[Congressional Record Volume 144, Number 85 (Thursday, June 25, 1998)]
[Senate]
[Pages S7050-S7057]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                           *   *   *   *   *

       If the Line-Item Veto Act were valid, it would authorize 
     the President to create a different law--one whose text was 
     not voted on by either House of Congress or presented to the 
     President for signature. Something that might be known as 
     ``Public Law 105-33 as modified by the President'' may or may 
     not be desirable, but it is surely not a document that may 
     ``become a law'' pursuant to the procedures designed by the 
     Framers of Article I, [section] 7, of the Constitution.
       If there is to be a new procedure in which the President 
     will play a different role in determining the final text of 
     what may ``become a law,'' such change must come not by 
     legislation but through the amendment procedures set forth in 
     Article V of the Constitution.

  I close my reading of the excerpts from Mr. Justice Stevens' majority 
opinion. Let me read now, briefly, certain extracts from the concurring 
opinion by Mr. Justice Kennedy. He says this:

       I write to respond to my colleague JUSTICE BREYER, who 
     observes that the statute does not threaten the liberties of 
     individual citizens, a point on which I disagree. . . . The 
     argument is related to his earlier suggestion that our role 
     is lessened here because the two political branches are 
     adjusting their own powers between themselves. . . . The 
     Constitution's structure requires a stability which 
     transcends the convenience of the moment. . . . Liberty is 
     always at stake when one or more of the branches seek to 
     transgress the separation of powers.
       Separation of powers was designed to implement a 
     fundamental insight; concentration of power in the hands of a 
     single branch is a threat to liberty.

  The Federalist states the maxim in these explicit terms:

       The accumulation of all powers, legislative, executive and, 
     judiciary, in the same hands . . . may justly be pronounced 
     the very definition of tyranny.

  Others of my colleagues may wish to quote further.
  So what is involved here--what the Court's opinion is really saying--
what is involved when we tamper with checks and balances and the 
separation of powers, that structure in the Constitution? What is 
really involved are the liberties of the people.
  Blackstone says it very well in chapter 2 of book 1. Chapter 2 is 
titled ``Of the Parliament.''

[[Page S7051]]

  Blackstone said the same thing that the Court is saying:

       In all tyrannical governments, the supreme magistracy, or 
     the right both of making and of enforcing the laws, is vested 
     in one and the same man, or one and the same body of men; and 
     wherever these two powers are united together, there can be 
     no public liberty. . . .

  There it is. There can be no public liberty where these two powers 
are united in one and the same man or one and the same body of men.
  That is what the Line-Item Veto Act sought to do; namely, to unite 
the power of making law with the power of enforcing the law in the 
hands of one man: the President of the United States.
  Let me close with this excerpt from my own modest production titled 
``The Senate of the Roman Republic'':

       This is not a truth that some people want to hear.

  See, I was talking about the line-item veto. I spent years in 
preparation for this battle, and those years of preparation went into 
the writing of this treatise. I quote:

       This is not a truth that some people want to hear. Many 
     would rather believe that quack remedies such as line-item 
     vetoes and enhanced rescissions powers in the hands of 
     presidents will somehow miraculously solve our current fiscal 
     situation and eliminate our monstrous budget deficits. Of 
     course, some people would, perhaps, prefer to abolish the 
     Congress altogether and institute a one-man government from 
     now on. Some people have no patience with constitutions, for 
     that matter.

  Mr. President, I yield to my colleagues.
  Mr. MOYNIHAN addressed the Chair.
  The PRESIDING OFFICER. The distinguished Senator from New York is 
recognized.
  Mr. MOYNIHAN. I thank the Presiding Officer.
  Mr. President, I rise to praise the Constitution, but also 
appropriately perhaps in this setting, the Senate's foremost expositor 
and defender of that document, the Honorable Robert C. Byrd, who has 
today helped write a page in the history of liberty. I mean no less, 
and I could say no more.
  In 1995, led by Senator Byrd, Senator Levin, Senator Hatfield and 
others, we pleaded with the Senate not to do this, not to enact this 
legislation. We said it is unconstitutional.
  That is a large statement. We did not say it was unwise or 
unseasonal. We said it was unconstitutional. We take an oath to support 
and defend the Constitution of the United States against all enemies, 
foreign and domestic, and domestic enemies can arise from ignorance, 
well-intentioned ignorance.
  This surely was the case, because the bill passed 69 to 31.
  It passed in the face of the clearest injunction from George 
Washington in 1793 who said, I must sign a bill in toto or veto it.
  Senator Byrd, along with the Senator from New York and Senators Levin 
and Hatfield, chose, with two Members of the House, to sue the 
Government of the United States declaring this act to be 
unconstitutional. The Court held we did not have standing, although two 
Justices dissented. Justice Stevens, who wrote today's opinion, said in 
his dissent in that earlier case that we did have standing, and that 
the measure is unconstitutional. This was so plain to a scholar and a 
judge.
  I will take just a moment to add and to emphasize Senator Byrd's 
citations of the writers at the time the Constitution was composed.
  In the Federalist Papers, Madison at one point asks, given the 
fugitive existence--that nice phrase--of the Republics of Greece and 
Rome, why did anybody suppose this Republic would long endure? Because, 
it was answered, we have a new ``science of politics.'' The ancients 
depended on virtue to animate the people who govern. We have no such 
illusions. We depend on the clash of equal and opposed opinions and 
interests--the conflict of opposings interests and the separation of 
powers, those two fundamental ideas. And we wrote them into the 
Constitution: article I, the legislative branch; article II, the 
executive branch. And the court decisions in this matter, too, have 
hearkened back to those early times.
  I was struck by the opinion written by Judge Hogan, who earlier this 
year was the second judge of the U.S. District Court for the District 
of Columbia to hold this statute unconstitutional. He cited Edward 
Gibbon, whose ``Decline and Fall'' was published in 1776.
  Here is Gibbon's passage as cited by Judge Hogan:

       The principles of a free constitution are irrecoverably 
     lost when the legislative power is nominated by the 
     executive.

  And that is exactly the direction we were moving in.
  Justice Kennedy, in this morning's opinion, quoted a passage from the 
Federalist Papers in which Montesquieu, in the ``Spirit of the Laws,'' 
is cited:

       When the legislative and executive powers are united in the 
     same person or body, there can be no liberty.

  Liberty is what Senator Byrd was talking about. Liberty is what was 
upheld by the Supreme Court of the United States today, and liberty is 
what was put in jeopardy, I am sorry to say, Mr. President, by this 
body, by the other body, and by the President who signed the 
bill. Liberty was put in jeopardy. Liberty has prevailed.

  Let us learn from this. Let us not just let it go by and think 
nothing happened. Something did happen. A smallish group opposed it, 
took it to court, were rebuffed, took it to court again. We were there 
as amici and prevailed. But had we not, what would have happened? Had 
Robert C. Byrd not been here, what would have happened to our 
liberties? Not to our budget. These are inconsequential things compared 
to that fundamental.
  And so, sir, I rise to express the honor I have felt in your company 
and hope that history will long remember and largely note what was done 
today in the Court at the behest of the sometime majority leader, the 
distinguished upholder of our Constitution, Robert C. Byrd. Not as a 
man but as a man speaking for the ideas and principles on which the 
Constitution of the United States is based.
  Finally, sir, I express thanks to our counsel, Michael Davidson, 
Lloyd Cutler, Alan Morrison, Charles Cooper, and Louis Cohen--some of 
the finest attorneys in our country--who have helped us with this 
matter, and have generously done so on a pro bono basis. Professor 
Laurence H. Tribe at the Harvard Law School, and Dean Michael J. 
Gerhardt of Case Western University School of Law, were also of great 
assistance, as were others.
  I celebrate the moment and yield the floor.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The distinguished Senator from Michigan is 
recognized.
  Mr. LEVIN. Mr. President, the victory which we celebrate today is 
truly a victory for the American people and our Constitution. It has 
been a matter of real pride for me to be associated with Senators Byrd 
and Moynihan in the effort that we have made, first when we went to 
court to challenge the line-item veto and were parties where it was 
ruled we had no standing, and the substantive issue was then delayed to 
the decision of the Court today. But then when, as Amicus, we banded 
together--no longer was Senator Hatfield there, who is no longer a 
Senator, who was with us I know in spirit, and who had been with us in 
our first effort--to file an amicus brief to point out and to argue the 
fundamental premise of this Constitution's Article I.
  The article that relates to enactment of laws is that the only way a 
law can be made, modified, or repealed is if the Congress is involved. 
And Congress may want to give the President the power to repeal a law 
or modify a law or even enact a law on its own. We may want, for 
whatever momentary reason we have, to give a President the power to 
make, modify, or repeal a law, but, thank God, we have a Constitution 
which says we cannot do that. And, thank God, we have a Supreme Court 
today which upheld that very fundamental provision of the Constitution.
  What we tried to do--the Congress tried to do--in this law was to 
give the President the power to repeal a law which he just signed. What 
this law tried to do, and thankfully was not allowed to do, was to give 
the President the power to create a law today with his signature, a 
bill which had passed both Houses and which became law when he affixed 
his signature. But then this Line-Item Veto Act said that if he, within 
a certain number of days, wanted to modify that law, unless Congress 
acted to do something to the contrary, that he could unilaterally, on 
his own,

[[Page S7052]]

without congressional involvement, change the law of the land.
  Now, when we were all kids we learned about this Constitution and 
what those magic words ``law of the land'' meant, and what they mean 
today, and what, the Good Lord willing, they will always mean in this 
country--``law of the land''--all of us bound by it equally, no matter 
what our station or income or power, all bound by those words, ``law of 
the land.''

  When the President affixes his signature to a bill, that bill then 
takes on that power, in a free society, of being the law of the land. 
What the line-item veto bill, in the form we passed it, tried to do was 
to then say, ``Well, yes, it's the law of the land today, but the 
President can undo that law by himself, without congressional approval, 
if he does it in a certain number of days, in a certain type of way.''
  The Supreme Court said today that that cannot stand. The fundamental 
reasons have been cited by Senator Byrd, the mentor of all of us 
relative to the Constitution, and in so many other ways, and also cited 
by Senator Moynihan. The fundamental reason is, as the Federalist put 
it, as James Madison put it, that there could be no liberty where the 
legislative and executive powers are united in the same person.
  It is so fundamental, we often forget it. We should never forget it. 
The Supreme Court emblazoned it again on the constitutional 
consciousness of this country today. There can be no liberty where the 
legislative and executive powers are united in the same person. What 
this bill tried to do was to unite that power in the President by 
saying that he could make a law today as part of the legislative 
process, of which he must be a part, but then alone, as the executive, 
undo that law tomorrow--he could repeal a law on his own.
  That is what this Congress tried to give a President of the United 
States. What a power. And what a road that would have taken us down. To 
think that we would even consider giving a President the power to 
repeal or modify the law of the land on his own without congressional 
involvement, changing a law which had been properly enacted and 
presented--to think that we would do that is almost unimaginable. We 
tried, Congress did, and, thank God, we failed.
  I want to close by again thanking Senator Byrd for his leadership. I 
will always treasure a copy of the Constitution which he has inscribed 
to me, the same Constitution which he carries with him every day of his 
life, in his pocket, which he has so often on this floor brought out to 
make a point. I want to thank him.
  I want to thank Senator Moynihan and Senator Hatfield. I want to 
thank the counsel who represented us on this amicus brief that we just 
filed successfully: Mike Davidson, Linda Gustitus, Mark Patterson.
  I also want to thank, on behalf of all of us, the attorneys who 
represented us in our earlier effort, where we did not succeed because 
of a technical reason but where we nonetheless established that 
beachhead which today led to victory. And those lawyers were Mike 
Davidson, at that time as well; Lloyd Cutler; Lou Cohen; Alan Morrison; 
and Chuck Cooper.
  I also wish to thank Peter Kiefhaber. Although he is not a lawyer, he 
has one of the keenest legal minds--if you will excuse me--that I have 
ever seen. With their help, and the help of many others in this body, 
but mainly with the leadership of Senator Byrd, the position today was 
sustained that our liberty has been preserved in the most fundamental 
way.
  I yield the floor.
  The PRESIDING OFFICER. The time allotted to the Senators has expired.
  Mr. McCAIN. Mr. President, parliamentary inquiry.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. McCAIN. Didn't Senator Coats and I have time allotted?
  The PRESIDING OFFICER. Under the previous order, the Senators both 
from Indiana and Arizona will now be recognized for 30 minutes.
  Mr. BYRD. Mr. President, would the Senators allow me to close our 
comments on this highly important subject? I will be brief.
  Mr. McCAIN. I ask unanimous consent that the Senator from West 
Virginia be allowed to speak for as long as he desires.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. I thank the distinguished Senator from Arizona. I also 
thank the Senator from Arizona, Mr. McCain, and the Senator from 
Indiana, Mr. Coats, for their steadfast support of that in which they 
believed and concerning which we disagreed.
  I have, from time to time, found myself wrong in life, and I have 
learned some lessons in being wrong. But Senators Coats and McCain 
never faltered in their efforts. They were very worthy protagonists of 
their cause. I salute them, admire them, and respect them.
  Mr. President, if I may add just this: we should learn a lesson by 
this experience. We have a duty as Members of the Senate to support and 
defend the Constitution. Some of us read it differently, understand it 
according to our own lights differently, perhaps.
  We should understand that it is up to us to fight to preserve that 
Constitution, to protect it, to support it, to defend it. We should not 
pass off to the Supreme Court of the United States the duty that is 
ours as elected representatives of the people in this country--a duty 
which is ours, to study the Constitution, to study its history, the 
constitutional history of America, study the history of American 
constitutionalism, to study the history of England, to study the 
history of the ancient Romans, to study the colonial experience, to 
reflect upon the church covenants, to reflect upon the Bible and its 
teachings of that federation, the twelve tribes of Israel. We should do 
our very best to uphold that Constitution and again not to depend upon 
the Supreme Court of the United States to do our work. We should not 
hand off our responsibility to the Supreme Court.
  In this instance, I am proud of the Supreme Court. At no moment in my 
life have I ever been more proud of the Supreme Court of the United 
States than I am today. God save that honorable Court!
  I close, if I may, with the lines written by Henry Wadsworth 
Longfellow in ``The Building of the Ship.'' I think they are most 
appropriate for this occasion:

     Thou, too, sail on, O Ship of State!
     Sail on, O Union, strong and great!
     Humanity with all its fears,
     With all the hopes of future years,
     Is hanging breathless on thy fate!
     We know what Master laid thy keel,
     What Workmen wrought thy ribs of steel,
     Who made each mast, and sail, and rope,
     What anvils rang, what hammers beat,
     In what a forge and what a heat
     Were shaped the anchors of thy hope!
     For not each sudden sound and shock,
     'T is of the wave and not the rock;
     'T is but the flapping of the sail,
     And not a rent made by the gale!
     In spite of rock and tempest's roar,
     In spite of false lights on the shore,
     Sail on, nor fear to breast the sea!
     Our hearts, our hopes, are all with thee,
     Our hearts, our hopes, our prayers, our tears,
     Our faith triumphant o'er our fears,
     Are all with thee,--are all with thee!

  The PRESIDING OFFICER. Under the previous order, the Senators from 
Arizona and Indiana are recognized for 30 minutes.
  Mr. McCAIN. Mr. President, there is a line that has entered American 
slang, and that is, ``That is a tough act to follow.'' Mr. President, I 
think that certainly applies now when I make my remarks following those 
of our most distinguished Senator of the U.S. Senate, Senator Byrd.
  Senator Byrd, I know that Senator Coats will say this for himself, 
but both of us appreciate the honorable conduct of this many long 
years' debate that we have had together--and, unfortunately, we will 
have in the future, since Senator Coats and I do not intend to give up 
on this issue.
  More importantly, there was a seminal moment, I think after about 5 
years of our debating this issue, when you walked up to Senator Coats 
and me and said, ``I believe you're really sincere in your belief that 
the line-item veto is both constitutional and appropriate for 
America.'' That was, frankly, one of the greatest compliments that 
either one of us have been paid in our time here in the Senate.
  May I say that Senator Coats and I continue to intend to fight this 
battle. I must say, in all sincerity, it will be much more difficult 
for me. It will be a much more arduous task without the

[[Page S7053]]

companionship and friendship of an individual that has the highest 
moral standards and the highest dedication and commitment to the 
betterment of this Nation and its families than my dear friend from 
Indiana. He is not gone yet from this body, and we have the rest of the 
year to fight this battle, but one of my deepest regrets is that my 
dear friend and partner will not be there.
  Mr. President, I intend to speak briefly on this issue, and I know 
that Senator Coats does, also. Let me make just a couple of comments.
  One, it is important to point out that my understanding of the reason 
given by the Supreme Court for the 6-3 decision was that the 
Constitution requires every bill to be presented to the President for 
his approval or disapproval--every bill. In other words, my 
understanding of this decision is not that the concept of transferring 
this power to the President of the United States lacked 
constitutionality, but the fact that each bill was not sent to the 
President for approval or disapproval was where the Supreme Court made 
this decision.
  Now, if that is the case, it is an argument that S. 4--which Senator 
Coats and I cosponsored, and was passed by a vote of 69-29, known as 
separate enrollment--will be constitutional. As we all know, we went 
into negotiations with the House that passed enhanced recession--the 
budgeteers and Finance Committee people--and we made certain 
concessions which resulted in enhanced recession. But the original bill 
that was passed by a vote of 69-29 through the Senate was separate 
enrollment, which meant that every bill would separately be presented 
to the President of the United States for his approval or disapproval.
  In all due respect to my friend from Michigan, the allegation that 
somehow we were handing constitutional power--if I wrote the words down 
correctly--``to repeal or modify laws without congressional 
involvement,'' clearly it calls for congressional involvement. The 
Senator from Michigan knows that. If he vetoes it, it comes back to the 
Congress of the United States for veto override. That is not 
noninvolvement. Let's be very clear here as to what the original bill 
that passed 69-29 said.
  Finally, we can't justify spending $150,000 to fund the National 
Center for Peanut Competitiveness, or $84,000 earmarked for Vidalia 
onions. My all-time favorite--one year we spent a couple million 
dollars to study the effect on the ozone layer of flatulence of cows. 
We can't do that kind of thing.
  Unfortunately, the President of the United States now, again, does 
not have the power that 43 Governors in America have, and that is the 
line-item veto power.
  Today, Senator Coats and I will reintroduce the separate enrollment 
bill that passed 69-29 through the U.S. Senate. We believe that clearly 
has constitutionality, and we will be getting expert opinions. But our 
initial understanding of the Supreme Court decision is based on the 
fact that these were not separate bills sent to the President of the 
United States for approval or disapproval. The fundamentals of the 
separate enrollment bill, which passed in the 104th Congress by a vote 
of 69-29, was exactly that and will meet those standards.
  We will have many more hours of discussion and debate on this issue 
both in the public forums around America as well as on the floor of the 
Senate. I thank Senator Byrd for his extreme courtesy. I look forward 
to further debate with him and others on this issue. I believe the time 
and the opinion of the American people, as well as the Constitution of 
the United States, is overwhelmingly in favor of the line-item veto in 
the form of separate enrollment.
  Today, The Supreme Court struck down the line-item veto in a 6-3 
decision. I am very saddened by this decision. This 6-3 decision 
concludes that the line-item veto act violates the part of the 
Constitution requiring every bill to be presented to the President for 
his approval.
  This is a bad decision. Polls from previous years indicate that 83 
percent of the American people support giving the President the line-
item veto. We need the line-item veto act to restore balance to the 
federal budget process.
  The line-item veto act was a vital force in restoring the appropriate 
balance of power, and eliminating wasteful, unnecessary pork-barrel 
spending. Unfortunately, pork barrel spending is alive and well. Most 
recently, the FY 1999 Agriculture Appropriations bill had $241,486,300 
million in specifically earmarked pork-barrel spending. The FY 1999 
Energy Water Appropriations Bill contained approximately $649,428,000 
million for specially earmarked projects that were not included in the 
budget request.
  We can not afford this magnitude of pork barrel spending when we have 
accumulated a multi-trillion dollar national debt. Right now, today, we 
use a huge portion of our federal budget to make the interest payments 
on our multi-trillion national debt. In fact, this interest payment 
almost equals the entire budget for national defense.
  Mr. President, we can not justify spending $150,000 to fund the 
National Center for Peanut Competitiveness, or an $84,000 earmark for 
vidalia onion, when we should be using this money to pay down the 
national debt, or provide tax cuts for hard-working middle class 
Americans. Until recently, we amassed huge budget deficits. If we are 
to realize our anticipated future budget surpluses, we must exercise 
fiscal restraint.
  Our past budget deficits can return to haunt us. These past deficits 
did not occur by accident. They occurred because we shifted the balance 
of power away from the executive branch to the legislative branch. In 
1974 the Budget Impoundment Act was passed, which deprived the 
President of the United States of the authority to impound funds. This 
was a tremendous shift in power. This shift eroded the executive 
branch's ability to exercise fiscal responsibility and fiscal 
restraint.
  Our objective is to curb wasteful pork-barrel spending. Even though 
the line-item veto was recently struck down, there are other means to 
reaffirm the appropriate balance of power, and curb pork-barrel 
spending.
  Shortly, Senator Coats and I will introduce another approach to 
curbing Congress' appetite for mindless unnecessary and wasteful 
spending of hard-working American's tax dollars.
  Essentially, the Separate Enrollment Act of 1998 will require that 
each item in any appropriations measure or authorization shall be 
considered to be a separate item.
  Legal scholars contend that the separate enrollment concept is 
constitutional. Congress has the right to present a bill to the 
President of the United States. Separate enrollment merely addresses 
the question of what constitutes a bill. It does not erode or interfere 
with the presentment of the bill to the President. Under the rulemaking 
clause, Congress alone can determine the procedures for defining and 
enrolling a bill. Separate Enrollment is constitutional and will 
clearly work.
  Separate Enrollment is not a new concept. This concept is not 
controversial. The Senate adopted S.4, a separate enrollment bill in 
the 104th Congress, by a vote of 69 to 29. Its mechanics are simple * * 
*. This bill requires each spending item in legislation to be enrolled 
as a separate bill. If the President chose to veto one of these items, 
each of these vetoes would be returned to Congress separately for an 
override.
  The Separate Enrollment Act will help to restore some of the 
Executive Branch's role in the Federal budgeting process. The current 
budget process is in disarray. We have a huge national debt. We have 
budget surpluses that can easily be ``spent'' away. Our system of 
checks and balances is out of sync in the budget process. Congress has 
too much power over the federal purse strings, and the President has 
too little. While the line-item veto is not an instant fix to this 
dilemma, it is a valuable tool to realign the balance of powers, and 
check Congress' appetite for reckless pork barrel spending.
  This is a nonpartisan issue. The issue is fiscal responsibility. We 
have 100 Senators, and 435 Representatives. It is hard to place 
responsibility upon any one member. Thus, no one is accountable for our 
runaway budget process. The line-item veto act, or a separate 
enrollment bill would make it more difficult for the Congress to blame 
the President for not vetoing an entire appropriations bill. Our new 
proposal will allow the President to surgically remove wasteful pork-
barrel spending from appropriations and authorizations bills.

[[Page S7054]]

  Past Presidents have sought the line-item veto. Congress finally 
agreed in 1995, when we passed the line item veto, to redistribute some 
of the power in the federal budget process. By giving the President a 
stronger role, the line-item veto, or a Separate Enrollment Act would 
instill additional Presidential accountability and Federal spending, 
and reduce the excesses of the congressional process that focus on 
locality specific earmarking, and caters to special interest, not the 
national interest, as it should.
  Mr. President, in closing, I simply ask my colleagues to be fair and 
reasonable when addressing the issue on fiscal responsibility. The 
line-item veto and the shifting the balance of power in the budget 
process is vital to curbing wasteful pork-barrel spending. Again, I 
look forward to the day when we can go before the American people with 
a budget that is both fiscally responsible and ends the practice of 
earmarking funds in the appropriations process.
  Mr. President, I yield the floor at this time to the Senator from 
Indiana.
  The PRESIDING OFFICER. The Senator from Indiana is recognized.
  Mr. COATS. Mr. President, I thank my colleague from Arizona for his 
kind remarks.
  I also want to congratulate the Senator from West Virginia for a 
significant victory. The Senator had indicated during the debate that 
he believed and had reason to believe that the bill we were sending to 
the President, which was signed by the President and exercised by the 
President, would not stand constitutional muster. The Court affirmed 
that conclusion.
  I also congratulate the Senator from West Virginia, Senator Byrd, for 
being the guardian of this institution. He stands at the gate to retain 
its hallowed practices and rules and traditions. And in this modern age 
of seeking the expedient and convenient over the tried, tested, and 
true, the Senator's contributions are extremely important to the future 
of this institution. I commend him for that. He is also a 
constitutional scholar without peer in this institution.
  This Senator, as I did yesterday and as I do today, stands up with 
some trepidation in terms of discussing issues and matters of the 
Constitution, because I know I am doing so with someone who has studied 
it for far longer and has a far better understanding of it than I have.
  When Senator McCain and I addressed the issue of the line-item veto, 
we consulted a number of constitutional scholars. It is fair to say 
that there is disagreement. There are constitutional scholars, 
recognized scholars, who believed that the process of enhanced 
rescission was not line-item veto, per se, enhanced rescission was a 
constitutionally acceptable process, that it did retain a balance of 
power, it did retain the prerogative of Congress to override the 
Presidential veto. And it is my understanding, along with Senator 
McCain's, on a quick reading, I would say--not even a full reading, but 
a very brief overview of the decision that is handed down, and I look 
forward to reading the entire case--that what the Court addressed was 
more procedural than principle, the procedure of the omnibus bill being 
presented to the President and, as the Senator from Michigan said, 
being signed, and then in a sense accepted and then reviewed relative 
to certain aspects of that.
  The Court obviously sided with the argument so ably presented by the 
Senator from New York, who has left the floor--the Senator from 
Virginia, the Senator from New York, the Senator from Michigan, and 
others.
  It is the principle that Senator McCain and I are attempting to 
address, not the procedure. We had spent numerous hours of discussion 
and debate in attempting to establish a procedure whereby the principle 
of a balance against what we considered to be--and many, I think, of 
the American people considered to be --an irresponsible exercise of the 
spending power of the Congress--not the right to have the power of the 
purse, but an irresponsible use of that, and the voluntary transfer of 
some of that power, yet retaining a balance in terms of the division of 
power between the branches, as the founders intended. That was our 
intent.
  As Senator McCain said, the bill that passed the Senate with 69 votes 
as a separate enrollment procedure would have, I believe, addressed the 
concerns of the Court by presenting to the President separate bills on 
each line item of spending. We didn't include the tax issue. That was 
added at the request of members of the Finance Committee. Ours went 
specifically to spending items. That was different from what was passed 
in the House of Representatives and perhaps now, in retrospect, a 
faulty decision. We ceded the Senate procedure to the House procedure, 
and we paid the price of that ceding--or perhaps not; we don't know for 
sure what the Supreme Court would have done with that.

  The principle of each decision by the Congress standing on its own 
merits--having the light of day shine on that spending decision, so 
that the American people know that our yea is a yea and our nay is a 
nay, and not the procedure of hiding what arguably could be decisions 
on spending that would not stand the light of day and not receive a 
majority of support, because it is subsumed by the importance of the 
broader legislation--is really the principle that we are attempting to 
address.
  We want what is decided in the back halls to be debated on the Senate 
floor. We want to give each Senator and Representative the opportunity 
to say, ``I support that,'' or, ``I don't support that,'' and discuss 
it on the merits, rather than saying, ``I didn't know about that 
because it was added in the back room. It was part of a thousand-page 
bill, and we didn't have the time to peruse each line of that 
legislation. And, yes, had I had an opportunity to vote on that 
separately, there is no way I would have supported that irresponsible 
use of the taxpayers' dollars.''
  So we are seeking a way of attempting to bring into the process a 
means by which we could achieve a check against imbalance, against what 
we considered to be spending that had not been given the opportunity to 
be addressed and discussed and debated on the merits. We think it is a 
deceptive practice. We think it is a distasteful practice. We think it 
does not enhance the public's opinion of this institution and the 
processes by which we make decisions. We think it is an irresponsible 
exercise of the fiscal discipline that the taxpayers of America expect 
us to exercise in the spending of their dollars.
  That is the genesis behind the legislation that Senator McCain and I 
have authored and fought for 10 years to pass, and finally did pass.
  So are we disappointed with the Supreme Court decision? Yes, deeply 
disappointed. Do we see it as a permanent defeat? No, we don't. We 
think a preliminary reading, and hopefully a further careful reading 
and study of the Supreme Court's decision, will indicate that the Court 
decided on the basis of the procedure used, not on the basis of the 
principle involved. The principle involved ought to be at the center 
and heart of our debate and discussion. I hope that as we engage in 
future battles--I guess that is the proper word, because those were 
heated debates, but principled, heated debates--we can focus on the 
principle and not the procedure.
  Questions have been raised about the cumbersome nature of separate 
enrollment procedurally, with a large piece of legislation having to be 
broken down into its separate pieces. Up until a few years ago that was 
an argument that carried a lot of persuasion and a lot of weight. But 
with the advent of modern technology--computer technology--and with 
some visits by myself and others to study with the enrollment clerk, 
and the witnessing of the utilization of that modern technology in 
terms of how bills are printed, how they are enrolled, and how they are 
presented for enrollment, we have the opportunity to take advantage of 
those marvelous improvements in the way in which we procedurally enroll 
legislation that is now technologically feasible. What would have taken 
literally days and perhaps hundreds of enrollment clerks, scribes, 
working away diligently in the basement of the Capitol separating out 
the bill, enrolling separate pieces of legislation, and having those 
signed and presented to the President of the United States, and having 
the President attempt to deal with it to the point he would have no 
other time to

[[Page S7055]]

deal with any of his other duties and certainly achieve writers' cramp, 
that no longer is a problem. Technology has allowed us to bypass that.
  So we intend to introduce as early as today a procedure--a process--
which 69 of our Members, on a bipartisan basis, have supported, which 
addresses the principle of the issue and not the procedure of the 
issue. We look forward to the debate that will occur. We look forward 
to the opportunity to give our Members, all 69 of them--Democrats and 
Republicans--the opportunity to, once again, support a responsible 
practice of spending the taxpayer dollars in the most responsible way 
that we can.
  Mr. President, I will close. I wish I were as eloquent and as 
articulate as the Senator from West Virginia. I wish I could reach into 
my mind and recall the words of the famous scholars, constitutional 
experts, or a poem that was appropriate to the discussion. I don't have 
that capacity. I don't have that talent. I admire that greatly in 
Senator Byrd. What discipline it must have taken to commit to flawless 
memory the words of historians, the thoughts of some of the greatest 
thinkers that this world has ever seen, the magic and beauty of the 
poetry that expresses those thoughts in the recall that the Senator 
has.
  I am leaving the Senate this year. I will take with me many lifetime 
memories, not of process but of people--some of the most extraordinary 
people, I think, ever to have had the privilege of being born into this 
greatest of all nations and serve in this greatest of all institutions. 
I take away a vast reservoir of memories of 100 unique individuals with 
some of the greatest and most extraordinary talents to be found 
anywhere. And none of them, I think, transcends the abilities and the 
extraordinary capabilities of the Senator from West Virginia, who I 
have enjoyed serving with, even though we have found ourselves on 
opposite sides of a number of issues, and we have found ourselves on 
the same side on several issues.
  Several Senators addressed the Chair.
  The PRESIDING OFFICER. The Senator from Connecticut is recognized.
  Mr. DODD. Mr. President, I don't want to interrupt this flow, but I 
want to join very briefly.
  Mr. President, I stand here merely as a foot soldier in this 
discussion. However, I would like to take a moment to offer some 
comments on the Supreme Court's decision today to strike down the line-
item veto as unconstitutional.
  I am proud to say that I was one of 29 Members who in March of 1995 
cast a vote against the line-item veto, along with the distinguished 
Senator from West Virginia, the distinguished Senator from Michigan, 
and Senator Moynihan and 25 others on that day who expressed their 
opinion that they opposed this legislation--not as I recall, although 
others may have said, because they disagreed with the approach to deal 
with the budget issue. In my view, it had little or nothing to do with 
the budget process, but had everything to do with the issue that 
provoked the briefs to be filed, amicus curiae briefs, and the 
subsequent legal actions--that issue is the constitutionality of the 
line-item veto.
  I just wanted to point out that I was looking over the vote. And of 
the 29 people who voted against the line-item veto in March of 1995, 
six Members of that group of 29 have since left the Chamber. This list 
includes our distinguished colleagues Senators Hatfield, Johnston, 
Nunn, Pell, Pryor, and Simon. Two others who voted nay--Senators 
Bumpers and Glenn--will be leaving at the end of this Congress.
  The other day, someone counted some 100 different proposals which are 
being drafted or have been introduced that would amend the Constitution 
in one way or another.
  I am not questioning the intentions or even the desired goals that 
those constitutional proposals have in mind. But the framers and the 
founders of the document, which I happen to carry with me as well--a 
lesson I learned one day watching the distinguished colleague from West 
Virginia. I got my copy of the Constitution. I carry it in my pocket 
every single day, and have ever since, along with a copy of the 
Declaration of Independence, which is included here.
  It is our job here to do everything we can to advance the goals and 
desires of our society, particularly as we enter a new millennium and a 
new century. But the fundamental principles, values and ideals 
incorporated in the Constitution, the basic organic law of our country, 
are rooted in sound philosophical judgments. And the temptation, 
particularly in the midst of great difficulties--and certainly the 
budget crisis was no small difficulty with $300 billion of deficits a 
year, $4 trillion in debt--the temptation to want to come up with an 
answer to that was profound and significant.
  There will be other such crises, maybe not of that nature, but maybe 
of other natures that will come along, and the temptation will be to 
solve that problem and to do so by circumventing the values and 
principles incorporated into the Constitution. I only hope that we 
remind ourselves of what our forbearers had been struck with; and that 
is not to in any way denigrate or detract from the fundamental 
principles of the Constitution as we struggle through a very 
deliberative, painful, oftentimes annoying and frustrating process 
called democracy to address the issues of our day.
  I often point out to my constituents back home that as a country we 
have been through a great Civil War, two World Wars in this century, 
and a Great Depression when I am sure the temptations were great to 
amend or suspend parts of our Constitution, our Bill of Rights 
particularly. And we never saw fit to do so during all of those great 
crises. We never saw fit to do so. We thrive and are strong today as a 
nation without having made a single change in the Bill of Rights--not 
one change since those words were first crafted and drafted in 1789--
not a single word. Not a single syllable has been changed in the Bill 
of Rights.
  I hope that as we look forward to a new century and a new millennium, 
with all the unanticipated problems we face as a nation in the world, 
that we will not be tempted to be drawn ``to the flame''--to use the 
analogy of the distinguished Senator from West Virginia--to draw to 
that flame which could defeat it. And I will not put flame to this 
document and destroy the very principles and values which I think are 
the rationale and reason for why we have achieved the level of 
greatness that we have as a people.
  As one Member of this body, I suspect, speaking on behalf of the six 
who are no longer here, and those who are not here on the floor, we 
thank you immensely on behalf of our constituents, both past, present 
and in the future, for the three of you, along with Senator Hatfield 
who led this effort beyond the Chamber here and brought the matter to 
the highest court of our land. I also extend my gratitude to those six 
Supreme Court Justices for the decision they handed down today.
  With that, Mr. President, I thank my colleague for yielding. And, 
again, I have said to him in meetings of our own committee, where we 
sat together and worked together so many times, Dan Coats is going to 
be missed in the Senate. He has been one terrific Senator, and Indiana 
can be very proud that they sent someone of his talent, ability, and 
tenacity. I would much rather have him as an ally than an opponent. I 
have been an ally of his and have been on the opposite side. Believe 
me, it is much more pleasant to have Dan Coats on your side. It is a 
privilege to say so on this floor, as I have on other occasions.
  Mr. BYRD. Will the distinguished Senator yield?
  Mr. COATS. I would be happy to yield.
  Mr. BYRD. I thank the distinguished Senator from Connecticut, Mr. 
Dodd, for his incisive observations with respect to the roster of those 
who voted against the Line-item Veto Act on March 23, 1995, and for his 
very eloquent statement.
  Mr. CONRAD addressed the Chair.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. CONRAD. Mr. President, I would like to join in thanking----
  The PRESIDING OFFICER. Does the Senator from Indiana yield to the 
Senator from North Dakota?
  Mr. COATS. I would be happy to do that if I could just do a unanimous 
consent request. Then I would be happy to yield the floor.
  Mr. CONRAD. I would be very happy to yield.
  Mr. COATS. I thank the Senator.

[[Page S7056]]

  First of all, Mr. President, in relationship to the issue of 
discussion, I believe it important to the legislative history of the 
Line Item Veto Act to have the brief prepared by the Senate counsel in 
support of the line item veto submitted to the Record. However, in the 
spirit of fiscal responsibility, to spare the taxpayer expense of 
printing the entire document, I ask unanimous consent that the front 
cover of the brief be printed in the Record. The cover provides the 
necessary source information to assist anyone seeking to review the 
full document in locating a complete copy. I encourage Senators to 
examine this excellent brief along with the Court decision.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                              No. 97-1374

    [In the Supreme Court of the United States, October Term, 1997]

  William J. Clinton, et al., Appellants, v. City of New York, et al.

                                 ______
                                 

Robert E. Rubin, Appellant, v. Snake River Potato Growers, Inc., et al.


  on appeal from the United States district court for the district of 
                                columbia

    Brief of the United States Senate as Amicus Curiae for Reversal

     Thomas B. Griffith,
       (Counsel of Record),
       Senate Legal Counsel,
     Morgan J. Frankel,
       Deputy Senate Legal Counsel,
     Steven F. Huefner,
     A. Christopher Bryant,
       Assistant Senate Legal Counsel,
       Office of Senate Legal Counsel,
       642 Hart Senate Office Building,
       Washington, D.C. 20510,
       Counsel for the U.S. Senate.
     March 1998.

  Mr. FEINGOLD. Mr. President, I come to the floor today to discuss 
briefly the Supreme Court's decision earlier today to strike down the 
line-item veto law and to a new approach to the line-item veto that 
aims to cut some of the vast fat contained in our annual spending 
bills, but will stand up to constitutional scrutiny.
  Though the Court found that the line-item veto legislation was 
flawed, I supported the experimental line-item veto authority we gave 
the President in 1996 as a means of controlling Congress' voracious 
appetite for pork.
  I had great concerns about many aspects of the legislation. My 
greatest concern was granting a greatly expanded veto authority that 
retained the two-thirds override threshold that the Constitution 
provides for the Presidential veto of entire bills. Extending that 
authority for individual sections of a bill worried me. And the Court 
found that this represented an inappropriate shift in the balance of 
power from the legislative branch to the executive. I do not question 
the Court's decision.
  Mr. President, I don't believe, nor have I ever believed that 
enhanced rescission authority, whether it be the line-item veto or some 
other vehicle, is the whole answer to our deficit and spending problem, 
or even most of the answer, but it certainly can be part of the answer.
  I am working on a bill that would allow expedited rescission. It 
promises to be a useful tool to help reduce the Federal deficit and 
bring the Federal budget truly into balance, and more importantly to 
bring reform to our appropriations process.
  The introduction of this bill would be extremely timely given this 
body's consideration of the fiscal year 1999 spending bills. Ideally, 
we would have an expedited rescissions law in place for this year's 
appropriations bills, but I know that won't happen. What surely will 
happen is the stealthy insertion of an extensive list of wasteful and 
unnecessary projects and programs that pick clean the wallets of this 
country's taxpayers.
  This bill would allow the Congress and the President to work together 
to exercise the kind of specific budget pruning that many of us feel is 
a necessary response to the budget abuses that persist in the 
appropriations process.
  Mr. President, this bill would enable the President to propose 
eliminating specific spending items for veto and would allow Congress 
to support or oppose the President's suggestions on a simple up or down 
vote.
  This bill would accomplish the objectives of the line-item veto--
eliminating wasteful and unnecessary spending--but without violating 
the constitutional principles of separation of power and balance of 
power.
  Mr. President, I believe this bill would be an effective means of 
fighting wasteful spending, certainly something everyone opposes.
  Mr. COATS. Mr. President, I ask before I yield to the Senator how 
much time is remaining on the earlier allocated time?
  The PRESIDING OFFICER. Three minutes 20 seconds.
  Mr. COATS. Is that sufficient? I yield the Senator the remainder of 
our time.
  Mr. CONRAD. I thank the Senator from Indiana very much for his 
courtesy.
  Let me just say I have found the Senator from Indiana to be among the 
most courteous of our colleagues, and we are very much going to miss 
him. I think he is an outstanding U.S. Senator, an extraordinarily 
decent person, and I am personally going to miss him from this body.
  Mr. COATS. I thank the Senator for those remarks. They are generous, 
and also the Senator from Connecticut, I appreciate his remarks. I 
don't want anybody to misunderstand those remarks or interpret those 
remarks to mean that the Senator is finished for the year. I expect to 
be back in the Chamber, and I hope that Senators feel the same way 
about me at the end of the session as they do now.
  Mr. CONRAD. I am sure we will.
  The PRESIDING OFFICER. The Senator from North Dakota.
  Mr. CONRAD. I thank the Chair. I take just a minute to thank the 
senior Senator from West Virginia, Mr. Byrd. I thank him for standing 
up to protect the Constitution of the United States. I don't think 
there is any higher responsibility for a Member of this body, because 
we all take a solemn oath when we are sworn in to preserve, protect, 
and defend the Constitution of the United States. That is the organic 
law of our country. It is a Constitution that is truly genius in what 
it has done for our country. We are a very young country, but already 
the rest of the world seeks to emulate us. And one of the reasons is 
the genius of that organic law, that document that has provided for the 
structure of this Government.
  Senator Byrd convinced me when we were debating the question of line-
item veto, and I must say the constituency pressure from my State was 
all on behalf of supporting the line-item veto. I did not because I was 
convinced, after lengthy discussions with Senator Byrd, that it 
violated the Constitution of the United States and that, in fact, part 
of the genius of that document was the separation of powers and the 
power of the purse being put in the hands of the Congress of the United 
States to reflect the will of the people of this country. And to have 
that power diluted not because Members of Congress are seeking power 
but because the Constitution established the framework to protect the 
rights of the people, that is the extraordinary genius of our 
Constitution. And nobody has been more vigilant in defending that 
Constitution than the senior Senator from West Virginia, Mr. Byrd.
  I thank him because it was not an easy task. It was not a popular 
task. But he was right to do it. And the rightness of his position has 
been confirmed by this ruling by the Supreme Court. It was not a close 
ruling. By a 6 to 3 vote, the Supreme Court of the United States has 
said, yes, Senator Byrd and others who made that judgment were correct. 
We would be doing damage and injury to the Constitution of the United 
States if we were to approve the line-item veto that had been passed by 
the Congress of the United States.
  So I say to Senator Byrd a sincere thank-you, because what he has 
done is in the finest tradition of the Senate.
  I thank the Chair and yield the floor.
  Mr. BYRD. Mr. President, will the Senator yield?
  Mr. CONRAD. I am out of time.
  The PRESIDING OFFICER. The Senator's time has expired.
  The Senator from West Virginia.
  Mr. BYRD. I ask unanimous consent for 1 minute.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BYRD. Mr. President, I thank the distinguished Senator for his 
statement, for standing with the small group, small band, on March 23, 
1995. He perhaps did not at that time follow

[[Page S7057]]

the will of his people, but his people were served best by his 
decision, by the stand that he took, and in the long run I am sure they 
will admire him for it and respect him for it and reward him for it. 
His full reward comes from his conscience, his conscience that he did 
the right thing, that he helped to preserve the liberties of the people 
of his State and the people of the United States.
  Mr. LEVIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. I ask unanimous consent that the cover page of the amici 
brief referred to before that was filed by Senator Byrd, Senator 
Moynihan, and myself be printed in the Record.
  There being no objection, the brief was ordered to be printed in the 
Record, as follows:

                              No. 97-1374

    [In the Supreme Court of the United States, October Term, 1997]

 William J. Clinton, et al., Appellants, v. City of New York, et al., 
                               Appellees

                                 ______
                                 

  Robert E. Rubin, Appellant, v. Snake River Potato Growers, Inc., et 
                             al., Appellees


  on appeal from the united states district court for the district of 
                                columbia

  Brief of Senators Robert C. Byrd, Daniel Patrick Moynihan, and Carl 
             Levin as Amici Curiae in Support of Appellees

     Michael Davidson
       Counsel of Record
       3753 McKinley Street, N.W.
       Washington, D.C. 20015
     Of Counsel:
       Linda Gustitus
       Mark A. Patterson
     April 1998.

                          ____________________