[Congressional Record Volume 141, Number 9 (Tuesday, January 17, 1995)]
[Senate]
[Pages S1009-S1014]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          SENATE RESOLUTION 60--RELATIVE TO THE LINE-ITEM VETO

  Mr. SPECTER submitted the following resolution; which was referred to 
the Committee on the Judiciary:

                               S. Res. 60

       Whereas Federal spending and the Federal budget deficit 
     have reached unreasonable and insupportable levels;
       Whereas a line-item veto would enable the President to 
     eliminate wasteful pork-barrel spending from the Federal 
     budget and curb the deficit before considering cuts in 
     important programs;
       Whereas evidence may suggest that the Framers of the 
     Constitution intended that the President have the authority 
     to exercise the line-item veto;
       Whereas scholars who have studied the matter are not 
     unanimous on the question of whether the President currently 
     has the authority to exercise the line-item veto;
       Whereas there has never been a definitive judicial ruling 
     that the President does not have the authority to exercise 
     the line-item veto;
       Whereas some scholars who have studied the question agree 
     that a definitive judicial determination on the issue of 
     whether the President currently has the authority to exercise 
     the line-item veto may be warranted: Now, therefore, be it
       Resolved, That it is the sense of the Senate that the 
     President should exercise the line-item veto without awaiting 
     the enactment of additional authorization for the purpose of 
     obtaining a judicial determination of its constitutionality.

  Mr. SPECTER. Mr. President, earlier today the Constitutional Law 
Subcommittee of the Judiciary Committee had hearings scheduled on the 
line-item veto, and regrettably those hearings were not held because an 
objection was lodged under the rule which prohibits committee hearings 
from going forward or subcommittee hearings from going forward if they 
are in process more than 2 hours after the U.S. Senate commences its 
business.
  I thought it was unfortunate that the hearings were canceled on that 
ground because a great many witnesses had come, and some from far 
distances, such as the distinguished Governor of Wisconsin, Gov. Tommy 
Thompson, to testify about this very important measure.
  Mr. President, as the Congressional Record will show, this Senator 
has 
[[Page S1010]] long supported the line-item veto. That is a provision 
which would give the President of the United States the authority to 
strike a given line of expenditure without vetoing the entire bill.
  There was a very dramatic presentation made by President Reagan a few 
years ago when the Congress submitted to the President a continuing 
resolution which was all 13 of the appropriations bills. And it was an 
enormous pile, about 20 or 24 inches in size. President Reagan at his 
State of the Union speech was expressing his concern that, instead of 
sending 13 individual appropriations bills which the President might 
approve or veto one at a time, this continuing resolution had been 
sent, so that it was not even the line-item veto but it was a 
circumstance where the President had this massive legislation.
  He had the bill precariously positioned on the edge of the
   podium, and I became somewhat concerned that it was going to fall. 
Then after 1 minute or 2, I realized that it was President Reagan's 
method--perhaps you might call it a theatrical method--to underscore 
the volume and size of the bill. And I think the people watching around 
the country on national television were concerned that the bill might 
fall as well.

  That was a very dramatic way of depicting the problem the President 
faces with a continuing resolution with some 13 appropriations bills. 
But the same principle applies to a single bill. I believe that it is 
very much in the national interest so that the President would have the 
authority to strike an individual item one by one without vetoing the 
entire bill.
  It is my view, Mr. President, that the President of the United States 
possesses constitutional authority under existing law to exercise the 
line-item veto. That proposition has been supported by very intensive 
local research which my staff and I have undertaken, and also by very 
extensive research which has been undertaken by distinguished leading 
scholars, including Professor McDonald, who has written extensively on 
this subject.
  The constitutional approach that the Constitution currently gives the 
President the line-item veto arises from the fact that clause 3 of 
article I, section 7, of the U.S. Constitution is an exact copy of the 
Massachusetts Constitution. The Massachusetts Constitution was enacted 
substantially before the U.S. Constitution. It goes back to the 
Massachusetts fundamental charter of 1733, and was implemented 
specifically to give the royal governor a check on the unbridled 
spending of the colonial legislature.
  Professor McDonald points out that at the time of the Constitution's 
ratification process anti-Federalist pamphleteers opposed the U.S. 
constitutional provision because it ``made too strong a line-item veto 
in the hands of the President.'' Federalists, on the other hand, saw 
this clause, clause 3, and the power to veto individual items of 
appropriations, as an important executive privilege.
  James Bowdoin, the Federal Governor of Massachusetts, argued that the 
veto power conferred upon the President in the Federal Constitution was 
to be read in light of the Massachusetts experience which did give the 
U.S. President the line-item veto. In the Federalist Paper 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 gave power which ``tallies exactly with the 
revisionary authority of the council of revision'' in New York, which 
according to Professor McDonald had the power to revise appropriation 
bills and in effect exercise the line-item veto.
  Without going into great detail--and I will put in the Record a 
statement which will amplify this--in the early days of the Republic 
the President did in effect exercise the line-item veto. President 
Washington and Treasury Secretary Hamilton acted upon the authority to 
shift appropriated funds from one account to another.
  And Thomas Jefferson as President also embraced that practice and on 
at least two occasions refused to spend money that the Congress had 
appropriated. President Andrew Jackson declined to enforce provisions 
of a constitutional enactment, in effect exercising the line item veto, 
and similarly in 1842, President John Tyler signed a bill which he 
refused to execute in full--there again, really exercising the line-
item veto. It was not until after the Civil War that the President 
assumed that he did not have the individual line-item veto when 
President Grant urged Congress to grant him such authority.
  Mr. President, that is an abbreviated statement of the reasoning that 
there is constitutional authority presently for the President of the 
United States to exercise the line-item veto. I had occasion to discuss 
this matter with President Bush when he was in office on a long plane 
ride, and the President said that his lawyer told him he did not have 
the power to line-item veto. I suggested, perhaps somewhat cavalierly, 
that perhaps he should change lawyers. I quickly suggested that 
President Bush not tell the bar association because I might want to 
practice law again some day.
  In 1993, I had occasion to travel with President Clinton to western 
Pennsylvania and discussed with him the issue of the line item veto, 
and upon my saying to President Clinton that he had the authority to 
exercise the line-item veto, he asked me to send him a memorandum on 
the subject, which I did.
  I think it useful at the conclusion of my presentation to include 
that memorandum together with the letters I sent to President Clinton 
and his reply to me on the subject.
  I am introducing, Mr. President, two resolutions, so that the 
Judiciary Committee will have these resolutions before them when they 
next have deliberation on the line-item veto. We had a Judiciary 
Committee hearing last year on a resolution which I had introduced, 
which would propose:

       The Constitution grants to the President the authority to 
     veto individual items of appropriation and the President to 
     exercise that constitutional authority to veto individual 
     items of appropriation without awaiting the enactment of 
     additional authorization.

  When that matter was pending before the constitutional law 
subcommittee, there was considerable sentiment among other Members that 
that might have gone a little farther than they wanted to go. But they 
were prepared to vote out a resolution which would say that there was 
at least sufficient authority so that the President should exercise the 
line-item veto. I am introducing the first resolution again which was 
before the 103d Congress, and then the second resolution which would 
provide that it is the sense of the Senate that the President should 
exercise the line-item veto without awaiting the enactment of 
additional authorization for the purpose of obtaining a judicial 
determination of its constitutionality.
  In my opinion, Mr. President, the line-item veto is very, very 
important and ought to be exercised now. I think anyone who is 
President ought to move forward because of the legal authority that the 
President currently has that authority. But at a very minimum, there is 
sufficient legal authority for the law to be submitted for a judicial 
test.
  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 huge 
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.
  [[Page S1011]] 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 report 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 when the public 
does not feel the moneys 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 Prof. 
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 the 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, as 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, has 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 by 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, but 
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.
  [[Page S1012]] The line-item veto sheds light on the power of private 
interests that seek to use the appropriations process for their own 
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 a 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 structural importance of 
the veto in the Federalist 73, when he wrote that the veto provides 
``an additional security against the enaction 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 factional 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 U.S. 
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 excute 
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.
  Mr. President, with these documents in the Record, there will be a 
reasonably full explanation of the legal basis for the line-item veto 
and the two resolutions which I am submitting for consideration of the 
Senate and which will be on the record when the Judiciary Committee 
next holds its hearing on this subject.
  I thank my colleagues for the time I have taken.
  Mr. President, I ask unanimous consent that additional material be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
                               Memorandum

     Re Presidential authority to exercise a line-item veto
       The President currently enjoys the authority under the 
     Constitution to exercise a line- 
     [[Page S1013]] item veto without any additional 
     constitutional or statutory authority. The consistutional 
     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 for 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 Virigina 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 clauses 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 lint-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 at 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 Sumners' 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.

[[Page S1014]]

                                                      U.S. Senate,


                                  Committee on Appropriations,

                                 Washington, DC, November 9, 1993.
     The President,
     The White House,
     Washington, DC.
       Dear Mr. President: Following up on our conversation on Air 
     Force One enroute to Pittsburgh last week, I am enclosing for 
     you a copy of a statement which I presented on the Senate 
     floor today together with a memorandum of law on your power 
     to exercise the line-item veto without a constitutional 
     amendment or statutory authority.
       The essence of the position is that Article I, Section 7, 
     Clause 3 of the U.S. Constitution adopted language from the 
     Massachusetts Constitution which authorized the line-item 
     veto. Pennsylvania, Georgia, Vermont and Kentucky included 
     that phrasing to enable their governors to exercise the line-
     item veto. Presidents Jefferson, Jackson and Tyler refused to 
     execute portions of congressional appropriations enactments 
     constituting a line-item veto.
       Again my thanks for including me in last week's trip to 
     Pennsylvania.
       My best.
           Sincerely,
                                                    Arlen Specter.

     
                                                                    ____
                                              The White House,

                                Washington, DC, December 18, 1993.
     Hon. Arlen Specter,
     U.S. Senate,
     Washington, DC.
       Dear Senator Specter: Thank you for your letter discussing 
     the President's power to exercise line-item veto authority. 
     Your remarks on the Senate floor, as well as the memorandum 
     of law enclosed, are thoughtful statements on the issue, 
     deserving of considered attention. I appreciate your sharing 
     them with me.
       As you know I have supported granting the President line-
     item veto authority legislatively. I believe that H.R. 1578 
     as passed by the House, which provides for a modified line-
     item veto, represents a good compromise that would go a long 
     way toward achieving the purposes of a line-item veto. I hope 
     that I will continue to have your support in the effort to 
     control spending and eliminate undesirable items of spending.
       With best wishes,
           Sincerely,
                                                     Bill Clinton.
     

                          ____________________