Congressional Record, Volume 143 Issue 5 (Wednesday, January 22, 1997)

[Congressional Record Volume 143, Number 5 (Wednesday, January 22, 1997)]
[Senate]
[Pages S617-S619]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

AUTHORIZING SENATE LEGAL COUNSEL REPRESENTATION

Mr. LOTT. Mr. President, I ask unanimous consent that the Senate
proceed to the immediate consideration of Senate Resolution 21,
submitted earlier today by myself and Senator Daschle.
The PRESIDING OFFICER. Without objection, it is so ordered.
The clerk will report.
The legislative clerk read as follows:

A resolution (S. Res. 21) to direct the Senate legal
counsel to appear as amicus curiae in the name of the Senate
in Sen. Robert C. Byrd, et al. v. Franklin D. Raines, et al.

The PRESIDING OFFICER. Is there objection to the immediate
consideration of the resolution?
There being no objection, the Senate proceeded to consider the
resolution.
Mr. LOTT. Mr. President, the resolution directs the Senate legal
counsel to appear as amicus curiae, as friend of the court, in the name
of the Senate in a case pending in the United States District Court for
the District of Columbia, and ask for its immediate consideration.
Mr. President, on April 9, 1996, President Clinton signed into law
the Line Item Veto Act. This act was the product of years of
legislative consideration and much protracted debate.
Beginning January 1 of this year and through the year 2004, the Line
Item Veto Act provides the President with the authority, under a set of
carefully circumscribed limitations, to cancel particular items of
appropriation, direct spending or limited tax benefit in any bill.
The President must report any such cancellation to Congress by
special message within 5 days after his approval of the bill containing
such spending or tax provisions. Congress then has the opportunity to
decide whether to pass a law disapproving the President's cancellation
and mandating the spending or tax benefit.
As I have stated, this Act was passed after much consideration and
debate understanding the potential Constitutional implications. In the
end, Congress determined to empower the President in this manner in
recognition of the fact that strong tools are necessary if we are to
achieve our goal of finally getting the Federal budget in balance.
Mr. President, the distinguished Senator from West Virginia, Mr.
Byrd, and three other of our colleagues, the former senior Senator from
Oregon, Mr. Hatfield, the senior Senator from Michigan, Mr. Levin, and
the senior Senator from New York, Mr. Moynihan, joined by two Members
of the House of Representatives, have filed an action in the United
States District Court for the District of Columbia challenging the
constitutionality of the act. They assert in their lawsuit that the act
violates the lawmaking provisions of article I of the Constitution by
authorizing the President to nullify the effect of portions of recently
enacted laws.
The lawsuit at issue was commenced pursuant to a special judicial
review provision, section 3 of the act, authorizing the filing of an
action by any Member of Congress to seek declaratory or injunctive
relief on the ground that the act violates the Constitution.
This judicial review provision also gives each House of Congress the
right to intervene in the suit in defense of the act. Further, the law
provides for direct appeal from any decision of the district court to
the Supreme Court and requires both courts to expedite their handling
of the action.
The Department of Justice will represent the defendants in the
lawsuit, namely the Director of the Office of Management and Budget and
the Secretary of the Treasury. As such, there appears to be no need for
the Senate to intervene formally in the suit as a party defendant.
Nonetheless, title VII of the Ethics in Government Act authorizes the
Senate

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to appear as amicus curiae, or friend of the court, in this or any such
legal action in which the powers and responsibilities of the Congress
under the Constitution are placed in issue.
Mr. President, appearance as amicus curiae in this lawsuit would
enable the Senate to present to the court its reasons for enacting the
Line Item Veto Act and the basis for its position that the law is
consistent with the Constitution.
This resolution I offer today will authorize the Senate legal counsel
to appear in this case in the name of the Senate as amicus curiae to
support the constitutionality of the Line Item Veto Act.
The Senate, through the Senate legal counsel, would not take any
position on the other issues, such as those related to the
constitutional standing of the plaintiffs in the suit to bring the
action, and the timeliness, or ripeness, of the issues before the
court, that may be considered by the court in the case as such issues
are not covered by the explicit terms of the resolution.
Mr. McCAIN. Mr. President, I rise in strong support of the resolution
that is before the Senate.
This resolution directs the Senate legal counsel to appear in the
name of the Senate to defend the constitutionality of the Line Item
Veto Act, Public Law No. 104-130, 110 Stat. 1200 (1996). While both the
Line Item Veto Act and the Ethics in Government Act of 1978 provide
authority for the Senate to intervene or appear as amicus curiae in
legal proceedings, the adoption of a resolution by the Senate is
necessary in order to activate participation by legal counsel. By
adopting this resolution, we will ensure that the Senate is fully
represented in the case of Sen. Robert C. Byrd, et al. versus Franklin
D. Raines, et al., which is pending in the U.S. District Court.
The case that has been filed by Senator Byrd, former Senator
Hatfield, Senator Levin, Senator Moynihan, Representative Skaggs, and
Representative Waxman challenges the constitutionality of the Line Item
Veto Act on the grounds that it violates article I of the Constitution.
I firmly believe that their assertion is false and that the Line Item
Veto Act which was passed last year by an overwhelming vote of 69 to 31
is constitutional.
The act passed last year was very carefully drafted to ensure
constitutionality. While I would not presume to tell the court how they
should rule on this case, I am confident that the Senate legal counsel
will present a very compelling argument that proves that Congress does
have the authority to delegate this very limited and strictly defined
power to the President.
Our $5 trillion debt, our voracity for spending and our lack of
political courage to cut spending led Congress to pass the Line Item
Veto Act. Finally, Members of Congress will be forced to defend their
pork barrel spending projects publicly. I am hopeful, although not
convinced, that the mere threat of a Presidential veto will cause
Members of Congress to rethink putting special interest items in
appropriations bills like aquaculture centers to study shrimp in
landlocked Arizona, bicycle paths, and millions of dollars for pony
trekking facilities in Ireland. The time has come to force Congress and
the President to take responsibility for how we are spending taxpayers'
dollars.
The purpose of the line-item veto is to reduce the deficit by
allowing the President to cancel wasteful Congressional spending. Prior
to passage of this important Government reform tool, it was easy for
Members to slip projects into large appropriations bills or tax bills
and not have to be accountable for wasting taxpayers' hard-earned
dollars. When these large bills came to the President, often on a
deadline, his hands were tied, leaving him with a take-it-or-leave-it
decision on the entire bill. In essence, the old system allowed both
Members of Congress and the President the ability to blame each other
and point fingers without accepting responsibility for these ridiculous
projects.

The court challenge launched by a few Members of Congress is simply
an effort to continue their battle to preserve the status quo budget
process--a budget process that favors seniority and the Appropriations
Committee, and one that allows Members to hide wasteful and parochial
spending projects in large appropriations bills that previously the
President was forced to sign or reject in total. Some of these members
support the current process because they directly benefit from it. Last
September, the Portland Oregonian reported that since 1980, former
Senator Hatfield sent $3.2 billion home to Oregon. It is simply not
fair to allow a disproportionate share of taxpayer dollars to be
distributed on the basis of position or committee assignment.
The Line Item Veto Act ends this practice of unaccountable spending
by allowing the President to use an enhanced rescission process that
builds on the President's current authority under the Impoundment
Control Act of 1974. It strengthens the existing rescission authority
by placing the onus on Congress to overturn the President's rescissions
rather than waiting for Congress to act on rescissions that the
President recommends.
History shows the current rescission process simply does not work
because it is too easy for Congress to deliberately fail to act. Since
1974 only $23.7 billion of the $74 billion in rescissions proposed by
Presidents have been adopted. That is just 32 percent--not a very good
batting record. It was, after all, our frustration with the current
process and the Congress' insatiable appetite for spending that led
Congress to cede this limited authority to the President.
Our opponents will attempt to persuade the courts that we have
abdicated our constitutional powers by delegating to the President
powers that we do not have authority to delegate. There is strong
historical evidence in tax and tariff law that proves Congress can
delegate this kind of power to the President. The delegation of power
is narrowly defined and limited to canceling dollar amounts of
discretionary budget authority in an appropriation law, new items of
direct spending, or limited tax benefits for the sole purpose of
deficit reduction. The statute outlines strict prescriptions for how
the President must use this authority and gives Congress an opportunity
to overturn the President's cancellation under expedited procedures.
All of these limitations on the President's use of this power ensure
the constitutionality of this process change.
Despite what the plaintiffs in this case may lead you to believe, I
have found nothing in the Constitution that requires the President to
spend every dollar that Congress appropriates. Our opponents would like
to equate preserving Congress' autonomy to spend taxpayers money with
protecting the delicate balance of power of our government. Actually
these big spenders are trying to cling to power that has been unfairly
tipped in their favor. Since Congress usurped the President's power to
impound funds in 1974, it has been Congress that has upset the delicate
balance of power in our government system.

Congress' power has been even further expanded by the evolution of a
budget process that results in huge appropriations bills, omnibus tax
and reconciliation measures as well as passage of continuing
resolutions at the last minute just before the fiscal year ends. In
addition, this process of passing enormous bills has substantially
undercut the current veto power to challenge wasteful spending
measures. I doubt our founding fathers could have ever envisioned
fathomed legislation totaling hundreds of pages. In their day, an
appropriations bill was one page--giving the President a relatively
easy choice.
The line item veto finally puts the President on a level playing
field with the Congress by giving the President a necessary tool to
govern responsibly in light of the how the legislative process has
evolved. For over 25 years it has actually been Congress that has
quietly undermined our system of checks and balances. Passage of the
line item veto was necessary to restore an equilibrium between the
executive and legislative branch.
The line item veto in no way alters or violates any of the principles
of the Constitution. It preserves wholly the right of the Congress to
control our Nation's purse strings--a trust I might add the Congress
has often violated. The law as crafted does nothing more than embrace
the Constitutional tenet to give the President functional veto power. I
am confident that the court will look at this new authority in light

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of the historical evidence and court precedent and find that it is
fully constitutional.
I do not believe it is necessary to engage in a lengthy discussion
about the line item veto since the Senate has already debated this
subject vigorously and I believe the record speaks for itself. I would,
however, like to remind the Senate that two former solicitors general--
one Democrat and one Republican--testified before Congress that the law
is fully constitutional. The American Law Division of the Congressional
Research Service reviewed the law and asserted ``nothing in delegation
doctrine suggests that Congress may not delegate powers . . .'' And the
Justice Department reviewed the legislation before the President signed
the bill and determined it was constitutional.
In closing, let me say, I look forward to working with the President
to help him identify spending and tax provisions that he should cancel.
I hope that President Clinton has the political courage to exercise
this authotity diligently and will not bow to the prolific spenders in
Congress, thus squandering this historic opportunity. The American
people have waited for this for over 120 years. Let us not disappoint
them.
Mr. LOTT. Mr. President, I ask unanimous consent that the resolution
be agreed to, the motion to reconsider be laid upon the table, and that
any statements relating to the resolution appear at the appropriate
place in the Record.
Before the Chair's ruling, for the information of all Senators, this
is a resolution that allows the Senate legal counsel to file a brief on
behalf of the Senate with regard to support for the line-item veto.
The PRESIDING OFFICER. Without objection, the resolution and its
preamble are agreed to.
The resolution (S. Res. 21) was agreed to.
The preamble was agreed to.
The resolution, with its preamble, is as follows:

S. Res. 21

Whereas, in the case of Sen. Robert C. Byrd, et al. v.
Franklin D. Raines, et al., C.A. No. 97-0001, pending in the
United States District Court for the District of Columbia,
the constitutionality of the Line Item Veto Act (Public Law
104-130; 110 Stat. 1200), has been placed in issue;
Whereas, pursuant to sections 703(c), 706(a), and 713(a) of
the Ethics in Government Act of 1978 (2 U.S.C. 288b(c),
288e(a), 288l(a)), the Senate may direct its counsel to
appear as amicus curiae in the name of the Senate in any
legal action in which the powers and responsibilities of
Congress under the Constitution are placed in issue: Now,
therefore, be it
Resolved, That the Senate Legal Counsel is directed to
appear as amicus curiae on behalf of the Senate in the case
of Sen. Robert C. Byrd, et al. v. Franklin D. Raines, et al.,
to defend the constitutionality of the Line Item Veto Act.

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