November 5, 2007
Pork and the Line-Item Veto III Posted by John Steele Gordon at 03:00 PM EST Mr. Burns should have made clear when he quoted me as writing, “There’s only one problem: It is patently unconstitutional,” that I was talking about another matter entirely (congressional representation for Washington D.C.), not the line-item veto. To be sure, the Supreme Court threw out the 1996 act that gave President Clinton a line-item veto, by a vote of 6 to 3, for reasons Mr. Burns elucidated. The fact that three justices thought it constitutional makes the word “patently” inappropriate here. Justice Breyer’s dissent, which was joined in part by Justices O’Connor and Scalia, is worth reading. It is a classic Hamiltonian argument of implied powers, distinguishing between things that are explicitly forbidden by the Constitution (such as granting titles of nobility) and means on which the Constitution is silent (such as chartering a bank, in Hamilton’s case) to a legitimate end. Yesterday’s Supreme Court dissent has very often become tomorrow’s majority opinion, as Mr. Burns knows full well. Mr. Burns writes, “President Bush asked Congress to enact the line-item veto in his 2006 State of the Union Address, and Senators Bill Frist and Mitch McConnell moved to comply.” Unless President Bush and the Republican leadership in the Senate last year are in some alternative constitutional universe, this too would indicate that the line-item veto, in one form or another, cannot be “patently” unconstitutional. Further, he writes that Rudy Giuliani was the man who initiated the lawsuit that resulted in the Supreme Court’s decision. Indeed he was, but I think it was really the mayor of New York more than Rudy Giuliani who initiated the suit. If Mr. Giuliani gets elected to the Presidency next year, I’ll be very surprised indeed if he doesn’t have a constitutional epiphany regarding the line-item veto. That veto could take many forms and be limited in many ways, some of which might have passed muster with the Supreme Court majority of 10 years ago. One way would be simply to repeal the provision of the 1974 Budget Control Act (perhaps the mostly wildly misnamed act in the history of Congress) that forbids Presidents to impound funds rather than spend them. President Nixon—in his desperate last days as President—signed the bill but stated that he thought that provision unconstitutional. I agree, as I see no constitutional requirement that the President spend the money that Congress appropriates, while there is a flat prohibition against “money being drawn from the Treasury, but in Consequence of Appropriations made by Law . . .” As far as I know it has never been tested in court. There is nothing to stop a President today from asserting the same idea and impounding funds, inviting a lawsuit. I bet he would win it. Of course impoundments are a greater power than a line-item veto. The latter could be overridden by Congress, the former cannot be. I did not label Congressional spending corrupt; I labeled pork corrupt. And it is. Forcing the Navy, say, to buy ships it doesn’t want and can’t use as a favor to some company located in a particular congressional district is corrupt, however legally the appropriation is enacted. It is corrupt because it is spending public money for private gain. When I referred to a new contract with America, I did not mean simply the line-item veto but a whole panoply of reforms, most of them congressional rules, not laws. Requiring that committees reconciling differing versions of a bill not add new spending, for instance. Requiring earmarks to be publicly posted on the Internet so that the people can see them in the light of day in time to form an opinion. Forbidding non-germane amendments. Requiring all political donations to be posted on the Internet the same day the money is deposited into the legislator’s campaign bank account, with full disclosure of who is actually giving the money. There are dozens more that are obvious to anyone whose first interest is not getting reelected to Congress. Mr. Burns writes, “If this is an issue that voters currently care about, I don’t think we’ve seen any evidence of it yet.” That is because it hasn’t been tried yet. But corruption was a major issue in the 2006 election (far more potent than Iraq, in my opinion). I would invite Mr. Burns to take a look at the ridicule heaped upon the first contract with America in 1994 by the mainstream media, on precisely the grounds that the voters didn’t care, before the election of that year. The ridicule stopped on Election Day when one of the great political tsunamis in American history swept the Democrats out of power in Congress (and practically everywhere else).
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