November 6, 2007
Pork and the Line-Item Veto IV Posted by Alexander Burns at 01:25 PM EST As one proponent of the line-item veto might have said: “Here we go again.” Mr. Gordon responds in several parts to my thoughts on the line-item veto. First, he takes issue with my use of the word “patently” to describe the unconstitutionality of the line-item veto. “The fact that three justices thought it constitutional makes the word ‘patently’ inappropriate here,” he writes. “Yesterday’s Supreme Court dissent has very often become tomorrow’s majority opinion, as Mr. Burns knows full well.” Indeed I do know this. However, if you look at the justices who dissented—Breyer, O’Connor, and Scalia, with the latter only dissenting in part—it seems likely that the anti–line item veto majority on the Court has actually gotten stronger over time. O’Connor has retired and was replaced by Justice Samuel Alito. Along with Chief Justice Roberts, the other new member of the Court, Alito does not strike me as a likely prospect for recruitment to Justice Breyer’s minority view. A 7 to 2 vote against the line-item veto is not what I would call a close-run thing, especially when you consider that Justice Scalia’s dissent was not exactly ringing. As for Mr. Gordon’s suggestion that President Bush and the Republican Senate leadership might not understand the Constitution—well, to paraphrase Francis Urquhart, you might very well think that, but I could not possibly comment. Second, Mr. Gordon speculates that Rudy Giuliani, who is a good prospect to lead the GOP ticket next year, actually opposed the line-item veto in his capacity as New York mayor, but not as a matter of personal conviction. This is demonstrably incorrect: Giuliani has continued to argue that the line-item veto is unconstitutional long after leaving the office of the mayor. But don’t take my word for it, just ask this guy. Third, Mr. Gordon proposes an alternative means by which the President could cut down on pork: by reviving the power of impoundment. I don’t know enough about this matter to judge whether it’s a good idea, so I’ll stick to the question of the line-item veto as such. I imagine, though I do not know, that all the concerns I raised earlier about expanded presidential power would likely apply. I’m still interested to hear Mr. Gordon’s thoughts on that subject. Finally, Mr. Gordon clarifies that when he “referred to a new contract with America, [he] did not mean simply the line-item veto but a whole panoply of reforms, most of them congressional rules, not laws.” He also argues that this “hasn’t been tried yet,” and “invite[s me] to take a look at the ridicule heaped on 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.” I’m not sure what media scorn Mr. Gordon is referring to—this New York Times article, for example, seems perfectly respectful—but I would actually challenge the premise of Mr. Gordon’s argument here. Not only would I submit that a latter-day contract with America is unlikely to gain many votes next year, but I’d observe that it’s not really clear how many votes the original contract actually won for the GOP. According to an NBC/Wall Street Journal poll right before the 1994 election, just 31 percent of voters even knew of Newt Gingrich’s magnum opus. There was indeed a “political tsunami” that year, but whether earmarks and pork had anything to do with it is hardly a settled question. To end on a high note, it seems Mr. Gordon and I agree about at least one thing: I should have directly cited the blog post I was quoting when I mentioned a previous comment of his. Some might very well think of this as a minor, even frivolous correction, but I generally try to set high standards for conduct in blogging and I regret my error.
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