[Congressional Record Volume 140, Number 35 (Thursday, March 24, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]
[Congressional Record: March 24, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]
SENATE RESOLUTION 195--RELATING TO LINE-ITEM VETO
Mr. SPECTER submitted the following resolution; which was referred to
the Committee on the Judiciary:
S. Res. 195
Whereas article I, section 7, clause 2 of the Constitution
authorizes the President to veto bills passed by both Houses
of Congress;
Whereas article I, section 7, clause 3 of the Constitution
authorizes the President to veto every ``Order, Resolution,
or Vote'' passed by both Houses of Congress;
Whereas during the Constitutional Convention, Roger Sherman
of Connecticut opined that article I, section 7, clause 3 was
``unnecessary, except as to votes taking money out of the
Treasury;''
Whereas the language of article I, section 7, clause 3 was
taken directly from the Constitution of the Commonwealth of
Massachusetts of 1780;
Whereas the provision of the Massachusetts Constitution of
1780 that was included as article I, section 7, clause 3 of
the United States Constitution vested in the Governor of
Massachusetts the authority to veto individual items of
appropriation contained in omnibus appropriations bills
passed by the Massachusetts Legislature;
Whereas the Governor of Massachusetts had enjoyed the
authority to veto individual items of appropriation passed by
the Legislature since 1733;
Whereas in explaining the purpose of the constitutional
veto power, Alexander Hamilton wrote in The Federalist No. 69
that it ``tallies exactly with the revisionary authority of
the council of revision'' in the State of New York, which had
the authority to revise or strike out individual items of
appropriation contained in spending bills;
Whereas shortly after the new Federal Constitution was
adopted, the States of Georgia, Pennsylvania, Vermont, and
Kentucky adopted new Constitutions which included the
language of article I, section 7 of the Federal Constitution,
and allowed their governors to veto individual items of
appropriation on the basis of these provisions;
Whereas the contemporary practice in the States is
probative as to the understanding of the Framers of the
Constitution as to the meaning of article I, section 7,
clause 3;
Whereas President Washington, on a matter of presidential
authority, exercised the prerogative to shift appropriated
funds from one account to another, effectuating a line-item
veto;
Whereas President Jefferson considered appropriations bills
to be permissive and refused on at least two occasions to
spend funds appropriated by the Congress: Now, therefore, be
it
Resolved, That it is the sense of the Senate that--
(1) The Constitution grants to the President the authority
to veto individual items of appropriation; and
(2) the President should exercise that constitutional
authority to veto individual items of appropriation without
awaiting the enactment of additional authorization.
Mr. SPECTER. Mr. President, I have long supported a line-item veto
for the President, I have proposed constitutional amendments to grant
the President such authority, and I have supported statutory enhanced
rescission authority.
As these measures have failed, after extensive legal research and
analysis, I now urge the President to exercise the line-item veto
without further legislative action. I do so because I believe, after a
careful review of the historical record, that the President already has
the authority under the Constitution to veto individual items of
appropriation in an appropriations bill and that neither an amendment
to the Constitution nor legislation granting enhanced rescission
authority is necessary.
The line-item veto would be effective in helping to reduce the hugh
deficit that now burdens our country. While alone it is no panacea, its
use would enable the President to veto specific items of appropriation
in large spending bills, thereby restraining some of the pork-barrel or
purely local projects that creep into every appropriations bill. With
the broad national interest rather than purely local concerns at work,
the President's use of the line-item veto would cut significant amounts
of this type of spending.
The line-item veto would also have a salutary effect on Members of
Congress. Knowing that their attempts to insert items into
appropriations bills will be subjected to presidential scrutiny,
Members are likely to become more reluctant to seek special favors for
the home district at the expense of the Nation at large. While such
discretionary programs and earmarks do not account for a large part of
Federal spending, getting control over them will improve the
authorization and appropriations process. The President could use the
veto to eliminate funding for unauthorized programs. Such a message
would motivate Congress to reauthorize programs with regularity,
improving our oversight and the effectiveness of the government.
The line-item veto is not a partisan issue. It is a good government
issue. Many Democrats support the line-item veto; some Republicans
oppose it. As a candidate in 1992, Bill Clinton firmly embraced the
line-item veto. As President, he has the opportunity to make effective
use of it to help control in some small measure the deficits we
accumulate. By exercising this option, the President can provide a
check on unfettered spending and carve away many of the pork-barrel
projects contained in both versions of the budget that serve primarily
private, not national interests.
Beyond the specific savings, the presence and use of the line-item
veto by the President could give the public assurances that tax dollars
were not being wasted. Each year the media reports many instances of
congressional expenditures which border, if in fact they do not pass,
the frivolous. Those expenditures are made because of the
impracticality of having the President veto an entire appropriations
bill or sometimes a continuing resolution. That creates a general
impression that public funds are routinely wasted by the Congress.
The line-item veto could eliminate such waste and help to dispel that
notion. The resentment to taxes is obviously much less than when the
public does not feel the monies are being wasted. Notwithstanding the
so called taxpayers' revolts in some States, there is still a
willingness by the citizenry to approve taxes for specific items where
the taxpayers believe the funds are being spent for a useful purpose.
The line-item veto could be a significant factor in improving such
public confidence in governmental spending even beyond the specific
savings.
I now turn to the basis for my position that the President already
has authority under the Constitution to exercise the line-item veto,
without a need for additional constitutional or statutory legislation.
The constitutional basis for the President's exercise of a line-item
veto is found in article I, section 7, clause 3 of the Constitution.
Clause 2 of article I, section 7 provides the executive the authority
to veto bills in their entirety. The question of conferring on the
President the power to veto specific items within a bill appears not to
have been discussed at the Constitutional Convention. During the
drafting of the Constitution, however, James Madison expressed his
concern that Congress might try to get around the President's veto
power by labeling bills by some other term. In response to Madison's
concern, Edmund Randolph proposed and the Convention adopted the third
clause of article I, section 7, whose language was taken directly from
a provision of the Massachusetts Constitution of 1780.
Clause 3 of article I, section 7 provides that in addition to bills--
the veto of which is set forth in clause 2:
Every Order, Resolution, or Vote to which the Concurrence
of the Senate and House of Representatives may be necessary
(except on a question of adjournment) shall be presented to
the President of the United States; and before the same shall
take Effect, shall be approved by him, or being disapproved
by him, shall be repassed by two thirds of the Senate and
House of Representatives, according to the Rules and
Limitations prescribed in the case of a Bill.
While the clause does not explicitly set out the executive authority
to veto individual items of appropriation, the context and practice are
evidence that that was its purpose. According to noted historian
Professor Forrest McDonald of the University of Alabama, the clause was
taken directly from a provision of the Massachusetts Constitution of
1780. In his article entitled ``The Framers' Conception of the Veto
Power,'' published in the monograph Pork Barrels and Principles: The
Politics of the Presidential Veto 1-7--1988, Professor McDonald
explains that this provision dates back to the state's fundamental
charter of 1733 and was implemented specifically to give the royal
Governor a check on the unbridled spending of the colonial
legislature, which had put the colony in serious debt by avoiding the
Governor's veto power by appropriating money through votes rather than
through legislation.
Professor McDonald also points out that at the time of the
Constitution's ratification process, anti-Federalist pamphleteers
opposed the proposed Constitution and in particular clause 3 of article
I, section 7, precisely because it ``made too strong a line-item veto
in the hands of the President.''
Federalists, on other hand, saw clause 3 and the power to veto
individual items of appropriation as an important executive privilege--
one that was essential in assuring fiscal responsibility while also
comporting with the delicate balance of power they were seeking to
achieve. For example, during his State's ratifying convention, James
Bowdoin, the Federalist Governor of Massachusetts, argued that the veto
power conferred to the President in the Federal Constitution was to be
read in light of the Massachusetts experience under which, I have
already noted, the Governor had enjoyed the right to veto or reduce by
line-item since 1733.
In The Federalist No. 69, Alexander Hamilton, a member of the
Constitutional Convention who was soon to become the first Secretary of
the Treasury, wrote that the constitutional veto power ``tallies
exactly with the revisionary authority of the council of revision'' in
New York, which, according to Professor McDonald, had the power to
revise appropriations bills, not merely accept or reject legislative
enactments in their entirety. This power was not unique to New York, as
the Governors of Massachusetts, Georgia, and Vermont (soon to be the
first new State admitted to the new union) also enjoyed revisionary
authority over legislative appropriations.
As many of my colleagues know, our distinguished colleague from West
Virginia, the chairman of the Appropriations Committee, had made a
series of speeches on the Senate floor drawing on his vast knowledge
about the historical underpinnings of our republican form of government
and on the framers' rationale for the checks and balances they created.
His review of Roman history is apt, because, as he knows, the framers
were acutely aware of Roman history. This awareness helped them develop
their government of limited powers and of checks and balances. The
framers knew that the vice of faction, the desire to pursue one's
private interest at the expense of the public interest, had helped
bring on the downfall of the Roman Republic. Madison and others were
convinced that the diffusing power and balancing it off in different
branches of government, we might avoid to the fullest extent possible,
the defects of faction.
In another sense, however, the distinguished Chairman of the
Appropriations Committee, overlooks the fundamental differences between
Rome's ancient government and ours. In ours, the people have a direct
say. In Rome's the male citizens had a limited, indirect say, by mostly
the ruling class was hereditary or was based on wealth. We have a
democracy; Rome did not.
This fundamental difference between our Nation and ancient Rome means
that there are more factions with which our Government must contend.
With so many different factions, or ``interest groups, as we call them
today, it is much easier for one of them to ``capture'' a single Member
of Congress to advance its cause and to fund it. Each Representative
has a much narrower focus than a Senator, each of whom has a much
narrower focus than the President. Thus, Congress is more susceptible
to pressure from factions, as one Member who wants a favor for a
particular faction trades his or her support for another Member's
preferred faction. We all know that this appropriations log-rolling
occurs. Ultimately, the President is presented with one large spending
bill, much of which reflects the political horse-trading that occurs.
The line-item veto sheds light on the power of private interests that
seek to use the appropriations process for their one private benefit.
By excising line items and making Congress vote on them individually in
an effort to override the veto, the President can shed light directly
on these private interests and force Members to be more accountable to
their constituents by voting on the projects identified by the
President as unnecessary and wasteful.
Some, like the distinguished chairman of the Appropriations
Committee, contend that the line-item veto would result in an
intolerable shift of power from Congress to the Executive. To this
argument, I have two responses. The first is that, as I believe I show,
the Framers of the Constitution intended that the President have the
authority to veto individual items of appropriations, Thus, in their
concept, the line-item veto does not offend the balance of powers.
The second response is related to the entire structure of the
Government. The Constitution places the power of the purse in the hands
of Congress. It is peculiarly legislative function to decide how much
money to spend and how to allocate these expenditures. In this regard,
however, spending is no different than any other legislative function.
Thus, there is no reason to consider the line-item veto any more of an
infringement of the separation of powers than the President's ability
to veto bills at all. Hamilton recognized the structure importance of
the veto in the Federalist 73, when he wrote that the veto provides
``an additional security against the inaction of improper laws--to
guard the community against the effects of faction, precipitancy, or of
any impulse unfriendly to the public good, which may happen to
influence a majority of the--legislative--body'' from time to time. The
Framers were acutely aware that it is the legislative branch that is
most susceptible to fractional influence. Thus, they understood that
the veto served a critical role.
But, opponents of the line-item veto argue, Hamilton's point went to
bills as a whole, and not simply pieces of them. The legislative
process necessarily relies on horse-trading to get things done, and
nowhere is such trading more important than in the appropriations
process. This response, while acknowledging the reality, is an answer
that directly contradicts the Framers' intent and leads to bad
government, for it accepts the premise that factions and the prominent
Members of Congress who support their causes must be bought off with
goodies in appropriations bills. But that is precisely the evil that
the Framers sought to insulate against with the veto.
Given the role of factions in the appropriation process, the use of
the line-item veto is completely consistent with the Framers'
conception of the veto power. Indeed, that is not surprising, as the
Framers believed they had granted the President a line-item veto.
Despite the arguments of the distinguished Chairman of the
Appropriations Committee to the contrary, the line-item veto was not
only intended by the Framers but is an appropriate limitation on
congressional authority to combat the force of faction.
This process would not surprise the Framers of the Constitution,
Madison and the others who met in Philadelphia in 1787 were not just
knowledgeable about history. They were practical men of affairs and
politics who understood human nature. They knew the dangers of faction
and the likelihood that faction would influence Congress more so than
the President, who is responsible to the entire Nation, not a single
district or State.
Thus, it is only to be expected that the Framers provided Congress
with the power to appropriate funds, tempered with executive authority
to line-item veto as a means of expunging special interest spending was
their resolution, and history bears this out. The line-item veto is
entirely consistent with the Framers' conception of government and the
dangers of faction.
Shortly after the new Federal Constitution was ratified, several
States, including Georgia, Vermont, Kentucky, and my home State of
Pennsylvania, rewrote their constitutions to conform with the Federal
one and specifically incorporated language to give to their executives
the authority to exercise a line-item veto. These States were in
addition to the States like Massachusetts and New York, where the
Governor's power to revise items of appropriation was well-established.
For example, article II, section 10 of the Georgia Constitution of 1789
gave the governor the power of ``revision of all bills'' subject to a
two-thirds vote of the general assembly. Section 16 of chapter II of
the Vermont Constitution of 1793 vested in the governor and council the
right to revise legislation or to propose amendments to the
legislature, which would have to adopt the proposed amendments if the
bill were to be enacted. Article I of the Kentucky Constitution of 1792
and section 23 of article I of the Pennsylvania Constitution of 1790
tracked the language of article I, section 7, clause 3 of the new
United States Constitution.
The chief executives of both the State and new Federal Governments
immediately employed the line-item veto. On the national level, the
early practice was one in which the President viewed appropriations as
permissive rather than mandatory. President Washington and his Treasury
Secretary Hamilton assumed the authority to shift appropriated funds
from one account to another. Although his party had at one time opposed
such transfers, once he became President, Republican Thomas Jefferson
also embraced the practice, and at least on two occasions, he refused
to spend money that the Congress had appropriated.
The practice continued. As late as 1830, President Andrew Jackson
declined to enforce provisions of a congressional enactment. Likewise
in 1842, President John Tyler signed a bill that he refused to execute
in full. It was not until after the Civil War that a President assumed
he did not already have the authority to veto individual items of
appropriation, when President Grant urged the Congress to grant him
such authority.
But President Grant's view was anomalous. The Framers' understanding
and their original intent was that the Constitution did provide the
authority to veto or impound specific items of appropriation. The
States understood that to be the case, and many in fact embraced the
Federal model as a means of providing their own executives this same
authority.
I believe that the evidence strongly supports the position that under
the Constitution the President has the authority to employ the line-
item veto. At the very least, the President's use of the line-item veto
will almost certainly engender a court challenge if the veto is not
overridden. The courts will then decide whether the Constitution
authorizes the line-item veto. If they find it does, then the matter
will be settled. If they find it does not, then Congress may revisit
the issue and decide whether to amend the Constitution or grant
statutory enhanced rescission authority to the President.
In conclusion, I urge the President to employ the line-item veto if
he is seriously committed to deficit reduction. As I have argued here
today, the authority to exercise this power is not dependent on the
adoption of a constitutional amendment or any additional legislation;
it already exists. The Framers' intent and the historical practice of
the first Presidents serve as ample evidence that the Constitution
confers to the executive the authority to line-item veto. Given
President Clinton's use of the line-item veto as Governor and his
support of it as a candidate, I urge him to act on that authority
consistent with his rightful power to do so.
I ask unanimous consent that a copy of a memorandum I have prepared
summarizing my research into the Framers' intent to establish a line-
item veto and the early national practice by included in the Record.
Memorandum
Re: Presidential authority to exercise a line-item veto.
The President currently enjoys the authority under the
Constitution to exercise a line-item veto without any
additional constitutional or statutory authority. The
constitutional basis for the President's exercise of a line-
item veto is to be found in article I, section 7, clause 3 of
the Constitution.
The first article of the Constitution vests legislative
authority in the two Houses of Congress established
thereunder. Clause 2 of section 7 of the first article
provides the presidential authority and procedure to veto
``bills.'' This is the basis of the President's clearly
established authority to veto legislation. The provision also
established the procedure under which Congress may override
the President's veto.
The question of conferring authority on the President to
veto specific items within a bill was not discussed at the
Constitutional Convention. During the drafting of the
Constitution in 1787, however, James Madison noted in his
subsequently published diary that he had expressed his
concern that Congress might try to get around the President's
veto power by labeling ``bills'' by some other term. In
response to Madison's concern and in order to guard the
President's veto authority from encroachment or being
undermined and preserve the careful balance of power it
sought to establish, Edmund Randolph of Virginia proposed and
the Convention adopted language from the Massachusetts
Constitution which became article I, section 7, clause 3.
This clause requires that in addition to bills: ``Every
Order, Resolution, or Vote to which the Concurrence of the
Senate and House of Representatives may be necessary (except
on a question of Adjournment) shall be presented to the
President of the United States; and before the Same shall
take Effect, shall be approved by him, or being disapproved
by him, shall be repassed by two thirds of the Senate and
House of Representatives, according to the Rules and
Limitations prescribed in the Case of a Bill [these being set
forth in article I, section 7, clause 2].''
In combination with the preceding clause 2 of section 7,
this third clause gives the President the authority to veto
any legislative adoption of Congress, subject to
congressional override.
The historical context of its adoption supports the
position that clause 3 vests the President with authority to
veto individual items of appropriation.
According to the noted historian Professor Forrest McDonald
in his paper ``The Framers' Conception of the Veto Power,''
published in ``Pork Barrels and Principles: The Politics of
the Presidential Veto'' 1-7 (1988), clause 3 was taken
directly from a provision of the Massachusetts Constitution
of 1780. This provision set in the State's fundamental
charter Massachusetts law dating to 1733 first implemented to
give the Royal Governor a check on unbridled spending by the
colonial legislature, which had put the colony in serious
debt by avoiding the governor's veto power by appropriating
money through ``votes'' rather than legislation. Professor
McDonald has also noted in an op-ed article published in the
``Wall Street Journal,'' that the agents of the King of
England could disapprove or alter colonial legislative
enactments ``in any part thereof.''
Discussion and debate at the Constitutional Convention over
the meaning of clause 3 was scant. In his notes of the
proceedings of the Convention, our main source for the intent
of the Framers of our fundamental Charter, Madison noted only
that Roger Sherman of Connecticut ``thought [article I,
section 7, clause 3] unnecessary, except as to votes taking
money out of the Treasury.'' No other member of the
Convention appears to have discussed the clause. Sherman's
comment was important, as it demonstrates the context in
which the Framers saw the newly added provision: it was
needed only insofar as it pertained to votes appropriating
money from the Treasury. Perhaps discussion was so scant
because the meaning of the clause was clear to the Framers.
In his 1988 article, Professor McDonald notes that two
Anti-Federalist pamphleteers opposed the proposed
Constitution in part because article I, section 7, clause 3
``made too strong a line-item veto in the hands of the
President.'' The Federalist Governor of Massachusetts, James
Bowdoin, argued during the Massachusetts ratifying convention
that the veto power was to be read in light of the
Massachusetts experience in which, as noted, the line-item
veto was exercised by the governor. In ``The Federalist'' No.
69, Alexander Hamilton wrote that the constitutional veto
power ``tallies exactly with the revisionary authority of the
council of revision'' in New York, which, according to
Professor McDonald, had the power to revise appropriations
bills, not merely turn down the entire legislative enactment.
Massachusetts, Georgia, and Vermont also gave their
executives revisionary authority over legislative
appropriations.
Roger Sherman's comment was prescient, as he focused on the
issue confronting us over 200 hundred years later. The
language of clause 3 has proven to be redundant, as Congress
has not attempted to avoid the strictures of the second
clause. But clause 3 is not superfluous as regards, in
Sherman's language, ``votes taking money out of the
Treasury.'' In order to give effect to this provision, the
President must have the authority to separate out
different items from a single appropriation bill and veto
one or more of those individual items.
This reading is consistent with the early national
practice, under which Presidents viewed appropriations as
permissive rather than mandatory. President Washington and
his Treasury Secretary, Alexander Hamilton, assumed that the
President had the authority to shift appropriated funds from
one account to another. The former Anti-Federalists, having
become the Republican party, objected to these transfers.
Once a Republican, Thomas Jefferson, became President,
however, he too considered appropriations bills to be
permissive and refused on a least two occasions to spend
money that had been appropriated by Congress.
Professor McDonald points out in his 1988 article that
shortly after the new Federal Constitution was ratified,
several of the States rewrote their constitutions to conform
their basic charters to the new Federal one. The
contemporaneous experience of these States is highly relevant
to the Framers' understanding of the text they had devised.
Several States adopted new constitutions in 1789 or the early
1790's. Of these, Georgia and Pennsylvania, and the new
States of Vermont and Kentucky all adopted constitutions that
included the phrasing of article I, section 7 to enable their
governors to exercise the line-item veto.
According to a 1984 report of the Committee on the Budget
of the House of Representatives, ``The Line-Item Veto: An
Appraisal,'' the practice at the national level of the
President's exercise of a line-item veto continued. President
Andrew Jackson declined, over congressional objection, to
enforce provisions of a congressional enactment in 1830. In
1842, President John Tyler signed a bill that he refused to
execute in full. Instead, he advised Congress that he had
deposited with the Secretary of State ``an exposition of my
reasons for giving [the bill] my sanction.'' Congress issued
a report challenging the legality of the President's action.
Professor McDonald noted that between 1844 and 1859, three
northern States, responding to fiscal problems, adopted
constitutions explicitly providing their governors with power
to veto individual items of appropriation. Building on this
history, the provisional Constitution of the Confederate
States of America also made explicit that the President of
the Confederacy had line-item veto authority.
It was only after the Civil War that President Grant
suggested that he did not already enjoy the authority to veto
individual items of appropriation and other specific riders
to legislation and urged that he be granted such authority.
President Grant's position that he did not enjoy a line-
item veto under the Constitution was directly
contradictory to the original understanding of the
Constitution, a position endorsed by Presidents
Washington, Jefferson, Jackson, and Tyler through usage.
It ignored the original understanding of the Framers of
the Constitution and the historical context in which that
document was drafted. Proposals for a Federal line-item
veto have been made intermittently since the Grant
Administration.
An alternative argument based on the language of article I,
section 7, clause 2, but consistent with the original
understanding of the veto power, has also been made to
support the President's exercise of a line-item veto. In
discussing why the issue of a line-item veto was not raised
during the Constitutional Convention, Professor Russell Ross
of the University of Iowa and former United States
Representative Fred Schwengel wrote in an article ``An Item
Veto for the President?,'' 12 ``Presidential Studies
Quarterly'' 66 (1982), ``[i]t is at least possible that this
subject was not raised because those attending the Convention
gave the term `bill' a much narrower construction than has
since been applied to the term. It may have been envisioned
that a bill would be concerned with only one specific subject
and that subject would be clearly stated in the title.''
Professor Ross and Mr. Schwengel quote at length the former
Chairman of the House Judiciary Committee, Hatton W. Sumners,
who defended this view in a 1937 letter to the Speaker of the
House that was reprinted in the Congressional Record on
February 27, 1942. Chairman Sumners was of the view that the
term ``bill'' as used in clause 2 of section 7 of the first
article was intended to be applied narrowly to refer to
``items which might have been the subject matter of separate
bills.'' This reading he thought most consistent with the
purpose and plan of the Constitution. Thus, Chairman Sumners
believed that clause 2, as originally intended, could also be
relied upon to vest line-item veto authority in the
President.
Chairman Sumner's reading is also consistent with the
practice in some of the colonies. Professor McDonald cites to
the Maryland constitution of 1776, which expressly provided
that any enacted bill could have only one subject. Several
other States followed Maryland during the succeeding decades
and limited legislative enactments to a single subject.
A review of the contemporary understanding of the veto
provisions of the Constitution when drafted supports the view
that the President currently enjoys line-item veto authority,
which several Presidents have exercised.
____________________