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.