SPEAKERS CONTENTS INSERTS
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ITEM VETO CONSTITUTIONAL AMENDMENT
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED SIXTH CONGRESS
H.J. RES. 9
MARCH 23, 2000
Serial No. 91
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Printed for the use of the Committee on the Judiciary
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Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
Page 3 PREV PAGE TOP OF DOCSPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York
THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director
Subcommittee on the Constitution
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HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina
MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York
CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel
C O N T E N T S
March 23, 2000
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H.J. Res. 9
Canady, Hon. Charles T., a Representative in Congress From the State of Florida, and chairman, Subcommittee on the Constitution
Baldacci, Hon. John E., a Representative in Congress From the State of Maine
English, Hon. Phil, a Representative in Congress From the State of Pennsylvania
Fisher, Louis, senior specialist in separation of powers with congressional research service, the Library of Congress
Hamilton, Marci A, Benjamin N. Cardozo School of Law
Miller, James C., III, counselor, Citizens for a Sound Economy and former director of the Office of Management and Budget
Page 6 PREV PAGE TOP OF DOC Moore, Stephen, director of fiscal policy studies, CATO Institute
Regalia, Martin, vice president of economic policy and chief economist, U.S. Chamber of Commerce
Schatz, Thomas A., president, Citizens Against Government Waste
Weich, Ronald, Citizens for the Constitution
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
Baldacci, Hon. John E., a Representative in Congress From the State of Maine: Prepared statement
English, Hon. Phil, a Representative in Congress From the State of Pennsylvania: Prepared statement
Fisher, Louis, senior specialist in separation of powers with congressional research service, the Library of Congress: Prepared statement
Hamilton, Marci A., Benjamin N. Cardozo School of Law: Prepared statement
Mecham, Ralph L., director, Administrative Office of the United States Courts: Letter to Hon. Charles Canady, dated March 22, 2000
Page 7 PREV PAGE TOP OF DOC Miller, James C., III, counselor, Citizens for a Sound Economy and former director of the Office of Management and Budget: Prepared statement
Moore, Stephen, director of fiscal policy studies, CATO Institute
Regalia, Martin, vice president of economic policy and chief economist, U.S. Chamber of Commerce: Prepared statement
Schatz, Thomas A., president, Citizens Against Government Waste: Prepared statement
Weich, Ronald, Citizens for the Constitution: Prepared statement
ITEM VETO CONSTITUTIONAL AMENDMENT
THURSDAY, MARCH 23, 2000
House of Representatives,
Subcommittee on the Constitution,
Committee on the Judiciary,
The subcommittee met, pursuant to call, at 10:05 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles T. Canady [chairman of the subcommittee] presiding.
Page 8 PREV PAGE TOP OF DOC Present: Representatives Charles T. Canady, Bob Goodlatte, William L. Jenkins, Melvin L. Watt.
Staff present: Cathleen Cleaver, Chief Counsel; Bradley S. Clanton, Counsel; Jonathan A. Vogel, Counsel; Susana Gutierrez, Clerk; Anthony Foxx, Minority Counsel; Sampak Gang, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN CANADY
Mr. CANADY. The subcommittee will be in order. The subcommittee meets today to conduct a hearing on H.J. Res. 9, which proposes an amendment to the Constitution of the United States allowing for an item veto of appropriations bills. The purpose of the line item veto amendment, like its predecessor statute, is to restrain Federal spending, reduce the national debt, and improve government accountability.
[The bill, H.J. Res. 9, follows:]
H. J. RES. 9
Proposing an amendment to the Constitution of the United States to allow an item veto of appropriation bills.
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JANUARY 6, 1999
Mr. ENGLISH of Pennsylvania (for himself and Mr. BALDACCI) introduced the following joint resolution; which was referred to the Committee on the Judiciary
Proposing an amendment to the Constitution of the United States to allow an item veto of appropriation bills.
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission for ratification:
''The President may disapprove any item of appropriation in any bill. If any bill is approved by the President, any item of appropriation contained therein which is not disapproved shall become law. The President shall return with his objections any item of appropriation disapproved to the House in which the bill containing such item originated. The Congress may, in the manner prescribed under section 7 of article I for bills disapproved by the President, reconsider any item disapproved under this article.''
Mr. CANADY. Under the proposed amendment, the President would have the power to veto any item of appropriation and any bill. The President then would be required to return the vetoed item to Congress along with his objections. As with any piece of legislation, Congress would still have the opportunity to override the President's veto by a two-thirds vote of both Houses.
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H.J. Res. 9 follows an attempt by Congress to provide line item veto authority through statutory means. The Line Item Veto Act was passed by Congress and signed into law by President Clinton in 1996. President Clinton first used the new veto power in August of 1997 when he canceled two limited tax benefit provisions of the Taxpayer Relief Act and one item of direct spending in the Balanced Budget Act.
Congress responded by introducing a series of bills disapproving the President's actions but none of these bills ever reached the President's desk. In all, the President used the line item veto power 11 times affecting nine appropriations laws and cancelling 82 items. In 1997, six Members of Congress challenged the constitutionality of the Line Item Veto Act on the grounds that the Act violated the Presentment Clause of the Constitution.
The Supreme Court ruled that the plaintiffs lacked standing. Subsequently, three private parties with sufficient standing challenged the Act and on June 25, 1998, the Supreme Court held the Act unconstitutional. In that decision, the Court concluded, and I quote, ''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 be either House of Congress. 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 law such a change must come not by legislation but through the amendment procedures set forth in Article 5 of the Constitution.''
We are here today to discuss the wisdom of just such an amendment to our Constitution. Opponents of the amendment express concern about the line item veto's impact on the doctrine of separation of powers. They argue that a line item veto would in effect allow the President to act as a legislator by granting him the power to rewrite portions of a bill and sign into law legislation that is significantly different from that which was passed by Congress.
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Supporters of the measure, however, argue that the amendment restores the proper balance of power between legislative and executive branches. The Constitution gives Congress the power to make appropriations and the President the power to veto them. Supporters of the line item veto contend that with the rise of omnibus spending legislation and so-called pork barrel spending riders, the President's power has been unduly diminished.
I look forward to hearing the testimony of all the witnesses who will appear before the subcommittee today to address this important proposal. Today we will hear from two panels of witnesses. Before I introduce them, I want to recognize Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. I will be very brief. I think my position on the line item veto has been well stated and documented in past hearings and in debate on the floor of the House. I am one of those who believes that it would severely upset the balance of power between the legislative branch and the executive branch, and that it would allow the President to use it, not that I would think many Presidents would do this, but if they were so inclined they could use it to influence not only the particular bill that is under consideration but a number of other pieces of legislation by threatening to veto various items in an appropriations bill to gain leverage on other legislation and I think that would be just a very, very bad idea.
Perhaps the ranking member at that time, now chairman of the Senate Judiciary Committee, Orrin Hatch, said it best in 1990 when he said, and I quoting, ''I am opposed to a constitutional amendment providing a line item veto for the President. I believe this would shift undue power to the President in derogation of sound principles of Separation of Powers, one of the cornerstones of our constitutional system. Moreover, I do not believe that a line item veto will result in a net reduction in the Federal deficit.''
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We don't have the deficit argument to cloud the issue anymore at least so we can approach this issue actually in a lot cleaner and more philosophical fashion than all of the deficit backdrops that have clouded the issue in the past, but I would have to say to my distinguished co-sponsors here that notwithstanding that my position is not likely to change. So I should tell you that up front but I look forward to hearing your testimony anyway and I think this is an important issue. And I will yield back the balance of my time in the interest of trying to get these witnesses in before we have a general vote, I think.
Mr. CANADY. Well, thank you, Mr. Watt. We will now proceed with hearing from the members on our first panel, both of whom are members of the House. We are delighted to welcome both of you here today. Starting off on this panel will be the Honorable Phil English of Pennsylvania's 21st District. Mr. English is currently in his third term in Congress. He serves on the Ways and Means Committee as well as the Small Business Committee. Representative English is the chief sponsor of H.J. Res. 9.
Following Representative English will be the Honorable John E. Baldacci. Representative Baldacci represents Maine's 2nd Congressional District and currently serves on the Agricultural Committee and the Committee on Transportation and Infrastructure. Mr. Baldacci is the chief Democratic co-sponsorship of the measure. We want to thank both of you for being here. We will recognize Representative English. And we hope we can complete your testimonies by the time the general vote takes place so you won't be detained.
STATEMENT OF HON. PHIL ENGLISH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
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Mr. ENGLISH. Thank you, Mr. Chairman. I would like to submit my testimony for the record and keep my remarks brief.
Mr. CANADY. Without objection, your full written statement as well as the full written statements of all the other witnesses at today's hearing will be made a permanent part of the record.
Mr. ENGLISH. Thank you. Mr. Chairman, Mr. Ranking Minority Member, it is a real privilege to have the opportunity to appear before the subcommittee to testify on what I think is a very important issue, an issue, which as Mr. Watt noted, is a philosophical issue but one that has enormous practical consequences. We are in a very different situation than when I came to Congress. We are not facing deficits as far as the eye can see and I think Congress deserves some credit for that.
But at the same time, Congress' ability to submit spending bills free of fat, free of unnecessary projects is still very much in doubt. We are fighting within our budget process to take our limited resources and spend them in the best possible way. This is an appropriate discussion to have at this time and my hope is this constitutional amendment will receive consideration at some point in the future.
Some of you may wonder why I feel so strongly about a line item veto. This springs from my experiences as a legislative aide working for the State legislature in Pennsylvania and seeing a line item veto in actual play in Pennsylvania. Pennsylvania is one of 43 States whose Constitution provides for a line item veto. Our experience with the line item veto allowing the Governor the power to eliminate specific provisions in spending bills presented for signature has been enormously positive.
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Governors in Pennsylvania and elsewhere have utilized this power to grade success on the State level without significant degradation of legislative prerogatives and in fact with a very healthy balance of power between the legislative and executive branches. I believe it is now time to pass this bipartisan constitutional amendment and provide that power to the President.
This amendment has been endorsed by the National Taxpayers' Union, the U.S. Chamber of Commerce, Citizens for a Sound Economy, and Citizens Against Government Waste, among other organizations. We believe that it is very timely to move forward on this and give the President the power to specifically identify waste, low priority spending that through the legislative process may naturally become buried in an appropriations bill or a spending bill that may come to his desk.
For far too long, Presidents have had to adopt an all or nothing approach when considering action on bills containing appropriations. This is a predicament for them when good policies are overloaded by unnecessary spending proposals. We have had many recent examples where the President could have significantly reduced spending in an appropriations bill through surgical use of this line item veto.
I think it would be healthy to allow the President to selectively veto individual spending items with the opportunity to bring these spending items back and give Congress the opportunity for an override vote. Our experience with deficit spending is too recent for us to take this issue lightly. I appreciate the interest of the subcommittee in calling this bill up for public hearings and we hope that this will lead at some point in the future to active consideration by Congress of this issue. And I thank you for the opportunity to testify today.
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[The prepared statement of Mr. English follows:]
PREPARED STATEMENT OF HON. PHIL ENGLISH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF PENNSYLVANIA
Good morning, Mr. Chairman, Members of the Subcommittee. I appreciate the opportunity to appear before you regarding my bill, H.J. Res 9, a proposed amendment to the Constitution to provide a line item veto of appropriations bills.
As Members of Congress, we need to look at real budgetary reform which will promote accountability in the appropriations process when we consider how to spend taxpayers' money. Representative Baldacci and I have introduced H.J. Res 9, a proposed Constitutional amendment that would provide a line item veto to the President of the United States in his consideration of any appropriation in any bill.
For far too long, Presidents have had to adopt an ''all or nothing'' approach when considering action on bills containing appropriations. This presents a predicament for them when good policies are overloaded by unnecessary spending proposals. The case for this amendment was clearly demonstrated by the FY99 Omnibus Appropriations Act last October. Many provisions in this bill were last minute ''pork'' projects that should not have been included.
The first proposal for this measure was introduced in 1876. President Grant endorsed the mechanism in response to the common practice of Congress attaching ''riders'' to appropriations bills. In 1938, the House approved a line item veto amendment to the independent offices appropriations bill by voice vote, but the amendment was rejected by the Senate.
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In the past, there have been several times when the line item veto has come close to passage. Recently, we have come much closer. On April 9, 1996, the Line Item Veto Act was signed into law by the President and became effective on January 1, 1997. The key provisions allowed the President to cancel discretionary budget authority provided in an appropriation or any item of new direct spending or even narrow tax provisions.
In August of 1997, the President first invoked this new authority and 81 more cancellations soon followed. The Supreme Court weighed the constitutionality of this law on June 25, 1998 when it considered the case Clinton v. New York City. The high court upheld a district court ruling declaring the Line Item Veto Law unconstitutional on the grounds that it violated the presentment Clause in the Constitution.
In order to enact line item veto legislation, a constitutional amendment must be passed, which is why I appear before you today. Our proposed amendment is more limited than the Line Item Veto Act, but effective in achieving this goal nonetheless. It corrects an imbalance in our budgetary process to permit an executive committed to cutting unnecessary spending the use a scalpel instead of a broad sword.
Currently, constitutions in 43 States provide for a line item veto, usually confined to appropriations bills, allowing the Governor the power to eliminate discrete provisions in legislation presented for signature. Governors have utilized this power to great success on the state level without any significant degradation of legislative prerogatives. It is now time to pass this bipartisan Constitutional amendment and empower the President with this crucial tool.
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This amendment has already been endorsed by the National Taxpayers Union, the U.S. Chamber of Commerce, Citizens for a Sound Economy and Citizen's Against Government Waste.
Mr. Chairman, this is good legislation that deserves your consideration and support. I appreciate the opportunity to appear before your Subcommittee.
Mr. CANADY. Thank you very much, Representative English.
STATEMENT OF HON. JOHN E. BALDACCI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MAINE
Mr. BALDACCI. Thank you very much, Mr. Chairman, Ranking Member Watt, committee members, and Representative English. I appreciate being able to work with my colleague from Pennsylvania on this legislation. I do believe that it is in the bipartisan interest of the country to have this amendment heard here in the subcommittee and heard in the Congress especially at a time where deficits are no longer the issue of the day.
We only need to look at the energy crisis to recognize that rather than to be forced to act in the middle of a crisis, it is always better to take some preventative precautionary steps to make sure that when things or situations do occur in the future that we have those tools available. I would like to offer my testimony to be inserted into the record, as you stated earlier. We will be offering that, but I would like to reinforce the fact that the States do have these line item vetoes. And as a former State Senator for 12 years and having worked with the chief executive of different parties, I recognize that there are those opportunities that are used to make sure that the spending proposals are not all or nothing.
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I think we only need to look at our omnibus appropriations process and having to vote on these bills at the end of the day, and worried about what line was in the budget that wasn't covered and what it is exactly that we all voted for and what was that research that is called into question at a later date. The President, having this authority, would act like sort of a check in that process to make sure that those types of efforts which were uncovered after the process had unfolded were able to be reversed.
Our States are our laboratories of democracy and we can look to them for the best practices and innovative ideas. And on the subject of fiscal discipline, we can certainly learn a lot from them. Unlike the Federal Government, the States by and large do not run deficits and they keep their books in order and spend only what they have each year. They pass realistic budgets and they stick to them.
An important tool in this process is the fact that, as my colleague mentioned and the chairman mentioned, that 44 States and four territories have the authority invested in the Governor to veto dollar amounts in appropriations bills. I am convinced that this authority is a crucial part of keeping spending in check. While it may not be used with great regularity in many States' the fact that it is available encourages the legislatures and the Governor to reach agreement on spending issues and not to crowd the spending with extraneous matters.
At the Federal level, we could certainly use that incentive. I know that there are many worthy projects that are funded each year, but I think we can all admit that there are many less worthy projects that are funded. Passage and ratification of this line item veto amendment, which is the only course that is available for us to take with the Supreme Court's action, would allow the President to reach into these bills and separate the wheat from the chaff.
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Congress would of course retain the ability to reinstate any projects that it continued to believe were worthy of funding by overriding the President's veto. I do not take these matters lightly in amending the Constitution. However, I am convinced in this case it is the only way to provide the President with the same authority that 44 Governors already have to influence spending.
I want to thank the subcommittee for holding this hearing and I hope that we can continue to discuss and move this legislation forward. Thank you.
[The prepared statement of Mr. Baldacci follows:]
PREPARED STATEMENT OF HON. JOHN E. BALDACCI, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MAINE
Mr. Chairman: Thank you for holding this hearing today to discuss legislation introduced by Rep. English and myself. As you well know, our bill proposes an amendment to the US Constitution to give the President line item veto authority.
The Subcommittee is well aware of the history of this issue. In brief, the Line Item Veto Act was enacted in 1996 to give the President authority and procedures by which to cancel discretionary budget authority provided in an appropriation or any item of new direct spending or certain limited tax benefit contained in any law. President Clinton first invoked the new law in 1997.
However, on June 25, 1998, the Supreme Court held the Line Item Veto Act to be unconstitutional on the grounds that it violates the presentment clause. The Majority noted that the procedures prescribed in the Act were not authorized by the Constitution's requirements for lawmaking. The Majority went on to state, ''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 law,' such a change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution.'' (Clinton at 2108)
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And so, we are here before you today, seeking to amend the Constitution to reinstate the President's line item veto authority. When we started this effort, our nation was facing crippling annual budget deficits and a mounting level of debt. Today, through hard work and fiscal disciplineand a particularly robust economywe are discussing this issue with a budget that is in surplus and payments being made to reduce our outstanding debt. We should all be proud of the great progress we have made in getting our nation's fiscal house in order.
However, I do not believe we should rest on our laurels. I am pleased to be part of this effort to ensure that our government has all the tools available to maintain fiscal discipline well into the future. The Line Item Veto should be one of those tools.
We often refer to the States as the laboratories of democracy. We look to them for best practices and innovative ideas. On the subject of fiscal discipline, we can certainly learn a lot from them.
Unlike the Federal government, the States by and large do not run deficits. They keep their books in order and spend only what they have each year. They pass realistic budgets and stick to them.
An important tool in this process is the line item veto. In fact, in 44 states and 4 territories, the Governor has the authority to veto dollar amounts in appropriations bills. I am convinced that this authority is a crucial part of keeping spending in check. While it may not be used with great regularity in many states, the fact that it is available encourages the legislatures and the Governors to reach agreement on spending issues and not to crowd appropriations bills with extraneous spending.
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At the Federal level, we could certainly use that incentive. While many worthy projects are funded each year, I think we can all admit that many less worthy projects are funded as well. Passage and ratification of a Line Item Veto amendment would allow the President to reach into these bills and separate the wheat from the chaff. Congress would of course retain the ability to reinstate any projects that it continued to believe were worthy of funding by overriding the President's veto.
I do not take amending the Constitution lightly. However, I am convinced in this case that it is the only way to provide the President with the same authority that 44 Governors already have to influence spending. I thank the Subcommittee for holding this hearing today, and hope that you will help us to move this legislation forward.
Mr. CANADY. Thank you, Representative Baldacci. Ordinarily, we do not ask members questions but I will recognize Mr. Watt.
Mr. WATT. I am just interested in hearing an analysis of how this is different and what was set aside by the Supreme Court.
Mr. ENGLISH. The short analysis is the amendment enshrines it in the Constitution, so obviously there will be no question of constitutionality.
Mr. WATT. So that was a statutory provision.
Mr. ENGLISH. Yes.
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Mr. CANADY. Let me, since we are going to do this informally here, would this operate differently than the statute? I understand it is going to have a different status and the Supreme Court won't be able to overturn it. There was a letter that I received from the Administrative Office of the U.S. Courts. The suggestion was raised, and this may be raised in some of the testimony also, that this would operate differently and would allow the President to kind of reach within appropriationslet me read you what they said and get your response to it.
It says to my reading this bill will give the President far more extensive power than in the 1996 Line Item Veto Act. And just to identify this letter properly, it is from Leonidis Ralph Meechum, who is the Director of the Administrative Office of the United States Courts. It is dated March 22, 2000. It is addressed to me. He says, ''To my reading this bill would give the President far more extensive power than did the 1996 Line Item Veto Act which was struck down by the Supreme Court.''
That earlier legislation allowed the President to rescind only entire dollar amounts of budget authority. Because the Judiciary appropriations typically contain only a few dozen of such dollar amounts, in practice this statute provided few targets for cancellation. Most of you will know that by contrast, with the power of the President to disapprove any item from appropriations contained in the bill, which would appear to me that he could reach in and rescind portions of judicial appropriations for the purpose of disrupting or eliminating judiciary activities that meant with his disfavor or disapproval. I am not sure that is a correct analysis, but I will recognize you for any response you wish to make and we can
Page 23 PREV PAGE TOP OF DOC Mr. ENGLISH. Mr. Chairman, what I would like to do is have an opportunity to review that statement and respond in writing and with precision. I would say in general that we have modeled our constitutional amendment on the practices of the various States. And there is a diversity of practices within the States. The extent of line item veto power and even the opportunity for a partial veto differs considerably within the various States.
My own view as a purist is that a single item should be vetoable but not reducible, and if the President takes issue with a particular provision, he should veto it in its entirety. It may be that this constitutional amendment allows for more kinds of items to be vetoed than the statute. My sense was that the statute was drafted in an attempt to pass constitutional muster which obviously it did not.
We took perhaps greater liberty than they did in the statute, but I would say that what we have offered is consistent with the mainstream practices of the various States, which is what we were really shooting at.
Mr. CANADY. Thank you very much, and we will be happy to receive any written comments you wish to make in response to
Mr. WATT. Mr. Chairman, might I ask unanimous consent to submit for the record a copy of the letter that you were reading from and ask unanimous consent that Representative English and Representative Baldacci be given whatever time they need to respond to it.
[The information referred to follows:]
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Hon. CHARLES T. CANADY, Chairman,
|Administative Office of the |
|United States Courts,|
|Washington, DC, March 22, 2000.|
Subcommittee on the Constitution,
Committee on the Judiciary.
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: I am writing on behalf of the federal judiciary to express our concerns about H.J. Res. 9, the proposed line item veto constitutional amendment. Although the Judicial Conference of the United States has not yet had an opportunity to examine this legislation, because hearings are being conducted tomorrow I did not want to delay communicating with you.
I am concerned that this legislation would give the President unprecedented, and inappropriate, authority to interfere in the day-to-day operations of the federal judiciary. While obviously this proposed constitutional amendment would be immune from legal challenge, it risks violating existing notions of separations of powers which recognize the vital importance of protecting the judiciary against interference from any President.
To my reading, this bill would give the President far more extensive power than did the 1996 Line Item Veto Act which was struck down by the Supreme Court. That earlier legislation allowed the President to rescind only ''entire dollar amounts'' of budget authority. Because the judiciary's appropriations typically contain only a few dozen of such dollar amounts, in practice this statute provided few targets for cancellation. The proposed constitutional amendment, by contrast, would empower the President to disapprove ''any item of appropriation'' in any bill, which would appear to mean that he could ''reach in'' and rescind portions of judicial branch appropriations for the purpose of disrupting or eliminating judiciary activities that met with his disfavor or disapproval.
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Such is inconsistent with contemporary notions of the separation of powers. As Congress recognized many years ago in enacting the Budget and Accounting Act of 1921, the financial affairs of the judiciary must be insulated from political influence by the President and his staff. Prior to the Budget Act, the judiciary's budget was controlled by the Executive Branch. Now, by law, requests for judicial branch appropriations must be submitted to the President by the judiciary, but must be transmitted by him to Congress ''without change.''
This protection needs to endure. Control of the judiciary's budget rightly belongs to the Congress and not to the executive branch, particularly in light of the fact that the United States, almost always through the executive branch, has more lawsuits in the federal courts than any other litigant. The integrity and fairness of our federal courts should not be endangered by the potential of executive branch political influence.
Accordingly, when considering H.J. Res. 9, we urge the Subcommittee on the Constitution to include provisions that would preserve the independence of the Third Branch.
I appreciate your consideration, and we stand ready to assist you in any way necessary.
|Leonidas Ralph Mecham, Director.|
Page 26 PREV PAGE TOP OF DOC Mr. CANADY. Without objection, the record will remain open to receive your comments for ten days. Thank you very much.
Mr. ENGLISH. Thank you, Mr. Chairman. Thank you for the opportunity to testify.
Mr. CANADY. We will now proceed with the second panel of witnesses. I thank all of the witnesses on the second panel for being with us today and I will proceed with introductions of all who will testify. The first witness on our second panel will be James D. Miller, III, Counselor for Citizens for a Sound Economy and is John M. Olin Distinguished Fellow at Citizens for a Sound Economy Foundation and at the Center for the Study of Public Choice at George Mason University. Mr. Miller is a former director of the Office of Management and Budget and former chairman of the Federal Trade Commission.
The second witness on this panel will be Professor Marci A. Hamilton, who is Professor of Law at the Benjamin N. Cardozo School of Law at Yeshiva University in New York City. Professor Hamilton has been published extensively and speaks frequently in the areas of intellectual property and constitutional law. She is currently working on two books pertaining to constitutional law and has testified here before on other subjects along with some other members of the panel as well.
Following Professor Hamilton will be Dr. Martin Regalia. Dr. Regalia has served as Principal Analyst in the Fiscal Analysis Division of the Congressional Budget Office and is currently Vice President of Economic Policy and Chief Economist for the United States Chamber of Commerce. Next we will hear from Dr. Louis Fisher, who is a Senior Specialist in Separation of Powers with the Congressional Research Service of the Library of Congress and has written numerous books on the subject of constitutional law.
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The next witness to testify on this panel will be Thomas A. Schatz, President of Citizens Against Government Waste and of the Council for Citizens Against Government Waste.
Mr. Schatz formerly served as Legislative Director to the Honorable Hamilton Fish, the former ranking minority member of the House Judiciary Committee.
Following Mr. Schatz will be Ronald Weich. Mr. Weich is a partner at the law firm of Zuckerman, Spaeder, Goldstein, Taylor & Kolker. Mr. Weich is testifying today on behalf of Citizens for the Constitution on initiative of the Constitution project at Georgetown University Law Center. The final witness for today's hearing we plan to be Stephen Moore. Mr. Moore is currently the Director of Fiscal Policy Studies at the Cato Institute. Formerly, Mr. Moore served as a Grover M. Herman Fellow in Budgetary Affairs at the Heritage Foundation. He is contributing editor to the National Review and served on Time Magazine's Board of Economic Advisors.
Having introduced all of you, I will apologize to you for the fact that there is a vote proceeding on the floor of the House. Mr. Watt and I will excuse ourselves briefly for going to the floor so that we can vote. We will come back and proceed immediately with your testimony, and I do not anticipate that we will be gone more than 10 or 15 minutes. The subcommittee will stand in recess.
Page 28 PREV PAGE TOP OF DOC Mr. CANADY. The subcommittee will be in order. We will now proceed with hearing the testimony of our witnesses beginning with Mr. Miller.
STATEMENT OF JAMES C. MILLER, III, COUNSELOR, CITIZENS FOR A SOUND ECONOMY AND FORMER DIRECTOR OF THE OFFICE OF MANAGEMENT AND BUDGET
Mr. MILLER. Mr. Chairman, I have a statement, which I would ask be included in the record.
Mr. CANADY. As we indicated, the full written statements of all the members of this panel will be made a part of the record without objection.
Mr. MILLER. Mr. Chairman and Mr. Watt, let me just say that I am here to testify on behalf of this amendment and I am, I think, reflecting the views of our two other 50,000 or so members and supporters of Citizens For Sound Economy. There are really two reasons I think this amendment should be approved. One is that it would keep overall spending in check and secondly I think it would improve the overall composition or the quality of the composition of spending.
The argument that legislative veto, excuse me, line item veto would keep spending in check is more than just sort of common sense that any time you can restrain spending it will keep overall spending in check. There is some empirical evidence on this point. Professor Mark Crain of George Mason University and I did a study, which is published in the William and Mary Law Review showing that the line item veto and specifically what is called the item reduction veto does have an effect in restraining spending at the State level.
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We examined the budget process features of the States and an econometric model and found that the item reduction veto where by the Chief Executive is able to reduce as well as to reduce to 0 the spending in any line item. You know, if $50 million is appropriated the Chief Executive can line through 50 and write 25, all subject, of course, to a legislative override but an ability to reduce as well as to zero out so a variable veto as well as a binary veto as opposed to a binary veto is much more effective in controlling spending.
Secondly, I am quite aware that some people look at a piece of appropriated matter and measure and say that is vital spending. Another person says it is poor but it is hard to look at the lists drawn up by Mr. Schatz's organization or by Citizens For a Sound Economy Foundation and say that these are essential spending measures. It just don't pass the laugh test.
Let me deal with two major criticisms of the line item veto, one that would shift power in a fundamental way away from the legislature toward the executive. You don't find that at the State level. Almost all chief executives at the State level have veto power, line item veto power, and there is no cry that there is substantial shift in power. Secondly, it is said that sometimes by political science professors in particular and some pundits that pork is the glue that holds appropriations together.
It seems to me is not a very cost effective glue. We ought to look for another kind of glue if we need something to hold appropriations together. Let me address two points, final points. The last legislative line item veto that you had the Supreme Court found unconstitutional was one that included tax breaks, tax cuts, as also vetoable. I think that is a bad idea.
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There are more effective ways with dealing with these problems and there are manifold problems in the Tax Code and the ability of Members of Congress to grant little favors here and there I think undermines credibility of our system and reduces the competitiveness of the political markets but the best way of dealing with that is to reform the Tax Code and make it more transparent so I would not include tax reductions. The problem is that tax reductions is spending excess.
Another point that was raised with me just a few minutes ago by Mr. Schatz is what about the problem of including pork and report language as opposed to line item. That is a dicey one. I have personal experience with that when I was budget director. President Reagan's last State of the Union message included a recitation of a number of pork items in the budget. I promptly sent out a memorandum to the heads of all the agencies pointing out that the pork items the President mentioned were in report language and citing Supreme Court decisions told the agency heads to ignore the report language mandates to the extent they were inconsistent with the President's program.
This generated not surprisingly a big backlash from Congress, even to the point that chairman of the Appropriations Committee in the Senate, Senator Mark Hatfield, included a provision in the appropriations that zeroed out the OMB. And I will have to sadly tell you that a lot of people in the West Wing ran for cover and I was forced to back down.
So it is hard for a President to veto essentially, quite aside from the language here, those kind of appropriations in response to pressure. And I think it would simply put additional responsibility on Congress not to subvert the idea of an executive branch or item veto by trying to go around and putting things in report language and then holding a hammer over the head of the executive branch and also it tells the President, the President has to be forceful in controlling this spending. Thank you, Mr. Chairman. I will be happy to respond to any questions after the other witnesses have had a chance.
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[The prepared statement of Mr. Miller follows:]
PREPARED STATEMENT OF JAMES C. MILLER III,(see footnote 1) counselor, Citizens for a Sound Economy and former director of the Office of Management and Budget
There are two reasons why Congress should approve and the states should ratify a constitutional amendment granting the president a line-item veto of expenditures. The first is that such a veto would tend to keep overall spending in check. The second is that the composition of spending would be improved. I will address both motives as well as some of the criticisms of the measure below.
The argument that a presidential line-item veto would restrain spending is more than just a matter of common sense: there is empirical evidence. When Professor Mark Crain of George Mason University and I examined the budget processes of the several states and then estimated the effect on budget growth of various features of budget process, we found that the line-item veto can have a significant effect on spending growth.(see footnote 2) Interestingly, we found that the ordinary, binary veto did not affect spending growth very much. But the more perfecting item-reduction veto which is available to 10 governors does make a significant difference. That is, when the governor has the ''all-or-nothing'' decision of whether to leave in a measure or zero it out altogether, too often he or she will opt for the former. But when a governor can take an item and reduce the level of spending (including all the way to zero), he or she is more likely to take action and to prevail against a threat of legislative override.(see footnote 3) Accordingly, I recommend that the language of the amendment in H.J Res. 9 be changed to allow for reductions in item spending levels as well as canceling them altogether. This can be accomplished quite easily by replacing ''disapprove'' with ''reduce'' and ''disapproved'' with ''reduced.''
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I am quite aware that ''one person's pork is another's vital measure.'' But surely no one can examine the list of spending initiatives compiled by the Porkbusters Coalition or by such independent groups as Citizens Against Government Waste or Citizens for a Sound Economy Foundation and protest to the contrary. Admonitions that such spending is essentialor even comes closesimply do not pass the laugh test. In almost any conceivable use of a line-item veto, the president would tend to eliminate less vital spending and thus improve the quality of the spending measures that survive.
Let me now deal with two major criticisms of the line- item veto. The first is that a president would use the threat of such a veto to intimidate members of Congress and thus shift the balance of power in a fundamental way. We've had one direct and many indirect tests of this proposition. During the period when President Clinton's line-item veto was presumed constitutional, his limited use of it did not raise significant charges of intimidation, though there were murmurings of partisanship since typically the items he vetoed had been sponsored by members of the opposing party. (This may have been more a function of which party controlled Congress than which party controlled the White House.) Second, as I have indicated, the majority of governors have line-item veto authority, and there is no hue and cry about executive abuse from the states.
Second, it is said by some that pork is the ''glue that holds appropriations together''as if without it the appropriations process would become'' unglued.'' I find this a peculiar argument for retaining the present system. Pork is an inherent feature of the present system, but need not be essential in a system that provides a way for the president and Congress to avoid it.(see footnote 4) At best, all that can be said of pork is that if it is the ''glue'' that holds appropriations together, we should search for a better, more cost-effective glue.
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Let me address one final point, and that is the argument that if you grant a line-item veto for spending you should also give veto authority over tax cuts. I am fully aware that targeted tax cuts can be abused just as targeted spending increases. But I believe the appropriate tools for dealing with these two problems are different. The tax code should be abolished and replaced with a simpler, fairer tax without the myriad of features facilitating special tax benefits. Besides, by far the bigger problem is the propensity of congress to ratchet up spending. Congress has shown little bias toward cutting taxes unreasonably.
Mr. Chairman and Members of the committee, that completes my statement. I shall be happy to address any questions you might have.
Mr. CANADY. Thank you, Mr. Miller. Professor Hamilton.
STATEMENT OF MARCI A, HAMILTON, BENJAMIN N. CARDOZO SCHOOL OF LAW
Ms. HAMILTON. Thank you, Mr. Chairman, and the subcommittee for inviting me to testify today on this very important topic. I think everyone agrees there is a problem and the problem is the lack of responsibility on the part of the Members of Congress regarding pork barrel spending and the question is what to do about it. The line item veto has been a popular proposal for a long time and it works rather simply. It just delegates final responsibility over the appropriations mix to the President who may then exercise it unilaterally. It is clearly a hand off of power from this branch to the President.
Page 34 PREV PAGE TOP OF DOC In my view it is backwards. We are in a situation where we need an increase in Congressional responsibility, not a decrease. This is a hand-off of Congressional responsibility that gives the President more power. The resulting imbalance is likely to make it possible for the President to unilaterally decide the policy issues that are supposedly the heart of this body's responsibility.
We have been told that 44 States have line item vetos and that those are on par with this proposal but they are not. A Governor is clearly not the President. There is tremendously more power, more money, and more possibility for abuse on the part of the President than there is on the part of any particular Governor. The budget is larger. The stakes are larger and the concerns ought to be greater. The Framers were deeply concerned with the ability of the Federal executive branch to become the ''fetus of a monarchy,'' and I think that is a concern that we ought to continue to share.
Finally, there is a very straightforward solution to the problem that we are debating. It has been proposed before. It is certainly not original with me. All it requires is a change in the rules. It does not require a constitutional amendment. It doesn't even require a statutory change. It just requires a change in the rules of enactment. If the House were to require that all appropriations measures had to be enacted individually, item-by-item, only one item at a time could even go to the President.
This is disarmingly simple but it forces the pork barrel spending into the public eye. It forces Congress to become more responsible and it does so without handing all of this power over to the President. So for those reasons it is my view that a line item veto constitutional amendment is not in the best interest of the country at this time. Thank you.
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[The prepared statement of Ms. Hamilton follows:]
PREPARED STATEMENT OF MARCI A. HAMILTON, BENJAMIN N. CARDOZO SCHOOL OF LAW
Thank you, Mr. Chairman, for inviting me to testify regarding H.J. Res. 9, Proposing an amendment to the Constitution of the United States to allow an item veto of appropriation bills.(see footnote 5) I hold the Thomas H. Lee Chair in Public Law at Benjamin N. Cardozo School of Law, where I specialize in constitutional issues.
The line item veto concept, especially as couched in H.J. Res. 9, strikes at the fundamental balance between the Congress and the President established by the Framers. It takes the power to set the lawmaking agenda away from Congress and hands it to the President. While Congress would make some law under H.J. Res. 9, the President would be able to decide what would actually be the law. This is a significant transfer of legislative responsibility and power and is unjustified by the reasons proffered for a line item veto.
The system the Framers chose. As it now stands, the Constitution permits only Congress to make the law. It is worth revisiting the Framers' reasons for handing lawmaking authority to Congress before altering the constitutional structure as H.J. Res. 9 would.
The Framers assumed that every individual exercising power would be tempted to misuse that power. At the same time, they expressed great hope for their project of effecting a system of government that would preserve liberty. Much, even most, of what was said at the Convention was couched in terms of distrust. Distrust of the legislature, distrust of the executive, of the people, of power in general, distrust of religion, the states, the large states, and the small states. One can point to precious little in the intervening centuries that would prove their assumptions wrong.
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Given that they trusted nobody and no particular social institution but still believed that they could craft a government geared toward liberty, the Framers' debates focused on finding the appropriate balance of power. The right exercise of power fell between two extremes: power could be abused through lack of action or through overaggressive action. Either was tyranny. The Articles of Confederation illustrated the former while King George III typified the latter.
They believed that a balance of power was effected by pitting one social entity against another and by assigning different jobs to different branches. Their theory was that one could not trust either one alone but one might be able to trust both if they were working toward the common good in different and potentially conflicting ways.
The Framers made Congress a well-populated and even unwieldy group of individuals. Many are placed in power for the purpose of representing all. The legislative branch is supposed to filter society's factions and to distill those laws that will best serve the nation. The process of distillation is necessarily messy. Like all committees, Congress is incapable of hasty action on most issues, but that feature was intended.
To state the matter differently, Congress's sheer size forces representatives to engage in complicated horse-trading to reach the public good. The necessity of horse-trading slows the process, thereby preventing a rush to judgment.
The executive branch was included in the federal Constitution partly to ensure that the legislative power would be checked: ''One great object of the Executive is to controul the Legislature. The Legislature will continually seek to aggrandize & perpetuate themselves; and will seize those critical moments produced by war, invasion or convulsion for that purpose. It is necessary then that the Executive Magistrate should be the guardian of the people.'' Yet, they feared giving the Executive too much power as well.
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From the beginning, the Framers viewed the executive branch as a much less populated branch than the Congress. They debated how many might serve as the executive, but they always envisioned less than a handful of men in the position. While the legislature provided many outlets for the many factions in the society, the Executive was to be the singular representative of the Zeitgeist, the spirit of the times. He was also intended to be capable of acting quickly and decisively in contrast to the slower operation of the Congress.
The experience with a monarchy in Britain led many of the Framers to distrust the Executive on principle. Some feared that a single Executive could be transformed into a ''hereditary monarchy.'' In Randolph's memorable words, a one-man executive was ''the foetus of a monarchy.'' Butler, in turn, feared the Executive's veto power, observing that ''in all countries the Executive power is in a constant course of increase . . . [W]hy might not a Cataline or a Cromwell arise in this Country as well as in others.'' Legislatures might be feared for their potential for self-absorption and intrigue, but the President might act like a monarch: unilaterally and capriciously.
The effect of a line item veto. When lawmaking is delegated to the President, the deliberative possibilities and the many ports of entry available through the legislature are quelled. Rather, the President can more easily take unilateral and capricious action. This is no more true than when the President holds the power to line item veto any aspect of a bill he does not like, as he could under the language of H.J. Res. 9.
Although a line item veto accomplished through constitutional amendment could not be unconstitutional, the Supreme Court's discussion of the Line Item Veto Act in the case invalidating that Act is instructive on the structural principles at stake.
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The Line Item Veto Act was enacted to redress a structural failure in the Congress: Congress could not bring itself to reduce the amount of ''pork-barrel'' spending it included in its appropriations bills. Instead of taking responsibility for its apparent inability to control itself, it delegated the decision to prioritize national interests to the President, who gladly took the proffered handover of power and signed the bill into law. He would now be the governmental entity that would choose which pork projects were appropriate and which were not.
The Supreme Court rejected the law on the ground that it violated the Presentment Clause, but it explained the constitutional violation through reliance on an essential principle in the separation of powers lexicon: the legislature holds primary responsibility to make the national policy choices and the President may not take on those choices.(see footnote 6) The Line Item Veto Act was a classic example of Congress shrugging off its constitutional duty to reach independent policy choices and finding value in the arbitrariness of which the one-man Executive is capable.(see footnote 7)
Another answer. There is another answer to the problem of appropriations bills that are filled with pork-barrel spending, and it does not require this Congress to delegate lawmaking power to the President and to disrupt the balance of power between the two branches: the House has the power, through its rules, to enact a requirement that each appropriations bill must be limited to one topic. Thus, each subject is debated straightforwardly, each pork barrel project is subjected to the light of day and debate before becoming law, and the President only receives a single-item bill to be signed or vetoed, per the existing constitutional procedures.
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The single-topic approach is hardly original, but it is simple and straightforward. It solves the problem of congressional avoidance of its responsibilities by increasing those responsibilities rather than decreasing its power. Unlike the line item veto concept, it does so without shifting lawmaking authority from the Congress, the most accountable branch, to the President, the most capable of acting unilaterally.
I would be pleased to answer questions.
Mr. CANADY. Dr. Regalia.
STATEMENT OF MARTIN REGALIA, VICE PRESIDENT OF ECONOMIC POLICY AND CHIEF ECONOMIST, U.S. CHAMBER OF COMMERCE
Mr. REGALIA. Thank you. Mr. Chairman, we appreciate the opportunity to appear before this committee in support of an amendment to the Constitution conferring line item veto power on the President, and we commend you for holding these hearings. And I will very briefly summarize my written testimony. In 1996, the Line Item Veto Act was enacted, with strong bipartisan support.
We think it worked in its very short life before it was invalidated by the Supreme Court. Since that decision, the only alternative at this point is to come back and seek a constitutional amendment. We support the joint resolution submitted by Representatives English and Baldacci to do that. One fundamental difference today is that we are enjoying record budget surpluses fueled by strong economic growth rather than operating as we were years ago under the debilitating budget deficits.
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However, without additional methods to control government spending, I think we are going to find ourselves once again back in those high deficit days especially if the economy were to slow precipitously. The American people have a vested interest in seeing the Federal Government practice fiscal responsibility. Wasteful spending programs result in bigger government, higher taxes, and larger national debt.
Many unmeritorious provisions are concealed within the heft of appropriations bills and omnibus spending packages. We should give the President the wherewithal to weed them out. Currently, the constitutions in over 40 States provide some form of line item veto that allow Governors to eliminate provisions in legislation presented for signature. Many present and former Governors consider the line item veto a useful tool for balancing their State budgets and we believe that it would be helpful at the Federal level as well.
Some say the line item veto authority could actually encourage higher spending. They fear that Congress may stuff the budget with even more pork relying on the President to use the line item veto to cull out the particularly offensive spending. In the alternative, we feel that the line item veto would serve as a deterrent rather than an incentive to attract more pork to spending bills. Exercise of the line item veto would highlight ill-advised spending measures for the world to see. It would reject them and return them to the Congress with a challenge to justify them.
The process would draw public scrutiny to those Members of Congress who irresponsibly include pork in the budget. We think that if Congress is unable to exercise the will power or the wherewithal to keep itself on a pork-free diet, the line item veto provides one mechanism for removing the fat. In conclusion, we believe that the line item veto is a useful fiscal tool to rein in excessive spending.
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The Chamber believes that effective budget cutting requires the ability to establish priorities, evaluate all spending measures and excise waste. By providing for a line item veto, we will avoid sacrificing worthwhile programs at the expense of questionable spending initiatives. Thank you.
[The prepared statement of Mr. Regalia follows:]
PREPARED STATEMENT OF MARTIN REGALIA, VICE PRESIDENT OF ECONOMIC POLICY AND CHIEF ECONOMIST, U.S. CHAMBER OF COMMERCE
My name is Dr. Martin A. Regalia, and I am Vice President and Chief Economist of the U.S. Chamber of Commerce. The U.S. Chamber is the world's largest business federation, representing more than three million businesses and organizations of every size, sector and region. This breadth of membership places the Chamber in a unique position to speak for the business community. Mr. Chairman, we appreciate this opportunity to appear before this committee in support of an amendment to the Constitution conferring line-item veto power on the President of the United States. We commend you for holding these hearings.
In 1996, the Line Item Veto Act was enacted, with strong bipartisan support. It granted the President authority to eliminate or reduce specific appropriations in legislation that he considered wasteful. The act went into effect in 1997, but was invalidated by the Supreme Court on the grounds that it violated the Presentment Clause of the Constitution by empowering the President unilaterally to repeal or amend provisions of duly enacted bills. That decision left Congress with the alternative of proposing a Constitutional amendment to achieve this end.
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On January 27, 1999, Representatives Phil English and John Baldacci introduced legislation to establish such a Constitutional amendment. As the U.S. Chamber of Commerce expressed its support of the Line Item Veto Act in prior testimony, we support this current effort to resurrect it in a form that will withstand judicial scrutiny. Most of the rationale for supporting it in the past is still valid today, and just as compelling. One fundamental difference is that today we are enjoying record budget surpluses fueled by robust economic growth, rather than operating under the specter of debilitating budget deficits. However, without additional methods to control government spending we may find ourselves once again back in those high deficit days.
One thing that hasn't changed is the vital need to cut government waste. There is no valid justification for the extent of ''pork barrel'' provisions that have gained Congressional approval over the years. Just as some legislative measures that could not hope to stand alone and survive public scrutiny are given shelter by being hidden within the minutiae of our federal tax code, many equally unmeritorious provisions are concealed within the heft of appropriation bills and omnibus spending packages.
During its short life, the Line Item Veto Act was invoked 82 times before it was finally held to be invalid. We believe that it is, therefore, necessary that the President again be given line-item veto discretion, albeit this time through the vehicle of a Constitutional amendment. The President should be given the authority to identify and carve out offensive and irresponsible spending that is discovered in legislation submitted for his signature.
There is evidence that suggests that our Founding Fathersthe Framers of the Constitutionintended that the President have the power to strike specific items of expenditures from spending legislation. Clause 3 of article I, section 7, of the U.S. Constitution duplicates the language of the earlier-enacted Massachusetts Constitution, under which its governor enjoyed the right to veto or reduce spending by line-item. Debate between Federalists and anti- Federalists made reference to line-item veto and power to revise appropriation bills that both sides believed to be embodied in the proposed document. While the authors of the Constitution did not expressly mention such power in its language, the Congress and the President can remedy that oversight with Mr. English's and Balducci's proposal, and make the Constitution's intent concrete.
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Currently, Constitutions in 43 States provide some form of line-item veto that allows the Governor to eliminate discrete provisions in legislation presented for signature. Of present and former governors who responded to one survey, over 90 percent considered the line-item veto as a useful tool for balancing the budget, and believed that it would help the President curtail federal spending. Several Presidents have requested that Congress expressly grant them this power. The President, representing broader constituencies than individual Members of Congress, will be more willing to oppose special interest spending inserted in appropriation bills by powerful legislators or narrow coalitions.
The American people have a vested interest in seeing the federal government practice fiscal responsibility. Wasteful spending programs result in unnecessary expenditures of our tax dollars, higher taxes, bigger government, and an impediment to paying down our national debt. These funds could be put to far better use by lowering taxes, reducing the national debt, and/or investing in needed infrastructure.
Some say that line-item veto authority could actually encourage higher spending. They fear that Congress may stuff the budget with even more pork, relying on the President to use the line-item veto to cull out the particularly offensive spending. Some of these extra expenditures would, no doubt, get through. While these fears may or may not be unfounded, we feel that vigilant use of a line-item veto would be able to effectively address this threat. Furthermore, for the very reason that legislators often attach non-germane spending items to legislation under the current system, a line-item veto is necessary. Often, a President may be reluctant to veto a spending bill, and throw out the baby with the bath waterthe good with the bad. Thus, the additional spending gets approved. Creating needed flexibility through a line-item veto will enhance our system of checks and balances, and permit the President to avert these types of situations.
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In the alternative, we feel that the line-item veto power would serve as a deterrent, rather than an incentive to attach more pork to spending bills and overload the system. Exercise of the line-item veto would highlight ill-advised spending measures for the world to see, reject them and return them to Congress with the challenge to justify them and attempt to pass them, if their proponents can muster the votes necessary to pass them on their own merits. The process would draw public scrutiny to the hi-jinks of Members of Congress who irresponsibly exercise their legislative powers or to rejection by the President of measures that resonate favorably with the American people. Adverse attention would be focused on those who do wrong, as well as those who do right, and would help educate our citizens about what is going on in Washington.
An excellent example of the glaring need for this amendment is provided by the Fiscal Year 1999 Omnibus Appropriations Act. This legislation was absolutely rife with pork barrel provisions. However, because of its massive size, Members of Congress did not have the time to consider each of the bill's measures thoroughly. If Congress is unable to exercise the willpower or wherewithal to keep itself on a ''pork-free'' diet, we must license the President as its nutritionist, to help Congress get it done, for the health of America.
A line-item veto is a necessary fiscal tool to reign in excessive spending. It allows for differentiation among programs. The Chamber believes that effective budget cutting requires the ability to establish priorities, evaluate all spending measures and excise waste. By giving the President the discretion to cut specific items, we will avoid sacrificing worthwhile programs at the expense of questionable spending initiatives.
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Mr. CANADY. Mr. Fisher.
STATEMENT OF LOUIS FISHER, SENIOR SPECIALIST IN SEPARATION OF POWERS WITH CONGRESSIONAL RESEARCH SERVICE, THE LIBRARY OF CONGRESS
Mr. FISHER. Let me start with an issue that was raised here several times, the difference between the constitutional amendment and the statute. I think the difference is very difficult to understand because it goes against your common sense. The fact is I think a statute like the Line Item Veto Act of 1996 gave the President more power and more discretion than you would get from a constitutional amendment.
And the reason is as follows. If you look at say H.J. Res. 9, it would empower the President to veto ''any item of appropriation in any bill.'' So the President would have to look at a bill and decide what he can veto. If you remember the Line Item Veto Act, it gave him authority not only to go after appropriations but to go after limited tax benefits and to go after items of new direct spending, new entitlements.
More interestingly, when you look at going after appropriations the Line Item Veto Act said the President can veto ''discretionary budget authority.'' The statute then defined discretionary budget authority in such a way that the President could go into report language, which is what President Clinton did. So you can see that in the statute, the President was not restricted to what was in front of him in the bill. He could go to where the items are. They are in the committee reports and the conference reports.
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So one of the odd things about a constitutional amendment is that it would allow a President to veto items, but Congress doesn't put items in bills and you know that. You don't put items in bills. You put items in reports. The President, under a constitutional amendment I think would have substantially less power than he did under the Line Item Veto Act. It is interesting. It is very counter intuitive.
Like Marci Hamilton, I am concerned about Congress shifting not just legislative power but the spending power. The spending power is so basic, so fundamental to Congressional prerogatives. The Framers thought they were putting it with the Representatives, not with the President. This issue has gone back and forth. In my statement, I talk about the 1921 Budget and Accounting Act where Congress did protect itself and told the President you send your budget up and when it gets here, we can change it as we like by a simple majority vote whereas others said you can't add to the budget unless you get permission from a Cabinet head or unless you get a two-thirds majority. Congress rejected all of that.
The same debate took place in the early '70's with the Nixon impoundments. Congress said that the President can change law afterwards only by getting approval from both Houses within a fixed amount of time. Then of course we reversed course in 1996. We gave the President the opportunity to change law unilaterally and we reversed the burden by telling Congress you have to get a majority vote in each House to disapprove and send it to the President. He can veto it and now you need two-thirds in each House. So we have gone on this a long time.
Another point related to this is a section I have on prestige of Congress. I think every time Congress considers measures like this, you send a message to voters and citizens that Congress can't be trusted to discharge its constitutional responsibilities, that Congress is not responsible on budget matters, that the President somehow is. I don't see anything in the record to show that Presidents are more apt to be restrictive on spending than Congress has. I don't see it. But that is the message that is sent. I think it is unfortunate.
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Another issue is if you write the constitutional amendment as H.J. Res. 9 does in the item of appropriation, you are putting the burden on about one-third of the budget, the annual appropriations bills. The rest of it, the entitlements, the rest of it, the tax breaks and so forth, the non-appropriation items are going free. This had led to a lot of debate in the States where the judges will ask what is an appropriation. And if they see a State legislature trying to finance an operation somehow in the Tax Code or something, pretty sophisticated judges will say we know what you are doing.
They'll say: ''Although you don't call it appropriation, we say it is the same as an appropriation. We say that the Governor has an opportunity to veto that.'' But it gets very complicated once you go past appropriations and get into other ways of financing government programs. H.J. Res. 9 doesn't do it but there is another constitutional amendment (H.J. Res 30) that would allow a President to veto not just appropriations but ''provisions.''
I am not sure what is meant by ''provisions'' but it could be considered a non-dollar amount. Provision might be a condition on appropriation. This has been a big issue in the States where Governors will receive an appropriation with a condition on it and they will knock out the condition so they convert a conditional appropriation into an unconditional appropriation. Judges have a field day trying to figure out whether what the Governor did was executive, that is, was it ''destructive'' and ''negative'' or was it legislative because it is ''positive'' and ''constructive.'' Very difficult area. As you can see, it is a problem if the President were able to cut non-dollar amounts, provisos, and conditions from bills.
How much can we borrow from the State experience? I think Marci Hamilton is correct that States are fundamentally different and if you look at their constitutions you can see it. Governors have item vetos because States have balanced budget requirements. Of course, that means balanced budget of the operating budget, not of the capital budget.
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Many of the States started off with biennial budgeting because the legislatures only came in every other year. They had to shift to the Governor greater discretion. If you look at State constitutions, they have restrictions in there. You can't put authorizations in appropriation bills. State constitutions tell you how to write the bill in terms of its title and format. None of that is in the U.S. Constitution. The U.S. Constitution gives Congress full power to write bills as they like and you do it through your House and Senate rules. So to me the culture of the State is fundamentally different from the national Government.
The last point is this issue of log rolling. Does log rolling occur inside Congress? Yes, it does. Does it occur between Congress and the President? Yes, it does. Will a constitutional amendment like this help? I don't see why. Right now there is some restriction on log rolling because you do operate under spending caps. You do operate under limits and aggregates.
Therefore, you do put a limit on what you do through special projects for districts and States. With availability of an item veto, I don't know why Congress would be as disciplined. I don't know why Congress wouldn't pile on, just add more things and not be as responsible and add more and just let the President worry about the excess. I will stop with that. Thank you.
[The prepared statement of Mr. Fisher follows:]
PREPARED STATEMENT OF LOUIS FISHER, SENIOR SPECIALIST IN SEPARATION OF POWERS WITH CONGRESSIONAL RESEARCH SERVICE, THE LIBRARY OF CONGRESS
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Mr. Chairman, thank you for inviting me to testify on proposals for a constitutional amendment that would grant the President authority to disapprove any item of appropriation in any bill submitted to him. As with the President's general veto power, Congress could override the President's action by mustering a two-thirds majority in both chambers. I will focus on some of the central issues raised by such amendments, as well as some important differences among the proposals.
Transferring Legislative Power
A primary consideration is whether Members of Congress want to transfer some of their legislative power to the President. Not only does the amendment support this shift of power, it does so in an area that the framers considered fundamental to the legislative branch. In Federalist No. 58, James Madison said that the power of the purse represents the ''most complete and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.'' Article I, Section 9, of the Constitution vested that power in the hands of Congress: ''No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.'' In Federalist No. 48, Madison remarked that ''the legislative department alone has access to the pockets of the people.''
It is true that Congress, over the years, has adopted a number of statutory procedures that place budgetary responsibility with the President. One of the most notable statutes is the Budget and Accounting Act of 1921, which directed the President to submit a budget and be held responsible for the estimates. There was much debate at the time about the degree of power to be transferred. Some wanted to prevent Congress from adding to the President's budget unless the money ''had been requested by the head of the department, unless by a two-thirds vote, or unless it was to pay a claim against the government or for its own expenses.'' William McAdoo, President Wilson's first Secretary of the Treasury, endorsed similar constraints on Congress, as did his successors as Secretary of the Treasury, Carter Glass and David Houston.
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This version of an executive budget was explicitly rejected by Congress. The budget was to be executive only in the sense that the President was responsible for the estimates submitted. It was legislative after that point because Congress retained full power to increase or decrease his estimates. Increases could be made in committee or on the floor, and in either place by simple majority vote. The act did not contemplate in any fashion the surrender of congressional power. The shift in power was from executive agencies to the President, not from Congress to the President. In reporting the bill, the House Select Committee on the Budget explained in straightforward language:
It will doubtless be claimed by some that this is an Executive budget and that the duty of making appropriations is a legislative rather than Executive prerogative. The plan outlined does provide for an Executive initiation of the budget, but the President's responsibility ends when he has prepared the budget and transmitted it to Congress. To that extent, and to that extent alone, does the plan provide for an Executive budget, but the proposed law does not change in the slightest degree the duty of Congress to make the minutest examination of the budget and to adopt the budget only to the extent that it is found to be economical. If the estimates contained in the President's budget are too large, it will be the duty of Congress to reduce them. If in the opinion of Congress the estimates of expenditures are not sufficient, it will be within the power of Congress to increase them. The bill does not in the slightest degree give the Executive any greater power than he now has over the consideration of appropriations by Congress.
The procedure here was key to legislative control. If the President wanted to fund programs, he had the burden of convincing Congress to keep the money at the level he requested. If Congress chose to cut his proposals and add money elsewhere, the President's leverage would have to be exercised by a veto or a threat of a veto. With the constitutional amendment, that burden would be reversed. The President could delete funds he did not want, or did not ask for, and Congress would have to find a two-thirds majority in each House to override the President.
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A similar debate occurred in 1973 and 1974 when Congress considered legislation to restrict the President's power to impound funds. The Impoundment Control Act of 1974 (Title X of the Budget Act) established procedures for the rescissionor cancellationof funds. To rescind funds, both Houses would have to complete action on a bill or joint resolution within 45 days of continuous session. Some Members of Congress objected to this procedure because it put the burden on the President to convince both Houses of Congress within a set period of time to support the termination of funds. Their arguments in favor of greater presidential power were rejected. Under the statute, if Congress were to ignore the President's rescission proposals, the money would have to be released and spent.
Dissatisfaction with this procedure led to the Line Item Veto Act of 1996. Presidential proposals to cancel spending would become law unless Congress passed a joint resolution of disapproval within 30 days. If Congress failed to act during that period, the proposals would take effect. If Congress did disapprove, its resolution could be vetoed by the President and it would take a two-thirds majority in each House to override the veto and restore the funds. In Clinton v. City of New York (1998), the Supreme Court struck down this statute as unconstitutional because it allowed the President to ''repeal'' laws without complying with the regular legislative procedure, including bicameralism and the Presentment Clause.
A constitutional amendment for an item veto would reopen the issue that Congress has considered ever since 1921: How much of the power of the purse and the control of spending priorities should be transferred to the President? When it comes to spending, is the President better positioned than Congress to decide what is in the nation's interest? Should budgetary priorities be determined by lawmakers through the deliberative processas the framers intendedor by unilateral presidential actions?
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The Prestige of Congress
When Congress considers legislation or constitutional amendments to transfer spending power to the President, it does more than shift the balance of power. It may communicate to the public, intentionally or not, that lawmakers are unable to act responsibly on budget matters. I don't think the history of the last two centuriesor even the last two decadessupports such a picture, but the message would come across nonetheless.
The two-year experience with the Line Item Veto Act revealed some interesting qualities about presidential decisions. Out of 79 opportunities to cancel limited tax benefits (those that assist one hundred or fewer taxpayers), President Clinton canceled only two. Because of the customary identification of Congress with ''special interests'' or ''narrow interests,'' one might think that Congress was responsible for the 79 limited tax benefits. However, more than half of them were executive initiated or executive supported. President Clinton explained that 30 of the tax items had been recommended by the Treasury Department to fix flaws in current law, while another dozen or more were put in by Congress by agreement with Treasury to fix other procedural problems.
Reporters were puzzled by this limited use of item-veto authority. Why did President Clinton not eliminate more of whatin the words of one reporter-''sounds like the very definition of a special interest goodie?'' Clinton explained: ''Well, it's certainly the definition of a special interest group, but not all special interests are always in conflict with the general interest. If that were true, our country would not have survived for over 200 years.'' This experience puts the issue of ''special interests'' in perspective.
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Impact on Spending
I think the record is quite clear that the exercise of item-veto authority by the President is unlikely to produce substantial reductions in federal spending. The likely effect will be to spend more money on programs that the President wants and less money on programs that lawmakers want.
I say that for two reasons. First, in January 1992, the General Accounting Office released a report that claimed that if President Reagan possessed an item veto, he could have saved up to $70 billion over a six-year period. CRS was asked to evaluate the GAO study. Drawing on the same set of data used by GAO, I concluded that a more useful estimate of savings over the six-year period would be $23 billion and probably less. I also cautioned that a President, armed with an item veto, could use that leverage to force a quid pro quo that would retain a legislator's project in return for an expensive White House priority, pushing spending up.
After my analysis, Comptroller General Charles Bowsher wrote to Senator Byrd, acknowledging that actual savings over the six years would have been much less than the theoretically maximum potential savings that GAO had projected. Such savings could have been ''close to zero.'' Comptroller General Bowsher admitted that one could conceive of situations in which the ''net effect of item veto power would be to increase spending,'' because Presidents intent on building legislative support for their own spending programs could back programs or projects favored by Senators and Representatives. He regretted highlighting the $70 billion figure and contributing to a ''misleading impression.'' The quid pro quos between Congress and the White House might involve other presidential initiatives, including appointments and treaties.
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Second, we have the experience of the Line Item Veto Act. The exercise of cancellation authority by President Clinton had a relatively small effect on the federal budget. The total savings, over a five-year period, came to less than $600 million. His cancellations for fiscal year 1998 were about $355 million out of a total budget of $1.7 trillion. The totals would have been somewhat higher had all of President Clinton's original recommendations become law. Congress disapproved one of the cancellation packages and the Administration reversed itself on another package after conceding that it lacked authority to do what it did.
The cancellation package disapproved by Congress was an October 6, 1997, list of 38 projects in the military construction appropriations bill. Estimating that the cancellations would save nearly $290 million over a five-year period, President Clinton identified three criteria that guided the selections: (1) the Defense Department concluded that the projects were not a priority at this time, (2) they did not make an immediate contribution to the housing, education, recreation, child care, health, or religious life of the military service, and (3) they would not have been built in fiscal year 1998 in any event.
These selections came under heavy fire. The Senate Appropriations Committee held hearings and took testimony from the Air Force, Navy, and Army. The military witnesses testified that the canceled projects were mission-essential and could be commenced in 1998. On October 30, the Senate voted 69 to 30 to disapprove the cancellations. On November 8, the House voted 352 to 64 for the disapproval resolution. President Clinton vetoed the resolution but was easily overridden, the House voting 347 to 69 and the Senate 78 to 20.
Also reversed, by the Administration itself, was a cancellation that involved the federal retirement system, affecting employees who elected to switch from the Civil Service Retirement System (CSRS) to the Federal Employees Retirement System (FERS). President Clinton claimed that the action would save $854 million over five years. Senator Ted Stevens, chairman of the Appropriations Committee, and Senator Pete Domenici, chairman of the Budget Committee, challenged the legal basis for the cancellation. Although the cancellation was reported as a cancellation of discretionary budget authority, they both agreed that the change in the FERS policy did not constitute ''budget authority.'' In fact, the Administration was unable to report estimated savings in budget outlays. Instead, the FERS proposal was reported as ''receipt savings.'' Administration officials later admitted that President Clinton did not have the authority to cancel funds in the retirement program.
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Some of the constitutional amendments for an item veto are limited to appropriations bills (H.J. Res. 9, H.J. Res. 30, S.J. Res. 31). Others are written more broadly to reach discretionary budget authority, new direct spending, and limited tax benefits (H.J. Res. 20).
To the extent that a constitutional line item focuses only on appropriations items, it may be argued that this authority would fall unfairly on the annual appropriations bills, which constitute about one-third of federal spending. It was for that reason that the Line Item Veto Act of 1996 was amended to include not only discretionary budget authority but also new entitlements and limited tax benefits.
If a President's item veto were confined to appropriations bills, legislators may decide to finance programs by other means, such as entitlements, tax expenditures, or tax credits. Legislaturesstate and nationaluse a variety of budgetary methods. Because the creation of such funds may jeopardize the governor's item-veto power, state courts have scrutinized nonappropriation bills to determine when a governor may exercise an item veto. These issues get quite complex. An Arizona court ruled that because the governor's item-veto authority was restricted to appropriations items, he could not disapprove a gasoline tax. Yet a dissenting judge said that three of the tax provisions were, in fact, ''items of appropriations.'' As he said: ''Is it seriously contended that, when a state-wide tax is levied by the Legislature, and the act levying the tax provides just how the money shall be distributed, for what purpose it shall be expended, and by whom, . . . it is not an appropriation?'' Black & White Taxicab Co. v. Standard Oil Co., 218 P. 139, 150 (Ariz. 1923).
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Intricacies of state financing illustrate how legislators can blunt a governor's item veto by funding activities indirectly. In 1970, a Montana court said that the legislature may not pass an appropriations bill that contains a separate section that restricts the distribution of appropriated funds. Such a device would impair the governor's item-veto power. Helena v. Omholt, 468 P.2d 764 (Mont. 1970).
Two years later a court in Ohio ruled that a governor's item veto extended to a section that did not contain a specific appropriation. The statutory provision had authorized the secretary of state to employ legal counsel and compensate them from the appropriation for the attorney general. Since the attorney general would be entitled to reimbursement for any expenditure to the secretary of state, the court declared that the item was an appropriation. The legislature, said the court, had funded an activity indirectly that could have been covered directly through an appropriation. State ex rel. Brown v. Ferguson, 291 N.E.2d 434 (Ohio 1972).
A 1993 case in Minnesota involved a provision in an appropriations bill that assigned revenue from a taconite tax increase to a new higher education program. Although the provision did not identify a sum of money, the court used a functional test to conclude that the provision was an ''appropriation'' and thus subject to the governor's item veto. Johnson v. Carlson, 507 N.E.2d 232 (Minn. 1993). Many other state cases involving nonappropriations bills and the governor's item veto could be mentioned.
Conditions and Provisions
H.J. Res. 30 would authorize the President to item veto ''any appropriation or provision.'' The language in the resolution does not define ''provision.'' Would it apply to appropriations riders, conditions on appropriations, and other non-dollar provisions? Through the exercise of an item veto, may a President convert a conditional appropriation to an unconditional appropriation? These questions have been extremely difficult to resolve at the state level and have triggered dozens of court cases.
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Two cases in Washington upheld the governor's veto of a section on the ground that the language was a separable item. Cascade Telephone Co. v. State Tax Commission, 30 P.2d 976 (Wash. 1934); City of Tacoma v. State Tax Commission, 33 P.2d 899 (Wash. 1934). The courts decided that a section was severable when it was only ''negative'' in effect. A dissenting judge denied that the court could reasonably distinguish between negative and affirmative vetoes. He regarded the governor's veto as affirmative ''because it actually creates a result different from that intended, and arrived at, by the Legislature.'' Cascade Telephone Co. v State Tax Commission, 30 P.2d at 979 (Steinert, J., dissenting). In 1935, a Wisconsin court upheld the governor's veto of language in an appropriations bill by concluding that the language was not inseparably connected to an appropriations bill. The elimination of the language left ''a complete, consistent and workable scheme and law.'' State v. Henry, 260 N.W. 486, 492 (Wis. 1935).
In subsequent decades, state judges became increasingly skeptical about their ability to discriminate between negative and affirmative vetoes. In 1940, a Wisconsin court conceded that a governor's item veto ''did effectuate a change in policy,'' although the court decided that the balance of the bill in this case provided ''a complete workable law.'' State v. Zimmerman, 289 N.W. 662, 665 (Wis. 1940). A Virginia court in 1940 held that the governor could not veto items that were ''tied up'' with other provisions. It used a colorful analogy, drawn from the field of medicine, to distinguish between separable and inseparable items. It defined an ''item'' as something that could be taken out of a bill without affecting its other purposes or provisions: ''It is something which can be lifted bodily from it rather than cut out. No damage can be done to the surrounding legislative tissue, nor should any scar tissue result therefrom.'' Commonwealth v. Dodson, 11 S.E.2d 120, 124 (Va. 1940).
Page 58 PREV PAGE TOP OF DOC In 1977, a Washington court held that the governor's attempted 14 vetoes of items and sections in a bill were invalid because the language disapproved reached a result unintended by the legislature. The item vetoes were thus ''affirmative'' and ''creative'' in their effect, rather than ''negative'' and ''destructive.'' Washington Ass of Apt. Ass'ns v. Evans, 564 P.2d 788 (Wash. 1977).
A year later, a Wisconsin court decided that the governor could strike provisos or conditions in an appropriations bill and that the language vetoed was severable from the appropriations bill. A dissenting judge warned that ''[a]t some point this creative negative constitutes the enacting of legislation by one person, and at precisely that point the governor invades the exclusive power of the legislature to make laws.'' He said that the customary distinctions between affirmative and negative, creative and destructive, and other concepts involve courts in ''disingenuous semantic games. While these tests may be appealing in the abstract, they are unworkable in practice.'' State ex rel. Kleczka v. Conta, 264 N.W.2d 539, 55758 (Hansen, J., concurring in part, dissenting in part).
Borrowing from State Experience
Much of the impetus for giving the President an item veto comes from those who would rely on precedents established by the states. Forty-three states give the governor some version of item-veto authority, ranging from the standard item veto (vetoing an item in its entirety) to ''item reduction veto'' (reducing the level of an item) to an ''amendatory veto'' (allowing the governor to condition his approval of an enacted bill by returning it to the legislature with suggestions for change). The precise contours of the item veto at the state level have been defined by state court rulings and gubernatorial practices.
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Three primary factors contributed to the adoption of the gubernatorial item veto: an anti-legislature bias in some states, balanced budget requirements in 49 states, and state budget cycles.
A significant consideration is the fear of legislative excesses, manifested in the belief that state budgetary decisions ultimately should be made by an executive officer. Fear of irresponsible legislative actions fueled the initial push for an item veto in the late nineteenth century. According to one observer, state legislatures during this period ''were perceived . . . as being corrupt, open to bribes for introducing private and special legislation,'' while governors were considered ''less venal than legislators. Thus, being the lesser of evils, trust ought to be given to governors to act as guardians of the public purse against avaricious legislators . . . .''
The governor's power over the budget grew in the twentieth century due in part to a popular perception that the executive branch was a more capable manager than the legislature. This view was rooted in the belief that the government should operate as a business with the governor as chief administrator.
State constitutional constraints on legislative action were closely tied to, and in part responsible for, the growth of the item veto. Limitations were placed on state borrowing, and prohibitions also barred a host of private, special, and local laws. State constitutions included detailed prohibitions on the enactment of private or local laws that attempted to fix the rate of interest, remit fines, penalties, or forfeitures, exempt property from taxation, provide for the management of public schools, and impose other restrictions that would be totally inappropriate for the federal Constitution.
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The item veto is also based, in part, on the requirement in nearly all states for a balanced budget. Some governors justify item vetoes as a technique for remaining within the confines of a balanced budget, as required by either the state constitution or a state law.
The third justification for the governor's item veto is the relatively longer budget cycle that operates in the states. When state legislatures meet only once every other year or adopt a biennial budget, it is necessary to delegate to the governor substantial authority over the two-year period, including the flexibility to impound funds.
Part of the reason for giving governors an item veto was that most legislatures were part-time institutions lacking in competence to deal on a coequal basis with the executive branch. Recently, state legislatures have moved toward annual sessions and attracted a professional staff. Congress has met in annual session ever since 1789.
State constitutions typically contain an unusually detailed list of specific controls on the process of authorizing and appropriating funds. The legislature, for example, cannot evade the governor's item veto by incorporating funding measures into authorization bills. Moreover, state appropriations bills are highly specific to give the governor greater opportunity to exercise the item veto. It is not unusual to see sums of $2,000 or $2,500 in state appropriations bills. The practice of the federal government is to appropriate in large lump-sum amounts.
State constitutions are filled with detailed prescriptions and proscriptions on the authorization-appropriation process. Many state constitutions direct that general appropriations bills shall embrace nothing but appropriations. The effect is to prohibit the addition of substantive legislation to appropriations bills. A state legislature may be constitutionally prohibited from using an appropriations bill to create, amend, or repeal substantive legislation. General appropriations are to be made by separate bills, each embracing but one subject. State constitutions even prescribe the format and style of bills. These provisions restrict the legislature and protect the governor's item-veto power.
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By contrast, the federal Constitution does not direct the style and form of appropriations nor does it distinguish between authorizations and appropriations. Unlike state constitutions, many of which have a strong anti-legislature bias, the federal Constitution contains few limitations on the spending power. Appropriations and authorization bills are governed solely by House and Senate rules as part of the internal procedures of Congress.
Unless Congress were to substantially alter the structure of appropriations bills, moving from the current lump-sum approach to itemization, the item veto would give the President little additional control over individual projects, programs, or activities. The President cannot veto items if there are no items.
One proposal, H.J. Res. 20, would grant the President broader authority by allowing him to veto ''in whole any dollar amount of discretionary budget authority, any item of new direct spending, or any limited tax benefit.'' This language comes from the Line Item Veto Act and appears to authorize presidential vetoes not only of discretionary budget authority in bill language but also the more detailed amounts in committee reports. That was how the Line Item Veto Act defined ''discretionary budget authority.'' Apparently that is the intent of H.J. Res. 20, although the constitutional language does not say that. Presumably that point could be made in the legislative history of H.J. Res. 20. I would think that Congress would have to pass a separate statute explaining the budget terms in H.J. Res. 20 and how it would be implemented.
Finally, state courts have been extraordinarily active in policing the boundaries of the item veto. Some state courts emphasize legislative prerogatives, while others stress gubernatorial authority. If the President is granted item-veto authority, the federal judiciary will be embroiled in some of the same difficult issues presented in state courts. Federal court interpretations of a presidential item veto might have the unintended result of transforming the judiciary into arbitrators of the federal budgetary process. Notwithstanding decades of state court decisions, no stable set of operating principles has yet to emerge.
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Granting the President an item veto would introduce an uncertain new dynamic to executive-legislative relations. Because of the informal and private communications between the branches, it may be difficult to maintain much accountability for fiscal decisions. Members might vote with new incentives, subjected to pressures and calculations that did not exist before.
When an executive possesses only general veto authority, the legislature is under both external and internal pressure to produce a budget that everyone can live with. Availability of the item veto may diminish the incentives for lawmakers to closely control substantive provisions and the level of appropriations. This would be especially the case if appropriations bills were recast by Congress to include specific projects and programs, following the custom of states. Legislators could insert extravagant and irresponsible items with the peace of mind that the executive would strike them from the bill. Colleagues in the legislative branch could be less likely to challenge these provisions, preferring to leave that task to reviewers in the executive branch. Instead of negotiating in good faith, important issues may be left unresolved until the bill reaches the President.
The item veto, billed by some as an essential tool for accountability in the Executive, may actually diffuse responsibility by constantly shifting the onus of action to another governmental body: from the legislature to the executive, from the executive back to the legislature, and from both branches to the courts. A constitutional amendment, phrased in broad terms, could be circumvented by a variety of budgetary techniques. Efforts could be made in constitutional language to limit such artifices, but at some point these definitions and restrictions can become unwieldy.
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Mr. CANADY. Thank you, Mr. Fisher. Mr. Schatz.
STATEMENT OF THOMAS A. SCHATZ, PRESIDENT, CITIZENS AGAINST GOVERNMENT WASTE
Mr. SCHATZ. Thank you very much, Mr. Chairman, and I am pleased to be here today on behalf of the one million members and supporters of Citizens Against Government Waste around the country, and I can tell you having been in this position or having been with Citizens Against Government Waste since 1986 that this is an issue that our members do support very strongly and we appreciate your consideration of the veto.
I am not asking questions of the other witnesses, but I wanted to make a quick comment on the issue of whether members would add more items simply because they would expect the President to use line item veto. I don't believe that that occurred when the President had the line item veto although he didn't use it very effectively. But from our evaluation of the appropriations bills the spending went up at a rate that was commensurate with the past experience that we had had in examining the bills and it did not appear that members were simply letting the President make all these decisions.
And the comments that have been made about passing this authority to the President, it is like any other veto that the President makes. The Congress has the final say. They have the ability with a two-thirds majority in both Houses to agree to spend the money on these items that often get hidden, particularly in the omnibus spending bills the members don't have the time to read or evaluate and simply pass because they would like to go home for whatever holiday is coming up at the end of the year or to go back and get re-elected.
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And we certainly understand the pressures of working on these bills at the last minute. We prefer that these bills get done on time early in the year and that the President actually take them one by one, and I know the Speaker and the minority as well has tried this for many years regardless of which side everybody has been on. It is very difficult to do. Our review of the spending bills and what we call our Congressional Pig Book, which will be out in two weeks, in fact, this year shows that the spending is worse than ever and that while we have a budget surplus here in Washington, the tendency is to go out and spend all the money.
From the standpoint of whether a line item veto amendment is needed more now than it may have been when we had huge deficits, it is our view that it is needed more now. The restraint on Congress at least with deficits was such that these items were not as prevalent as they are now. And I don't think that is a matter of which party is in control because this has always been bipartisan, particularly over in the other body, as they say, where there is far less control and probably far more comraderie when it comes to approving each other's pork barrel spending.
There are tens of billions of dollars that have been spent on projects that were not competitively awarded, not authorized, not subject to hearings. They get in at the last minute and there is a lot of pressure to get these items put into the bills and they are usually in the districts and states of the appropriators. There is no equity to the rest of the Congress for these items.
And for a brief period, members of the public had some hope that reform would reduce the assault on their wallets. The line item veto law was passed in the House by a voice vote and by a 69 to 31 vote in the Senate. And despite the discussion of whether an amendment or a statute is more effective or not or the impact it would have, it is clear that the Congress has spoken on the issue in favor of a line item veto in some form.
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Certainly a constitutional amendment deserves more weighty consideration and longer discussion, but the concept of a line item veto certainly has overwhelming support in both the House and the Senate on a bipartisan basis. I would expect that working out the language and working out how the actual amendment would function would also receive overwhelming support when it comes to the floor. The President cancelled just a mere $355 million in fiscal year 1998 spending which when we had a discussion about the real percentage is something like 2000th of 1 percent of all spending, a very small amount, although $355 million is a big number to the American people. It is small in relation to a $1.7 and $1.8 trillion budget.
Interestingly when that was done members who had previously supported the line item veto suddenly said, well, wait a minute. That is in my district and my State showing that if it had been exercised more effectively there may have been a stronger impact on that kind of spending. The amendment is the only answer to the Supreme Court's decision holding the statute to be unconstitutional and it is our view that this should be done.
We have a long list of items in our written statement. We will have a much longer list in a couple of weeks. But certainly the President would be interested in having the ability to veto items like the $25 million for an Arctic Region super computer at the University of Alaska to study how to trap energy from the aurora borealis or the $5.1 million in wood utilization research on which we have now spent more than $55 million since 1985.
So all these items certainly get into the spending bills. We think the President should have the opportunity to exercise the line item veto in the Constitution and then Congress can vote on these one by one and see if they really are items that they think the American people should be spending their tax dollars on. Thank you very much, Mr. Chairman.
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[The prepared statement of Mr. Schatz follows:]
PREPARED STATEMENT OF THOMAS A. SCHATZ, PRESIDENT, CITIZENS AGAINST GOVERNMENT WASTE
Mr. Chairman, members of the subcommittee, thank you for the opportunity to testify today. My name is Thomas A. Schatz. I am president of Citizens Against Government Waste (CAGW), a 600,000 member nonprofit organization dedicated to eliminating waste, fraud and abuse in government. Citizens Against Government Waste has not received at any time any federal grant and we do not wish to receive any in the future.
CAGW was created 16 years ago after Peter Grace presented to President Ronald Reagan 2,478 findings and recommendations of the Grace Commission (formally known as the President's Private Sector Survey on Cost Control). These recommendations provided a blueprint for a more efficient, effective and smaller government.
Since 1984, the implementation of Grace Commission recommendations has helped save taxpayers more than $625.4 billion. CAGW has been working tirelessly to carry out the Grace Commission's mission to eliminate government waste.
CAGW maintains that the adoption of a constitutional amendment granting the power of a line-item veto to the president is critical to establish fiscal discipline in Washington.
In recent years, Congress has appropriated tens of billions of dollars for projects that were not competitively awarded, authorized, or subject to congressional hearings or debate. This subversion of the budget process has meant that the interests of taxpayers in an economic, efficient and accountable government have been cast aside in favor of private interests.
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For a brief period, the American people had hope that reform would reduce this assault on their wallets. In 1995, the new majority passed the line-item veto law by a voice vote in the House and an overwhelming 69-31 vote in the Senate. Clearly, Congress recognized the necessity of fiscal responsibility.
On January 1, 1997, the line-item veto law took effect. This law was enacted after decades of attempts to provide this power to the president. But this new veto privilege was used sparingly (some would say very selectively) by President Bill Clinton to cancel a mere $355 million in fiscal year 1998 pork-barrel spending, less than .002 percent of that year's budget. Although the amount of waste that was removed was miniscule, members of Congress who had previously lauded the passage of the line-item veto began to question its legitimacy. This was clear evidence that even though the overall amount of money saved was relatively small, eliminating more waste would have had a substantial effect on the spending culture.
Unfortunately, the Supreme Court took the line-item veto power away from the president in mid-1998, ruling the law unconstitutional. The clearest answer to the Supreme Court's decision is a constitutional amendment granting the line-item veto to the president. Such power would allow the president to reject wasteful spending slipped into appropriations bills for narrow interests without having to veto the entire bill, shut down federal agencies or disrupt major federal programs. The power to veto and reduce line items in spending bills would enable the president to remove pork and fat from the budget without disturbing the normal flow of government.
The need for such power arises from weakened fiscal discipline promulgated by congressional budget practices and the Budget and Impoundment Control Act of 1974. Congress funds all executive agencies and departments through 13 major appropriations bills. As a consequence, the president cannot block a specific project without vetoing the entire bill. He must either let the spending go through or risk disrupting major programs and shutting down whole departments. Presidents seldom choose to exercise the veto in such circumstances and, as a result, pork and other wasteful spending items are not excised.
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Congress has confronted the president repeatedly with hastily-crafted, 11th-hour omnibus bills that cover all or substantial portions of federal spending for the year. This practice inhibits the exercise of the veto, which under such circumstances would have the effect of closing down the federal government. A line-item veto would enhance the president's role in the budget process. It would not tilt the power over the nation's purse strings in favor of the president, but restore the balance that has been eroded by Congress' budget rules that favor big spending and pork. As it does in 43 states, it would make both the legislative and executive branches more accountable for our tax dollars.
A line-item veto amendment is necessary because under current law, the president's rescission proposals can easily be ignored. It is an affront to common sense that while the president now can propose to rescind any portion of an appropriations bill, Congress is not required to vote on his rescission package. If Congress chooses to ignore the president's request, it expires after 45 days. The spending proposals stand as law.
Mr. Chairman, that is the problem. For too long, pork-barrel and non-essential spending have been allowed to continue without checks and balances. The interests of taxpayers have been ignored, and the country endured more than a quarter century of chronic deficit spending that resulted in a national debt of more than $5.7 trillion.
Under the amendment, the vetoed items would be automatically stricken from the spending or taxing bills unless a two-thirds of the House and the Senate vote to override the veto. By giving the president a bigger presence in the spending decisions of our nation's government, fiscally sound legislation and not special interests should be the order of the day.
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Concern that the line-item veto would give the president unlimited power is unfounded. The fear that the president could use the veto authority to expand his power exponentially and upset the checks and balances between the branches is addressed by restricting the president's veto power to disapproving specific line-items in appropriations bills. In this way, the line-item veto would not give authority to the president to alter the budget priorities set by Congress in its spending decisions, since the veto can only be used to withhold funds for an item.
Only in Washington, where many members of Congress see pork as a benefit to their own re-election, can an increase in accountability like the line-item veto be seen as a mortal threat to our republic.
By including provisions whereby Congress can overturn a line-item veto by a two-thirds vote, the separation of powers, the cornerstone of our republican government, is not overturned. Furthermore, it would be perilous for a president to use the authority to blackmail Congress into passing presidential pork because Congress could claim the high ground and ensure that the president's pork was removed. Presidential and congressional pork is equally objectionable.
Over the past decade, CAGW's annual Pig Book has identified thousands of examples of egregious pork-barrel spending that cost the taxpayers an average of $10 billion every year. Examples include:
$58 million to bail out millionaire New York Yankee owner George Steinbrenner's American Ship Building Company in Tampa,;
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$25 million for an Arctic region super computer at the University of Alaska to study how to trap energy from the aurora borealis;
$6.15 million for the Western Human Nutrition Center in;
$3.354 million for shrimp aquaculture;
$12.5 million for the East/West Center in Hawaii;
$1.5 million for the Million Solar Roofs Inititative;
$1.3 million for the National Wind Technology Center;
$19.6 million for the International Fund for Ireland;
$5.1 million in wood utilization research;
$250,000 for KNBA radio in Anchorage, Alaska;
$2 million for the Guadalupe Center in Kansas City for its culinary and cultural arts expansion;
$2.4 million for design and construction of a parking facility to provide 200 parking spaces for 18 federal employees in Burlington, Iowa;
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$600,000 to ease fish migration up the Sacramento River;
$200,000 for a Toledo Mud Hens transit center study in Ohio;
$1 million for the Animal Waste Management Consortium through the University of Missouri; and
$750,000 for grasshopper research in Alaska.
For a generation, balancing the budget was beyond the ability of our leaders in Washington. Ironically, it appears that the budget deficit actually restrained pork barrel spending. Now that the American people are being overcharged and the Treasury is bulging at the seams, pork has exploded throughout the budget. There were 2,838 pork barrel projects in the fiscal 1999 budget. That was an increase of 32 percent over fiscal 1998. CAGW's research team is working overtime counting the number of pork projects in the fiscal 2000 budget. Our list is just about complete, and it is clear that Congress has set a new pork-barrel spending record.
For decades, the opportunities for reducing wasteful government programs and reducing the size of government have been scarce. A line-item veto can provide opportunities for Congress and the president to work closely for a smaller, more efficient and less costly government.
The General Accounting Office, Congress' own investigative agency, estimated in 1992 that a presidential line-item veto could have cut $70.7 billion in pork-barrel spending from fiscal years 1984 through 1989. That's $70.7 billion in unnecessary spending taken out of the hands of the private sector.
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The line-item veto would help restore citizen control over the political process. This, in turn, would promote fiscal soundness, efficient government, and policies favorable to continued economic growth.
Mr. Chairman, the line-item veto would allow the president to weigh parochial expenditures which benefit the few against the common good and the priorities of the many. The American people have demanded that it is time to change the way business is done in Washington. Voters are tired of finger pointing and excuses. Giving the president a line-item veto and ending the sovereignty of pork-barrel spending is just what they have in mind.
Successive presidents have asked Congress to provide them with the line-item veto. The president must have no excuses for failing to lead and accept accountability. Congress must show that it is serious about controlling spending by passing an amendment to the Constitution giving the president the line-item veto. The time is now.
This concludes my testimony. I'll be glad to answer any questions you may have.
Mr. CANADY. Thank you. Mr. Weich.
STATEMENT OF RONALD WEICH, CITIZENS FOR THE CONSTITUTION
Mr. WEICH. Thank you, Mr. Chairman, and members of the subcommittee. My name is Ronald Weich. I am a practicing attorney and I am a founding member of the group Citizens for the Constitution, a non-partisan organization engaged in public education about the constitutional amendment process. I am pleased to appear before you today on behalf of Citizens for the Constitution to discuss H.J. Res. 9.
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I want to take a few minutes to explain the work of Citizens for the Constitution, describe certain guidelines we have developed that we suggest Members of Congress should consider in evaluating any constitutional amendment, and then comment on H.J. Res. 9 in light of those guidelines. But I am not going to take a position in favor or against this proposal because Citizens for the Constitution does not generally take a position on individual amendments. Our point is that all amendments deserve very careful consideration in light of these factors.
Citizens for the Constitution is a 3-year-old initiative of the Constitution Project, a nonprofit, non-partisan organization based at Georgetown University Law Center. We are a group of former public officials, scholars, journalists, lawyers and other Americans who urge restraint in amending the Constitution of the United States. Our co-chairs are former Republican Congressman Mickey Edwards of Oklahoma and former Democratic Congressman and Federal Judge, Abner Mikva of Illinois.
The other members of the group include other former Republican and Democratic Members of Congress, former Attorneys General of the United States, former Federal judges and other high government officials. We are Democrats and Republicans, liberals and conservatives. We probably disagree about the policy issues that underlie each proposed amendment but we have a shared belief that the Constitution itself should be preserved from unwise tinkering.
We don't believe that the Constitution is a static document that can never be amended. It is not sacred text. But we are united in the conviction that it should only be amended with the utmost care and in a manner consistent with the spirit and meaning of the entire document. We founded the organization about three years ago because we were concerned that the traditional restraint that had characterized the constitutional amendment process had begun to dissipate.
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It is true that no newly proposed amendment has been adopted since 1971 but there were a series of amendments that were proposed and had gotten further along in the legislative process than at any time in recent history. This subcommittee is well aware of that trend because, of course, it is the springboard for many of the amendments. We are talking about the balanced budget amendment, term limits, flag desecration, campaign finance, religious freedom, victims bill of rights, an amendment redefining citizenship, even an amendment to ease requirements for future amendments.
We have the uncomfortable sense that we are suddenly in the midst of a rolling constitutional convention. There are enough proposals out there as to create a real sense of constitutional instability and that is just inconsistent with what the Framers intended. James Madison wrote in the Federalist papers that the U.S. Constitution should be amended only on ''great and extraordinary occasions.'' The Framers knew that there was a value in having a Constitution that was brief, general and as permanent as possible in order to inspire respect for the rule of law.
Drawing on constitutional history and consulting with numerous scholars, we came up with a document called Great and Extraordinary Occasions. I commend the document to members of this subcommittee in particular and ask consent that it be included as part of the record of this hearing.
[The pamphlet submitted for the record entitled ''Great and Extraordinary Occasions,'' is on file with the House Judiciary Committee's Subcommittee on the Constitution.]
Page 75 PREV PAGE TOP OF DOC Mr. CANADY. Without objection.
Mr. WEICH. Thank you. The document proposes eight guidelines for consideration of constitutional amendments. These are not rules. We wouldn't presume to tell Congress here are the things you have to tick off to say this is a valid amendment or not. We suggest that these are, in a sense, speed bumps. Before enacting or ratifying any particular amendment Congress and then in turn State legislatures should consider these kinds of questions, but they are very much questions and not conditions.
My written testimony goes through all eight and considers H.J. Res. 9 in light of all eight guidelines. I just want to highlight four that I think are particularly relevant to the line item veto. First, does the proposed amendment address matters that are of more than an immediate concern likely to be recognized as of abiding importance by subsequent generations? Well, several years ago there was a real sense of crisis when the line item veto statute was taken up. We had these horrendous budget deficits and there was a sense that the line item veto was necessary to balance the budget. Several years later that turns out not to be true but now we know that now we have budget surpluses and whatever the value of a line item veto you cannot say that it is necessary to balance the budget. Just because a proposal was useful several years ago as a statute doesn't mean it is appropriate now as a constitutional amendment. We think the bar should be higher.
Second, are there significant practical and legal obstacles to the achievement of the objectives of the proposed amendment by other means?
Others on the panel, including Professor Hamilton, have spoken about other, non-constitutional means that can and should be considered before resorting to a constitutional amendment. The first and most obvious, of course, is Congress could exercise greater fiscal self-restraint without the need for any new rules, laws or constitutional amendments.
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Third, is the proposed amendment consistent with related constitutional doctrine that the amendment leaves intact?
I urge you strongly to consider the relationship of this amendment with existing constitutional doctrine concerning Separation of Powers. The very delicate balance that the Framers put in place between the branches of government that we all understand is a system of checks and balances. This amendment has the potential to seriously disrupt that balance. It deserves the Congress' consideration. Fourth and finally, does the proposed amendment embody enforceable, not purely aspirational standards?
There has been a lot of talk about the difference between the statute and the amendment. The statute takes up 22 pages in the United States Code Annotated. It was a very complex question, and the drafters of that statute considered exactly how the line item would be defined, whether tax breaks would be included, the process for overriding it. The constitutional amendment, in contrast, is one paragraph long.
This is commendable. We don't want undue verbosity in the Constitution of the United States. But without the rules and definitions that were in the statute there is a real question about how the line item veto would function so maybe it is not suitable material for the Constitution.
We thank you for the opportunity to testify and we ask that these questions be considered by the subcommittee.
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PREPARED STATEMENT OF RONALD WEICH, CITIZENS FOR THE CONSTITUTION
Mr. Chairman and Members of the Subcommittee: My name is Ronald Weich. I am a partner in the law firm of Zuckerman, Spaeder, Goldstein, Taylor & Kolker, L.L.P., and a founding member of Citizens for the Constitution, a non-partisan organization engaged in public education about the constitutional amendment process. I am pleased to appear before you today on behalf of Citizens for the Constitution to discuss H.J. Res. 9, a proposed constitutional amendment establishing a line item veto.
I will first explain the work of Citizens for the Constitution, and describe the guidelines we have developed for evaluating proposed constitutional amendments. I will then comment on H.J. Res. 9 in light of these guidelines. I will not, however, take a position for or against the proposal because, in general, Citizens for the Constitution does not endorse or oppose specific constitutional amendments.
I. Citizens for the Constitution
Citizens for the Constitution is a three year old initiative of the Constitution Project, a non-profit, non-partisan organization based at the Georgetown University Law Center. The members of Citizens for the Constitution include former public officials, scholars, journalists, lawyers and other Americans who urge restraint in amending the Constitution of the United States. Our co-chairs are former Republican Congressman Mickey Edwards of Oklahoma and former White House Counsel, federal judge and Democratic Congressman Abner Mikva of Illinois. Among other members of the group are former Republican members of Congress John Buchanan and Jim Courter, former Democratic members of Congress Dale Bumpers, Don Edwards and Elliot Levitas, former federal Judges Harold Tyler and Shirley Hufstedler, former Attorneys General Nicholas Katzenbach and Benjamin Civiletti, former Reagan White House Counsel Peter Wallison, former Clinton White House Counsel Lloyd Cutler, and many others.
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We are Democrats and Republicans, liberals and conservatives. We probably disagree vehemently with each other about the various policy issues that underlie efforts to amend the Constitution. But we have a shared belief that the Constitution should be preserved from unwise tinkering. We do not believe that our Constitution is a static document that should never be amended. We are united, however, in the conviction that the Constitution should be amended only with the utmost care, and in a manner consistent with the spirit and meaning of the entire document.
We formed Citizens for the Constitution out of concern that the traditional restraint that characterized the constitutional amendment process for over two hundred years had fallen out of favor. To be sure, no newly proposed amendment has been adopted since 1971. Nonetheless, there has been a sudden rash of proposed amendments that have moved further along in the process than at any time in recent history and that, if enacted, would revise fundamental principles of governance such as free speech and religious liberty, the criminal justice protections contained in the Bill of Rights, and the methods by which Congress exercises the power of the purse.
Within the past few years, six proposed constitutional amendmentsthose concerning a balanced budget, term limits, flag desecration, campaign finance, religious freedom, and procedures for imposing new taxeshave reached the floor of the Senate, the House, or both bodies. The balanced budget amendment and the flag desecration amendment passed the House, and a version of the balanced budget amendment twice failed to win Senate passage by a single vote. Still other newly proposed amendmentsincluding a ''crime victim's rights'' amendment, an amendment redefining United States citizenship, and even an amendment to ease the requirements for future amendmentshave considerable political support. The frequency with which amendments have received serious congressional consideration leaves Citizens for the Constitution with the uncomfortable sense that we are in the midst of an undeclared constitutional convention.
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The current state of constitutional instability is inconsistent with the intent of those who wrote and debated the Constitution in Philadelphia over 200 years ago, and with the political traditions that have served the country well during those two centuries of growth. The Framers purposely wrote a Constitution that would be difficult to amend. They believed that our nation should be based on a stable constitutional structure that would create respect for the rule of law, so they anticipated a limited need for amendments. James Madison, in The Federalist No. 49, argued that the U.S. Constitution should be amended only on ''great and extraordinary occasions.''
Madison's advice has been largely heeded, as subsequent generations of political leaders have proceeded with extreme caution in altering our founding charter. Since the ratification of the U.S. Constitution and Bill of Rights in the late 18th century, only seventeen proposed amendments have received the necessary congressional supermajorities and been ratified by three-fourths of the states, thus making them a part of our Constitution. And although Article V of the Constitution contemplates the possibility of a convention to consider rewriting the Constitution, that provision has never been invoked.
In contrast to the fundamentally conservative approach envisioned by the Founders, the current spate of proposed constitutional amendments seems to stem from the unfounded notion that the Constitution is an obstacle to the current public interest and that our most vexing problems can be solved by changing the principles that have guided the nation for more than two hundred years. Our Constitution is durable precisely because it sets up a delicately balanced system, based on enduring principles, for governing a complex and diverse country. While briefer than that of any other country's charter, it permits us a wide range of policy choices, leaving it to us, the members of a democratic republic, to debate and judge the wisdom of opposing ideas and to offer solutions that meet our present needs without locking the nation into a policy choice for all time.
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The founding members of Citizens for the Constitution set out to remind the American people of this tradition of constitutional restraint, and to call attention to the growing trend of hasty resort to the amendment process as a means of addressing societal concerns. We began by studying the history of the amendment process from the time of Madison and Hamilton until the present day. We then debatedfirst among ourselves and then in public settingsa set of guidelines that we believe Congress and the American people should use in considering the wisdom of any proposed constitutional amendment. The consensus that we reached at the end of that deliberative process has been memorialized in a pamphlet entitled, ''Great and Extraordinary Occasions': Developing Guidelines for Constitutional Change. I commend the document to all members of the House Constitution Subcommittee, and ask consent that a copy be included in the record of this hearing.
The pamphlet sets forth and offers brief commentary on the following eight Guidelines that we believe members of Congress should employ in evaluating H.J. Res. 9 and all other proposed constitutional amendments:
1. Does the proposed amendment address matters that are of more than immediate concern and that are likely to be recognized as of abiding importance by subsequent generations?
2. Does the proposed amendment make our system more politically responsive or protect individual rights?
3. Are there significant practical or legal obstacles to the achievement of the objectives of the proposed amendment by other means?
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4. Is the proposed amendment consistent with related constitutional doctrine that the amendment leaves intact?
5. Does the proposed amendment embody enforceable, and not purely aspirational, standards?
6. Have proponents of the proposed amendment attempted to think through and articulate the consequences of their proposal, including the ways in which the amendment would interact with other constitutional provisions and principles?
7. Has there been full and fair debate on the merits of the proposed amendment?
8. Has Congress provided for a nonextendable deadline for ratification by the states so as to ensure that there is a contemporaneous consensus by Congress and the states that the proposed amendment is desirable?
It is significant that the Guidelines are written in the form of questions to think about, rather than commands to be obeyed. The Guidelines alone cannot determine whether any particular amendment should be adopted or rejected. Instead, the Guidelines raise concerns that those considering an amendment should weigh against the perceived desirability of the change embodied in the amendment. In effect, each Guideline is intended to act as a speed bump, slowing down passage of a constitutional amendment long enough to force consideration of the overriding structural principles imbedded in our constitutional system.
II. Evaluation of H.J. Res. 9 in Light of the Guidelines
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In preparation for this hearing, I reviewed H.J. Res. 9 against the backdrop of the Guidelines developed by Citizens for the Constitution. I again wish to emphasize that, as an organization, Citizens for the Constitution takes no position in favor of or against this proposal. That said, I will address each Guideline in turn, recognizing that some Guidelines are more relevant to this proposed amendment and other Guidelines more relevant to other proposed amendments.
Does the proposed amendment address matters that are of more than immediate concern and that are likely to be recognized as of abiding importance by subsequent generations?
The line item veto proposal has long been championed as a device to reduce pork barrel spending. By giving the President authority to excise specific items from an omnibus appropriations bill, the proposal's backers hope to diminish the current congressional prerogative of burying parochial spending directives within larger, must-pass spending bills.
Broadly speaking, federal fiscal discipline may fairly be characterized as a ''matter of more than immediate concern'' and one ''likely to be recognized as of abiding importance by subsequent generations.'' But the more narrow frustration of pork barrel spending is a concern that may or may not rise to the level of timelessness. Consider that in just the four years since Congress enacted a line item veto law, the federal government has moved from a state of troubling indebtedness to an era of soaring budget surpluses. Unjustified spending of public funds is just as intolerable in the midst of a budget surplus as it is during a budget deficit. But the argument that a line item veto is necessary to balance the federal budget has plainly been overtaken by happy eventsthe budget has been balanced without such a extraordinary remedy.
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This turn of events raises an important general point: The fact that a proposal was seen as meritorious in the recent past does not necessarily mean that it still has merit today. Circumstances change and problems that seemed paramount just a few years ago may diminish in significance. The congressional agenda tends to carry forward from one year to the next, but members should always ask whether once persuasive arguments for a far-reaching legislative proposal remain valid. This is especially true if the proposal was previously embodied in a statute, but is now in the form of a constitutional amendment, since there should be a higher threshold for evaluating the merits of a constitutional amendment than a statute. The fact that a member supported the line item veto in statutory form does not necessarily mean he or she should support it as an amendment, because the policy goals that animated a statutory proposal may be outweighed by the harm of disrupting constitutional stability through the amendment process.
Does the proposed amendment make our system more politically responsive or protect individual rights?
This is one of the more subjective Guidelines, and one not especially relevant to the line-item veto proposal. Proponents would argue that reducing irresponsible pork barrel spending protects the rights of individual taxpayers and makes the appropriations process more responsive to individual citizens. That is a fair argument; in any event, there appears to be nothing in this Guideline that militates against the line-item veto proposal.
Are there significant practical or legal obstacles to the achievement of the objectives of the proposed amendment by other means?
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This is one of the most pressing questions Citizens for the Constitution has raised about other constitutional amendments. For example, the ''crime victims rights'' amendment would place in the Constitution a set of rights and procedures that appear to be achievable through statute and other means. Similarly, the goals of the proposed equal rights amendment have largely been realized without amending the Constitution, calling into question whether that proposed amendment was ever really needed.
Unlike some of the other proposed constitutional amendments pending in Congress, the line item veto proposal cannot be said to have been lightly proposed in the form of a constitutional amendment. To their credit, supporters of a line item veto would have preferred to carry out their policy goals by means of a statute rather than a constitutional amendment, and indeed Congress enacted a line item veto law in 1996. 2 U.S.C. §691 et. seq. But that law was declared unconstitutional by the Supreme Court in Clinton v. City of New York, 524 U.S. 417 (1998), and proponents now say they have no choice but to resort to the amendment process. They can quote Justice Stevens' majority opinion in the Clinton case: ''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.'' 524 U.S. at 448.
But while the precise line item veto scheme declared unconstitutional in Clinton can only be enacted by constitutional amendment, it does not follow that, in the words of our Guideline, ''the objectives of the proposed amendment'' can only be achieved through amendment.
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As previously discussed, the objective of the proposed amendment appears to be reduced pork barrel spending and enhanced fiscal discipline. There are numerous other means for achieving those goals. First, members of Congress could exercise fiscal self-restraint without the need for any new rules, laws or constitutional amendments. Second, Congress could strengthen and utilize more vigorously existing budgetary points of order against appropriations conference reports that contain matter outside the scope of conference. Third, Congress could provide for even more expedited rescission procedures, so that when the President proposes to cut spending, his proposals are guaranteed prompt up-down votes in both Houses of Congress. Fourth, Congress could delegate to the President authority not to spend appropriated funds; the Clinton court distinguishes the line item veto law from early, constitutionally valid statutes that give the President latitude to spend less than an appropriated sum, 524 U.S. at 446. Fifth, Congress could pass its appropriations bills in veto-size pieces, one appropriation at a time, in order to give the President the opportunity to veto each discrete funding proposal.
These are only some of the non-constitutional means by which Congress can attempt to control pork barrel spending. Some of these alternatives were proposed by opponents of the line item veto at the time Congress was debating it as a statute. They deserve renewed and, indeed, heightened consideration, now that they are alternatives to a constitutional amendment rather than alternatives to a statutory proposal.
Citizens for the Constitution urges careful consideration of whether there are ''significant practical or legal obstacles'' to the achievement of the objectives of the proposed line item veto amendment through these other means. If there is a reasonable possibility of achieving the objectives through other means, the proposed constitutional amendment should be put aside as premature.
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Is the proposed amendment consistent with related constitutional doctrine that the amendment leaves intact?
As every high school student learns, the Constitution establishes a series of checks and balances among the three branches of the federal government in order to prevent the accumulation of too much political power in any one branch. The constitutional relationship between the President and Congress is especially elaborate and carefully balanced, and the Presentment Clause of the Constitution is one of the Congress' primary means of guarding its legislative prerogatives in the face of an encroaching Executive.
Supporters and opponents of a line item veto agree that it would enhance the power of the President to shape the outcome of the legislative process. Supporters think that is a good thing, because they do not completely trust Congress to legislate in the national interest. Opponents have always believed that the line item veto would detrimentally alter the balance of power between the Executive and Legislative Branches of government, giving the President too much clout to bend legislators to executive authority.
But whichever side might be said to have the better of the argument in the debate over a line item veto bill, the opponents' warnings have greater urgency in relation to a constitutional amendment, since it, unlike a law, cannot be easily modified or repealed if the proposal goes awry. Ratification of this constitutional amendment may forever warp the Framers' carefully constructed system of checks and balances, tipping power too far into the hands of the Executive. We think that the prospect of profound change in the architecture of the federal government should give members of Congress pause before they support a line item veto constitutional amendment. This is especially true because change in the form of a constitutional amendment, by definition, is exceedingly hard to reverse.
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Does the proposed amendment embody enforceable, and not purely aspirational, standards?
Enforcement of the line item veto, whether embodied in a statute or the Constitution, has always been recognized as a challenge. The concept of empowering the President to surgically remove pork from spending bills is simple and facially appealing, but drafters of the 1996 line item veto statute quickly became bogged down in a series of complex definitional and procedural questions. What is a single ''item of appropriation?'' What if Congress accomplishes its parochial spending through a limited tax break rather than direct spending? What is the effect of a line item veto on previously enacted budget caps? By what procedures should Congress be permitted to override a line item veto, and to what extent should those procedures be expedited?
In the end, the 1996 line item veto law consisted of eight separate sections covering 22 pages of the United States Code Annotated. The law included several carefully constructed definitions, including those for ''direct spending'' and ''limited tax benefit,'' designed to carefully delineate the circumstances in which the President might exercise this extraordinary new authority.
In contrast, H.J. Res. 9 consists of a single paragraph. The term ''item of appropriation'' is not defined, and the problem of spending through tax breaks is not addressed. Presumably the authors of the amendment were appropriately reluctant to clutter the Constitution with undue verbosity. But the complexity of enforcing the line item veto concept and the absence of details in the amendment raise serious questions about the suitability of this subject for inclusion in the Constitution.
Page 88 PREV PAGE TOP OF DOCHave proponents of the proposed amendment attempted to think through and articulate the consequences of their proposal, including the ways in which the amendment would interact with other constitutional provisions and principles?
In the case of H.J. Res. 9, this Guideline relates back to Guideline 4 concerning the effect of the line item veto on the current system of checks and balances in the Constitution. There can be no doubt that proponents of a line item veto have given ample thought to the consequences of their proposal in itself. But the implications of a constitutional line item veto are just beginning to be explored, and more analysis of its indirect consequences would seem to be warranted.
Has there been full and fair debate on the merits of the proposed amendment?
The Chairman is to be commended for calling this hearing. We hope the subcommittee will undertake a comprehensive review of the proposal, including review by a wide array of constitutional scholars, before the resolution moves forward.
Has Congress provided for a nonextendable deadline for ratification by the states so as to ensure that there is a contemporaneous consensus by Congress and the states that the proposed amendment is desirable?
H.J. Res. 9 calls for a seven year ratification period. We commend the sponsors for including this limitation, and we urge that it not be extended after enactment.
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In the wake of Clinton v. City of New York, it was probably inevitable that supporters of a line item veto would look to the constitutional amendment process to achieve their policy objectives. At first blush it might be thought that they can only achieve their goals through that process, but that proposition is debatable once one considers the myriad ways Congress can control its own impulse to spend. In any event, Citizens for the Constitution urges careful consideration of the effect of this proposal on existing constitutional doctrine and on constitutional stability as a whole. There is no more indelible action Congress can take than to
amend the Constitution, and it should not do so lightly, especially in an area that touches on the fundamental structure of our federal government.
Mr. CANADY. Thank you. Mr. Moore.
STATEMENT OF STEPHEN MOORE, DIRECTOR OF FISCAL POLICY STUDIES, CATO INSTITUTE
Mr. MOORE. Thank you, Mr. Chairman, and thank you, Mr. Watt, for inviting me to testify today. In order to comply with the Truth in Testimony laws, I will note for the record that neither I, nor the Cato Institute, receive any funds from the Federal Government, nor have we ever. Thank you for taking the Constitution seriously. I commend this committee for studying the effects of legislation on the Constitution.
One of the things that we do at Cato, we take the Constitution very seriously and have published a pocket size version of the Constitution and the Bill of Rights. And we would be happy to provide you with as many of those as you wish. I have been a long time advocate of the line item veto starting in the early 1980's and I have seen it work in the States and now that we have had it in Washington for one year, I have seen it work here.
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The critics of it who said that it would not save money were simply proven wrong. President Clinton did save money with it and although I would have liked to have seen him use it more, I think there is no question that we did save money. Our estimates are that the 82 line item vetos by President Clinton when he had that power saved about $2 billion over five years. That is not a huge amount of money when you consider how much is being spent each year here but we think that a more judicious use by the President could have saved easily ten times that amount but the fact is that it did save money and it did work.
In fact, that is one of the reasons, as Tom said, why there is so much opposition to it by some of the very people who voted for it. A second point. The President did not abuse the power when he had it. Again, he only had it for a short time. There were all sorts of talk about the President using this for horse trading and so on but there was only one example that we saw of that. There was an allegation that one of the members had been sort of bullied by the White House to vote for IMF funding so as not to have a project in his district line item veto but that allegation was never proven and it was only one case of 82 line item vetos.
Again, I think the President used it too sparingly but when he used it, we looked over all 82 of those line item vetos, and I think there is a strong case and I think Tom scooped it as well, that none of those projects were in the national interest. I want to address this issue that some of my fellow panelists have brought up about the issue about whether this is too large a grant of power to the executive branch and try to disabuse you of that idea.
The important point, I think, for this panel to realize is that from every President from George Washington through Richard Nixon had a power that was substantially greater than the line item veto that you are contemplating and that of course was called the Impoundment Power and presidents use that routinely to save very large sums of money. Thomas Jefferson was the first President to use the Impoundment Power which basically was allowing the President to simply cancel spending that he did not want to make.
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It was not simply used by Republican Presidents. It was used by Franklin Roosevelt during World War II. It was used by Lyndon Johnson. It was used by John F. Kennedy. It was used by Richard Nixon. And often times they used the Impoundment Power to reduce spending by as much as 5 percent in terms of appropriations. That was a very important component of Presidential power of the budget and it was wrongfully stripped from the President in the early 1970's so if you were to restoreif you were to pass a line item veto, I think you would simply be partially restoring the power over the purse that the President and the executive branch needs.
My recommendation is that we should try to findI am not a huge fan of the constitutional amendment route. If we can do this without a constitutional amendment let us do it. I like the proposal of having changing the rules in Congress where you would pass individual items one by one and the President would sign those. My misgiving about that is I am not sure that Congress is disciplined enough to do it but I do agree that if we could get this done without amending the Constitution, I would be in favor of that approach.
Let me simply summarize then by saying that I believe that on its merits the line item veto should be preserved and should be re-enacted. The critics were simply wrong. We now have documented evidence showing that the line item veto does save money. It does repel preposterous spending projects to defend the sensibility of taxpayers and that is why taxpayers support it. Thank you.
[The prepared statement of Mr. Moore follows:]
Page 92 PREV PAGE TOP OF DOCPREPARED STATEMENT OF STEPHEN MOORE, DIRECTOR OF FISCAL POLICY STUDIES, CATO INSTITUTE
Thank you for the opportunity to testify on the issue of the line item veto. In order to comply with the Truth in Testimony laws, I will note for the record that neither I, nor the Cato Institute, receive any funds from the federal government. Nor have we ever.
Allow me to begin my testimony by praising Republicans and fiscally conservative Democrats, who kept their promise in 1995 to enact the line item veto. This was heroic legislation because it was enacted despite the fact that Democrat Bill Clinton would be the first president to use the item veto. In the 1970s and 1980s many opponents of the line item veto accused fiscal conservatives of supporting the measure only as a partisan power grab because Republicans had generally controlled the White House, and Democrats had long controlled Congress. The 104th Congress proved these allegations to be wrong.
I have long been an advocate of line item veto authority for the president. I have seen it work in the states. And now, I have seen it work in Washington.
I wish to make four points in my testimony regarding the line item veto.
First, and most critical, is the question of whether the line item veto worked to reduce wasteful spending. My overall assessment is that this veto power has worked while it was in operation for one year. In 1997 President Clinton used this new budget cutting tool 82 times to delete unnecessary expenditures in 11 spending bills. The total savings have come to nearly $2 billion over five years. True, in a $1.8 trillion annual budget, this is not a huge sum. But $2 billion is not an insignificant level of savingseven by Washington standards. Moreover, as Gene Sperling, the President's chief economic adviser has noted, ''You have to use the line item veto a few times before its deterrent power sinks in.''
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In 1998 I reviewed the lists of programs that were vetoed by President Clinton. I am confident that virtually none of these projects served the national interest. President Clinton used the veto to eliminate funding for a $600,000 solar aquatic wastewater treatment demonstration project in Vermont; a $2 million Chena River dredging project in Fairbanks, Alaska to benefit a single tour boat operator; a $1 million corporate welfare grant to the Carter County Montana Chamber of Commerce; $900,000 for a Veterans Admin. cemetery the VA says it doesn't need; $1.9 million for dredging a Mississippi lake that primarily serves yachts and pleasure boats; $500,000 for the Neabsco Creek Project in Virginia for removal of creek debris; and other such absurdities.
Congress approved the line item veto and the public demanded it, precisely to purge the budget of these kinds of white elephant projects. So, yes, on balance the line item veto works as intended.
Second, did the President abuse the power of the line item veto as was feared? The answer to this question is, on balance, no. Of course, many complaints have been made about Bill Clinton's use of the line item veto. Senate Appropriations Committee Chairman Ted Stevens, complained that Clinton's line item vetoes have been a ''raw abuse of power.'' Robert Livingston, the Republican House Appropriations Committee Chairman charges that Clinton is using the veto to ''threaten and intimidate'' members of Congress. It is also true that there was one incident reported by The Wall Street Journal where the administration reportedly offered to withdraw a threatened line item veto of a $1.5 million cemetery expansion in Rep. Sonny Callahan's (RAL) district in exchange for his support of IMF funding. Such political horse trading constituted an abuse of the item veto.
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But other than this single incident, there was no evidence of any pattern of abuse by the White House. Moreover, many of the projects line item vetoed by President Clinton were in Democratic districts. So it does not appear that partisanship has been a critical determinant of how the veto has been used.
This is not to say that President Clinton's use of the veto was exemplary. This administration failed to provide any coherent justification for why some projects were terminated and others passed muster. The line item veto works best when the White House establishes understandable and unbendable criteria for the line item veto and then carries out the veto according to those standards.
My primary complaint with Bill Clinton's use of this veto is not that he used it too recklesslybut too sparingly. The 1998 Energy and Water bill, for example, contained 423 unrequested projectsconveniently, just about one for every district. Clinton canceled just 8 of them. Most of the other 415 deserved the same fate. If the criteria for wielding this veto power is that the program should be funded at the local level or has costs that exceed public benefits, then the savings could have been orders of magnitude higher than the $2 billion achieved so far.
Senator John McCain (R,AZ) and Russ Feingold (D,WI) have done heroic work in recent years exposing pork in the FY 1998, 1999, and 2000 spending bills.
As their lists of unproductive federal spending demonstrates, we need the president to have the line item veto authority; but, we also need a president who is not reluctant to wield this power.
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I am convinced that a judicious use of the line item veto could save taxpayers $2 to $5 billion annually. In the 1980s, for example, President Reagan requested but was denied rescission requests of this magnitude on average each year. If Reagan had had the line item veto, the national debt might have been $40 to $50 billion lower over the period than it was.
The third issue with respect to the line item veto is whether it shifts too much power of the purse to the White House? I have examined the history of the balance of power between the Executive Branch and the Legislative Branch when it comes to fiscal issues. I very strongly disagree with the charge that it tilts the balance of power too far toward the presidency.
The line item veto does not involve a huge and unprecedented power shift in the direction of the White House. The item veto should be more accurately thought of as a relatively weak and partial restoration of the rightful budgetary powers of the President that were stripped from the executive branch by the 1974 Budget Act. The Budget Act stripped the President of his right to impound fundsa power that was exercised routinely by every president from Thomas Jefferson through Richard Nixon. Jefferson first employed this power to refuse to spend appropriated funds in 1801 when he impounded $50,000 for Navy gunboats.
The founders believed that the President, as the head of the executive branch and therefore responsible for executing the laws and spending taxpayer funds judiciously, had a unilateral authority not to spend money appropriated by the Congress if that spending was unnecessary.
Page 96 PREV PAGE TOP OF DOC This was an extremely powerful White House authority that was exercised often for nearly the first 200 years of our nation. Presidents Kennedy, Johnson and Nixon used the impoundment power routinelyand in some years used it to cut federal appropriations by more than 5 percent. In one year Richard Nixon impounded more than 7 percent of domestic appropriations. In 1974 the Congress stripped the president of his lawful impoundment powers and instead gave him two very weak substitutes: the deferral and rescission authority. But as the members of this committee know well, rescissions require Congress to affirmatively approve a presidential request not to spend money. Most rescissions are simply ignored by Congress and never even voted on. And thus through congressional inaction, they are killed.
A line item veto would partially restore the rightful authority of the executive branch that was improperly snatched away in a power grab by the post-Watergate Congress in 1974.
My recommendation is that we should enact a constitutional amendment for a presidential line item veto with a two-thirds override provision. Determining whether money appropriated by Congress is or is not actually needed is in my view an appropriate executive branch function. Of course, if the president had empoundment power restored, he would not need line item veto.
One final point on the balance of powers issue. It is easy to imagine that many line item vetoes will face override votes. The item veto simply requires that Congress garner a two-thirds vote in both houses to secure funding for questionable programs. This seems highly reasonable to me.
Page 97 PREV PAGE TOP OF DOC On its merits, the line item veto should be preserved. The critics were wrong: we now have documented evidence showing that the line item veto does save money; it does repel preposterous spending projects that offend the sensibilities of taxpayers.
The line item veto has shown itself to be one of the taxpayers' best friendsand lord knows, taxpayers have far too few friends in Washington already.
Mr. CANADY. Thank you. I thank all the members of this panel. I will now recognize Mr. Watt for questions.
Mr. WATT. Thank you, Mr. Chairman. Mr. Moore, since you just testified and I had a question, let me start with you about this Impoundment Power that was taken from presidents in the early '70's. Can you remind us how that occurred?
Mr. MOORE. It was a very bad piece of legislation we passed in 1974 called the Budget Impoundment Control Act. This was at a time, by the wayit is important to put this in the frame of that time period. It was while President Nixon was under the whole impeachment process and the President's power was probably at its lowest ebb in 100 years and that was a period when Congress had become very annoyed with the fact that Nixon had been using the line item veto to cancel projects that it wanted. And so
Mr. WATT. Impoundment, you mean.
Mr. MOORE. Pardon me?
Page 98 PREV PAGE TOP OF DOC Mr. WATT. You mean impoundment?
Mr. MOORE. He was cancelling them through the Impoundment Process. And that was when the Impoundment Power was cancelled and we have never hadwe replaced it with something called rescission power. Rescission power, however, one of the reasons we are having this discussion about line item veto is I think everyone agrees that the rescission power simply doesn't work because Congress can simply cancel a presidential raciest by simply not acting.
And I know when Jim Miller was at OMB, President Reagan would send out rescissions year after year after year and those simply were not acted upon by Congress.
Mr. WATT. Was this Impoundment Power given statutorily or it was just something that had been exercised over the years by presidents without any statutory authority that we then took back statutorily.
Mr. MOORE. Well, that is a constitutional question that people argue about to this day. My point is that if you go back to the founding, it is pretty clear that the founding fathers believe that this was a just and proper role of the President because the early presidents used it. As I said, Thomas Jefferson used it in the earlyaround the turn of the century to impound funds. So I do believe that the founders believed this to be a proper role of the President, because it was never challenged at that time when it was used.
Mr. WATT. Okay. I want to go through one other intermediary step, and then I want to get to the real concern, and kind of pose a hypothetical for you all to deal with. Mr. Miller, let me give you a minute to clarify for me your rationale for distinguishing between tax cut veto and line item veto and how you could justify one and not justify the other. I am not being adversarial. I just don't understand how you can reconcile those things.
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Mr. MILLER. Yes, sir. Congressman Watt, if your focus is on the deficit, I guess you say, well, you ought to focus on tax cuts, tax rate cuts, especially a tax rate cut doesn't generate more revenue in the long run like many of the supply-side tax cuts do as well as spending. My focus is really on size of government. I think the problem is not the deficit. The problem is excessive size of government and wasteful spending and that could be dealt with effectively with a line item or more specifically an item reduction veto.
Mr. WATT. What about a veto for a tax increase?
Mr. MILLER. I would be glad to throw that in too. I think there is presently
Mr. WATT. I am trying to figure out what the underlying central principle is that we are dealing with here. And I don't understand it. I mean I understand that you have different views about vetoing spending than you have about cuts in taxes. You have different views about vetos and spending than you would have about increases in taxes.
Mr. MILLER. Mr. Watt, it is very difficult to summarize in one minute. In my latest book, Monopoly Politics, I think I do a reasonably good job of summarizing the basic point, the following point, and that is there is a bias on the part of the Federal Government toward making government larger than optimal. Optimal not in the sense of maximizing economic growth, not in the sense of Jude Waninski's, derivatively, I guess, the largest Federal take, but optimal in the sense of balancing benefits and costs of giving taxpayers, citizens the right size of government and, therefore, an institutional arrangement that restrains the growth of government is to be preferred over one that does not.
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And an item reduction veto would serve to restrain the growth of government. On the tax measure for lots of reasons we have marginal rates that are too high. I agree completely that most of the tax measures that we find passed by Congress, the line item measures are special interest provisions and I think they are abhorrent and I think we ought to eliminate them but the best way
Mr. WATT. Would you give the President a veto?
Mr. MILLER. The best way to address that in my judgment, the most effective means of addressing that, is to scrap the Tax Code and start all over with a flatter, lower tax
Mr. WATT. We are into tax policy now. I am talking about on this particular issue if you didn't have a change in the Tax Code and that wasn't an option, how would you reconcile your view on this particular issue? That is what I am trying to
Mr. MILLER. Well, it is a difficult thing because what you are asking me to do is you give me a bucket of rotten apples and say which one do you want to eat. I am not sure I want to eat any of them. That is a hypothetical. I think we ought to work on both margins, Mr. Watt. I think we ought to try to simplify the type scale and make it transparent and eliminate all of this kind of special interest tax provisions.
I don't want to say I have never seen a tax cut I didn't like but that is close to my point. I think we ought to cut marginal rates and start all over. But that is the way to address the tax side problem rather than the item reduction veto in my judgment.
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Mr. WATT. I would just say to you that is kind of like me saying, well, the way to address spending is to be more disciplined. Yes, we could be more disciplined but it wouldn't have anything to do with this particular amendment. So I am notagain, I am not being adversarial.
Mr. MILLER. Right.
Mr. WATT. I was just trying to find a centralizing defining principle that you were proceeding on. Mr. Chairman, I am over my five minutes and I think
Mr. CANADY. I don't object.
Mr. WATT. No, what I am going to suggest is we are getting close to voting time and that you should go ahead and do yours first and then if we have some more time, I will be happy to go back and do some more but I don't think we ought to hold this panel here beyond the next vote.
Mr. CANADY. We are expecting a vote momentarily so I will proceed with some brief questions. I want to follow up on a point that Mr. Moore made about the history of impoundments. I saw Mr. Fisher looking like he might want to say something about that. Was I right in discerning that?
Mr. FISHER. Yes. I did a book on Presidential Spending Power and I spent a lot of time on the impoundment issue. It is true that presidents had some discretion not to spend everything that Congress appropriated. If they could find some managerial efficiencies no one would expect you to spend more money if you could do it for less. So there was some discretion. The problem that President Nixon got involved in was not just that he was a weakened president with Watergate. They pushed the limit. They would take the clean water program, $18 billion in contract authority, and they would cut it into half. As Mr. Moore said, they would totally eliminate programs.
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Many of these disputes were litigated. There were about 80 cases. The Administration lost all but two or three. So I think they used impoundment with a truculence or abuse that had not been seen and that crystallized the issue. As far as Jefferson not spending $50,000 for gun boats, the national security situation changed and it wasn't necessary to spend at that point. He just spent it later. He took some time to get a better design for a boat and he spent it. So I don't think Members of Congress have any problem when Presidents use impoundment that way.
Mr. CANADY. Thank you. I want to also follow up on a comment that Professor Hamilton made about simply changing the rules of the House and I guess of the Senate as well regarding the enactment of spending measures. I have some questions about the logistics of that and how that could actually function. I do think that if we can accomplish the same goal through a change in the rules assuming that there will be a lot of pressure once the rule is changed, not to undo the change of the rule, you could actually keep that regime in place, then I think that would ordinarily be much preferable to try to amend the Constitution on the grounds that Mr. Watt is concerned about.
But I think we would have to look at the logistics of that. One thing that puzzled me about your point is that if you are opposing the constitutional amendment because you think it is going to shift some power from the Congress to the President if the same result would be in terms of affecting the spending would be affected by changing the rules, wouldn't changing the rules be subject to the same criticism that the power is going to be shifted?
Ms. HAMILTON. I am glad you asked that question because Mr. Schatz did imply that the same result would be achieved when he said that a line item amendment would unbundle the bills and permit them to be considered individually. But that is not at all what happens under the proposed amendment. Under the line item veto, the President decides which items will be considered individually. When they are returned by the President, they can only pass with a two-thirds vote. The President thus controls the policy mix.
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What I am proposing is subjecting each measure to a majority vote in the first instance. The House would have to debate each of all these pork examples mentioned today one at a time. Each would be an individual bill and could not be tacked on at the last minute to existing bills.
I think it would take more than just one change in the rules. The House would need not only an unbundling rule but also a rule that these issues cannot be slipped in at the last minute, at midnight in the joint report. There would have to be a series of rule changes. Together they would be intended to bring Congress back to responsibility. Under the line item amendment, Congress hands off the responsibility to the President to set the agenda.
Mr. CANADY. Well, I guess the question I have about that depending on how you aggregate or how you divide the massive spending, we spend most of the summer going through appropriations bills under the current process and just envision going through it item by item, I don't think there is enough time in the year. I figure you might have to have a five-year appropriation.
You would spend a couple of years getting ready for somethingmaybe I am wrong. I think that the logistics of that would be overwhelming. Does anybody agree with me or disagree with me?
Ms. HAMILTON. Could I just say one thing on that point? One of the points made by those suggesting this kind of proposal before is that it would be good for Congress to run out of time once it got to the pork barrel projects so if it could not get to consideration of energy project, that would be perfectly acceptable. Members would be forced to prioritize in the interest of the national good.
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Mr. CANADY. But the argument about pork barrel, that is wonderful but how do you determine that? I mean that is the fundamental question. A pork barrel project in the eye of somebody is an essential project in the eyes of somebody else. So it is not like you say you do all the valid stuff first and then save that for last and if you run out of time that doesn't get done. That is integrated in the whole spending process and that is part and parcel of what people would call pork barrel spending is part and parcel of every bill that comes up.
Now it is more in some bills than others admittedly but the notionare there others here that want to comment on that general point? Mr. Fisher.
Mr. FISHER. We are really talking about separate enrollment. The Senate was very interested in that. When that came up, where you would take every item in the bill, someone and break it off as a separate bill, someone estimated that the 13 appropriation bills would translate into maybe 13,000 bills that you would have to consider. We go through an appropriation bill and every time you would see a separate amount that would be a bill. That is a practical consideration. I think it is deeper than that.
Mr. CANADY. But it is not just a matter ofbut you would have to have separateat least there would have to be the opportunity for separate consideration and separate votes on each of the items.
Mr. FISHER. The way they considered it is that you would pass 13 appropriation bills and after it came out of conference committee the clerk would break it into separate bills and it would go back to the House and Senate
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Mr. CANADY. But that is not what Professor Hamilton is talking about because she is talking about something that would force the Congress to consider each of the separate items.
Mr. FISHER. No, this would be done en bloc. It would not be done with a lot of consideration. All 13,000 mini-bills would go back to the chambers and you would have one vote.
Mr. CANADY. Well, that is a mechanism to get around a Presentment Clause problem.
Mr. FISHER. Exactly.
Mr. CANADY. But Professor Hamilton is not interested in that. I am talking about what she is talking about and I just think the logistics of thatI mean this is kind of a technical mechanism to try to make something constitutional that you are talking about, right?
Mr. FISHER. But the other point I wanted to make is that even if you had an item veto, you don't have items. For example, consider the appropriation for the Corps of Engineers for general construction about $1 billion. That is not really an item because the items are in the conference report, maybe 200 projects for all of your districts are in there. You still have a separate practical problem.
Page 106 PREV PAGE TOP OF DOC The president would not be getting to those when the bill came because all he would see is the billion dollars. He wouldn't see the 200 projects. You would have that problem with the constitutional amendment. You didn't have that problem with the Line Item Veto Act because the way it was defined you could go into reports. That is another practical problem.
Mr. CANADY. Mr. Weich, and then we are going to go back to Mr. Watt.
Mr. WEICH. Just a quick point, Mr. Chairman. Consistent with our view that all nonconstitutional means should be considered before resorting to the amendment process, I think there is actually a very useful discussion to be had about what statutory or rules-oriented steps could be taken in the wake of the Supreme Court decision striking down the line item veto.
Mr. Moore tells us that the President used to have this Impoundment Power. It was replaced by rescission authority which apparently isn't strong enough. But the essence of the rescission authority is that the President gets to take out of this big omnibus bill items that he regards as objectionable and wasteful and put them back before the Congress. I am not an appropriations expert, but I would suggest that Congress explore whether there are other things that can be done to strengthen rescission to ensure that when the President singles out an item of pork barrel spending he can put it back before the Congress and be guaranteed up-down votes in both bodies within a finite period of time.
My understanding is that there are steps that could be taken to strengthen rescission authority and that is statutory, not constitutional solution.
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Mr. CANADY. I apologize, and my memory on this is faulty but I think this is an important issue. I thought the House passed an expedited rescission bill that never became law, is that correct?
Mr. FISHER. In 1992, 1993, and 1994. The Senate didn't pass it, you are right.
Mr. CANADY. Well, I think that that is an area where short of acting on proposals such as this where we would not be overwhelmed logistically, but the focus would be put on abuses or what the President perceives as abuses in spending. We might get some of the same benefits out of that that the proponents of this amendment see. That sort of proposal would not be within the province of the Judiciary Committee. Mr. Watt.
Mr. WATT. Mr. Miller, I think had a response, too.
Mr. MILLER. Thank you, Mr. Watt. I was going to point out that enhanced rescission is a good idea. Actually, it was first championed by Senator Dan Quayle in the Senate. It would not solve all the problems. All the rescission does is simply force Congress, so Congress essentially changes the rule itself, so it is forced to vote up or down the President's rescission. As Steve was pointing out, when I was budget director the reason the rescissions didn't go through typically was that Congress simply didn't act, and under the Rescission Act automatically rescission goes away after a certain length of time.
Let me just on the business about rules changes. I think it can be done pretty straightforwardly by essentially enrolling each of the line items separately, does nothing about the business of report language. Report language is not solved by this bill about this constitutional amendment doesn't do anything about report language problems. You have to address that separately. But the Constitution is silent on what constitutes Congressional approval of bills, you know.
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Robert's Rules of Order and tradition has followed that you vote separately on each one. I suspect that at least the argument could be made that you could enroll the individual line items separately but vote on them as a body, that is, a certain number aggregated together so you wouldn't be standing in the well of the House or Senate and saying aye, aye, aye some 10,000 times.
Mr. WATT. Let me kind of get back to my primary concern, which was neither the point that I raised with Mr. Moore or the point that I raised with Mr. Miller. It has to do more with this whole balance of power issue and the opportunities for abuse in this process. I am the first to concede that none of these things are likely to happen but I wasn't here when either President Johnson or President Nixon were presidents but from what I have read both of them were pretty aggressive in the way they used their power in dealings with Congress, and one was Democrat and one was Republican, so I am not making this partisan.
I can conceive of situations where Presidents, not generalized, would use this authority in a very sinister and abusive way and I justI have real concerns with that. I could conceive in a surplus posture in particular now that we are in, and in a situation where the President is of one party and the House and Senate are of another party. The opposite situation where you pass a bunch of things, put them in appropriations bills and then embarrass the President politically for having to strip those things out.
That probably would be less of a problem in a deficit situation, moreover a problem in a surplus situation where you would just kind of say, okay, if you want to punish the State of New York in a presidential election year or California in a presidential election year, we are going to put in something specifically for Silicon Valley. If you are courting high tech people, you strip it out.
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Am I imaging things or are both of these abuses by the President on one side to get my vote on China most favored nation's permanent status or NAFTA or something that I may or may not want to vote for and the President says, hey, if you want that inif you want this particular appropriation in your district to stay in that bill, you better vote for China MFN, and the reverse politics, partisan politics, being played by the Congress where the political power is on the other side.
So thosemaybe I am just imaging things but I have seen some mean people in this process and, you know, it doesn't do my heart much good to hear you say that only one of the 82 raised one issue. You know, it was in effect for a very short period of time. One allegation of impropriety I think is one too many. And with the right kind of president, I could see a lot of these things taking place. Dr. Regalia, we haven't heard from you in the question session so you start us off.
Mr. REGALIA. Well, I think what you just described is what a non-lawyer kind of assumes to be the definition of the art of politics. To suggest that that isn't going on right now to someone like myself who has never served in Congress is really an eye-opening kind of statement because I see that going on almost every day. I think that when you bring it out item-by-itema bridge discussed as a bridge is much different than a bridge hidden in a larger appropriation billand I think if you bring these type of discussions to the forefront on an individual basis you would have a much better chance of shining the light of day on them and they have a tendency to wither.
I think whether you do it through a constitutional amendment, which would not be the preferred way to do it or if you do it through a rescission enhancement that will stand the test of constitutionality which the last one did not. I mean I believe we called the last bill enhanced recession before we gave it the name Line Item Veto Act. And it was determined to be unconstitutional but that is precisely what you are trying to do is to shine the light of day on specific spending issues and to the extent that they are brought to the light of day, you can very quickly determine what the political training is that seems to be pushing them forward and
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Mr. WATT. Well, it doesn't help to be in that particular situation. I mean he has abused his power. He, you knowmy friends, I am not ever going to get two-thirds of my friends to agree on any issue in this body, I can tell you that. I have no track record that makes me feel warm and fuzzy about that. If the President strips it out, it is gone for me, I think. Let me hear from other people. I don't want to monopolize this.
Ms. HAMILTON. I think you are absolutely right. The Impoundment Power was abused. That is why Congress repealed it. There is no reason to think the line item veto power wouldn't be abused as well. It is the fundamental premise of the United States Constitution. That is why we have Separation of Powers because we cannot trust either branch by itself. Each branch is supposed to be pressing up against each other and keeping each other honest.
Therefore, the shift in the balance of power should be the main concern here. And there is nothing in the way that this amendment is drafted that puts any limits on the unilateral actions of the President. He can decide unilaterally what he likes and what he doesn't like after this body has acted on the issue. The fear of abuse is central to the Constitution, and it should be no less a concern with the line item veto constitutional amendment proposed.
Mr. SCHATZ. Let me just address one comment that Professor Hamilton made. Fully considered is an interesting expression for a group of appropriators and sometimes staff members that sit in a very small room and throw items in that nobody gets to see. I am sure the members themselves don't even get to read these bills before they go through, which by the way should be a requirement of your job.
Page 111 PREV PAGE TOP OF DOC I don't think any other organization approves the kind of sums of money as a percentage of what they budget as the Congress does without actually reading the contract and/or legislation that does come through. I think that would, number one, enhance the ability of members to identify these items in the first place, and, second, probably avoid even some of the discussion we are having today.
In terms of what you are concerned about, Mr. Watt, these items that you are discussing and we are all concerned about are appropriated items. On the NAFTA bill, for example, it was actually much more above board in terms of what was going on. I know Mr. Canady being from Florida certainly is aware of the Everglades deal that was made to, I think, get some votes from that State. So those wereI didn't say his. I said some. And they were certainly not alone.
So those kinds of negotiations, whatever you call them, do go on all the time. But maybe $15 billion, $20 billion a year that the line item veto would although it would cover all of the items that we identify and other groups identify in that range which are the ones that really get hidden in the process, and the President doesn't know about them. Sometimes the members of the Appropriations Committee don't even know about them and it is either someone on the staff or someone who is writing the bill.
There are all the stories about writing items on a bill as it goes to the floor and there is not enough time to actually evaluate them as they go in. And so as you are looking at ways to not, for example, do a constitutional amendment another way is to simply enforce the three-day rule, allow members the opportunity
Page 112 PREV PAGE TOP OF DOC Mr. WATT. I am certainly in favor of that. You could waive it every year.
Mr. SCHATZ. I know. And then actually have a more public discussion about what these bills contain and make an informed decision about whether to agree or not agree to spend the money, and then decide that maybe that decision is a little more important then running home for Thanksgiving dinner with the family or getting home for some vacation. That is an act of responsibility on the part of this body that, I think, is unfortunately abused far too often.
Mr. MOORE. If I could just say something about your bridge to power. You know, look there isyour concerns are correct. There is the opportunity for this, but the fact of the matter is that if there is a bridge in someone's district, and the President line item vetos that, I mean, the ultimate disciplining mechanism is the public. If the public wants these projects, there is going to be an outcry for them, I believe. And it is also true
Mr. WATT. The public in my district though may feel strongly about this bridge. That does not mean that I am going to be able to get two-thirds vote to override a veto. You know, and all politics is local. That bridge is a minor consideration in the overall national political scene compared to a vote on China MFN. You know, there is just no defense I have. I have no bully pulpit to turn up the pressure on the President. I mean, I can get my people in my Congressional District who live near that bridge mad at him but, you know, the power differential is so dramatic.
Page 113 PREV PAGE TOP OF DOC Mr. MOORE. My only point though is that with these spending items, if the President vetos this item and you can't get two-thirds of your colleagues to support it, then maybe the spending shouldn't occur. And I think that is one of thethis issue about the balance of power. I think almost everyone would agree that today the power is just toohas been swung far too much in the direction of the legislature. The President simply does not have
Mr. WATT. I don't think so. I certainly wouldn't concede that as a starting point for this debate.
Mr. MOORE. Well, in historical terms there is just no question. The President has less power today over the budget than he did for the first 150 years of the Nation because of the stripping away of the impoundment powers.
Mr. CANADY. If I could interject. The appropriation power is given to the Congress. That is Article I. That is kind of a basic thing. So we can argue whether it is abused, and what we ought to do about that, but it is kind of fundamental that that is legislative. So I don't want to by being silent acquiesce that that is not properly fundamentally the responsibility of the Congress.
Let me go to a technical point, and then we will try to give everybody a chance to say whatever they want to say before we conclude. I want to go back to this idea about separate enrollment of items. That is not something that I carefully studied, but I would like to ask Mr. Fisher or anybody else, if you considered whether that would be a constitutional way of addressing the issues that bring us here today or whether the Supreme Court would not look favorably on that mechanism.
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Mr. FISHER. I don't see any constitutional problem at all. After you broke the big 13 bills into all the mini-bills, they were passed by the House and the Senate again. You have complied with everything in the lawmaking process. But I still say on a practical level you don't get the items that way because they are in reports. They are not in bills.
Mr. CANADY. Any other comments on the separate enrollment?
Mr. MOORE. I am very skeptical that this is a workable solution. We have only had a Republican Congress now for six years and one thing, you know, the Congress said is we are not going to pass any more of these omnibus spending bills. I remember that was one of the first promises and here we are four years later and you are passing omnibus spending bills.
Mr. WATT. We didn't want to. It was the President's fault, they say.
Mr. MOORE. No, I don't think so. I just think the practicality is that you are asking a Congress to put a bell on itself. The cat to put a bell on itself, and I don't think it is going to do it.
Mr. CANADY. Mr. Miller, did you have something else you want to say?
Page 115 PREV PAGE TOP OF DOC Mr. MILLER. Yes. Mr. Chairman, let me just make three points. One is a historical prospective. The major spending growth has not been in appropriations, it has been in entitlements. Entitlement spending is greater than appropriations spending. The absolute size of government has grown tremendously but proportionately appropriations are less today. Second, I want to join Mr. Watt being nonpartisan and non-ideological here.
It was said, I saw some references that President Clinton's vetos were politically motivated or were partisan. I don't take that toI don't think there is good evidence there. It turns out that the Congress is in Republican hands, and the major pork that was included in the budget had been sponsored by Republicans. So it is only natural that if you go after pork you are going after a lot of items sponsored by Republicans.
On a third point that could be interpreted as critical of this measure is that I think probably there is evidence, certainly there is theory, to support the notion that Members of Congress would be a little less responsible if there is a line item or item reduction veto because you can put in some pork knowing that the President is going to veto it. And so you can be a winner back home. The idea that simply transparency that a congressman is going toor senator is going to be shamed into not putting pork into the budget, I don't think carries much weight.
Mr. MOORE. There is no shame.
Mr. MILLER. Mr. Watt, your bridge back home might be the laughing stock of most people in the Congress, and the pundits, and then the media here in Washington or whatever, but you are a winner back home for having attempted it, so you do have that basic
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Mr. WATT. Can I just ask for one clarification? Would this amendment get us to the entitlement issue?
Mr. MILLER. No, it would not address that.
Mr. WATT. So it basically ignores the biggest portion of the budget?
Mr. MILLER. Right.
Mr. WATT. Just to clarify one point. One of Clinton's issues hit Bill Heffner's District, a Democrat in North Carolina pretty hard so it wasn't all political.
Mr. MILLER. Right.
Mr. WATT. We got a little incensed about some of them ourselves.
Mr. MOORE. Just one quick thing on the amendment. If you go forward with this amendment several of us have identified this problem with the amendment that you can't get it in report language. That ought to be fixed. If you are going to go through this exercise let us fix it.
Mr. CANADY. I appreciate that comment and by way of a concluding remark assuming Mr. Watt is finished, I want to thank all of you for taking the time to be here. I think your testimony has helped illuminate the range of issues that are in play in connection with a proposal such as this. I do believe that before a proposal such as this could be moved forward, we would need to have another hearing which would focus on some of these morethese questions in a more technical way and actually look at the language more carefully and look at potential problems with the language.
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That is just a general observation about the process if this item should be moved forward in this Congress or any Congress. Again, we thank you for your participation and your contribution
Mr. WATT. Mr. Chairman, can I just clarify the record that I was joking about the bridge. I don't want there to be any doubt about that. I heard other people talk about being promised a bridge. I was never promised anything. I just wanted to be absolutely clear on that and I want the record to show it.
Mr. CANADY. The record will reflect that Mr. Watt was just kidding. The subcommittee stands adjourned.
[Whereupon, at 12 p.m., the subcommittee was adjourned.]
(Footnote 1 return)
Citizens for a Second Economy accepts no money from the federal government and, to the best of my recollection, neither have I during the relevant period.
(Footnote 2 return)
See W. Mark Crain and James C. Miller III, ''Budget Process and Spending Growth,'' William and Mary Law Review, Spring 1990, pp. 102146.
(Footnote 3 return)
To give you some idea of the magnitude of such savings, Crain and I found that had the item-reduction been in effect in 1980, over the decade spending would have been approximately half a trillion dollars less, or nearly $2,000 for every person in the country.
(Footnote 4 return)
The notion reminds me of the late-1960s argument that flexible exchange rates were out of the question because the forward market was not sufficient to handle the needs of those wishing to insure against fluctuations. As Professor Milton Friedman pointed out, the reason the forward exchange market was so limited was that with fixed exchange rates there was little demand for coverage of exchange rate risks.
(Footnote 5 return)
Pursuant to House Rule XI, clause 2(g)(4), I have received no federal grant, contract or subcontract within the current or preceding two fiscal years. Nor do I represent any entity at the hearing.
(Footnote 6 return)
Clinton v. City of New York, 118 S.Ct. 2091, 2105-06, 2107 n.38 (1998).
(Footnote 7 return)
See Brief for Amicus United States, Clinton v. City of New York, 118 S.Ct. 2091 (1998)