Introduction

   Debates concerning the structure and powers of the executive branch have occupied a prominent place in constitution-making in the United States from before 1787 to the present. In The Federalist Papers, both James Madison and Alexander Hamilton refer to issues concerning the character of the executive branch. Madison speaks in The Federalist No. 37 of the need for both "stability and energy in government" while insuring "liberty" and "the republican form."(1) But Hamilton, in Federalist Nos. 67-77, deals exclusively with objections raised concerning the executive branch and the presidency by ratification opponents and declares in No. 67 that the debates in the constitutional convention over these matters were fraught with "difficulty."(2) Further in Federalist No. 70 Hamilton stresses that "energy in the executive is a leading character in the definition of good government" and that such energy is "essential" to effective execution of the laws.(3)

   Even before Madison and Hamilton presented their views on the need for an effective executive branch, a debate that has continued for 200 years had begun over the structure and powers of the executive branch in the American states. Larry Sabato describes the general subservience of most early state governors to the legislative branch, the appearance in the first half of the nineteenth century of the "long ballot" as a Jacksonian democracy device for the selection of executive department heads, the growing prestige of the governorship in states such as New York, California, and Wisconsin during the Progressive years of the early twentieth century, and the declining position of the states in relation to Washington in the middle decades of the twentieth century.(4)

   Nevertheless, efforts to restructure the executive branch with an emphasis on strengthening the governor's authority as chief executive began early in the twentieth century. Illinois, in 1917, combined over 50 independent units into 14 departments and gave the governor authority over their operation. Several states followed the lead of Illinois in the 1920's although the general trend in the late 1940's and early 1950's was in the direction of "structural deterioration."(5) In 1921, the National Municipal League published the first edition of its "Model State Constitution," which has undergone six revisions with the most recent version appearing in 1968.(6) This document calls for greatly strengthened administrative powers for governors, the elimination of popularly-elected executive department heads, and unlimited reelection opportunities for incumbent governors.(7)

   Only in the most gradual manner did the states begin to recognize the need for change in the direction identified by the National Municipal League. But in the twenty years from 1959 to 1979 approximately half of the states adopted major reorganizations.(8) Sabato asserts that the "basic purpose" of these efforts has been unwavering: "to increase governmental accountability and efficiency by giving the governor authority that matches his responsibility"(9) although in some instances the pressure for reform has resulted from obvious personal and political interests.(10) Bowman and Kearney contend that the means to the goals of efficiency and accountability also have not changed and that they include fewer popularly elected department heads, enhanced appointment and removal powers for governors, a stronger gubernatorial veto, greater tenure possibilities for governors, and a more substantial role for the chief executive in the budgetary process.(11)

   James K. Conant indicates that a more recent "wave" of state reorganization initiatives, typified by those in Iowa and Wyoming, has combined the traditional, but somewhat reduced, emphasis on accountability and efficiency with a need to alleviate fiscal stress in the states. Thus, more recent reorganization drives have stressed its role in downsizing state government through reductions in personnel and expenditures.(12)

   In 1990, Thad L. Beyle attempted to identify the effects of these reorganization programs between 1965 and 1990 on the formal powers of American governors.(13) He concluded that while only a marginal increase of 7.8 percent occurred in the overall measure of governors' formal powers, some specific powers, and especially those related to tenure potential and appointments, increased substantially. Also, when Beyle grouped the scores for individual governors into five categories ranging from "very weak" to "very strong," he found only two states (Rhode Island and Texas) in the "very weak" category in 1990, as compared to seven in 1965, while four (New York, Massachusetts, West Virginia, and Maryland) were "very strong," an increase from two in 1965. Most states changed very little, but Iowa and North Dakota moved from "very weak" to "strong," and Texas dropped from "moderate" to "very weak."(14)

Reorganization in Alabama

   The provisions concerning the executive branch in the 1901 Alabama Constitution are fairly typical of those found in other state constitutions in the first decade of the twentieth century and are not dramatically different from those of the 1875 constitution. A 1978 study of reorganization in Alabama(15) describes the 1901 constitution as maintaining two structural traits in the executive branch: reliance on popularly elected heads of administrative agencies and the use of multi-member boards and commissions to manage state agencies.(16) More specifically the constitution provides for seven elected executive department officers, in addition to the governor.(17) Alabama governors, who were one of the first beneficiaries of a veto power in the 1819 constitution,(18) were given an enhanced veto power, which allowed them to communicate to the legislature proposed changes that would satisfy gubernatorial objections to bills passed by both houses of the legislature. If the legislators accepted the changes, the bill them became law.(19) However, overriding the veto required, as it always had, only a majority vote of the membership of both houses of the legislature.(20) Finally, the term of the governor and other state officials was lengthened from two to four years, but the incumbent in these offices could not succeed themselves.(21) After the Alabama Senate in 1965 rebuffed a proposal by George Wallace to allow governors a second consecutive term, Amendment 282 was ratified in 1968 to allow such a term for the governor and other elected executive department heads.(22)

   Although over 500 amendments have been added to the 1901 constitution, the structure of the overall executive branch has been altered significantly only once when Governor Frank Dixon during his term from 1939 to 1942 persuaded the legislature to reduce administrative agencies from 133 to 106 through consolidation, to convert several departments from leadership by a multi-member board to leadership by a single executive, and to create a Department of Finance and a Department of Personnel to administer most of the state's financial and employment operations. The establishment of the Personnel Department was accompanied by legislation that provided for a merit personnel system to replace the then existing spoils approach.(23)

   While Article 5, Section 113 of the Alabama constitution clearly designates the governor as the state's "supreme executive power," the ability of the occupants of this office to fulfill these responsibilities is limited significantly by limits on the ability to appoint the heads of important administrative agencies, by the existence of numerous department heads and boards who are popularly elected, by the weakness of the governor's veto power, and by the heavy reliance placed on the earmarking of state tax dollars. The next section will compare Alabama to the other American states.

Issues of Executive Branch Reorganization

   Beyle's 1990 analysis of gubernatorial powers placed the Alabama governor as one of 22 states in the "moderate" category, an increase from its 1965 "weak" ranking.(24) In his examination of the specific gubernatorial powers, Beyle places Alabama in the "moderate" group in regard to appointment powers with a score of 4.2 on a scale that ranges from 0 to 7 and includes appointive powers in the policy areas of corrections, education, health, highways, public utilities regulation, and public welfare.(25) Of this group the Alabama governor appoints the heads of both corrections and highways with no other approval required which would rank at the very top of Beyle's scale. However, the Public Services Commission is popularly elected while the Superintendent of Education is chosen by a popularly elected Board of Education, which the governor chairs but has only one vote, thus placing the Alabama chief executive toward the bottom of the Beyle scale. The heads of both Public Health and Human Resources are formally chosen by boards heavily populated with gubernatorial appointment and who are usually influenced substantially by the governor's choices.(26) The governors of Massachusetts, Indiana, and Tennessee score highest on Beyle's measure of appointment power while those in Texas, Georgia, Mississippi, South Carolina, and Oklahoma fall in the "very weak" category.(27)

   Despite the success of efforts to strengthen some of the formal powers of governors, the popular election of executive department heads in many states continues to limit substantially the ability of governors to fulfill their responsibilities as chief executives and chief administrators, Data presented by Keon S. Chi.(28) for eleven executive departments, not including governors, indicates that in the twenty years from 1972 to 1992 the number of elected heads of these departments has declined only from 256 to 254. Four fewer public education superintendents and three fewer public utility heads are elected, but five more comptrollers are chosen by popular ballot.(29) Significant differences emerge when totals for individual states are examined. Information in the most recent Book of the States shows that North Dakota elects the most executive department officials (11) while voters in Maine and New Jersey choose only the governor. Other states with higher numbers of executive department heads popularly selected include North Carolina (9) and ten states, including Alabama, with eight. On the lower end are Alaska, Hawaii, New Hampshire, and Tennessee (1). Virginia elects only two. The average number of elected executive officials is 5.5; states in the South and the Midwest choose slightly more by popular ballot (6.3) while the New England and Middle Atlantic states select only 3.3 by popular ballot.(30)

   Much variation also exists in the individual positions that are popularly elected. For example, only seven attorney generals are not chosen by a state's voters. In five of these states, (Alaska, Hawaii, New Hampshire, New Jersey, and Wyoming), the chief legal officer is appointed by the governor while the Maine legislature casts biennial ballots for that state's attorney general. In Tennessee, the members of the state Supreme Court make the selection.(31) Lieutenant governors are found in 42 states and are picked by the voters in each instance. However, in 24 of the states, lieutenant governors run in the general election as a part of a team with the governor.(32) The most important justification for the team arrangement is an increased potential for administrative and program stability,(33) but Beyle suggests that such an arrangement reduces the influence and independence of the person serving as lieutenant governor.(34) Other frequently elected executive department officials include treasurers (38), secretaries of state (36), auditors (25), comptrollers (28), the heads of public education (15), agriculture (12), and insurance (10).(35)

   A third concern results from the nature of the veto power possessed by Alabama chief executives. Sections 126 and 127 in Article V describe the powers of the governor in this area and include these important provisions:

• The governor's veto may be overridden by a majority of the elected members of both houses;

• To remove objections to bills passed by the legislature, the governor may propose amendments and, if the amendments are accepted by both houses of the legislature by majority vote, the bill can be considered by the governor and acted on in the same way as other bills;

• The governor has six days, excluding Sundays to act on bills when the legislature is in session and ten days after the legislature adjourns to act on bills passed by the legislature. Bills not acted on within six days while the legislature is in session become law while bills passed with five or fewer days before adjourning do not become law unless the governor approves them within ten days of final adjourning.(36)

• Section 126 seems to give the governor the right to veto specific items in appropriation bills subject to the majority override provisions set out in Section 125. This section, however, does not speak to the governor's item veto power if budget bills are enacted within five days of legislative adjournment.(37)

   No Alabama governor attempted to veto individual appropriations in budget bills passed at the very end of a legislative session until Governor Guy Hunt eliminated $25 million from the $2.6 billion education budget passed by the legislature in August 1991. However, this action was subsequently declared unconstitutional by a Montgomery Circuit Court and by the Alabama Supreme Court.(38)

   This 1991 litigation clarifies the veto power of the Alabama chief executive, which is limited significantly in these ways:

a. Only a majority of the elected members of both houses is needed to override a governor's veto while 25 states require either a vote of 3/5 or _ of the elected legislators to override and 14 states provide for a _ vote of the legislators present to override.(39)

b. Although the Alabama chief executive has the item veto power, which is not available in seven states,(40) that power cannot be used to eliminate items when budgets are passed with five or fewer days remaining in the legislative session, which is when budget legislation inevitably is sent to the governor in Alabama.

   For these reasons, the governor's ability to influence the policy and administrative direction of the executive branch with the veto is reduced significantly. When the veto power available to the Alabama chief executive is compared to that of counterparts in the other 49 states, only the governors of North Carolina (with no veto power), Indiana, Maine, Nevada, New Hampshire, Rhode Island, and Vermont have a weaker veto.(41)

   A final restraint on the governor's ability to perform effectively as the state's "supreme executive power" is Alabama's extensive reliance on what are commonly known as "earmarked" taxes. While this form of revenue allocation might seem to be unrelated to the structure of the executive, it does bear directly on the governor's success as head of the administrative arm of state government, and some of the "earmarking" results from constitutional language. Fabricius and Snell define earmarking as "reserving a specific revenue for a specific expenditure" and suggest that the most obvious example of such a tax is the earmarking by most states of motor fuel taxes for highway building programs. They also indicate that not including the revenue from a tax in the state's general fund is a distinctive characteristic of earmarked (or dedicated) taxes.(42)

   After analyzing the results of a 1989 survey to which 45 states responded, Fabricius and Snell conclude that state governments in total earmarked 23 percent of their tax revenues in 1988 (a slight increase from 21 percent in 1984), but that Alabama designated 89 percent of its tax revenues for specific purposes. This reliance on this type of revenue allocation makes Alabama "unique" and places it far ahead of Montana, with the next highest level of 72 percent. Only Tennessee at 66 percent and probably Utah, which did not provide data for this survey, also exceed 50 percent. Six states are under 10 percent with Rhode Island the lowest at five percent.(43)

   Table 1 summarizes the major earmarked Alabama taxes in 1988, the percent earmarked, and the recipient of the revenues.