[Congressional Record Volume 141, Number 52 (Tuesday, March 21, 1995)]
[Senate]
[Pages S4212-S4222]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                             CLOTURE MOTION

  Mr. McCAIN. Mr. President, I send a cloture motion to the desk and 
ask for its immediate consideration.
  The PRESIDING OFFICER. The cloture motion having been presented under 
rule XXII, the Chair directs the clerk to read the motion.
  The legislative clerk read as follows:

                             Cloture Motion

       We the undersigned Senators, in accordance with the 
     provisions of rule XXII of the Standing Rules of the Senate, 
     do hereby move to bring to a close debate on S. 4, the line-
     item veto bill:
         Bob Dole, Trent Lott, Dan Coats, Slade Gorton, Robert 
           Bennett, John McCain, Ted Stevens, James Inhofe, Mike 
           DeWine, John Ashcroft, Craig Thomas, Bob Smith, Alfonse 
           D'Amato, Mitch McConnell, Larry Pressler, Don Nickles, 
           Pete Domenici.

  [[Page S4213]] Mr. McCAIN. Mr. President, as my colleagues are aware, 
that is the second cloture motion that has been filed at the desk.
  Mr. President, after discussion with the majority leader, I think it 
would be well to inform my colleagues that we anticipate a cloture vote 
on Wednesday, tomorrow, at some point, at the discretion of the 
majority leader, and then again on Thursday and, if necessary, another 
one on Friday.
  I remind my colleagues that the bill is under consideration. It is 
open for amendments. We welcome amendments at this time. I remind 
Members that first-degree amendments must be filed by 1 p.m. today in 
the event of a cloture motion.
  Mr. President, in discussions with the majority leader, he has 
informed me that, if necessary, we would stay, in order to complete 
consideration of this bill in a timely fashion, that we would plan on 
staying in late both tonight, tomorrow night, and Thursday night, if 
necessary. Hopefully, that is not necessary. Hopefully, we can pass a 
cloture motion and close off debate in 30 hours, of course, with 
relevant amendments that are germane to be considered at that time.
  I also point out that, in the event there are amendments that are not 
ruled specifically germane to the bill, the Members should file those 
by 1 p.m. today.
  Mr. President, it is clear the intentions on this side of the aisle, 
and with the majority leader's help, that we do not intend to drag this 
debate out for weeks. We intend to dispose of the issue. It has been 
brought up on numerous occasions, dating back to 1985. As short a time 
ago as last year, a sense- of-the-Senate resolution basically 
encompassing most of the provisions of the Dole substitute was voted 
on, and the issue is clear and will not require extended debate in the 
view of the majority leader and those on this side of the aisle.
  Let me just point out, in the 99th Congress, a hearing was held in 
committee and the motion to proceed was filibustered. There are 53 
current Members of the Senate who were here then. It has been 
reintroduced every Congress since then. Additionally, in 1990, on July 
25, the Senate, the Budget Committee, favorably reported this bill, and 
finally during the 103d Congress, the Senate voted on a sense of the 
Senate regarding this issue.
  I also remind my colleagues that the bill is very short. It is five 
pages and one sentence long. It does not require a great deal of time 
and effort to digest it. It is, I think, rather simple, rather brief, 
especially compared with bills that we dispose of that are of much 
greater length on a routine basis around here.
  Obviously, Mr. President, there will be questions about this bill. 
There will be amendments, hopefully, that will help define this 
legislation. We do not view it as perfect. But the fundamentals 
associated with it are, in my view, important and unchangeable.
  Those are based around the following assumptions:
  First, that it would require a two-thirds majority in both Houses in 
order to override the President's veto. In my view, that is the 
fundamental principle behind the line-item veto and one that is not 
negotiable.
  Second, the separate enrollment aspect which allows the President to 
eliminate pork using his constitutional authority by a simple veto as 
each piece of legislation is divided up into separate bills. Now, there 
will be a lot of discussion about that, Mr. President. There was the 
last time, in 1985, when it was brought up.
  I point out that I went to see the enrolling clerk to be briefed on 
the mechanics of separate enrollment. We did a little experiment where 
we took the Commerce, Science, and Justice bill, which is the largest 
appropriations bill that was passed last year, just as a trial run, and 
we broke it up into some 500 pieces of separate enrolled legislation.
  I think to ask the President to sign a bill 500 times is a chore. I 
also believe that to allow tens of billions of dollars of wasteful and 
unwanted spending to be included, tucked into various appropriations 
bills, is a far more serious and grievous error.
  In another provision of the bill is the sunset provision, which would 
sunset this line-item veto authority after 5 years. I was not 
particularly happy about that provision, Mr. President, but there are 
those on both sides of the aisle that view this for what it is--a 
significant shift in authority from the legislative to the executive 
branch.
  There are concerns about abuse of this power. So they want an 
opportunity to review the results of the enactment of this legislation 
after a 5-year period.
  Frankly, I think that that is appropriate. That is another aspect of 
it.
  The final aspect of it, Mr. President, that is going to be debated 
and be significantly involved is the targeted tax benefits. The 
targeted tax benefits allows the President to eliminate specific 
targeted tax benefits. These are rightful shots for transition benefits 
that help but a few that are not applicable to the general population.
  The bill states clearly, and I quote from the legislation:

       (5) The term ``targeted tax benefit'' means any provision:
       (A) estimated by the Joint Committee on Taxation as losing 
     revenue within the period specified in the most recently 
     adopted concurrent resolution on the budget . . .
       (B) having the practical effect of providing more favorable 
     tax treatment to a particular taxpayer or limited group of 
     taxpayers when compared with other similarly situated 
     taxpayers.

  What that means, Mr. President, is that we are trying to avoid the 
so-called transition rules in which tax breaks are included for favored 
individuals or companies. We are trying to avoid things like what 
happened--and I quote from a New York Times article of May 20, 1994:

       A case in point is a provision that would allow some 
     homeowners who rent their homes for a brief period to 
     continue to escape taxes on their rental income. . . .
       Since 1976, income from homes and apartments rented for 15 
     days a year or less has been tax free. No one now in Congress 
     knows for sure, but the word in tax circles for years is this 
     was put into the law for the benefit of people who live in 
     and around Augusta, GA, and who rent their homes for 
     thousands of dollars each April for the Masters golf 
     tournament. At the time that the measure went into the Tax 
     Code, Herman E. Talmadge, Democrat of Georgia, was the 
     second-ranking Senator on the Finance Committee.
       This year, to raise money to offset various tax cuts, the 
     House decided to abolish the 15-day rule. But one narrow 
     exception was provided. The rent would still not be taxable 
     if the home was in an area where there was not enough hotel 
     or motel space to accommodate visitors at a particular event. 
     . . .
       The folks in Atlanta who are planning housing for the 1996 
     Olympics this summer are quite pleased with the outcome.

  Mr. President, we cannot do that anymore. There is going to be an 
argument to expand this provision to basically any tax provision in the 
tax law, in tax bills that are passed.
  I think that would be very dangerous. I believe that if we did that, 
then that would give the President of the United States the ability to 
veto things like home mortgage deductions, medical expenses deductions, 
child care tax credit, exclusion from income of employer-provided 
health care benefits, earned income tax credit, personal exemption, 
special exemption for the blind, special exemption for the elderly, et 
cetera, including charitable contribution deductions and State and 
local tax deductions.
  The bill is intentionally narrowly focused on targeted tax benefits 
to prevent the same kind of abuses that have become rampant in the 
appropriations process.
  I want to point out again and again and again, Mr. President, two-
thirds versus a simple majority is the crux of this bill.
  We asked for an opinion by the Congressional Research Service on the 
constitutionality of separate enrollment. There is a Congressional 
Research Service memorandum to the Honorable Dan Coats from Mr. Johnny 
H. Killian, who is a senior specialist in American consultant law. The 
subject is separate enrollment bill and the Constitution.
  It is a little long, but I think it is important enough to ask 
unanimous consent that it be printed in the Record, and I ask unanimous 
consent to print it in the Record.
  There being no objection, the memorandum was ordered to be printed in 
the Record, as follows:

                    [[Page S4214]] Congressional Research Service,


                                      The Library of Congress,

                                   Washington, DC, March 20, 1995.
     To: Hon. Dan Coats. Attention: Megan Gilley.
     From: American Law Division.
     Subject: Separate enrollment bill and the Constitution.
       This memorandum is in response to your request for a 
     constititional analysis of the draft substitute for the 
     various item veto-rescission proposals now pending in the 
     Senate. Briefly, your substitute would direct that the 
     appropriations committees, the authorization committees in 
     designated cases, and conference committees in designated 
     cases to include within their bills reported to the House of 
     Representatives or the Senate a level of detail on the 
     allocation of an item of appropriation (or other authority) 
     as is proposed by that House such as is set forth in the 
     committee report accompanying such bill. The substitute then 
     provides for separate enrollment of the designated bills, 
     once passed by both Houses in identical language, as is 
     detailed below.
       Discussion here is of particular problems relating to 
     passage of the separated bills, insofar as constitutional 
     issues are raised. We do not deal in this memorandum with the 
     larger issues of separate enrollment and the item veto.\1\ In 
     a considerable amount of published material since the 
     preparation of the two memoranda, cited in n. 1, separate 
     enrollment has not been dealt with, the controversy exciting 
     much of the writing being the dispute over the assertion that 
     the President already has the power of item veto if he would 
     but use it.\2\ Discussion of that subject we also pretermit. 
     It is to the constitutionality of the mechanics of the 
     proposal's implementation that we turn.
     Footnotes at end of article.
       Under the proposal, once an appropriations bill and any 
     authorization bill or resolution providing direct spending or 
     targeted tax benefits has passed both Houses of Congress in 
     the same form, the Secretary of the Senate (if the bill or 
     joint resolution originated in the Senate) or the Clerk of 
     the House of Representatives (if the bill or joint resolution 
     originated in the House of Representatives) would cause the 
     enrolling clerk of such House to enroll each item of 
     appropriation or covered authorization as a separate bill or 
     joint resolution. The separately enrolled measure is to be 
     enrolled without substantive revision, is to conform in style 
     and form to the applicable provisions of chapter 2 of title 1 
     of the United States Code, and is to bear the designation of 
     the measure of which it was previously a part plus such other 
     designation as to distinguish it from the other items 
     separately enrolled from the same bill. The critical 
     provision then is the following excerpted section.
       ``A measure enrolled pursuant to [this act] with respect to 
     an item shall be deemed to be a bill under clauses 2 and 3 of 
     section 7 of article I of the Constitution of the United 
     States and shall be signed by the Speaker of the House and 
     the President of the Senate, or their designees, and 
     presented to the President for approval or disapproval (and 
     otherwise treated for all purposes) in the manner provided 
     for bills and joint resolutions generally.''
       Constitutional difficulty for the separate-enrollment 
     proposal may be raised by the effectuation of this section. 
     At present, when both Houses have passed a bill in the same 
     form, it is presented by the last House acting on it to a 
     specially appointed clerk for enrolling. Bills and joint 
     resolutions are enrolled, and the enrolling clerk is to make 
     no change, however unimportant, in the text of a bill or 
     joint resolution, although the two Houses may, by concurrent 
     resolution, authorize the correction of errors when 
     enrollment is made. Following enrollment, the Speaker of the 
     House of Representatives and the President of the Senate sign 
     the bill, and it is then presented to the President.3
       How is it, then, it may be asked, that separate bills, 
     which in their subsequent form have not passed both Houses, 
     may be deemed bills that have passed both Houses and are then 
     properly presented to the President? It is not
      possible to make a definitive answer to this question. Sound 
     precedent is lacking. However, one may, on the basis of 
     existing precedents and general principles derived from 
     the rule-making powers of both Houses, develop two 
     possible resolutions to the quandary that will be suitable 
     in form for each House to make its own constitutional 
     determination.
       Each House of Congress is empowered to ``determine the 
     Rules of its Proceedings,'' Art. I, Sec. 5, cl. 2. The 
     authority is quite broad and leaves much to the discretion of 
     each House, but it is not limitless. United States v. Ballin, 
     144 U.S. 1 (1892). In that case, the House of Representatives 
     had adopted a rule to break the obstruction of some Members 
     who would deny the existence of a quorum to do business by, 
     though present, refusing to vote or otherwise indicating 
     their presence for purposes of determining a quorum. The rule 
     authorized the Speaker to have the names of nonvoting Members 
     recorded and the Members counted and announced in determining 
     the presence of a quorum. When the rule was challenged, by 
     those asserting that a bill was not passed with a sufficient 
     quorum present, the Court rejected the attack.
       ``The Constitution empowers each house to determine its 
     rules of proceedings. It may not by its rules ignore 
     constitutional constraints or violate fundamental rights, and 
     there should be a reasonable relation between the mode or 
     method of proceeding established by the rule and the result 
     which is sought to be attained. But within these limitations 
     all matters of method are open to the determination of the 
     house, and it is no impeachment of the rule to say that some 
     other way would be better, more accurate or even more just. 
     It is no objection to the validity of a rule that a different 
     one has been prescribed and in force for a length of time. 
     The power to make rules is not one which once exercised is 
     exhausted. It is a continuous power, always subject to be 
     exercised by the house, and within the limitations suggested, 
     absolute and beyond the challenge of any other body or 
     tribunal.'' Id., 5.
       Inasmuch as the Constitution required a quorum to do 
     business but prescribed no method of making the determination 
     of the existence of a quorum, ``it is therefore within the 
     competency of the house to prescribe any method which shall 
     be reasonably certain to ascertain the fact.'' Id., 6. The 
     Court then listed several methods the House might have used. 
     ``Any one of these methods, it must be conceded, is 
     reasonably certain of ascertaining the fact, and as there is 
     no constitutional method prescribed, and no constitutional 
     inhibition of any of those, and no violation of fundamental 
     rights in any, it follows that the house may adopt either or 
     all, or it may provide for a combination of any two of the 
     methods.'' Ibid. Ballin, thus, stands for the proposition 
     that the power of the Senate and the House of Representatives 
     is quite broad and that the Court will defer in large 
     measure; but by its phrasing, the Court clearly said that it 
     has power to review rules and their application, if there are 
     constitutional inhibitions in existence or if private rights 
     are alleged to be abridged.
       That judicial review of congressional rules may be an 
     expansive power is illustrated by United States v. Smith, 286 
     U.S. 6 (1932), an opinion by Justice Brandeis. Smith 
     concerned the meaning of a disputed rule of the Senate. The 
     Senate has confirmed an appointee to the FPC, the President 
     had been notified, the commission was signed, and Smith took 
     office. The Senate then requested that the nomination be 
     returned for reconsideration; upon the President's refusal, 
     the Senate nonetheless voted again and refused confirmation. 
     The Senate relied upon a role that it construed to authorize 
     such reconsideration.
       ``The question primarily at issue,'' the Court said, 
     ``relates to the construction of the applicable rules, not to 
     their constitutionality,'' Id., 33 (emphasis supplied). The 
     supposed Ballin limits were passed. ``As the construction to 
     be given to the rules affects persons other than members of 
     the Senate, the question presented is of necessity a judicial 
     one.'' Ibid. While the Court purported to give great 
     deference to the Senate's construction of its rules, it read 
     the text of the rules, the history and precedents, and the 
     mischief attendant on the Senate's construction to interpret 
     the rules as precluding reconsideration of the appointment. 
     Id., 35-49.\4\
       Other cases to be noticed are Christoffel v. United States, 
     338 U.S. 84 (1948), and Yellin v. United States, 374 U.S. 109 
     (1963), both relating to the practice of investigating 
     committees in following House rules, Christoffel involved the 
     question whether the fact that a quorum existed at the 
     beginning of a hearing created the presumption that a quorum 
     continued throughout, including when perjured statements were 
     made, as the house contended. The Court held that it must be 
     shown that a quorum was actually present when the perjury was 
     committed. In Yellin, the Court set aside a contempt-of-
     Congress conviction, because it found the committee had 
     failed to follow its rules, rejecting the argument that under 
     the congressional interpretation of the rules the rules were 
     followed.
       The Court of Appeals for the District of Columbia Circuit 
     has long emphasized that the rulemaking clause ``creates a 
     `specific constitutional base' which requires [the courts] to 
     `take special care to avoid intruding into a constitutionally 
     delineated prerogative of the Legislative Branch.'' Vander 
     Jagt v. O'Neill, 699 F.2d 1166, 1173 (D.C.Cir. 1982) (quoting 
     Harrington v. Bush, 553 F.2d 190, 214 (D.C. 1977)), cert. 
     den., 464 U.S. 823 (1983); Metzenbaum v. FERC, 675 F.2d 1282, 
     1287 (D.C.Cir. 1982). Nevertheless, the Vander Jagt court 
     dismissed the action, brought by minority-party Members of 
     Congress to contest the party distribution of committee 
     seats, only because it felt the Members had alternative 
     routes to political relief. In Gregg v. Barrett, 771 F.2d 539 
     (D.C.Cir. 1985), after dismissing Members as plaintiffs in a 
     suit challenging the accuracy of the Congressional Record, 
     the Court reached the merits of the suit on behalf of private 
     plaintiffs, although it decided against them. And, quite 
     recently, in Michel v. Anderson, 14 F.3d 623 (D.C.Cir. 1994), 
     the court reviewed on the
      merits (finding constitutional) the changes in House rules 
     permitting delegates from the territories and the District 
     of Columbia to vote in the Committee of the Whole, subject 
     to revoting in certain instances.\5\
       Thus far, we have established that the rule-making power of 
     each House is broad and is entitled to judicial deference, 
     although if there is a constitutional barrier to a particular 
     rule or impairment of a private right there may well be a 
     judicial remedy. We must, therefore, turn to the exercise of 
     the rule-making power of each House in the specific context 
     of the enactment of the separately-enrolled bills.
       [[Page S4215]] Beginning that consideration leads us to 
     Marshall Field & Co. v. Clark, 143 U.S. 649 (1892), decided 
     the same Term as Ballin. In Clark, certain parties challenged 
     the validity of a tariff law, authenticated by the Speaker of 
     the House and the President of the Senate as having passed 
     Congress, signed into law by the President, and furnished to 
     the Public Printer by the Secretary of State as a correct 
     copy of the law. It was contended that the bill had not been 
     passed because congressional documents showed that a section 
     of the bill, as it finally passed, was not in the bill 
     authenticated by the signatures of the two officers and 
     approved by the President. The holding of the Court was that 
     the judiciary may not look behind the authenticating 
     signatures of the Speaker of the House and the President of 
     the Senate. Its reasoning requires lengthy quoting.
       ``The argument . . . is, that a bill, signed by the Speaker 
     of the House of Representatives and by the President of the 
     Senate, presented to and approved by the President of the 
     United States, and delivered by the letter to the Secretary 
     of State, as an act passed by Congress, does not become a law 
     of the United States if it had not in fact been passed by 
     Congress. In view of the express requirements of the 
     Constitution the correctness of this general principle cannot 
     be doubted. There is no authority in the presiding officers 
     of the House of Representatives and the Senate to attest by 
     their signatures, nor in the President to approve, nor in the 
     Secretary of State to receive and cause to be published, as a 
     legislative act, any bill not passed by Congress.
       ``But this concession of the correctness of the general 
     principle for which the appellants contend does not determine 
     the precise question before the court; for it
      remains to inquire as to the nature of the evidence upon 
     which a court may act when the issue is made as to whether 
     a bill, originating in the House of Representatives or the 
     Senate, and asserted to have become a law, was or was not 
     passed by Congress. Id., 669-670.''
       The challengers asserted that courts should recur to the 
     journal required to be kept by the Constitution. Art I, 
     Sec. 5, cl. 3. But the Court denied that the journal was the 
     best, if not conclusive, evidence upon the issue of whether a 
     bill, in the same form, was, in fact, passed by the two 
     Houses of Congress. The purpose of the requirement was not 
     related to this function, and there was no express 
     requirement in the Constitution relating to this question and 
     others pertaining to bills and joint resolution for inclusion 
     in the journal. These and other matters were left to the 
     discretion of Congress. To what should the courts look?
       ``The signing by the Speaker of the House of 
     Representatives and by the president of the Senate, in open 
     session, of an enrolled bill, is an official attestation by 
     the two houses of such bill as one that has passed Congress. 
     It is a declaration by the two houses, through their 
     presiding officers, to the president, that a bill, thus 
     attested, has received, in due form, the sanction of the 
     legislative branch of the government, and that it is 
     delivered to him in obedience to the constitutional 
     requirement that all bills which pass Congress shall be 
     presented to him. And when a bill, thus attested, receives 
     his approval, and is deposited in the public archives, its 
     authentication as a bill that has passed Congress should be 
     deemed complete and unimpeachable. As the President has no 
     authority to approve a bill not passed by Congress, an 
     enrolled act in the custody of the Secretary of State, and 
     having the official attestations of the Speaker of the House 
     of Representatives, of the President of the Senate, and of 
     the President of the United States, carries, on its face, a 
     solemn assurance by the legislative and executive departments 
     of the government, charged, respectively, with the duty of 
     enacting and executing the laws, that it was passed by 
     Congress. The respect due to coequal and independent 
     departments requires the judicial department to act upon that 
     assurance, and to accept, as having passed Congress, all 
     bills authenticated in the manner stated; leaving the courts 
     to determine, when the question properly arises, whether the 
     act, so authenticated, is in conformity with the 
     Constitution.'' Id., 672.
       Upon the correct interpretation of Clark and the 
     convergence of Clark and Ballin, we suggest, may be found the 
     solution to the issue of the validity of the passage of a 
     series of bills after the passage of the one bill from which 
     the many bills are extracted. The difficulty is that it is 
     not clear what the correct
      interpretation of Clark is; below, we set out three 
     possibilities and evaluate them.
       First, Clark may be read as simply holding that the ``best 
     evidence'' of whether a bill had passed both Houses may be 
     found in the signatures of the Speaker of the House and the 
     President of the Senate. The Court would not allow 
     challengers to use the Journal or other legislative evidence 
     to counter the attesting signatures. In a very recent 
     decision, the Court, in part, casually adopted this reading 
     of Clark, but it did so in a footnote that also ambiguously 
     appears to go beyond that simple explanation. United States 
     v. Munoz-Flores, 495 U.S. 385, 391 n. 4 (1990).\6\ Inasmuch 
     as that footnote is relevant here and will be relevant in a 
     subsequent portion of this memorandum, we here quote the 
     entire pertinent parts of the footnote.
       ``[Clark] concerned ``the nature of the evidence'' the 
     Court would consider in determining whether a bill had 
     actually passed Congress. Id. [143 U.S.], at 670. Appellants 
     had argued that the constitutional Clause providing that 
     ``[e]ach House shall keep a Journal of its Proceedings'' 
     implied that whether a bill had passed must be determined by 
     an examination of the journals.. . . The Court rejected that 
     interpretation of the Journal Clause, holding that the 
     Constitution left it to Congress to determine how a bill is 
     to be authenticated as having passed. Id., at 670-671. In the 
     absence of any constitutional requirement binding Congress, 
     we stated that ``[t]he respect due to coequal and independent 
     departments'' demands that the courts accept as passed all 
     bills authenticated in the manner provided by Congress. Id., 
     at 672. Where, as here, a constitutional provision is 
     implicated, Field does not apply.''
       Should Clark be taken to be simply about what is the ``best 
     evidence'' that a bill passed both Houses, then in 
     practically all instances the attesting signatures will be 
     decisive. However, respecting the proposals for a separate 
     enrollment following adoption of a single bill and its 
     division into many bills, with these multiple bills being 
     ``deemed'' to have passed both Houses, it is possible that 
     the courts would adopt a different view. Because both Houses 
     have adopted rules that expressly provide for a separate 
     enrollment, deeming, and the attestation signatures, the 
     courts could exercise judicial review to consider on the 
     merits the rules and their comportment with the Constitution, 
     viewing the
      signatures of the two officers as essentially irrelevant in 
     the context of this particular situation.
       Adoption of this reading of Clark, with an exception, would 
     not void the rules thus adopted. It would simply mean that 
     the courts would review the rules on the merits.
       Second, Clark may be read much more broadly than merely as 
     a best evidence rule. The paragraph quoted in full above from 
     Clark does not read as if it is a decision placing a burden 
     of persuasion on some person or at some point. Rather, the 
     passage has the flavor of a ``political question'' approach 
     to a constitutional issue. ``The respect due to coequal and 
     independent departments requires the judicial department to 
     act upon that assurance, and to accept, as having passed 
     Congress, all bills authenticated in the manner stated. . . 
     .'' Clark, supra, 143 U.S., 672, See baker v. Carr, 369 U.S. 
     186, 217 (1962) (Identifying the features that identify 
     political questions, including ``the impossibility of a 
     court's undertaking independent resolution [of an issue] 
     without expressing lack of respect due coordinate branches of 
     government''). See also INS v. Chadha, 462 U.S. 919, 941 
     (1983) (quoting Baker); Nixon v. United States, 113 S.Ct. 
     732, 735 (1993) (quoting two of the other standards of 
     Baker). Indeed, in Baker, itself, the Court viewed Clark as a 
     political question case.\7\ The political-question doctrine 
     is ``essentially a function of the separation of powers.'' 
     Baker v. Carr, supra, 217.
       Baker, of course, is qualified in a number of respects. 
     ``Our system of government requires that federal courts on 
     occasion interpret the Constitution in a manner at variance 
     with the construction given the document by another branch. 
     The alleged conflict that such an adjudication may cause 
     cannot justify the courts' avoiding their constitutional 
     responsibility.'' Powell v. McCormack, 395 U.S. 486, 549 
     (1969). In that case, the action of the House of 
     Representatives in excluding a Member-elect from office was 
     reviewed and overturned, because the Court determined that 
     there was a constitutional provision governing resolution of 
     the matter, a clause establishing exclusive qualifications 
     that the House had violated. See also United States v. Munoz-
     Flores supra, 495 U.S., 389-396 (refusing to find a political 
     question bar to judicial resolution to whether a revenue-
     raising measure did not originate in the House of 
     Representatives, as required by the origination clause).
       Nonetheless, the political-question doctrine remains alive 
     if restrained in the courts. For example, in Nixon v. United 
     States, supra, 113 S. Ct., 735-740, the Court refused to 
     review, using the political-question doctrine, a claim by an 
     impeached federal judge that the Senate had used invalid 
     procedures in trying him. Under the impeachment clause, Art. 
     I, Sec. 3, cl. 6, ``[t]he Senate shall have the sole Power to 
     try all Impeachments.'' Under a rule of the Senate, a special 
     committee of Senators is appointed to ``receive and report 
     evidence.'' After hearings, the committee submits a 
     transcript and summary of its proceedings to the Full Senate, 
     which then conducts a trial. Nixon argued that the special-
     committee procedure denied him a trial before the full 
     Senate. Applying two standards from the Baker list, the Court 
     found that the word ``sole'' in the clause was a textual 
     commitment of authority to the Senate to act alone without 
     court review; further, the Court found the word ``try'' in 
     the clause was sufficiently indefinite to cabin the Senate's 
     discretion, thus using the lack of judicially-manageable 
     standards factor of Baker. See also id., 738-739 (referring 
     to other Baker factors).
       Superficially, the application of the political-question 
     doctrine in this context is contrary to INS v. Chadha, supra, 
     462 U.S., 940-943. That decision denied that a challenge to 
     the legislative veto presented a political question, and on 
     the merits the Court went on to hold that for a congressional 
     measure to have legal effect outside Congress it must be 
     acted on bicamerally and when passed in identical terms by 
     both Houses must be presented to the President. The Court 
     provided a truncated version of the quotation from Clark, 
     which we quoted above, to reject the argument that the issue 
     presented a politcal 
     [[Page S4216]]  question. It did not consider the issue of 
     the effect of attesting signatures by the two congressional 
     officers, and it could not have done so because only bills 
     and joint resolutions are enrolled, signed, and presented to 
     the President. The simple resolution before the Court in 
     Chadha was not enrolled, signed, and presented to the 
     President, and neither was the concurrent resolution in 
     question in two-House legislative vetoes.\8\
       Chadha, thus, was a case in which by statute congressional 
     actions having legal impact outside Congress were provided 
     for in which, in some instances two-House actions were 
     authorized, in others one-House actions, and none of the 
     resolutions or concurrent resolutions was presented to the 
     President. Chadha is, therefore, of no precedential value in 
     this context, although it must be considered below.
       If, under the political-question doctrine, courts will not 
     look behind the attestation signatures of the Speaker and the 
     President of the Senate, then Congress may provide for 
     ``deeming'' the passage of the separated bills without fear 
     of judicial review. This situation does not mean that 
     Congress is free of constitutional constraints. Members of 
     Congress take an oath, identical to the one taken by judges, 
     to support the Constitution, Art. VI, cl. 3, and Members of
      Congress must determine for themselves that a measure upon 
     which they are voting is constitutional, United States v. 
     Munoz-Flores, supra, 495 U.S., 390-391, just as the 
     President must before he signs a bill. But it does mean 
     that Congress' constitutional determination is not 
     susceptible to judicial invalidation.
       When Congress studies the constitutionality of a proposal, 
     it performs essentially the same analysis as a court does, 
     and we now turn to the issue of the merits.
       Third, assuming the inapplicability of the political-
     question doctrine, when either a court or Congress evaluates 
     the validity of the deeming mechanism, what should the 
     decision be?
       Beyond question is the proposition that a measure must be 
     passed in the same form by both Houses before it is presented 
     to the President for his action; no bill not meeting this 
     qualification can become law. Clark, supra, 143 U.S. 669-670, 
     INS v. Chadha, supra, 462 U.S., 943, 944-946, 948-951, 956-
     959. And that is precisely the question presented by this 
     proposal. A bill has passed both Houses in identical terms, 
     and it is then subdivided into a series of bills excerpted 
     out of the larger bill by an enrolling clerk acting pursuant 
     to the rules of the two bodies. If the separately-enrolled 
     bills are not again presented to both Houses for a vote, 
     perhaps an en bloc consideration, has the bicameralism 
     requirement been met.
       That each House has the power to make the rules for its own 
     proceedings is a substantial authority, as Ballin certainly 
     demonstrates. There, the Constitution required a quorum to do 
     business, but the Constitution was silent with respect to how 
     a quorum was to be determined. Members present declined to 
     answer to a call of the roll to permit a determination that a 
     quorum was present, and the House of Representatives simply 
     provided that they would nonetheless be counted.
       When the House of Representatives or the Senate determines 
     its rules of proceeding, the Ballin Court instructed us, 
     ``[i]t may not by its rules ignore constitutional restraints 
     or violate fundamental rights, and there should be a 
     reasonable relation between the mode or method of proceeding 
     established by the rule and the result which is sought to be 
     attained.'' Ballin, supra, 144 U.S., 5. Within this capacious 
     concept, what provision of the Constitution would the 
     ``deeming'' provision violate? We certainly cannot point to 
     any fundamental right that is abridged. The constitutional 
     constraint that is applicable is the first section of Article 
     I, which sets a bicameral requirement for the exercise of 
     lawmaking. But Congress in the proposal does not disregard 
     the bicameralism mandate. A bill in identical form has passed 
     both Houses. Then, a functionary, the enrolling clerk, 
     follows instructions embodied in the rules and separates out 
     of this bill a series of sections identical to the sections 
     contained in the larger bill and enrolls these sections into 
     separate bills; these bills are signed by the Speaker of the 
     House and the President of the Senate, and these bills are 
     then presented to the President for his signatures or his 
     vetoes.
       One can readily see that the question is much more narrow 
     than the mere issue whether Congress can pass a law that has 
     not cleared both Houses in identical versions. A bill has 
     passed both Houses in an identical version. The separately 
     enrolled bills, taken together, are identical to that initial 
     bill. If Congress should conclude that this two-step process 
     comports with the constitutional requirement of bicameral 
     passage of a legislative measure, in what way has a 
     constitutional restraint been breached?
       If the ``deeming'' procedure is invalid, the validity of 
     the deeming feature of Rule XLIX of the House of 
     Representatives is highly suspect. Under that Rule, adoption 
     by the House of Representatives of the conference report on 
     the concurrent resolution on the budget, or on the concurrent 
     resolution itself if there is no conference report, is deemed 
     to be a vote in favor of a joint resolution setting a 
     statutory limit on the public debt, different than the limit 
     then in effect, and the joint resolution is engrossed and 
     transmitted to the Senate. There is no precise equivalency 
     between the Rule and the proposal; yet, there is sufficient 
     identify to present the same constitutional question.
       In some respects, as we briefly touch on below, the 
     appropriations committees, and perhaps some legislative 
     committees, may have to alter how they report bills that are 
     to be subject to this process, inasmuch as to continue the 
     present mode of bill drafting would require the enrolling 
     clerk[s] to exercise too much judgment, too much 
     discretion,in breaking down the bills, with the result that 
     to make sense of some sections designated as separate bills, 
     these bills would not be identical to the bill previously 
     passed. This reservation is meant only to suggest that some 
     separate enrollments might present an as-applied 
     constitutional challenge. We are here concerned with the 
     facial constitutional questions.
       Issues of validity could also be influenced in 
     determination by two other factors. That is, first, Congress 
     is not seeking to aggrandize itself or to infringe on the 
     powers of another branch. Instead, the procedure would be, in 
     effect, and act of self-abnegation, a giving-up of some 
     degree of congressional power and influence in order to 
     enlarge the power and influence of the President and to lodge 
     in him the burden of deficit reduction. Second, to forestall 
     the argument that Congress might have invalidly given up too 
     much power, might have over-balanced presidential power, it 
     must be observed that these rules are entirely an internal 
     matter, subject to alternation by simple resolution at any 
     time in either House. There is no irrevocable conveying away.
       Finally, as we suggested above, it may be necessary for the 
     appropriations committees to revamp the mode of reporting 
     bills. In addition to the necessity to achieve identify 
     between the original bill and the separated bills, to leave 
     to the enrolling clerk[s] too much discretion might violate 
     the principle, found in some cases, that Congress may not 
     delegate its legislative power to its Members or its officers 
     and employees. The legislative power is a collective one to 
     be exercised by Congress itself and not by delegates. 
     Metroplitan Washington Airports Auth. v. Citizens for the 
     Abagtement of Aircraft Noise, 501 U.S. 252, 271-277 (1991). 
     The details of this revamping remain open for consideration.
       In conclusion, we have argued that the deeming procedure 
     may present a political question unsuited for judicial review 
     and thus that Congress would not be subject to judicial 
     review. We have considered, on the other hand, that the 
     courts may find they are not precluded from exercising 
     authority to review this proposal. If the proposal is 
     reviewed by the courts, and even if it is not, we have 
     presented an argument leading to sustaining the deeming 
     procedure as not in violation of the principle that a bill, 
     in order to become law, must be passed in identical versions 
     by the House of Representatives and the Senate. Because of 
     the lack of available precedent, we cannot argue that any of 
     the three versions of the argument is indisputably correct; 
     indeed, there are questions about all three. In the end, 
     Congress must exercise a constitutional judgment when 
     deciding on passage of the proposal.

                                            Johnny H. Killian,

                                                Senior Specialist,
                                      American Constitutional Law.


                               footnotes
     \1\In an older memorandum Killian, Constitutionality of 
     Empowering Item Veto by Legislation, CRS, Jan 4, 1984, and as 
     shorter follow-up memorandum, Killian, Constitutional 
     Questions Raised by S. 43 in Establishing Item Veto, Jan, 15, 
     1985, reprinted in Line Item Veto, Hearings before the Senate 
     Committee on Rules and Administration, 95th Cong., 1st Sess. 
     (1985), 10-20, we discussed at some length the question of 
     the line-item veto and whether it could be conferred on the 
     President by statute, concluding that only through a 
     separate-enrollment device would such a conferral be valid 
     constitutionally. In those memoranda, we raised and discussed 
     but were unable to decide the questions now being treated. 
     The longer memorandum also appears, in essentially the same 
     form, in Item Veto: State Experience and Its Application to 
     the Federal Situation, House Committee on Rules, 99th Cong., 
     2d Sess. (Comm. Pr. 1986), 164.
     \2\E.g., Rappaport, The President's Veto and the 
     Constitution, 87 Nw., U. L. Rev. 735 (1983), which also cites 
     a considerable number of articles on both sides of the issue.
     \3\Constitution, Jefferson's Manual and Rules of the House of 
     Representatives, H. Doc. No. 102-105, 102d Cong., 2d sess. 
     (1993), Sec. Sec. 573-574; 7 L. Deschler's Precedents of the 
     United States House of Representatives, H. Doc. No. 94-661, 
     94th Cong., 2d Sess. (1977), ch. 24, Sec. 14.
     4Compare Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 276 
     (1919), in which, although it found justiciable an issue 
     regarding a congressional rule, the Court deferred much more 
     to the legislative construction than it did in Smith.
     5See United States ex rel. Joseph v. Cannon, 642 F.2d 
     1373 (D.C.Cir. 1981) (dismissing suit under False Claims Act 
     based on use of senatorial employees in political campaigns 
     on the ground that Senate had developed no standards by which 
     court could determine whether Act had been violated, 
     reserving question whether it could enforce Senate rules even 
     if consensus had been reached), cert. den. 455 U.S. 999 
     (1982); Ray v. Proxmire, 581 F.2d 998, 1001 (D.C.Cir.) 
     (finding a Senate rule created no private cause of action and 
     reserving whether a Senate rule ever could), cert. den 439 
     U.S. 933 (1978).
     6The Court was responding to a concurrence by Justice 
     Scalia that adopted a broad reading of Clark, in which he 
     would have declined to reach the merits of an origination 
     clause challenge to a law and would have instead accepted the 
     attesting signatures of the Speaker of the House and the 
     President of the Senate as showing that the bill, bearing a 
     House of Representatives designation, had in fact originated 
     in the House. Id., 408. The origination clause is Art. I, 
     Sec. 7, cl. 1.
     7``In Coleman v. Miller, [307 U.S. 433 (1939)], this 
     Court held that the questions of how long a proposed 
     amendment to the Federal Constitution remained open to 
     ratification, and what effect a prior rejection had on a 
     subsequent ratification, were committed to congressional 
     resolution and involved criteria of decision that necessarily 
     escaped the judicial 
     [[Page S4217]]  grasp. Similar considerations apply to the 
     enacting process: ``The respect due to coequal and 
     independent departments,'' and the need for finality and 
     certainty about the status of a statute contribute to 
     judicial reluctance to inquire whether, as passed, it 
     complied with all requisite formalities. [Citing Clark, 
     supra, 143 U.S., 672, 676-677; and also Leser v. Garnett, 258 
     U.S. 130, 137 [1922] (applying Clark to refuse to look behind 
     certifications by two States that they had ratified a 
     constitutional amendment; official notice ``is conclusive 
     upon the courts)].
     8See Consumers Union v. FTC, 691 U.S. 575 (D.C.Cir. 
     1982), affd. sub nom. Process Gas Consumers Group v. Consumer 
     Energy Council, 463 U.S. 1216 (1983).

  Mr. McCAIN. Mr. President, I will read the concluding paragraph and 
urge my colleagues to read the entire opinion. Mr. Killian obviously is 
a well-known and well-respected specialist on American constitutional 
law. He states in the final paragraph:

       In conclusion, we have argued that the deeming procedure 
     may present a political question unsuited for judicial review 
     and thus that Congress would not be subject to judicial 
     review. We have considered, on the other hand, that the 
     courts may find they are not precluded from exercising 
     authority to review this proposal. If the proposal is 
     reviewed by the courts, and even if it is not, we have 
     presented an argument leading to sustaining the deeming 
     procedure as not in violation of the principle that a bill, 
     in order to become law, must be passed in identical versions 
     by the House of Representatives and the Senate. Because of 
     the lack of available precedent, we cannot argue that any of 
     the three versions of the argument is indisputably correct; 
     indeed, there are questions about all three. In the end, 
     Congress must exercise a constitutional judgment when 
     deciding on passage of the proposal.

  I want to repeat, again:

       In the end, Congress must exercise a constitutional 
     judgment when deciding on passage of the proposal.

  There will be views expressed by my colleagues that, indeed, there is 
a question about constitutionality, and they may argue that that is a 
reason for opposing this legislation. I will respect their views. I, 
however, will not agree.
  Mr. President, in this morning's Washington Times, there is an 
article by Mr. Stephen Moore, who is the director of fiscal policy 
studies at the Cato Institute. As we all know, the Cato Institute is a 
well-regarded organization and one that is dedicated to many causes, 
including fiscal responsibility.
  Mr. President, I will read some parts of this article because I think 
it is important, and I ask unanimous consent that this article be 
printed in the Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Times, Mar. 21, 1995]

                     Sharpening the Budget Scissors

                           (By Stephen Moore)

       This week the Senate begins debate on the line-item veto 
     for the president, Taxpayers have been demanding this act of 
     fiscal sanity for at least 15 years.
       Now, there they go again, Just when it appeared that the 
     line-item veto would become a reality, several moderate 
     Senate Republicans are lining up with liberal Democrats to 
     submarine the effort by insisting upon a line-item veto with 
     a dull blade. Yet the experience of the states--where 43 
     governors have line-item veto authority--indicates that 
     weakened versions of this budget cutting instrument are 
     almost the equivalent of no-item veto at all. The GOP needs 
     to band together to block this fraudulent alternative and 
     rally behind the toughest measure possible--the Coats-McCain 
     bill.
       Once during the last year of the Reagan administration I 
     was asked to testify on the line-item veto before the House 
     Judiciary Committee. It was a miserable experience. One 
     Democrat after another savaged the idea as nothing more than 
     a blatant partisan power-grab. There message was 
     unmistakable: Reaganites are trying to pull an end run around 
     the Democrat-controlled Congress because they can't win at 
     the polls.
       In hindsight, it is understandable why House Democrats 
     thought that way. Republicans seemed to have a permanent 
     electoral padlock on the White House, while the notion of a 
     GOP Congress seemed as improbable as the Speaker of the House 
     and the chairman of the Ways and Means Committee being 
     ejected from office in the same year. How ironic that the 
     first president to snip spending with the new veto scissors 
     may well be Democrat Bill Clinton, and he will be empowered 
     to do so by a Republican-controlled Congress. So much for the 
     partisan power-grab argument.
       Now opponents have shifted gears. Today, we hear two new 
     objections to the line-item veto--both of which are also 
     wrong. The first argument is that the line-item veto would 
     involve a huge and unprecedented power shift in the direction 
     of the White House. Powerful Senate appropriators Robert Byrd 
     and Mark Hatfield are endlessly preaching that message.
       But history disproves it. The line-item veto is only a 
     partial restoration of the rightful budgetary powers of the 
     president, which were stripped from the executive branch by 
     the 1974 Budget Act. That act took away the president's right 
     to impound funds--a power that was exercised routinely by 
     every president from Thomas Jefferson through Richard Nixon. 
     Jefferson first employed the power to refuse to spend 
     appropriated funds in 1801 when he impounded $50,000 for Navy 
     gunboats.
       The Founders believed that the president, as the head of 
     the executive branch and therefore responsible for executing 
     the laws and spending taxpayer funds judiciously, had 
     unilateral authority not to spend money appropriated by 
     Congress if that spending was unnecessary.
       Impoundment was an extremely powerful White House authority 
     that was exercised often for nearly 200 years. Presidents 
     Roosevelt, Kennedy, Johnson and Nixon used the impoundment 
     power rountinely--and in some years used it to cut federal 
     appropriations by more than 5 percent. In one year, Richard 
     Nixon impounded more than 7 percent of domestic 
     appropriations.
       In 1974 Congress stripped the president of his lawful 
     impoundment powers and instead gave him two very weak 
     substitutes: the deferral and rescission authorities. But 
     rescissions require Congress affirmatively to approve a 
     presidential request not to spend money. Most rescissions are 
     simply ignored by Congress and never even voted on. Thus 
     through congressional in action, they are killed. Twenty-six 
     billion dollars of Ronald Reagan's rescissions were slain in 
     that fashion.
       The second criticism of the line-item veto is that it won't 
     affect the level of spending or the debt. To test that 
     supposition, the Cato Institute recently surveyed 118 
     governors and former governors about what budget process 
     measures Washington should adopt to help balance the budget. 
     Sixty-seven of the respondents were Republicans, 50 were 
     Democrats, and one was an independent. Since 43 states have 
     the line-item veto, governors are in the best position to 
     assess its value. Some governors, such as Tommy Thompson of 
     Wisconsin, have relied heavily on the line-item veto to cut 
     expenditures and balance the budget.
       The major findings of our survey were as follows:
       Sixty-nine percent of the governors described the line-item 
     veto as ``a very useful tool'' in helping balance the state 
     budget.
       Ninety-two percent of the governors believe that ``a line-
     item veto for the president would help restrain federal 
     spending.''
       Eighty-eight percent of the Democratic governors believed 
     the line-item veto would be useful.
       Then we asked the governors why they supported or opposed 
     the line-item veto. Here are some of the more interesting 
     responses we received:
       Hugh L. Carey, the former Democratic governor of New York, 
     said, ``I support the line-item veto because it is an 
     executive branch function to identify budget excesses and 
     wasteful items. It is an antidote for pork.''
       Massachusetts governor William Weld wrote, ``Legislators 
     love to be loved, so they love to spend money. Line-item veto 
     is essential to enable the executive to hold down spending.''
       Ronald Reagan said, ``When I was governor of California, 
     the governor had the line-item veto, and so you could veto 
     parts of the spending in a bill. The president can't do that. 
     I think, frankly--of course, I'm prejudiced--government would 
     be far better off if the president had the right of line-item 
     veto.''
       Mike O'Callaghan, the former governor of Nevada, and a 
     Democrat, was the most concise: ``The line-item veto is a 
     tremendous tool for saving money.''
       Critics are right when they complain that the line-item 
     veto won't balance the budget. But a useful way to determine 
     potential budget savings from the line-item veto is to look 
     at rescissions that have been ignored by Congress in recent 
     years. If those had been approved, savings would have been $5 
     billion to $10 billion a year in less shark research, lower 
     sugar subsidies, and fewer grants for obscene art.
       And for those who still doubt the virtue of the line-item 
     veto, perhaps the most compelling case for this surgical tool 
     is made by Messrs. Byrd and Hatfield. Their violent 
     opposition should provoke a deep appreciation for the value 
     of these new fiscal scissors.

  Mr. McCAIN. Mr. President, Mr. Moore's article begins:

       This week the Senate begins debate on the line-item veto 
     for the President. Taxpayers have been demanding this act of 
     fiscal sanity for at least 15 years.
       Now, there they go again. Just when it appeared that the 
     line-item veto would become a reality, several moderate 
     Senate Republicans are lining up with liberal Democrats to 
     submarine the effort by insisting upon a line-item veto with 
     a dull blade.

  Mr. Moore wrote this article before we, all 54 Republicans, agreed to 
vote for cloture to cut off debate on this issue.

       Yet the experience of the States--where 43 Governors have 
     line-item veto authority--indicates that weakened versions of 
     this budget-cutting instrument are almost the equivalent of 
     no-item veto at all. The GOP needs to band together to block 
     this fraudulent alternative and rally behind the toughest 
     measure possible--the Coats-McCain bill.

  He goes on to say:


[[Page S4218]]

       Now opponents have shifted gears. Today, we hear two new 
     objections to the line-item veto--both of which are also 
     wrong. The first argument is that the line-item veto would 
     involve a huge and unprecedented power shift in the direction 
     of the White House. Powerful Senate appropriators . . . are 
     endlessly preaching that message.
       But history disproves it. The line-item veto is only a 
     partial restoration of the rightful budgetary powers of the 
     President, which were stripped from the executive branch by 
     the 1974 Budget Act. That act took away the President's right 
     to impound funds--a power that was exercised routinely by 
     every President from Thomas Jefferson through Richard Nixon. 
     Jefferson first employed the power to refuse to spend 
     appropriated funds in 1801 when he impounded $50,000 for Navy 
     gunboats.

  Mr. President, time after time on this floor, and I am sure during 
the course of this debate I will point out again, it is not a 
coincidence that up until 1974, revenues and expenditures on the part 
of the Federal Government basically were in sync. There were times of 
war when we ran up huge deficits, but after those emergencies subsided, 
we again brought the budget into balance. It was in 1974 when the two 
began to diverge to an incredible degree.
  I want to point out again, and it is not coincidental, in 1974, the 
entire annual deficit for that year was $6 billion. The entire national 
debt was $483 billion. Now in 1994, the annual deficit is $203 billion, 
about half of what the overall accumulated debt was, and the estimate 
of the total debt between 1974 and 1996 has risen from $483 billion to 
$5.299 trillion.
  There is a direct correlation between the passage of the Budget 
Impoundment Act of 1974 and the exploding deficit and annual deficit 
and debt.

       The Founders believed that the President, as the head of 
     the executive branch and therefore responsible for executing 
     laws and spending taxpayer funds judiciously, had unilateral 
     authority not to spend money appropriated by Congress if that 
     spending was unnecessary.
       Impoundment was an extremely powerful White House authority 
     that was exercised often for nearly 200 years. Presidents 
     Roosevelt, Kennedy, Johnson, and Nixon used the impoundment 
     power routinely--and in some cases used it to cut Federal 
     appropriations by more than 5 percent. In 1 year, Richard 
     Nixon impounded more than 7 percent of domestic 
     appropriations.
       In 1974, Congress stripped the President of his lawful 
     impoundment powers and instead gave him two very weak 
     substitutes: the deferral and rescission authorities. But 
     rescissions require Congress affirmatively to approve a 
     Presidential request not to spend money. Most rescissions are 
     simply ignored by Congress and never even voted on. Thus 
     through congressional inaction, they are killed. Twenty-six 
     billion dollars of Ronald Reagan's rescissions were slain in 
     that fashion.
       The second criticism of the line-item veto is that it won't 
     affect the level of spending or the debt. To test that 
     supposition, the Cato Institute recently surveyed 118 
     Governors and former Governors about what budget process 
     measures Washington should adopt to help balance the budget: 
     27 of the respondents were Republicans, 50 were Democrats, 
     and 1 was an Independent. Since 43 States have the line-item 
     veto, Governors are in the best position to assess its value. 
     Some Governors, such as Tommy Thompson of Wisconsin, have 
     relied heavily on the line-item veto to cut expenditures and 
     balance the budget.
       The major findings of our survey were as follows:
       Sixty-nine percent of the Governors described the line-item 
     veto as ``a very useful tool'' in helping balance the State 
     budget.
       Ninety-two percent of the Governors believed that ``a line-
     item veto for the President would help restrain Federal 
     spending.''
       Eighty-eight percent of the Democratic Governors believed 
     the line-item veto would be useful.
       Then we asked the Governors why they supported or opposed 
     the line-item veto.

  And some of the responses were very interesting.
  I will not go through all of those answers, Mr. President except to 
say the article concludes by saying:

       Critics are right when they complain that the line-item 
     veto won't balance the budget. But a useful way to determine 
     potential budget savings from the line-item veto is to look 
     at rescissions that have been ignored by Congress in recent 
     years. If those had been approved, savings would have been $5 
     billion to $10 billion a year in less shark research, lower 
     sugar subsidies, and fewer grants for obscene art.
       And for those who still doubt the virtue of the line-item 
     veto, perhaps the most compelling case for this surgical tool 
     is made by [others]. Their violent opposition should provoke 
     a deep appreciation of the value of these new fiscal 
     scissors.

   Mr. President, I wish to address for a moment the issue of the 
constitutionality of several issues that are raised here, and there are 
a number of them. I will save some of them, but I wish to talk about 
the aspect of the constitutional objection, the objection that it is 
unconstitutional because it would change the Constitution, specifically 
the veto power, by act of Congress. The response is as follows:

       Article I, Section 5 of the Constitution permits this 
     procedure. Nothing in article I, section 7 is violated by 
     this procedure. Under this proposal, all bills must be 
     presented to the President. He may sign or veto all bills. He 
     must return vetoed bills with his objections. Congress may 
     override any veto with a two-thirds majority of each House.
       Under article I, section 5, Congress possesses this power 
     to define a bill. Congress certainly believes that it 
     possesses this power since it and it alone has been doing so 
     since the first bill was presented to the first President in 
     the first Congress. If this construction of article I, 
     section 5 is correct, the definition of a bill is a political 
     question and not justiciable. ``Prominent on the surface of 
     any case held to involve a political question is found a 
     textually demonstrable Constitutional commitment of the issue 
     to a coordinated political depart.'' Baker v. Carr, 369 U.S. 
     186 (1962). ``A textually demonstrable constitutional 
     commitment'' of the issue to the legislature is found in 
     ``Each house may determine the Rules of its Proceedings.'' If 
     Congress may define as a bill a package of distinct programs 
     and unrelated items, it can define distinct programs and 
     unrelated items to be separate bills. Either Congress has the 
     right to define a bill or it does not. Either this proposal 
     is constitutional or the recent practice of Congress in 
     forming omnibus bills containing unrelated programs and 
     nongermane items is constitutionally challengeable. If the 
     latter, the President would be well advised to bring such 
     suit against the next omnibus bill.

  Mr. President, there have been about 3 days of debate now. We are 
going into our 4th day. I have talked a great deal. The other side of 
the aisle has not chosen to talk too much about it. I urge my 
colleagues to take note of the fact that we are now open for 
amendments. If there are amendments, I urge my colleagues on both sides 
of the aisle to bring forth those amendments so they can be debated and 
voted on. And as I said, again, it is the intention on this side of the 
aisle expressed by the majority leader to dispose of this issue this 
week by means of cloture votes. At the same time, as to any substantive 
amendments and proposals, I believe there is sufficient time for them 
to be considered and voted on.
  I note the presence of the Senator from Nebraska in the Chamber.
  Mr. President, I yield the floor.
  Mr. EXON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Nebraska is recognized.
  Mr. EXON. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. McCAIN. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Inhofe). Without objection, it is so 
ordered.
  Mr. McCAIN. Mr. President, I yield to the Senator from Tennessee.
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. THOMPSON. Mr. President, first of all I want to thank the Senator 
from Arizona, along with the Senator from Indiana, who has shown such 
leadership in this area for so many years. I welcome the opportunity to 
assist in the effort.
  Mr. President, the debate is now joined on the line-item veto and we 
are hearing the arguments for and against. It has been joined before. 
It has been discussed many times in this body. Hopefully, this time it 
will pass. I think the time has come. The American people demand it and 
the country needs it.
  It has been said that the line-item veto or enhanced rescissions will 
not in and of itself balance the budget. And that is certainly true. It 
will require a President who is willing to use the tool that is given 
to him, and use it firmly. And, I might add, it will also require a 
President who will not use it simply to reprioritize his own programs 
over those programs of the Congress.
  But while we are debating the likely effectiveness of this issue, I 
think it is important that we remember why we are engaging in this 
debate at all, why the line-item veto is brought up again year after 
year in this body, the reason for its overwhelming popularity among 
[[Page S4219]]  the American people and even the reason that for many 
people in this country it has now become a virtual battle cry.
  Mr. President, the short answer is that it is because we as a people 
are struggling mightily in this country, some might even say 
desperately, for ways to restrain Congress from irresponsible spending, 
for ways to stop Congress from continuing down the road of fiscal 
irresponsibility and the eventual bankruptcy of the United States of 
America.
  Congress, in times past, has shown that it cannot restrain itself. We 
continue to look at $200 billion deficits every year as far as the eye 
can see. We have debated in this body, over a period of 60 years or 
more, the need for a balanced budget. We have reached almost unanimous 
consensus, even in the debate over the balanced budget amendment, that, 
yes, indeed, we must move toward a balanced budget, we must exercise 
some fiscal restraint. Year after year over that period of time, we 
have passed resolutions calling for a balanced budget. We have required 
the President to submit budgets to Congress that were in balance. We 
even passed a law in 1979 making it the law of this land that the 
budget be balanced by 1981. And, of course, when 1981 rolled around, 
another substantial deficit. Even our own laws were ignored by us.
  In 1981, Congress was concerned, the entire Nation was concerned, as 
the debate turned toward the fact that we were approaching a $1 
trillion debt in this country.
 Those were dire circumstances.

  Now we are approaching a $5 trillion debt. Not only have we failed 
legislatively, Mr. President, but we have proven that we cannot 
restrain ourselves by means of a constitutional amendment. The balanced 
budget amendment failed in this body, even though it enjoyed the 
overwhelming support of the American people.
  Appeals to self-interest and fear and shortsightedness carried the 
day once again in this body. Social Security, the last refuge of those 
in Congress who panic at the very thought of putting the lid on the 
pork barrel, was trotted out once again, even though we all know that 
the greatest threat and the only threat to Social Security is to 
continue down the road of deficit spending, is to do nothing and 
maintain the pattern that we have maintained in this Congress for so 
many years, because we all know within a few years, it is going into 
the red and we must have the farsightedness to address that now.
  This is part of what we are about today, Mr. President. Now, having 
failed legislatively, having failed to adopt a constitutional 
amendment, the American people are saying that we should at least give 
the President of the United States the opportunity to have the most 
egregious, the most unnecessary, and the most wasteful spending 
measures made a little bit more difficult--not to make them 
impossible--to make them a little bit more difficult by requiring 
Congress to come up with a two-thirds majority vote if they want to 
pass it. I suggest to you that this is, indeed, a modest proposal in 
light of the dire economic circumstances that we find ourselves in as a 
nation.
  And so for the second time in less than a month, we come together on 
the floor of the Senate to debate whether or not we have the courage to 
take the first step toward economic responsibility and recovery or 
whether, once again, we are going to fail ourselves, fail our 
constituents and fail the next generation. We simply must do better.
  For 33 of the last 34 years, the Federal Government has run deficits 
and our elected officials have not had the will to change that course. 
Our Federal Government has run a deficit every year for the past 25 
years--an entire generation--and we have not taken steps to break this 
insidious, this persistent pattern. It took our Nation more than 205 
years to reach a $1 trillion national debt, but it only took another 11 
years to quadruple it. And still we lack the will.
  Now, for the next 5 years at least, the President has proposed annual 
budgets in excess of $200 billion a year. This means for the next 5 
years, the Nation will accumulate another trillion dollars of debt, 
debt that is stifling investment, cutting into productivity, debt that 
has changed us from a creditor nation to a debtor nation.
  Our economic growth has been anemic and one day surely, as night 
follows day, if we continue this course of action, America will decline 
as a great power. The first warning shot of that decline perhaps has 
already been fired.
  I am sure that we have all noted with concern the precipitous drop in 
the dollar against the German mark and the Japanese yen since the 
failure of Congress to pass the balanced budget amendment. I submit to 
you that this is no accident. For decades, the U.S. dollar has been the 
standard against which the value of all other currencies in this world 
are measured. For many nations, it has served as a reserve currency. As 
such, the dollar is used as a storehouse of value in exchange for goods 
and services the world over. Investors buy the dollar because the U.S. 
economy has had a long reputation for reliability and for stability. 
Important commodities, such as oil, are priced in dollars. Any country 
that wishes to import oil must pay in dollars. We have been fortunate 
in this respect because of the high value placed upon the dollar in 
making it attractive as an investment vehicle and, thus, giving us our 
ability to, in large part, finance our national debt with foreign 
dollars.
  When our debt was a small percentage of the gross national product, 
we could afford deficit spending and the inflation that it produced, 
but now our mounting deficits scare away capital and the value of the 
dollar. My distinguished colleague from Colorado, Senator Brown, 
demonstrated recently in stark relief before the Senate Banking 
Committee the fall of the value of the dollar against the yen and the 
mark when the President announced the Mexican bailout. But more 
importantly, he showed the clear and unmistakable drop in the dollar's 
value when the balanced budget amendment was defeated in the Senate of 
the United States. That drop occurred for only one reason--one reason 
and one reason only --and that is that the world's investors lost faith 
in the political leadership of this country to act as wise stewards of 
America's Treasury.
  That loss of confidence, manifested by the recent drop in the dollar, 
will have an inflationary impact on our economy. Goods will become more 
expensive as the price of imported components rise. Americans traveling 
abroad will find it to be increasingly expensive. Finally, the drop in 
the dollar's value will likely cause interest rates to rise and further 
exacerbate our budget deficit.
  We are deluding ourselves if we think that simply because of our 
great wealth and natural resources that we are immune from economic 
loss and that our reputation for economic stability and growth will 
make us immune. We cannot continue to draw on this much foreign 
investment to finance our deficit indefinitely, and we only have to 
look to our neighbors to the south to give us some indication of what 
can happen.
  Mr. President, we are all aware that we have a system of checks and 
balances in this country, a system of separation of powers, and that 
there is a constant pulling and tugging between the executive and the 
legislative branches of Government for power and authority, and 
sometimes in our history, even ascendancy. This is right and proper 
because this was one of the most fundamental parts of the framework 
that our Founding Fathers put together in the operation of our 
Government.
  Some say that the line-item veto would give too much authority to the 
President and take that system out of balance in favor of the 
President. However, I think that in viewing history that we must 
conclude on the contrary that the current legislation before this body 
would bring things more into balance.
  In fact, the 1989 report of the National Economic Commission has 
suggested that ``the balance of power on budget issues has swung too 
far from the executive toward the legislative branch.''
  Virtually all Presidents have impounded funds as a routine matter of 
their executive discretion to accomplish what they believe is 
efficiency of management and Government. In the 1950's and 1960's, 
disputes arose over the impoundment authority--in fact, disputes have 
gone back much further 
[[Page S4220]]  than that--but during that particular period of time in 
our history, which resulted from the refusal of several Presidents to 
fund certain weapons systems, for example, to the full extent 
authorized by Congress. President Johnson made broad use of impoundment 
authority during his administration by deferring billions of dollars on 
spending in an effort to restrain inflationary pressures on the economy 
during that period of time.
  Conflict over the use of impoundment has greatly increased, of 
course, during the Nixon administration. A moratorium was placed on 
many things that are currently on the table again and being debated and 
discussed. Ironically enough, subsidized housing programs, community 
development activities, certain farm programs--all were either 
suspended or eliminated altogether during that period of time by 
President Nixon.
  However, by 1974, the Congress of the United States found not only a 
weakened President Nixon because of Watergate but, because of that same 
scandal, a weakened Presidency, and employing a vacuum, Congress moved 
in and asserted itself and responded by passing the 1974 Budget Control 
and Impoundment Act, which greatly diminished the President's authority 
to impound funds.
  So while this may be only one of many reasons--and it certainly is--I 
think it not inappropriate to point out that since that time, we have 
not had a balanced budget in this country. Since the President's 
rescission now does not go through unless Congress actually votes 
within 45 days to support him, few rescissions actually occur anymore.
  According to the General Accounting Office, in the past 20 years 
since this Budget Act was passed, there have been 1,084 Presidential 
rescissions reflecting a total of $72.8 billion. Congress has agreed 
with only 399, or about 23 billion dollars' worth.
  That is why we are here today to consider this legislation, to 
finally put some teeth into the rescission process. After 20 years in 
which we have managed to cut only about $1 billion a year, time for 
amending the 1974 act, I submit, is long overdue. We must finally 
provide some recourse for the Nation's Chief Executive to reduce 
spending that is actually sinking America $200 billion more in debt. 
This legislation obviously is not a cure-all or a panacea, not for 
everything that ails us. In reality, it is perhaps little more than a 
few sandbags in the dike. But it is a beginning. It is a movement by 
Congress in the right direction for a change. It is a step forward.
  Mr. President, the current legislation is a result of many years of 
hard work by many people. I have already recognized Senator McCain, 
Senator Coats, Senator Domenici, and others who have worked on this so 
hard--Senator Stevens on our side and several from the other side of 
the aisle.
  I think what we now have is a true bipartisan piece of legislation. 
It represents already much compromise and much accommodation to the 
legitimate concerns that have been expressed by Members on both sides 
of the aisle. Now I think it represents a real opportunity to finally 
inject some discipline into the budgetary process. It has been needed 
for a long time. It does some things, from my understanding and review 
of the history, which have not been done before, which have not been 
submitted at this stage of the process before. For instance, it covers 
any increase in any budget item. There has been criticism in times past 
that proposals have only covered discretionary spending. And as we all 
know, discretionary spending is becoming a smaller part of the overall 
budget--I think now down to around 16 percent. This proposal would also 
cover mandatory spending. As far as the future is concerned, it also 
reaches targeted tax benefits that have the practical effect of giving 
tax breaks to limited groups of taxpayers.
  Now, this is an opportunity that we cannot afford to miss. Following 
on the heels of the agonizing and divisive defeat of the balanced 
budget amendment, the 104th Congress needs to recover and go on down 
the road, Mr. President. There is much that this Congress can 
accomplish if it does not dissolve into shortsightedness and partisan 
bickering. This is a time and a place and a legislative proposal where 
we can come together and put that to an end. If it is true that every 
journey starts with one step, then let this measure before us serve as 
that first step toward real budgetary reform.
  I yield the floor.
  Mr. COATS. Mr. President, I thank the Senator from Tennessee for his 
statement in support of the line-item veto. He has only been here a few 
months, but already he has been a powerful voice for change in this 
institution. It is change which I believe the taxpayers and 
constituents that we represent called for in the November elections. 
They want a change in the way we do business. They want a change in the 
way Congress represents them, a change in the mechanics. They are tired 
of hearing promises delivered from this floor over and over and over 
again that, yes, give us another chance; we will do better next time.
  What we are seeking to do with this line-item veto proposal is change 
fundamentally the way we make decisions and the way that we spend 
taxpayers' dollars. The effort that Senator McCain and I and others 
have been working on for so long appears to be reaching a point where 
we will be making a final decision as to whether or not we will bring 
that fundamental change to this body.
  The substitute which Senator Dole offered last evening on this floor 
was the result of days and weeks of some very tough negotiations 
involving Members who have had a history of involvement with the 
appropriations process, with the tax writing process, with the 
entitlements process, with the spending process of this Congress.
  We took an idea, a concept that has been discussed, as I indicated on 
this floor yesterday, for nearly a century, that is enjoyed by 43 
Governors, that has been called for, asked for, requested by, with one 
exception, every President of this entire century.
  The request is simply to allow the President a check and balance 
against a practice that Congress has been engaging in which allows 
Members of the legislative branch to attach to major pieces of 
legislation, most of which they are pretty confident the President has 
little or no choice of signing, specifically targeted items, 
specifically designated items that go to provide a benefit for a 
particular class of individuals, small group of individuals, which 
cannot be defined in any sense in the national interest.
  It may have been something that was generally accepted and overlooked 
in the past as we were running budgets which were roughly in balance. 
It was seen as a way of, I guess, making the process work here: You 
support this for me; I will support that for you, or I need to take 
this back home to let the constituents know that I am looking out 
specifically for them.
  At a time when our annual deficits are running $200 billion or more, 
at a time when our national debt is reaching staggering proportions, 
nearly $5 trillion, we can no longer afford to practice business as 
usual. The vote which will eventually occur on this item is a vote for 
one of two courses. One course is business as usual. The other is for a 
change in the way business is done, for a discarding of the status quo.
  For my colleagues who are in the process now of studying the final 
proposal that was put forth and is the result of several weeks of 
negotiations, let me just explain that it is not all that complicated. 
It is only five pages and one line of language which essentially takes 
the line-item veto concept--that is, the two-thirds vote that is 
necessary to override a decision of the President of the United States 
which will be granted to him, the authority of which will be granted to 
him to line-item out specific spending requests or items that increase 
spending, send them back to the Congress, and if the Congress wants to 
reinstate those, it will require a two-thirds vote.
  That is the core concept of line-item veto--veto, the process of 
overriding a decision, that process which involves a two-thirds vote, 
and it is embodied in the Constitution of the United States. We are 
incorporating that into this process. We are then applying that 
principle of two-thirds to the various functions of spending that take 
place as we write legislation.
  Originally, the McCain-Coats proposal only addressed appropriated 
[[Page S4221]]  items, items that came out of the Appropriations 
Committee that affected discretionary spending. As Senator Stevens has 
correctly pointed out, we were targeting then the line-item veto 
procedure to too narrow a slice of spending. We were applying it to an 
area under the control of the Appropriations Committee, which 
admittedly carried what most would describe as pork-barrel, pork-
spending items, but which only went to a portion of our entire budget. 
Senator Stevens suggested that that ought to be expanded, and we looked 
for ways to do that. Interestingly enough, we reached back into a 
process that has been debated at length on this Senate floor. It goes 
back a decade or more.
  We reached back to a process which has been suggested by prominent 
members of the Democrat Party, led by committee chairmen who have 
eloquently debated the rationale behind the need for the process called 
separate enrollment but which also can be described as line-item veto, 
and we used that as the basis for putting together this new legislation 
that was introduced yesterday evening by the majority leader, Senator 
Dole. We took that process and we applied it to a broader range of 
spending, so now not only will appropriations bills be subjected to 
line-item veto, but we will also subject other portions of the budget 
to line-item veto. We have included direct expenditures, expenditures 
of dollars, that occur outside the appropriations bills, including the 
appropriations bill process but also go to authorizations which provide 
for new spending.
  We have expanded it to new entitlements. We are not changing the law 
in terms of benefits that are currently available under the law to new 
enrollees or to current enrollees within the entitlement programs, but 
we are saying, if there is an attempt to expand that program as it 
currently exists into new spending, then it will be subjected to the 
President's new authority, should this bill pass, new authority to 
line-item veto that.
  Again, Congress could come back and with a two-thirds vote override 
the President's decision, but obviously it will be much harder for 
Congress to enact new spending. And we have expanded this to include 
what we call targeted tax benefits. There is tax pork as well as 
spending pork. Often what is described as the pork barrel involves not 
just appropriated items but tax breaks targeted for specific groups of 
people, specific individuals, a specific business entity within a 
broader group, so it is directed to help a particular targeted group, 
not the group as a whole.
  This would not allow the President to veto a broad tax deduction on 
the books, or a broad tax provision such as mortgage interest 
deductions, such as real estate tax deduction, such as some of the 
deductions that Americans now enjoy under the Tax Code. But it would go 
to those specifically targeted items that often are added somewhere 
along the line in the tax-writing process and go, not to benefit a 
large group, but go to benefit a very specific targeted interest.
  So the bill has been expanded considerably. It has a much broader 
scope than it had before. It applies a discipline to the process that 
is currently not available. It has a provision under the tax provision 
and has a provision available to Senators that, if they do not agree 
with the way in which a bill is brought forward and enrolled and think 
there is something that has been excluded, they can raise a point of 
order on this floor. Under that point of order they can subject that 
particular item to the separate enrollment procedures which would allow 
it then to be subject to the line-item veto of the President.
  So, if a Senator does not believe that new entitlement spending or 
targeted tax benefits have been fully identified in a reported tax bill 
or an appropriations bill, the Dole amendment provides a means by which 
those Senators can challenge the bill. If the Senator's point of order 
is sustained, the relevant committee would then have to flush out or 
pull out that particular provision and enroll it separately before the 
bill could be in order on the floor.
  So we have addressed that question that has been raised about: What 
if the bill slips something in but does not separately enroll it and a 
Senator believes it should be separately enrolled? We provided a 
process for that.
  Finally, let me state, because the questions have been raised: We are 
not exactly sure how all this will work and we are a little bit nervous 
about the authority we are giving to the President; should we not test 
the idea? I suggest the idea has been tested. It has been tested for a 
century by our Governors in working with our legislatures. But in order 
to accommodate that concern, we have put a sunset in this bill so 
Congress can revisit this new authority, can examine it on the basis of 
how it applies, and if it wants can modify it or, of course, even 
repeal it. So it does contain a sunset. It will provide a test period 
to see how well it works.
  Madam President, I suggest we will never know how fully effective the 
line-item veto power to the President will be, in terms of 
accomplishing real spending cuts, because it will fundamentally change 
the way we think and behave. That fundamental change will mean that 
items which would have been attached to appropriations bills or would 
have been incorporated in the tax bills will not be, because of the 
fear that they will be exposed to public scrutiny before it finally 
becomes law.
  It is shining the light of public scrutiny on our debate, on how we 
write our legislation, and it is requiring a separate vote by Members 
in support of or in opposition to a particularly targeted item that 
does not benefit the national interest or the group as a whole but only 
goes to benefit a particular individual or a particular entity. It is 
that process which will, I believe, prevent most of what has taken 
place in the past that we find so egregious. So we will never be able 
to total up the amount of money that we have saved for our constituents 
and for the taxpayer because the line-item veto will have accomplished 
its purpose--its purpose being to prevent this kind of activity from 
taking place in the first place; to prevent the kind of embarrassment 
that we go through on an annual basis when we discover the items that 
have been slipped into the appropriations bills, slipped into 
legislation, slipped into tax bills at the last minute in conference, 
behind closed doors, late at night, and then presented in a massive 
bill with a limited time period for debate in the House of 
Representatives and an urgency because of the end of the session or 
whatever might occur--the urgency to get the legislation on the 
President's desk and signed.
  The President then looks at this massive bill and says: Ninety or 
ninety-five percent of what is in here is what is beneficial to this 
country, what I want to support. But you are forcing me--as President 
Truman said, ``blackmailing me''--into either accepting the whole bill 
with the egregious provisions or rejecting the whole bill. And the 
emergency we are under, the timeframe we are under, requires that I 
have little choice except to not reject the whole bill.
  That is what we are offering here today. I trust my colleagues will 
look at it carefully. I hope we can gain their support. It has the 
support of the sponsors of the bill and the vast majority of 
Republicans. It has support, I believe, of Democrats who have been 
prominent in helping us advance this concept. And we look forward to 
advancing it, hopefully, this week, and putting it on the President's 
desk soon--something we should have done a long, long time ago.
  Madam President, with that I yield the floor.
  The PRESIDING OFFICER. The Senator from New Jersey.
  Mr. BRADLEY. Madam President, I offer my congratulations to the 
distinguished Senator from Indiana on the bill that has come before the 
Senate, the new line-item veto bill. Many of the provisions in the 
line-item veto bill that is before the Senate are provisions that were 
embodied in the original bill that I introduced and the distinguished 
Senator from Indiana cosponsored. The Dole bill does include a sunset 
provision, as I understand it. After 5 years we will be able to see 
whether this bill actually does tip the balance between the executive 
and the legislative branches of Government. It, as I understand it, 
also includes separate enrollment, which is the way the bill deals with 
the constitutional question in addition to the sunset.
  The bill, as I understand it, also includes tax expenditures and does 
so in a way that is broader than the original 
[[Page S4222]]  House bill. As I understand it, it essentially says 
that the President can veto tax expenditures that have the practical 
effect of benefiting a particular taxpayer or limited class of 
taxpayers when compared with other similarly situated taxpayers. While 
there is some ambiguity, I take this provision to have a broad 
interpretation.
  I might offer an amendment during the course of the debate to clarify 
that this provision should be interpreted broadly, or I might through 
the course of the debate, in hearing what other Senators say about it 
and my own interpretation of the amendment, decide not to offer such an 
amendment. But I do think that it is a step far in the right direction. 
This is really an opportunity to bring tax expenditures into the line-
item veto in a significant way, and allow the President of the United 
States not only to veto those pork projects that are in the 
appropriations process but also to look at every tax bill that often is 
dotted with special interest provisions or attempts to expand special 
interest provisions that are already in the Code and strike those lines 
with a line-item veto.
  So, Madam President, when we have the cloture vote on Wednesday, I 
intend to vote for cloture. And I hope that we will be able to dispense 
with this bill by the end of this week and move on to other matters. I 
think this is an important measure.
  I look forward to working with the distinguished Senator from Indiana 
who has been a good colleague throughout this process. I compliment him 
on the bill that has come before the Senate.
  Mr. COATS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Indiana.
  Mr. COATS. Madam President, I want to thank the Senator from New 
Jersey for his remarks and commend him for his longstanding efforts on 
behalf of the line-item veto concept.
  The Senator from New Jersey has talked to me on numerous occasions 
about expanding the original concept of the bill that Senator McCain 
and I have proposed to include--not just appropriated items but also 
tax expenditures. He, as a member of the Finance Committee, detailed 
for me the process of what most would consider tax pork that occurs as 
tax bills are written. It is not just the appropriations process.
  I am pleased that we could address this issue in this bill as an 
amendment introduced last evening by the majority leader. I say to the 
Senator from New Jersey our goal, I believe, is the same--to address 
the same items that he attempts to address. I hope that as we debate 
through this and work through this we can clarify that so that Members 
know exactly what we are after. It is hard to get the exact words in 
place so that we understand just exactly how this applies to tax items. 
But I believe that the targeted tax expenditures which are targeted in 
the Dole amendment very closely parallel what the Senator from New 
Jersey has tried for so long to accomplish.
  So we look forward to working with him. I thank him for his support.
  Madam President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call roll.
  Mr. EXON. Madam President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________