Congressional Record, Volume 143 Issue 144 (Thursday, October 23, 1997)

[Congressional Record Volume 143, Number 144 (Thursday, October 23, 1997)]
[Senate]
[Pages S11024-S11027]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

LINE-ITEM VETO

Mr. BYRD. Mr. President, I will speak with reference to the so-called
line-item veto of the fiscal year 1998 Military Construction
Appropriations Act.
I received a letter today from Mr. Franklin D. Raines, Director of
the Executive Office of the President, Office of Management and Budget,
which I shall read into the Record. The letter is dated October 23,
1997. It is addressed to me. It reads as follows:

I am writing to provide the Administration's views on S.
1292, the bill Disapproving the Cancellations Transmitted by
the President on October 6, 1997.
We understand that S. 1292 would disapprove 36 of the 38
projects that the President canceled for the FY 1998 Military
Construction Appropriations Act. The Administration strongly
opposes this disapproval bill. If the resolution were
presented to the President in its current form, the
President's senior advisers would recommend that he veto the
bill.
The President carefully reviewed the 145 projects that
Congress funded that were not included in the FY 1998 Budget.
The President used his authority responsibly to cancel
projects that were not requested in the budget, that would
not substantially improve the quality of life of military
service members and their families, and that would not begin
construction in 1998 because the Defense Department reported
that no design work had been done on it. The President's
action saves $287 million in budget authority in 1998.
While we strongly oppose S. 1292, we are committed to
working with Congress to restore funding for those projects
that were canceled as a result of inaccuracies in the data
provided by the Department of Defense.
Sincerely, Franklin D. Raines, Director.

The letter indicates that an identical letter was sent to the
Honorable Ted Stevens.
Mr. President, we have all heard that the devil is in the details and
that it is advisable always to read the fine print. I take the floor at
this time, as I have indicated already, just mainly because nobody else
is seeking recognition and I am waiting an opportunity to talk further
with respect to the highway bill.
Now, as I look at this letter more closely, it says--I have already
read it in its entirety--it says in part, ``The Administration strongly
opposes this disapproval bill. If the resolution were presented to the
President in its current form, the President's senior advisers would
recommend that he veto the bill.''

Now, early today, Senator Stevens, the chairman of the Appropriations
Committee, met with the Appropriations Committee and discussed a
measure of disapproval of the President's cancellation of 36 of the 38
projects from the fiscal year 1998 Military Construction Appropriations
Act. The committee met and reported out the disapproval measure by a
very wide margin. I think that only two votes were cast against
reporting the measure. So that has been done.
With reference to the letter from Mr. Raines, let me say at the
beginning, I have great respect for Mr. Raines, the Director of the
Office of Management and Budget. He is a very able director and a very
honorable man, as far as I

[[Page S11025]]

know. He has always treated me as I hope to be treated. And as I expect
to treat others. I respect the President and the Presidency, so what I
say has nothing to do with the individuals personally.
That being said, let me more particularly call attention to this
sentence: ``The administration strongly opposes this disapproval
bill,'' Mr. Raines says. ``If the resolution were presented to the
President in its current form, the President's senior advisers would
recommend that he veto the bill.''
My response would be, so what? Go ahead, veto the bill.
Now, more particularly I call attention to the second sentence in the
third paragraph, which reads as follows: ``The President used his
authority responsibly to cancel projects that were not requested in the
budget.''
Now, Mr. President, the word that intrigues me in this sentence is
the word ``authority.'' ``The President used his authority responsibly
to cancel projects that were not requested in the budget.'' Now, where
does one go, may I ask, to find the President's ``authority'' to cancel
projects that were not requested in the budget? From what act does he
derive his authority to cancel projects solely on the basis that they
were not requested in the budget? Does one go to the Constitution?
Well, let's see if we can find it in the Constitution. Therein, in
article II, section 3, I note these words:

He [meaning the President of the United States] shall from
time to time give to the Congress Information of the State of
the Union, and recommend to their Consideration such Measures
as he shall judge necessary and expedient. . .''

That is what the Constitution says with respect to the President's
making recommendations to Congress. So, he submits his State of the
Union message, he submits his budget, and so on, but ``He shall. .
.recommend to their Consideration such Measures as he shall judge
necessary and expedient.''
But does that language give him authority to ``cancel projects that
were not requested in the budget?'' That language doesn't do it.
Well, let's turn to the language that speaks specifically of the
President's veto authority. That is in section 7 of article I.

Every bill which shall have passed the House of
Representatives and the Senate, shall, before it becomes a
Law, be presented to the President of the United States; if
he approves he shall sign it, but if not he shall return it,
with his Objections to that House in which it shall have
originated, who shall enter the Objections at large on their
Journal, and proceed to reconsider it.

It doesn't say there in that section that he shall not sign a bill if
it contains any items not requested in the budget. It says, ``if he
approves [the bill] he shall sign it, but if not [meaning if he doesn't
approve it] he shall return it, with his Objections to that House in
which it shall have originated.''
So I find no authority in the Constitution for the President to
cancel projects solely for the reason that they were not requested in
the budget.
Now, let's take a look at the Line-Item Veto Act, Public Law 104-130.
Let's see what it says. This is the act under which the President has
acted. This is the deformed, malformed, illegitimate end-run that
Congress made around the Constitution when it passed that bill. This is
the act that we, in one of our weakest moments in the history of the
country, passed and gave the President this so-called ``authority.''
But let's see if even in that monstrosity there is authority to cancel
projects solely on the basis that they were not requested in the
budget. Let's see. Let's read:

Section. In general--notwithstanding the provisions of
parts A and B, and subject to the provisions of this part,
the President may, with respect to any bill or joint
resolution that has been signed into law pursuant to Article
I, Section 7 of the Constitution of the United States, cancel
in whole (1) any dollar amount of discretionary budget
authority; (2) any item of new direct spending; or (3) any
limited tax benefit, if the President, A, determines that
such cancellation will (1) reduce the Federal budget deficit;
(2) not impair any essential government functions; and (3)
not harm the national interest.

It doesn't say that the President has authority to cancel projects
because they were not requested in the budget. It doesn't say that at
all. It doesn't say that the President may cancel items that were not
included in the budget. It doesn't say that at all. It says that if he
determines that such cancellation will reduce the Federal budget
deficit, or not impair any essential Government functions, not harm the
national interest''--all three.
So I simply wanted to bring to the Members' attention this letter, in
which the very distinguished and highly respected Franklin D. Raines,
Director of the Office of Management and Budget states:

The President used his authority responsibly to cancel
projects that were not requested in the budget.

I don't find anywhere in the Constitution, or in the ill-advised act
itself, any authority for the President to cancel a project simply
because it was not requested in the budget.
Well, so much for that. I think we can expect this administration, or
any other administration, as long as this act is on the statute books,
to expand upon it, to read into it whatever they want to see, read into
it whatever they want to read into it. Here is a good example of it. We
have now found that they are interpreting the act to give the President
the authority to cancel projects on the basis that they were not
requested in the budget.
Additionally, in the last paragraph, Mr. Raines says.

. . . we are committed to working with Congress to restore
funding for those projects that were canceled as a result of
inaccuracies in the data provided by the Department of
Defense.

So the President, in this letter, through his Director of OMB--I
would have appreciated it if the President had written the letter
himself and signed it himself. But we are told here by the President
through his Director of OMB that, indeed, projects were canceled as a
result of inaccuracies in the data provided to the Department of
Defense.

Now he says they are committed to working with Congress to restore
funding. How are they going to do that? The President can't go back now
that he has unilaterally amended that law--the fiscal year 1998
Military Construction Appropriations Act. Now that he has unilaterally
amended that law, he cannot go back and put those items into law. He
has unilaterally amended it after he signed it into law, so he can't go
back and put those items in. The heads have been severed from those
items. They are dead, dead, dead. So he cannot go back and breathe new
life into those items. How is he going to restore funding? He says he
is going to veto this disapproval resolution. That is not going to help
if he vetoes that act.
But we are told that if the resolution reported out of committee
disapproving 36 of the projects is presented to the President in its
current form, the President's senior advisers would recommend he veto
that bill. That is not going to help restore the projects that were
vetoed by mistake. So we have to start all over again, unless we can
override that veto. It takes two-thirds of both Houses to do it. The
old chickens are coming home to roost.
So my advice to Members is that they go back--and my office will be
very happy to assist any Member who wishes to have assistance in the
matter--go back and read all of my speeches against the line-item veto.
If they will assure me they will do that, I will quit talking. I will
quit making speeches on this subject. But all Members who voted for
this pernicious piece of legislation will have to assure me and have to
show me that they are going back and reading every speech that I have
made over the years in opposition to a so-called ``line-item veto.'' If
they will do that, then I will quit talking on it. But I think that
those Members who voted for that abominable piece of legislation and
who are now bellyaching about it should be required to go back and read
every one of those speeches all over again. Read them again.
Then I would suggest that they read the Constitution, because it is
he who has read it lately that counts. I guess that should be the way
of thinking of it, how lately have we read it?
Let me just read one section, the very first sentence of the
Constitution. I am reading it so it will not only sound authentic but
it will look to be authentic because I am reading it. I am not
repeating it from memory. I am reading it. Here it is from the
Constitution:

All legislative powers herein granted--

If legislative powers are not ``herein granted,'' they don't exist,
do they?

All legislative powers herein granted shall be vested in a
Congress of the United States

[[Page S11026]]

which shall consist of a Senate and House of Representatives.

That is it. That is the whole kit and caboodle. That is where the
authority rests to legislate. The authority to legislate rests right
there. And it doesn't include the President of the United States. Only
the Congress can legislate.
Point No. 2: To amend a bill or resolution is to legislate.
Am I correct? Yes.
To amend a bill is to legislate. To amend a bill is to act within--is
to act pursuant to that first section of the first article, which I
have just read.
Point No. 3: To move to strike an item is a motion and is a
legislative act.
To move to strike. That is a legislative act. And it is vested only
in the Congress of the United States by virtue of that one sentence
that I have just read.
Right? Correct.
Now, the act that Senators are griping about says that the
President--any President--after having signed a bill into law may
within the next 10 seconds, may within the next 10 minutes, may within
the next day, may within the next 5 days go back and take a new look at
that law, and he may move to strike. He may not only move to strike; he
may strike items from that law.

If the distinguished Senator from Indiana [Mr. Coats], let us say,
who is presiding over this Chamber at this moment, moves in this
Chamber to strike an item from a bill, that is a legislative act.
So, if he moves to strike an item, or if he is moving to amend a
bill, he has to have a majority of this body to support his motion to
strike or cancel. And, if he gets a majority, if all Members are here
and voting, he will have to have 51 Members--51 votes, including his
own--to succeed in striking or cancelling that item from the bill. But
he has not finished yet. If he accomplishes that, a majority of the
other body also has to agree to his motion to strike, and a majority of
the other body, if everyone is present and voting over there, would be
218.
So he has to have 218 votes in that other body to support his motion
to strike or cancel this item from an appropriations bill--218 in the
other body, 51 in this body. If all Members are present, he has to have
269 Members of both bodies supporting his motion to cancel.
That is a legislative act. Does anyone disagree with that? No. Nobody
disagrees with that. That is all accurately and correctly stated.
But the Congress passed an act. We in the Senate voted for it on
March 23, 1995, and it went to conference. And it lay dormant in
conference for about a year. Finally, I think it was Mr. Dole who got
behind it and urged the leadership in both Houses to pass that act
because he anticipated being the first to wield the line-item veto pen.
So it was brought back as a conference report. And, on March 27,
1996, the Senate stabbed itself in the back and adopted that conference
report giving the President of the United States--any President; not
just this one; any President of the United States--the authority to
unilaterally cancel or amend a law. He may do it all by himself. He
doesn't have to have 218 Members of the other body. He doesn't have to
have 51 in this body. He can simply call Mr. Raines and others in the
executive branch together and say, ``What do you find in this bill,
this appropriations act, that Congress has just sent me here? I have
signed it into law. I didn't have to wait. I just went ahead and signed
it. Now it is a law and no longer a bill. It is a law. But I have the
authority now to singlehandedly amend that law.''
Senator Coats didn't have that kind of authority. Only a majority of
both Houses could amend a bill.
I cannot for the life of me understand how grown men and women who
have sworn to support and defend the Constitution of the United States
right there at that desk with their hands on the Bible--most of them
had their hands on the Bible or swore an oath by it--I cannot for the
life of me understand how grown men and women who are supposed to have
read that Constitution, who are willing to stand up there and before
God and men swear to support and defend that Constitution, how they
would then turn right around and pass legislation that flies directly
in the face of the first sentence of the Constitution, which says that
``All legislative Powers herein granted shall be vested in a Congress
of the United States which shall consist of a Senate and House of
Representatives.'' Were they using the Constitution as their guide? No.
Were they using the polls as their guide? In all likelihood, I suppose
they were, because the overwhelming majority of the American people
favor a line-item veto.

I am going to quit very quickly.
Well, I wrestle with my imagination. I ponder over this question. And
I try to come to some logical conclusion as to why Congress did what it
did. Oh, I know there are some folks who will say, ``Well, you can
expect Senator Byrd to be against the line-item veto because he likes
pork.'' He likes pork. Let me tell Senators one thing. This Senator
will not, will not, will not negotiate with this President or any other
President over an item from West Virginia that he wishes to line-item
veto. I will not negotiate with him. They may call and say, look, if
you will do this or that, we will not line-item veto that item. My
answer will be, ``Go to it. Veto it.''
You mean that Senator Byrd would not negotiate with the White House
over a piece of pork for his State? You try me and see. No. I am not
for negotiating. When it has reached that point, the subcommittees and
committees have acted and have conducted hearings and earmarked the
legislation and it has come before the Senate and the House--there may
have been efforts to strike it out along the way, there may not have
been, but once it reaches that point and comes back in the conference
report, no, I am not negotiating with any President. If he wants to
veto, go to it. I think there is a principle that is far more important
here than pork for West Virginia or any other State.
So there it is. ``Lay on, Macduff; and damn'd be him that first cries
out `hold, enough.' ''
I guess there is a song which says, ``I'll still be wondering why.''
And so I am still going to be wondering why. Whatever got into the
heads and minds and hearts and livers of the Members of these two
bodies that they would be so gullible as to hand to this President or
any other President part of the people's power over the purse, which,
according to the Constitution of the United States, is vested right
here in the hands of the directly elected representatives of the
people.
Well, think about it because you are going to hear more about it. You
are going to see more line-item vetoes. And if they want to line-item
veto pork for West Virginia, ``Lay on, Macduff.'' I am not negotiating.
But I hope Members will think about it and will conclude that it was
a mistake and that come the appropriate time they will vote to repeal
that nefarious act. And I hope that Members will not bow down and
scrape and negotiate with the White House about it. Let the President
veto it. He has the right to veto under the Constitution any bill he
wants to veto. He has that right according to the Constitution. He has
that right.
I am not willing to negotiate to keep him from doing it. If he vetoes
it, I know what our rights are. The Congress may uphold his veto or it
may reject it. So let's go by this Constitution, and if Members are
worth their salt, having made this mistake, they will not make the
additional mistake of negotiating with any administration to keep their
little items from being vetoed. Because if we do that, we merely
legitimize the wrongful act that Congress has already committed. I do
not believe in legitimizing it. Let the President veto it. Go to it.
Mr. President, I thank all Senators for listening. Those who didn't
listen, they will have further opportunity to listen. And I hope that
at least those who read the Record 50 years from now will find that
somebody up here had read the Constitution lately.
I yield the floor.
Mr. CHAFEE addressed the Chair.
The PRESIDING OFFICER. The Senator from Rhode Island.
Mr. CHAFEE. Mr. President, I see the distinguished senior Senator
from West Virginia still here. Previously, I had said that I wanted to
go ahead of the Senator on some discussion in connection with the bill
that is before us, the

[[Page S11027]]

ISTEA bill. Does the Senator want to go ahead now on that to discuss
something? I understand he is not going to present any motions or
anything but discuss it.
Mr. BYRD. Not at the moment. I may come back shortly. But I do thank
the Senator from Rhode Island for his kind offer.
Mr. CHAFEE. Mr. President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The bill clerk proceeded to call the roll.
Mr. COATS. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Chafee). Without objection, it is so
ordered.
Mr. COATS. Mr. President, I ask unanimous consent that I be allowed
to speak as in morning business for up to 10 minutes.
The PRESIDING OFFICER. Without objection, it is so ordered.

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