[Congressional Record Volume 143, Number 145 (Friday, October 24, 1997)]
[Senate]
[Pages S11177-S11187]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           THE LINE-ITEM VETO

  Mr. BYRD. Mr. President, I have been intrigued--modestly, if I may 
say, so as not to exaggerate--at the plethora of complaints that are 
being in some instances stridently expressed about the President's use 
of the line-item veto. I suppose what amazes me so much about this 
matter is that all of this vast panorama of problems that could be 
expected to occur in the train of passage of the Line-Item Veto Act 
have been addressed time and time and time again on this Senate floor 
by me; by my colleague, Senator Moynihan; by my colleague, Senator 
Levin; by my colleague, Senator Reid; and many other colleagues on both 
sides of the aisle, including, of course, former Senator Mark Hatfield. 
We spoke to the galleries here and across the land repeatedly about 
what could be expected from the use of a President's line-item veto pen 
should such legislation be passed. We also spoke of the constitutional 
ramifications of a line-item veto. At the time, I felt that in all 
probability our expressions of concern were falling upon deaf ears.
  So of late it has been brought home to me very clearly that although 
one may speak with stentorian voice, as with the combined voices of 50 
men or as if his lungs were of brass, there will nonetheless be ears 
that will not hear, there will be eyes that will not see, and there 
will apparently be minds that will not think.
  So one is left with very little consolation other than to know that 
what he or she said as a warning in days past was on point, and that 
history will prove that the point was well taken.
  Mr. President, I see my dear friend, Senator Moynihan, who is a great 
teacher. I wish I would have had the opportunity to sit in his 
classes--a man who is noted in the Congressional Directory as having 
received 60 honorary degrees. That will make one sit up and take 
notice--60 honorary degrees! I have never counted my honorary degrees. 
But I suppose that if I have been the recipient of ten or a dozen, that 
would certainly be the limit.
  But Senator Moynihan has foreseen the ramifications of this unwise 
legislative action by the Congress--and it is now coming home to 
roost--the so-called ``Line-Item Veto Act.'' He has joined with me 
previously many times in discussing the act here and elsewhere. He has 
joined with me, as did Senator Levin and former Senator Hatfield and 
two of our colleagues in the other body, in a court challenge against 
the Line-Item Veto Act. And he joins with me today in cosponsoring this 
bill to repeal the line-item veto.

  So I am going to yield to him. I have legislation that I have 
prepared to repeal this act. Senator Moynihan has joined with me in the 
preparation of the legislation. And I am going to yield to him because, 
as I understand it, he needs to get to another appointment right away. 
So I gladly yield to my friend for as long as he wishes. I ask that I 
be permitted to yield to Senator Moynihan without losing my right to 
the floor.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The Senator from New York.
  Mr. MOYNIHAN. Mr. President, it is again an honor and a privilege to 
join with one of the great constitutionalists in the history of the 
U.S. Senate, Robert C. Byrd, who has written the history of the Senate.
  I can so well remember the occasion on which that great volume was 
introduced. One of our finest American historians was present saying 
that it is difficult to understand and very hard to forgive that there 
has been so little scholarly attention given to this body, to the 
Congress, as against the Presidency, and suggesting that it is not hard 
to explain. There is only one President, and there are 435 of us--a 
more complicated subject that comes later in our historymaking.
  But I think it may be said that in the history of relations between 
the Congress and the Presidency there has never been an issue equal in 
importance to the constitutional challenge we face with the Line-Item 
Veto Act.
  I think of difficulties in the past. There have been clashes between 
the Executive and the legislative. There are meant to be, sir, I 
presume to tell you.
  Madison and Hamilton, when they explained the Constitution to the 
people of New York in that series of essays that became the Federalist 
Papers, said citizens might well ask. At that time people knew the 
history of classical Greece and Rome, and they knew how turbulent it 
was. Madison had the solicitous phrase of speaking of the ``fugitive 
existence'' of those republics. And they asked: What makes anyone 
suppose that we will have a better understanding, a better, a more 
durable existence than those of the past? And the answer was, ``We have 
a new science of politics.'' That was their phrase, `` * * * a new 
science of politics.'' Because in the past, theories of government 
depended on virtue in rulers. We have made up a different arrangement, 
an arrangement by which the opposing forces, the checks and balances, 
set off one group against another. And the result is that in the end 
you have outcomes that make up for--again, a wonderful line of 
Madison's--``the defect of better motives.'' And, in that regard the 
Framers very carefully

[[Page S11178]]

defined in article I and article II this distinction.
  If I may say, again because it is so important, the framers of the 
Constitution presumed conflict. They did not assume harmony. They did 
not assume common interests. They assumed conflict. When they were 
asked, Why should we expect this Republic to survive given the 
``fugitive existence'' of republics of classical Rome and Greece?, they 
replied ``Because we have a new science of politics.'' We can have one 
interest balance another interest. And they devised it because they 
knew there were conflicting interests.
  I believe it would surprise us, Mr. President, to know the extent to 
which--until the American Constitution came along--political theory 
assumed virtue and harmony in rulers and in government. We have seen it 
in our time, sir, in its most notorious form in the dictatorships of 
the proletariat in the Soviet Union, in the Republic of China, now in 
North Korea, if you like. The dictatorship of the proletariat is a 
wonderful way of saying rule by the virtuists, and rule by the 
virtuists turned out in reality to be rule by tyrants, by monsters. 
Indeed, Mr. Pol Pot is just now being interviewed by Mr. Thayer in the 
Far Eastern Review, and in the name of virtue, in the name of the 
people's republic, Mr. Pol Pot murdered perhaps as many as 2 million 
Cambodians. All in the name of virtue.

  Well, this Constitution does not assume virtue. It assumes self-
interest. And it carefully balances the power by which one interest 
will offset another interest and in the outcome make up, again in that 
wonderful phrase of Madison, ``the defect of better motives.''
  In the judgment of this Senator, shared of course by our revered 
leader in this regard, nothing could violate that constitutional design 
more clearly than the Line Item Veto Act. On January 2 of this year, 
the first business day after the Line Item Veto Act took effect, I 
joined Senator Byrd, Senator Levin, and our never-to-be-forgotten 
friend from the State of Oregon, the former chairman of the 
Appropriations Committee, Senator Hatfield, in a lawsuit challenging 
the constitutionality of that Act on the ground that it violates 
article I, section 7, clause 2 of the U.S. Constitution, known as the 
presentment clause.
  Mr. President, the issue of this Act's constitutionality has now been 
commented upon by two Federal judges. In the U.S. District Court for 
the District of Columbia, Judge Thomas Penfield Jackson took exactly 3 
weeks from the date of oral argument to conclude that it is 
unconstitutional. He wrote in his April 10, 1997 opinion that by 
passing the Line Item Veto Act, ``Congress has turned the 
constitutional division of responsibilities for legislating on its 
head.''
  The Justice Department appealed that decision, and we went to the 
Supreme Court where, in a manner that I think is generally understood, 
the Court is a little shy about getting into arguments between Members 
of Congress and the President. I could use the image, sir, that the 
Court likes to see someone before it with a broken arm saying, let me 
tell you how it happened to me and why. And they held that we did not 
have standing--seven Justices did. Justice Breyer thought we had 
standing. But most importantly, sir, Justice Stevens dissented. He said 
we did have standing, and what is more, that this measure is 
unconstitutional. He is the one Supreme Court Justice who has commented 
on the question of this statute's constitutionality. In his opinion he 
wrote:

       The same reason that the respondents have standing provides 
     a sufficient basis for concluding that the statute is 
     unconstitutional.

  I quote, Sir, from the case of Franklin D. Raines, Director, Office 
of Management and Budget, et al., Appellants, versus Robert C. Byrd, et 
al.
  Now, this is a constitutional question. There is another more subtle 
one. It goes directly to the constitutional intention of the separation 
of powers and the balance of powers, and that is the idea of the shift 
in power from the Congress to the executive that this legislation makes 
possible.
  In this morning's Washington Post there is an article about the 
President's recent exercise of this authority. And rather to my 
distress, if I may say it, a number of Senators on this floor and a 
number of Members on the House floor have discovered that there is 
politics being played in the White House. Politics, Mr. President? I am 
shocked to hear that there are politics in the Presidency. Of course, 
there are--ever have been. In today's story in the Post a very 
distinguished scholar, Stanley E. Collender, who is an expert on 
spending issues, says, ``The line-item veto is never going to be a 
deficit reduction tool and you would think they''--the Congress--
``would have realized it when they gave it to the President. It's a raw 
exercise in power.'' Mr. President, if you want to shift power from the 
Congress to the executive, fine. Amend the Constitution. Do not abuse 
it by statute. And if it came to amending it, I am not sure we would.
  I talked earlier about the ``Federalist,'' which was written as 
essays in New York State newspapers in support of ratification by New 
York State of the Constitution, which was a very close matter. Rhode 
Island, as the distinguished sometime President pro tempore knows, was 
the last to ratify it. It took them years. But they didn't have Madison 
and Hamilton and Jay to read at the time, and we did.

  Now, there has just appeared a wonderful small volume called the New 
Federalist Papers, a twentieth century fund book written by Alan 
Brinkley, Nelson Polsby and Kathleen Sullivan. They try to make their 
essays about the length of the original Federalist. Nelson Polsby has a 
succinct and devastating essay on the line-item veto.
  Nelson Polsby, who happens to be a friend of many years, is Professor 
of Government at the University of California, Berkeley, and his many 
books include, most importantly in my view, his book ``Congress and the 
Presidency.'' And he writes here on the line item veto. He says:

       The line-item veto would make Congress severely dependent 
     on Presidential good will. A shrewd President would not veto 
     everything but would use the line-item veto selectively, in 
     effect bribing legislators into cooperating. Americans have a 
     stake in preserving the independent judgment of Congress on 
     issues of public policy. This is not the way to do it.

  ``Americans,'' I say again, ``have a stake in preserving the 
independent judgment of Congress on issues of public policy. This is 
not the way to do it.''
  I should say that Mark Hatfield, our coplaintiff, is using this text 
in his seminars back in Oregon just now.
  Early on in our deliberations--and I hope I will not take any liberty 
when I say it--a most distinguished and admired colleague, ``Mac'' 
Mathias, a Senator from Maryland, who was with us so long, when this 
first came up commented from his long experience, ``The President won't 
veto any great number of items. He will just let it be known that he 
can.'' And the conversation goes as follows: Senator, I know how much 
this radiation laboratory means to that fine hospital you have worked 
so hard to develop. I know how much it means to the health of the 
American people, to science, to medicine. But, you know, Senator, 
expanding NATO is a very important issue to me. And I hope that if I 
understand your needs, and I feel your needs, you will understand mine, 
and surely you will. Can we have that understanding as responsible 
persons in Government?
  Well, that kind of trading goes on and is meant to go on. That's what 
checks and balances are about. But not with the threat of an 
unconstitutional act to change a bill passed by this body and the other 
body and sent to the President, take something out of it, and the bill 
that in consequence never passed either body becomes law. That violates 
the Constitution's ``single, finely wrought and exhaustively considered 
procedure,'' as the Court in INS versus Chadha called the presentment 
clause of article I.
  Now if you want to do that, fine. Amend the Constitution. But you 
cannot amend the Constitution by statute.
  I do not want to go on because there are so many distinguished 
persons in the Chamber, and the Senator from West Virginia, our teacher 
in these matters, is being very patient. But simply to say, as Mr. 
Collender says in this morning's Washington Post, this will never save 
any money. What will happen is, as Mr. Polsby says in his essay, it 
simply shifts power from the legislative branch to the executive 
branch. And it does so in a manner that Justice Stevens in the Supreme 
Court not 4 months ago said is unconstitutional. More I do not know 
what need

[[Page S11179]]

be said. The Congress could do itself a great service by passing 
Senator Byrd's legislation. Then we would have a real test of political 
reality. Would that bill be signed or vetoed? We do not know, but one 
good way to find out is simply to adopt this direct and simple 
legislation.
  Mr. President, I will not go on, but I ask unanimous consent that at 
this point in my remarks, that there be printed in the Record the text 
of the four pages by Nelson W. Polsby on the line-item veto as 
published in the New Federalist Papers.
  There being no objection, the excerpt was ordered to be printed in 
the Record, as follows:

                  [From the ``New Federalist Papers'']

        On the Distinctiveness of the American Political System

                         (By Nelson W. Polsby)

       Americans of a certain age will remember that at the first 
     opportunity after the Allied victory in World War II, the 
     voters, fed up, so it was said, with meat shortages and the 
     privations of war, threw out a large number of incumbent 
     congressmen and elected a new majority. The nation embarked 
     upon a decade or so of jitters focused upon problems of 
     domestic security. The Truman administration, under severe 
     Republican pressure, launched a loyalty/security program. 
     Senator Joseph McCarthy, with his careless charges of 
     communism in government, flourished.
       This, evidently, is the way Americans celebrate global 
     victories. Neither the dismantling of the Soviet empire nor 
     the meltdown of the Soviet Union itself seems to have 
     convinced Americans of the possible virtues of their own 
     political system. Rather, complaints about the way the United 
     States is governed have never been louder or more insistent, 
     as ``malaise'' has given way to ``gridlock,'' and gridlock to 
     ``funk'' as the most fashionable way to describe a system the 
     chief feature of which is held to be an inability to cope. If 
     presidents and leaders of Congress, Democrats and 
     Republicans, talk this way, never mind advocates of one or 
     more third parties, must they not be right? After all, a key 
     test of the viability of any political system surely must be 
     the willingness of political elites to defend it.
       On these grounds alone, the American political system is in 
     plenty of trouble. But a nagging doubt intrudes. One wonders 
     whether the bashing of the political system has been used for 
     narrow partisan purposes and whether, also, it is simply ill-
     informed.
       The American government is not easy to grasp. Most nations 
     are much smaller than the United States, with less space, 
     fewer people. The Western democracies with which the United 
     States is most commonly compared have one-third (Germany) to 
     one-fifth (United Kingdom, France) the population of the 
     United States, and some comparison nations (Sweden, 9 million 
     people; Switzerland, 7 million; Denmark or Israel, 5 million) 
     are even smaller. Only a few of the world's political 
     systems--China, India, Russia, Indonesia, Brazil--have 
     anywhere near the population of the United States, and most 
     of the larger nations--perhaps half our size, like Nigeria, 
     Pakistan, Bangladesh, or Mexico--are governed by tiny groups 
     of bureaucrats, military leaders, families, or cliques of the 
     educated. Thus, even when the political system embraces many 
     people, only a few inhabit the top in the nations as large or 
     larger than the United States. Most democracies of medium 
     size have political classes that are by U.S. standards small.
       In the United States, responsibilities for public policy 
     are not concentrated in a few hands but are spread to dozens 
     of different places. Take transportation policy. Roads and 
     their policing are devolved functions of the several states, 
     and the fifty states parcel large chunks of authority out 
     even further to cities, towns, and boroughs within their 
     jurisdictions. To be sure, some transportation policy is made 
     in Washington, for example, the rules governing Amtrak or air 
     traffic control. But the licensing of vehicles, the control 
     of on-street parking, the maintenance of roads and ports, the 
     routing of buses, the building of subways--in short the vast 
     bulk of the gigantic enterprise of American public 
     transportation policy--can be fathomed only by traipsing 
     around the country and looking at the disparate detailed 
     decisions and varied decisionmakers who fix the prices of 
     taxi medallions in New York City and plow the snow off the 
     roads in Minnesota and provide for the coordination of rapid 
     transit routes and schedules in the San Francisco Bay area.
       Transportation is only one policy area. There are dozens 
     more, some the responsibility exclusively of national 
     government, some all local, some mixed. These matters are 
     much easier to sort out, and to track, in smaller and less 
     heterogeneous nations, and in nations with unitary 
     constitutions. Federalism, just illustrated in the field of 
     transportation, is embedded in the American Constitution and 
     is one source of the spread of governmental authority, but 
     only one source.
       Consider next the separation of powers, a means of 
     organizing government at the center of the political system 
     where power is shared among executive, legislative, and 
     judicial branches, all for some purposes mutually dependent, 
     for other purposes independent of one another. Consider 
     Congress, the world's busiest and most influential national 
     legislature. Proposals go in the door of Congress and 
     regularly emerge transformed by exposure to the complexities 
     of the lawmaking process. Unlike parliamentary bodies that 
     run on the Westminster plan, Congress is an entity 
     independent of the executive branch. Its members are elected 
     state by state, district by district, by voters to whom they 
     are directly responsible. Members are expected to have 
     opinions about public policies, to respond to the concerns of 
     their constituents, and to participate as individuals in the 
     making of laws.
       To be sure, Congress has its division of labor; not every 
     member sits on every committee. And who within Congress gets 
     what primary responsibilities is orchestrated by partisan 
     caucuses and party leaders. So the fate of any particular 
     proposal depends greatly on where it is sent--to which 
     subcommittees and committees, superintended by which members. 
     Congress cannot have strong party responsibility without 
     sacrificing some of the advantages of this division of labor, 
     which allows committee specialists to acquire authority over 
     the subject matter in their jurisdictions by learning over 
     time about the substance of public policy. Federalism 
     supports the separation of powers by giving members of 
     Congress roots in their own communities, where local 
     nominating procedures for Congress lie mostly beyond the 
     reach of the president, and of central government.
       Beside these two interacting constitutional features--
     federalism and separation of powers--sits a strong judiciary, 
     fully empowered to review acts of political branches and to 
     reject those acts contradictory to the provisions of the 
     written constitution. The strength of the judiciary evolved 
     as a natural consequence of the existence of enumerated, 
     explicit rights--a Bill of Rights, in fact--that ordinary 
     citizens possess, mostly phrased as restraints on the 
     government. How can an individual citizen assert these rights 
     except through appeal to the courts? Once courts respond to 
     the piecemeal invocation of the Bill of Rights by citizens, a 
     strong and independent judiciary, and a political system 
     dominated by lawyers, is given a strong evolutionary 
     preference.
       Many political systems have one or more of these 
     distinctive features of the American constitutional order: 
     federalism, a separation of powers, a Bill of Rights. All 
     three features, working together in the very large American 
     arena, produce a decentralized party system with its devolved 
     nominations and highly localized public policy preferences, a 
     vibrant, hard to coordinate, independent legislative branch, 
     and lawyers and lawsuits galore.
       Giving up any or all of these distinctive features of the 
     American ``real-life constitution'' is urged mostly in the 
     interests of centralized authority and hierarchical 
     coordination. Most modern democracies, it is pointed out, do 
     without distinctively American constitutional trappings. Why 
     cannot the United States do the same? Perhaps we could if the 
     government of a smaller, more homogeneous nation were at 
     stake. But when the governed are spread far and wide, and are 
     deeply divided by race, religion, and national origin, civil 
     peace may well require political instruments sufficiently 
     decentralized to produce widespread acceptance of national 
     policies and tolerance of national politicians. Although the 
     American system is weak in forward motion, it is strong in 
     its capacity to solicit the marks of legitimacy: acceptance 
     of decisions, willingness to go along, loyalty in time of 
     emergency.
       It is, according to this interpretation of the emergent 
     design of the Constitution, thus no accident that the one 
     major period of constitutional breakdown into civil war could 
     be understood as a matter of a failure of center-periphery 
     accommodation. Civil War-era theories of nullification, 
     states' rights, and concurrent majorities were all attempts 
     to fashion an even more developed constitution, one that 
     could contain the enormity of slavery. As this episode 
     teaches, and as observers of events in the modern world from 
     Beirut to Bosnia might attest, obtaining the consent of the 
     governed when the body politic is heterogeneous is no mean 
     feat.
       American democracy, on this reading, is more democratic 
     than any of the large, complex nations in the world, and 
     larger and more complex than all of the other democratic 
     nations (save India). Proposals for change that appreciate 
     the size and complexity of the system have a better chance of 
     success than proposals that merely complain that the system 
     is sizable and complicated. Judging from the success of 
     smaller democratic nations, Madison was clearly wrong in 
     arguing that a large, extended republic was necessary to 
     prevent tyranny. But he was undoubtedly right in observing 
     that an extended republic is what the United States would 
     become. In 1787, soon after the Constitution was written, it 
     is recorded that ``a lady asked Benjamin Franklin, `Well, 
     Doctor, what have we got, a republic or a monarchy.' `A 
     republic,' replied the Doctor, `if you can keep it.' ''

  Mr. MOYNIHAN. I thank the Chair. I thank the Senator from West 
Virginia for yielding me this time.
  Mr. BYRD. Mr. President, I thank the distinguished Senator from New 
York, Mr. Moynihan, our most learned Member, for his eloquent statement 
in support of the legislation that I am introducing on behalf of myself 
and the

[[Page S11180]]

Senator from New York and the Senator from Michigan. He has never 
faltered in his opposition to the passage of legislation that would 
give this President, any President, Democrat or Republican, line-item 
veto authority. And as he has said so many times, if this is something 
that is going to be done, it ought to be done as the framers made 
provision for, and that is by way of a constitutional amendment which 
will constitute the judgment, hopefully the considered judgment, of the 
American people from whom all power and authority in this Republic 
springs. I think Senator Moynihan's reference this morning to the ``New 
Federalist Papers'' essays is timely. He was kind enough to give me a 
copy of that volume which I have not yet had the opportunity to read 
but which I shall very soon. And he has printed in the Record today one 
of the essays from that volume. I shall look for it in the 
Congressional Record with great interest.
  Mr. CHAFEE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. CHAFEE. Mr. President, I had a question----
  Mr. BYRD. I have the floor.
  Mr. CHAFEE. I had a couple questions for the Senator from New York 
whenever the proper time is.
  Mr. BYRD. Mr. President, I will be happy to yield to the 
distinguished Senator from Rhode Island for the purpose of his 
propounding those questions, if I may do so without losing my right to 
the floor.
  The PRESIDING OFFICER. Is there objection to the request? If not, the 
Senator may proceed.
  Mr. CHAFEE. Mr. President, I listened carefully to the remarks by the 
Senator from New York. I am on the other side on this issue. But 
nonetheless, it was very edifying to hear the comments that the Senator 
from New York had to make. Several times the Senator from New York 
said, if I understood correctly, that this measure, this line-item 
veto, is unconstitutional. My question is, has it been so tested? Or is 
there anything underway to so test it? In other words, is there a case 
working its way up through the system to challenge the 
constitutionality of the line-item veto--which I guess we passed, was 
it last year? Was it in 1996?

  Mr. BYRD. May I respond to that particular question?
  Mr. CHAFEE. Surely.
  Mr. BYRD. Mr. President, the Senate passed the so-called Line-Item 
Veto Act on March 23, 1995. The legislation went to conference where it 
lay dormant for something like a year, and I am told that the standard 
bearer of the Republican Party in last year's Presidential election 
prevailed upon the leadership in both Houses to get this matter out of 
conference and get it passed into law so that, I assume, he, Mr. Dole, 
would then feel that he would become the first wielder of the pen under 
this act.
  So the leadership went to work and on March 27--these dates are so 
etched in my gray matter between my two ears that I will never forget 
the dates. If anything ever happens to my mind and I lose my memory, I 
daresay this will be one of the last things that will be lost. So, on 
March 27, 1996, the Senate stabbed itself in the back by adopting that 
conference report.
  I have answered the Senator's question.
  Mr. MOYNIHAN. If I might reply to my distinguished friend and 
chairman who asked, ``Who has agreed? If we assert this is 
unconstitutional, who has agreed?'' May I just read a passage from the 
opinion of the one Justice of the Supreme Court who has commented on 
the constitutionality question? It was John Paul Stevens, 26 June, 
1997. Our complaint had been filed on January 2, the first business day 
of this year after the act took effect. He says:

       The line-item veto purports to establish a procedure for 
     the creation of laws that are truncated versions of bills 
     that have been passed by the Congress and presented to the 
     President for signature. If the procedure were valid, it 
     would deny every Senator and every Representative any 
     opportunity to vote for or against the truncated measure that 
     survives the exercise of the President's cancellation 
     authority. Because the opportunity to cast such votes is a 
     right guaranteed by the text of the Constitution, I think it 
     clear that the persons who are deprived of that right by the 
     act [meaning the plaintiffs] have standing to challenge its 
     constitutionality.
       Moreover, because the impairment of that constitutional 
     right has an immediate impact on their official powers, in my 
     judgment they need not wait until after the President has 
     exercised his cancellation authority to bring suit.
       Finally, the same reason that the respondents have standing 
     provides a sufficient basis for concluding that the statute 
     is unconstitutional.

  Now, on October 16 of this year--this month--the city of New York 
filed suit with respect to a vetoed item in the Balanced Budget Act of 
1997. New York City was joined by the Greater New York Hospital 
Association and two labor groups that represent hospital workers. I 
have asked to file an amicus brief. The case is now pending in the 
district court and we will hear presently from them.
  Mr. CHAFEE. I thank the Senator from New York for that description. 
Because it is interesting. So, now, there is underway an appeal, 
seeking a court determination.
  Mr. MOYNIHAN. By persons I described as standing before the court 
with a broken arm.
  Mr. CHAFEE. I remember when we had the debate on this. I wasn't 
deeply involved but I supported it. I always have. But I can only 
believe that there must be a stack of constitutional opinions by 
learned lawyers, and maybe judges for all I know but certainly many 
from the legal profession, saying that this, indeed, is constitutional. 
In other words, the suggestions of the difficulties and constitutional 
problems, as outlined by the distinguished Senator from New York and 
the distinguished Senator from West Virginia, are not new. In other 
words, they foresaw what was going to happen and raised those points on 
the floor. So I can only assume that there was all kinds rebuttal 
information prepared. I will confess I can't remember the debate with 
that clarity. I certainly remember the Senator from West Virginia was 
against it right from the word go, that was clear, and spoke 
eloquently, as did the Senator from New York.

  But my question is, there must be a quantity of information or 
opinion on the other side? I can only assume.
  Mr. MOYNIHAN. May I respond to my learned and good friend, there are 
no judicial pronouncements to the effect that this is constitutional, 
for the simple reason that it is rather new. It was enacted by Congress 
for the first time in 1996. But although it has never been adjudicated 
by the courts, it has been the subject of scholarly commentary. At the 
time we debated the measure in the Senate, I cited several such 
scholarly opinions, including those of Lawrence H. Tribe of the Harvard 
Law School, and Michael J. Gerhardt, then of the Cornell Law School, 
now dean of Case Western Reserve Law School. I noted that in Professor 
Tribe's treatise ``American Constitutional Law,'' he writes:

       Empowering the President to veto appropriation bills line 
     by line would profoundly alter the Constitution's balance of 
     power. The President would be free, not only to nullify new 
     Congressional spending initiatives and priorities, but to 
     wipe out previously enacted programs that receive their 
     funding through the annual appropriations policy.

  He goes on to say:

       Congress, which the Constitution makes the master of the 
     purse, would be demoted to the role of giving fiscal advice 
     that the executive would be free to disregard. The framers 
     granted the President no such special veto over 
     appropriations bills, despite their awareness of the 
     insistence of colonial assemblies that their spending bills 
     could not be amended once they passed the lower house had 
     greatly enhanced the growth of legislative power.

  As the conference report on the Line Item Veto Act came back to the 
Senate in 1996, we asked Professor Tribe for his opinion, as Senator 
Byrd will recall. He read the conference report and telephoned in the 
morning, and he gave us this statement:

       This is a direct attempt to circumvent the constitutional 
     prohibition against legislative vetoes, and its delegation of 
     power to the President clearly fails to meet the requisites 
     of article I, section 7.

  I say to my friend once again, if you want to give the President this 
power, do so in the mode the Constitution provides. That is by 
constitutional amendment. But you cannot do it by legislation.
  Mr. CHAFEE. Thank you very much.
  Mr. MOYNIHAN. I thank my friend from Rhode Island. I thank my leader.

[[Page S11181]]

  (Mr. SMITH of Oregon assumed the chair.)
  Mr. BYRD. Mr. President, I thank again my friend, the Senator from 
New York.
  I have been trying to get in touch with Senator Levin, but I have 
been unable to do that today, so I will not add his name at this point 
until I can be reassured by him that he wishes to be a cosponsor. I 
have no doubt that he will be. But I shall in due time add his name, 
and others', if they so wish.
  Mr. President, the legislation which I am introducing is very simple. 
It reads as follows:

       The Line Item Veto Act, (Public Law 104-130), and [any] 
     amendments made by that Act [would be] repealed.
       The Impoundment Control Act of 1974 shall be applied and 
     administered as if the Line-Item Veto Act had not been 
     enacted.

  Mr. President, I hope that we will proceed to have hearings on this 
legislation that I am introducing on behalf of Mr. Moynihan and myself, 
and that we can generate some interest on the part of Members to 
testify on the bill.
  Even though there will undoubtedly be more and more cases in the 
courts resulting from the line-item vetoes that have already occurred, 
and those that will occur in the future, I think that the legislative 
branch should proceed to correct the grievous error that it made in 
passing the act.
  In the meantime, I hope that the courts will also proceed. I hope 
they will not withhold their judicial power and fail to exercise their 
judicial responsibility simply because Congress, at some point in time, 
can itself repeal the Line-Item Veto Act.
  The point is that, if I am correct in the way I feel about this 
legislation, our Government is operating under an unconstitutional act 
with respect to the appropriations process. The President is acting 
under the presumed authority that he has been given by this nefarious 
legislation.
  But the act itself, I maintain, is unconstitutional. And so, feeling 
as strongly as I do about the act, I believe that I have a 
responsibility to offer legislation to repeal it. And that is what I am 
doing.
  In one way or the other, hopefully, the act will be stricken by the 
Court or repealed by the Congress. And I hope that neither body will 
wait on the other, that neither department will wait on the other to 
perform the action that would be necessary.
  In offering this legislation, I am attempting to restore the kind of 
Government, with its separation of powers and checks and balances, that 
the American people have enjoyed for over 200 years. Never before has 
Congress enacted legislation that would disturb that separation of 
powers, those checks and balances.
  There has been some talk about it over the years. President Grant 
first advocated the line-item veto. And the first resolution or the 
first bill that was ever introduced in the Congress to provide for a 
line-item veto was introduced, interestingly enough--or perhaps 
ironically enough--by a West Virginian--Charles J. Faulkner--a West 
Virginia Congressman, well over 100 years ago.
  And since President Grant's first advocacy, most Presidents, or 
perhaps all with the exception of President Taft, have advocated the 
line-item veto.
  President Washington, the first President of the United States, 
indicated unequivocally--unequivocally--that any President, under the 
Constitution, had to accept legislation in toto. The President had to 
sign it in toto or veto it in its entirety. He could not pick and 
choose provisions in a bill.
  There have been hundreds of pieces of legislation introduced over the 
years since the administrations of President Grant that would provide 
either for a constitutional amendment or provide legislation, such as 
was the case in this instance, to give the President the line-item veto 
authority.
  I have listened to the arguments over the years. And what I said 
would happen has come true. There is considerable turbulence now. I 
said that the outcome of this legislation, if it ever became law, would 
be that the relations between the executive branch and the legislative 
branch would be hurt, that it would prove to be bad for the country, 
that tensions which normally exist and were expected to exist between 
the branches of Government--expected by the framers to exist--those 
tensions would be intensified, and they have been.
  There has been considerable turbulence on Capitol Hill as a result of 
the President's having exercised his line-item veto--this new tool, 
this new and polished, sharp-edged Damocles' sword that now hangs by a 
slender hair over the head of every legislator on Capitol Hill.
  We have given the President a political tool. We have given him a 
weapon by which he can expect to cower any or all of us and by the 
threat of the use of that sword which hangs over our collective heads, 
he will expect to get what he wants, not only on a particular 
appropriations bill but also in connection with a particular nomination 
or treaty.
  I have said these things time and time and time again. I have said 
that Senators would rue the day, rue the day that they enacted 
legislation giving to this President or any President line-item veto 
authority. The chickens are coming home to roost. Members are already 
ruing the day on which they voted to give the President this line-item 
veto. I have said time and time again that the President would use it, 
that Members would be intimidated by it, and that, to a degree, it 
would have an impact on our freedom of speech in this body. I am sure 
that there are Members who will now hesitate in some instances to speak 
out against the administration because they must always carry in the 
back of their minds a remembrance that the President may exact 
retribution for words spoken in this Chamber or outside the Chamber by 
Members in criticism of the administration. They will hesitate because 
they will understand that the President now can wreak some vengeance. 
He can threaten to cancel this project or to cancel that program that 
affects a particular constituency or region. It does not have to be one 
State or one congressional district, it can be an entire region and the 
veto can be used politically.
  I am amazed at the expressions of surprise that the line-item veto is 
``being used as a political weapon.'' We need not be surprised that a 
President will use the item veto as a political weapon. Who is to 
blame? Not the President. We are to blame. We are supposed to be grown-
up men and women. I am amazed, absolutely amazed, that grown-up men and 
women--who are expected to know something about the Constitution, are 
expected to have read it at some point in their lives, and who should 
be expected to retire to it from time to time and read it again or read 
portions of it--I am amazed that Members who have stood at the desk in 
front of this Chamber and with upheld right hand, and the left hand on 
the Bible, literally or figuratively speaking, have sworn an oath to 
support and defend the Constitution of the United States against all 
enemies, foreign and domestic, would hand the President such a weapon 
to be used against themselves.
  Then they have turned right around and taken that oath lightly by 
emasculating the Constitution passing the Line Item Veto Act. 
Obviously, lightly.
  Montesquieu said, when it came to the oath, the ancient Romans were 
the most religious people in the world. They honored their oath.
  The first consul, Lucius Junius Brutus, took office in the year 509 
B.C., that being the date when the Roman republic was first 
established. Lucius Brutus was purported to be a distant ancestor of 
Marcus Brutus, who was involved in the conspiracy to assassinate 
Caesar. Lucius Junius Brutus required the people of Rome to swear on 
oath that never again would they be ruled by a king. Tarquin the Proud 
had just been vanquished and run out of Rome, and so Lucius Junius 
Brutus, the first consul--there were two consuls but he was one of the 
two, and he was most responsible for the driving out of Tarquin the 
Proud--felt so strongly about the matter that he required an oath on 
the part of the Roman people that they would never again be ruled by a 
king.
  But it wasn't long until there came to his attention information that 
his own two sons, Titus and Tiberius, were conspiring to bring back a 
king, an Etruscan king to rule over Rome.
  Upon receiving this information, Brutus called the people to come 
together in an assembly, and in the midst of the people he had his two 
sons,

[[Page S11182]]

Tiberius and Titus, executed--his own sons--because they had violated 
their oaths and conspired to reinstitute the monarchy.
  The Romans were religiously attached to the oath. They took it 
seriously. When Marcus Atilius Regulus was sent by the Carthaginians as 
a prisoner back to the Roman Senate in the year 249 B.C., he went as a 
prisoner of the Carthaginians. He was a Roman consul and had been taken 
prisoner by the Carthaginians. In their efforts to secure peace and to 
have the Romans relinquish Carthaginian prisoners, the Carthaginians 
sent an envoy to Rome to attempt to work out some arrangements whereby 
the Carthaginian prisoners would be released and a peace pact could be 
agreed upon. The Carthaginian Government thought that if they sent this 
imprisoned Roman consul it would give the delegation more stature and 
that the Romans would be more likely to come to an agreement.

  When Marcus Atilius Regulus reached the Roman Senate he was called 
upon for his opinion concerning the matter and he told the Roman Senate 
that in his judgment Rome would not benefit by such a treaty. And he 
said ``I am a chattel of the Carthaginian Government. I am their 
prisoner and I know that they will hear about what I have stated to the 
Roman Senate. I know they won't be pleased. Nevertheless, I think it 
would not benefit my government. I'm with you in spirit. I am a Roman 
at heart. Even though I am a Carthaginian chattel, I am with you in 
spirit.''
  The Roman Senate offered to protect him and proposed that he not 
return to Carthage, but he said, ``I took an oath that I would return. 
I swore to the Carthaginian Government that I would return.'' He said, 
``When I make an oath, even to an enemy, I will keep that oath.'' He 
was conscious upon leaving Rome of the tears of his wife and children 
who clung to him and who begged him not to return to Carthage. 
Nevertheless, he felt so strongly about keeping his oath that he went 
back.
  As he had predicted, the Carthaginians tortured him. They cut away 
his eyelids and prepared an enclosure in which there were spikes upon 
which he was forced to lie, at all times, day and night. With his 
eyelids cut away, the heat and light from the Sun bore fiercely upon 
him. He lay upon his back on those spikes, and soon perished. This was 
an example of a Roman who believed in giving his life rather than break 
his oath.
  I am reminded again of what Montesquieu said: When it came to keeping 
the oath, the Romans were the most religious people in the world. What 
about us? How faithful are we in keeping our oath to support and defend 
the Constitution of the United States? Time and time again I have 
pondered on this, I have reflected on this, and I have wondered as to 
how often have Members of the Senate gone back and reread the 
Constitution, the charter of our liberties?
  Mr. President, we should keep that oath. It is not something to be 
taken lightly. I think if we take it seriously, we will struggle with 
our conscience and on matters such as the line-item veto and say to 
ourselves: How does that fit into this Constitution? Where do I find in 
this Constitution that the President of the United States has any 
legislative power? Where is it?
  Let me read for the Record section 1 of article 1, the very first 
sentence in the Constitution of the United States, in the operative 
section. Article 1, section 1: ``All legislative powers herein granted 
* * *''
  All legislative powers--not just some, not a few, not most 
legislative power, but ``All legislative powers herein granted.'' Well, 
if legislative powers are not ``herein granted,'' they don't exist.
  ``All legislative powers herein granted shall be vested * * *'' Not 
may be, but ``shall be vested in a Congress of the United States.'' Not 
in the House of Delegates of West Virginia, but in ``a Congress of the 
United States which shall consist of a Senate and House of 
Representatives.''
  There it is. It is not because I said so, but there it is in the 
Constitution. And yet with English words plainly written and with those 
words meaning precisely what they say, we nevertheless have ears and 
cannot hear, eyes that cannot see, and apparently minds that cannot 
think when we cavalierly give to the President of the United States a 
line-item veto with its legislative powers.
  Now, can we do that? Can we give to the President legislative power? 
Can we give to the President legislative powers that the Constitution 
says shall be vested only in one place--the Congress of the United 
States? Can we, as Members, give away something that is a legislative 
power? Is it a legislative power? In the Line Item Veto Act, the 
President is authorized to sign a bill into law, and then, after 
signing that bill into law, he can ``cancel,'' or repeal, parts of that 
law.
  The Constitution says that the President shall faithfully execute the 
law. But he has just signed this bill into law and he is allowed, under 
this nefarious piece of legislation, to go back and pick up the same 
pen with which he signed an appropriation bill into law and he can 
strike an item, he can strike two items, or he can strike many items. 
He can strike away 5 percent of the bill, 10 percent of the bill, 90 
percent of the bill. Of course, it is a law by then. He can strike it. 
He can amend it. He can repeal it.
  It is a legislative power to strike an item from an act. When a 
Senator moves to strike an item from a bill, that is a legislative act. 
He moves to amend or he moves to strike, and that is a legislative act. 
That is an action in the legislative process. He is exercising a 
legislative power. That Senator will have to have a majority of the 
Members of the Senate join in support of his motion to strike, else his 
motion will be lost. ``Those in favor of the motion will say aye, those 
opposed to the motion will say no. In the opinion of the Chair, the 
ayes have it, the ayes do have it, and the motion is agreed to.'' If 
somebody asks for a rollcall or a division, the Chair will proceed 
accordingly. But a single Member cannot single-handedly strike any item 
from any bill. He has to go according to the legislative process, which 
requires a majority of the votes--except in some few instances, which 
are set forth, in which supermajorities are required. But we are 
talking here about the normal legislative process.
  That Member has not yet succeeded. He can get a headline in the 
paper, but he has not yet succeeded in striking, or amending, or 
canceling, or repealing that item.
  He has to also have a majority of the other body, and if the other 
body is in full attendance, as sometimes it is--there are 435 Members 
there and he has to have 218 Members supporting him in that other body, 
and 51 in this body, with all 100 Senators present. He has to have a 
total of 269 votes in both Houses.
  That is the legislative process. That is majority rule. And yet to 
think that grown-up, intelligent, educated, responsible men and women, 
who are the elected representatives of the people, would come here and 
cavalierly vote in such a way as to give this President, or any 
President, Republican, Democrat, Independent, or whatever, the power to 
unilaterally, with the stroke of a pen, strike out an item in a law; 
unilaterally, with the stroke of a pen, to amend a law; unilaterally, 
with the stroke of a pen, to repeal what is in that law that was passed 
by a majority of the Members of both Houses of Congress--to give all 
that power to one man, or woman, as the case may be, the President of 
the United States is beyond all credulity.
  It is the acme of ridiculosity to even imagine that an intelligent 
group of men and women in a civilized body, working under a written 
Constitution, would even think of doing it. I cannot comprehend what 
motive may have guided a majority of men and women in these two bodies 
to prostrate themselves before any President and willingly and 
voluntarily cede away the power over the purse that has been vested by 
the Constitution in these two bodies, to the President of the United 
States.
  Men and women have died in past centuries to have that power vested 
in the hands of the elected representatives of the people. There was 
the struggle of Englishmen, which extended over centuries of time, 
against tyrannical monarchs, to wrest the power of the purse away from 
the kings and entrust it to the elected representatives of the people. 
And we cavalierly handed it away to the President.

[[Page S11183]]

  The Roman Senate was not required to yield power to Sulla. The Roman 
Senate voluntarily handed the power over the purse to Sulla and to 
Caesar. It made Caesar dictator for 10 years; then it made Caesar 
dictator for life, with all of the power of the executive and the 
legislative and the judicial branches in his control. The Roman Senate 
wasn't required or forced to give Caesar that power; it willingly and 
voluntarily ceded that power to him. And all of the centuries of time 
that have come and gone since that fatal act have borne testimony to 
the unwisdom of the Roman Senate. And history was changed as a result. 
It had far-reaching consequences when the Roman Senate lost its nerve, 
lost its vision, lost its way, and willingly and voluntarily ceded over 
to the dictators, and later to the emperors, the power over the purse. 
For hundreds of years the Roman Senate had had complete and 
unchallenged control over the public moneys.
  We can also read the history of England--and we will find, as I have 
already indicated, that Englishmen, for centuries, struggled with 
monarchs who believed that they ruled by divine right, struggled for 
the prize--the power over the purse. It was at the point of the sword 
that Englishmen took from the Kings the power over the purse and vested 
it in Parliament.
  We can see in our own colonial experience the continuing thread of 
representative government, with the control of the purse being vested 
in the hands of the elected representatives of the people in the 
various State assemblies during the colonial period, and later when the 
colonies became States.
  So I am chagrined, I am puzzled, and I am disappointed that Members 
of Congress would willingly give to any President this power. That is 
what Congress did.
  In looking at the letter I received from the Director of the Office 
of Management and Budget, Mr. Raines, yesterday, I bemusedly pondered 
again over these words. I will insert this letter into the Record in 
its entirety.
  I ask unanimous consent that the letter be printed in the Record at 
this point.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

         Executive Office of the President, Office of Management 
           and Budget,
                                 Washington, DC, October 23, 1997.
     Hon. Robert C. Byrd,
     Committee on Appropriations,
     U.S. Senate, Washington, DC.
       Dear Senator Byrd: 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 from 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 responsibility 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.

  Mr. BYRD. We will recall that the President had disapproved various 
projects that had been included in the Fiscal Year 1998 Military 
Construction Appropriations Act. The President, under his newly gained 
authority, had disapproved 38 of the projects, In the letter, Mr. 
Raines states: ``The President used his authority responsibly to cancel 
projects that were not requested in the budget.'' He doesn't have any 
authority that I know of to cancel projects solely on the basis that 
they were not requested in his budget. He can do it, of course. He has 
the veto pen. But he is not acting on any ``authority'' that I know 
about. It is not in the Constitution. He doesn't get any authority 
there.

  He doesn't get his authority from the Line-Item Veto Act to ``cancel 
projects that were not requested in the budget.'' That Line Item Veto 
Act sets forth certain criteria for the guidance of the President in 
exercising the line-item veto pen. But nowhere in those criteria will 
there be found a criterion which says that the President may ``cancel 
projects that were not requested in the budget.'' Yet, Mr. Raines 
refers to such authority in his letter. ``The President used his 
authority responsibly to cancel projects that were not requested in the 
budget.''
  Well, I say, as I have said many times, that the administration--
whatever administration is in power--will see that Line Item Veto Act 
as it wishes to see it. It will read into it whatever it wants to read 
into it. It will hear whatever it wants to hear from anonymous 
bureaucrats working in the subterranean tunnels of the White House who 
will advise the President as to what should be stricken by the veto 
pen. We can trust them to expand upon the power that has been given 
them in the act. And they will read into it and interpret the words, 
and constantly be expanding their power. I predicted that that would be 
the case.
  Mr. President, I hope with this legislation to be able to remove that 
sword of Damocles that we ourselves helped to suspend over our unlucky 
and graying heads. But we have nobody to blame except ourselves. I am 
not going to blame the President if he uses that authority that we have 
given to him. We gave it to him without a whimper; no resistance. 
Resistance? No. We eagerly gave it to him. ``Take it, Mr. President. 
Take it. Take this authority. Take this legislation. Use your veto 
pen.''
  President Reagan said we had the line item veto in every State 
government. ``They have it at the State level. Give it to me. If the 
States can have it, why can't I have it?'' I have heard that argument 
ad nauseam--that if the States have the line item veto power, 
therefore, why not have it at the Federal level? Why not let the 
President have the line-item veto? The Governors have it. They balance 
their budgets. Of course, I argued time and time again that they don't 
really balance their budgets. They go into debt just as the Federal 
Government goes into debt. But we were told, ``The States have the line 
item veto. The President should have it.''
  Mr. President, that kind of an argument signifies and reveals a lack 
of knowledge on the part of those who use the argument. This is the 
Constitution of the United States. It is not the constitution of the 
State of West Virginia or the State of New York or the State of Alabama 
or the State of Tennessee. It is the Constitution of the United States 
of America. And this Constitution, while it contains some inhibitions 
upon certain actions by the States, does not attempt to tell the State 
governments how they shall legislate. It assures the States of having 
republican forms of government. But it does not say to any State, 
``Thou shalt not have the line item veto.''
  The Constitution, with reference to legislative powers, speaks of the 
Congress. ``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.''
  There are 50 States. There are 50 State constitutions, and whatever 
any State wishes to write into its constitution as to a line-item veto 
power, there is no prohibition in this Federal Constitution against the 
State's doing it.
  The theory and the system of separation of powers and checks and 
balances are more finely drawn at the Federal level than at the State 
level. Under our Federal system, we have the separation of powers. We 
have mixed powers. We have checks and balances. That is at the Federal 
level.
  I heard a Senator say the other day, ``Well, I am disappointed that 
when the President exercised this veto, he didn't do as we are 
accustomed to seeing done at the State level with the line-item veto.'' 
But, Mr. President, that Senator was talking about two entirely 
different things--apples and oranges, black and white. This is a 
Federal Constitution that was meant to guide the Congress and the 
Federal departments and officers of government, and the framers very 
wisely provided a scheme whereby there would be checks and

[[Page S11184]]

there would be balances. There would be the separation of powers, and 
there would be the interweaving and overlapping of powers between and 
among the departments. That is at the Federal level.
  The State constitutions are different. The State of West Virginia may 
have the line-item veto. The State of West Virginia has a constitution, 
and in its legislative branch it is governed by that State constitution 
until and unless the State takes actions that violate the Federal 
Constitution. But as to how the State will legislate and as to how the 
Governor of the State will exercise his veto pen, that is entirely up 
to the State under its constitution. There can be 50 State line-item 
vetoes. But those are State constitutions. Those are State governments.
  We are talking about the Federal Constitution. Why Senators haven't 
been able to distinguish between the State and Federal governments. I 
can't understand. I thought they would have learned that in their 
civics classes long, long ago. But they should have learned it back in 
the elementary schools. There are 50 State governments. There is one 
Federal Government. Each is supreme in its own sphere of actions. But 
if there is any conflict, the Federal Government--the Federal 
Constitution--will then prevail. It is that simple. One doesn't have to 
be a Phi Beta Kappa to know that. Yet, Senators, many of them, and many 
Members of the other body, in explaining their support for this ill-
advised, unwise piece of legislation, took the stand and said, ``My own 
State has it. It works well there. I think that the Federal Government 
should have it''--thus displaying an amazing lack of knowledge of the 
Constitution, an amazing lack of knowledge of constitutional history, 
an amazing lack of knowledge of American history and the history of 
England.
  The Framers of the Constitution were very well aware of the colonial 
experience and what had happened in England. They knew that a king had 
had his head severed from his body on January the 30th of 1649. Imagine 
that. Parliament created the High Court of Justice which concluded that 
Charles I was a tyrant, a traitor, and an enemy of the good people of 
England, and that he should have his head severed from his body. That 
court was created on January 6, 1649, and 24 days later King Charles 
was dead. He was executed in front of his palace at White Hall before 
thousands of people. He and his father, James I, had believed that 
kings ruled by divine might and that they were above Parliament and 
above the people.

  So it is out of that history that the liberties and freedoms of the 
American people were born. And they are written down and guaranteed in 
this Constitution.
  But I have said these things many times, and, no doubt, if the Lord 
let's me live and keep my voice, I shall have the opportunity to say 
them again on several occasions.
  I feel so strongly about this. The Congress of the United States has 
never, never committed such an act as it committed in enacting the 
line-item veto. That action flew in the face of the plain English words 
that are in this Constitution. And Congress did it nonchalantly; 
cavalierly. Was it being guided by the Constitution? No. Was it being 
guided by the polls? Apparently. Because it was a popular thing. The 
American people believed by a tremendous majority that the line-item 
veto was to be desired.
  It won't reduce the national debt. I say to Senators, take a good 
look at the budget after this year and after next year, if, God forbid, 
this ill-advised piece of legislation still governs the legislative 
process. The savings that accrue from the line-item veto will indeed be 
meager
  I read in the newspapers where the President said he was saving X 
amount of dollars by these vetoes. Well, he cut out a little item in 
West Virginia. ``Ah, that's why Senator Byrd is against the line-item 
veto. There it is. He likes his pork. That's why he is opposed to 
this.''
  Well, I am not going to ask the President for it back, and if I did, 
he could not put the vetoed item back. He has cut off its head. He 
cannot breathe new life into that stiff and cold corpse. After having 
committed the act of execution, after having wielded the ax, he cannot 
put it back. I have seen something here and there in the newspapers to 
the effect that the administration would be willing to negotiate with 
Senators to restore such vetoed projects. Well, Mr. President, use your 
pen. Veto the item in West Virginia. There will be other bills coming 
to you. There will be other items for West Virginia.
  The President's advisers may say, perhaps you can get Senator Byrd to 
negotiate with you if you tell him you won't veto that piece of pork. 
Perhaps he will vote for your nominee for such and such a position or 
he will vote for such and such a treaty or he will vote with you on the 
fast-track bill. Just tell him that you don't want to line-item veto 
those West Virginia items, that West Virginia pork. Senator Byrd may 
then come to his senses.
  Well, I say go to it. ``Lay on, Macduff; and damned be him that first 
cries `hold, enough.''' I am not negotiating with any administration 
over any item for West Virginia.
  So much for that. So much for the suggestion that Senator Byrd's pork 
for West Virginia is why he is against this line-item veto. Well, 
perish the thought. That has never guided my thinking. I feel more 
strongly about what the Congress has done in enacting this piece of 
trash, the line-item veto, than I do about all of the pork that those 
hollows could possibly hold among the high and majestic mountains of 
what I consider to be the greatest State in the Union, whose motto is 
``Moutaineers are always free.''
  Mr. President, could the Senate of the United States give away its 
advice and consent power? No. Could the Senate of the United States 
give away its power to try impeachments? No. There are other powers in 
the Constitution that this Senate and the Congress, as the case may be, 
cannot give away. And I maintain that the same is true with the 
legislative power that is set forth in the first sentence of the 
Constitution.
  There are those who would be willing to sit down with the White 
House, with the representatives of the President, on items that he may 
threaten to veto. There are Senators, there are Members of the House, 
who may be willing to sit down and negotiate with the White House, to 
come to terms, as it were, to yield to the administration on this 
matter or that matter, or some aspect of the appropriation which he has 
threatened to veto. There will be those who may very well be lured by 
the siren call of negotiation in order to save the project of a 
particular Member of the Senate or House of Representatives.
  I say to my colleagues, don't negotiate, because when an item has 
reached the stage of conference, I think that we have reached a stage 
when it is too late to negotiate.
  Some subcommittees spend weeks and months in studying appropriations 
bills that come under their jurisdiction. The people who sit on a 
particular subcommittee that has jurisdiction over a particular 
appropriation bill are, for the most part, experts in the subject 
matter of that appropriations bill. Some have had experience for years 
and years, perhaps even decades, in dealing with that particular 
appropriation. They know the subject matter well. They have worked over 
it. They have had their staffs work on it. They have received the 
budgets that have been submitted by the President. They already know 
what the wishes of the administration are. And from time to time they 
receive further guidance as to the wishes of the administration with 
respect to a particular project or program, or with respect to all of 
the items in the President's budget that are within the jurisdiction of 
that subcommittee. They have had all that guidance all along and it has 
been good. And we welcome that guidance.
  But once the subcommittees go through all of these months of labor, 
and with their staffs working hard on legislation, it is too late when, 
at the last minute, the White House sends its representatives up to 
Capitol Hill and says, ``This is veto bait. That item is veto bait. 
That project is veto bait. The White House will not accept it. The 
White House wants thus and so. That wasn't in the President's budget.''
  Where in the Constitution are we told that the Congress may only 
consider items that are in the President's budget? Is that inscribed in 
any law,

[[Page S11185]]

that Congress may only consider items that are in the President's 
budget; that Members of Congress can't add items of their own, based on 
the needs of their own constituents, needs which they, the elected 
representatives, know best? Where is it written that Congress has to be 
confined only to the items that are in the President's budget? Where is 
that set down in stone? I have never seen it in stone or in bronze, or 
inscribed upon any piece of granite. It just isn't there.
  I am not willing at that point, then, to sit down and be jerked 
around by any administration, Republican or Democrat. They are all the 
same, as far as I am concerned, when it comes to this matter that we 
are discussing.
  I was chairman of the Appropriations Committee for 6 years. I said, 
``There will be no politics in here, no partisanship.'' When Senator 
Hatfield was chairman of the committee there was no partisanship. When 
Senator Stennis was chairman of the committee we didn't have politics 
in the committee. As far as I am concerned, there are no Democrats and 
no Republicans on the Appropriations Committee. We are all Members of 
the Senate and there is no partisanship. If they want to argue over 
politics they can do it on the floor, but we don't do it in that 
committee.
  And I feel that Members have just as much right under the 
Constitution and laws of this land, its customs, traditions and 
regulations--just as much right as any administration has to request 
appropriations for projects and programs that are deemed to be in the 
interests of the constituencies of the elected representatives.
  So I will not hear--I have ears, but will not hear those who exhort, 
``That little item you have in West Virginia is veto bait.'' I say, 
``Go ahead, go ahead, veto it. Lay on, Macduff.'' That's the way I feel 
about the projects of other Members.
  I want to help the President where I can help him. I want to help the 
administration where I can help it. There have been times when I have 
helped Republican administrations and Republican Presidents. But this 
is one Senator who will not be persuaded or swayed by threats that, 
``That item is veto bait. You'll have to modify it, you'll have to do 
it our way or the President will veto it.''
  So, Senators, don't negotiate. In so doing we legitimize what I 
consider to be an illegitimate end run around the Constitution of the 
United States. We legitimize it. That's where the administration wants 
us. That's where they would like to have us--under their thumb. ``Oh, 
we've got them now, they are negotiating.''
  Finally, just a word more about the letter that I received yesterday 
from Director Raines, the Executive Office of the President. It says in 
the last paragraph, ``While we strongly oppose S. 1292''--we? Who is 
``we''? I wish the President would have signed the letter himself. But 
I understand he can't sign all the mail that goes out of his office. I 
know who is purportedly the author of the letter. But, nevertheless it 
says:

       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 to the Department of Defense.

  Now, in saying that, the President, through his surrogate, admits 
that some of the projects were canceled based on errors, based on 
inaccuracies, based on data that were inaccurate and provided by the 
Department of Defense. The administration was mistaken in exercising 
the veto pen, and they admit it there.

  I would like for any Senator within the range of my voice, or anybody 
else, to tell me how Mr. Raines, or the President, or anybody in the 
administration, expects to, ``restore funding for those projects that 
were canceled as a result of inaccuracies in the data provided by the 
Department of Defense.'' Mr. Raines says that we--I assume that he 
means by ``we,'' the personal pronoun ``we,'' I assume he means the 
President and the administration, ``we''--``While we strongly oppose 
[this disapproval resolution] * * * we are committed to working with 
Congress to restore funding for those projects that were canceled. * * 
*''
  Now, how is the funding going to be restored? Those projects are 
dead. The head has been severed, the corpse has been laid out on a 
piece of cold marble and every drop of blood has been drained from the 
veins of those projects. How, then, do they propose to restore funding? 
How is it going to be done? The item has been canceled. The President 
has unilaterally exercised a legislative act and unilaterally repealed 
that legislation. It is dead. That project is dead. The line-item veto 
does not give the President the authority to restore it. It may have 
been an item that he canceled 5 minutes after he had signed the bill 
into law. He may have slept on it a while and then overnight thought, 
``Well, I think it might be a good idea to cancel a few more of those 
items,'' and he cancels a few more. And the third day after the bill 
has become law, some of his aides come to him and say, ``Mr. President, 
we think we have found some more. We didn't find it written in the four 
corners of the appropriations bill, we found it in a table. We found it 
in a committee report.''
  These aides will say to the President, ``You know what? We have been 
working 36 hours and we find projects on these tables that are not in 
the bill. Don't look in there, Mr. President. But there are tables that 
were used in some hearings, or used during markup. And in those tables 
we have found some more items that we think you ought to consider 
vetoing,'' and the President goes back and he vetoes them. Then along 
comes the 5th day, the 23rd hour and the 59th minute, and the President 
thinks, ``Ah, that Bob Byrd, he said one day, he wouldn't negotiate. 
Can you find another item for me? I want to strike one of his projects. 
I'll make him rue the day he said those words.''

  In any event, those items are gone. The President cannot go back and 
restore them, no matter how sorry he may be. He finds from the 
Department of Defense data that he was mistaken; the data were wrong. 
It is too late.
  So how does Mr. Raines intend to work with Congress to restore 
funding for those projects that were cancelled? Tell me how? How do 
they intend to restore funding? They can't be restored by inoculation, 
by the use of a needle. How do they intend to restore funding?
  As I was saying earlier, they claimed that they saved x millions of 
dollars through these cancellations, but Senators should watch. That 
project that they struck out of that bill for West Virginia this year, 
I intend to try to put it back next year, because it can be justified. 
It is important to the defense of this country. It is in the 5-year 
plan of the Department of Defense. I intend to put it back in.
  That may be a year away. So, have they saved money? How much does one 
subtract from the figures that they say they save through their 
actions, through the President's actions in line-item vetoing these 
projects? As we look back a year from now, how much will they have 
saved when some or most of the items will have been put back into the 
bills we pass next year
  Many of the projects will be put back, so the President's veto of 
projects really won't constitute savings after all. What it will result 
in is perhaps increased costs because of inflation or other reasons; 
the items will cost more when they are put back.
  Therefore, while it warms the cockles of my heart to see in the 
letter from Mr. Raines that ``the administration is committed to 
working with Congress to restore the funding for those projects that 
were canceled,'' I shall go home wondering what is meant by that, how 
they will work with Congress to restore the funding. How will they do 
it?
  Mr. President, I hope that by introducing legislation today to 
restore the legislative branch to the standing and the stature that it 
has had for over 200 years, I hope to contribute to the welfare of my 
country, the well-being of our people, the perpetuation of the dream of 
America and the dream of a system that has its roots, not just in 
Philadelphia in the year 1787, but also in the colonial experience, and 
the history of England, roots that extend back, yes, as Montesquieu 
thought, even to the ancient Romans.
  I hope that we will restore the system which was given to us by our 
forebears and which they expected us to hand on to our sons and 
daughters.

       Who saves his country saves all things, saves himself and 
     all things saved do bless him.
       Who let's his country die let's all things die, dies 
     himself ignobly, and all things dying curse him.


[[Page S11186]]


  Mr. President, let us act and let us work to save our country!
  I ask unanimous consent that an article in the Washington Post titled 
``Line-Item Veto Tips Traditional Balance of Power'' be printed in the 
Record.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Oct. 24, 1997]

 Line-Item Veto Tips Traditional Balance of Power--Capitol Hill Plots 
                  Strategy To Counter President's Pen

                   (By Guy Gugliotta and Eric Pianin)

       On Oct. 6, Sen. Conrad Burns (R-Mont.) invited President 
     Clinton to lunch at Montana's Malmstrom Air Force Base's 
     dining hall, a broken-down wreck whose ``serving areas,'' he 
     said later, ``would be borderline'' on a health inspection.
       Clinton had just used his new line-item veto power to 
     strike the dining hall's proposed $4.5 million rehab from one 
     of the annual spending bills, and Burns, a senior member of 
     the Senate Appropriations Committee with enormous 
     responsibility for military construction projects, told 
     Clinton he was ``disappointed'' by the decision. He wanted to 
     discuss it ``and other important projects'' at ``your 
     convenience.''
       The advent of the line-item veto has shaken the 200-year-
     old power relationships in the federal government. While 
     presidents have always paid close attention to their own 
     priorities, the veto has given them an unprecedented ability 
     to micromanage the appropriations process.
       White House sources say the line-item veto has provoked a 
     blizzard of letters and phone calls from Congress to Clinton, 
     touting the merits of tiny projects that until this year were 
     tucked so deeply into appropriations bills that they scarcely 
     merited a presidential glance.
       Thus Burns, chairman of the Senate's military construction 
     subcommittee, lost his own project in his own bill. Burns 
     shrugged off the snub, but said, ``We haven't given up on 
     this.'' The Malmstrom rehab, he said, is included in 
     legislation to override the veto that the Appropriations 
     Committee approved yesterday.
       Micromanaging projects may be the most obvious evidence of 
     the new executive presence in Congress's business, but many 
     experts and lawmakers believe it may be only the tip of the 
     iceberg. Both Republicans and Democrats worry presidents may 
     use the veto to extract promises of support on unrelated 
     legislation, exact revenge against political enemies or to 
     make policy, leaning on individual lawmakers where they are 
     most vulnerable--tending to their home town affairs.
       ``It's not lost on me that this has political overtones, 
     but that's fine, it comes with the territory,'' said Sen. 
     Rick Santorum (R-Pa.), a conservative, who, like Burns, lost 
     a military construction project to the veto pen. ``If you're 
     a big boy, you take your lumps and go after them next year.''
       But many lawmakers have decided not to sit still, and 
     budget mavens on Capitol Hill are brainstorming ways to 
     counter or cope with the veto. Some appropriators are talking 
     about legislative mechanisms to immunize particular items; 
     others are suggesting that obvious veto bait be jettisoned 
     from the final versions of bills.
       Others see the veto as a precedent-setting escape mechanism 
     that could be used to break deadlock on controversial 
     appropriations bills. They say the president could veto 
     provisions he opposes, but let the rest stand, thus averting 
     the danger of a government shutdown or the need for an 
     interim spending measure based on the previous year's 
     expenditures. Congress has yet to clear six of the 13 annual 
     spending bills, three weeks after the start of the fiscal 
     year.
       Still, cautioned House Appropriations Committee Chairman 
     Bob Livingston (R-La.), it is too early to predict what will 
     happen. ``When the president signed the line-item veto 
     legislation we were all shooting in the dark as far as how it 
     would work. We are still groping.''
       One thing on which almost everyone interviewed could agree, 
     however, was that the line-item veto would not serve as a 
     significant brake on federal spending, even for parochial 
     ``pork-barrel'' projects. Of the five appropriations bills 
     signed so far, only $458 million in projects has been lined 
     out by Clinton, or less than a percentage point of the $291.3 
     billion in the bills.
       ``The line-item veto is never going to be a deficit 
     reduction tool, and you think they [Congress] would have 
     realized it when they gave it to the president,'' said 
     Stanley E. Collender, an expert on federal spending issues. 
     ``It's a raw exercise in power.''
       The line-item veto, a pillar of the House Republicans' 
     ``Contract With America,'' passed both houses of Congress 
     overwhelmingly and was signed into law in early 1996.
       It took effect during the budget year that began Oct. 1.
       The law has been challenged in court for radically altering 
     the balance of power within the federal government without 
     the enactment of a constitutional amendment. Many experts 
     believe the law will be struck down, but until it is, the 
     president for the first time in history may delete individual 
     spending items from appropriations bills without vetoing the 
     entire bill.
       Clinton first used the authority in August to veto three 
     provisions from the five-year omnibus budget agreement, but 
     it was not until Oct. 6, when he struck 38 projects worth 
     $287 million from Burns's military construction 
     appropriations bill, that he caught Congress's attention.
       ``He had to convince everybody he was willing to use it,'' 
     Collender said.
       Lawmakers were convinced. The vetoes touched off an uproad 
     among congressional leaders who had not been consulted in 
     advance. ``We're dealing with a raw abuse of political power 
     by a president who doesn't have to run again,'' thundered 
     Senate Appropriations Committee Chairman Ted Stevens (R-
     Alaska).
       But since the military construction vetoes, Clinton has 
     used the authority sparingly on three other appropriations 
     bills, prompting speculation in some quarters that he had 
     become gun shy after the initial upheaval.
       Just yesterday, Office of Management and Budget Director 
     Franklin D. Raines acknowledged that several projects were 
     mistakenly crossed out of the military construction bill. In 
     a letter to Stevens, Raines said, ``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.''
       ``This is clearly evolving,'' said Senate Budget Committee 
     staff director G. William Hoagland. ``Maybe like the kid in 
     the candy store, his eyes were bigger than his stomach, and 
     now he sees he has to be careful not to jeopardize the 
     power.''
       But OMB spokesman Lawrence J. Haas said there was no 
     ``pattern'' of political manipulation. The president, he 
     said, was trying to use the veto ``because of the substance 
     before him, not because of the politics.''
       A crucial test may come next week when Clinton will examine 
     the Veterans Affairs-Housing and Urban Development and 
     independent agencies appropriations bill. Lawmakers 
     acknowledge it is full of special projects, and one White 
     House source described the bill as ``one of the most project-
     based in years.''
       Despite uncertainty about how Clinton will next use the 
     veto, it is clear that Congress is wary and mistrustful. 
     ``I've never seen a vote taken where more people wanted their 
     vote back,'' said House Appropriations Committee member Rep. 
     Jose E. Serrano (D-N.Y.), who opposed the line-item veto.
       Indeed, hundreds of lawmakers have been contacting the 
     White House since the military construction bill. Burns and 
     Santorum wrote to complain about vetoes already exercised and 
     to warn of adverse consequences to military readiness.
       Florida Sens. Bob Graham (D) and Connie Mack (R), by 
     contrast, wrote a joint letter stressing the need for $1 
     million to establish a Central Florida High Intensity Drug 
     Trafficking Area. ``We would request that you keep in mind 
     the importance of the Central Florida HIDTA to the national 
     war on drugs and to us personally as you consider the Fiscal 
     Year 1998 Treasury Appropriation,'' the letter said. The line 
     item survived.
       Among those who lost favored projects, Rep. Jerry Lewis (R-
     Calif.) was still steamed a week after Clinton vetoed his 
     district's $4 million breast cancer research grant. And he 
     spoke of exacting a penalty--suggesting he might oppose 
     Clinton in his efforts to obtain ``fast-track'' authority to 
     negotiate trade agreements. ``I don't like to link things,'' 
     he said, but ``there is a two-way street here.''
       Collender cautioned that in the revenge game, ``the 
     president holds all the cards.'' A member may withhold one 
     vote, but he will lose on another bill or be embarrassed on 
     another line-item, Collender said. ``The president may lose a 
     battle, but he will win the war.''
       Most lawmakers, however, agreed with former Congressional 
     Budget Office director Robert D. Reischauer, who described 
     veto gamesmanship as ``a two-edged sword. The more influence 
     the president tries to exert, the more of a backlash he will 
     see. We have already seen it.''
       Sen. Bob Kerrey (D-Neb.) used the line-item veto as his 
     state's governor, but voted against the federal line-item 
     veto. He said it gave the president too much power, 
     suggesting he could use it to trade projects for votes. ``Now 
     the president is going to say, `I want X,' would you help me? 
     And the answer will be, `Yes, but what are you going to do 
     for me this year?'''
       This is one way the president can make policy with the 
     line-item veto. Another way is to veto items that effectively 
     eliminate entire programs. Clinton has already done this by 
     striking our $39 million for the SR-71 Blackbird spy plane, 
     said Sen. John McCain (R-Ariz.). ``They never wanted to keep 
     it.''
       McCain, a dedicated cost-cutter who has criticized Clinton 
     for not being aggressive enough with the veto, nevertheless 
     cautions against ``politicizing'' the process and permanently 
     poisoning relations between the two branches of government.
       As for those who complain about the veto, McCain noted that 
     many lawmakers spent years fighting for it when a Democratic 
     Congress remained adamantly opposed. ``To my Republican 
     colleagues, I say, `Be careful what you ask for. You may get 
     it.'''

  Mr. BYRD. Mr. President, I send to the desk the bill to which I have 
referred, and I ask unanimous consent that it be printed in the Record 
and that it be appropriately referred.
  The PRESIDING OFFICER. Without objection, it is so ordered. The bill 
will be received and appropriately referred.

[[Page S11187]]

  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1319

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. REPEAL OF THE LINE ITEM VETO ACT OF 1996.

       (a) In General.--The Line Item Veto Act (Public Law 104-
     130) and the amendments made by that Act are repealed.
       (b) Applicability.--The Impoundment Control Act of 1974 
     shall be applied and administered as if the Line Item Veto 
     Act had not been enacted.

  Mr. BYRD. I yield the floor.

                          ____________________