"The Constitution doesn't allow the governor to not-spend appropriations funds."
J.D. Alexander on Wednesday, February 16th, 2011 in reaction to Gov. Rick Scott’s decision to kill the high-speed rail project.
Senator makes point about Rick Scott’s authority to nix rail deal, but Scott still holds most cards
When Florida Gov. Rick Scott announced he had decided to kill a high-speed rail line connecting Tampa and Orlando, legislators, local officials, union groups and others grumbled about Scott's timing and reasoning.
Then many of them thought: Wait, can he even do that?
After all, the Legislature created the Florida Rail Enterprise in 2009 to manage the construction of a high-speed line, and then budgeted $300 million in state funds to help build the project. The rest of the money -- $2.4 billion -- was coming from Washington.
Following Scott's announcement on Feb. 16, 2011, Senate Budget Committee Chairman J.D. Alexander suggested Scott overstepped his authority in declaring the rail project dead.
"The Constitution," he said, "doesn't allow the governor to not-spend appropriations funds." And there is $300 million appropriated for the rail line between Orlando and Tampa, Alexander said.
Is Scott overstepping his Constitutional powers? Can the rail project be saved by state lawmakers?
The fact that Scott said he would reject federal high-speed rail wasn't itself shocking. The new governor has long been critical of President Barack Obama's spending policies and approach to government.
But the timing of Scott's announcement -- at a hastily arranged morning press conference -- sent lawmakers in Washington and Tallahassee scrambling. In Washington, U.S. Sen. Bill Nelson and members of Florida's Congressional delegation pivoted to see if another agency could receive the federal money instead and manage the rail project. U.S. Transportation Secretary Ray LaHood on Thursday gave Florida lawmakers one week to see if they could work out a deal, but said that Scott would have to sign off on any agreement.
In Tallahassee, lawmakers similarly were scratching their heads and wondering what's next.
A veto-proof majority of the Florida Senate wrote LaHood asking for time to seek an alternative to keep the 84-mile-long rail project alive while suggesting that the state's Florida Rail Enterprise could manage the project without Scott's approval. State Sen. David Simmons, R-Altamonte Springs, suggested another option -- though in its infancy -- would be to create a public corporation that could insulate the state from potential cost overruns to build the train, or operational losses once the train is running.
"We want to try to keep this alive," Simmons said.
Scott vs. the Legislature
As Simmons, Nelson and others work on one hand to circumvent Scott, they also continue to poke at the governor by saying he can't just do this unilaterally.
The current state budget includes $131 million in high-speed rail development (line item 2094). That's part of the $300-million-or-so the state has pledged as part of the overall $2.7 billion rail project.
Alexander's contention is that, without the approval of the Legislature, Scott must spend that money on high-speed rail.
He has a point.
State statutes prohibit the governor from "impounding" state funds -- meaning the governor cannot simply choose to not spend money budgeted. The governor has to veto a spending proposal, or accept it. And if he accepts it, he must spend the money for that purpose. The wrinkle in this case, of course, is that Gov. Charlie Crist signed the current budget, not Scott. But the budget is a law, which Scott is obligated to follow.
Alexander made the same contention when it came to Scott's decision to sell the state two airplanes, saying the sale may have violated the law. The current state budget includes funds to maintain and operate the planes, and Scott just can't ignore the line item in the budget. Scott said the decision was completely legal.
A second point: While most of the federal money for the rail project has not yet been awarded, some has.
The state received $66.66 million in a federal grant in May 2010 to begin implementing plans for the high-speed line. Officials say about $26 million of that money already has been spent.
"The bottom line is that he can't reject this money: It was already approved by another Legislature and another governor," Simmons said. "It's like trying to veto a bill after it becomes law. It's too late."
Scott still holds most cards
The money in play -- the $300 million in state funding and the smaller federal portion -- is peanuts when considering the entire $2.7 billion project.
And that is where Scott has the upper hand, lawmakers, former state officials and transportation experts told us.
He can veto future appropriations in the state budget, whether the source of the funds is state money or federal. If somehow, those vetoes are overridden, Scott can wreak havoc on rail plans in other ways.
If a bond issue is required, he could try to kill the project through a vote on the Cabinet, or he could to hold up giving away the right-of-way to build the rail line. Or he could order his Department of Transportation secretary to fire people associated with the rail project.
"He has the ability to direct agency heads and the ability to control expenditures that come into the budget over the next few years through a veto," said former state Sen. Dan Gelber, who was the Democratic candidate for attorney general. "If the governor's dead set on making it not happen, he can make it not happen."
Even Alexander said the idea of rail is likely dead in Florida as long as Scott opposes it.
"It may be a moot point when he's clearly trying to pull the plug," said Doug Callaway, president of Floridians for Better Transportation, a statewide transportation lobbying group.
Though we think Alexander should have cited state statutes and not the Constitution, he is technically right that Scott is required to spend money in the state budget the way it is appropriated. That means the Legislature could play a game of chicken, forcing Scott to spend the $131 million in the 2010-11 budget, and maybe the remaining $170 or so million of state funds, and maybe even the $66.66 million in federal money.
But getting him to spend the necessary money beyond that, all the federal and state money actually needed to complete the rail program, is a much taller order. And when it comes to the outcome of rail in Florida -- at least when it comes to the Florida Legislature -- that is today a much more important point. That's the context that gives Scott the upper hand. We rate this statement Half True.
Published: Thursday, February 17th, 2011 at 7:46 p.m.
Rick Scott announcement rejecting high-speed rail federal dollars, Feb. 16, 2011
Interview with Sen. J.D. Alexander, Feb. 16, 2011
Interview with former state Sen. Dan Gelber, Feb. 16, 2011
Alexander letter to Scott, Feb. 17, 2011
HB 1B (high-speed rail legislation), approved Dec. 8, 2009
Interview with Nick Kane, Florida Department of Transportation spokesman, Feb. 17, 2011
Interview with Doug Callaway, president of Floridians for Better Transportation, Feb. 17, 2011
Florida Statutes relating to planning and budget, accessed Feb. 17, 2011
Federal Railroad Administration high-speed rail grant document, accessed Feb. 17, 2011
Recovery.gov, master project list, accessed Feb. 17, 2011
Interview with Sen. David Simmons, Feb. 17, 2011
Miami Herald, "26 Florida Senators rebuke Rick Scott over bullet train," Feb. 17, 2011
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