crisis may not have been protected from retaliation. 

"There's countless situations where state employees should be absolutely encouraged -- or at the very least allowed – to talk to state lawmakers that would not be covered under current whistleblower protections that Gov. Whitmer claims are sufficient," Barrett told Bridge.

The Michigan Constitution allows the Legislature to override a gubernatorial veto with two-thirds majority votes in the House and Senate.  Despite a series of clashes with Whitmer, the GOP-led Legislature has not attempted the maneuver during her tenure. 

There have been just four veto overrides in Michigan since 1951. The most recent was in 2018, when Republican Gov. Rick Sndyer had vetoed a bill to speed up a sales tax break for used vehicle trade-ins but was overruled by the GOP-led Legislature. 

A political process

The property tax deferment and whistleblower protection bills both passed the House and Senate by wide margins, but it's not clear how many Democrats – if any – would be willing to vote the same way a second time and buck a governor from their own party.

Sen. Curtis Hertel Jr, D-East Lansing, voted for the whistleblower protection legislation and had worked on amendments to improve the bill before passage – but he wouldn't vote for an override.

"I'm not a constitutional scholar," Hertel told Bridge. "The governor's legal team and attorney general's office recommended that it violated the constitution, and I don't have any reason to believe they were wrong."

Hertel said he supports the concept of the whistleblower protection bill and is willing to work with Barrett on a new version that addresses constitutional concerns raised by the governor. 

"If he chooses to play politics, then I and others will have no interest," Hertel said. "He's got to decide if he's going to be serious about this or not."

Hertel was one of four Senate Democrats who voted against Lower's property tax deferment bill, which he said he supports in concept but thought should have been part of larger budget negotiations.

"There's obviously a financial cost to it, and we're obviously walking into a very difficult budget situation," said Hertel, minority vice chair of the Senate Appropriations Committee.

The state may need to borrow as much as $1.3 billion to finance advance payments to local governments, and even with low interest rates, could pay up to $4.2 million in debt service, according to the non-partisan Senate Fiscal Agency. 

But Dan Papineau, director of tax policy for the Michigan Chamber of Commerce, said unanimous approval in the House shows there is appetite for a potential veto override. 

Without the legislation, struggling businesses and residents may simply not pay their property taxes, which would hurt local governments, he said.

Officials from Celebration Cinemas and the West Michigan White Caps testified in support of the bills during committee.  Supporters say those kind of companies – with large footprints but continued closures because of the coronavirus pandemic – would benefit most.

"Summer property tax is one of the largest single bills a business receives a year," Josh Lunger of the Grand Rapids Chamber of Commerce told legislators in committee. 

"For those businesses who expect to earn nearly zero revenue this year, or just a fraction of their regular revenue, it is a quickly approaching threat."