Indiana has always had a weak veto power — so why are overrides increasingly common?

Gov. Eric Holcomb knows more than most what it’s like to have a veto overridden. Seven times he has struck down a bill and four times his own party has disagreed.

His most recent veto in the spring of 2022 was a bill banning transgender girls from girls’ sports. He cited concerns about inviting lawsuits and describing pre-existing policy on girls’ sports as already fair and consistent. It was a rare move for a Republican governor in today’s political climate.

But he was quickly overridden by the Republican-led legislature. Not one GOP member was swayed by Holcomb’s opposition.

Although the GOP holds a supermajority, lawmakers only needed a simple majority — 51% — to override the veto. Indiana, along with Alabama, Arkansas, Kentucky, Tennessee and West Virginia are the only states that have such a low threshold for override.

Holcomb and other recent governors are getting trumped more often than decades before.

He has not vetoed a bill since, including signing all 252 bills in 2023. While he declined an interview, other former governors spoke to the Indiana Capital Chronicle about the challenges of the Indiana’s governance structure.

“The system may be designed to limit what a governor can do, but a governor doesn’t have to settle for it,” said Mitch Daniels, who served as governor from 2005 to 2013.

A history of limited government

Indiana has one of the weakest governor systems in the nation, lacking both a pocket and line-item veto in addition to the low threshold for override.

The pocket veto, which was legal in Indiana until 1969, allows a governor to veto a bill by leaving it unsigned. Now, an unsigned bill in Indiana becomes law after seven days on the governor’s desk. Eleven states maintain some form of pocket veto.

The coveted line-item veto, which allows a governor to veto certain provisions of a bill instead of the entire bill, is also not a power of the Indiana governor, even though forty-three states allow such action.

Michael Wolf, chair of the Political Science Department at Purdue-Fort Wayne, said Indiana’s weak veto power is in part due to its focus on limited government. In the colonial era, governors were distrusted because of their British roots, setting the stage for a tradition of weak state executives.

As a result, Wolf explained that, while many states updated their constitutions to afford governors more power, Indiana and some other states retained their structure of limited power. Today, 44 states either require two-thirds or three-fifths of the legislature to override a governor’s veto.

That has left Indiana governors to rely on the symbolic power of the veto — daring legislators to publicly challenge the governor’s authority. And in the past, this process worked relatively well.

In 1971 through 1981, only 9% of vetoes in Indiana were overridden. But from 2012 to 2022, the percentage of vetoes that were overridden was nearly 60%, according to state survey data compiled by the Council of State Governments.

The data suggests a drastic shift in how the legislature views the governor’s authority, eroding the informal system the state was built on.

A strategic approach to a weak governor system

Although the governor lacks some formal powers other states enjoy, Daniels said whether or not the position is strong or weak depends on who’s governor.

Daniels vetoed 11 items during his two terms and was overridden twice, according to the Council.

He attributed his success to a few strategies.

Firstly, Daniels ran in 2004 with a 72-item legislative agenda, which he said gave him the ability to define future policy rather than waiting for legislation. Running a policy-focused campaign also has the added benefit of putting legislators in a bad electoral position should they oppose the items people just voted for, he explained.

Daniels recalled finishing his inaugural speech and saying, “Now if you excuse me, I have to go to work” and taking a stack of bills to the General Assembly.

Using a baseball metaphor, Daniels put the situation like this: “Don’t let the ball play you — play the ball.”

Another strategy Daniels employed was withholding allotted money for spending to promote fiscal discipline or respond to changing circumstances. He said an explicit policy change to allow governors to do this more easily would help strengthen the weak governor system.

Finally, Daniels said campaigning for agenda items while governor is a good way to win support. He gave the example of so-called “Right-To-Work” legislation, running ads for education reform and promoting the building of the convention center.

Still, Daniels indicated support for reform that would require more than just a majority to override a veto.

Daniels also gave an example of property tax reform in 2008, which passed despite opposition from Democratic House Speaker Pat Bauer. By campaigning for the reform, it made many members of the legislature unable to vote against it without political consequences.

However, Daniels also said some changes had to be made on the executive side to avoid an override, which he said was important. This was even more critical when dealing with close-majority and split legislatures, although Daniels said a lot got done in spite of not having a supermajority.

An increasingly partisan legislature

An undeniable fact of the past two decades is that the General Assembly has become increasingly more partisan.

In the past few years, Republicans in both the House of Representatives and the Senate have enjoyed the largest stretch of supermajority power in Indiana history, according to Capitol and Washington. Since the early-to-mid-2010s, the balance of power has hovered around 40-10 for the Senate and 70-30 for the House.

Having larger majorities means legislation passed along party lines now requires a lot more people to change their vote in order for the governor to shepherd a successful veto. It also means governors may use their veto power less and less, perhaps seeing it as futile.

It’s an effect that may have already begun with recent governors, whose handful of vetoes pale in comparison to the 58 vetoes of Indiana’s last Democratic administration, which included Frank O’Bannon and a year of Joe Kernan after  O’Bannon’s death in office. Notably, that administration’s veto override rate was only 26.8% despite presiding over a split or Republican-controlled legislature from 1997 to 2005.

The requirement to override a veto can have wide-reaching effects on policy, even when a legislative supermajority exists. For example, when the Democratic governor of Kansas vetoed a ban on gender-affirming care for minors, the Republican supermajority narrowly failed to override the veto because it required a two-thirds vote. If Kansas only required a simple majority like Indiana, it would be law.

In Kentucky, a state that only requires a simple majority, Democratic governor Andy Beshear failed to successfully veto a similar gender-affirming care ban despite having a similar partisan makeup as Kansas.

A diminishing of power over time

Former Democratic governor Evan Bayh said he didn’t have much difficulty sustaining his veto when he served from 1989 to 1997, although he said procedural and political changes have made veto overrides easier.

A major procedural change happened at the end of his second term, when Republicans took back control of the Statehouse after six years of a split legislature. The 1995 change allowed them to call the legislature into session for technical corrections or veto overrides; before, the legislature had to wait until the next year to make any changes.

When the bill hit Bayh’s desk, he didn’t sign it, calling any attempt at a veto “futile.”

Bayh also said legislative sessions used to be every other year until the 1970s, giving Hoosiers the ability to side with the governor’s veto or the Legislature with their vote. Both of these changes made sustaining a veto more difficult for governors, Bayh said.

At the same time, Bayh said a change in how the legislature views the governor is driving the decrease in veto power.

“We don’t have much of a patronage system anymore,” he said.

Campaign finance has become increasingly separate from the state party, Bayh said, which means the governor has less ability to reward cooperative legislators with campaign money. Now that campaign contributions are more independent, with Super PACs representing different interests across the state, legislators are emboldened to represent the interests of their personal donors and constituents.

“I think the powers of the governor have progressively diminished over time,” he said.

Bayh said his personal philosophy in persuading legislators is: “Take it directly to the voters.” When the Legislature passed the state budget despite his veto in 1993, Bayh ran television ads in an attempt to reach voters and explain why he believed the budget was fiscally irresponsible.

The following year, the speaker of the House was defeated in reelection, he said, although he doesn’t think it was entirely due to his advertisements.

“All these elected officials — they work for the public, not the other way around,” he said.

An attempt to weaken the governor

John Gregg, a Democrat who served as House speaker from 1996 to 2003, condemned the Legislature’s attempt to weaken the governor in 2021 with House Bill 1123, which would allow the General Assembly to call itself into session when the governor issues a state of emergency.

HB 1123 was quickly vetoed by the governor after it passed the Legislature with exclusively Republican support. In a letter, Holcomb said the bill violated the Indiana Constitution by usurping an exclusively executive power. His veto was overridden until the Indiana Supreme Court determined the law was unconstitutional.

The standoffs between the two branches are not exactly typical. For example, Gregg recalls he and other Democrats sometimes reversing their positions to help a governor sustain a veto.

“We always went out of our way to protect the governor,” he said.

Gregg emphasized the importance of the governor’s veto, who he said is able to look at the state as a whole when making a decision. With the exception of some legislative leaders, Gregg said many legislators struggle to get a grasp on the statewide aspect of policy.

He said the Indiana Constitution makes the officer of the governor relatively weak, although he stressed the governor’s power in controlling money and implementation.

Gregg also said governors can send a message even if their veto does not hold much formal power, ranging from a “fist in a velvet glove” to a hammer. He gave an example of Bayh’s failed veto of the state budget in 1993, saying that he and others were welcome in the governor’s office after voting to sustain Bayh’s veto.

“The governor does run the show,” he said.

Indiana Capital Chronicle is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity.