The Item And “fight ‘em” Veto

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There isn’t much to laugh about in politics nowadays, but once in a while the convolutions of party produce some moderately amusing results. Witness the sudden slowing, in mid-1995, of the drive for what is somewhat windily called the line-item veto. (The word line is redundant, and hereafter this column will have none of it.) To refresh memories, the item veto would allow a President a power already exercised by forty-three governors—namely, to strike out individual items in an appropriations bill that he otherwise accepts. As it is now, he must approve or veto any measure in toto , and the practical result is that he must sometimes swallow provisions that he hates in order to guarantee that money will keep flowing for the ordinary and necessary expenses of running the government.

When Congress was under Democratic control and Reagan and Bush sat in the White House, Republicans argued vigorously that the item veto would allow the President to kill pet projects stuffed into money bills by unregenerate spendthrifts on Capitol Hill. It became part of the Contract With America, and in due course the newly elected House and Senate passed differing versions of an item-veto law in February and March of this year. The next step would ordinarily be a conference to reconcile the two versions and pass the resulting bill. But wonder of wonders, that had not happened by autumn, because it suddenly struck some—though not all—Republican leaders that such a new law would put a great deal of fresh power into the hands of President Clinton, who was very willing to accept it. Speaker Gingrich, though he expressed his own unyielding commitment to the measure, was quoted as saying of this and another stalled measure, “My sense is that we won’t get to them this year.”

Political flip-flops aren’t exactly surprising news—and I quickly add in nonpartisan fairness that Democrats would behave the same way under the same conditions—and I would not ordinarily make this story the subject of comment if I had not been surprised by learning of new dimensions to the debate that I had previously missed. Having first heard the “let the President trim the fat from the budget” argument from the lips of Ronald Reagan fifteen years ago, I assumed that he invented the very concept of the item veto. But my attention was called to a page in the National Archives and Records Service Record for May of 1995 that proved my historical knowledge of the issue had serious gaps, and I wish to share my subsequent enlightenment with you. There before me was a photocopy of a manuscript paragraph in Ulysses S. Grant’s 1873 annual message to Congress urging passage of a constitutional amendment that would let him “approve of so much of any measure passing the…Congress as his judgment may dictate, without approving the whole.” (The disapproved parts could be reinstated by a two-thirds vote in both houses.) Not only had the item veto been put on the agenda more than a century ago, but an accompanying note by Susan Cooper stated that Presidents from both parties had thereafter engaged in “lively dialogue” on its merits. So they had, I learned in follow-up research.

As usual, we begin with the Constitutional Convention, whose delegates never discussed an item veto as such and were seriously ambivalent about how much power they should give to the President to “negative”—their preferred term—congressional enactments. Giving him none would create a toothless Executive, which, James Wilson warned, “the Legislature can at any moment sink…into non-existence.” Yet giving him an unqualified veto, said George Mason, would not only re-create royal tyranny but institute “a more dangerous monarchy, an elective.” The final compromise they reached lets the President return a bill “with his objections” but gives Congress the power to override him by a two-thirds vote of each house. In effect it involves the President in the legislative drafting process because sponsors of a bill who have not got a guaranteed two-thirds majority behind them are often induced to modify it to meet his complaints by the mere threat of a veto.

No pre-Civil War President seems to have complained about the all-or-nothing nature of the veto power, even though from the start there was a precedent for Congress’s complicating matters by attaching “riders”—unrelated pieces of legislation—to appropriation bills. Strangely enough, an item veto was made part of the Confederate constitution, though Jefferson Davis never used it. It is therefore somewhat ironic that Grant, of all Presidents, should be the first to ask for this right for himself, but the context explains why. Grant took office during Reconstruction, when the power of the Presidency to resist Congress was at its lowest ebb. His immediate predecessor, Andrew Johnson, had been impeached and almost thrown out.

Any President trying to reinvigorate the office was bound to do battle with congressional leaders and, like Grant, would consider the item veto as a means not to control the legislature but to keep it from controlling him. Grant’s successor, Rutherford B. Hayes (1877-81), put it crisply and combatively in one of his messages. The rider system established the principle that the House (which must originate appropriations) could withhold money “upon which the existence of the Government may depend unless the Senate and the President shall give their assent to any legislation which the House may see fit to attach to appropriation bills.” It was a “radical, dangerous, and unconstitutional change,” said Hayes, who retired after one term of bitter battles with spoilsmen in his own Republican party. James A. Garfield, who followed him, might have asked for an item veto had he not been assassinated early in his term; he was on record as saying that it had “better be known in the outset whether the President is the head of the government, or the registering clerk of the Senate.” Chester A. Arthur, a reformed spoilsman who followed Garfield into office, also took up the gauge. He recommended—fruitlessly—separate bills for each outlay so that the President could have “full opportunity…of opposing whatever appropriations seemed to him objectionable without imperiling the success of others.”

Presidents dependent on congressional goodwill were less likely to call for the item veto. Benjamin Harrison was elected in 1888 without a plurality of the popular vote and with considerable assistance from several Republican state bosses. He complained about the straitjacket that general appropriations bills put upon the President’s veto power but apparently thought the remedy must come through congressional self-control. Three Presidencies later William Howard Taft faced a major rebellion among congressional Republicans but all the same emerged from the experience as the most outspoken presidential opponent of the item veto. Taft, both as President and later as Chief Justice of the United States, was a genuine conservative, reluctant to bend the Constitution. He, too, hated riders, but to give the President a “partial veto,” he wrote in 1916, was a bad idea unless “we could always be sure of its wise and conscientious exercise.” But that wasn’t the case; the item veto would “greatly enlarge the influence of the President, already large enough.”

Grant was the first President to ask for the veto, having taken office when the power of the Presidency was at its lowest ebb.

Herbert Hoover, likewise a conservative, also denounced the idea in his own postpresidential reflections. It was in the New Deal era that denunciations of congressional spending became a bread-and-butter argument for conservatives, but Hoover was not about to recommend that Franklin D. Roosevelt be given the power to restrict it. He scorned the “curious idea that the Executive must protect the people from legislative endeavors to please group interests by…wasteful expenditures.”

In fact, Roosevelt (and Truman after him) were not particularly passionate advocates of the item veto. Their congressional opponents usually wanted to spend less, not more, than the Presidents recommended. Roosevelt did say to his majority leader that the President ought, like many governors, to have the power to veto a rider separately, but he recognized a “respectable difference of opinion” on the subject. Truman called his inability to kill individual appropriations an “important lack in the presidential veto power” but, like FDR, did not seek battle on the issue, having plenty of other quarrels of greater weight to pursue.

Eisenhower was, in domestic policy, inclined toward conciliating Congress. He did recommend an item veto, however, as a necessary procedure for “strengthening fiscal responsibility.” So it is fair to say that his administration is the first to link the item veto tightly to the crusade for cutting down the government’s alleged wastefulness, particularly under Democrats. Thereafter, the proposed reform, despite some bipartisan backing (from all three candidates in 1992, for example), became more integral to Republican polemics, and the road was paved for its inclusion in the Gingrich agenda.

Perceptive readers will take note, however, that the item veto changes its nature over the years. Starting as a suggested firewall against congressional power grabs, it becomes in our own time another potential weapon to be used by any imperial President. So it is involved in that ongoing contest among the branches of government that rises out of the separation of powers, and we can expect it to continue no matter who rises and falls on the seesaw of power, though parties may undergo sudden amazing changes of heart depending on the latest set of election returns. I hope this excursion furnishes some perspective; as for the item veto’s fate in 1996, stay tuned.