March 27, 1996 CONGRESSIONAL RECORD — SENATE S2929 and dedication that his parents had to footprints on the sands of time. matter which ones—on with great, their family and their community. And Ed Muskie’s footprints remain on great determination. he spoke of the love and devotion that those sands. They are there as a guide But I want to close by saying that his father—a Polish immigrant—had for those of us who would follow in his one of the things I will never forget for his new Nation. path. They are big footprints, not eas- about him is that he saw me as a young He spoke of how much his roots in ily filled. But we would all do well to Senator from New Mexico. I had a very the small town of Rumford, ME, meant try. large family. He got to meet them and to him. It was those deep roots, along Mr. President, I yield the floor. know them. On a number of occasions with his strong sense of family, that The PRESIDING OFFICER. The Sen- he personally said that he would very gave Ed Muskie the foundation upon ator from New Mexico. much like to make sure that we did not which he would stand as he became a Mr. DOMENICI. Mr. President, I do things around here to discourage leading figure in American political think we are still waiting for the dis- young Senators like DOMENICI from life. And he cherished his father’s tinguished senior Senator from West staying here. I think he was sincere, roots, and from the standpoint that he Virginia, Senator BYRD. And while we even though I was on the Republican viewed it as America giving every op- wait, I would like to ask consent that side. I think he saw us with an awful portunity to anybody who sought to I be permitted to speak for 5 minutes lot of feeling ourselves up here in try- achieve. as if in morning business. ing to establish rules that were very I was struck with a very real sense of The PRESIDING OFFICER. Without difficult, and he used to regularly say, history listening to his reminiscences objection, it is so ordered. ‘‘I hope this does not discourage you. during that visit. I do not think it is f We need to keep some of you around.’’ possible for any Maine politician, re- So to his wonderful family and to all FORMER SENATOR ED MUSKIE gardless of party affiliation, to have of those close to him, you have suffered come of age during the Muskie era and Mr. DOMENICI. Mr. President, I can- a great loss, but I can say that his life not have been influenced in some way not speak about Senator Ed Muskie has been a great legacy for the coun- by his presence. He was that pre- with the depth of knowledge that Sen- try. That ought to lend you in these eminent in the political life of my ator SNOWE had of his background and days of sorrow a bit of consolation, be- State. his impact on his beloved State of cause that legacy is great. Death is ob- Ed Muskie was a towering figure in Maine. But it has fallen to me to be, at viously inevitable. He accomplished every sense of the word. In his physical every stage of my growth in the Sen- great things before that day occurred. stature, in his intellect, in his presence ate, on a committee with Senator With that, I yield the floor. on Capitol Hill, in the extent of his im- Muskie. f pact on the political life of Maine, and My first assignment was the Public in the integrity he brought to bear in Works Committee. I was the most jun- LEGISLATIVE LINE-ITEM VETO everything he did. ior Republican, and Senator Muskie ACT OF 1995—CONFERENCE RE- And Ed was thoroughly and proudly a was the third-ranking Democrat and PORT Mainer, with the quiet sense of humor chaired the Subcommittee on the Envi- The Senate continued with the con- associated with our State. Each year, ronment. I also served on that sub- sideration of the conference report. the distinguished senior Senator enter- committee. I saw in him a man of tre- Mr. DOMENICI. Parliamentary in- tained guests at the Maine State Soci- mendous capability and dedication quiry, Mr. President. What is the pend- ety lobster dinner at the National when he undertook a cause. He learned ing business? Press Club by rubbing the belly of a everything there was to learn about it, The PRESIDING OFFICER. The con- live lobster, causing it to fall asleep, and he proceeded with that cause with ference report on the line-item veto. something only a real Mainer would the kind of diligence and certainty Mr. DOMENICI. Mr. President, for know how to do. that is not so often found around here. the information of the Senate, we have Personally, I will always remember There were various times during the just discussed the matter of a unani- and be grateful for the warmth, friend- evolution of clean water and clean air mous-consent agreement with Senator ship, and encouragement that Ed statutes in the country that we could BYRD, and he indicated he is not pre- Muskie gave me over the years. When I go in one of two directions, or one of pared to enter into that time agree- entered the U.S. House of Representa- three. Senator Muskie weighed those ment just now and would like to use tives in 1979, I was the newest member heavily, and chose the direction and some time and get a better feel for of the Maine congressional delegation. the course that we are on now. himself as to where we are. I have no Ed was the dean of the delegation. We No one can deny that Senator Muskie doubts we will enter into a similar were congressional colleagues for only is the chief architect of environmental agreement to the one our majority a year and a half, but our friendship cleanup of our air and water in the leader indicated, but it will not be lasted throughout the years. And when United States. Some would argue about forthcoming at this point. I think that I was elected to the seat which he had its regulatory processes, but there can is fair statement. held with such distinction, I was be no question that hundreds of rivers Mr. President, I note in the Chamber touched by his kindness, and grateful across America are clean today because the presence of Senator MCCAIN. It is for his advice and counsel. of Ed Muskie. There can be no doubt our prerogative as proponents of the Throughout his life, he never failed that our air is cleaner and safer and conference to lead off, and I wonder if to answer the call of duty. He answered healthier because of his leadership. I he would like to make a few opening the call from the people of Maine * * * really do not think any person needs remarks, and then I would make a few, He answered the call from America’s much more than that to be part of and then perhaps we would yield the rivers and streams * * * And he an- their legacy. floor to Senator BYRD for his opening swered a call from the President of the But essentially he took on another remarks. United States and a worried Nation job, and a very, very difficult one—to Since there is no time agreement at when Senator Muskie became Sec- chair the Budget Committee of the this point, I yield the floor. retary of State Muskie in a moment of U.S. Senate. Again, it fell on me as a Mr. MCCAIN addressed the Chair. national crisis. very young Senator to be on that com- The PRESIDING OFFICER. The Sen- Mr. President, 75 years before Ed- mittee. I have been on it ever since. I ator from Arizona. mund Muskie was born, another fa- was fortunate to move up. He became Mr. MCCAIN. Mr. President, I thank mous Mainer, Henry Wadsworth Long- chairman in its earliest days. the Senator from New Mexico for ev- fellow, captured what I believe is the I might just say as an aside that the erything he has done on this issue. The essence of the wonderful man we re- Chair would be interested in this. When Senator from New Mexico has been member today. Longfellow wrote: we moved the President’s budget—$6 around here for a long time and is fully Lives of great men all remind us billion in those days—that was a big, appreciative of the magnitude of what we can make our lives sublime, big thing, and we had a real battle for we are about to do. He also has been And, departing, leave behind us it. He would take the Presidents—no one who continuously has sought to S2930 CONGRESSIONAL RECORD — SENATE March 27, 1996 improve and to make more efficient, surgically eliminate Federal budget ob- delaying tactics including but clearly and indeed constitutional, this effort, ligations. The cancellation authority not limited to filibuster, extraneous and I am grateful for his continued does not permit the President to re- amendments, repeated quorum calls, support. write the underlying law, nor to motions to recommit, or motions to in- I also appreciate the very tough and change any provision of that law. struct conferees. very cogent arguments that he made The terms ‘‘dollar amount of discre- When the President’s message is re- while we were arriving at this com- tionary budget authority,’’ ‘‘item of ceived, any Member may introduce a promise which I think will prevail new direct spending,’’ and ‘‘limited tax disapproval bill. The form of the dis- today. I never underestimate the per- benefit’’ have been carefully defined in approval bill is laid out in the con- suasive powers of the Senator from order to make clear that the President ference agreement. For a disapproval West Virginia [Mr. BYRD]. I know he may only cancel the entire dollar bill to qualify for expedited procedures, will come forward with a very strong amount, the specific legal obligation to it must be introduced no later than the and compelling and constitutionally pay, or the specific tax benefit. fifth calendar day of session following and historically based argument ‘‘Fencing language’’ may not be can- receipt of the President’s special mes- against what we are trying to do today. celed by the President under this au- sage. Any bill introduced after the fifth I will listen as always with attention thority. This means that the President day of session is subject to the regular and respect. cannot use this authority to modify or rules of the two Houses. Mr. President, 1 year ago, the Senate alter any aspect of the underlying law, A disapproval bill introduced in the began consideration of S. 4, legislation including any restriction, limitation or House of Representatives must dis- to give the President line-item veto au- condition on the expenditure of budget approve all of the cancellations in the thority. Ten years before that, I began authority, or any other requirement of special message. There are no similar my fight in the Senate to give the the law. requirements in the Senate, except no President this authority, and 120 years I wish to emphasize this point again. disapproval bill may contain any legis- before that Representative Charles All fencing language is fully protected lative language not germane and di- Faulkner of West Virginia introduced under this bill. rectly related to the President’s can- the first line-item veto bill. Hopefully, The lockbox provision of the con- cellation message. a 120-year battle may soon be won. I ference report has also been included to After introduction, a disapproval bill would like to outline the line-item maintain a system of checks and bal- will be referred to the appropriate com- veto measure agreed to by the con- ances in the President’s use of the can- mittee or committees. Any committee ferees. It is a good agreement and a cellation authority. Any credit for or committees of the House of Rep- good line-item veto bill. money canceled will be dedicated to resentatives to which such a dis- The conference report amends title X deficit reduction. The lockbox require- approval bill has been referred shall re- of the Congressional Budget Impound- ment ensures that the President does port it without amendment, and either ment Control Act of 1974 to add a new not simply cancel a particular dollar with or without recommendation, not part C comprising sections 1021 amount of discretionary budget au- later than the seventh calendar day of through 1027. In general, part C will thority, item of new direct spending, or session after the date of its introduc- grant the President the authority to limited tax benefit in order to increase tion. cancel and hold any dollar amount spending in other areas. Again, in the Senate, the committee specified in law for the following pur- The President’s special cancellation may amend the bill, but it may not poses: First, to provide discretionary message must be transmitted to the offer any amendments beyond the budget authority; or second, to provide House of Representatives and to the scope of the President’s message. new direct spending; or third, to pro- Senate within 5 calendar days—exclud- If any committee fails to report the vide limited tax benefits contained in ing Sundays—after the President signs disapproval bill within the requisite any law. Congress has the authority to the underlying bill into law. time period, then the bill will be dis- delegate to the President the ability to Such special cancellation messages charged from committee. cancel specific budgetary obligations must be printed in the first issue of the Procedure for consideration of the in any particular law in order to reduce Federal Register published after the disapproval bill in the House of Rep- the Federal budget deficit. transmittal. resentatives is noted in the conference While the conference report delegates Upon receipt of the President’s spe- report. these narrow cancellation powers to cial message in both Houses of Con- In the Senate, a motion to proceed to the President, these powers are nar- gress, each dollar amount of discre- the consideration of a disapproval bill rowly defined and provided within well- tionary budget authority, item of new is not debatable. Section 1025(e)(6), of defined specific limits. direct spending, or limited tax benefit the bill, provides a 10-hour overall lim- Under this new authority, the Presi- included in the special message is im- itation for the floor consideration of a dent may only exercise these new can- mediately canceled. The cancellation disapproval bill. Except as specifically cellation powers if the Chief Executive of a dollar amount of discretionary provided in the bill, this limit on con- determines that such cancellation will budget authority automatically re- sideration is intended to cover all floor reduce the Federal budget deficit and scinds the funds. With respect to an action with regard to a disapproval will not impair any essential Govern- item of new direct spending or limited bill. This section is specifically meant ment function or harm the national in- tax benefit, the cancellation renders to preclude the offering of amendments terest. In addition, the President must the provision void, such that the obli- or the making of dilatory motions make any cancellations within 5 days gation of the United States has no after the expiration of the 10 hours. of the enactment of the law which con- legal force or effect. Amendments to a disapproval bill in tains the items to be canceled and Any such cancellation is reversed the Senate, whether offered in commit- must notify the Congress by transmit- only if a bill disapproving the Presi- tee or from the floor, are strictly lim- tal of a special message within that dent’s action is enacted. ited to those amendments which either time. The conference report provides Con- strike or add a cancellation that is in- The conference report specifically re- gress with 30 calendar days of session cluded in the President’s special mes- quires that a bill or joint resolution be to consider a disapproval bill under ex- sage. No other matter may be included signed into law prior to any cancella- pedited procedures. A ‘‘calendar day of in such bills. To enforce this restric- tions from that act. This requirement session’’ is defined as only those days tion in the Senate, a point of order, ensures compliance with the constitu- during which both Houses of Congress which may be waived by a three-fifths tional stipulations that the President are in session. vote, would lie against any amendment enact the underlying legislation pre- I wish to note that the expedited pro- that does anything other than strike or sented by Congress after which specific cedures provide strict time limitations add a cancellation within the scope of cancellations are then permitted. at all stages of floor consideration of a the special message. To the extent that We intend that the President be able disapproval bill. The conference report extraneous items are added to dis- to use his cancellation authority to sets out procedures designed to prevent approval bills, and the Senate has not March 27, 1996 CONGRESSIONAL RECORD — SENATE S2931 waived the point of order against such and we would make this authority per- spending can be to our national secu- an item, the conference report intends manent. However, the sunset is in- rity. It should now be clear how urgent that such legislation would no longer cluded in the bill to address the con- the need for a line-item veto is. qualify for the expedited procedures. cerns of some Members. At a time when thousands of men and In addition, should differing House This is the actual language from the women who volunteered to serve their and Senate disapproval bills be passed report, which calls for $49,846,000 for country have to leave military service and the measure go to conference, the special grants for agricultural re- because of changing priorities and de- conferees must include any items upon search. clining defense budgets, we nonetheless which the two Houses have agreed and The report language then goes on to are able to find money for billions of may include any or all cancellations state specific parts of the special dollars of unnecessary spending in the upon which the two Houses have dis- grants for agricultural research, for ex- defense appropriation bill. At a time agreed, but may not include any can- ample: Wood utilization research in Or- when we need to restructure our forces cellations not committed to the con- egon, Mississippi, North Carolina, Min- and manpower to meet our post-cold ference. nesota, et cetera; wool research in war military needs, we have squan- Once a disapproval bill is passed by Texas, Montana, and Wyoming. dered billions on pointless projects the Congress, it is assumed the Presi- What the President could do is say with no military value. dent would veto the new bill. The that he does not approval of wood utili- Mr. President, every Congressman or President would have to use his con- zation research in these six States. He Senator wants to get projects for his or stitutional veto authority to do so and could line item out, out of the report her district. Everyone wants not only could not cancel any part of a cancella- language, this $3,758,000, thereby sub- their fair share of the Federal pie for tion disapproval bill. The Congress tracting that $3,758,000 from the $49 their States, they want more. Therein would then have to muster a two-thirds million which is in the bill for special lies the problem. It is an institutional vote to override the veto and force the grants for agricultural research. That problem. I am not a saint. But we are President to spend the money. is fundamentally what this line-item trying to make a difference. I am not Mr. President, there was considerable veto does. So that what is in the report here to cast aspersions on other Sen- debate between the two Houses about language affects the original bill. ators who secured an unnecessary exactly what the President may veto. I was disappointed that the con- project for their States. I am not here In the original version of both S. 4 and ference was not able to keep the to start a partisan fight. H.R. 2, the President was given en- Feingold-McCain emergency spending Congress created the problem and its hanced rescission authority. This amendment. However, I have been as- Congress’ responsibility to fix it. It is a would have allowed the President to sured by the staff of the Budget Com- Congress that has piled up a $5 trillion veto any dollar amount he saw fit to mittee that they would be willing to debt. It is a Congress that is respon- cut. Some felt this authority would meet with our respective staffs and de- sible for over a $200 billion deficit this give the President too much power and velop language to address the Senator year. It is a Congress that has miser- might result in too much power shift- from Wisconsin’s and my concerns re- ably failed the American people. It is ing to the Executive. The compromise garding this matter. an institution that desperately needs reform. developed by the conferees returns to Mr. President, the power to line item Anyone who feels that the system the idea of a line-item veto—in other veto is not new. Every President from does not need reform need only exam- words, the President can cancel any Jefferson to Nixon used a similar power. The line-item veto power they ine the trend in the level of our public line. debt. As I stated in my analysis of the Let me get a chart here, and dem- exercised ensured that the checks and most recent budget plans, the deficit onstrate it very quickly. This is a balances between the congressional and has continued to balloon and spending chart that is very familiar to the con- executive branch remained in balance. In 1974, in reaction to the Presidential continues to increase. In 1960, the Fed- ferees, I might add, since we used this eral debt held by the public was $236.8 abuses, the Congress stripped the during our debate and discussions. billion. In 1970, it was $283.2 billion. In The bill also allows the President to President of this power. Unfortunately, 1980, it was $709.3 billion. In 1990, it was line-item veto—or cancel—new direct since that time, the Congress has $3.2 trillion, and it is expected to sur- abused its ability to dictate how spending provisions in law. When the pass $5 trillion this year. President vetoes these provisions, he is money be spent. This bill would restore My colleagues may ask: Why is the effectively canceling the obligation to the checks and balances envisioned by line-item veto so important? pay the new benefits. the Founding Fathers. Because a President with a line-item The bill also allows the President to Further, unlike impoundment power veto could help stop this waste. Be- line-item veto any targeted, or limited, where the President could use appro- cause a President with a line-item veto tax benefits if those benefits effect 100 priated money to fund his priorities could play an active role in ensuring or fewer individuals. over the objections of the Congress, that valuable taxpayer dollars are Mr. President, this is not the ap- this bill contains a lockbox provision spent effectively to meet our national proach I would have preferred. I believe as I have described. Any money line security needs, our infrastructure that the Senate language developed item vetod under this bill could be used needs, and other social needs without with Mr. BRADLEY would have been only for deficit reduction. pointless pork barrel spending. And the more effective. However, as we all Mr. President, many have character- President can no longer say, ‘‘I didn’t know, compromise often must occur in ized this legislation as a dangerous like having to spend billions on a conference. The results can be seen ploy, not as a true budgetary reform. wasteful project but it was part of a here. This is not accurate and does not take larger bill I just couldn’t say no to.’’ As I said, I would have preferred to into account the greater picture of the Under a line-item veto, no one can hide see this issue addressed in a different dangers presented by our out-of-control According to a recent General Ac- manner, but the compromise still has budget process. The real danger is what counting Office study, $70 billion could teeth and will result in fewer special has happened to the administration of have been saved between 1984 and 1989, interest tax breaks and less corporate the American Government. Unneces- if the President had a line-item veto. welfare. sary and wasteful spending is threaten- It is important because it can help Finally, the bill will become effective ing our national security and consum- reduce the deficit. It can change the on January 1, 1997 or as soon as a bal- ing resources that could better be way Washington operates. Mr. Presi- anced budget is signed into law, which spent on tax cuts, deficit reduction, or dent, we cannot turn a blind eye to un- ever is first. I want to note that Presi- health care. I do not make the charge necessary spending when we cannot dent Clinton has agreed to this effec- that wasteful spending threatens our meet the needs of our service men and tive date. The line-item veto would national security without a great deal women. We cannot tolerate waste when sunset in 8 years. I would hope that of consideration. After last year’s de- Americans all over this country are ex- after 8 years of use, the public would fense appropriations bill, it is unfortu- periencing economic hardship and un- realize the value of the line-item veto nately clear how dangerous this kind of certainly. S2932 CONGRESSIONAL RECORD — SENATE March 27, 1996 The American public deserves better The distinguished Senator from Ari- has the potential to fundamentally than business as usual. As their elected zona is a great patriot. He has served change the way we make spending deci- representatives we are duty bound to his country overseas, and he has served sions in Congress and our relationship end the practice of wasteful and unnec- his country in this Chamber. He fights to the executive branch. I think the ob- essary spending. hard and very tenaciously for that in jectives of this legislation are correct. The line-tem veto is not a means to which he believes in the legislative We should enact legislation that facili- encourage Presidential abuse, but a field. He has done so in this instance. I tates our ability to extract lower prior- means to end congressional abuse. It regard him as one of the more skilled ity spending from legislation and to de- will give the President appropriate and devoted Members of the Senate. I vote that to deficit reduction. power to help control spending and re- have only the utmost respect for him. However, I share the concerns of oth- duce the deficit. To anyone who thinks I like to believe before the day is ers about this bill’s impact on the bal- that Congress is fully capable of polic- over, I will have prevailed over his po- ance of power between the legislative ing national fiscal affairs, I simply sition, but that is somewhat doubtful and executive branch. bring to the Senate’s attention the $3.7 insofar as I am concerned at the mo- I also want to congratulate again the trillion public debt as irrefutable proof ment. But I do respect him, and regard- majority leader who brought together of our inability. less of how vehemently I may propose a group of Senators with very diverse Mr. President, a determined Presi- my viewpoint, it has nothing to do views and got them to compromise on dent will not be able to balance the with my respect for him and my friend- this final bill. The distinguished chair- budget with the line-item veto. But a ship for him. man of the Governmental Affairs Com- determined President could make sub- He also serves on the Armed Services mittee, Senator STEVENS, once again stantial progress toward that goal. Committee and is one of the outstand- deserves a great deal of credit, for he I submit that had the President been ing members of that committee. chaired that effort, that conference and able to exercise line-item veto author- So with those words of respect, I now that effort that our leader put together ity over the past 10 years the fiscal yield the floor. It is my understanding in an effort to resolve differences. condition of our Nation would not be Senator DOMENICI plans to speak at Senators MCCAIN and COATS, as I in- nearly as severe as it is today. this time. dicated heretofore, deserve the lion’s With that in mind, I hope the Senate Mr. McCAIN. Mr. President, I suggest share of credit for getting this bill would consider the following quote by the absence of a quorum. where it is. And they have been tena- a prescient figure in the Scottish En- The PRESIDING OFFICER. The cious advocates, and obviously we will lightenment, Alexander Tytler. He clerk will call the roll. hear from both of them here today. stated: The legislative clerk proceeded to Mr. President, I made line-item veto call the roll. A democracy cannot exist as a permanent legislation a priority for the Budget form of government. It can exist only until a Mr. DOMENICI. Mr. President, I ask majority of voters discover that they can unanimous consent that the order for Committee, because clearly we did not vote themselves, largesse out of the public the quorum call be rescinded. want to be making a point of order treasury. From that moment on, the major- The PRESIDING OFFICER. Without under the Budget Act on line-item veto ity always votes for the candidate who prom- objection, it is so ordered. because it came within the purview of ises them the most benefit from the public The Senator from New Mexico is rec- legislation that must be considered by treasury, with the result being that democ- ognized. the Budget Committee. For a number racy always collapses over a loose fiscal pol- of years getting this job done has been icy. Mr. DOMENICI. Mr. President, I want to first acknowledge the hard stopped either by filibuster or point of If our debt surpasses our output, I order. I thought it was time that we fear that our democracy may one day work and dedication that Senator TED STEVENS from Alaska has put into this get that point of order out of the way collapse over loose fiscal policy. and that we do our job and let us work Today is a historic day. A 120-year conference report. Obviously, there is our will. battle is coming to a close. The line- no Senator here who is more dedicated We moved quickly to hold hearings item may soon be a reality. to our prerogatives as a Senate and our Mr. President, I want to, again, ex- prerogatives as individual Senators, and report Senate bill No. 4 at the be- tend my respect and consideration and and there is no Senator more con- ginning of 1995. If this bill had not been appreciation for the Senator from West cerned about maintaining that power. reported, it would have been subject to Virginia, with whom I have debated And, likewise, there is none who under- the point of order, as indicated, and we this issue over the last 10 years. I stands the effectiveness of the appro- would probably never be here. would like to allege I have always pre- priations process any better than Sen- Mr. President, the conference report vailed over the Senator from West Vir- ator TED STEVENS from Alaska, I might on this bill essentially adopts the ginia both in logic and in humor. I am say, perhaps with the exception of the House’s enhanced rescission approach. afraid neither is the case, but I have distinguished Senator from West Vir- I repeat, this essentially adopts the found him to be a most distinguished ginia. House’s enhanced rescission approach. opponent, most learned and most dedi- Senator STEVENS worked tirelessly to Essentially that approach was similar cated to the proposition to which he is come up with a compromise. He will to the approach advocated by Senators committed. speak for himself later in the day, but MCCAIN and COATS and many who fol- Mr. President, I yield floor. obviously, if there is a hero, he is one lowed their lead. Mr. BYRD. Will the Senator yield? of them on this effort. There are a significant number of Mr. President, I thank the distin- I have already indicated the two modifications to the House’s enhanced guished Senator for his customarily leaders on our side have spent a long rescission concept and particulars. gracious and courteous remarks con- period of their Senate life devoted to One, we sunset this authority after 8 cerning me. I wish to respond in kind this, and they took the lead from the years to give Congress an opportunity by saying that, although I adamantly beginning. Senator MCCAIN is one, who to review the President’s use of this oppose the measure which the distin- has just spoken, and I am sure that we authority. Some wonder why, but, es- guished Senator from Arizona and the will have a number of Senators speak sentially, if you did not have that, distinguished Senator from Indiana before we are finished. But Senator there would be no time when you could support, and for which they have COATS of Indiana will also be here. Ob- change this law over a President’s ob- fought so long, I have only the utmost viously, he is a coleader of this cause. jection without having two-thirds vote respect for both of them. I think that I acknowledge their dedicated effort. here in the Senate, because, indeed, if a the Senator from Indiana works hard I do not intend to speak very long at President liked it and we did not like and is dedicated. I serve with him on this point. We have completed a con- it—and there was a real reason for the Armed Services Committee. I ad- ference report after months in con- that, to argue that policy issue out— mire him. I consider him to be my ference, and I rise in support of the Presidents would veto whatever we friend, and I am sure, regardless of the Line-Item Veto Act which is before us. sent them. outcome in this instance, I will remain I cannot emphasize enough the im- As a matter of course, we would be his friend. portance of this legislation. I believe it saying, regardless of how it is used—and March 27, 1996 CONGRESSIONAL RECORD — SENATE S2933 it is a kind of new activity. Even the special attention is made to special me all: a plain blunt man * * * for I occupant of the chair, who used it as a needs of special constituents by legis- have neither wit, nor words, nor worth, Governor, understands and has spoken lators, the same is done in tax bills and action, nor utterance, nor the power of to me that this is somewhat different the same is done in entitlements. speech to stir men’s blood. I just speak in scope when you do it this way, when Clearly, the President, if he is going right on. I tell you that which you it is the national picture, and we are to have a chance to get at and cancel yourselves do know. * * *’’ treading on some new ground. budget authority, obligational author- Mr. President, the Senate is on the So I would have liked a shorter sun- ity for appropriated accounts, both do- verge of making a colossal mistake. set provision, but the House had none. mestic and defense, he ought to have a The distinguished Senator from New So there are 8 years. We will live similar authority. This last part that I Mexico was correct when he spoke of through two complete Presidential have just described is truly an experi- this measure as being a formidable terms, starting next January, and see ment, but we worked as diligently as measure, a far-reaching measure, a how it is working out with reference to we could to make it clear and to make measure that will produce a sea change a judicious exercise of that new power sure that everyone would understand in the relationship between the execu- given to Presidents. what the conferees had in mind on di- tive and the legislative branch. No. 2, the line-item veto applies to rect or mandatory expenditures and Let me say at the outset that I have all new spending, including new direct targeted tax expenditures. only the utmost respect for the distin- spending, that is frequently called enti- Again, I congratulate Senators DOLE, guished, the very distinguished Sen- tlements or mandatories. Despite all MCCAIN, and my cohort who chaired ator from New Mexico. He is one of the the rhetoric, the only real deficit re- this conference, the distinguished Sen- brightest Senators that I have seen duction this year has been in the area ator from Alaska, Senator TED STE- during my 38 years in this body. He un- of discretionary spending. I have mis- VENS. This is a remarkable achieve- derstands the budget process, in all stated the number heretofore, and let ment on their part. While it will be likelihood, better than anyone else in me be accurate. The only money saved contested here today, I do not believe this Chamber on either side of the in the balanced budget argument to it will be contested that this is some aisle. He is skillful, he is dedicated, he this point is $12 billion less in spending very far-reaching legislation, that is tenacious, and, of course, he is fight- in the appropriated accounts, domestic, those who think change is good will ing for what he believes today. I cannot in the year 1995. It is obvious to those clearly understand that this is a for- help but think, however, that in his who know the budget, we cannot bal- midable event in the ever-changing heart of hearts, he would rather be sup- ance the budget or significantly re- landscape of the legislation that Con- porting a more moderate measure than strain Federal spending by just having gress considers and finally passes. this that is before him. But I have no a veto over discretionary accounts, nor There will be a number of Senators right to attempt to look into his mind can we continue the idea and concept who oppose this. Clearly, I want to say or into his heart. that we can balance the budget on the right up front that the distinguished The Senate, you mark my words, is back of the domestic discretionary pro- Senator from West Virginia, former on the verge of making a colossal mis- grams, that spending alone. chairman of the Appropriations Com- take, a mistake which we will come to We devote any savings from the line- mittee, majority leader, minority lead- regret but with which we will have to item veto to deficit reduction through er of this U.S. Senate, will oppose this. live until January 1 of the year 2005, at a lockbox concept. We clearly define He will be listened to. The concerns he the very least. We are about to adopt a and place restrictions on the Presi- expresses will not be light concerns. conference report which will upset the dent’s cancellation authority. The They will be important concerns. constitutional system of checks and President does not have complete dis- Many of us have agreed with him in balances and separation of powers, a cretion to cancel items in laws. He can the past, and we have concerns about system that was handed down to us by only cancel entire items in laws or ac- the legislation. However, we have come the Constitutional Framers 208 years companying reports. to the conclusion—many on the Appro- ago, a system which has served the Moreover, the bill makes clear he can priations Committee, or a number, will country well during these two cen- cancel only budgetary obligations. He support this legislation—that the time turies, a system that our children and cannot use his authority under any cir- is now to give line-item veto a chance, grandchildren are entitled to have cumstance to change the provisions of to get it over to the President who will passed on to them as it was handed law, that is, to write law in an appro- sign it. First get it to the House, they down to us. And as I comprehend the appalling priations bill. will adopt it, and then go to work on consequences—they may not become We strengthen the expedited proce- making it work come January. dures for congressional consideration Now, we have not yet agreed upon evident immediately, but in due time of a bill to disapprove of a President’s the time that will be taken here be- they will be seen for what they are—as cancellation of an appropriation, either cause, quite appropriately, the distin- I comprehend the appalling con- the line item or direct spending or the guished Senator from West Virginia sequences of the decision that will, un- limited tax benefit, which has been de- wants to watch his time carefully, not fortunately, likely have been rendered scribed by my friend from Arizona. I only for himself but some of his advo- ere we hear ‘‘the trailing garments of will not go into it any further now cates. the Night sweep through these marble other than to say this bill, as it left the When we started here on the floor, halls,’’ I think of what Thomas Babing- Senate, carried with it an expanded before a word was said, the distin- ton Macaulay, noted English author concept of what ought to be subject to guished Senator from West Virginia, in and statesman, wrote in a letter to cancellation. his usual style and gracious, gracious Henry S. Randall, an American friend, The two things included here that demeanor and respect for the institu- on May 23, 1857: were not historically considered were tion, shook the hand of Senator Either some Caesar or Napoleon will seize the reins of government with a strong hand; targeted taxes, that is, very special and MCCAIN and Senator DOMENICI and indi- or your republic will be as fearfully plun- direct taxes that benefit a small group cated his respect, but indicated in this dered and laid waste by barbarians in the of people or institutions, and new addi- particular measure he did not agree. Twentieth century as the Roman Empire was tional mandatory or direct expendi- That is a great part of our Senate her- in the Fifth—with this difference . . . that tures, not vetoing entitlements, but if itage. He disagrees. He will have his your Huns and Vandals will have been engen- you create a new one that spends more day. We disagree with Senator BYRD. dered within your own country by your own money, the President has one oppor- We will have our day. I hope in the end institutions. tunity to address that. we will have a majority of Senators The Senate is about to adopt a con- Frankly, I think both are fair be- supporting what we propose. I yield the ference report, Mr. President, which cause if the statement, that is clear, floor. Madison and the other Constitutional that appropriated accounts alone do (Mr. KYL assumed the chair.) Framers and early leaders would have not create the problem of deficit spend- Mr. BYRD. Mr. President, ‘‘I am no absolutely abhorred, and in adopting ing, nor are they the only area where orator, as Brutus is. But as you know the report we will be bartering away S2934 CONGRESSIONAL RECORD — SENATE March 27, 1996 our children’s birthright for a mess of stitutional temple of checks and bal- all authority and who ruled as by di- political pottage. ances and separation of powers rests, vine right. The control of the purse is the foun- and that if the pillar is shaken, the The Constitutional Framers were dation of our constitutional system of temple will fall. It is as central to the well aware of the ancient landmarks of checks and balances of powers among fundamental liberty of the American the unwritten English constitution. the three departments of government. people as is the principle of habeas cor- Moreover, they were all intimately ac- The Framers were very careful to place pus, although its genesis and raison quainted with the early colonial gov- that control over the purse in the d’etre are not generally well under- ernments and the new state constitu- hands of the legislative branch. There stood. Therefore, before focusing on the tions which had been lately established were reasons therefor. power over the purse as the central following the Declaration of Independ- The control over the purse is the ul- strand in the whole cloth of Anglo- ence and which had been copied to timate power to be exercised by the American liberty, we should engage in some degree from the English model, legislative branch to check the execu- a kaleidoscopic viewing of the larger with adaptations appropriate to repub- tive. The Romans knew this, and for mosaic as it was spun on the loom of lican principles and local conditions. hundreds of years, the Roman Senate time. Let us trace a few of the Anglo-Saxon had complete control over the public Congress’ control over the public and later English footprints that left purse. Once it gave up its control of the purse has had a long and troubled his- their indelible imprint on our own con- purse strings, it gave up its power to tory. Its beginnings are imbedded in stitutional system. check the executive. We saw that when the English experience, stretching Since time immemorial, Anglo-Saxon it willingly and knowingly ceded its backward into the middle ages and be- and later English kings had levied powers to Julius Caesar in the year 44 yond. It did not have its genesis at the taxes on their subjects with the advice B.C. Caesar did not seize power, the Constitutional Convention, as some and consent of the witenagemot or the Senate handed power over to Caesar may think, but, rather, like so many Great Council. When Parliament later and he became a dictator. History tells other elements contained in the Amer- grew out of the Great Council, and us this, and history will not be denied. ican Constitution, it was largely the when knights and burgesses from the The same thing happened when product of our early experience under shires and boroughs, and representa- Octavianus, later given the title of Au- colonial and State governments and tives from the town and rural middle gustus in the Roman Senate, when in with roots extending backward through class were chosen to participate in Par- 27 B.C. the Senate capitulated and hundreds of years of British history liament, the king sought approval, from this representative body, of reve- yielded its powers to Augustus, will- predating the earliest settlements in nues for the operation of government, ingly desiring to shift from its own the New World. shoulders responsibilities of govern- Notwithstanding William Ewart the national defense, and the waging of wars. ment. When it gave to him the com- Gladstone’s observation that the Amer- In return for its approval of the ican Constitution ‘‘is the most wonder- plete control of the purse, it gave away sovereign’s request for money, Par- its power to check the executive. ful work ever struck off at a given time liament learned that it could secure Anyone who is familiar with the his- by the brain and purpose of man,’’—al- the redress of grievances and exact tory of the English nation knows that though there is some question with re- concessions from the king. You are our British forebears struggled for cen- gard to that quotation—the Constitu- asking for money? Then we, the peo- turies to wrest the control of the purse tion was, in fact, not wholly an origi- ple’s representatives, want this first. from tyrannical monarchs and place it nal creation of the Framers who met in Make these concessions, and then we in the hands of the elected representa- Philadelphia in 1787. It ‘‘does not stand will vote you the money. If he resisted, tives of the people in Parliament. Per- in historical isolation, free of ante- then Parliament would refuse to grant haps it would be useful for us to review cedents,’’ as one historian has noted, funding requests and new taxes. In 1297, briefly the history of the British Par- but ‘‘rests upon very old principles— almost 700 years ago now, Edward I re- liament’s struggle to gain control of principles laboriously worked out by luctantly agreed to the ‘‘Confirmation the purse strings, particularly in view long ages of constitutional struggle.’’ of the Charters,’’ and, in doing so, he of the fact that the Constitutional The fact is, Gladstone himself, con- agreed, under clause 6 of the Par- Framers in 1787 were very much aware trary to his quote taken out of context, liamentary document, that is the fu- of the history of British institutions, recognized the Constitution’s evolu- ture he would not levy ‘‘aids, taxes, nor and were undoubtedly influenced in tionary development. prises, but by the common consent of considerable measure by that history British subjects outnumbered all the realm.’’ The significance of the and by the experiences of Englishmen other immigrants to the colonies under event was twofold. In the first place, it in the constitutional struggle over the British dominion. The forces of politi- was henceforth necessary that rep- power of the purse. cal correctness are trying to change resentatives of the whole people, and Cicero said that ‘‘one should be ac- American history these days, but it especially the middle class, be sum- quainted with the history of the events cannot be changed. The very first sen- moned to all Parliaments where any of past ages. To be ignorant of what oc- tence of Muzzey’s history, which I non-feudal taxation proposals were to curred before you were born is to re- studied in 1928, 1929, and 1930—the very be considered. Moreover, and of even main always a child. For what is the first sentence—says: ‘‘America is the greater importance, the control of the worth of human life, unless it is woven child of Europe.’’ America is the child purse was lodged in Parliament, and into the life of our ancestors by the of Europe, political correctness not- this was a power that Parliament records of history?’’ withstanding. would frequently use to check the To better understand how our own They brought with them—those early abuse of royal authority and to per- legislative branch came to be vested settlers from England—the English suade the king to grant concessions. with the power over the purse, it seems language, the common law of England, This is the meat of the coconut. On to me that one should examine not and the traditions of British customs, two occasions in Edward II’s reign only the roots of the taxing and spend- rights, and liberties. The British sys- (1307–1327), Parliament had asked for a ing power but also the seed and the soil tem of constitutional government, redress of grievances before it granted from which the roots sprang and the safeguarded by a House of Commons taxes on personal property, and in both climate in which the tree of Anglo- elected by the people, was well estab- cases, the substance of Parliament’s American liberty grew into its full lished when the first colonial charters petitions were approved and enacted flowering, because only by understand- were granted to Virginia and New Eng- into statutes by the king. On one of ing the historical background of the land. It was a system that had devel- these occasions, in 1309, the Commons constitutional liberties which we oped through centuries of struggle, granted a subsidy ‘‘upon this condition, Americans so dearly prize can we fully during which many of the liberties and that the king should take advice and appreciate that the legislative control rights of Englishmen were concessions grant redress upon certain articles of the purse is the central pillar—the wrung—sometimes at the point of the wherein they are aggrieved.’’ Members central pillar—upon which the con- sword—from kings originally seized of of Congress should take note. March 27, 1996 CONGRESSIONAL RECORD — SENATE S2935 There are early instances of the allo- 1382, the revenues from tonnage and duke of Lancaster—agreed that he cation of funds for specific purposes, poundage were specified for application would listen to reports about money such as the Danegeld, which was a land to the safe keeping of the sea. grants only ‘‘by the mouth of the tax levied to meet requirements aris- Some of the early appropriations speaker of the Commons.’’ The right of ing from Danish invasions and to buy went into details. For instance, a grant the commons to originate taxes and off the invaders. It usually was two was made to Edward IV in 1472 to cover money grants was a right by custom, shillings on each hide of land. It con- the expenses of 13,000 archers for one not a statutory right, but it was a cus- tinued for some time after the danger year at a daily wage of sixpence. An- tom that was not easily shaken. For of Danish invaders had passed, and, as other grant was made by Commons to example, Henry IV had failed in 1407 a land tax, it was revived by William Edward IV in 1475 for his war in France when he tried to proceed first through the Conqueror for specific emergency on the condition that his departure for the House of Lords. The Commons re- purposes such as defense preparations France be no later than St. John’s Day fused to accept such ‘‘a great prejudice in 1084, when the King of Denmark in 1476, and he was not to receive the and derogation of their liberties.’’ The threatened to enforce his claim to the money until his ships were actually U.S. Constitution, in Article I, reflects English throne. Although continued as ready to leave for France. the very same principle: ‘‘All Bills for a land tax under William I’s successors, Wool subsidies were specifically ap- raising revenue shall originate in the its original character was lost, and its propriated, on occasion, for defraying House of Representatives.’’ name, the Dangeld, fell into disuse in the cost of the garrison of Calais. The As the years passed, Parliament ex- 1163, during the reign of Henry II. It be- terms of numerous grants from the tended its power in the control of gov- came a source of revenue for general 14th century to the 17th century re- ernment expenditures and the ear- purposes. quired the application of customs re- marking of appropriations of money for Feudal charges were levied by kings ceipts to the defense of the country particular purposes. Almost always it before the creation of Parliament and against invasion and to the protection was specified that general taxes to the appropriated for specific purposes. For of ships against pirates and hostile na- king were for national defense, a part example, scutage, a tax levied upon a vies. The preamble to the subsidy Act of the custom on wool was to be used tenant of a knight’s fee in commuta- of 1558–9 quoted Edward I as having for the maintenance of Calais, as I have tion for military service, was assigned recognized that his predecessors ‘‘tyme earlier stated, and the tunnage and to the financing of military measures. out of mynde have had enjoyed unto poundage tax was to be spent for such Funds collected to buy Richard I’s free- them, by authoritie of Parliament, for specific purposes as the navy and ‘‘the dom were paid into a special ‘‘excheq- the defence of the Realms and the safeguarding of the sea and in no other way.’’ The royal income was to be used uer of ransom.’’ The Saladin tithe was happy saulfguarde of the Seas’’ the pro- for the expenses of the royal household. applied to financing the costs of a cru- ceeds of customs charges on certain sade, as were specific grants for Holy During the Commonwealth, the goods. House exercised full control over gov- Land conquests in 1201, 1222, and 1270. Following the Restoration in 1660, ernment expenditures, and after the In 1315, the Barons successfully in- Commons aimed at keeping Charles II Restoration in 1660, the House claimed, sisted that Edward II’s personal ex- short of funds to prevent the mainte- and Charles II grudgingly conceded, the penditures be limited to Pounds Ster- nance of a large standing army in time right of appropriation in the Appro- ling, 10 a day. By Edward III’s day of peace. This was in contrast to their priation Act of 1665. From that time, it (1327–1377), it was becoming customary willingness to make grants for the became an indisputable principle that to attach conditions to money grants. navy, and they took precautions to en- the moneys appropriated by Par- Parliament often insisted that the sure that appropriations for the Navy liament were to be spent only for the money granted should be spent for cer- were spent for that purpose and no purposes specified by Parliament. tain specified purposes, and for no oth- other, as, for example, in 1675, it was Since the reign of William and Mary ers. provided that the funds ‘‘for building (1689–1701), a clause was inserted in the In 1340, a grant was made by Com- ships shall be made payable into the annual Appropriation Act forbidding— mons to the king on the condition that Exchequer, and shall be kept separate, forbidding under heavy penalties— it ‘‘shall be put and spent upon the distinct, and apart from all other mon- Lords of the Treasury to issue, and of- Maintenance and Safeguard of our said ies, and shall be appropriated for the ficers of the Exchequer to obey, any Realm of England, and on wars in Scot- building and furnishing of ships, and warrant for the expenditure of money land, France, and Gascoign, and in no that the account for the said supply in the national treasury, upon any places elsewhere during the said Wars.’’ shall be transmitted to the Commons service other than that to which it was In 1344, a two-year subsidy was granted of England in Parliament.’’ distinctly appropriated. and appropriated specifically for the The principle of appropriating the The right of Parliament to audit ac- war in France and for defense of the supplies (sums of money) for specific counts followed, as a natural con- North against invasion by the Scots. purposes only, instead of placing the sequence, the practice of making an- Two years later, and again in 1348, it funds without reserve into the king’s nual appropriations for specified ob- was stipulated that the aid must be hands, dates back at least as far as jects. Even as early as 1340, a commit- used for defence against the Scots. Par- 1340. Here, then, as early as the mid- tee of Parliament was appointed to ex- liament granted a subsidy to Richard II 1300’s—650 years ago—was the begin- amine into the manner in which the in 1382 with the express provision that ning of the current system of congres- last subsidy had been expended. Henry it go to ‘‘the improvement of the sional appropriations as we know it. IV resisted a similar audit in 1406, but defence of the realm of England and Members of Congress should be aware in 1407 he conceded Parliament’s right the keeping and Governance of his of the venerableness of this aspect of to look at the ways the appropriations Towns and Fortresses beyond the Sea.’’ the modern appropriations process. It were spent. Such audits became a set- The expenses of Henry IV’s coronation, was not something that was conceived tled usage. who reigned from 1399 to 1413, were just yesterday and did not just come These two principles—that of appro- funded by a special appropriation. out of the woodwork. priations and that of auditing—were Sometimes, treasurers were ap- After the Commons and Lords sepa- united by the framers in a single para- pointed for overseeing a particular sub- rated into two houses in the early graph of Article I, section 9, of the U.S. sidy to ensure that the money was 1300’s, around 1339, 1340, and 1341, the Constitution: ‘‘No Money shall be spent in accordance with the terms House of Commons reserved to itself drawn from the Treasury, but in Con- specified in the appropriations. Ship the power to initiate tax and money sequence of Appropriations made by money was levied in early times in port bills. Law; and a regular Statement and Ac- cities to provide for naval maintenance In 1395, the grant to the king, Rich- count of the Receipts and Expenditures and upkeep, the assumption being that ard II, was made ‘‘by the commons of all public Money shall be published the ports were the primary bene- with the advice and consent of the from time to time.’’ ficiaries of a strong navy and were lords.’’ It started out in the commons. So, Mr. President, as we can see, leg- safeguarded from invasion by it. In In 1407, the king—Henry IV, the former islative control over taxation bears S2936 CONGRESSIONAL RECORD — SENATE March 27, 1996 close relation to the history of Par- fied when Charles acted to levy ton- conflicts between kings and people— liament. The witenagemot possessed nage and poundage without parliamen- the evolution of chartered rights and the right of advice and consent regard- tary authority. After the House of liberties, and the development of Par- ing taxation, although the right was Commons passed the Petition of liament in the island home of those probably exercised only rarely because Rights, it also moved to curb the hardy forebears who crossed the Atlan- the royal needs in the Anglo-Saxon era King’s power to raise revenue from cus- tic to plant new homes in the wilder- were normally supplied by income from toms duties, precipitating another ness and who transplanted to the Eng- royal farms, fines, and payments in clash with Charles. lish colonies of the New World the fa- kind or the quasi-voluntary tribute Charles I tried to govern without miliar institutions of government paid by the kingdom to its sovereign. Parliament by resorting to various which would assure to them the rights The Norman kings exacted feudal aids means of raising revenue. Additional and liberties which they, as British and other special varieties of taxation, Knighthoods were created, requiring subjects in a new land, held to be their retaining and adding to the imposts of the beneficiaries to pay a fee to the due inheritance. Saxon kings. But there is scant evi- King. Those who refused were fined. The U.S. Constitution was, in many dence as to what extent the council Other efforts to raise money led to in- ways, the product of many centuries— was asked by the kings. Although a tax creased resentment from citizens and many centuries—and it was not so in the reign of Henry I (1100–1135) was threw the country into a state of crisis. much a new and untried experiment as described as the ‘‘aid which my barons Charles lost both his throne and his it was a charter of government based gave me,’’ it appears that until the head. to some extent on the British arche- time of Richard I (1189–1199), the king The Bill of Rights, to which William type, as well as on State and colonial usually merely announced in assembly III and Mary were required to give models which had themselves been in- the amounts needed and the reasons for their assent before Parliament would fluenced by the British example and by his imposing subsidies. By the feudal make them joint sovereigns, declared the political theories of Montesquieu doctrine, the payer of a tax made a vol- ‘‘that levying money for or to the use and others, who believed that political untary gift for relief of the wants of his of the crown, by pretense of preroga- freedom could be maintained only by ruler. tive, without grant of Parliament, for separating the executive, legislative, Magna Carta (1215) provided that, ex- longer time, or in other manner than and judicial powers of government, cept for three feudal aids, no tax the same is or shall be granted, is ille- which powers, when divided, would should be levied without the assent of gal.’’ check and balance one another, thus a council duly invoked. But as the bur- It was the violation of this constitu- preventing tyranny by any one man, as den of taxation increased, the necessity tional principle of taxation by consent had been the case in France. for broadening the tax base to all class- of the taxpayers, through their chosen Moreover, unlike the British Con- es of society also increased. Hence, the representatives, that led to the revolt stitution, which, as I say, was, gen- establishment of the representative of the colonies in America. The Dec- erally, an unwritten constitution con- system is Parliament had its essential laration of Independence explicitly sisting of written charters, common origin in the necessity for obtaining names, as one of the reasons justifying law principles and rules, and petitions the consent, by chosen proxy, of all separation from England, that of her and statutes of Parliament, the Amer- who were taxed. After the ‘‘Confirma- ‘‘imposing taxes on us without our con- ican Constitution was a single, written tion of the Charters’’ in 1297, the right sent.’’ document that was ratified by the peo- of the people of the realm to tax them- There is, then, a certain historic fit- ple in conventions called for the pur- selves through their own chosen rep- ness in the fact that first among the pose. resentatives became an established powers of Congress enumerated in Arti- In a real sense, therefore, the U.S. principle. The Petition of Rights, re- cle I, section 8, of the Constitution is Constitution was an instrument of gov- luctantly agreed to by Charles I in 1628, the power ‘‘to lay and collect taxes.’’ ernment that was the result of growth emphatically reaffirmed the principle. The power to appropriate monies is and experience and not manufacture, Charles had attempted a forced loan in also vested by Article I solely in the and its successful ratification was, in 1627 to meet his urgent money needs. legislative branch—nowhere else; not considerable measure, due to the re- This was, in effect, taxation without downtown, not at the other end of spect of the people for its roots deep in the past. The mainspring of the con- parliamentary sanction, and many re- Pennsylvania Avenue, but here in the stitutional system of separation of fused to contribute, whereupon Charles legislative branch. arbitrarily imprisoned several persons Mr. President, we have all perhaps powers and delicate checks and bal- who would not pay. When he called been subject to the notion that the ances was the power over the purse, Parliament into session the next year, Federal Constitution with its built-in vested—where? Here in the legislative branch. That power guaranteed the twenty-seven members of the new systems of checks and balances, was an independence and the freedom and the house had been imprisoned for failure isolated and innovative new instru- liberties of the people. ment of government which sprang into to pay the forced loan. When Charles James Madison, who is justly called demanded the money he so desperately existence—sprang into existence—dur- the father of the Constitution, summed needed, the commons paid no atten- ing three months of meetings behind up, in a very few words, the signifi- tion. They decided almost at once to closed doors in Philadelphia, and that cance of the power over the purse in put their major grievances in a Peti- it solely was the product of the genius the preservation of the people’s rights tion of Rights. Among these, the Peti- of the Framers who gathered there be- and liberties, and the fundamental im- tion asked that arbitrary imprison- hind closed doors to labor to make it portance of the retention of that power ment should cease and that arbitrary come about. However, as I have also by the people’s elected representatives taxation should cease and ‘‘no man said heretofore, American constitu- in the legislative branch. hereafter be compelled to make or tional history can only be fully under- He did this in the Federalist No. 58, yield any gift, loan, benevolence, tax, stood and appreciated by looking into in which he referred to the House of or such like charge, without common the institutions, events, and experi- Representatives and said: consent by Act of Parliament.’’ When ences of the past out of which the or- They in a word hold the purse; that power- Charles granted the Petition of Rights, ganic document of our nation evolved ful instrument by which we behold in the the Commons voted him taxes. and took unto itself a life and soul of history of the British constitution, an infant The insistence by Charles I that he its own. and humble representation of the people, possessed a divine right to levy tax- To ascertain the origin of the Con- gradually enlarging the sphere of its activity ation and could seek funds directly stitution, then, it must be sought and importance, and finally reducing, as far from citizens, created the conditions among the records treating of the as it seems to have wished, all the overgrown prerogatives of the other branches of the for civil war in England. James I had fierce conflicts between kings and peo- government. This power over the purse, may decided to raise revenue by imposing ple—it cannot be found just in Madi- in fact be regarded as the most compleat and an import duty on almost all merchan- son’s notes, but it must be sought effectual weapon with which any constitu- dise, and the political struggle intensi- among the records of treating fierce tion can arm the immediate representatives March 27, 1996 CONGRESSIONAL RECORD — SENATE S2937 of the people, for obtaining a redress of every carrying into effect every just and sal- cost $1, I think, now. There it is, well- grievance, and for carrying into effect every utary measure.’’ worn, taped together, and pretty well just and salutary measure. Thus, the founders of this republic marked up. But that is my contract Let me repeat just the last portion of left no doubt as to what branch of the with America. the words by Madison. government had control over the purse So I have taken an oath many times This power over the purse, may in fact be strings. The Executive was not given to support and defend this contract regarded as the most compleat and effectual any control over the purse strings, with America, the Constitution of the weapon with which any constitution can arm with the single exception of the right United States, and I do not intend to the immediate representatives of the people, of the President to veto, in its en- renege on my sworn oath by supporting for obtaining a redress of every grievance, tirety, a bill—any bill—and in this case this conference report. It is a mal- and for carrying into effect every just and a bill making appropriations. salutary measure. formed monstrosity, born out of wed- There was little discussion of the lock. Although the House voted on this Mr. President, the elected represent- Presidential veto at the convention, as version of the so-called line-item veto, atives of the people in this body should a reading of the convention notes will the Senate did not. That is why I would remember those weighty words by show. There was absolutely no discus- say it was born out of wedlock. Madison, the father of the Constitu- sion whatsoever with reference to a It is a profanation of the temple of tion. If they wish to know the value of line item veto or any such modification the Constitution which the Framers constitutional liberty, they might re- thereof as we are now contemplating. built, and it will prove to be an ignis tire to those words and read. Henry Clay, one of the greatest Sen- fatuus in achieving a balanced budget. Mr. President, to alter the constitu- ators of all time, in a Senate Floor Its passage will effectuate a tremen- tional system of checks and balances, speech on January 24, 1842, referred to dous shift of power from the legislative by giving the executive—any execu- the veto as ‘‘this miserable despotic branch to the Executive Branch, and it tive, any President, Democrat or Re- veto power of the President of the will be used as a club to be held over publican—a share in the taxing or ap- United States.’’ That is what he the head of every member of the United propriations power through the instru- thought of a Presidential veto. It is not States Senate and House of Represent- ment of an item veto or enhanced re- hard to imagine what Henry Clay atives by power hungry Presidents who scission would, in my view, be rank would think of this conference report will seek to impose their will over the heresy. As we have seen, the entrusting that is before the Senate today. legislative process to the detriment of of the power over the purse to the leg- It is ludicrous—nay, it is tragic—that the American people, whose elected islative branch was no accident of his- we are about to substitute our own representatives in Congress will no tory but rather the result of over 600 judgment for that of the Framers with longer be free to exercise their judg- years of contest with royalty. To chisel respect to the control of the purse and ment as to what matters are in the away this rock, that through bloody the need to check the Executive. Yet, best interests of the states and the peo- centuries has undergirded the hard- that is precisely what we are about to ple whom they serve. won, cherished rights of freemen in do here today. We are about to suc- This so-called line-item veto act England and in America, should be cumb, for political reasons only, to the should be more appropriately labeled anathema to any informed and mania which has taken hold of some in ‘‘The President Always Wins Bill.’’ thoughtful citizen in these United this and the other body to put that From now on, the heavy hand of the States. most political of political inventions, President will be used to slap down To quote Aristotle: ‘‘Of all these the so-called ‘‘Contract with America’’ Congressional opposition wherever it things the judge is Time.’’ From our into law. may exist. Yet, I have no doubt that vantage point, then, Mr. President, as Saying this, I do not question but this measure will pass. Political expe- we take the long look backwards into that some Senators genuinely, sin- diency will be the order of the day, for the murky past, history clearly teach- cerely, and conscientiously believe we are like Nebuchadnezzar, dethroned, es us that the power over the purse— that this is the right thing to do, and bereft of reason, and eating grass like the power to tax and to appropriate that this is the way to get a handle on an ox. funds—wisely came to be lodged, more the budget deficits. ‘‘O, that my tongue were in the thun- than 600 years ago, in the directly To quote Homer in ‘‘The Iliad’’: ‘‘Not der’s mouth! Then with a passion would elected representatives of the people; if I had ten tongues and ten mouths, a I shake the world.’’ that this principle lies at the founda- voice that could not tire, lung of brass The efforts of those who oppose this tion, and is a chief source, of our lib- in my bosom’’, would I be able to per- surrender of power to the President erties; and that it is not a power that suade those who are motivated by po- may be likened to the last stand of should be shared by a king or a Presi- litical expediency that future genera- General George Armstrong Custer, who dent. tions will condemn their shortsighted- with 200 of his followers, were wiped That our own Constitutional Fram- ness and hold them responsible for the out by the Indians at the Battle of the ers clearly intended for the power over damage to our constitutional system Little Big Horn, in Montana, in 1876, the purse to be solely in the hands of that will be wrought by this radical but I see this as the Battle of the ‘‘Big the elected representatives of the shift of power from the legislative to Giveaway’’, and I do not propose to go American people, we have only to re- the executive branch. ‘‘Who saves his along. view the words of Madison and Hamil- country, saves all things, saves him- As a matter of fact, I do not believe ton as they appeared in the Federalist self, and all things saved do bless him; that it is within the capability of Con- Papers. Who lets his country die, lets all things gress to give away such a basic Con- Hamilton in the Federalist #78 stat- die, dies himself ignobly, and all things stitutional power as the control over ed: ‘‘The legislature not only com- dying curse him.’’ the purse strings, because that is the mands the purse, but prescribes the Most Presidents in recent times have fundamental pillar upon which rests rules by which the duties and rights of espoused the line-item veto. I fought the Constitutional system of separa- every citizen are to be regulated.’’ against surrendering this power to tion of powers and checks and bal- Madison in the Federalist #48 stated, President Reagan, I fought against sur- ances. ‘‘The legislative department alone has rendering the power to President Bush, I know there are those who say that access to the pockets of the people.’’ In and I just as fervently oppose giving it will only be for 8 years—from Janu- Federalist Paper #58—as I have already President Clinton—or any other Presi- ary 1, 1997, to January 1, in the year pointed out—Madison stated: ‘‘This dent—a line-item veto or any modifica- 2005. Senators will note that the bill power over the purse may, in fact, be tion thereof. I have taken an oath does not take effect upon passage, upon regarded as the most compleat and ef- many times to support and defend the enactment, the reason being that the fectual weapon with which any con- Constitution of the United States. My majority party does not want to give stitution can arm the immediate rep- contract with America is the Constitu- this President this line-item veto. He resentatives of the people, for obtain- tion of the United States. I paid 15 may use it against them. And so they ing a redress of every grievance and for cents for this copy several years ago. It have crafted the date to follow the next S2938 CONGRESSIONAL RECORD — SENATE March 27, 1996 election so that if President Clinton is Nero, who reigned from 54 to 68 A.D., agers on the part of the conferees of able to use this ill-begotten measure at after he had heard that the Senate had both Houses. This approach is actually all, he would have to be reelected be- condemned him to death, begged that far more effective in getting at ‘‘presi- fore he can do it. So they say it will someone would give him courage to die dentially-deemed’’ unacceptable spend- only be for 8 years. by dying before him as an example. ing than would be a direct line-item I do not believe that the constitu- When he perceived that the horsemen veto authority. This is so because bill tional powers of Congress can be so were drawing near, he upbraided his language does not lend itself to speci- cavalierly shifted to the executive own cowardice by saying, ‘‘I die shame- ficity, and line-item veto authority branch, whether it be for 8 years or for fully.’’ So saying, he drove the steel would force the President to eliminate 1 year or for 6 months. into his own throat and thus, says large lump sums in order to get at spe- It is instructive to reflect on what John of Salisbury, came to an end the cific items he did not like, when per- George Washington had to say about whole house of the Caesars. haps he was in agreement with most of checks and balances and separation of Here, now, we see in the proposal be- the spending in the lump sum. powers in his Farewell Address, and I fore us, the Legislative Branch being The conference report would have the shall quote therefrom: ‘‘It is important offered the dagger by which, with its effect of stripping from the people’s that the habits of thinking in a free own hands, it too may drive the steel elected representatives, in Congress— country should inspire caution in those into its own throat and thus die shame- the President is not directly elected by entrusted with its administration to fully. the people. The President is indirectly confine themselves within their respec- I say to Senators, beware of the hem- elected by the people. We are the elect- tive constitutional spheres, avoiding in lock. Let us pause and reject this ed representatives of the people. And the exercise of the powers of one de- measure lest the ‘‘People’s Branch’’ here, in this forum of the States, we partment, to encroach upon another. suffer a self-inflicted wound that would represent the States and the people. The spirit of encroachment tends to go to the heart of the Constitutional It would take much of that power consolidate the powers of all the de- system of checks and balances—the and place it, instead, in the hands of partments in one, and thus to create, power over the purse, a power vested the occupant of the Oval Office and his whatever the form of government, a by the Constitution in the Legislative unelected bureaucrats. This conference real despotism. * * * The necessity of Branch, and in the Legislative Branch report effectively places in the hands reciprocal checks in the exercise of po- only. of the President and unelected bureau- litical power, by dividing and distribut- Section 9, article I of the Constitu- crats—I do not use those words pejora- ing it into different depositories, and tion says, ‘‘No money shall be drawn tively, but they are unelected and they constituting each guardian of the pub- from the Treasury, but in consequence are bureaucrats. And we have to have lic weal against invasions of the oth- of appropriations made by law.’’ And in them. But, it places in the hands of the ers, has been evinced by experiments the very first section of article I, it President and unelected bureaucrats, ancient and modern * * * To preserve says, ‘‘All legislative powers herein ultimate control over the Nation’s fi- them must be as necessary as to insti- granted shall be vested in a Congress of nances. tute them. If, in the opinion of the peo- the United States, which shall consist I implore Senators, I beseech, I im- ple, the distribution or modification of of a Senate and a House of Representa- portune Senators to carefully read the the constitutional powers be in any tives.’’ conference report, to see how this is particular wrong, let it be corrected by So here is where the power is vested done. It is all plainly there in black an amendment in the way which the to pass a law, to enact a law, to amend and white. And it is a ‘‘heads-I-win, Constitution designates.’’ a law. But this conference report will tails-you-lose’’ proposition for the It is my firm belief that we are about change that. It will place into the President of the United States. It is an to enact legislation that is clearly un- hands of the Chief Executive a power eye opener. Read it, Senators. constitutional, and I fervently hope which in essence will be a power to Section 1021(a) of this conference that it will be struck down by the amend not only a bill but a law. A bill agreement would allow the President courts. But it might not be. In any which has already been signed into law to cancel in whole—(1) any dollar event, this possibility does not relieve by the President can then within the amount of discretionary budget au- us of our own responsibility to make a next 5 days be amended almost single thority; (2) any item of new direct judgment regarding the constitutional- handedly by him by way of the rescis- spending—see, it does not get into enti- ity of a measure which we are about to sions process which is a loaded dice tlements that are already in the law, enact. Our oath to support and defend procedure. He cannot lose. and they are what is causing the budg- the Constitution against all enemies, Now, let us take a look at this con- et deficits, but they escape the reaches foreign and domestic, requires no less ference report and examine it. of this conference report—any item of of us than this. But I fear that the die, For the record, let it be noted that new direct spending; or (3) any limited as Caesar said in the year 49 B.C. as he this measure is not a true line-item tax benefit; as long as the President stood before the Rubicon, is cast. Be- veto. A true line-item veto would allow notifies the Congress ‘‘within 5 cal- fore this day has ended, the Senate will the President to actually line out endar days (excluding Sundays) after have turned its back in all probability items with which he did not agree in an the enactment of the law providing the on the Constitution and partially appropriations bill or, depending on dollar amount of the discretionary disenfranchised the very people we are how such legislation were to be writ- budget authority, item of new direct charged to represent, and it will have ten, in any other bill that would come spending, or limited tax benefit that done so to its own great shame. across his desk for signature. was canceled.’’ The Policraticus of John of Salis- And in some States he may not only Now let us look at section 1023(a), bury, completed in 1159, we are told, line out the item but he may reduce which states, in part: ‘‘is the earliest elaborate mediaeval the item. He may line out language. The cancellation of any dollar amount of treatise on politics.’’ In it, we find a But we are talking about the line-item discretionary budget authority, item of new reference to the House of Caesar and an veto on the Federal level. direct spending, or limited tax benefit shall account of the means by which each in The measure before us would allow take effect upon receipt in the House of Rep- this line of Roman rulers came to his the President not to line out items in resentatives and the Senate of the special message notifying the Congress of the can- end. Julius, as we all know, was done a bill, but rather to send special mes- cellation. to death in 44 B.C., at the hands of Bru- sages to Congress deleting or rescind- Once the message comes in the door, tus, Cassius, and others as they gath- ing certain items from bills after he the cancellation takes effect. ered on the Ides of March where the has signed them into law. Not only Senate was meeting. When Caesar saw that, but this measure will also allow If a disapproval bill for such special mes- sage is enacted into law, then all cancella- those about him with their daggers any President to rescind portions of tions disapproved in that law shall be null drawn, he veiled his head with his toga spending measures that are contained and void and any such dollar amount of dis- and drew down its folds over his eyes in their accompanying tables, commit- cretionary budget authority, item of new di- that he might fall the more honorably. tee reports, or statements by the man- rect spending, or limited tax benefit shall be March 27, 1996 CONGRESSIONAL RECORD — SENATE S2939 effective as of the original date provided in attempt an override. This time, how- the people would intend for our judg- the law to which the cancellation applied. ever, the Congress would be limited to ment and our votes to be summarily Section 1025(b) goes on to detail the five days of consideration. In any overruled or dismissed by a President— time period in which Congress must event, it would take a vote of two- this President or any other President. pass its rescission disapproval bill. The thirds of both Houses to override the Nor would I suspect that the people of conference agreement allows for: President’s veto of a disapproval bill. our various states would want the deck a Congressional review period of thirty cal- In other words, under this conference so stacked against their elected rep- endar days of session, during which Congress report, Congress may actually have to resentatives as to force us to muster must complete action on the rescission dis- pass an appropriation by a two-thirds votes of two-thirds of both Houses of approval bill and present such bill to the supermajority in both Houses, before Congress to overrule the President’s President for approval or disapproval; that appropriation could finally be judgment on a matter we thought im- an additional ten days (not including Sun- nailed into law. Is that what Senators days) during which the President may exer- portant for the good of our states. But, cise his authority to sign or veto the rescis- want? Are we truly intent on installing this conference report is rigged, and it sion disapproval bill; and minority rule in this country? In our deals the cards that way and leaves the if the President vetoes the rescission dis- efforts to help get spending under con- President and a minority in each body approval bill during the period provided, trol, are we running over the basic with the ultimate ace in the hole. Congress is allowed an additional five cal- principle of majority rule in the proc- Mr. President, what we are talking endar days of session to override the veto. ess? about here is a measure that would in- Allowing a presidential rescission to Additionally, by allowing the Presi- crease exponentially the already over- take effect unless specifically dis- dent—now, this is a radical departure whelming advantage that is held by the approved by the Congress has the force from any idea I have ever heard sug- Executive in his use of the veto power. of taking from a majority of the peo- gested with reference to a line-item Out of the 1,460 regular vetoes that ple’s representatives final say over how veto—by allowing the President to re- have been cast by Presidents directly tax dollars are spent. That is most cer- scind new budget authority in bills or over these past 208 years, only 105—or 7 tainly the impact, Mr. President, be- their accompanying tables, reports or percent—have been overridden in the cause under this conference report, for statements of managers, or charts, the entire course of American history. In all practical purposes, it would be nec- President’s veto power is no longer 208 years, from the Presidency of essary for Congress to marshal a two- limited to the various line-items in an George Washington, who vetoed two thirds majority in both Houses in order appropriations bill. In other words, this bills, and it was he who said the Presi- to enact any appropriation to which conference agreement would enable a dent has to veto the whole bill or sign the President might conceivably ob- President to rescind any new budget it or let it become law without his sig- ject. It is a stacked deck, and Congress authority contained in either an appro- nature. He cannot item veto it. That will lose every time. priations bill, or any table, report, or was George Washington. In 208 years Consider this scenario: Once the statement of managers accompanying from the Presidency of George Wash- House and Senate have passed an ap- any appropriation bills, by simply noti- ington right down through President propriations bill, the President can fying Congress of such rescissions by a Clinton today, Congress has only been then, if we were to adopt this con- special message not later than five cal- able to muster enough votes to over- ference report, use his new-found re- endar days after enactment of an ap- ride a President’s veto 105 times, 7 per- scission power to carve that appropria- propriations act. cent of the total. In this case, this so- tions bill up just the same as if he were So, he can go into this conference re- called enhanced rescission authority carving a Thanksgiving turkey—a lit- port—this does not go to the President requirement for a disapproval resolu- tle here, a little there; the dark meat for him to veto, the bill goes to the tion coupled with the President’s veto here, the white meat there. President for his signature or veto. power, creases a ‘‘heads I win, tails you After he or his bureaucrats decide, This conference report does not go. He lose’’ situation. over the will of a majority of the rep- never sees it. Nor does the statement of This overwhelming advantage on the resentatives of the people, what they the managers go, but he can reach into side of a President is magnified by the will carve out of duly enacted legisla- them through his bureaucrats who ad- fact that often the funds rescinded are tion, the President will then transmit vise him, ‘‘Mr. President, there is a likely to be of importance to only a few a special message to Congress. Once he chart in this conference report on page states or a single region. They may transmits his special message, Con- 27, and you will find in that chart a even be important to no more than a gress would have thirty days to pass a certain item for certain States or cer- single congressional district. If that is rescission disapproval bill. But since a tain regions of the country,’’ and he the case, then how many Members of disapproval bill is a direct denial of the can say, ‘‘Rescind them.’’ either House are going to be interested President’s request, and since the Congress’ goal should be to give in overriding the President’s veto? How President is the one who proposed the Presidents a stronger tool than they many Senators are going to think it is rescission in the first place, I think we now have to reduce unnecessary spend- worth standing up to the President and are safe in assuming that he would ing. But, I do not believe, Mr. Presi- voting against reducing the deficit for nearly always veto any such dis- dent, that we have to gut the power of the sake of one lonely House Member approval bill passed by both Houses. the purse in order to give the President or a handful of Senators or a few Mem- Therefore, it would be fairly pointless that new help. The approach outlined bers of the House? to even bring a disapproval bill to the in this conference agreement would Take, for instance, the following six Floor for a vote unless it had the sup- tend to arbitrarily substitute a Presi- States: Maine, with 2 votes in the port of two-thirds of the Senators and dent’s judgment about the needs of the House; New Hampshire, with 2 votes; two-thirds of the House of Representa- various individual states for the judg- Massachusetts, 10 votes; Vermont, 1 tives. And it will almost never have ment of the duly elected representa- vote; Rhode Island, 2 votes; and Con- that kind of support. This conference tives of those states and districts. I am necticut, with its 6 votes. Collectively, report loads the dice against Congress. sure that the people who vote to send those states have 23 votes in the House I used to play an old tune called, ‘‘I us here do so at least in part because of Representatives and 12 votes in the Am A Roving Gambler.’’ It did not say they feel we understand the needs of Senate. Those 35 individuals are going anything about that roving gambler the states we represent and the views to find it extremely difficult, if not im- having loaded dice. But this conference of the people of those states. I am possible, to interest two-thirds of the report loads the dice and the President equally sure that the people do not in- total House and Senate membership in will always win—always. And you and I tend for our judgment and our votes to overriding a presidential veto on an will always lose, and the people we rep- be summarily overruled. I do not think issue of concern only to the New Eng- resent will always lose. they intend that. I think if they really land region. The type of ‘‘divide and Subsequent to the President’s veto of understood this conference report, if conquer’’ strategy, which this con- the disapproval bill, Congress, of they really understood what we are ference report creates for the White course, would have the opportunity to about to do here, I do not think that House to use, would have a devastating S2940 CONGRESSIONAL RECORD — SENATE March 27, 1996 effect on the power of the purse, and by a careful reading of the report, and ever awake on land and on sea; its ac- the system of checks and balances, we ought not go down that road, be- tion is continuous and unceasing, like which is the very taproot of the Amer- cause there is no turning back. the tides of some mighty river, which ican constitutional system of govern- Mr. President, the most effective in- continues to flow on and on and on, ment. strument of restraint possessed by the swelling, and deepening, and widening, Not only will this conference report, legislative branch against a powerful in its onward progress, until it sweeps when enacted into law, militate and reckless President is the control away every impediment, and breaks against small rural states like my over the purse. For example, cutting down and removes every frail obstacle own—which can muster only three off the flow of funds for an activity is which might be set up to stay or slow votes in the other body—but it will be the surest way of checking unwise its course. a prescription for minority rule. For presidential use of power. We have seen The legislative branch sleeps but over 200 years, the theory undergirding that in the effective use of curtailing there stands the President at the head our republican system of government— funding in the example of our ill-ad- of the executive branch, ever ready to some people speak of ours as a democ- vised adventure in Somalia. enforce the law, and to seize upon racy. It is not a democracy. Ours is not I was the author of the amendment every advantage which presents itself a democracy. It would be impossible that drew the line which, in essence, for the extension and expansion of the for a government that extends over said, ‘‘All right, Mr. President, after executive power. And now, we are pre- 2,500 miles from ocean to ocean and has that date, if you want to stay, you paring here in the Senate to augment 250 million people to be a democracy. come back, make your case before Con- the already enormous power of an all- People should learn their high-school gress, and seek the money for it.’’ powerful chief executive by adopting a civics. Were the President to be granted en- conference report that will shift the This is a republican form of govern- hanced rescission authority, though, real power of the legislative branch to ment. And the theory undergirding our we would have seriously unbalanced the other end of the avenue and place republican system of government has the delicate system that was put in that power in his hands—to be used been that of majority rule. This con- place by the Constitution. We would against the legislative branch, to be ference report will substitute minority have ceded congressional control over used against the elected representa- rule for majority rule by requiring a the purse to an executive who could tives of the people in legislative mat- supermajority vote in both Houses to then use it to affect our ability to ters. It is as if the legislative branch adopt a disapproval measure overriding check misadventures in foreign or do- has been seized with a collective mad- a presidential veto of appropriations mestic policy by threatening impor- ness. The majority leadership in both passed initially by simple majorities in tant initiatives in one or more states Houses will have succeeded in enacting both Houses. A minority of 34 votes in or a region. a major plank in the so-called Contract the Senate will sustain a presidential The Framers of the Constitution With America. veto that may have already been given were induced to give to the President Mr. President, let me say once more, a two-thirds vote to override in the the veto power, and they did this for this is my contract with America: The other body. In other words, the Presi- two reasons: the first, was a desire to Constitution of the United States. It dent and 34 Senators can overrule the protect the executive against possible cost me 15 cents several years ago. It wishes of the other 66 Senators and 435 encroachments from the legislative can be gotten from the Government Members of the House—if this is not branch, and the other was a desire to Printing Office, not for 15 cents today, minority rule in the field of legisla- guard the country against the injuri- but perhaps for a dollar. That is my tion, what else may one call it? Do ous effects of hasty and bad judgment. contract with America. Senators wish to substitute minority Mr. President, it was a gross mis- The majority leadership in both rule for majority rule in the legislative apprehension on the part of the Fram- Houses will have succeeded in enacting process? ers who feared that the executive a major plank in its so-called Contract It is difficult to imagine why this branch would be too feeble to success- With America while it turns its back body would want to deal such a painful fully contend with the legislature in a on the Constitution—the real Contract blow, not only to itself, but to the struggle for power. Little did the Con- with America, which we have all sworn basic structure of our constitutional stitutional Framers dream that the to support and defend—and the major- form of government and to the inter- powers of the chief executive would ity party in Congress will forever carry ests of the people we represent. grow enormously with the passage of on its hands the stain of this Whether the President is a Democrat time. They could not foresee the pow- unpardonable and gross betrayal of the or a Republican is not my concern. ers that would flow to the President Constitution and its Framers. Whether one party or another is in through his patronage as titular head Let us contemplate the effect that power in the Congress is not my con- of a political party. Nor, of course, the passage of this conference report cern here. My concern is with unneces- could they foresee the power of the would have on the power of the chief sarily upsetting the balance of powers ‘‘bully pulpit’’ that would come with executive. At the present time, if all as laid out in the Constitution, and the invention of radio and television Senators are voting, 51 Senators are re- this conference report simply gives and modern telecommunications, quired to constitute a majority in the away much of the congressional con- which enable the President, at the snap passage of a bill, while in the other trol over the purse strings to a Presi- of a finger, to summon before him for body 218 Members are required to con- dent. immediate disposal the advantages of stitute a majority in the passage of What is fundamentally at stake here the modern news media which enable that same bill. If the bill is vetoed, is the division of powers between the him to appeal directly to the American then two-thirds of the Senate, or 67 executive and legislative branches of people with one voice. The fears of the votes, if all Senators are present and Government, and the dangerous effects Framers, in this respect, were not only voting, will be required to make that of instituting minority government. unfounded, but the constant encroach- bill become a law over a presidential This is not a disagreement over reduc- ment, which they were concerned veto. In other words, that veto by one ing the deficit, or over giving the about, has not been by the legislative man in the Oval Office will be worth President some additional power to branch on the executive but has been the vote of 16 additional Senators, help do that. It is a disagreement over just the opposite—there has been a while in the House that presidential disrupting the people’s power over the constant erosion by the executive of veto by one man will be equal to 72 purse beyond what is necessary to ac- the legislative authority. votes—a supermajority of 218 being re- complish our deficit reduction goal. The legislative branch of Govern- quired to pass the bill, and a If we enact this conference report ment meets periodically; its power lies supermajority of 290 being required to into law, control of the Nation’s purse in its assembling and acting; the mo- override a presidential veto, or a dif- strings by a majority in the legislative ment it adjourns, its power disappears. ference of 72 votes. In other words, a branch would be severely impaired. But the executive branch of the Gov- veto cast by a single individual who That is a fact. It can be demonstrated ernment is eternally in action; it is holds the presidency, will be worth the March 27, 1996 CONGRESSIONAL RECORD — SENATE S2941 votes of 88 members of the House and for granted.’’ So the judges are con- speech. It is going to constitute an in- Senate. Is this not enough, Mr. Presi- cerned about judicial independence. I hibition on the independence of judges. dent, that he would wield so vast and am concerned about the independence That is what this judge feared. I say it formidable an amount of patronage, of lawmakers once this conference re- will constitute an inhibition on free- and thereby be able to exert an influ- port becomes law. dom of speech in both Houses, an inhi- ence so potent and so extensive? Must Plutarch tells us that Eumenes came bition on a Member’s casting of votes there be superadded to all of this into the assembly, and delivered him- on administration policies, an inhibi- power, a legislative force equal to that self in the following fable. It was a tion on every Member’s free and of 16 Senators and 72 members of the fable about a lion. ‘‘A lion once, falling untrammeled independence in carrying House of Representatives? in love with a young damsel, demanded out his duties and responsibilities to- I have viewed the veto power simply her in marriage of her father. The fa- ward the constituents who send him or in its numerical weight, and the aggre- ther made answer, that he looked on her here. What Senator is willing to gate votes of the two Houses, but there such an alliance as a great honor to his surrender his independence of thought is another important point of view family, but he stood in fear of the and action and speech—we will see—to which ought to be considered. It is sim- lion’s claws and teeth, lest, upon any an already all-powerful executive, ply this: the veto, armed with the con- trifling dispute that might happen be- made more powerful by a major share stitutional requirement of a two-thirds tween them after marriage, he might in the control of the purse strings vote of both Houses in order to over- exercise them a little too hastily upon given to him by this conference report, ride, is nothing less than an absolute his daughter. To remove this objection, a power that no Chief Executive has power. In all of the vetoes over the past the amorous lion caused both his nails heretofore, in the course of over 200 2 centuries, as I have said, only about and his teeth to be drawn immediately; years, shared. 7 percent of the regular vetoes have whereupon, the father took a cudgel, The political leadership of the major- been overridden. When it comes to and soon got rid of his enemy. This,’’ ity party in this Congress may reap overriding the vetoes of bills of dis- continued Eumenes, ‘‘is the very thing temporary political gain from the en- approval of presidential rescissions, aimed at by Antigonus, who is liberal actment of this unwise measure, but the President’s veto will constitute vir- in promises, till he has made himself the damage that will have been done to tually an unqualified negative on the master of your forces, and then beware our constitutional system of checks legislation of appropriations by Con- of his teeth and claws.’’ and balances will constitute a stain gress. If nothing can set it aside but a Mr. President, President Clinton upon the escutcheon of the Congress vote of two-thirds in both Houses, that wants this conference report. President for a long time to come. As the Roman veto of disapproval bills might as well Bush would have liked to have had it. Senator Lucius Postumius Megellus be made absolute and now because that President Reagan wanted it. All Presi- said to the Tarentines: ‘‘Men of is what it will amount to. The Con- dents, with the exception of President Tarentum, it will take not a little stitutional Framers did not intend for Taft, have wanted the veto power. So blood to wash this gown.’’ It will take such raw power over the control of the perhaps this President is about to be not a little blood to wash this gown. purse strings to be vested in the hands given the power which he will not be The majority party may reap an im- of any chief executive. able to exercise, however, under its mediate and temporary political gain Do Senators know what they are phraseology, unless and until he is re- from this action, but in ‘‘reaching to doing when they vote to adopt this elected for the second term. take of the fruit’’ of this amendment, conference report? They are voting Mark my words, Mr. President, once its proponents—like those in Milton’s willingly to diminish their own inde- he gets it—or any other President— ‘‘Paradise Lost’’—will ‘‘chew dust and pendence as legislators. No longer will then beware of his teeth and claws. bitter ashes.’’ they feel absolutely independent to Senator BYRD, you will not be as inde- In a March 10, 1993, hearing before speak their minds concerning any pendent in your exercise against free- the House Government Operations President, any administration or ad- dom of speech, against the policies of Committee, Mr. Milton Socolar, Spe- ministration policies in their speeches an administration, once that President cial Assistant to the Comptroller Gen- on this Floor, and no longer will they has in his power this weapon. Beware eral of the United States, stated ‘‘pro- exercise a complete and uninhibited of his teeth and claws. Senator BYRD, posals to change the rescission process independence from the chief executive you might not have voted against Clar- should be viewed primarily in terms of when casting their votes on matters ence Thomas if the President had this their effect on the balance of power be- other than appropriation bills because effective weapon in his arsenal. I do tween the Congress and the President they will know that the President, not know about that. with respect to discretionary program with this new and potent weapon in his In other words, Mr. President, this priorities.’’ He went on to say that en- arsenal, can punish them and their power of rescinding discretionary hanced rescission authority ‘‘would constituencies for exercising their own spending will not be used by a Presi- constitute a major shift of power from free independence in casting a vote dent to reduce the deficit. It is not a the Congress to the President in an against administration policies, deficit-reducing tool because it does area that was reserved to the Congress against presidential nominees, against not get at entitlements, past entitle- by the Constitution and historically approval of the ratification of treaties. ments. They are one of the real causes has been one of clear legislative pre- Now, Mr. President, I find in the New of the deficit. This conference report rogative.’’ York Times of today that not only I does not get to them. It is not a deficit- Mr. President, once this shift of am concerned about this loss of inde- reduction tool. Discretionary spending power to the President takes place, it pendence that we will suffer if we adopt has already been cut to the bone. Enti- will not be recovered by the legislative this conference report. In today’s New tlement spending, which is a real cause branch. Any bill to take it away from York Times, I find an article by Robert of growth in the deficits cannot be the President will be vetoed summarily Pear titled ‘‘Judges’ Group Condemns touched under this conference report. and the prospects of overriding such a Line-Item Veto Bill.’’ No. This new power of rescissions will veto would be practically out of the I will just read one paragraph as an be used by a President to threaten and question. excerpt therefrom. Here is what Judge coerce and intimidate members of the The moving finger writes; and, having writ, Gilbert S. Merritt, chairman of the Ex- legislative branch to give the President moves on; nor all your piety nor wit ecutive Committee of the Judicial Con- what he wants or he will cut the shall lure it back to cancel half a line, ference, has to say: ‘‘Judges were given projects and programs that our con- nor all your tears wash out a word of it. life tenure to be a barrier against the stituents need and want. It will be a Senators should think long and hard wind of temporary public opinion,’’ sword of Damocles suspended over before they agree to trade the long- said Judge Merritt. ‘‘If we didn’t have every Member. term harm that will be done to the judicial independence, I’m not sure we This conference report, when it is ex- structure of our government for the could maintain free speech and other amined in its minutest detail, will con- short-term gain that might or might constitutional liberties that we take stitute an inhibition on freedom of not come from passage of this bill. We S2942 CONGRESSIONAL RECORD — SENATE March 27, 1996 should all stop and think about our COMPTROLLER GENERAL President uses to rescind, or terminate, Constitution, its system of checks and OF THE UNITED STATES, appropriated funds. That process takes balances, and the wisdom of the Fram- Washington, DC, July 23, 1992. place after the President signs a bill ers who placed the power of the purse Hon. ROBERT C. BYRD, into law. It does not operate when he is Chairman, Committee on Appropriations, U.S. here in this institution. We should all Senate. signing a bill, as is the case with the take the time to reread the Constitu- DEAR MR. CHAIRMAN: This is in response to real item veto used by governors. It is tion, particularly those who may not your recent letter concerning our report on a misnomer to call this bill an item have done so lately. We should reread the line item veto. veto. it, and think about what that great In reviewing the report and the way it has Why do we not talk straight to the document says before we agree to hand been interpreted, it is now apparent that we American people? Do we think they are the type of enhanced rescission author- were not sufficiently clear about the purpose unable to understand what we do in of the report or what we judged to be its im- Washington, DC? How can we justify ity contained in this conference report plications. over to the executive branch. Let me emphasize that the analysis was using false language and false con- Mr. President, press reports tell us not an attempt to predict what would have cepts? This bill has nothing to do with that this so-called item veto bill would happened if the President were granted line an item veto. It is a change in the re- give the Republicans their biggest leg- item veto or line item reduction authority, scission process. only to define the outer limits of potential This executive attitude of ‘‘We know islative achievement of the 104th Con- item veto savings during a particular period best’’ persists from decade to decade. gress. What a sad commentary to think as a way of testing the assertion that item The President’s Economic Report for that a bill of this quality, surrendering veto authority would permit a President to 1985 includes a discussion about the legislative power—the people’s power achieve a balanced budget. pros and cons of the item veto. It ad- through their elected representatives— Having defined an outer boundary for the mits that there is little basis to con- and legislative responsibility to the possible budgetary savings from a hypo- clude from the State experience that President, and a bill so poorly drafted thetical line item veto, it necessarily follows an item veto would have a substantial that we can only guess how it will be that the actual savings from such veto power are likely to have been much less than this. effect on Federal expenditures. In fact, implemented, is considered an achieve- As you suggest in your letter, there are sev- it says that ‘‘per capita spending is ment. I cannot believe that the 104th eral reasons to believe that this would have somewhat higher in States where the Congress is so bereft of accomplish- been the case: Governor has the authority for a line- ment that this bill represents its The President might not have applied the item veto, even corrected for the major crowning glory. veto to every item to which objections were raised in the Statements of Administration conditions that affect the distribution Supporters of the item veto bill Position (SAPs). of spending among States.’’ claim that it gives the President an es- Some vetoes might have been overridden There are other constitutional prob- sential tool in deleting ‘‘wasteful’’ fed- by the Congress. lems with this bill. First, this bill will eral projects and activities. Let us not Some, perhaps all, of the savings resulting have a serious impact on the independ- deceive ourselves or the voters. There from successful item vetoes might have been ence of the Federal judiciary. With en- is not the slightest basis in our politi- spent for other purposes which were either hanced rescission authority the Presi- cal history for believing that Presi- acceptable to the President or commanded dent can delete judicial items, perhaps dents are peculiarly endowed by nature sufficiently broad support in the Congress to override a veto. for punitive reasons. He has no such to oppose federal spending. Presidents Thus, depending on how the President authority now. like to spend money. They like propos- chose to use the hypothetical item veto Second, this bill contains a number ing expensive new projects and pro- power and how the Congress responded, it of legislative vetoes declared unconsti- grams, and they like to wield power, seems likely that the actual savings could tutional by the Supreme Court in the especially over the Members of the leg- have been substantially less than the maxi- 1983 Chadha case. The Court said that islative branch. The national highway mum and maybe, as you have suggested, whenever Congress wants to alter the system, landing on the Moon, and Star close to zero. Indeed, one can conceive of sit- rights, duties, and relations outside the Wars are some of the presidential ini- uations in which the net effect of item veto power would be to increase spending. This legislative branch, it must act through tiatives. could be the result, for example, if a Presi- the full legislative process, including The joint explanatory statement of dent chose to announce his intent to exercise bicameralism and presentment of a bill the conference committee states that a an item veto against programs or projects fa- to the President. Congress could not, January 1992 GAO report indicates that vored by individual Senators and Represent- said the Court, rely on mechanisms a line item veto ‘‘could have a signifi- atives as a means of gaining their support short of a public law to control the for spending programs which would not oth- cant impact upon federal spending, President or the executive branch. The erwise have been enacted by the Congress. item veto bill, however, relies on de- concluding that if Presidents had ap- We attempted in the report to make it plied this authority to all matters ob- clear that we were developing an estimate of tails in the conference report to deter- jected to in Statements of Administra- the theoretical maximum potential savings, mine to what extent the President can tion Policy on spending bills in the fis- not a prediction of the likely actual results. propose rescissions of budget author- cal years 1984 through 1989, spending We cited the limited empirical evidence as ity. could have been reduced by a six-year suggesting that the actual use of an item Third, this bill enables the President total of about $70 billion.’’ The fact is veto would likely produce savings substan- to make law or unmake law without tially smaller than the theoretical maximum that the Comptroller General later Congress. If Congress fails to respond but apparently we were not as clear in this to the President’s rescission proposals apologized for this report, acknowledg- regard as we had thought. We regret the in- ing that it had serious deficiencies and appropriate highlighting of the $70 billion within the thirty-day period, his pro- that the theoretical figure of $70 billion total amount and the way it was character- posals become law. In fact, as soon as could not be defended. Actual savings, ized, which undoubtedly contributed to a the rescission message is submitted to he said, could have been ‘‘close to misleading impression of the purpose and Congress, the President’s proposal zero.’’ The Comptroller General even import of our analysis. takes effect. If Congress has to comply admitted that giving line item veto au- Finally, I regret that this report, which with bicameralism and presentment in was undertaken on our own initiative, was thority with the President could lead making law, how can the President not discussed with you before the assign- make law and unmake law unilater- to higher spending, because the admin- ment was begun and that it was addressed to istration could use that authority to you without your having been apprised of ally? strike quid pro quos with legislators. that intention. I have taken steps to assure Constitutional problems in the bill? Proponents say not to worry. Section 3 Mr. President, I ask unanimous con- that it will not happen again. Sincerely yours, authorizes expedited review of con- sent to have this letter to which I have CHARLES A. BOWSHER, stitutional challenges. Any member of just referred, printed in the RECORD. Comptroller General Congress or any individual adversely There being no objection, the letter of the United States. affected by the item veto bill may was ordered to be printed in the Mr. BYRD. Let us speak plainly. This bring an action, in the U.S. District RECORD, as follows: bill changes the existing process the Court for the District of Columbia, for March 27, 1996 CONGRESSIONAL RECORD — SENATE S2943 declaratory judgment and injunctive bill, raises a clear issue of separation of and Accounting Act, it expressed the relief on the ground that a provision powers and has constitutional dimen- same value in legislation enacted in violates the Constitution. Any order of sions. 1939. Although the 1921 statute prohib- the district court shall be reviewable If the President includes judicial ited the President from altering judi- by appeal directly to the Supreme items in a rescission proposal, judges cial budget estimates, the judiciary Court. It shall be the duty of both the would have to enter the political fray lacked a separate administrative office district court and the Supreme Court and lobby against the President. This to prepare and implement its own to advance on the docket and to expe- is unseemly, whether the judges lobby budget. Oddly, it had to rely on the De- dite to the greatest possible extent the openly or behind the scenes. They partment of Justice for this work. It disposition of a case challenging the should not be put in that position, as was the Attorney General who pre- constitutionality of the item veto bill. this bill does. pared and presented to the Bureau of Evidently the authors of this legisla- Judges understand that they have to the Budget the estimates for judicial tion had substantial concern about the justify their budgets to Congress like expenses. Several Attorneys General constitutionality of their handiwork. A any other agency, legislative or execu- considered it ‘‘anomalous and poten- provision for expedited review to re- tive. But we have designed the process tially threatening to the independence solve constitutional issues is not to protect their independence from the of the courts’’ for the chief litigant the boilerplate in most bills. You may re- executive branch. Department of Justice to have any con- member that when we included a provi- For example, the Budget and Ac- trol over the preparation of judicial sion for expedited review in the counting Act of 1921 specifically pro- budgets. Gramm-Rudman-Hollings Act of 1985, vided that budgetary estimates for the This anomaly was corrected by legis- the result was a Supreme Court opin- Supreme Court ‘‘shall be transmitted lation in 1939 that created the Adminis- ion that held that the procedure giving to the President on or before October tration Office of the United States the Comptroller General the power to 15th of each year, and shall be included Courts, with the director appointed by determine sequestration of funds vio- by him in the Budget without revi- the Supreme Court. The director pre- lated the Constitution. sion.’’ Congress wrote the 1921 statute pared budget estimates submitted to Why are we trying to pass a bill that this way not only for purposes of com- the Bureau of the Budget and later to raises such serious and substantial con- ity but to respect the coequal status of the Office of Management and Budget. stitutional questions? We should be re- the judiciary. As the law now stands, in The legislative history of the 1939 stat- solving those questions on our own. All the U.S. Code, budget estimates for the ute highlighted the need to protect the of us take an oath of office to support entire judicial branch must be included independence and integrity of the and defend the Constitution. During in the President’s budget without courts. In 1937 the Attorney General the process of considering a bill, it is change. said that, our duty to identify—and correct—con- Nevertheless, this item veto bill al- * * * there is something inherently illogi- stitutional problems. We cannot cor- lows the President to reach into appro- cal in the present system of having the budg- rect these here because we cannot priations, to reach into conference re- et and expenditures of the courts and the in- amend the conference report. It is irre- ports, to reach into the statement of dividual judges under the jurisdiction of the the managers, to reach into the tables Department of Justice. The courts should be sponsible to simply punt to the courts, an independent, coordinate branch of the hoping that the judiciary will somehow and charts, and pick out judicial items Government in every proper sense of the catch our mistakes. for rescission. Last year, in testimony term. Accordingly I recommend legislation As to the first constitutional issue: before the joint hearings conducted by that would provide for the creation and the impact that this bill might have on the House Committee on Government maintenance of such an administrative sys- the independence of the judiciary. That Reform and Oversight and the Senate tem under the control and direction of the is what the judges are concerned about, Committee on Governmental Affairs, Supreme Court. as reported by the New York Times Judge Gilbert S. Merritt testified that On January 8, 1938, an article in the today. Under this legislation, the it ‘‘seems inconsistent to prohibit the Washington Post pointed out that the President can propose rescissions for Executive Branch from changing the Federal Government was the chief liti- any type of budget item, regardless of Judiciary’s budget prior to submission, gant in the federal courts. While there whether it is for the executive, legisla- but then to give the President unilat- was no intention on the part of the tive, or judicial branch. eral authority to revise an enacted newspaper ‘‘even to intimate that the There is no exemption for the judici- budget.’’ His point is well taken. Cer- Attorney General or his aides would ary and certainly none for Congress. tainly it is inconsistent. It cannot be use their power over the purse strings The President has full latitude to look justified. of the judiciary to bring a recalcitrant through any bill and propose that cer- More recently, the Judicial Con- judge into line,’’ the mere fact that the tain funds and tax benefits be can- ference of the United States has ex- Attorney General ‘‘could do so if he celled. pressed its concern about the applica- wished constitutes a factor in the rela- The item veto bill would allow the tion of the item veto bill to judicial tionship between the Justice Depart- President to rescind funds for all of the funds. It believes that there may be ment and the courts which should be judiciary except for the salaries of Ar- constitutional implications in giving eliminated.’’ ticle III Justices and judges. Anything the President this authority and notes During floor debate on the bill creat- else funds for courthouses, staff, ex- that the doctrine of separation of pow- ing the Administrative Office of the penses, etc. is subject to rescissions. ers recognizes the importance of pro- U.S. Courts, Senator Henry Ashurst, Are these selections to be made solely tecting the judiciary against presi- chairman of the Judiciary Committee, for economy and ‘‘savings,’’ or could dential interference. As the Judicial came to the same conclusion. ‘‘No one they be retaliations for court decisions Conference points out, control of the believes,’’ he said, ‘‘that either the the executive branch finds disappoint- judiciary’s budget rightly belongs to present Attorney General or the pre- ing? Probably we would never know, Congress, not the executive branch. In ceding one would use his position to at- but the appearance of executive pun- light of the fact that the United States tempt to intimidate any judge; but we ishment for unwelcome decisions would almost operating through the execu- know enough about human nature to be ever with us. tive branch has more lawsuits in fed- know that no man, not even a judge, is Given the fact that the executive eral court than any other litigant, this coldly impersonal and objective with branch is the most active litigant in rescission authority endangers the in- one who holds the purse strings.’’ In his federal courts, allowing the President tegrity and fairness of our federal testimony last year, Judge Merritt said this kind of leverage over the judiciary courts. Judicial decisions should not be that during the years between 1921 and is improper and unwise. Furthermore, affected in any way, however remote, 1939 the Budget Bureau had ‘‘refused to it represents a distinct danger to the by potential budget actions by the ex- pass on requests for new judgeships’’ independence of the judiciary. The ecutive branch. and the Department of Justice ‘‘cut availability of the rescission power, es- Not only did Congress recognize this judges’ travel funds, eliminated bail- pecially under the procedures of this fundamental principal in the Budget iffs, criers and messengers, and reduced S2944 CONGRESSIONAL RECORD — SENATE March 27, 1996 the salaries of secretaries to retired The new procedure—this so-called House or even by both Houses in a con- judges by one-half.’’ line-item veto, enabling the President current resolution, because a concur- The judiciary should not be subject to simply cancel items of spending rent resolution is not presented to the to the rescission requests made under with which he does not agree, will President. Nor can we act by commit- this item veto bill. If such a bill were make him, in fact, a super legislator. It tee or subcommittee. Anything that to pass, it is crucial to give a full ex- will discourage him from using his ex- has the purpose and effect of altering emption to the judiciary. Exempting isting constitutional veto powers to the legal rights, duties, and relations the judiciary does not mean that the veto an entire bill, and encourage him outside Congress must comply fully bi- courts would escape the current pres- to try to ‘‘fix’’ legislation with which cameralism and presentment. sure for budgetary cutbacks. Judges he does not fully agree by canceling What of these details and items that would still have to present their budget only portions of the bill. He will be the appear in a conference report or in the estimates to Congress and defend them. lawmaker sui generis because his can- statement of managers? This is a As Judge Merritt noted in his testi- cellations will in practical effect, be nonstatutory source. It complies with mony last year, the judiciary’s budget absolute. There will be no recourse—no bicameralism but not with presen- requests ‘‘are subjected to full review way to override his cancellations under tation. How can it bind the President? by the congressional appropriations the convoluted, stack-deck procedures I recognize that proponents of this committees in keeping with the fiscal set forth in this conference report. bill can argue that the conference re- power conferred on Congress by the The temptation to simply do a ‘‘cut port and the statement of managers Constitution. The Judiciary must jus- and paste’’ job on spending bills, there- will continue to be nonbinding on the tify each dollar it receives. This is ap- by foregoing the route of a full Presi- President in the management of these propriate and the Judiciary cheerfully dential veto of an entire bill which particular laws. To a certain extent respects this role of Congress.’’ Scru- might then be overridden will, it seems that is true. The joint explanatory tiny of judicial budgets should be in to me, be nearly overwhelming. As a statement for this bill states: ‘‘The in- the hands of Congress, not the Presi- result, we will have a President who clusion of subparagraph (A)(ii) is not dent. intended to give increased legal weight I turn now to the issue of the legisla- not only ‘‘proposes,’’ but also ‘‘de- of authority to documents that accom- tive veto. This bill gives the President poses,’’ in other words a super law- the authority to cancel any dollar maker in the White House circumvent- pany the law that is enacted.’’ For ex- amount of discretionary budget au- ing in yet another way the principle of ample, if Congress in a conference re- thority, any item of new direct spend- majority rule. port takes a lump sum of $800 million ing, and any limited tax benefit. This Additionally, such an approach will and breaks it into one hundred discrete authority applies to any ‘‘appropria- have the effect of discouraging a Presi- projects, the breakdown is tion law,’’ defined in the bill to mean dent from vetoing a whole bill, and nonstatutory and nonbinding with re- any general or special appropriation thus through consensus and com- gard to implementing the law. The ex- act, or any act making supplemental, promise and negotiations between the ecutive branch may depart from the deficiency, or continuing appropria- two branches, develop a new and better breakdown over the course of a fiscal tions ‘‘that has been signed into law total product which he could then sign. year. What is legally binding is the pursuant to Article I, section 7, of the If the goal of this bill is to allow the ceiling of $800 million. If the executive Constitution of the United States.’’ President to rescind appropriations for branch decides that it would like to Notice that the enhanced rescission projects and programs he objects to, we shift money from one project to an- authority applies only to appropria- all know that appropriations bills con- other, it can do that by following es- tions bills ‘‘signed into law’’ by the tain large lump-sum amounts. We don’t tablished reprogramming procedures. President. This is a very peculiar fea- put details, or items, in appropriations The breakdown, in that sense, is advi- ture. If the President vetoes a bill and bills. How does the President reach sory. the veto is overridden, the enhanced re- that level of detail? But when it comes to submitting the scission authority is not available. The answer is that this bill allows rescission proposals, the breakdown in Similarly, if the President decides not the President to rescind dollar the conference report and the state- to sign an appropriations bill and it be- amounts that appear not merely in a ment of managers is absolutely bind- comes law after ten days, Sundays ex- bill but also in the conference report ing. If Congress decides to omit the cepted, the President may not use the and the statement of managers in- breakdown in the conference report enhanced rescission authority either. cluded in the conference report. Here is and the statement of managers, the You will recall that President Clinton where the issue of the legislative veto President is limited to the lump sums last December allowed the defense ap- emerges. As defined in this bill, the and aggregates found in the bill signed propriations bill to become law with- term dollar amount of discretionary into law. out his signature. budget authority includes the entire It could be argued that any break- Why does the enhanced rescission au- dollar amount of budget authority down in the conference report and the thority apply only to signed bills? If ‘‘represented separately in any table, statement of managers is a benefit to the goal is to maximize the oppor- chart, or explanatory text included in the President. Itemization creates an tunity for the President to rescind the statement of managers or the gov- opportunity for the President he would ‘‘wasteful’’ funds, why restrict the erning committee report accompany- not otherwise have. Why should he President this way? What is the pur- ing such law.’’ The dollar amount of complain? pose? Perhaps we are saying that if the discretionary budget authority also in- The constitutional point I raise is President vetoes a bill and Congress cludes the entire dollar amount of not answered by saying that the proce- overrides the veto, this second action budget authority ‘‘represented by the dure might benefit the President. When by Congress should settle the matter. product of the estimated procurement Congress chose to authorize the Attor- Congress has reaffirmed and reinforced cost and the total quantity of items ney General to suspend the deportation the priorities established in the bill. specified in an appropriation law or in- of aliens, subject to a one-House veto, Those priorities are not to be second- cluded in the statement of managers or that was a benefit. Without that au- guessed in a rescission action. the governing committee report ac- thority the Attorney General would Clearly this provision puts some companying such law.’’ have to seek a private bill for each pressure on a President not to exercise In INS v. Chadha (1983), the Supreme threatened alien. But the fact that this his constitutional right of veto which Court ruled that whenever congres- procedure constituted a benefit or ad- is set forth in section 7 of article I of sional action has the ‘‘purpose and ef- vantage to the Attorney General, and the Constitution of the United States. fect of altering the legal rights, duties that the Attorney General was better If he vetoes and is overridden, the en- and relations of persons’’ outside the off with this mechanism than the pre- hanced rescission procedure is not legislative branch, it must act through vious one, did not save the one-House available. I doubt it we have thought both Houses in a bill or joint resolution veto. In the Chadha case, the Court through the merits and demerits of dis- that is presented to the President. In asked the specific question: did the couraging a veto. other words, we cannot act by one one-House legislative veto comply with March 27, 1996 CONGRESSIONAL RECORD — SENATE S2945 bicameralism and presentment? Clear- Court will react to such arguments. In erence phases of the legislative process ly it failed both tests. Chadha, the Court said that ‘‘the fact that are also short of a public law, such Similarly, Presidents sought author- that a given law or procedure is effi- as a bill reported by committee or a ity to reorganize the executive branch cient, convenient, and useful in facili- bill that has passed one chamber. Yet and accepted the one-House veto that tating the functions of government, those phases of the legislative process went with this delegation. Reorganiza- standing alone, will not save it if it is are in a vehicle—continuing resolu- tion authority offered many benefits to contrary to the Constitution.’’ 462 U.S. tion—that must pass both Houses and the executive branch. Congress could at 944. be presented to the President for his not amend a presidential reorganiza- The question remains: Does this bill signature or veto. These precedents tion plan and it could not bury it in square with the Chadha ruling? If it offer no support for the procedure committee. The presidential plan does not, we are being asked to con- adopted in this bill. The reference to would become law unless either House sciously adopt a bill that we know is committee report language in the item disapproved within a specific time pe- unconstitutional, whatever merit its veto conference report does not comply riod. Distinct and clear advantages to proponents may claim for it. All of us with Chadha. the President, but that did not save the are capable of analyzing this issue. If This is an enormous shift of power to one-House veto. Chadha said that this the procedure established in this bill the President but we cannot be sure mechanism is unconstitutional for pro- amounts to a legislative veto prohib- that the courts will reverse such an ab- cedural reasons. ited by the Chadha case, we are violat- dication. If Congress is unwilling to That returns us to my central ques- ing our oath of office in passing this protect its prerogatives, the courts tion: Does the use of conference reports bill. If enhanced rescission is of value, won’t always intervene to do Congress’ and statements of managers constitute then we must vote down this bill and work for it. As Justice Robert Jackson an attempt by Congress to control the insist that its supporters construct an said in the Steel Seizure Case of 1952: President short of passing a public law? alternative bill that meets the con- ‘‘I have no illusion that any decision Is this procedure a forbidden legisla- stitutional test. To simply kick this by this Court can keep power in the tive veto? Whether it is a benefit, ad- issue to the courts is irresponsible. hands of Congress if it is not wise and timely in meeting its problems. * * * vantage, or opportunity for the Presi- It is curious that Chadha told Con- We may say that power to legislate for dent is irrelevant in answering this gress that if you want to make law you emergencies belongs in the hands of constitutional question. must follow the entire process, bi- Let me put this another way. Sup- cameralism and presentment, and yet Congress, but only Congress itself can pose we itemize the $800 million lump this bill allows the President to make prevent power from slipping through sum into a hundred specific projects in law and unmake law without any legis- its fingers.’’ On March 2, 1805, Vice President the conference report and statement of lative involvement. Under the terms of Aaron Burr bid adieu to the Senate, managers. Suppose further that Con- this conference report, whenever Con- stepping down to make way for the new gress receives the President’s special gress becomes unhappy with the Presi- Vice President, George Clinton, who message on rescissions, the ‘‘cancella- dent’s subsequent rescission proposal had been elected to serve during Jeffer- and decides to retaliate the next year tion of any dollar amount of discre- son’s second term. Burr’s farewell by eliminating all details in the con- tionary budget authority, item of new speech, according to those who heard ference report and statement of man- direct spending, or limited tax benefit it, was received with such emotion that agers. Now the President is limited to shall take effect.’’ The cancellation is Senators were brought to tears and the lump sum of $800 million in the ‘‘effective’’ upon receipt by Congress of stop their business for a full half hour. bill. He can live with it or decide to the special message notifying Congress It was truly one of the great speeches propose the rescission of that full of the cancellation. Why is the can- in the Senate’s history: ‘‘This House,’’ amount. Can any one doubt that Con- cellation ‘‘effective’’ before Congress said Burr that day, ‘‘is a sanctuary; a gress, in something that is short of a has an opportunity to respond to the citadel of law, of order, and of liberty; public law, is controlling the President President’s message? The executive and it is here—it is here in this exalted this time in a negative or restrictive branch may have legitimate reasons to refuge; here, if anywhere, will resist- way? make sure that agencies do not obli- ance be made to the storms of political Measure that fact against the ex- gate funds that are being proposed for phrensy and the silent arts of corrup- plicit language of the Court in the cancellation, but the language in this tion; and if the Constitution be des- Chadha case. In examining the one- bill is offensive to the role of Congress tined ever to perish by the sacrilegious House veto over the suspension of de- in canceling prior law. hands of the demagogue or the usurper, portations, the Court concluded that Of course the bill gives Congress thir- which God avert, its expiring agonies the congressional action was ‘‘essen- ty days to disapprove the President, will be witnessed on this Floor.’’ tially legislative in purpose and ef- subject to the President’s veto and the I regret to say, Mr. President, that, fect.’’ 462 U.S. at 952. Can anyone doubt need then for a two-thirds majority in in my opinion, before this day is done, that the congressional action in mak- each for the override. If Congress does the ingenious prescience of Aaron Burr ing language in a conference report and nothing during the thirty day review will have made itself manifest in the statement of managers the explicit period, the President’s proposals be- fateful events that will inevitably un- guide for presidential rescissions is come binding and the laws previously fold and which will be witnessed on ‘‘essentially legislative in purpose and passed and enacted are undone. this Floor. effect’’? Through this process the President can Philosophers, in their dreams, had Moreover, the Court in Chadha de- make and unmake law without any constructed ideal governments. Plato cided that the disapproval by the necessary legislative action. How does had luxuriated in the bliss of his fan- House of suspended deportations ‘‘had that square with the intent and spirit ciful Republic. Sir Thomas More had the purpose and effect of altering the of Chadha? Are we to argue that the taken great satisfaction in the reful- legal rights, duties, and relations of President can make, or unmake, law gent visions of his Utopia. The immor- persons’’ outside the legislative singlehandedly and unilaterally, but tal Milton had expressed his exalted vi- branch. Again, there can be no uncer- Congress is compelled to follow the full sion of freedom. Locke has published tainty about the purpose and effect of lawmaking scheme laid out in the Con- his elevated thoughts on the two prin- the conference report and the state- stitution? ciples of government. But never, until ment of managers. They have the pur- I earlier stated that placing details the establishment of American inde- pose and effect of altering the legal in a conference report and statement of pendence and the drafting and ratifica- rights, duties, and relations of the managers violates Chadha because this tion of that charter which embodied in President in submitting rescissions. phase of the legislative process is it the checks and balances and separa- Proponents of this bill may claim something short of a public law. It tion of powers of our own constitu- that it will be beneficial and construc- should be pointed out that in some leg- tional system, was it ever acknowl- tive. We may differ on that score, but islative vehicles, like continuing reso- edged by a people, and made the cor- there can be no doubt about how the lutions, Congress incorporates by ref- nerstone of its government, that the S2946 CONGRESSIONAL RECORD — SENATE March 27, 1996 sovereign power is vested in the approval bills will arouse sufficient these might be rebuilt. But who shall recon- masses. sentiment in both Houses to produce a struct the fabric of demolished government? It was just such a noble attachment two-thirds vote to override. Hence, the Who shall rear again the well-proportioned to a free constitution which raised an- columns of constitutional liberty? Who shall President’s single act of rescinding an frame together the skillful architecture cient Rome from the smallest begin- appropriation item will be tantamount which unites national sovereignty with nings to the bright summit of happi- to its being stricken from the law. State rights, individual security, and public ness and glory to which the Republic This is an enormous power for the prosperity? No. If these columns fall, they arrived, and it was the loss of that Legislative Branch to transfer into the will be raised not again. Like the Colosseum noble attachment to a free constitu- hands of any President. The power to and the Parthenon, they will be destined to tion that plunged her from that sum- rescind will be tantamount to the a mournful, a melancholy immortality. Bitterer tears, however, will flow over them mit into the black gulf of indolence, in- power to amend, and this conference than were ever shed over the monuments of famy, the loss of liberty, and made her report will transfer to any President Roman or Grecian art. For they will be the the slave of blood thirsty dictators and the power to single-handedly amend a remnants of a more glorious edifice than tyrannical emperors. measure after it has become law where- Greece or Rome ever saw: the edifice of con- It was then that the Roman Senate as a majority of both Houses is re- stitutional American liberty. lost its independence, and her Sen- quired to amend a bill by striking an Mr. President, I ask unanimous con- ators, forgetful of their honor and dig- item from the bill. The President will sent to have printed in the RECORD the nity, and seduced by base corruption, be handed the power to strike an item newspaper article to which I alluded betrayed their country. Her Praetorian from a law which, if done by action of earlier today under the headline of soldiers urged only by the hopes of the Legislative Branch, would require ‘‘Judges’ Group Condemns Line-Item plunder and luxury, unfeelingly com- the votes of 51 Senators and 218 mem- Veto Bill’’—that is an article from the mitted the most flagrant enormities, bers of the House, if all members were New York Times—together with a let- and with relentless fury perpetrated in attendance and voting. What an ter addressed to me by Leonidas Ralph the most cruel murders, whereby the enormous legislative power to place in Mecham, Secretary of the Judicial streets of imperial Rome were the hands of any President! Conference of the United States, in drenched with her noblest blood. Thus, Mr. President, let us learn from the which he expresses concern with re- the empress of the world lost her do- pages of Rome’s history. The basic les- spect to the conference report before minions abroad, and her inhabitants son that we should remember for our the Senate; an item from the Legal dissolute in their manners, at length purposes here is, that when the Roman Times, the week of March 25, 1996, enti- became contented slaves, and the pages Senate gave away its control of the tled ‘‘Points of View: Loosening the of her history reveal to this day a purse strings, it gave away its power to Glue of Democracy, the Line-Item Veto monument of the eternal truth that check the executive. From that point Would Discourage Congressional Com- public happiness depends on an on, the Senate declined and, as we have promise.’’ The article is by Abner J. unshaken attachment to a free con- seen, it was only a matter of time. Mikva, a retired judge who served on stitution. Once the mainstay was weakened, the the U.S. Court of Appeals for the D.C. Circuit, a former White House counsel And it is this attachment to the Con- structure crumbled and the Roman re- for President Clinton, and a former stitution that has preserved the cause public collapsed. of liberty and freedom throughout our This lesson is as true today as it was Member of the U.S. House of Rep- resentatives. He served as chief judge land and which today undergirds the two thousand years ago. Does anyone in the D.C. circuit from 1991 to 1994. noble experiment that never has ceased really imagine that the splendors of Mr. President, with the permission of to inspire mankind throughout all the our capital city stand or fall with man- the distinguished Senator from New earth. sions, monuments, buildings, and piles York [Mr. MOYNIHAN], I ask unanimous The gathered wisdom of a thousand of masonry? These are but bricks and years cries out against this conference consent that a letter from Michael mortar, lifeless things, and their col- Gerhardt, a professor of law at the Col- report. The history of England for cen- lapse or restoration means little or lege of William and Mary, also be turies is against this conference report. nothing when measured on the great printed in the RECORD. The declarations of the men who clock-tower of time. There being no objection, the mate- framed our Constitution stand in its But the survival of the American rial was ordered to be printed in the way. constitutional system, the foundation RECORD, as follows: Let us resolve that our children will upon which the superstructure of the [From the New York Times, Mar. 27, 1996] have cause to bless the memory of republic rests, finds its firmest support their fathers, as we have cause to bless JUDGES’ GROUP CONDEMNS LINE-ITEM VETO in the continued preservation of the BILL the memory of ours. delicate mechanism of checks and bal- (By Robert Pear) Let us not have the arrogance to ances, separation of powers, and con- throw away centuries of English his- WASHINGTON, March 26.—The organization trol of the purse, solemnly instituted that represents Federal judges across the tory and over 200 years of the Amer- by the Founding Fathers. For over two country today denounced a plan developed ican experience for political expedi- hundred years, from the beginning of by Republican leaders of Congress that ency. No party, Republican or Demo- the republic to this very hour, it has would allow the President to kill specific crat, is worth the price that this con- survived in unbroken continuity. We items in spending bills. The organization, the Judicial Conference ference report will exact from us and received it from our fathers. Let us as our children. Considering the fact that of the United States, said such authority surely hand it on to our sons and posed a threat to the independence of the ju- only about 7 percent of the regular ve- daughters. diciary because a President could put pres- toes have been overridden over a period Mr. President, I close my reflections sure on the courts or retaliate against judges of more than 200 years, it stands to rea- with the words of Daniel Webster from by vetoing items in judicial appropriations son that even a much smaller percent- his speech in 1832 on the centennial an- bills. age of vetoes of disapproval bills will niversary of George Washington’s The proposal would shift power to the President from Congress, permitting him to be overridden—keeping in mind that birthday: the presidential vetoes over the period block particular items in a spending bill Other misfortunes may be borne or their without having to veto the entire measure. of two centuries have been vetoes of effects overcome. If disastrous war should Early last year the House and Senate ap- measures which, in the main, have had sweep our commerce from the ocean, another proved different versions of the proposal, national significance; the relatively generation may renew it. If it exhaust our known as a line-item veto. Recently they few disapproval bills which will be ve- Treasury, future industry may replenish it. struck a compromise, which is expected to toed under the conference report before If it desolate and lay waste our fields, still, win approval in both chambers this week. the Senate will not likely be measures under a new cultivation, they will grow President Clinton supports it. green again and ripen to future harvests. It But any line-item veto bill signed by the of national importance but will be of were but a trifle even if the walls of yonder President is sure to be challenged in court, importance to only one or a few states, Capitol were to crumble, if its lofty pillars and today’s criticism from the Judicial Con- or perhaps a region at most, and it is should fall, and its gorgeous decorations be ference suggests that it may get a chilly re- very unlikely that the vetoes of dis- all covered by the dust of the valley. All ception. March 27, 1996 CONGRESSIONAL RECORD — SENATE S2947 Judge Gilbert S. Merritt, chairman of the In the interview today, Judge Merritt de- curtails the power of Congress to spend has executive committee of the Judicial Con- scribed the judges’ concern about the line- to be good. ference, said it was unwise to give the Presi- item veto this way: ‘‘If for some reason the My bias against the unbundling of appro- dent authority over the judicial budget be- President, whoever he may be, is irritated priations and other legislative proposals has cause the executive branch was the biggest about something the judiciary has done, he changed over the years. When I first saw the litigant in Federal court, with tens of thou- could excise the appropriation for a particu- appropriations process, back in the Illinois sands of cases a year. lar court or a particular judicial function.’’ legislature, it seemed the height of irrespon- The potential for conflict of interest is ob- sibility to bundle dozens of purposes into a vious, said Judge Merritt, who is also chief JUDICIAL CONFERENCE single bill. It also seemed unconstitutional judge of the United States Court of Appeals OF THE UNITED STATES, since the Illinois Constitution had a ‘‘single for the Sixth Circuit. The court’s head- Washington, DC, March 21, 1996. purpose’’ clause, under which bills consid- quarters are in Cincinnati: Judge Merritt’s Hon. ROBERT C. BYRD, ered by the legislature were to contain only chambers are in Nashville. Ranking Minority Member, Committee on Ap- one subject matter. But the ‘‘single purpose’’ In approving the line-item veto, Congress propriations, U.S. Senate, Senate Hart Of- clause had been observed in the breach for said it was necessary to curb ‘‘runaway Fed- fice Building, Washington, DC. many years by the time I was elected in 1956. eral spending.’’ But in an interview, Judge DEAR SENATOR BYRD: I understand an I first saw the bundling process work when Merritt said the inclusion of the judiciary agreement has been reached between Repub- a single bill, presented for final passage, ap- among agencies subject to the line-item veto lican negotiators on ‘‘line-item veto’’ legis- propriated money for both the Fair Employ- was ‘‘a rather serious defect’’ in the bill. lation. Although we have not seen a draft of ment Practices Commission and a host of The line-item veto was a major element of the agreement to determine the extent to other commissions, including one to provide the Republicans’ Contract With America and which the Judiciary might be affected, I did services for Spanish-American War veterans is a top priority of Senator Bob Dole, the not want to delay communicating with you. (there were two left in the state at the time) majority leader, who has all but clinched the The Judiciary had concerns over some pre- and one to study the size of mosquitoes that Republican nomination for President. The vious versions of the legislation that were inhabited the downstate portions of Illinois. House passed its version of the line-item considered by the House and Senate. These If I wanted to vote for the FEPC, I had to veto in February 1995, by a vote of 294 to 134. concerns could also apply to the version on swallow all those other commissions, which I The Senate approved its version, 69 to 29, in which agreement was just reached, depend- thought were wasteful. So I invoked the con- March 1995, with 19 Democrats supporting it. stitutional clause. to my dismay, the legisla- Under the compromise struck this month, ing on how it is drafted. ture favored all the other commissions on the President could cancel spending for The Judiciary believes there may be con- separate votes, but the FEPC went down to projects listed in tables and charts that ac- stitutional implications if the President is company a bill, as well as in the bill itself. given independent authority to make line- defeat. That is how I learned that there are He could also cancel any new tax break that item vetoes of its appropriations acts. The some pluses to the bundling process. Bundling is very asymmetrical in effect benefits 100 people or fewer. doctrine of separation of powers recognizes Alan B. Morrison, a lawyer at the Public the vital important of protecting the Judici- and probably wasteful. But it is also a legis- Citizen Litigation Group who has success- ary against interference from any President. lative device that allows various coalitions fully challenged several unconventional law- Protection of the Judiciary by Congress to form and thus moves the legislative proc- making procedures, said: ‘‘In my view, this against Presidential power and potential ess forward. bill is unconstitutional. It certainly will be intervention is also evident in the Budget Consider South America, where regional ri- challenged in court.’’ and Accounting Act of 1921, which ensures valries and resentments in many countries Mr. Morrison said the line-item veto tram- that the financial affairs of the Judiciary be make governing very difficult. The inability pled on the procedure set forth in the Con- insulated from political influence by the to form the political coalitions that are nor- stitution for making law. Under that proce- President and his staff. Prior to this Act, the mal in this country creates enormous pres- dure, he said, the President may veto whole Judiciary’s budget was controlled by the Ex- sure on the central government. This pres- bills but not pieces of a bill. ecutive Branch. Now, by law, requests for ju- sure is certainly one of the causes of the In recent weeks, the decisions of several dicial branch appropriations must be submit- mini-revolts that perpetually arise. The Federal judges have been harshly criticized ted to the President by the Judiciary, but have-nots feel excluded from the process, by the White House and Republican can- must by transmitted by him to Congress while the majority for the military regime) didates for President. Judges said such criti- ‘‘without change’’. exercise their power without taking care of cism highlighted the need for judicial inde- This protection needs to endure. Control of the depressed areas of the country. pendence. the Judiciary’s budget rightly belongs to the It is more difficult to ignore the have- ‘‘Judges were given life tenure to be a bar- Congress and not the Executive Branch, par- notes in the United States. First of all, mem- rier against the winds of temporary public ticularly in light of the fact that the United bers of Congress are elected as representa- opinion,’’ said Judge Merritt. ‘‘If we didn’t States, almost always through the Executive tives of geographic areas, rather than as rep- have judicial independence, I’m not sure we Branch, has more lawsuits in the Federal resentatives of parties. Woe betide the con- could maintain free speech and other con- courts than any other litigant. The integrity gressman who starts thinking too much like stitutional liberties that we take for grant- and fairness of our Federal Courts should not a national legislator and forgets the paro- ed.’’ be endangered by the potential of Executive chial interests of his constituents. In a letter to Congress, L. Ralph Mecham, Branch political influence. Second, the separate elections of the presi- secretary of the Judicial Conference, said: In whatever agreement is ultimately dent and Congress creates the necessity for ‘‘The doctrine of separation of powers recog- reached by the conference committee, on be- the two branches to cooperate in setting nizes the vital importance of protecting the half of the Judicial Conference of the United spending priorities. Floating coalitions that judiciary against interference from any States, I urge that the independence of the take into account the needs of all the sec- President. This protection needs to endure. Third Branch of Government be preserved. tions and groups in the country become es- Control of the judiciary’s budget rightly be- I appreciate your consideration and we sential. When urban interests wanted to pro- longs to the Congress and not the executive stand ready to assist you in any way nec- mote a food program for the cities, for exam- branch.’’ essary. ple, They formed a coalition with agricul- Judge Richard S. Arnold, chairmen of the Sincerely, tural interests, and food stamps were joined budget committee of the Judicial Con- LEONIDAS RALPH MECHAM, with farm subsidies. ference, said in an interview: ‘‘We don’t have Secretary. It is true that bundling encourages the any qualms about this particular President, merger of bad ideas with good ideas, and di- but institutionally we have reservations [From the Legal Times, Mar. 25, 1996] minishes the ability of the president to undo about providing any President with a weapon the package. A line-item veto, which would LOOSENING THE GLUE OF DEMOCRACY that could, in the wrong hands, be used to re- allow the president to veto any single piece taliate against the courts for deciding cases (By Abner J. Mikva) of an appropriations bill (or, under some pro- against the Federal Government.’’ There is a certain hardiness to the idea of posals, reject disparate pieces of any other Judge Arnold, a longtime friend of Mr. a line-item veto that causes it to keep com- bill), makes the whole process more rational. Clinton, is chief judge of the United States ing back. Presidents, of course, have always But it also makes it harder to find the glue Court of Appeals for the Eighth Circuit, wanted it because the line-item veto rep- that holds the disparate parts of our country which has its headquarters in St. Louis. resents a substantial transfer of power from together. City people usually don’t care Judge Arnold sits in Little Rock, Ark. the legislative branch to the executive about dams and farm policy. Their rural The Federal judiciary has a budget of $3 branch. Government purists favor the idea cousin don’t think much about mass trans- billion a year, accounting for two-tenths of 1 because the current appropriations process— portation or urban renewal or housing pol- percent of the $1.5 trillion spent last year by whereby all kinds of disparate expenditures icy. If the two groups of representatives the Federal Government. Congress may not are wrapped or ‘‘bundled’’ into one bill so don’t have anything to bargain about, it is reduce the salary of a sitting Federal judge, that the president must either swallow the unlikely that either set of concerns will re- but may cut the budget for court clerks, sec- whole thing or veto the whole thing—is very ceive appropriate attention. retaries, probation officers and security offi- messy and wasteful. Reformers generally The other downside to the line-item veto is cers, as well as for judicial travel. urge such a change because anything that exactly the reason why almost all presidents S2948 CONGRESSIONAL RECORD — SENATE March 27, 1996 want the change and why, up to now, most tional and practical problems posed by some The wisdom of leaving the power of the Congresses have resisted the idea. The line- of its major provisions. As I read it, the crit- purse in Congress, as the framers desired as item veto transfers an enormous amount of ical delegation made by the Republican draft a means of checking the executive, is but- power from Congress to the president. For to the President is the authority to ‘‘cancel’’ tressed by the recognition that pork barrel those of us who think that the executive all or any part of ‘‘discretionary budget au- appropriations—the evil sought to be elimi- branch is strong enough, and that an impe- thority,’’ ‘‘any item of direct spending,’’ or nated by the Republican draft—are just un- rial presidency is more of a threat than an ‘‘any targeted tax benefit.’’ Presumably, a attractive examples of legislating for diverse overpowering Congress, the current balance presidential cancellation pursuant to the act interests, which is the very stuff of rep- of power is just right. has the effect of nullifying a portion of a resentative government. Apportioning the That has been the gist of Sen. Robert budgetary or appropriations bill unless a ma- public fisc in a large and diverse nation re- Byrd’s opposition to the line-item veto. The jority of each chamber of Congress agrees quires degrees of coordination and com- West Virginia Democrat has argued that the within a specific time period to pass a ‘‘dis- promise that the framers left to the initial appropriations power, the power of the purse, approval bill’’ specifying it intention to re- discretion of Congress to be undone only as is the only real power that Congress has and authorize the particular item cancelled by specified in Article I. that the line-item veto would diminish that the President. The President may veto the The second constitutional defect with the power substantially. So far, he has pre- disapproval bill, which can then become law Conference Report’s basic procedures in- vailed—although last year, the reason he only if two-thirds of each chamber of Con- volves the legitimacy of the cancelling au- prevailed had more to do with the Repub- gress agree to override his veto. thority given to the President. Proponents of licans’ unwillingness to give such a powerful In my opinion, there are three fatal con- this cancellation power defend it as a legiti- tool to President Bill Clinton. stitutional problems with the procedures mate delegation of congressional authority But now the political dynamics have outlined above. First, the law effectively al- to the President; however, this argument changed. The Republicans in Congress can lows any portion of a bill enacted by Con- rests on a misunderstanding of the relevant fashion a line-item veto that will not benefit gress that the President signs into law but constitutional doctrine. This misunderstand- the incumbent president—unless he gets does not cancel to become law, in spite of the ing is reflected in the CRS Report, which relected—and their probable presidential fact that Congress will have never voted on claims erroneously that ‘‘while the [Su- candidate, Senate Majority Leader Robert preme] Court has used a balancing test in Dole, has recently made clear that he wants it as such. This kind of lawmaking by the President clearly violates Article I, section some separation of powers cases, it has never this passed. Chances for the line-item veto chosen to do so in delegation cases.’’ 5 The are vastly greater. 1, which grants ‘‘[a]ll legislative powers’’ to Congress, and Article I, section 7, which latter assertion is simply wrong. There are some constitutional problems in In fact, the Supreme Court has issued two grants to Congress alone the discretion to creating such a procedure. The wording of lines of cases on congressional delegations. package bills as it sees fit. the Constitution suggests pretty strongly The first, which is not implicated by the Article I states further that the Presi- that a bill is presented to the president for Conference Report, involves delegations dent’s veto power applies to ‘‘every Bill . . ., his signature or veto in its entirety. It will from Congress to administrative agencies or Every Order, Resolution or Veto to which take some creative legislating to overcome inferior bodies. The Court tends to evaluate such a ‘‘Technicality.’’ I reluctantly advised the Concurrence of the Senate and House of such delegations under a ‘‘functionalist’’ ap- 1 the president last year that it was possible Representatives may be necessary.’’ This proach to separation of powers under which to draft a line-item veto law that would pass means the President may wield his veto on the Court balances the competing concerns constitutional muster. The draft proposal in- the legislative product only, as Harvard Law or interests at stake to ensure that the core volved a Rube Goldberg plan that ‘‘pre- Professor Laurence Tribe maintains in his function of a branch is not frustrated. For tended’’ that the omnibus appropriations treatise, ‘‘in the form in which Congress has example, the Court used this approach in legislation passed by Congress and presented chosen to send it to the White House: be the Morrison v. Olson 6 to uphold the Independent to the president actually consists of separate bill small or large, its concerns focused or Counsel Act in which the Congress had dele- bills for various purposes. This pretense was diffuse, its form particular or omnibus, the gated the executive function of criminal effectuated by putting language in legisla- President must accept or reject the entire prosecution to an individual not formally as- tion to that effect. thing, swallowing the bitter with the sociated with any of the three branches. 2 President Clinton was not then asking for sweet.’’ Tribe’s subsequent change of posi- Similarly, in Mistretta v. United States, 7 the my policy views, and I did not have to rec- tion is of no consequence, because he was Court upheld the constitutionality of the oncile my advice with my policy bias toward right in his initial understanding of the con- composition and lawmaking function of the the first branch of government—Congress. stitutional dynamics of a statutorily created United States Sentencing Commission, at But I was uneasy enough to become more line-item veto mechanism. The fact that the least three of whose members are required by sympathetic to the late Justice Robert Jack- President has signed the law as enacted is ir- statute to be lower court judges and to which son’s handling of a similar dilemma in one of relevant, because a law is valid only if it the Congress delegated the authorities to the Supreme Court opinions. He acknowl- takes effect in the precise configuration ap- promulgate, review, and revise sentence-de- edged his apostasy concerning an issue on proved by the Congress. The President does terminative guidelines. which he had opined to the contrary during not have the authority to put into effect as The Republican Draft clearly violates, his tenure as attorney general. Quoting an- a law only part of what Congress has passed however, the second line of Supreme Court other, Justice Jackson wrote, ‘‘The matter as such. The particular form a bill should decisions on congressional delegations. does not appear to me now as it appears to have as a law is, as the Supreme Court has These cases involve delegations from Con- have appeared to me then.’’ said, the ‘‘kind of decision that can be imple- gress to the titular head of a branch, such as My apostasy was less public. My memo to mented only in accordance with the proce- one of its chambers or the President. In the president was only an internal docu- dures set out in Article I.’’ 3 these cases, the Court has not used a bal- ment, and I didn’t have to tell him how I felt The Conference Report would enable the ancing test; rather, the Court has used a about the line-item veto. But now that I President to make affirmative budgetary ‘‘formalist’’ approach that treats the Con- have no representational responsibilities, I choices that the framers definitely wanted to prefer to stand with Sen. Byrd. stitution as granting to each branch distinct preclude him from making. The framers de- powers and setting forth the maximum de- liberately chose to place the power of the gree to which the branches may share those THE COLLEGE OF WILLIAM & MARY, purse outside of the executive because they powers. A formalist approach to separation SCHOOL OF LAW. feared the consequences of centralizing the Williamsburg, VA, March 27, 1996. of powers treats the text of the Constitution powers of the purse and the sword. As James and the intent of its drafters as controlling Hon. DANIEL PATRICK MOYNIHAN, Madison wrote in the Federalist No. 58, U.S. Senate, and changed circumstances and broader pol- ‘‘This power of the purse may, in fact, be re- icy outcomes as irrelevant to constitutional Washington, DC. garded as the most complete and effectual DEAR SENATOR MOYNIHAN: I appreciate the outcomes. In recent years, the Court has weapon with which any constitution can arm chance to share with you my opinion on the used this approach to strike down the legis- the immediate representatives of the peo- constitutionality of the Line Item Veto Act lative veto in Chadha because it would have ple.’’ 4 Every Congress (until perhaps this of 1996, as set forth in the Conference Report, allowed one House to take legislative action most recent one)—as well as all of the early dated March 4, 1996 (hereinafter ‘‘the Repub- without complying with the procedures set presidents, for that matter—has shared the lican draft’’ or ‘‘the Conference Report’’). In forth in Article I; to hold in Bowsher v. understandings that only the Congress has 8 this letter, I focus only on a few of the more Synar that Congress may not delegate exec- serious problems with the Republican Draft the authority to decide how to package legis- utive budgetary functions to an official over and do not purport to analyze exhaustively lation, that this authority is a crucial com- whom Congress has removal power; and to its constitutionality. Even no, I am of the ponent of checks and balances, and that the strike down in Washington Airports Authority view that, given just the few significant President’s veto authority is strictly a nega- v. Citizens for the Abatement of Aircraft Noise 9 flaws in the Conference Report that I iden- tive power that enables him to strike down the creation of a Board of Review partially tify and explain below, its constitutionality but not to rewrite whatever a majority of composed of members of Congress with exec- is plainly doomed. Congress has sent to him as a bill. utive veto-like power over the decisions of Describing how the law works is crucial for the directors of the Metropolitan Washing- identifying and understanding the constitu- Footnotes at end of letter. ton Airports Authority. March 27, 1996 CONGRESSIONAL RECORD — SENATE S2949 Undoubtedly, the Court would follow a for- Thus, the Conference Report would require the Joint Committee on Taxation to render malist approach in striking down the Repub- Congress to vote as many as three separate an official opinion, which may become a part lican draft. For one thing, the Court would times to fund something while assuming in of a budgetary or appropriations measure, on not be able to escape applying the logic of the process an increasingly defensive posture whether it ‘‘contains any targeted tax bene- Bowsher v. Synar to the proposed law. Where- vis-a-vis the President. In other words, the fit.’’ The bill precludes the House or the Sen- as the crucial problem Bowsher was Con- Republican draft allows the President to ate from taking issue with the judgment of gress’ attempt to authorize the exercise of force Congress to go through two majority the Joint Committee’s finding. As a prac- certain executive authority by a legislative votes—the second of which is much more dif- tical matter, this empowers a small number agent—the Comptroller General, here the ficult to attain because it would have to be of members of Congress to impose their will problem is that the President would plainly in favor of a specific expenditure that is now on the whole body. Although this might have be exercising what everyone agrees is legis- severed from the other items of the com- the salutary effect of expediting the passage lative authority—the discretion to deter- promise giving rise to its inclusion in the of the covered legislation, it forces those mine the particular configuration of a bill first place—and one supermajority vote in members of Congress who disagree with the that will become law. Even the law’s pro- order to put into law a particular expendi- Joint Committee to express their disagree- ponent’s admit it allows the President to ex- ture. ment only by voting down rather than by ercise legislative authority, albeit in their A third constitutional problem with the trying to amend a bill that they otherwise view delegated to him by Congress. Conference Report involves the constraints would support. Formalist analysis would be appropriate in it tries to place on the President’s cancella- In summary, I believe that the Republican evaluating such a delegation’s constitu- tion authority. The latter if for all intents draft conflicts with the plain language, tionality because it would be the kind about and purposes a veto. It has the effect of a structure, and traditional understanding of which the framers were most concerned; the veto because it forces Congress in the midst the lawmaking procedure set forth in Article checks and balances set forth in the Con- of the lawmaking process into repassing I; relevant Supreme Court doctrine; and the stitution deal directly with how the titular something as a bill that ultimately must delicate balance of power between Congress heads of each branch should interrelate. carry a supermajority of each chamber in and the President on budget matters. I am Hence, the Court has opted for a formalist order to become law. Nevertheless, the Con- confident that the Supreme Court ultimately approach to deal with delegations between ference Report attempts to constrain the would strike the bill down if it were passed the branches at their respective apexes to reasons the President may have for cancel- by Congress and signed into law by the preclude one branch from aggrandizing itself ling some part of a budget or appropriations President. at the expense of another. The Conference bill. Just as Congress lacks the authority It has been a privilege for me to share my Report would clearly undermine the balance through legislation to enhance presidential opinions about the Conference Report with of power between the branches at the top, be- authority in the lawmaking process by em- you. If you have any other questions or need cause it would eliminate the Congress’s pri- powering him to reconfigure what Congress any further analysis, please do not hesitate macy in the budget area and would unravel has passed as a bill into some other form to let me know. the framers’ considered judgment to restrict prior to its becoming a law, Congress lacks Very truly yours, the President’s role in the lawmaking proc- the authority to restrict presidential author- MICHAEL J. GERHARDT, ess to a qualified negative rather than to ity by limiting the grounds a president may Professor of Law. have him exercise an affirmative power to consider as appropriate for vetoing some- FOOTNOTES redraft or reconfigure a bill. thing. 1 U.S. Const. art. I, section 7, cls. 2, 3. Even if the Court used a functionalist ap- Even apart from whatever constitutional 2 Laurence Tribe, American Constitutional Law 265 proach to evaluate the constitutionality of problems the Conference Report may have, it (2d ed. 1988). the Republican draft, it would strike down poses two serious practical problems. First, 3 I.N.S. v. Chadha, 462 U.S. 919, 954 (1982). the proposed law. The reason is that the law the possibility for substantial judicial review 4 The Federalist No. 58 at 300 (J. Madison) (M. establishes an uneven playing field for the of presidential or congressional compliance Beloff ed. 1987). 5 President and Congress on budgetary mat- with the Republican draft is quite high. For Congressional Research Service, Memorandum ters. In so doing, it profoundly alters the bal- Regarding Constitutional Questions Respecting Bill example, it seems likely that lawsuits could to Grant President Enhanced Rescission Authority ance of power set forth in the Constitution. be brought challenging whether the Presi- over Appropriations and Targeted Tax Benefits, at As Professor Tribe recognizes further in his dent has appropriately considered, as the act 16 (January 9, 1995). treatise, such a scheme ‘‘would enable the directs, such things as ‘‘the legislative his- 6 487 U.S. 654, 693 (1988). President to nullify new congressional send- tory’’ or ‘‘any specific sources of information 7 488 U.S. 361 (1989). ing initiatives and priorities as well as to referenced in such law or, in the absence of 8 111 U.S. 714 (1986). wipe out previously enacted programs that 9 478 S. Ct. 2298 (1991). specific sources of information, the best 10 receive their funding through the annual ap- L. Tribe, supra note 2, at 267 (footnotes omitted). available information’’ or ‘‘the specific defi- 11 Id. at 267 (citing Note, ‘‘Is a Presidential Item propriations process. Congress, which the nitions contained’’ within it. At the very Veto Constitutional?’’ 96 Yale L.J. 838, 841–44 (1987)). Constitution makes the master of the public least, the bill requires that the President MOTION TO RECOMMIT purse, would be demoted to the role of giving make some showing that he has done these Mr. BYRD. Mr. President, I send to fiscal advice that the President would be ef- things to the satisfaction of members of Con- fectively free to disregard.10 Once again gress (or at least those disposed to bring a the desk a motion to recommit the Tribe’s subsequent change of position does lawsuit in the absence of such a showing). conference report. not undermine the soundness of his initial There are also numerous procedures OMB The PRESIDING OFFICER (Mr. reasoning, for the historical record is clear and each house of Congress must follow that, THOMAS). The clerk will report the mo- that the framers, as Tribe has recognized presumably, could become the basis for judi- tion. himself, never intended nor tried to grant cial challenge if not done completely to the The legislative clerk read as follows: the President any ‘‘special veto power over satisfaction of partisan foes in the other The Senator from West Virginia [Mr. appropriation bills, despite their awareness branch. In addition, there may be some ques- BYRD] moves to recommit the conference re- that the insistence of colonial assemblies tions as whether the President has in fact port on bill S. 4 to the committee of con- that their spending bills could not be amend- complied with Congress’ or the Republican ference with instructions to the managers on ed once they had passed the lower house had draft’s understanding of the kinds of items the part of the Senate to disagree to the con- greatly enhanced the growth of legislative he may cancel, such as a ‘‘targeted tax bene- ference substitute recommended by the com- power.11 fit.’’ mittee of conference. An example should illustrate the problem- The likely prospect of substantial judicial Mr. BYRD. Mr. President, I ask unan- atic features of the proposed cancellation interference with the budgetary process is imous consent further reading of the mechanism. Suppose that 55% of Congress unsettling. The framers deliberately ex- passes a law, including expenditures for a cluded the unelected federal judiciary from motion be dispensed with. new Veterans Administration hospital in exercising any kind of decisive role in budg- The PRESIDING OFFICER. Without New York. The President decides he would etary negotiations or deliberations. The Re- objection, it is so ordered. prefer for Congress not to spend any federal publican draft does not ensure that this ex- The motion is as follows: money on this project, so, after signing the clusion will always be honored. The framers Motion to recommit conference report on bill into law, he exercises his authority to wanted all of the key decisionmakers within the bill S. 4 to the committee of conference cancel the allocations made for the new fa- budget negotiations to be politically ac- with instructions to the managers on the cility. Again 55% of the Congress agrees to countable; any budgetary impasse between part of the Senate to disagree to the con- make this expenditure but this time through the President and Congress that the federal ference substitute recommended by the com- the passage of a disapproval bill. The Presi- courts help to resolve in favor of one or the mittee of conference and insist on inserting dent vetoes the latter, and Congress fails to other will simply diminish even further the the text of S. 14 as introduced in the Senate override his veto, with only 55% of Congress public’s confidence that the political process on January 4, 1995 (with certain exceptions) (yet again) voting for the appropriation. The is the place to turn for answers to such dead- which is as follows: net effect is that the President would get to locks. SECTION 1. SHORT TITLE. refuse to spend money 55% of the Congress Another practical difficulty is with the au- This Act may be cited as the ‘‘Legislative will have thrice said it wanted to spend. thorization made by the Republican draft to Line Item Veto Act’’. S2950 CONGRESSIONAL RECORD — SENATE March 27, 1996 SEC. 2. EXPEDITED CONSIDERATION OF CERTAIN and Emergency Deficit Control Act of 1985 to ‘‘(3)(A) During consideration of a bill under PROPOSED RESCISSIONS AND RE- reflect such amount. this subsection in the Senate, any Member of PEALS OF TAX EXPENDITURES AND ‘‘(B) Not later than 5 days after the date of the Senate may move to strike any proposed DIRECT SPENDING. enactment of a bill containing an amount cancellation of a budget item. (a) IN GENERAL.—Title X of the Congres- designated by the President for deficit reduc- ‘‘(B) It shall not be in order to move to re- sional Budget and Impoundment Control Act of 1974 (2 U.S.C. 621 et seq.) is amended by tion under paragraph (1), the chairs of the consider the vote by which the motion is adding after section 1012 the following new Committees on the Budget of the Senate and agreed to or disagreed to. section: the House of Representatives shall revise ‘‘(C) Debate in the Senate on a bill under levels under section 311(a) and adjust the this subsection, and all debatable motions ‘‘EXPEDITED CONSIDERATION OF CERTAIN PRO- committee allocations under section 602(a) and appeals in connection therewith (includ- POSED RESCISSIONS AND REPEALS OF TAX EX- to reflect such amount. ing debate pursuant to subparagraph (D)), PENDITURES AND DIRECT SPENDING ‘‘(c) PROCEDURES FOR EXPEDITED CONSIDER- shall not exceed 10 hours. The time shall be ‘‘SEC. 1012A. (a) PROPOSED CANCELLATION ATION.— equally divided between, and controlled by, OF BUDGET ITEM.—The President may pro- the majority leader and the minority leader pose, at the time and in the manner provided ‘‘(1)(A) Before the close of the second day of session of the Senate and the House of or their designees. in subsection (b), the cancellation of any ‘‘(D) Debate in the Senate on any debat- budget item provided in any Act. Representatives, respectively, after the date able motion or appeal in connection with a ‘‘(b) TRANSMITTAL OF SPECIAL MESSAGE.— of receipt of a special message transmitted bill under this subsection shall be limited to ‘‘(1)(A) Subject to the time limitations to Congress under subsection (b), the major- provided in subparagraph (B), the President ity leader or minority leader of each House not more than 1 hour, to be equally divided may transmit to Congress a special message shall introduce (by request) the draft bill ac- between, and controlled by, the mover and proposing to cancel budget items and include companying that special message. If the bill the manager of the bill, except that in the with that special message a draft bill that, if is not introduced as provided in the preced- event the manager of the bill is in favor of enacted, would only cancel those budget ing sentence in either House, then, on the any such motion or appeal, the time in oppo- items as provided in this section. The bill third day of session of that House after the sition thereto, shall be controlled by the mi- shall clearly identify each budget item that date of receipt of that special message, any nority leader or his designee. Such leaders, is proposed to be canceled including, where Member of that House may introduce the or either of them, may, from time under applicable, each program, project, or activ- bill. their control on the passage of a bill, allot ity to which the budget item relates. The bill ‘‘(B) The bill shall be referred to the appro- additional time to any Senator during the shall specify the amount, if any, of each priate committee or (in the House of Rep- consideration of any debatable motion or ap- budget item that the President designates resentatives) committees. The committee peal. for deficit reduction as provided in para- shall report the bill without substantive re- ‘‘(E) A motion in the Senate to further graph (4). vision and with or without recommendation. limit debate on a bill under this subsection ‘‘(B) A special message may be transmitted The committee shall report the bill not later is not debatable. A motion to recommit a under this section— than the seventh day of session of that House bill under this subsection is not in order. ‘‘(i) during the 20-calendar-day period (ex- after the date of receipt of that special mes- ‘‘(F) If the Senate proceeds to consider a cluding Saturdays, Sundays, and legal holi- sage. If the committee fails to report the bill bill introduced in the House of Representa- days) commencing on the day after the date within that period, the committee shall be tives under paragraph (1)(A), then any Sen- of enactment of the provision proposed to be automatically discharged from consideration ator may offer as an amendment the text of rescinded or repealed; or of the bill, and the bill shall be placed on the the companion bill introduced in the Senate ‘‘(ii) at the same time as the President’s appropriate calendar. under paragraph (1)(A) as amended if amend- budget. ‘‘(C) A vote on final passage of the bill ed (under subparagraph (A)). Debate in the ‘‘(2) In the case of an Act that includes shall be taken in the Senate and the House Senate on such bill introduced in the House budget items within the jurisdiction of more of Representatives on or before the close of of Representatives, and all debatable mo- than one committee of a House, the Presi- the 10th day of session of that House after tions and appeals in connection therewith dent in proposing to cancel such budget item the date of the introduction of the bill in (including debate pursuant to subparagraph under this section shall send a separate spe- that House. If the bill is passed, the Clerk of (D)), and any amendment offered under this cial message and accompanying draft bill for the Senate or the House of Representatives, subparagraph, shall not exceed 10 hours each such committee. as the case may be, shall cause the bill to be minus such times (if any) as Senators ‘‘(3) Each special message shall specify, engrossed, certified, and transmitted to the consumed or yielded back during consider- with respect to the budget item proposed to other House within one calendar day of the ation of the companion bill introduced in the be canceled— day on which the bill is passed. Senate under paragraph (1)(A). ‘‘(A) the amount that the President pro- ‘‘(2)(A) During consideration under this ‘‘(4) Debate in the House of Representa- poses be canceled; subsection in the House of Representatives, tives or the Senate on the conference report ‘‘(B) any account, department, or estab- any Member of the House of Representatives on any bill considered under this section lishment of the Government to which such may move to strike any proposed cancella- shall be limited to not more than 2 hours, budget item is available for obligation, and tion of a budget item. which shall be divided equally between the the specific project or governmental func- ‘‘(B) A motion in the House of Representa- majority leader and the minority leader. A tions involved; tives to proceed to the consideration of a bill motion further to limit debate is not debat- ‘‘(C) the reasons why the budget item under this subsection shall be highly privi- able. A motion to recommit the conference should be canceled; leged and not debatable. An amendment to report is not in order, and it is not in order ‘‘(D) to the maximum extent practicable, the motion shall not be in order, nor shall it to move to reconsider the vote by which the the estimated fiscal, economic, and budg- be in order to move to reconsider the vote by conference report is agreed to or disagreed etary effect (including the effect on outlays which the motion is agreed to or disagreed to. and receipts in each fiscal year) of the pro- to. ‘‘(d) AMENDMENTS AND DIVISIONS PROHIB- posed cancellation; and ‘‘(C) Debate in the House of Representa- ITED.—Except as otherwise provided by this ‘‘(E) all facts, circumstances, and consider- tives on a bill under this subsection shall not section, no amendment to a bill considered ations relating to or bearing upon the pro- exceed 4 hours, which shall be divided equal- under this section shall be in order in either posed cancellation and the decision to effect ly between those favoring and those opposing the Senate or the House of Representatives. the proposed cancellation, and to the maxi- the bill. A motion further to limit debate It shall not be in order to demand a division mum extent practicable, the estimated effect shall not be debatable. It shall not be in of the question in the House of Representa- of the proposed cancellation upon the ob- order to move to recommit a bill under this tives (or in a Committee of the Whole). No jects, purposes, and programs for which the subsection or to move to reconsider the vote motion to suspend the application of this budget item is provided. by which the bill is agreed to or disagreed to. subsection shall be in order in the House of ‘‘(4)(A) Not later than 5 days after the date ‘‘(D) Appeals from decisions of the Chair Representatives, nor shall it be in order in of enactment of a bill containing an amount relating to the application of the Rules of the House of Representatives to suspend the designated by the President for deficit reduc- the House of Representatives to the proce- application of this subsection by unanimous tion under paragraph (1), the President dure relating to a bill under this section consent. shall— shall be decided without debate. ‘‘(e) TEMPORARY PRESIDENTIAL AUTHORITY ‘‘(i) with respect to a rescission bill, reduce ‘‘(E) Except to the extent specifically pro- TO RESCIND.—At the same time as the Presi- the discretionary spending limits under sec- vided in this section, consideration of a bill dent transmits to Congress a special message tion 601 of the Congressional Budget Act of under this section shall be governed by the proposing to rescind budget authority, the 1974 for the budget year and each outyear to Rules of the House of Representatives. It President may direct that any budget au- reflect such amount; and shall not be in order in the House of Rep- thority proposed to be rescinded in that spe- ‘‘(ii) with respect to a repeal of a tax ex- resentatives to consider any rescission bill cial message shall not be made available for penditure or direct spending, adjust the bal- introduced pursuant to the provisions of this obligation for a period not to exceed 45 cal- ances for the budget year and each outyear section under a suspension of the rules or endar days from the date the President under section 252(b) of the Balanced Budget under a special rule. transmits the special message to Congress. March 27, 1996 CONGRESSIONAL RECORD — SENATE S2951 ‘‘(f) DEFINITIONS.—For purposes of this sec- The PRESIDING OFFICER. Without jects, purposes, and programs for which the tion— objection, it is so ordered. budget item is provided. ‘‘(1) the term ‘appropriation Act’ means The amendment is as follows: ‘‘(4)(A) Not later than 5 days after the date any general or special appropriation Act, and of enactment of a bill containing an amount any Act or joint resolution making supple- In lieu of the instructions insert the fol- designated by the President for deficit reduc- mental, deficiency, or continuing appropria- lowing: ‘‘with instructions to the managers tion under paragraph (1), the President tions; on the part of the Senate to disagree to the shall— ‘‘(2) the term ‘direct spending’ shall have conference substitute recommended by the ‘‘(i) with respect to a rescission bill, reduce the same meaning given such term in section committee of conference and insist on in- the discretionary spending limits under sec- 250(c)(8) of the Balanced Budget and Emer- serting the text of S. 14 as introduced in the tion 601 of the Congressional Budget Act of gency Deficit Control Act of 1985; Senate on January 4, 1995 (with certain ex- 1974 for the budget year and each outyear to ‘‘(3) the term ‘budget item’ means— ceptions) which is as follows: reflect such amount; and ‘‘(A) an amount, in whole or in part, of SECTION 1. SHORT TITLE. ‘‘(ii) with respect to a repeal of a tax ex- budget authority provided in an appropria- This Act may be cited as the ‘‘Legislative penditure or direct spending, adjust the bal- tion Act; Line Item Veto Act’’. ances for the budget year and each outyear ‘‘(B) an amount of direct spending; or SEC. 2. EXPEDITED CONSIDERATION OF CERTAIN under section 252(b) of the Balanced Budget ‘‘(C) a targeted tax benefit; PROPOSED RESCISSIONS AND RE- and Emergency Deficit Control Act of 1985 to ‘‘(4) the term ‘cancellation of a budget PEALS OF TAX EXPENDITURES AND reflect such amount. item’ means— DIRECT SPENDING. ‘‘(B) Not later than 5 days after the date of ‘‘(A) the rescission of any budget authority (a) IN GENERAL.—Title X of the Congres- enactment of a bill containing an amount provided in an appropriation Act; sional Budget and Impoundment Control Act designated by the President for deficit reduc- ‘‘(B) the repeal of any amount of direct of 1974 (2 U.S.C. 621 et seq.) is amended by tion under paragraph (1), the chairs of the spending; or adding after section 1012 the following new Committees on the Budget of the Senate and ‘‘(C) the repeal of any targeted tax benefit; section: the House of Representatives shall revise and ‘‘EXPEDITED CONSIDERATION OF CERTAIN PRO- levels under section 311(a) and adjust the ‘‘(5) the term ‘targeted tax benefit’ means POSED RESCISSIONS AND REPEALS OF TAX EX- committee allocations under section 602(a) any provision which has the practical effect PENDITURES AND DIRECT SPENDING to reflect such amount. of providing a benefit in the form of a dif- ‘‘SEC. 1012A. (a) PROPOSED CANCELLATION ‘‘(c) PROCEDURES FOR EXPEDITED CONSIDER- ferent treatment to a particular taxpayer or OF BUDGET ITEM.—The President may pro- ATION.— a limited class of taxpayers, whether or not pose, at the time and in the manner provided ‘‘(1)(A) Before the close of the second day such provision is limited by its terms to a in subsection (b), the cancellation of any of session of the Senate and the House of particular taxpayer or a class of taxpayers. budget item provided in any Act. Representatives, respectively, after the date Such term does not include any benefit pro- ‘‘(b) TRANSMITTAL OF SPECIAL MESSAGE.— of receipt of a special message transmitted vided to a class of taxpayers distinguished on ‘‘(1)(A) Subject to the time limitations to Congress under subsection (b), the major- the basis of general demographic conditions provided in subparagraph (B), the President ity leader or minority leader of each House such as income, number of dependents, or may transmit to Congress a special message shall introduce (by request) the draft bill ac- marital status.’’. proposing to cancel budget items and include companying that special message. If the bill (b) EXERCISE OF RULEMAKING POWERS.— with that special message a draft bill that, if is not introduced as provided in the preced- Section 904 of the Congressional Budget Act enacted, would only cancel those budget ing sentence in either House, then, on the of 1974 (2 U.S.C. 621 note) is amended— items as provided in this section. The bill third day of session of that House after the (1) in subsection (a), by striking ‘‘and 1017’’ shall clearly identify each budget item that date of receipt of that special message, any and inserting ‘‘1012A, and 1017’’; and is proposed to be canceled including, where Member of that House may introduce the (2) in subsection (d), by striking ‘‘section applicable, each program, project, or activ- bill. 1017’’ and inserting ‘‘sections 1012A and ity to which the budget item relates. The bill ‘‘(B) The bill shall be referred to the appro- 1017’’. shall specify the amount, if any, of each priate committee or (in the House of Rep- (c) CLERICAL AMENDMENTS.—The table of budget item that the President designates resentatives) committees. The committee sections for subpart B of title X of the Con- for deficit reduction as provided in para- shall report the bill without substantive re- gressional Budget and Impoundment Control graph (4). vision and with or without recommendation. Act of 1974 is amended by inserting after the ‘‘(B) A special message may be transmitted The committee shall report the bill not later item relating to section 1012 the following: under this section— than the seventh day of session of that House ‘‘Sec. 1012A. Expedited consideration of cer- ‘‘(i) during the 20-calendar-day period (ex- after the date of receipt of that special mes- tain proposed rescissions and cluding Saturdays, Sundays, and legal holi- sage. If the committee fails to report the bill repeals of tax expenditures and days) commencing on the day after the date within that period, the committee shall be direct spending.’’. of enactment of the provision proposed to be automatically discharged from consideration (d) EFFECTIVE PERIOD.—The amendments rescinded or repealed; or of the bill, and the bill shall be placed on the made by this Act shall— ‘‘(ii) at the same time as the President’s appropriate calendar. (1) take effect on the date of enactment of budget. ‘‘(C) A vote on final passage of the bill this Act; ‘‘(2) In the case of an Act that includes shall be taken in the Senate and the House (2) apply only to budget items provided in budget items within the jurisdiction of more of Representatives on or before the close of Acts enacted on or after the date of enact- than one committee of a House, the Presi- the 10th day of session of that House after ment of this Act; and dent in proposing to cancel such budget item the date of the introduction of the bill in (3) cease to be effective on September 30, under this section shall send a separate spe- that House. If the bill is passed, the Clerk of 2002. cial message and accompanying draft bill for the Senate or the House of Representatives, Mr. BYRD. Mr. President, I ask for each such committee. as the case may be, shall cause the bill to be the yeas and nays on the motion. ‘‘(3) Each special message shall specify, engrossed, certified, and transmitted to the The PRESIDING OFFICER. Is there a with respect to the budget item proposed to other House within one calendar day of the sufficient second? be canceled— day on which the bill is passed. There is a sufficient second. ‘‘(A) the amount that the President pro- ‘‘(2)(A) During consideration under this The yeas and nays were ordered. poses be canceled; subsection in the House of Representatives, Mr. DOMENICI. Mr. President, were ‘‘(B) any account, department, or estab- any Member of the House of Representatives lishment of the Government to which such may move to strike any proposed cancella- the yeas and nays ordered? budget item is available for obligation, and tion of a budget item. The PRESIDING OFFICER. The yeas the specific project or governmental func- ‘‘(B) A motion in the House of Representa- and nays have been ordered, yes. tions involved; tives to proceed to the consideration of a bill AMENDMENT NO. 3665 TO MOTION TO RECOMMIT ‘‘(C) the reasons why the budget item under this subsection shall be highly privi- Mr. BYRD. Mr. President, I send an should be canceled; leged and not debatable. An amendment to amendment to the desk. ‘‘(D) to the maximum extent practicable, the motion shall not be in order, nor shall it The PRESIDING OFFICER. The the estimated fiscal, economic, and budg- be in order to move to reconsider the vote by clerk will report. etary effect (including the effect on outlays which the motion is agreed to or disagreed The legislative clerk read as follows: and receipts in each fiscal year) of the pro- to. posed cancellation; and ‘‘(C) Debate in the House of Representa- The Senator from West Virginia [Mr. ‘‘(E) all facts, circumstances, and consider- tives on a bill under this subsection shall not BYRD] proposes an amendment numbered ations relating to or bearing upon the pro- exceed 4 hours, which shall be divided equal- 3665. posed cancellation and the decision to effect ly between those favoring and those opposing Mr. BYRD. Mr. President, I ask unan- the proposed cancellation, and to the maxi- the bill. A motion further to limit debate imous consent that reading of the mum extent practicable, the estimated effect shall not be debatable. It shall not be in amendment be dispensed with. of the proposed cancellation upon the ob- order to move to recommit a bill under this S2952 CONGRESSIONAL RECORD — SENATE March 27, 1996 subsection or to move to reconsider the vote subsection shall be in order in the House of The PRESIDING OFFICER. The by which the bill is agreed to or disagreed to. Representatives, nor shall it be in order in clerk will report. ‘‘(D) Appeals from decisions of the Chair the House of Representatives to suspend the The legislative clerk read as follows: relating to the application of the Rules of application of this subsection by unanimous The Senator from West Virginia [Mr. the House of Representatives to the proce- consent. BYRD] proposes an amendment numbered dure relating to a bill under this section ‘‘(e) TEMPORARY PRESIDENTIAL AUTHORITY 3666 to amendment No. 3665. shall be decided without debate. TO RESCIND.—At the same time as the Presi- ‘‘(E) Except to the extent specifically pro- dent transmits to Congress a special message Mr. DOMENICI. Mr. President, I ask vided in this section, consideration of a bill proposing to rescind budget authority, the unanimous consent that the reading of under this section shall be governed by the President may direct that any budget au- the amendment be dispensed with. Rules of the House of Representatives. It thority proposed to be rescinded in that spe- The PRESIDING OFFICER. Is there shall not be in order in the House of Rep- cial message shall not be made available for objection? Without objection, it is so resentatives to consider any rescission bill obligation for a period not to exceed 45 cal- endar days from the date the President ordered. introduced pursuant to the provisions of this The amendment is as follows: section under a suspension of the rules or transmits the special message to Congress. Strike all after the first word in the sub- under a special rule. ‘‘(f) DEFINITIONS.—For purposes of this sec- stitute amendment and insert the following: ‘‘(3)(A) During consideration of a bill under tion— ‘‘instructions to the managers on the part of this subsection in the Senate, any Member of ‘‘(1) the term ‘appropriation Act’ means the Senate to disagree to the conference sub- the Senate may move to strike any proposed any general or special appropriation Act, and stitute recommended by the committee of cancellation of a budget item. any Act or joint resolution making supple- ‘‘(B) It shall not be in order to move to re- mental, deficiency, or continuing appropria- conference and insist on inserting the text of consider the vote by which the motion is tions; S. 14 as introduced in the Senate on January agreed to or disagreed to. ‘‘(2) the term ‘direct spending’ shall have 4, 1995 (with certain exceptions) which is as ‘‘(C) Debate in the Senate on a bill under the same meaning given such term in section follows: this subsection, and all debatable motions 250(c)(8) of the Balanced Budget and Emer- SECTION 1. SHORT TITLE. and appeals in connection therewith (includ- gency Deficit Control Act of 1985; This Act may be cited as the ‘‘Legislative ing debate pursuant to subparagraph (D)), ‘‘(3) the term ‘budget item’ means— Line Item Veto Act’’. shall not exceed 10 hours. The time shall be ‘‘(A) an amount, in whole or in part, of SEC. 2. EXPEDITED CONSIDERATION OF CERTAIN equally divided between, and controlled by, budget authority provided in an appropria- PROPOSED RESCISSIONS AND RE- the majority leader and the minority leader tion Act; PEALS OF TAX EXPENDITURES AND DIRECT SPENDING. or their designees. ‘‘(B) an amount of direct spending; or ‘‘(C) a targeted tax benefit; (a) IN GENERAL.—Title X of the Congres- ‘‘(D) Debate in the Senate on any debat- sional Budget and Impoundment Control Act able motion or appeal in connection with a ‘‘(4) the term ‘cancellation of a budget of 1974 (2 U.S.C. 621 et seq.) is amended by bill under this subsection shall be limited to item’ means— adding after section 1012 the following new not more than 1 hour, to be equally divided ‘‘(A) the rescission of any budget authority section: between, and controlled by, the mover and provided in an appropriation Act; the manager of the bill, except that in the ‘‘(B) the repeal of any amount of direct ‘‘EXPEDITED CONSIDERATION OF CERTAIN PRO- event the manager of the bill is in favor of spending; or POSED RESCISSIONS AND REPEALS OF TAX EX- any such motion or appeal, the time in oppo- ‘‘(C) the repeal of any targeted tax benefit; PENDITURES AND DIRECT SPENDING sition thereto, shall be controlled by the mi- and ‘‘SEC. 1012A. (a) PROPOSED CANCELLATION nority leader or his designee. Such leaders, ‘‘(5) the term ‘targeted tax benefit’ means OF BUDGET ITEM.—The President may pro- or either of them, may, from time under any provision which has the practical effect pose, at the time and in the manner provided their control on the passage of a bill, allot of providing a benefit in the form of a dif- in subsection (b), the cancellation of any additional time to any Senator during the ferent treatment to a particular taxpayer or budget item provided in any Act. consideration of any debatable motion or ap- a limited class of taxpayers, whether or not ‘‘(b) TRANSMITTAL OF SPECIAL MESSAGE.— peal. such provision is limited by its terms to a ‘‘(1)(A) Subject to the time limitations ‘‘(E) A motion in the Senate to further particular taxpayer or a class of taxpayers. provided in subparagraph (B), the President limit debate on a bill under this subsection Such term does not include any benefit pro- may transmit to Congress a special message is not debatable. A motion to recommit a vided to a class of taxpayers distinguished on proposing to cancel budget items and include bill under this subsection is not in order. the basis of general demographic conditions with that special message a draft bill that, if ‘‘(F) If the Senate proceeds to consider a such as income, number of dependents, or enacted, would only cancel those budget bill introduced in the House of Representa- marital status.’’. items as provided in this section. The bill tives under paragraph (1)(A), then any Sen- (b) EXERCISE OF RULEMAKING POWERS.— shall clearly identify each budget item that ator may offer as an amendment the text of Section 904 of the Congressional Budget Act is proposed to be canceled including, where the companion bill introduced in the Senate of 1974 (2 U.S.C. 621 note) is amended— applicable, each program, project, or activ- under paragraph (1)(A) as amended if amend- (1) in subsection (a), by striking ‘‘and 1017’’ ity to which the budget item relates. The bill ed (under subparagraph (A)). Debate in the and inserting ‘‘1012A, and 1017’’; and shall specify the amount, if any, of each Senate on such bill introduced in the House (2) in subsection (d), by striking ‘‘section budget item that the President designates of Representatives, and all debatable mo- 1017’’ and inserting ‘‘sections 1012A and for deficit reduction as provided in para- tions and appeals in connection therewith 1017’’. graph (4). (including debate pursuant to subparagraph (c) CLERICAL AMENDMENTS.—The table of ‘‘(B) A special message may be transmitted sections for subpart B of title X of the Con- (D)), and any amendment offered under this under this section— gressional Budget and Impoundment Control subparagraph, shall not exceed 10 hours ‘‘(i) during the 20-calendar-day period (ex- Act of 1974 is amended by inserting after the minus such times (if any) as Senators cluding Saturdays, Sundays, and legal holi- item relating to section 1012 the following: consumed or yielded back during consider- days) commencing on the day after the date ation of the companion bill introduced in the ‘‘Sec. 1012A. Expedited consideration of cer- of enactment of the provision proposed to be Senate under paragraph (1)(A). tain proposed rescissions and rescinded or repealed; or ‘‘(4) Debate in the House of Representa- repeals of tax expenditures and ‘‘(ii) at the same time as the President’s tives or the Senate on the conference report direct spending.’’. budget. on any bill considered under this section (d) EFFECTIVE PERIOD.—The amendments ‘‘(2) In the case of an Act that includes shall be limited to not more than 2 hours, made by this Act shall— budget items within the jurisdiction of more which shall be divided equally between the (1) take effect on the date that is 1 day than one committee of a House, the Presi- majority leader and the minority leader. A after the date of enactment of this Act; dent in proposing to cancel such budget item motion further to limit debate is not debat- (2) apply only to budget items provided in under this section shall send a separate spe- able. A motion to recommit the conference Acts enacted on or after the date of enact- cial message and accompanying draft bill for report is not in order, and it is not in order ment of this Act; and each such committee. to move to reconsider the vote by which the (3) cease to be effective on September 30, ‘‘(3) Each special message shall specify, conference report is agreed to or disagreed 2002.’’. with respect to the budget item proposed to to. Mr. BYRD. Mr. President, I ask for be canceled— ‘‘(d) AMENDMENTS AND DIVISIONS PROHIB- the yeas and nays. ‘‘(A) the amount that the President pro- ITED.—Except as otherwise provided by this The PRESIDING OFFICER. Is there a poses be canceled; ‘‘(B) any account, department, or estab- section, no amendment to a bill considered sufficient second? under this section shall be in order in either lishment of the Government to which such There is a sufficient second. budget item is available for obligation, and the Senate or the House of Representatives. The yeas and nays were ordered. It shall not be in order to demand a division the specific project or governmental func- of the question in the House of Representa- AMENDMENT NO. 3666 TO AMENDMENT NO. 3665 tions involved; tives (or in a Committee of the Whole). No Mr. BYRD. Mr. President, I send an- ‘‘(C) the reasons why the budget item motion to suspend the application of this other amendment to the desk. should be canceled; March 27, 1996 CONGRESSIONAL RECORD — SENATE S2953 ‘‘(D) to the maximum extent practicable, be in order to move to reconsider the vote by conference report is agreed to or disagreed the estimated fiscal, economic, and budg- which the motion is agreed to or disagreed to. etary effect (including the effect on outlays to. ‘‘(d) AMENDMENTS AND DIVISIONS PROHIB- and receipts in each fiscal year) of the pro- ‘‘(C) Debate in the House of Representa- ITED.—Except as otherwise provided by this posed cancellation; and tives on a bill under this subsection shall not section, no amendment to a bill considered ‘‘(E) all facts, circumstances, and consider- exceed 4 hours, which shall be divided equal- under this section shall be in order in either ations relating to or bearing upon the pro- ly between those favoring and those opposing the Senate or the House of Representatives. posed cancellation and the decision to effect the bill. A motion further to limit debate It shall not be in order to demand a division the proposed cancellation, and to the maxi- shall not be debatable. It shall not be in of the question in the House of Representa- mum extent practicable, the estimated effect order to move to recommit a bill under this tives (or in a Committee of the Whole). No of the proposed cancellation upon the ob- subsection or to move to reconsider the vote motion to suspend the application of this jects, purposes, and programs for which the by which the bill is agreed to or disagreed to. subsection shall be in order in the House of budget item is provided. ‘‘(D) Appeals from decisions of the Chair Representatives, nor shall it be in order in ‘‘(4)(A) Not later than 5 days after the date relating to the application of the Rules of the House of Representatives to suspend the of enactment of a bill containing an amount the House of Representatives to the proce- application of this subsection by unanimous designated by the President for deficit reduc- dure relating to a bill under this section consent. tion under paragraph (1), the President shall be decided without debate. ‘‘(e) TEMPORARY PRESIDENTIAL AUTHORITY shall— ‘‘(E) Except to the extent specifically pro- TO RESCIND.—At the same time as the Presi- ‘‘(i) with respect to a rescission bill, reduce vided in this section, consideration of a bill dent transmits to Congress a special message the discretionary spending limits under sec- under this section shall be governed by the proposing to rescind budget authority, the tion 601 of the Congressional Budget Act of Rules of the House of Representatives. It President may direct that any budget au- 1974 for the budget year and each outyear to shall not be in order in the House of Rep- thority proposed to be rescinded in that spe- reflect such amount; and resentatives to consider any rescission bill cial message shall not be made available for ‘‘(ii) with respect to a repeal of a tax ex- introduced pursuant to the provisions of this obligation for a period not to exceed 45 cal- penditure or direct spending, adjust the bal- section under a suspension of the rules or endar days from the date the President ances for the budget year and each outyear transmits the special message to Congress. under section 252(b) of the Balanced Budget under a special rule. ‘‘(3)(A) During consideration of a bill under ‘‘(f) DEFINITIONS.—For purposes of this sec- and Emergency Deficit Control Act of 1985 to tion— reflect such amount. this subsection in the Senate, any Member of the Senate may move to strike any proposed ‘‘(1) the term ‘appropriation Act’ means ‘‘(B) Not later than 5 days after the date of any general or special appropriation Act, and enactment of a bill containing an amount cancellation of a budget item. ‘‘(B) It shall not be in order to move to re- any Act or joint resolution making supple- designated by the President for deficit reduc- mental, deficiency, or continuing appropria- tion under paragraph (1), the chairs of the consider the vote by which the motion is agreed to or disagreed to. tions; Committees on the Budget of the Senate and ‘‘(2) the term ‘direct spending’ shall have the House of Representatives shall revise ‘‘(C) Debate in the Senate on a bill under this subsection, and all debatable motions the same meaning given such term in section levels under section 311(a) and adjust the 250(c)(8) of the Balanced Budget and Emer- committee allocations under section 602(a) and appeals in connection therewith (includ- ing debate pursuant to subparagraph (D)), gency Deficit Control Act of 1985; to reflect such amount. ‘‘(3) the term ‘budget item’ means— ‘‘(c) PROCEDURES FOR EXPEDITED CONSIDER- shall not exceed 10 hours. The time shall be ‘‘(A) an amount, in whole or in part, of ATION.— equally divided between, and controlled by, budget authority provided in an appropria- ‘‘(1)(A) Before the close of the second day the majority leader and the minority leader tion Act; of session of the Senate and the House of or their designees. ‘‘(B) an amount of direct spending; or Representatives, respectively, after the date ‘‘(D) Debate in the Senate on any debat- ‘‘(C) a targeted tax benefit; of receipt of a special message transmitted able motion or appeal in connection with a ‘‘(4) the term ‘cancellation of a budget to Congress under subsection (b), the major- bill under this subsection shall be limited to item’ means— ity leader or minority leader of each House not more than 1 hour, to be equally divided shall introduce (by request) the draft bill ac- between, and controlled by, the mover and ‘‘(A) the rescission of any budget authority companying that special message. If the bill the manager of the bill, except that in the provided in an appropriation Act; is not introduced as provided in the preced- event the manager of the bill is in favor of ‘‘(B) the repeal of any amount of direct ing sentence in either House, then, on the any such motion or appeal, the time in oppo- spending; or third day of session of that House after the sition thereto, shall be controlled by the mi- ‘‘(C) the repeal of any targeted tax benefit; date of receipt of that special message, any nority leader or his designee. Such leaders, and Member of that House may introduce the or either of them, may, from time under ‘‘(5) the term ‘targeted tax benefit’ means bill. their control on the passage of a bill, allot any provision which has the practical effect ‘‘(B) The bill shall be referred to the appro- additional time to any Senator during the of providing a benefit in the form of a dif- priate committee or (in the House of Rep- consideration of any debatable motion or ap- ferent treatment to a particular taxpayer or resentatives) committees. The committee peal. a limited class of taxpayers, whether or not shall report the bill without substantive re- ‘‘(E) A motion in the Senate to further such provision is limited by its terms to a vision and with or without recommendation. limit debate on a bill under this subsection particular taxpayer or a class of taxpayers. The committee shall report the bill not later is not debatable. A motion to recommit a Such term does not include any benefit pro- than the seventh day of session of that House bill under this subsection is not in order. vided to a class of taxpayers distinguished on after the date of receipt of that special mes- ‘‘(F) If the Senate proceeds to consider a the basis of general demographic conditions sage. If the committee fails to report the bill bill introduced in the House of Representa- such as income, number of dependents, or within that period, the committee shall be tives under paragraph (1)(A), then any Sen- marital status.’’. automatically discharged from consideration ator may offer as an amendment the text of (b) EXERCISE OF RULEMAKING POWERS.— of the bill, and the bill shall be placed on the the companion bill introduced in the Senate Section 904 of the Congressional Budget Act appropriate calendar. under paragraph (1)(A) as amended if amend- of 1974 (2 U.S.C. 621 note) is amended— ‘‘(C) A vote on final passage of the bill ed (under subparagraph (A)). Debate in the (1) in subsection (a), by striking ‘‘and 1017’’ shall be taken in the Senate and the House Senate on such bill introduced in the House and inserting ‘‘1012A, and 1017’’; and of Representatives on or before the close of of Representatives, and all debatable mo- (2) in subsection (d), by striking ‘‘section the 10th day of session of that House after tions and appeals in connection therewith 1017’’ and inserting ‘‘sections 1012A and the date of the introduction of the bill in (including debate pursuant to subparagraph 1017’’. (c) CLERICAL AMENDMENTS.—The table of that House. If the bill is passed, the Clerk of (D)), and any amendment offered under this sections for subpart B of title X of the Con- the Senate or the House of Representatives, subparagraph, shall not exceed 10 hours gressional Budget and Impoundment Control as the case may be, shall cause the bill to be minus such times (if any) as Senators Act of 1974 is amended by inserting after the engrossed, certified, and transmitted to the consumed or yielded back during consider- item relating to section 1012 the following: other House within one calendar day of the ation of the companion bill introduced in the day on which the bill is passed. Senate under paragraph (1)(A). ‘‘Sec. 1012A. Expedited consideration of cer- ‘‘(2)(A) During consideration under this ‘‘(4) Debate in the House of Representa- tain proposed rescissions and subsection in the House of Representatives, tives or the Senate on the conference report repeals of tax expenditures and any Member of the House of Representatives on any bill considered under this section direct spending.’’. may move to strike any proposed cancella- shall be limited to not more than 2 hours, (d) EFFECTIVE PERIOD.—The amendments tion of a budget item. which shall be divided equally between the made by this Act shall— ‘‘(B) A motion in the House of Representa- majority leader and the minority leader. A (1) take effect on the date that is 2 days tives to proceed to the consideration of a bill motion further to limit debate is not debat- after the date of enactment of this Act; under this subsection shall be highly privi- able. A motion to recommit the conference (2) apply only to budget items provided in leged and not debatable. An amendment to report is not in order, and it is not in order Acts enacted on or after the date of enact- the motion shall not be in order, nor shall it to move to reconsider the vote by which the ment of this Act; and S2954 CONGRESSIONAL RECORD — SENATE March 27, 1996 (3) cease to be effective on September 30, Mr. HATFIELD. I thank the Senator more power to the President of the 2002.’’. from West Virginia for his yielding me United States. I suppose this is a Mr. DOMENICI. Mr. President, before time. generational gap. I grew up thinking I suggest the absence of a quorum, let Mr. President, a very interesting ex- only Franklin Roosevelt would ever be me ask Senator BYRD if he is getting perience occurred this morning at the the President of the United States. And close to being able to agree to a time Senate prayer breakfast. That is that the Republican cry was, ‘‘He’s leading limit. former Senator Joseph Tydings from us to a dictatorship,’’ the concentra- Mr. BYRD. Yes, I am. Maryland came to join us and some of tion of power in the President’s hands. Mr. DOMENICI. Mr. President, we the newer Senators sitting in our area, The Republican campaign songs, cam- are in the process of restructuring this and we were informed about Senator paign speeches in campaign after cam- to accommodate what he has done. I Joe Tydings’ father, Senator Millard paign, whether you were running for suggest the absence of a quorum. Tydings, who represented the State of county sheriff or for Governor or for The PRESIDING OFFICER. The Maryland and had a very interesting Senator, was to point to the fact that clerk will call the roll. political experience; and that was that under the New Deal and President Roo- The legislative clerk proceeded to he stood up, as a Democrat, to the ef- sevelt, they were concentrating power call the roll. fort on the part of President Roosevelt in the hands of the Chief Executive. Mr. DOMENICI. Mr. President, I ask in 1937 to alter the structure of the Su- And they were. unanimous consent that the order for preme Court, and that, as a result, But here we are now, anxious to say, the quorum call be rescinded. President Roosevelt undertook a purge ‘‘Oh, please, Mr. President, take this The PRESIDING OFFICER. Without in the 1938 elections of those Senators new power. We don’t have the ability objection, it is so ordered. who blocked his effort to change the to exercise the constitutional respon- UNANIMOUS-CONSENT AGREEMENT structure of the Supreme Court which sibility of creating and holding the Mr. DOMENICI. Mr. President, I be- was in effect termed in those days ‘‘to purse strings.’’ lieve we are ready to enter into a unan- pack the Court.’’ That is what it is. Call it by any imous-consent agreement. I am going But he failed because the people of other name, it is still a transfer of to read it. Senator BYRD has seen it. Maryland, as well as the people from power and an enhancement of power in Perhaps he has some suggestions, but Georgia, both returned those Senators the hands of the President. I think it is let us get it on the RECORD right now. that helped fight the packing of the a sad commentary on the responsibil- I ask unanimous consent that during Supreme Court—Democrats. They said, ity and the history and the constitu- the consideration of the conference re- in effect, we support Mr. Roosevelt and tional duties of the U.S. Congress to port on S. 4, the line-item veto bill, the New Deal, but when he begins to say to the President, ‘‘We don’t have there be a total of 9 hours for debate on tamper with the separation of powers the capability to exercise this, so we’re the conference report, with 4 hours and the checks and balances that our going to dump it in your lap.’’ under the control of Senator DOMENICI, forefathers established in the Constitu- That was the story we talked about or his designee, with the last hour of tion, President Roosevelt has gone too this morning with Senator Joe Senator DOMENICI’s time under the con- far. Tydings, because his father had the trol of Senators MCCAIN and COATS; Mind you, at that time, Mr. Presi- courage to stand firm as a Democrat further, the remaining 5 hours under dent, there were about 19 Republicans against a Democratic President to stop the control of Senator BYRD; any mo- sitting on this side of the aisle, out of this kind of imbalance that was being tions be limited to 60 minutes equally the 96, and they had what they called suggested by the President of the Unit- divided and any amendments thereto the Cherokee strip because there were ed States to add new members to the be limited to 60 minutes equally di- not enough seats for the Democrats to Supreme Court so he could have his vided, as well, with all time counting stay on that side of the aisle, and they total way. He controlled the Congress against the overall limitation for de- took these back rows across this Sen- of the United States by extraordinary, bate; and further, that following the ate and occupied those. extraordinary majorities. But it was expiration or yielding back of time and Senator Charles McNary of Oregon, the Supreme Court that got in his way. disposition of any motions, the Senate with his little band of 19 Senators, with So he was going to change the struc- proceed to vote on the adoption of the the assistance of the Democrats who ture of the Supreme Court so he could conference report with no intervening would not support a Democratic Presi- have more power. action. dent in packing the Supreme Court, Now, here is an interesting thing. I further ask unanimous consent that held Mr. Roosevelt’s effort and blocked Here is a Republican-led effort to give all the time used for debate up to now it. more power to a Democratic President. on the Republican side relative to the Mr. Roosevelt was not suggesting Maybe the election will change that in conference report be deducted from the that we change the Supreme Court in November, but once you transfer that time allotted under the consent agree- terms of its rulings and its duties, power, no matter who is the President, ment. ‘‘But just let me appoint one here and you have transferred power to the The PRESIDING OFFICER. Is there one there and one somewhere else when other branch of Government. objection? Without objection, it is so they get a certain age and they have One last little incident that I want to ordered. not retired,’’ because he was facing a mention, and that is a few years ago Time is now controlled. Frank Church, a Democratic Senator Mr. DOMENICI. I thank the Chair, hostile Supreme Court which was knocking down his legislation point by from Idaho—Senator Church had been and I thank Senator BYRD. The PRESIDING OFFICER. Time is point when they found it to be uncon- a strong supporter of President John- now controlled. Who yields time? stitutional. son’s Vietnam policy. The day came Mr. DOMENICI. Mr. President, par- Mr. President, this is the greatest ef- when he decided to join those of us who liamentary inquiry. How much time fort to shift the balance of power to the were opposing the Vietnam policy, and have we used on our side in favor of the White House that has happened since he got up over there—and I can remem- bill? Franklin Roosevelt attempted to pack ber how he made his speech, of stating The PRESIDING OFFICER. The ma- the Supreme Court. He is asking, ‘‘Oh, his position now as an opponent of the jority has used 38 minutes. just give me a little veto here and a lit- Vietnam war. In that speech he quoted Mr. DOMENICI. I thank the Chair. I tle veto there and a little veto some- Walter Lippmann, who was a very re- yield the floor. where else, and I select.’’ nowned, very respected writer and had Mr. HATFIELD addressed the Chair. This is a concentration and transfer commented extensively on the issue of Mr. BYRD. Mr. President, I yield 15 of power to the Chief Executive. I the Vietnam war. minutes of the time under my control think it is contrary to sound constitu- So he quoted Walter Lippmann in his to the distinguished senior Senator tional practice. I am appalled that my speech in saying, ‘‘I now stand, and I from Oregon, [Mr. HATFIELD]. colleagues on the Republican side hate to say this to President Johnson, The PRESIDING OFFICER. The Sen- should help by leading the effort to but I have to now take my position in ator from Oregon. give more power to the White House, opposition to the war policy.’’ March 27, 1996 CONGRESSIONAL RECORD — SENATE S2955 Well, a week or so later Senator well for over 200 years in the separa- fornia, Ronald Reagan used the line- Church and Bethine, his wife, were tion of powers. item veto authority to effectively re- down at the White House for a social I want to say, I do not trust any duce wasteful spending. function that President Johnson in- President—I do not care whether he is I have opposed this bill in the past vited them to. As was the custom, they Democrat or Republican—wanting to because it did not cover the largest cul- were going through the receiving line exercise all the power we want to give prits of wasteful spending: entitle- to pay their respects to President to him. Every person in this body that ments and tax breaks for special inter- Johnson. You say different kinds of lit- votes for this in the younger genera- ests. Together, they account for hun- tle remarks at that point to the Presi- tions will live to see the day when it dreds of billions of dollars each year. I dent, very much a personal eyeball to passes that they will regret that they opposed this bill because I did not eyeball. So Frank Church said to Presi- bestowed this kind of power on the think that we were committed to a bal- dent Johnson, ‘‘You know, I have this Chief Executive of the United States. It anced budget concept. This bill goes to- Idaho project, and it’s going to be com- is contrary to our Republican doctrine. gether with the balanced budget ing down to the White House soon. I We want diffusion of power. We want amendment and the significant steps hope you’ll help me on it.’’ President the diffusion and the decentralization that the Congress took in the Gramm- Johnson looked him straight in the eye of power. Rudman-Hollings procedures. In my and said, ‘‘Why don’t you go ask Wal- Yet the same Republicans that talk judgment, this bill will enable the ter Lippmann for it.’’ ‘‘Why don’t you on the one hand about too much power President to assist in carrying out the go ask Walter Lippmann for it.’’ in the Federal Government, we should original intention of Gramm-Rudman- I do not have to draw a picture to see give more power to local government Hollings. At my request, the bill has the linkage in the President’s mind or more power to the private sector, been expanded and broadened to cover that you have decided not to support are now wanting to bestow an addi- not only appropriations for specific me on a war policy, well, I probably tional amount of power on the Chief projects but tax breaks and entitle- will be less than helpful to you on some Executive. ments as well. kind of a project you have in Idaho. It I yield the floor. Today, Congress has the power to cut invites all sorts of mischief. I can Mr. BYRD. Mr. President, I ask that programs the President proposes that imagine the days when I stood very the time that was consumed by Mr. we believe are unnecessary, but unless the President vetoes an entire appro- much in the minority on this Senate HATFIELD be charged against the 5 floor in opposing that Vietnam policy. hours under my control and not priations bill, he is powerless to single out a specific project he opposes. Like- I can very well imagine that I could against the time on the motion. wise, unless he vetoes an entire tax have been given the same kind of treat- The PRESIDING OFFICER. The Sen- bill, he cannot eliminate an unneces- ment that he was extending to Frank ator has that prerogative. The time sary tax break designed to benefit only Church, probably more likely because I will be charged that way. a narrow, special interest. This bill was a Republican. Mr. STEVENS. Mr. President, I yield gives the President those powers tem- But let me say, there is not a single such time as I need. It will not be very porarily. long. I do want to say at the beginning Senator in this body who could not be- In his annual State of the Union Ad- that I am of the generation of the Sen- come a target for that kind of political dress nearly 15 years ago, President mischief exercised by a President when ator from West Virginia and the Sen- Reagan came before us and asked us for he wants your vote, when he needs ator from Oregon, and have taken the the same power that Governors have, your vote, when he, in effect, is de- positions they have stated in the past. the power the Governor of Alaska has, manding your vote. Then you stand I am here today to explain why I sup- and that he enjoyed as the Governor of there with your particular constitu- port this bill. California. Today, we are giving a Mr. DOMENICI. Will the Senator ency when you have some funding of President what President Reagan re- some kind in the Appropriations Com- yield? quested, but it is enhanced, Mr. Presi- Mr. STEVENS. I yield. mittee, and he can just take that pen dent. It is more than President Reagan Mr. DOMENICI. Whatever time is of his and, bop, just knock you out of requested. It has been a long time com- consumed by the Senator, I ask that it the box; or he can say, ‘‘Now, I’ll listen ing, and I am pleased and hope that we be charged against the bill and not to your willingness to support me on will fulfill his dream. I want everyone against the amendment. this.’’ to understand it is much, much, great- The PRESIDING OFFICER. The Sen- Likewise, it invites political mischief er than what President Reagan asked ator has that prerogative. It will be in this body, the Congress. They can for. load up a bill and say, ‘‘Well, the Presi- charged that way. I have supported this conference re- dent now will have to veto that. He’ll Mr. STEVENS. Mr. President, I was port because it includes the core con- have to take that kind of political pleased to be able to file this con- cept that I insisted on when the Senate stance. We can embarrass him by forc- ference report on S. 4, which is called considered S. 4 a year ago. That was ing him to veto that out of the bill.’’ I the Line-Item Veto Act. If enacted, I that the line-item authority would do not think we want to do that either. believe it will be the most significant apply to all three areas of Federal I only wish that we would read our delegation of authority by the Con- spending. Until then, as I said before, history, and remember that we came to gress to the President since the Con- the proposals for a line-item veto hit this country to escape monarchies, dic- stitution was ratified in 1789. only appropriations and left those tators, czars, kaisers, and those power- What the Senator from West Virginia large culprits, entitlements and target ful executives that ran everything in and the Senator from Oregon has said tax breaks, untouched. their governments. We deliberately set is true. It is a major, major, change in The conference report gives to the up three branches of government; we the policy of the Congress toward the President the specific authority to can- deliberately assigned different powers; executive branch. It is a temporary del- cel dollar amounts of discretionary at the same time, we had mixing of egation of authority under this bill. budget authority, items of new direct powers. This delegation is necessary and appro- spending, and limited tax benefits in We are in the middle of an appropria- priate to help reduce the current Fed- any law that is enacted after the effec- tion effort. There is not one way the eral budget deficit, a deficit that I be- tive date. This means the President President of the United States can lieve threatens to destroy the future will be able to line out specific items in force us to appropriate a dollar we do well-being of our great Nation. all three areas of Federal spending, not want to appropriate. However, we It is not without a lot of soul search- whether it be appropriations, entitle- cannot appropriate a dollar without ing that I made the change in position ments, or limited tax breaks. the President’s approval or veto. That that I have made on this bill. Mr. The cancellation would be effective is the mixing of powers. He has legisla- President, 43 Governors around the immediately and the money that is not tive powers; we have executive powers. country have some form of line-item spent goes to deficit reduction. It is Consequently, we should not tinker veto authority, including my own Gov- part of the budget process, in my opin- with something that has worked very ernor in Alaska. As Governor of Cali- ion. Money that is saved because of the S2956 CONGRESSIONAL RECORD — SENATE March 27, 1996 exercise of the veto in this bill cannot increase Federal spending above the may have so defined limited tax breaks be spent for any other purpose by the current baseline. By allowing the that they will never be touchable by President or by Congress. President to cancel increases in exist- the veto pen. But I think it illustrates Now, much has been said in the press ing entitlement programs, or the cre- my point that appropriations are not about the need for the line-item veto to ation of new ones, the conference re- now, nor will they be in the future, to- control wasteful spending through the port provides the opportunity to con- tally responsible for the current Fed- appropriations process. We have heard trol the explosive growth in mandatory eral budget deficit. They are a part of from the former chair of the Appropria- spending. I basically support this bill it. They are a part of it, but the major tions Committee and the current chair- because it now will give us a tool to re- part of it is the entitlement spending man of the Appropriations Committee. quire the President to help us control and the special tax breaks that account I still have hopes and dreams that I the growth in nondiscretionary spend- for so much of the problem. may be chair of the Appropriations ing. In the case of appropriations, the Committee. Now, I think that ought to be very President may cancel any dollar Many people wonder why I have clear. In the area of taxes, the con- amount identified in an appropriations changed my mind at this time. I think ference report does not go as far as I bill itself, or in the accompanying that some Members here seem to miss would have liked. But it was the best statement of managers or committee the fact that the discretionary appro- that we could get the conferees to reports. priations account only for 35 percent— agree to. Under our agreement, the In addition, if an authorizing law has not even 35 percent, but approximately President could cancel any limited tax the effect of requiring the expenditure 35 percent—of Federal spending. The benefit in a law under one of two condi- of funds provided in appropriations law remainder of Federal spending is man- tions: for a particular program or project, the datory, in the form of entitlements, First, if the law contains a list of President may also cancel the dollar tax breaks, interest on the national specific provisions, identified by the amount specified in the authorization debt, items we cannot control. There is Joint Committee on Taxation as meet- law. I am not sure how many Senators no figure available for the amount of ing the definition of a limited tax bene- realize that. But this is a very, very revenue that is lost to the Government fit in the conference report before the broad power we are delegating to the through these targeted tax breaks, Senate now, then the President may President of the United States. what the conference report now calls cancel any provision so identified. The delegation is carefully struc- limited tax benefits. Second, if the law does not contain tured in order to precisely define the If the Balanced Budget Act that Con- such a list prepared by the Joint Tax President’s authority. In order to increase the President’s gress sent to the President had not Committee, then the President may discretion to cancel dollar amounts, been vetoed, by fiscal year 2002 discre- cancel any provision that meets the the conferees agreed to allow the Presi- tionary appropriations would account definition, in his opinion, of the lim- dent to use the statement of managers only for 26 percent of Federal spending, ited tax benefit contained in this con- or the governing committee report to a decrease of 9 percent even without ference report. As I mentioned earlier, identify those dollar amounts. the line-item veto. Let me repeat that: Mr. President, there is no ready list of However, in order to prevent dis- Congress agreed to a bill that the revenue that has been lost to the Fed- agreements between the President and President vetoed that would have re- eral Government through targeted tax Congress over the dollar amount that duced the moneys covered by the ap- benefits. However, I believe it contin- can be canceled, the conferees specifi- propriations process within a 7-year-pe- ues to run into hundreds of billions of cally limited the President’s authority riod by 9 percent. The Congress already dollars. to the entire dollar amount specified vetoed the prospect of an increase to In the analytical perspectives that by Congress in the particular document the extent of 9 percent, Mr. President. accompanied the President’s 1997 budg- he references—either the law itself or By contrast, entitlements under the et, there is a table on pages 86 and 87 an accompanying report. balanced budget bill that we passed and that I call to the Senate’s attention. In addition, the President is required the President vetoed would have grown This lists the revenue that will be lost to cancel the entire dollar amount and from 55 percent to 60 percent of Federal from major tax breaks of the past. The may not cancel part of that dollar spending. The increase would continue. largest is $70 billion in fiscal year 1997 amount. That was an increase of 5 percent in 7 for the exclusion of employer contribu- This limitation was included in order years, with interest on the national tions to medical insurance. to ensure that the line item veto au- debt accounting for the balance of Fed- Over fiscal years 1997 to 2001, that ex- thority is not used to change policies eral expenditures. emption will cost the Government $423 adopted by the Congress that deals To put it another way, Mr. President, billion. Let me repeat that in case any- with appropriations or increases in tax in 1980 the Defense Department ac- one did not get that. In the period of benefits or entitlements. The line item counted for 23 percent of Federal time between 1997 and 2001, in the ex- authority cannot, for example, be used spending while the Social Security Ad- emption that is already in one of the to reduce the amount appropriated for ministration accounted for 19 percent, tax bills that exempts employer con- B–2 bombers so that the number of the and the Department of Health and tributions to medical insurance, we bombers has changed. He must delete Human Services 10 percent of total will lose revenues of $423 billion. That the entire amount to effect a change in Federal spending. Seventeen years is 75 percent of the entire discretionary policy. later, the Department of Defense will budget that we are working on now in Likewise, the conferees made clear get 17 percent; Social Security, 25 per- the Appropriations Committee. that the cancellation authority does cent; Health and Human Services, 22 The smallest tax break listed in the not apply to any condition, limitation, percent. In other words, the Depart- President’s addendum is a special al- or restriction on the expenditure of ment of Defense continues to go down ternative tax on small property and funds or activities involving expendi- while Social Security and Health and casualty insurance companies. That ture of funds. Human Services continues to go up. provision will cost the Government, ac- This means, for example, that the Defense spending is all discretionary. cording to the President’s statement, President cannot cancel a prohibition It would be subject to the line-item $25 million between 1997 and 2001. on the expenditure of funds to imple- veto under the original concept. The It is impossible to tell from the table ment a particular law or regulation. other two agencies that handle pri- whether any of the provisions listed The statement of managers before marily entitlement programs would would in fact meet the definition of the Senate contains a number of spe- have been immune under the original limited tax benefits under the con- cific examples to illustrate the con- line item veto concept. ference report. I urge the Senate to re- ferees’ intent with respect to those This conference report allows the member that. It may well be that, al- items the President may cancel in ap- President to cancel new direct spend- though we are starting toward an at- propriations bills, and I want to incor- ing, which means any provision con- tempt to give the President the right porate those in my remarks at the con- tained in nonappropriations laws which to eliminate limited tax breaks, we clusion. March 27, 1996 CONGRESSIONAL RECORD — SENATE S2957 I ask unanimous consent that they be to point to the chairman of the Budget before us today will continue the mech- printed following my remarks. Committee, who was a cochairman of anisms of discipline to bring about The PRESIDING OFFICER (Mr. the Senate portion of the conference, elimination of the deficit. I pray to the LOTT). Without objection, it is so or- and I point to Senators MCCAIN and good Lord that we will succeed this dered. COATS, who brought the original con- time. (See exhibit 1.) cept to the floor, and Chairmen Thank you, Mr. President. Mr. STEVENS. Mr. President, as the CLINGER and SOLOMON on the House I have asked that one page from this Senator from New Mexico, PETE DO- side. Their hard work helped to bring report be printed after my remarks. I MENICI, said earlier today, this has been this bill together and bring it before call the Senate’s attention to it. I do a difficult conference. Senator DOMEN- the two bodies now. hope every Senator will read it. It is on ICI and his staff worked tirelessly on We are all indebted to our majority page 20, section 1021, line-item veto au- this conference report and deserve leader, Senator DOLE. He really held thority. much of the credit for it. our noses—and sometimes other That is what this bill is, not what it Let me review just briefly some of things—to the grindstone. is not, but that is what it is. I think the differences that had to be resolved. I thank the current occupant of the Senators should realize that. In the House bill, there was an en- chair, Senator LOTT, for his role as the The PRESIDING OFFICER. Without hanced rescissions approach, while the assistant majority leader. objection, it is so ordered. Senate bill that went to conference Mr. President, this bill is really a sig- (See exhibit 2.) used separate enrollment. nificant bill. Anyone who thinks it is EXHIBIT 1 The House bill applied only to appro- something that should be passed over EXCERPT FROM STATEMENT OF MANAGERS priations and targeted taxes, while the lightly is wrong. It is a major change (7) Dollar Amount of Discretionary Budget Senate bill applied to appropriations, in the balance of Government power. It Authority. The term ‘‘dollar amount of dis- any tax that favored any one group, is really a check on the check of the cretionary budget authority’’ is carefully de- and new entitlement programs as well. checks and balances, as far as I am fined in section 1026(7) in order to ensure The House bill made the President’s that the President’s authority to cancel dis- line item veto of a program effective concerned. We are indebted to the staff who cretionary spending in appropriation laws is after a congressional review period, clearly delineated. The conference report worked out many of the problems while the Senate used a constitutional delegates the authority to the President to veto that was effective immediately. which we encountered with this bill. cancel in whole any dollar amount specified The Senate bill contained a manda- We would point them in the general di- in an appropriation law. tory lockbox for deficit reduction. The rection, and they came back with lan- In addition, to increase the President’s dis- cretion, the conference report allows the House bill did not. guage and concepts that would fulfill our goal. President to cancel a dollar amount of budg- The Senate bill contained a sunset, et authority provided in an appropriation and the House bill did not. Earl Comstock, who is here with me now, on my personal staff; Christine law by specific amounts identified by the The list can go on and on, but fore- Congress in the statement of managers, the most among all of these issues were Ciccone, who helped from the Govern- governing committee report, or other law. real questions about just what it was mental Affairs Committee; Austin By limiting the delegation of authority, the that we were delegating to the Presi- Smythe, Bill Hoagland, Beth Felder, conferees intend to preclude arguments be- dent, and if that delegation would be and Jennifer Smith on the Budget tween the Executive and Legislative found constitutional. Committee; Mark Busey with Senator Branches and to ensure that the delegation After many long days and nights, and MCCAIN; Sharon Soderstrom and Megan is not overbroad or vague. As is described in not a few testy meetings—and I must Gilly with Senator COATS; John Schall further detail below, the conferees have sought to provide the President the ability with Senator DOLE; Monty Tripp with say, these conferences were the most to rescind entire dollar amounts, even if not acrimonious I have faced in 28 years— Chairman CLINGER; Eric Pelliter with specified as a dollar amount in the law itself, I believe that we have taken the best Chairman SOLOMON; and Wendy Selig so long as the dollar amount can be clearly elements of both bills and created with Congressman GOSS. identified and is in an indivisible whole with something that will work as Congress We got to know them pretty well, which Congress has previously agreed. intends. I think it may be too narrow, Mr. President. Unfortunately, they got The conferees note that the definition spe- rather than too broad, before we are to know us too well. cifically excludes certain types of budget au- thority that are addressed by other provi- through. I think this is truly a momentous piece of legislation. I regret deeply sions in part C of title X, as well as any re- More importantly, I think we have a striction, condition, or limitation that Con- clear delegation of authority to the that I disagree with my good friend gress places on the expenditure of budget au- President for a specific purpose, and it from West Virginia and my chairman thority or activities involving such expendi- is for the purpose of deficit reduction. of the Appropriations Committee now. ture. The exclusion of restrictions, condi- That is what will pass constitutional In my judgment, if it is my watch be- tions, or limitations is included to make muster, and I urge Members to remem- tween the years 1997 and 2000, I intend clear that the President may not use the au- ber that. to see to it that the Appropriations thority delegated in section 1021(a) to cancel This is a bill for deficit reduction Committee heeds this warning. If we anything other than a specific dollar amount that goes hand-in-hand with the con- take action which might lead to in- of budget authority. The cancellation authority cannot be used cept of a balanced budget bill, a bill to creases in the deficit, if we allow funds to change, alter, modify, or terminate any require the elimination of a deficit. It to be spent which are not necessary, I policy included by Congress, other than by is a mechanism to assist in congres- hope the President will use this au- rescinding a dollar amount. Obviously, if the sional discipline to ensure that the thority. If he uses his pen, as my good Congress has included a restriction in the Congress and the executive branch ex- friend from West Virginia suggests, in law that prohibits the expenditure of budget ercise the discipline that is necessary a political fashion—if any President authority for any activity, there is no dollar to bring about an elimination of the does that, he or she—during this period amount to be rescinded by the President, nor deficit that so plagues our future. It is we are dealing with, then I think this would any money be saved for use in reduc- ing the federal budget deficit, which is a re- not something that is a permanent is a powerful tool that will go away. quirement for the use of the authority pro- change in constitutional power. If it is The Congress will not allow the execu- vided under section 1021(a). to be continued, that is for someone tive branch to have a power such as As described in subparagraph (A)(i), the who comes to this body after most of this to be exercised frivolously or po- President many cancel the entire dollar us will have left. But, as a practical litically. amount of budget authority specified in an matter, I think it is a step that must This is a change in the Government appropriation law. The term ‘‘entire’’ means be taken if we are to demonstrate our structure we are suggesting. We are just that; the President may rescind, or suggesting that the President hold the ‘‘line out’’ the dollar amount of budget au- complete commitment to the concept thority specified in the law, so that the dol- of eliminating a deficit and bringing pen which allows the Congress to carry lar amount provided in the law becomes zero about a balanced budget. out the discipline that it imposed on it- after the cancellation. For example, in Pub- I want to congratulate the members self. Gramm-Rudman-Hollings started lic Law 104–37, the Agriculture Appropria- of the conference. In particular, I want this, Mr. President, and this bill that is tions Act for Fiscal Year 1996, $49,486,000 was S2958 CONGRESSIONAL RECORD — SENATE March 27, 1996 provided in the law for special grants for ag- authority to documents that accompany the scind the entire dollar amount represented riculture research. Using the authority law that is enacted. Rather, as an exercise of by the product of those two figures. The con- granted under section 1021(a)(1), as defined its authority to specify the terms of the del- ferees expect that the President will use the under section 1026(7)(A)(i), the President egation to the President, Congress is choos- best available information, as represented by could cancel only the entire $49,486,000. ing to use those documents as a means of al- the President’s budget submission or binding Further, again under subparagraph (A)(i), lowing the President increased discretion to contract documents, to estimate the pro- if the appropriation law does not include a reduce dollar amounts of discretionary budg- curement cost. specific dollar amount, but does include a et authority provided in an appropriation The conferees have included the following specific proviso that requires the allocation law. In order to ensure that the delegated example in order to more clearly explain the of a specific dollar amount, then the Presi- authority is clear, the conferees have limited definition of dollar amount of discretionary dent may rescind the entire dollar amount that authority to dollar amounts identified budget authority as defined by section that is required by the proviso. A fictitious by Congress in the appropriation law, the ac- 1026(7). These examples are used solely for il- example of what the conferees intend in this companying statement of managers, the gov- lustrative purposes and the conferees are in case follows: erning committee report or other law. Since no way commenting on the merit of any of An appropriation law includes a provision Congress often provides detailed identifica- these programs. The conferees do not intend that states ‘‘for the operation and mainte- tion of dollar amounts in the accompanying for these examples to represent all instances nance of the Army, $1,400,000,000, provided documents, they represent an agreed upon where cancellation authority may be used. Fort Fictitious is maintained at Fiscal Year set of dollar amounts that the President may The FY 1996 Agriculture Appropriations 1995 levels,’’. In this instance, the President rescind in their entirety. Act (Public Law 104–37) appropriates could ascertain what the operation of Fort Subparagraph (A)(iii) has been included by $49,846,000 in special grants for agriculture Fictitious cost in FY 1995, and could rescind the conferees to address a specific cir- research. The Conference Report accompany- that entire amount from the $1.4 billion pro- cumstance where neither the appropriation ing this law contains a table that allocates vided for Army O&M. The conferees note law nor the accompanying statement of the $49,846,000 total into lesser dollar that the President would have to take the managers or committee reports include any amounts of all which correspond to individ- entire dollar amount required to operate itemization of a dollar amount provided in ual research programs. This table, for exam- Fort Fictitious in FY 1995, and could not that appropriation law. However, another ple, contains a $3,758,000 allocation for simply take part of that amount. It is in- law mandates that some portion of the dollar ‘‘Wood Utilization Research (OR, MS, MN, tended to be an all or nothing decision. amount provided in the appropriation law be ME, MI)’’. As a further specific illustration, the con- allocated to a specific program, project, or Using the definition in section 1026(7)(A) (i) ferees note that the General Construction activity that can be quantified as a specific and (ii), the President could cancel either Account in Public Law 104–46, the Energy dollar amount. In this case, the President the entire $49,846,000 specified in the statute and Water Development Appropriations Act, could rescind the entire dollar amount re- or the entire $3,758,000 described in the chart 1996, states: quired to be allocated by the other law, since in the Conference Report. However, because ‘‘$804,573,000 to remain available until ex- that dollar amount has been identified by the Congress did not break down the alloca- pended, of which such sums as necessary pur- Congress as a specific dollar amount that tions for each state associated with this suant to Public Law 99–662 shall be derived must be spent. As is the case with the earlier project the President would not have the au- from the Inland Waterways Trust Fund, for provisions, the President could not rescind thority to take a portion of the $3,758,000 al- one-half of the costs of construction and re- part of the dollar amount mandated by the located to wood utilization research. habilitation of inland waterways projects, other law. It is an all or nothing decision. The conferees intend that cancellation au- including rehabilitation costs for the Lock Likewise, the President could not use the thority only applies to whole items. If an item (or project) occurs in more than one and Dam 25, Mississippi River, Illinois and cancellation authority to change, alter, or state, and the law or a report that accom- Missouri . . . ’’ modify in any what the other law. In this example, the President could cancel An example of the authority provided in panies an appropriation law lists an item the entire $804,573,000 or could cancel an subparagraph (A)(iii) is found in section 132 (project) and then lists a series of states, it amount equal to the entire dollar amount of Public Law 104–106, the National Defense is the entire item that must be canceled. In the example listed above, ‘‘Wood Utili- that would be required to fund the rehabili- Authorization Act for Fiscal Year 1996. Sec- zation Research’’ appears in the report as: tation costs of the Lock and Dam 25 project, tion 132 states that ‘‘Of the amounts appro- ‘‘Wood Utilization Research (OR, MS, NC, noting in his message all information as re- priated for Fiscal Year 1996 in the National MN, ME, MI).’’ quired by section 1022. Defense Sealift Fund, $50,000,000 shall be The conferees believe it is important to In subparagraph (A)(11) the President is available only for the Director of the Ad- note that this line in the report must be can- given the authority to rescind the entire dol- vanced Research Projects Agency for ad- celed in its entirety. The President’s can- lar amount represented separately in any vanced submarine technology activities.’’ In cellation authority is strictly limited. The table, chart, or explanatory text included in this example the President could ‘‘look President has no authority in this example the statement of managers or the governing through’’ the appropriation law to the au- to cancel wood utilization research for committee report that accompanies an ap- thorization law that mandates that $50 mil- Michigan only. propriation law. The term ‘‘governing com- lion is available only for advanced sub- To further illustrate this example, the con- mittee report’’ is included to address the fact marine technology activities, and could can- ferees submit the following examples that that the current practice in preparing the cel the entire $50 million. corresponds to a chart contained in the same statement of managers for a conference re- However, had the appropriation law con- conference report: ‘‘Aflatoxin (IL), 133,000; port on an appropriation law is to simply ad- tained a provision that contradicted or oth- Human Nutrition (AR), 425,000; Human Nu- dress changes that were made in the statu- erwise made the mandate in the authoriza- trition (IA), 473,000; Wool Research (TX, MT, tory language and the accompanying com- tion law ineffective with respect to the allo- WY) 212,000.’’ mittee reports, thus leaving intact and in- cation of the National Sealift Fund, then the In this case, the President may cancel corporating by reference tables, charts, and President would not be able to use the Aflatoxin (IL), Human Nutrition (AR), explanatory text in one of the two commit- amount in the authorization law as the basis Human Nutrition (IA), and/or Wool Research tee reports that were not modified by the for the cancellation of a dollar amount of (TX, MT, WY). Although there are two conference. discretionary budget authority. As with ap- human nutrition research projects listed in An example of the authority described in propriations laws, the President cannot use two different states, because of the manner subparagraph (A)(ii) is found in the Con- the authority in subparagraph (A)(iii) to in which they are listed, each project may be ference Report accompanying the FY 1996 change, alter, or modify any provision of the separately canceled. Again, the President Military Construction Appropriations Act authorization law. may only cancel the entire wool research (Public Law 104–32). The statement of man- Subparagraphs (A)(iv) and (A)(v) are vari- program and may not cancel only wool re- agers accompanying the conference report ations on the authority granted in clauses (i) search in Texas. contains a chart denoting allocations of dol- through (iii), and are intended to address the Section 1026(7)(B) describes what is not in- lars to various installations and projects. On circumstance where Congress does not speci- cluded in the definition of ‘‘dollar amount of page 38 there is an allocation of $10,400,000 fy in the appropriation law, the accompany- discretionary budget authority.’’ Subpara- for a physical fitness center at the Bremer- ing documents, or other law a specific dollar graphs (B)(i) and (B)(ii) exclude items of new ton Puget Sound Naval Shipyard. Except for amount, choosing instead to require the pur- direct spending, for which cancellation au- this chart there is no other reference to the chase of a particular quantity of goods. Sub- thority is provided under other sections of physical fitness center in either the statute paragraphs (A)(iv) and (A)(v) allow the Presi- part C of title X. Subparagraph (B)(iii) ex- or narrative explanation in the Conference dent to rescind the entire dollar amount of cludes from the definition any budget au- Report. under the authority provided by the discretionary budget authority represented thority canceled or rescinded in an appro- definition in subparagraph (A)(ii), the Presi- by the quantity specified in the law or docu- priation law in order to ensure that those dent could cancel the entire $10,400,000 pro- ments. To determine the specific dollar cancellations or rescissions cannot be un- vided for the physical fitness center, but amount, the President is required to mul- done by the President using the cancellation could not cancel only a part of that amount. tiply the estimated procurement cost by the authority. The inclusion of subparagraph (A)(ii) is not total quantity of items specified in the law As described earlier, subparagraph (B)(iv) intended to give increased legal weight or or documents. The President may then re- excludes from the definition any restriction, March 27, 1996 CONGRESSIONAL RECORD — SENATE S2959

condition, or limitation in an appropriation within five days of the date of enactment of guished Senator from Alaska [Mr. STE- law or the accompanying statement of man- the law from which the cancellations are VENS], and the other Members of the agers or governing committee report on the made, and must notify the Congress by Senate who were conferees. expenditure of budget authority or on activi- transmittal of a special message within that As I sat and listened to him as he has ties involving such expenditure. The follow- time. ing two examples illustrate the conferees’ in- The conferees specifically include the re- outlined the changes that were brought tent that the President cannot use the can- quirement that a bill or joint resolution within the bill during the meeting of cellation authority to alter the Congres- must have been signed into law in order to the conference, I commend our Senate sional policies included in these restrictions, clarify that the cancellation authority only conferees. I think they brought about conditions, or limitations. becomes effective after the President has ex- several improvements over the House The Labor, Health and Human Services ercised the constitutional authority to enact position. I thank them for that. and Education and Related Agencies Appro- legislation in its entirety. This requirement Mr. STEVENS. Mr. President, I am ensures that the President affirmatively priations Act, H.R. 1217, as amended by the honored by those comments. Senate Appropriations Committee contained demonstrates support for the underlying leg- the following section: islation from which specific cancellations I yield the floor. ‘‘SEC. 103. No amount of funds appropriated are then permitted. Several Senators addressed the in this Act for fiscal year 1996 may be used to The term ‘‘cancel’’ was specifically chosen, Chair. implement, administer, or enforce any exec- and is carefully defined in section 1026. The The PRESIDING OFFICER. The Sen- utive order, or other rule or order, that pro- conferees intend that the President may use ator from Arizona is recognized. the cancellation authority to surgically ter- hibits Federal contracts with, or requires Mr. MCCAIN. Mr. President, I thank minate federal budget obligations. The can- that debarment of, or imposes other sanction the Senator from Alaska for his gra- on, a contractor on the basis that such con- cellation authority is specifically limited to any entire dollar amount of discretionary cious remarks, and all of those in- tractor or organizational unit thereof perma- volved in this, including the occupant nently replaced lawfully striking workers.’’ budget authority, item of new direct spend- The President’s cancellation authority ing, or limited tax benefit. The cancellation of the chair, the Senator from Mis- only applies to entire dollar amounts. The authority does not permit the President to sissippi. above example of ‘‘fencing language’’ is a rewrite the underlying law, nor to change There is very little doubt that the limitation and contains no dollar amount. any provision of that law. The President Senator from Alaska had the most dif- Therefore, the President has no authority to may only terminate the obligation of the ficult time with this legislation. That alter or cancel this statement of Congres- Federal Government to spend certain sums of money through a specific appropriation or is understandable given the fact that sional policy. he will play a key and vital role in the If a limitation or condition on spending— mandatory payment, or the obligation to ‘‘fencing language’’—is not written as a sepa- forego the collection of revenue otherwise upcoming appropriations process which rate numbered or unnumbered paragraph, due to the Federal Government in the ab- affects us. but instead is written as a proviso to an ap- sence of a limited tax benefit. So we are very grateful, not only for Likewise, the terms ‘‘dollar amount of dis- propriated amount, the President still has no his gracious remarks, but for his very cretionary budget authority,’’ ‘‘item of new power to cancel the proviso. direct spending,’’ and ‘‘limited tax benefit’’ cooperative participation in this proc- The Energy and Water Development Ap- have been carefully defined in order to make ess. propriations Act, 1996, (Public Law 104–46), clear that the President may only cancel the Mr. President, in behalf of this side, Title II, Department of the Interior, General entire dollar amount, the specific legal obli- I yield 10 minutes to the Senator from Administrative Expenses, states: gation to pay, or the specific tax benefit. ‘‘For necessary expenses of general admin- Texas, who also played a very impor- ‘‘Fencing language’’ may not be canceled by istration and related functions in the office tant role from time to time during our the President under this authority. This of the Commissioner, the Denver office, and conference bringing a degree of insight, means that the President cannot use this au- offices in the five regions of the Bureau of particularly helping us understand the thority to modify or alter any aspect of the Reclamation, $48,150,000, of which $1,400,000 underlying law, including any restriction, difference between enhanced rescis- shall remain available until expended, the limitation or condition on the expenditure of sions and real line-item vetoes. total amount to be derived from the rec- budget authority, or any other requirement Mr. President, I yield 10 minutes to lamation fund and to be nonreimbursable of the law. the Senator from Texas. pursuant to the Act of April 19, 1945 (43 The conferees intend that, even once the The PRESIDING OFFICER. The Sen- U.S.C. 377); Provided, that no part of any federal obligation to expend a dollar amount other appropriation in this Act shall be ator from Texas is recognized for 10 or provide a benefit is canceled, all other op- minutes. available for activities or functions budgeted erative provisions of the underlying law will for the current fiscal year as general admin- remain in effect. If the President desires a Mr. GRAMM. Mr. President, I believe istrative expenses. broader result, then the President must ei- this bill represents a significant break Using this example, the President may ther ask Congress to modify the law or exer- with the past. I think it does in a very cancel $48,150,000 or the $1,400,000 noted, but cise the President’s constitutional power to real sense represent the changing of may not cancel or alter in any way the pro- veto the legislation in its entirety. the guard. Might I say that I think it viso restricting the use of other appropriated The lockbox provision of the conference re- is long overdue. funds contained in this Act. port has also been included to maintain a The conference report also allows the The last time we balanced the Fed- system of checks and balances in the Presi- eral budget was in 1969 when Richard President to cancel the entire amount of dent’s use of the cancellation authority. Any budget authority required to be allocated by credit for money not spent, or for revenue Nixon was President, and it happened a specific proviso in an appropriation law for foregone, is dedicated to deficit reduction only because of a big tax increase that which a specific dollar figure was not in- through the operation of the lockbox mecha- occurred in 1968—an income surtax. It cluded. The conferees recognize that from nism. This ensures that the President does lasted only for 1 year, and then it was time to time, budget authority may be man- not simply cancel a particular dollar amount gone. The last time we balanced the dated to be spent on a specific program or of discretionary budget authority, item of budget 2 years in a row where the budg- project without a specific dollar amount new direct spending, or limited tax benefit in et was balanced by fiscal restraint by being listed. However, in order to comply order to increase spending in other areas. with the proviso, the President would have Section 1021(b) requires the President to doing what every family and every to expend appropriated funds. consider legislative history and information business in America has to do every EXHIBIT 2 referenced in law in identifying cancella- year was in the middle of the 1950’s Sec. 1021. Line item veto authority tions. It also requires that the President use when Dwight David Eisenhower was the definitions in section 1026, and provides Section 1021(a) permits the President to President of the United States. that the President use any sources specified cancel in whole any dollar amount of discre- In other words, we are here today in the law or the best available information. changing the fundamental powers of tionary budget authority, item of new direct Section 1021(c) states that the President’s spending, or limited tax benefit contained in cancellation authority shall not apply to a the Presidency as they relate to the any bill or joint resolution that has been disapproval bill, as defined in section 1026. Congress and altering our system of signed into law pursuant to Article I, section The provision is intended to prevent an end- the distribution of that power because 7, of the Constitution of the United States. less loop of cancellations. for 40 years we have not been able or The cancellation may be made only if the willing to say ‘‘no.’’ And because we President determines such cancellation will Mr. BYRD. Mr. President, will the reduce the federal budget deficit and will not Senator yield for one moment? have not said ‘‘no,’’ because we have impair any essential government function or Mr. STEVENS. Yes. said ‘‘yes’’ to virtually any organized harm the national interest. In addition the Mr. BYRD. Mr. President, I take this special interest group with a letter- President must make any cancellations occasion to congratulate the distin- head, that has meant that families S2960 CONGRESSIONAL RECORD — SENATE March 27, 1996 have had to say ‘‘no’’ on a constant since. What has happened is this year leader, for his good counsel in bringing basis. The problem is we have said the economy is growing at 1.7 percent. people together and helping to push ‘‘yes’’ to spending money when ‘‘yes’’ The average family’s take-home, after- this matter to a final conclusion. was the wrong answer, forcing families tax pay today is lower than it was in It is interesting in that I think this to say ‘‘no’’ to investing in their future 1992. For the whole decade of the 1970’s, is an old issue which has been debated and the future of this country, when the average working American family a long time and as a result there is not ‘‘no’’ was the wrong answer. We are was worse off at the end of the decade the clamor which normally would sur- here today to try to change that. than they were at the beginning be- round a bill that is as important and What does the line-item veto do, and cause the economy did not perform, be- momentous as this bill is, and that is a what does it not do? The line-item veto cause we spent the seed corn of our disappointment I am sure both to those allows the President to go inside an ap- economy here in Congress, and the of us who are for it and those who are propriations bill and to eliminate a President in signing appropriations against it in terms of its profound im- program, a project, or an activity. He bills had no ability to go inside those pact on America. There are very few does not have the ability to change it. bills and strike items. things we have done in the last 4 or 5 He can either say ‘‘yes’’ or ‘‘no’’ to the So what we are doing today is trying Congresses that have a larger potential whole thing and strike it out, and then to change a system that is broken. impact than the passage of this bill. alter the budget total at the top of the There are clearly people who love the I congratulate everybody who has old ways, who believe that Congress page. been involved. I believe we are not only ought to have this ability to fill up This will allow the President to exer- making history today, but we are mak- bills with little add-ons that the Presi- cise leadership in controlling spending ing good history. That is something dent would like to veto but cannot veto and to impose priorities. But, if the which does not happen very often. This without vetoing the whole bill. But I Congress does not agree and if there is is one more tool the President has, if think after 40 years of failure, after 40 strong disagreement, the President can the President wants to do something years of mortgaging the future of the be overridden. But what it does, no about the deficit. If we have a Presi- country, after 40 years of lowering the doubt about it—and the distinguished dent who really wants to do it, all that potential living standard of our people, Senator from West Virginia is right—it President has to do is get one-third we have an opportunity if we would changes the balance of power between plus one in one House of Congress, the Congress and the President in one change the way Government does its business to guarantee that our grand- sharpen up his pencil, and he is in busi- fundamental way: It gives the Presi- ness. I believe it is going to take strong dent enhanced power to say ‘‘no’’ to children will be twice as well off as they will be if you continue business as leadership. spending. It does not give him the abil- I wish to conclude by remembering ity to spend more money. It does not usual. That is the ability to affect the lives the words of Ronald Reagan when he give him the ability to change prior- of everybody in this country and every- asked for this power and said, ‘‘Give ities by partially altering spending fig- body on this planet. It is the ability to me the line-item veto and let me take ures. It enhances his ability to say give people the opportunity to escape the heat.’’ I was always disappointed ‘‘no.’’ poverty and fulfill their dreams. That we did not do that, but we are going to It seems to me, Mr. President, after cannot happen when Government is give whoever is President in January 40 years of living proof every day that borrowing 50 cents out of every dollar. this power. We will see if they can take our Government cannot say ‘‘no’’ when So we are here today to change it. This the heat. ‘‘no’’ is clearly the right answer, the is going to be a fundamental, sweeping I thank the Chair and I yield the time has come to change the system. change in Government. My only dis- floor. This is a fundamental reform, there is appointment is that it is not perma- Mr. BYRD addressed the Chair. no doubt about it. nent. This is grandfathered, and what The PRESIDING OFFICER. Who If you had a President who was hon- it will mean is that if we do have a seeks recognition? The Senator from est-to-god willing to get out a pen and President who actually uses it, my West Virginia. to veto, he could change America. And guess is we will not restore it to them Mr. BYRD. Mr. President, I shall he could change it very, very quickly. once this expires. I had hoped this quote Lord Byron: Let us hope that the Lord will give us would be permanent law, but this is a such a person. A thousand years scarce serve to form a very, very important bill. I commend What is the problem with which we state; an hour may lay it in the dust. everybody who has been involved in it. Mr. President, let me explain my mo- are trying to deal? The problem is not Let me conclude by just thanking just this abstract idea of deficits. The tion now for the benefit of Senators on some people individually. both sides. problem is that in the mid-1960’s, we First of all, I thank TED STEVENS, fundamentally changed America with- who had very real hesitation about this Mr. President, in offering this motion to recommit, I am, I hope, providing out America ever knowing it, without bill. I thank PETE DOMENICI. Both of an election ever being held on this sub- these men had real reservations when one last opportunity for the Senate to ject, and maybe without Members of we started. This has meant a com- come to grips with what we are about Congress knowing it. promise for them, and I think, quite to do. It is my desire that each one of What happened is that prior to 1965, frankly, we have a better bill right now us, before we cast our vote on the con- in this whole century, excluding the than we did when we started this proc- ference agreement to S. 4, have the years of the Great Depression, our ess. I think they are largely respon- chance to reevaluate our position, to economy had performed very well. We sible for it. But only because of their rethink the damaging consequences had experienced an economic growth support will this bill become the law of that will necessarily extend from this rate of almost 3.5 percent. From 1950 to the land. enhanced rescission proposal, and to 1965, our economy grew at over 4 per- I thank DAN COATS and JOHN MCCAIN vote, instead, for a more sensible ap- cent a year. What that meant was new for their leadership. This has been a proach than that offered in S. 4, as jobs, new growth, new opportunity. It battle which has really raged for 8 amended. created a situation through the whole years. Many people have despaired of it In essence, my motion to recommit of the 20th century, with the exception ever happening. But it did happen be- would supplant the provisions cur- of 4 years during the Great Depression, cause we had people who cared strongly rently contained in the conference where in almost every family in Amer- about it. I think it reveals the basic agreement with those contained in S. ica parents did better than their par- lesson of democracy, and that is inten- 14, as originally introduced by Sen- ents, and they could be almost certain sity counts. If you have people who ators DOMENICI, EXON, CRAIG, BRADLEY, that their children were going to do care very strongly about something COHEN, DOLE, DASCHLE, and CAMPBELL better than they had done. and they do not give up, ultimately on January 4, 1995. That measure was, Beginning in 1965, we traded that in they succeed. I believe, a workable proposal that for a Government growing at an aver- I also thank the Presiding Officer, would give the President broad and un- age of 9 percent each and every year our distinguished assistant majority complicated authority to propose the March 27, 1996 CONGRESSIONAL RECORD — SENATE S2961 rescission or repeal of not only appro- et under section 252 of the Balanced their legislation with that type of re- priated funds, but, also, new direct Budget and Emergency Deficit Control striction in place on appropriated spending and targeted tax benefits. Act. funds? Consequently, my proposal will allow By adopting this proposal, I believe Mr. President, the concept of numeri- any President to rescind any of these that the Senate will then have passed a cal definitions on tax expenditures was budget items under an expedited proc- measure that effectively amends the rejected in the Senate because we all ess that guarantees the President will present impoundment procedure, while know that any tax lawyer worth his receive a vote on any of his proposed at the same time maintaining the con- salt can find a few extra people to qual- rescissions. The process would work as stitutional separation of powers by ify for the targeted tax benefit, thereby follows: protecting congressional control of the bringing the number of beneficiaries The President would have 20 calendar purse strings from an unchecked execu- above 100 and out of range of rescission days after the date of enactment of tive. authority. Consequently, this limita- each covered measure to transmit a Mr. President, I remind my col- tion is nothing more than an open invi- special message to Congress proposing leagues that it was the considered tation to the many creative tax attor- to cancel any of the budget items pre- judgment of the distinguished chair- neys in this country to find ways to viously mentioned. The House and Sen- man of the Budget Committee, working abuse the system. ate would then be required to take up in conjunction with the ranking mem- But the asininity of such a provision the President’s proposed rescissions ber of that committee, Mr. EXON, that does not stop there. The definition of a under expedited procedures which the expedited rescission process con- tax expenditure, or ‘‘limited tax bene- would ensure that a vote on final pas- tained in S. 14, as originally intro- fit’’ as S. 4 calls it, is further gutted sage of the President’s proposed rescis- duced, was the most appropriate ap- with exemptions for tax breaks that sions shall be taken in the Senate and proach to this issue. Based on their ex- serve to benefit all persons in the same House of Representatives on or before pertise—expertise gained through industry, or all persons engaged in the the close of the tenth day of session of many years of study of the budget same type of activity, or even all per- that House after the date of the intro- process—the provisions contained in sons owning the same type of property. duction of the bill in that House. the Domenici-Exon rescission bill give Thus, under that definition, a special Furthermore, procedures are con- us a workable process. Consequently, tax break passed by the Congress for tained in the measure to ensure that my motion, if adopted, would force the anyone owning a Rolls Royce, for ex- such measures are introduced no later Congress to vote, in an expedited fash- ample, would not be subject to a presi- than the third day of session of each ion, on the President’s rescission pro- dential rescission since everyone af- House after receipt of a special mes- posals. No longer would Congress be in fected would own the same type of sage from the President. a position to simply ignore the rec- property, in this case a Rolls Royce. During consideration of the rescis- ommendations of the President. We Mr. President, I find it ironic that sion bill in either House, any member would be mandated, under the language the proponents of S. 4—who seem to be may move to strike any proposed can- I am proposing to have substituted, to claiming that their so-called line-item cellation of a budget item. I might note consider the President’s request, and to veto is the only version that will effec- parenthetically that this represents a do so in a timely manner. tively cut wasteful spending—are the change from S. 14, as introduced, in Furthermore, under the terms of S. very same people who seem to be afraid that S. 14 would have required a mem- 14, as introduced, this newly crafted ex- to give the President of the United ber of the House to gather the signa- pedited rescission process would extend States a similar method of cutting tures of 49 other members in order to not only to appropriated funds, but, wasteful tax breaks. Why should the offer an amendment to a rescission bill also, to the vast amounts of revenues President be given the power to veto on the Floor and in the Senate would lost each year through the use of tax spending for school lunches, or high- have required a Senator to collect an expenditures. As with entitlement pro- way construction, or drug programs, additional 11 signatures in order to be grams, tax expenditures cost the U.S. and not be given the power to veto the able to offer an amendment to strike a Treasury billions of dollars each year; tax deduction claimed by businessmen proposed rescission from a bill. I do not nearly $500 billion in this fiscal year for a three-martini lunch? Whether agree that members of the House and alone. And, again, like entitlements, wasteful spending is in a program fund- Senate should be prohibited from offer- they receive little or no scrutiny once ed through an appropriation or through ing their amendments as they so wish they are enacted into law. Even though a tax break, it is still wasteful spend- without the necessity of gathering sig- they increase the deficit, just like ing. natures from other members. spending on mandatory programs, tax The Domenici-Exon expedited rescis- Under my proposal, debate in the expenditures routinely escape any sion bill, which I am offering as a sub- Senate on a rescission bill and all de- meaningful fiscal control or oversight. stitute to the current conference agree- batable motions and appeals in connec- Indeed, by masquerading as a tax ex- ment, gives the President real author- tion therewith shall not exceed 10 penditure, a program or activity that ity to go after wasteful tax breaks. hours. A motion in the Senate to fur- could not pass congressional muster Under the substitute, every tax break ther limit debate on a rescission bill is could be indirectly funded and survive would get the same presidential scru- not debatable. A motion to recommit a for years. tiny as every program funded through bill is not in order. Debate in the House Yet, the conference agreement on S. the appropriations process. No more, of Representatives or the Senate on 4 effectively puts this entire area of but certainly no less. any conference report on any rescission Federal expenditures out of the reach Finally, but not insignificantly, Mr. bill shall be limited to not more than of the President. By limiting the Presi- President, is the issue of timing. The two hours, motions to further limit de- dent’s rescission authority to only rescission process that I am proposing bate will be nondebatable, and motions those tax expenditures that, by defini- is immediate. It is not put off until to recommit the conference report will tion, benefit 100 or fewer taxpayers, S. next year. It is not delayed until 1997, not be in order. 4 absurdly restricts the ability of the as it is under the conference agree- Finally, my proposal contains an President to get at this type of back- ment. Under the substitute, the Presi- ironclad lockbox provision to ensure door spending. dent would have the opportunity to ex- that any monies saved through these How absurd is this? Imagine limiting ercise his newfound rescission powers rescissions are, indeed, used for deficit the scope of the President’s rescission right away, this year, on any appro- reduction. Under this proposal, the authority to those appropriations that priations, or entitlements, or tax ex- President and Congress must each take impacted 100 or fewer beneficiaries. penditures enacted by this Congress. action to reduce the discretionary Imagine the wrath of verbal indigna- But, under the conference agreement, spending limits contained in section tion that would befall any Senator who the President—in this case President 601 of the Congressional Budget Act, stood up here and proposed that kind of Clinton—is not allowed to affect the the committee allocations under sec- rescission process. What would the pro- fiscal year 1997 appropriations. Appar- tion 602, and the balances for the budg- ponents of S. 4 think of the efficacy of ently, President Clinton is not to be S2962 CONGRESSIONAL RECORD — SENATE March 27, 1996 trusted with this new power. Appar- unanimous consent that at the hour of Member of the House, I was for the ently, the hope of the proponents of the 5:45 this evening, Senator DOMENICI be line-item veto. I remember making conference agreement is that, after recognized in order to make a motion speeches when President Carter was in 1996, the White House will be under Re- to table the pending motion to recom- the White House, and I continued to be publican control. Apparently, what is mit, and, prior to that, at 5 p.m. this for it during the Reagan administra- good for a possible Republican Presi- evening, Senator MOYNIHAN of New tion, the Bush administration, and I dent is not so good for a President for York be recognized to speak in opposi- continue to be for it. the Democratic party. tion—in favor of the motion to recom- So I think we are showing that we Mr. President, my position on en- mit and in opposition to the bill on the can rise above politics, if you will—par- hanced rescission is well known to my floor, the time to be charged to the tisan politics—and take an action be- colleagues. I believe that passage of Senator from West Virginia. cause we believe it will be the right this conference report, in its present The PRESIDING OFFICER. Without thing to do for our country, we believe form, would be a truly monumental objection, it is so ordered. it will be the right thing to do in try- mistake that will do great harm to the Mr. COATS. Mr. President, I would ing to help control spending. It may constitutional balance of powers while just alert our fellow Senators that a not work like we hope it will, it may contributing very little toward bal- rollcall vote will now occur at 5:45 p.m. run into difficulties, but I believe it is ancing the federal budget. I have been, today; that there will still be, after the right thing to do, and I do support and continue to be, unalterably op- that vote, time remaining on this de- it. posed to granting any President the bate. I am not sure how much of that I think that it will be used respon- power to rescind portions of spending time will be used. I do know there are sibly by the Presidents of the United measures under conditions which some requests for time, so Senators States, this one or his successors. I would require a two-thirds vote of both should also expect that there will be think most Governors use it respon- Houses to override such rescissions. additional debate and a vote on final sibly in their exercise of the line-item But if we are to have legislation that passage on this line-item veto con- veto, and I think the Presidents will. amends the current rescission process, ference report sometime this evening. But if they do not, we will have an- I hope that we will at least have the Mr. President, I yield the floor. other opportunity to address it. presence of mind to ensure that we do The PRESIDING OFFICER. The Sen- I do also want to join in commending not give away, in wholesale fashion, ator from Mississippi. the Senator from Arizona, Senator that which the constitutional Framers Mr. LOTT. Mr. President, I would MCCAIN, for his dogged support of this so wisely placed in this branch of gov- like to request some time on this side. idea, and also the Senator from Indi- ernment. Accordingly, I urge my col- I think 5 minutes will be adequate. ana. They have worked together. They leagues to adopt my motion to recom- Mr. COATS. Mr. President, I am have worked against overwhelming mit. happy to yield to the Senator from odds and never gave up, even though it The PRESIDING OFFICER (Mr. Mississippi whatever time he desires. looked pretty dismal just a month or MCCAIN). Who seeks recognition? The PRESIDING OFFICER. The Sen- so ago. Mr. BYRD. Mr. President, I ask the ator from Mississippi is recognized. I have to express my appreciation for time be charged against my time on Mr. LOTT. Mr. President, I want to Senator STEVENS and Senator DOMEN- the amendment. say this afternoon I am extremely ICI. They were aggressive, they were ac- The PRESIDING OFFICER. The time proud of the U.S. Senate and of the tive, but they were involved. I remem- will be so charged. The Senator from Congress, because I believe before this ber I had been talking with the Senator Indiana is recognized. week is out we will have passed this al- from Alaska one night about what we Mr. COATS. Mr. President, I, first of ready described momentous legislation had been trying to do, and he had been all, want to take this opportunity to into law. It is not an easy thing to do. very aggressive in saying how he did express my respect for the Senator It is very difficult. not want us to do that. He had worked from West Virginia. We clearly are on I remember, soon after I came to the me over from three or four different different sides of this issue. He has Senate, we had debate on the line-item angles trying to educate me. Then I been an articulate and zealous protec- veto. I think probably the Senator said, ‘‘OK, I understand you don’t want tor of the prerogatives and rights of from Indiana and the Senator from Ari- it. Is there a solution?’’ He stopped and this institution, and he has articulated zona, Senator MCCAIN, were involved in said, ‘‘Well, maybe there is.’’ those well, and I respect that. it then. I made some comments, and I So we worked together. Even the I also respect his unswerving alle- had a couple of Senators come over and Senator from West Virginia, who so op- giance and dedication to that propo- explain to me that might not be a good poses this legislation, has been very sition and know that it is very, very idea, to support that. They caused me much a gentleman in the way he has important, and it has been over the 8 to think a lot about it. handled the debate, how he is address- years of debate on line-item veto, a But here, in effect, we are taking ac- ing this issue today, the motion to re- great history lesson for this Senator. tion against our interests. This is a commit he has offered, and the time Mr. BYRD. Mr. President, I thank fundamental change; there is no deny- agreements he has entered into. So a the distinguished Senator for his over- ing it. The Senator from West Virginia lot of people deserve credit. ly generous and charitable remarks. is right; the Senator from Alaska. Yet, I think it is a carefully crafted piece Mr. COATS. Mr. President, it is my we are going to do it because, first, I of legislation. We went into the detail understanding that it has been cleared think, we have come up with better of what would it mean for the Presi- that we could move to a vote at 5:45, to legislation than we had 7 years ago, or dent to be able to veto in whole or in have Senator DOMENICI recognized in earlier this year. part. Quite frankly, we were a little bit order to make a motion to table the We have improved it. We have made surprised—I know I was—at what that pending motion to recommit. it more acceptable to more Senators or could mean. So we worked to try to I want to make sure the minority Congressmen, Republicans and Demo- clarify what that ‘‘in part’’ meant. leader and Senator BYRD—if that is his crats. So we are going to go forward It does include things other than just understanding? with it, and we are going to do it at a appropriations. It does include the so- Mr. BYRD. That is my understand- time when the majority of the Con- called tax expenditure. But that provi- ing. I have no objection. I ask the re- gress is not of the party of the Presi- sion is carefully drafted, it is carefully quest be amended to provide that Mr. dent in the White House. We are saying defined, and I think we came up with MOYNIHAN be recognized at 5 o’clock to that in spite of that—maybe because of the right blend, so that also can be speak in opposition to the conference it—we want him to have this addi- considered by the President when he report, and the time to be charged tional authority. reviews legislation we send to him. against my time on the bill. For 15 years, we have been talking We were very careful in deciding UNANIMOUS-CONSENT AGREEMENT about the line-item veto, maybe what to do on the sunset. There was a Mr. COATS. We have no objection to longer. But I personally have been fa- lot of argument that we should have no that, Mr. President. Therefore, I ask miliar with it for those years. As a sunset, and there were others who said, March 27, 1996 CONGRESSIONAL RECORD — SENATE S2963 and I kind of agreed, ‘‘Look, this is big perspective, I know they are not labors item of spending that the Congress en- legislation, important legislation, it because they are labors of love. acts that the President feels is inappro- may not work out correctly. It may be Mr. BYRD. Mr. President, the Sen- priate. abused. So after a certain period of ator from Michigan is a man of great The problem with the current bill is time, let’s be allowed to take a look at tenacity and perception and love for that it fails the fundamental test of it.’’ the Constitution and for him to deliver being consistent with the requirements I think it will work correctly. I hope remarks on my behalf, he certainly has of the Constitution that any repeal or it will be extended. I hope to support to brightened my day. I am very grateful. amendment to a law be enacted in the extend it when the time comes. Mr. LEVIN. Mr. President, while we same way that the law itself was en- We even talked a lot about the effec- are expressing sentiments about each acted. The Constitution establishes the tive date. We wanted to make sure it other personally, before I get into my method by which laws are enacted, by was going to be handled in such a way remarks on this bill, which I oppose for which laws are amended, and by which it would go into effect as soon as pos- reasons I will set forth, I want to add laws are repealed. It is fundamental sible. We do have a provision that says my thanks also to the Presiding Officer constitutional law. It is basic, bedrock if we reach a balanced budget this year, and the Senator from Indiana, who is law that says that a bill becomes law it will go into effect on that date, or managing the bill, and to others on the when it is passed by both Houses of January 1, 1997, whichever is earlier. other side of this particular issue for Congress and signed by the President, The President and the majority leader the manner in which this debate has or if the bill is vetoed by the President, talked about that and agreed that was proceeded. when that veto is overridden by a two- the fair way to do it. It is a very significant debate, and thirds vote in each House. I think we have done what we said we people on both sides of this issue feel The bill before us purports to create were going to do. I have always felt the very keenly about it. I think there is a third way by which laws can be made, President should have this authority. I unity in terms of trying to find a form a way not recognized in the Constitu- am in the Congress. I guess I should be of line-item veto, so-called, which is tion. And this third way, this new way, jealous of ceding authority to the constitutional, because whatever side is by giving the President the unilat- President, but I really do feel the of the particular bill we are on, as to eral power to repeal a law or part of a President should have this authority. whether we think this version is con- law without any action by the Con- We can only have one Commander in stitutional or not, I think most of us gress. Chief at a time. He is the ultimate au- would like to find a formula which The Founding Fathers made a con- thority. He should have the ability to would give the President greater power scious decision to give the power of the go inside a bill and knock out things to identify issues in bills, items in bills purse to the Congress and not to the that are not justified, that have not which he feels should be separately President. This power of the purse been sufficiently considered, that cost voted upon, which should be high- serves an important check on the too much—whatever reason—without lighted for the public, for the Congress, power of the Presidency. It is, in fact, having to veto the whole bill. and we should then vote up or down on. a crucial element in the system of I am very pleased this afternoon to I, for instance, very much favor the checks and balances which was estab- rise on the floor of the Senate and com- version which the Senator from West lished by the Founding Fathers. These mend the Senate for what I believe will Virginia has offered, which will be checks and balances are not a mere ab- be their action today and all those as- voted upon later this afternoon. That straction; they were expressly written sociated with this effort. I think it is so-called expedited rescission process, into the Constitution to protect our the right thing to do. I believe it will it seems to me, is constitutional and is freedom. help save some of our children’s tax something which we can in good con- James Madison warned in Federalist money in the future. science, at least I can in good con- No. 47 that— I yield the floor, Mr. President. science, support. There can be no liberty where the legisla- The PRESIDING OFFICER. Who The Presiding Officer and many oth- tive and executive powers are united in the yields time? ers in this body obviously feel that the same person. Mr. BYRD. Mr. President, I yield to version which is currently before us is He quoted Montesquieu for that the distinguished Senator from Michi- constitutional or I do not think they point. It was because of that, the fear gan [Mr. LEVIN], 30 minutes. would have been proposing it. There is of uniting executive and legislative The PRESIDING OFFICER. The Sen- a difference on this issue, but it is a powers in the same person, that article ator from Michigan is recognized. difference which is held in good faith. I I of the Constitution gives Congress, Mr. LEVIN. I thank the Chair. must say, I greatly admire the Senator and not the President, the power of the Mr. President, first, let me thank our from Arizona and the Senator from In- purse. friend from West Virginia. He has al- diana and others for the manner in Article I, section 1, states without ready been told this afternoon by so which they have proceeded relative to qualification—and the first word in many of us just how important he is to this issue. this quote is the critical one— the Nation and to the U.S. Senate in Mr. President, as I said, I support the the cause he is fighting and the many version of the line-item veto which is All legislative Powers herein granted shall causes he has fought and continues to be vested in a Congress of the United States, known as expedited rescission. That which shall consist of a Senate and House of fight for in this body. Many of the ac- version would ensure that any item of Representatives. colades, indeed, have come from people spending which is enacted by the Con- Article I, section 8 adds: who are on the other side of this issue gress that the President believes to be from him, but I want to let him know, inappropriate would, in fact, have a The Congress shall have Power To lay and as someone on the same side of this collect Taxes, . . . to pay the debts and pro- separate congressional vote. vide for the common Defense and general issue as he is, we, too, feel particularly That approach to the line-item veto Welfare of the United States; . . . [and] To keenly about the leadership that he would make it impossible to hide ques- make all Laws which shall be necessary and has exerted on this issue and so many tionable spending in massive appro- proper for carrying into Execution the fore- other issues involving the Constitution priations bills. That is one of the goals going Powers, and all other Powers vested by of the United States. of the sponsors of the version that is this Constitution in the Government of the This is our bedrock document, a fun- before us. It is to make it impossible to United States, or in any Department or Offi- damental document. It has no more hide questionable spending in these cer thereof. staunch supporter of the Constitution massive appropriations bills. Article I, section 9 affirms that: in this body or in this country than Senator BYRD’s version—the expe- No money shall be drawn from the Treas- Senator BYRD, and I just want to add dited rescission approach —also will ury, but in Consequence of Appropriations my voice to those of so many others in make it impossible for these kinds of made by law. this body on both sides of this issue in items to be hidden by a Congress be- It was Madison, in Federalist No. 58, gratitude for the labor that he has cause it would require and ensure a who explained that the power of the given to this Constitution. From his separate congressional vote on any purse was granted to Congress because S2964 CONGRESSIONAL RECORD — SENATE March 27, 1996 it represents the ‘‘most complete and tory, what the Constitution has told going to say that the President of the effectual weapon with which any Con- us. It says explicitly, ‘‘[a]mendment United States, acting alone, is able to stitution can arm the immediate rep- and repeal of statutes, no less than en- cancel a law of the United States.’’ resentatives of the people for obtaining actment, must conform with Article I’’ Now, Mr. President, the argument a redress of every grievance and for of the Constitution. has been made that the bill just re- carrying into effect every just and sal- What this bill says is, ‘‘Well, we will stores to the President the authority utary measure.’’ try to create something else. We will that he exercised prior to the enact- Congress cannot change the system let the President decide within 5 days ment of the Impoundment and Control of checks and balances established by after a law becomes law that he wants Act in 1974. That is plainly wrong. No the Founding Fathers. We cannot do it, to cancel a part of that law.’’ Unless President has ever exercised the kind and we should not try. But this con- the Congress acts to override him, the of unrestrained right to override con- ference report, in the mechanism which President’s unilateral cancellation ef- gressional budget decisions that this it chooses, attempts to change the sys- fectively amends the law of the land. bill would attempt to create. The As- tem of checks and balances which are We cannot do that. We should not try. sistant Attorney General, Charles Coo- embedded—and may I use the word The Chadha court explained why it per, in the Reagan administration, ‘‘enshrined’’—in the Constitution of reached the conclusion that it did. It stated in a 1988 legal opinion, the fol- the United States. wrote that during the Convention of lowing: The enhanced rescission power that 1787 the application of the President’s To the extent that the commentators are is granted to the President by this bill veto to repeals of statutes was ad- suggesting that the President has inherent attempts to alter our constitutional dressed. It was very explicitly ad- constitutional power to impound funds, the system by giving the President unilat- dressed during the Constitutional Con- weight of authority is against such a broad eral authority to control spending and vention. The Chadha court went power. This office has long held that the ex- istence of such a broad power is supported by to substitute his personal budget prior- through the Convention. The issue was ities for the priorities that have been neither reason nor precedent. Virtually all the application of the President’s veto commentators have reached the same con- passed by the Congress and signed into to repeals of statutes. The Chadha law. This bill would give the President clusion without reference to their views as court concluded, ‘‘There is no provision to the scope of executive power. the unilateral power to repeal a statute allowing Congress to repeal or amend I note that same Assistant Attorney or part of a statute without any action laws by other than legislative means, at all by the legislative branch. General, Charles Cooper, in the Reagan pursuant to article I.’’ administration, cited no less an au- That is the heart of the matter. This Now, Mr. President, the conference bill in front of us would give to the thority than Chief Justice Rehnquist, report acknowledges what I think is President the unilateral power to re- writing in his position as Assistant At- obvious: That when the President signs peal a statute or part of a statute, the torney General in the Nixon adminis- the appropriations bill—this approach law of the land, without any action by tration, for the proposition that a would allow him to cancel within 5 the legislative branch. That is some- Presidential power not to spend money days that appropriations bill—upon his thing that we cannot do. ‘‘is supported by neither reason nor The Supreme Court said as recently signature that becomes the law of the precedent.’’ as in the Chadha case, that it is beyond land. The conference report, section The Constitution does not authorize Congress’ power to alter the carefully 1021 says that notwithstanding the pro- this version of a line-item veto. The defined limits and the power of the vision of parts A and B and subject to Constitution does not permit the Presi- branches. This is what the Supreme provisions of this part, ‘‘the President dent to repeal a law, to suspend a law, Court said in Chadha: may with respect to any bill or joint to ignore a law, unless he chooses to The bicameral requirement, the Present- resolution that has been signed into veto the law itself. He cannot cancel ment Clauses, the President’s veto, and Con- law, pursuant to article I, section 7 of laws. This is just another word for gress’ power to override a veto were intended the Constitution, may cancel in whole modifying it or ignoring it or vetoing to erect enduring checks on each Branch and or in part,’’ and it goes on to talk it. to protect the people from the improvident about what the President can cancel. George Washington said 200 years exercise of power by mandating certain pre- We are only talking here about bills ago, ‘‘From the nature of the Constitu- scribed steps. To preserve those checks, and which have become the law of the land. tion I must approve all the parts of a maintain the separation of powers, the care- Those are pretty important words in fully defined limits on the power of each bill or reject it in toto.’’ Branch must not be eroded. this government of law. We do not Former President and Chief Justice allow Presidents to pick and choose The Chadha court went on to say: William Howard Taft explained, ‘‘The which laws they abide by and which President has no power to veto parts of There is no support in the Constitution or decisions of this Court for the proposition ones they do not. I cannot think of any the bill and allow the rest to become a that the cumbersomeness and delays often other places where we say a law could law. He must accept it or reject it, and encountered in complying with explicit con- be canceled by a President acting uni- even his rejection of it is not final un- stitutional standards may be avoided, either laterally; yet this bill says that a law— less he can find more than one-third of by the Congress or by the President. . . . and that has become enacted, signed by one of the Houses to sustain him in his With all the obvious flaws of delay, untidi- the President—can be canceled in veto.’’ ness, and potential for abuse, we have not whole or in part by the President, act- Congress cannot give the President yet found a better way to preserve freedom ing alone. that authority or even greater author- than by making the exercise of power subject to the carefully crafted restraints spelled out Of course, the bill gives us the oppor- ity simply by changing the labels and in the Constitution. tunity to override that cancellation calling a repeal or an amendment the The veto or the repeal or the can- with new legislation. That is not the ‘‘cancellation’’ of a law. It is not the cellation, unilaterally, of an existing point. That is not what article I of the labels that count. It is the substance of law by the President is subject to the Constitution provides. Article I of the what we are doing or purporting to do. same constitutional restraints. Constitution as interpreted by Su- What we are purporting to do in this The Chadha court explicitly stated preme Court opinion after Supreme bill is to give the President of the Unit- that ‘‘[a]mendment and repeal of stat- Court opinion as recently as Chadha ed States unilaterally a right which utes, no less than enactment, must says the repeal, the amendment, the the Constitution denies him, and that conform with Article I’’ of the Con- modification of a law must be done in is the right to cancel or veto or amend stitution. the same way that a law is enacted. or modify or ignore the law of the That is an explicit statement of This bill is a deviation from that. This United States. Chadha by the Chadha court. We can- bill says ‘‘Well, we will create another If it is unconstitutional for Congress not change that unless we adopt a con- way. We will create a new way. You do to give the President a particular stitutional amendment and send it to not have to enact an amendment. You power under one label, it is not sud- the States. do not have to adopt an amendment. denly constitutional merely because we The Chadha court has told us what You do not have to repeal the law the change the label. We cannot acknowl- courts have told us throughout our his- way the Constitution provides. We’re edge that the President does not have March 27, 1996 CONGRESSIONAL RECORD — SENATE S2965 the right to ‘‘modify’’ or ‘‘repeal’’ a the application of the label ‘‘cancel’’ to would be unconstitutional. Dr. Fisher law under the Constitution, but at the what is clearly a repeal and an annul- stated: same time maintain that he can ‘‘can- ment change the outcome legally? I do Under what theory of government can Con- cel’’ a law. A veto is no less a veto and not think so. gress delegate to the President the power to a repeal is no less a repeal because we The bottom line is that this bill rescind laws without further legislative in- call it suspension or cancellation. purports to grant to the President of volvement? Congress regularly delegates to As a matter of fact, the Random the United States a unilateral author- the President substantial authorities to House dictionary defines a veto as ity, which the Constitution will not ‘make law,’ but this consists of discretion within the bounds of statutory law, not the ‘‘The power vested in one branch of a allow him to have or us to grant to power to terminate law. * * * Even if con- government to cancel the decisions, en- him; that is, the authority to repeal a temporary case law sustains the constitu- actments, et cetera, of another law without any action by Congress. tionality of broad delegations, I would argue branch.’’ To paraphrase the statement Chadha says that you cannot repeal that the rescission of previously appro- of Senator Sam Ervin on a similar or modify a law without any action by priated funds requires action through the issue in 1973, ‘‘You can’t make an onion Congress. The Constitution says it. We regular legislative process: action by both a flower by calling it a rose.’’ cannot do —and we should not attempt Houses on a bill that is presented to the Now, it is argued by some that this to do—what the Supreme Court says President. bill is a constitutional delegation of cannot be done and which the very And, a 1987 Note in the Yale Law power because the President is simply logic of the Constitution says cannot Journal concludes unequivocally that— exercising some legislatively author- be done. A transfer of authority to the President ized discretion not to enforce a statu- Assistant Attorney General Cooper, [through an enhanced rescission bill] to de- tory provision. By this reasoning, the again in the Reagan administration, cide which parts of appropriation bills to en- appropriation that has been canceled is explained this in his legal memoran- force, would be a delegation of Congress’ still law. But I do not believe that is dum on impoundment. He said that be- spending power. Such a delegation, however, cause an inherent impoundment power would be unconstitutional. * * * Congress the intent of the sponsors. The bill it- cannot constitutionally seek to solve its self is entitled the ‘‘Line-Item Veto would not be subject to the limitations budget problems by attempting to divest it- Act.’’ The bill creates a new part of the on the veto power contained in article self of its constitutionally assigned powers. Congressional Budget Act entitled, I, clause 8, an impoundment would, in Mr. President, I am confident that ‘‘Part C, Line-Item Veto.’’ The first effect, be a superveto with respect to the courts will strike this provision provision of this new part is entitled, all appropriations measures. The in- down as an improper attempt by Con- ‘‘Line-Item Veto Authority.’’ consistency between such an impound- gress to override the explicit stand- Now, in addition, the so-called discre- ment power and the textural limits on ards, in article I of the Constitution, tion in this conference report only op- the veto power further suggests that no for the enactment and repeal of legisla- erates in one direction. Once a Presi- inherent impoundment power can be tion. However, I do not believe that we dent cancels an appropriation under discovered in the Constitution. should rely upon the courts to strike The same conclusion must be reached the bill, neither that President nor any down unconstitutional statutes; we with regard to the cancellation power other President would be permitted to have an independent duty to scrutinize which is proposed in this conference re- spend the appropriated money without our actions and reject any proposal port. Like an inherent impoundment the enactment of new legislation. that would violate the strictures of the power, cancellation of a provision When a President cancels a provision Constitution. would, in effect, be a superveto, going of law providing for direct spending, It has been argued that the end of far beyond the veto power given to the this bill provides that the provision hope for deficit reduction justifies the President in the Constitution, because shall have no legal force or effect. The means. bill expressly states in section the President would not be required to The line-item veto has been cast as a 1026(4)(b) that the term ‘‘cancel’’ veto the entire bill. Congress cannot, mechanism to cut wasteful spending by means, in the case of budget authority by statute, give the President powers Congress. provided by law, to prevent such budg- that were denied to him in the Con- The premise has been weakened by et authority from having legal force or stitution. the fact that the Presidents’ budgets As Prof. Thomas Sargentich of the effect. That is right in the bill itself. during most of the Reagan-Bush years Washington College of Law at Amer- There is no discretion that is being had greater deficits than the budgets ican University explained in a March granted here to the President. There is adopted by the Congress. 13, 1995 letter to me, regarding an ear- only one-way discretion here, which is Also numerous studies show that lier version of this bill which took the to cancel a provision of law and deprive State line-item veto provisions, rather same approach: it of legal force and effect in perpetu- than reducing spending, have been used ity. S. 4 presents the question whether, given for partisan, political purposes. CBO Similarly, in the case of entitlement that the President cannot unilaterally re- Director Robert Reischauer testified authority, the bill states that a can- write or delete some portion of a bill at the before the Governmental Affairs com- cellation ‘‘prevent[s] the specific obli- time of presentment, the President neverthe- mittee that: gation of the United States from hav- less can sign the bill and decide thereafter to rescind budget authority under the law. Pro- ing legal force or effect.’’ The whole Evidence from the states suggests that the ponents of S. 4 seek to rely on a verbal con- item veto has not been used to hold down purpose of this bill is to deny the legal trast between ‘‘rescission’’ of budget author- state spending or deficits, but rather has force or effect of any part of an appro- ity and ‘‘repeal’’ or ‘‘veto’’ of all or part of a been used by state governors to pursue their priation that the President has can- statute. The notion is that a ‘rescission’ is own priorities. . . . [A] comprehensive survey celed. In the case of the Food Stamp simply the execution of the law pursuant to of state legislative budget officers found that Program, the bill says its purpose is to a broad delegation. governors were likely to use the item veto ‘‘prevent the specific provision of law The problem with this suggestion is that it for partisan purposes. . ., but unlikely to use seems to exalt verbal form over legal sub- the veto as an instrument of fiscal restraint. that results in an increase in budget stance. * * * A repeal of all or part of a stat- authority or outlays for that program ute after it becomes effective can only be ac- The same is likely to be true at the from having legal force or effect.’’ complished by new legislation enacted with Federal level. For example, a President Now, Random House defines the term adherence to bicameralism and presentment. could push his agenda in Congress by ‘‘cancel’’ to mean, ‘‘make void, to re- Using words like ‘‘suspend’’ or ‘‘rescind’’ or threatening to use a line-item veto or voke, to annul.’’ I think we would all any other somewhat muted verb does not enhanced rescission authority to kill agree that any bill that purported to alter the underlying legal situation. projects in the State or district of a authorize the President to unilaterally Similarly, Louis Fisher of the Con- Member who opposed his proposals. void or annul or revoke a statute would gressional Research Service concluded Such threats could be used to advance be unconstitutional. in 1992 testimony before the House policies in area—such as health care Can the result be different because, Rules Committee that a statute pur- and welfare reform—that are com- instead of calling it a repeal or an an- porting to give the President unilateral pletely unrelated to Federal spending. nulment, we call it a cancellation? Can power to rescind an appropriation They could even be used to persuade S2966 CONGRESSIONAL RECORD — SENATE March 27, 1996 Congress to increase Federal funding would also transfer excessive power to Mr. BUMPERS. I do not mind yield- for projects favored by the President. the President. Judge Mikva has been ing to the leader. He has a much busier But even if one believes line-item consistent, and convincing, on this schedule than I do. Who would be next veto will have a major impact on the issue. Back in 1986, Judge Mikva wrote, on that side? deficit, then do it constitutionally. in the University of Georgia Law Jour- Mr. MCCAIN. I am not sure at this That is what the Byrd motion is all nal: time whether it would be Senator NICK- about. We should not do it by trying to [T]he source of almost all congressional LES or Senator KYL. give the President a part of the power power—the spine and bite of legislative au- Mr. BUMPERS. And then it would over the purse, a power the constitu- thority—lies in Congress’ control of the na- come back to me? tion reserves to the Congress. We tion’s purse. If ever Congress loosens its hold Mr. MCCAIN. Yes, then the Senator should not do it by trying to give the on this source of power or if ever the Presi- from Arkansas. dent wrests it away, then, to quote the late President the right to repeal a law or a Senator Frank Church, ‘‘the American Re- Mr. BUMPERS. Does the Senator portion of a law without congressional public will go the way of Rome.’’ The deli- from Maryland wish to speak on this involvement. cate balance created by the Framers will issue? The sponsors of the bill have taken have been destroyed. Mr. SARBANES. How long do we ex- the position that Presidents are un- * * * * * pect people to speak if we set up this likely to abuse these new powers. That Since 1873, when Ulysses Grant first pro- procedure? view is not only naive, it is also incon- posed the idea, over 150 legislative proposals Mr. MCCAIN. I say to my friend from sistent with the view of our Founding have called for Congress to give to the Presi- Maryland that usually about this time Fathers and the purpose of our con- dent the ability to veto individual parts of a of the afternoon and evening we find stitutional system of checks and bal- bill. Congress has thus far rejected such pro- there are a lot of speakers. posals; with any luck, it always will. ances. As James Madison explained in For regardless of whether Congress yields The PRESIDING OFFICER. The ‘‘Federalist Number 51’’: budgetary authority or the President usurps Chair notes that Senator MOYNIHAN is [The great security against a gradual con- it, the threat to our constitutional order is to be recognized at 5 o’clock. centration of the several powers in the same the same. In our governmental system, the Mr. MCCAIN. Yes, by previous unani- department, consists in giving to those who legislature does and must have plenary mous consent, and there is a vote administer each department, the necessary power over the budget. The power of the under a previous unanimous consent at constitutional means, and personal motives, purse is the strength of the Congress; take 5:45. that away, and all else will fall. Is Congress’ to resist encroachments of the others. . . . If Mr. BUMPERS. Is a certain time al- men were angels, no government would be management of the budget inefficient? Sure- necessary. If angels were to govern men, nei- ly it is; the workings of democratic institu- lotted to Senator MOYNIHAN? ther external nor internal controuls on gov- tions always are. Is it cumbersome? Of Mr. BYRD. It is 30 minutes, I believe. ernment would be necessary. course it is; getting a majority of 535 politi- Mr. MCCAIN. I ask the Chair, how Moreover, as Justice Frankfurter cal prima donnas to agree on anything is a much time does Senator MOYNIHAN pointed out in the wake of our battle difficult task. But if we wish to live in a plu- have? Is there a certain amount of ralistic and free society, we will strive to en- time? against dictatorship in the Second sure that Congress retains exclusive control World War, the road to tyranny may be The PRESIDING OFFICER. No time of the nation’s purse. Only in that event will was allotted. paved with the best of intentions. Writ- the delicate balance of our constitutional ing in the so-called Steel Cases over- structure be preserved. Mr. BYRD. Mr. President, I yield 30 minutes to Mr. MOYNIHAN. turning President Truman’s attempt to Mr. President, this bill is an unwise Mr. MCCAIN. At 5:45 is a vote to take control of steel mills, Justice attempt to give away Congress’ power table the Byrd motion to recommit, Frankfurter states: over the purse and undo the system of under a previous agreement. [The Founders] rested the structure of our checks and balances created by our Mr. BYRD. So, between now and 5, central government on the system of checks Founding Fathers. It is at odds with there is time for several Senators. and balances. For them the doctrine of sepa- the requirements of the Constitution. I Mr. MCCAIN. Mr. President, I yield 15 ration of powers was not mere theory; it was urge my colleagues to reject it and a felt necessity. Not so long ago it was fash- minutes to the Senator from Delaware, adopt a different version called expe- ionable to find our system of checks and bal- Senator ROTH. dited rescission. ances obstructive to effective government. It Mr. NICKLES. Will the Senator yield Mr. MCCAIN. Mr. President, we were was easy to ridicule that system as out- to me briefly? moded—too easy. The experience through sort of going back and forth from one Mr. MCCAIN. Yes. side to the other. Since Senator LEVIN which the world has passed in our own day Mr. NICKLES. Mr. President, I rise has made vivid the realization that the just went, Senator ROTH was going to today in strong support of the Line- Framers of our Constitution were not inex- go and, then, I understand Senator Item Veto Act. The final Senate con- perienced doctrinaires. These long-headed DASCHLE will go. I believe that is the sideration and passage of this historic statesmen had no illusion that our people en- normal custom. joyed biological or psychological or socio- Mr. BUMPERS. Mr. President, I won- legislation is the result of years of hard logical immunities from the hazards of con- work on the part of many of my col- centrated power. It is absurd to see a dic- der if the floor manager would be will- ing to enter into a unanimous-consent leagues. tator in a representative product of the stur- I particularly wish to congratulate dy democratic traditions of the Mississippi agreement specifically naming the Senator MCCAIN and Senator COATS, Valley. The accretion of dangerous power order of those who were here on the does not come in a day. It does come, how- floor so others will know approxi- who have dedicated so much of their ever slowly, from the generative force of un- mately when to come to the floor. time and energy to this initiative. In checked disregard of the restrictions that Mr. MCCAIN. I note the presence of recent years, they have taken up this fence in even the most disinterested asser- the Senator from West Virginia. I hope cause which was so actively pursued in tion of authority. that is agreeable with him. the past by Senator Mattingly, Senator Much will no doubt be made in the Mr. BUMPERS. I defer to our leader Evans, and Senator Quayle. course of this debate of the fact that there, Senator BYRD, with how to ap- My colleagues have shown great the President supports this bill of proach this. courage over the years in continuing to course. Every President would like Mr. BYRD. Under the circumstances, bring this issue to the floor of the Sen- Congress to hand over part of its power I would be willing to do that. I am ordi- ate. They did this at some political over the purse. narily not willing to stray away from risk, yet they did not waiver. They be- I would point out however that what the rules require, but I would be lieve in this issue, and I think they are former Counsel to the President—the happy to do that on this occasion. right. President’s own counsel—has parted Mr. BUMPERS. I suggest that Sen- I believe the line-item veto is vitally company with the President on this ator ROTH be recognized next, follow- important, Mr. President. It will save issue. In a March 25, 1996, column in ing which Senator DASCHLE be recog- money, and right now we are spending the Legal Times, Abner Mikva wrote nized. too much and our budget process does that line-item veto proposals not only Mr. DASCHLE. Well, Senator BUMP- not work very well. The line-item veto raise constitutional problems, but ERS has been here longer than I have. is certainly not a panacea for all our March 27, 1996 CONGRESSIONAL RECORD — SENATE S2967 budget problems, and it will not bal- bills and supplementals, but I can tell ference report, and then I will turn to ance the budget. But it will help. you from experience that every single the troublesome language regarding According to the Library of Congress, appropriations bill has had items in it taxes. at least 10 Presidents since the Civil that we do not need and we cannot af- Let me be clear that I believe that War have supported the line-item veto, ford. The line-item veto will give the the line-item veto will not solve our including Presidents Grant, Hayes, Ar- President the ability to strike those deficit problem. In fact, it will be used thur, Franklin Roosevelt, Truman, Ei- items that we cannot afford. We may as a tool to help trim Federal spending. senhower, Nixon, Ford, Reagan, and or may not agree with him. If we dis- We all know, that we need every pos- Bush. Further, 43 of 50 State Governors agree, we can try to override his veto. sible tool to help reduce Federal spend- have some form of line-item veto au- Mr. President, I think it is important ing. thority. to note that this line-item veto will This is a very important issue that At its essence, this is a debate over impact not only appropriated spending, was contained in the Contract With checks and balances. Right now, we are but also new entitlement spending and America. The Republican-led Congress writing a lot of checks, and there are limited tax benefits. We all know it is continues to keep its promises to the few balances. Congress spends the the outrageous growth of entitlement American people in passing legislation money, and the President has two op- spending that is causing our deficit that will help reduce Government tions. One, he signs the bill, or two, he problems, so I think it is a significant spending, the budget deficit, and the vetoes the bill. step to give the office of the President debt burden on our children. In the Historically, the balance of spending more authority to control the growth Senate’s first joint hearing with the power between the executive and legis- of these programs. House on the issue in January 1995, be- lative branches of Government has var- Mr. President, again, I compliment fore the Governmental Affairs Commit- ied considerably. Prior to 1974, several my colleagues, particularly Senator tee, Dr. Alice Rivlin, Director of the Presidents impounded congressionally MCCAIN and Senator COATS, for their Office of Management and Budget directed spending, and Congress had leadership. They have taken this issue asked that the Congress provide the little recourse. on year after year, many times at con- ‘‘strongest possible line-item veto According to the Congressional Re- siderable economic and political pain. I power to the President’’ I agreed with search Service, the first significant im- compliment them for their courage, Dr. Rivlin’s statement. Congress has poundment of funds occurred in 1803 and I am proud of their success. acted and will now give the President a when President Thomas Jefferson re- The line-item veto is a significant ac- very strong version of the line-item fused to spend $50,000 appropriated by complishment for the 104th Congress, veto powers. Both the Senate and Congress to provide gunboats to oper- but I continue to hope that it is not House passed the line-item veto over- ate on the Mississippi River. President our most significant accomplishment. whelmingly. This week the Senate will Grant impounded funds for harbor and It is with no small degree of frustra- pass the conference report. A historic river improvement projects in 1876 be- tion that I note that President Clinton moment. cause they were of a local interest and the Democrats killed the constitu- Mr. President, the time has come to rather than in the national interest. tional amendment to balance the budg- put an end to out of control Federal President Roosevelt impounded funds et, they killed the Balanced Budget spending that has taken money from during the Great Depression and World Act, and they killed welfare reform. the private sector—the very sector War II, and in the 1960’s President When President Clinton campaigned that creates jobs and economic oppor- Johnson withheld billions of dollars in on a line-item veto in 1992, he claimed tunity for all Americans. funding for highway projects. that he could reduce spending by $9.8 The American people are crying out This conflict came to a head in the billion during his term. I wish we could for a smaller, more efficient Govern- 1970’s when President Nixon impounded have given it to him earlier, since ment. They are concerned about the over $12 billion for public works hous- spending has actually increased during trend that for too long has put the in- ing, education, and health programs. his term so far. Even more amazing is terests of big government before the in- Nixon’s action led to the enactment of that right now, in some room in the terests of our job-creating private sec- the Congressional Budget and Im- Capitol building, the President’s aides tor. They are irritated by the double- poundment Control Act of 1974. Under are insisting on spending $8 billion standard that exists between how our this legislation, Congress eliminated more this year. families are required to balance their the President’s impoundment author- Mr. President, I hope the line-item checkbooks and how Government is al- ity in exchange for establishing its own veto is not our most significant budget lowed to continue spending despite its budget process. accomplishment this year, but even if deficit accounts. Under the Congressional Budget Act, the President continues to block our I believe that spending restraint for the balance of spending power is now other initiatives, this legislation will our nation is one of the most impor- significantly in Congress’ favor. The stand out as a shining example of our tant steps we can take to ensure the President may now propose rescissions success. economic opportunities for prosperity of appropriated funds, but Congress is Mr. BYRD. Mr. President, I yield 30 for our children and for our children’s not obligated to consider them. The minutes to Mr. BUMPERS and 30 min- children. General Accounting Office reports that utes to Mr. SARBANES at such time as As a nation—and as individuals—we from 1974 to 1994, Presidents have pro- they are recognized. are morally bound to pass on oppor- posed 1,084 rescissions of budget au- The PRESIDING OFFICER. The Sen- tunity and security to the next genera- thority totaling $72.8 billion. Congress ator from Delaware is recognized. tion. has adopted only 399, or 37 percent, of Mr. ROTH. Mr. President, today the The Federal behemoth must be re- the proposed rescissions in the amount Senate turns to the conference report formed to meet the needs of all tax- of $22.9 billion. Congress has also initi- on the line-item veto legislation. This payers for the 21st century. I am con- ated 649 rescissions totaling $70.1 bil- legislation would provide for enhanced vinced that it is through a smaller, lion, but most of these rescissions have rescissions procedures to allow the smarter government we will be able to been used to offset other Federal President to cancel new items of direct serve Americans into the next century. spending. or entitlement spending, appropria- The President’s recent budget pro- Mr. President, I have served on the tions, and limit the tax benefits; in posals for next year offer clear evi- Appropriations Committee. They prob- sum, virtually all Government expendi- dence of the lack of political will to ably work as hard as any committee in tures. make the hard choices when it comes the Senate, and they are responsible Mr. President, while I do support the to cutting Government spending. His for spending a little over $500 billion, conference report and believe in the in- budget does not take seriously the need about a third of what the Government tent of the legislation, I am concerned for spending restraint. In fact, Bill spends right now. about the way the legislation affects Clinton proposes spending over $1.5 For the most part, they do an excel- tax provisions. Let me first outline my trillion dollars this year and nearly lent job with the annual appropriations views regarding the underlying con- $1.9 trillion dollars in 2002. In other S2968 CONGRESSIONAL RECORD — SENATE March 27, 1996 words, the only path that the President nent transition relief for 10 or fewer order against such inclusion. However, proposes is one that leads to higher beneficiaries in an fiscal year from a nothing in the pending legislation that Government spending, higher taxes, change to the Internal Revenue Code. authorizes the inclusion of such state- and ever-increasing burdens for our In further contrast to the President’s ments in a conference report limits ei- children. authority to cancel on the spending ther House from exercising its con- Deficit spending cannot continue. We side, the legislation before us provides stitutional rulemaking authority by can no longer allow waste, inefficiency, an additional mechanism that applies requiring, rather than authorizing, the and overbearing Government to only with respect to limited tax bene- inclusion of such statements. consume the potential of America’s fu- fits, in order to further circumscribe Mr. President, I thank my colleagues ture. I am committed to spending re- the President’s authority. This mecha- for their attention, and I urge that straint as we move to balance the nism provides that in certain cir- they join me in supporting this needed budget. As I said before, the line-item cumstances Congress may reserve unto legislation. I thank the Chair. I yield veto legislation will not solve our defi- itself the sole discretion to identify the floor. cit problems, but it will be a helpful those items in a revenue or reconcili- Mr. BUMPERS addressed the Chair. tool to cut spending. ation bill or joint resolution that con- The PRESIDING OFFICER. The Sen- While the authority conferred upon stitute a limited tax benefit. Such ator from Arkansas [Mr. BUMPERS], is the President in this legislation is identification by Congress is control- recognized. commonly referred to as a line-item ling on the President, notwithstanding Mr. BUMPERS. Mr. President, the veto, the authority is actually an au- the definition of a ‘‘limited tax bene- distinguished Senator from West Vir- thority to cancel—with specified limi- fit’’ in the pending legislation, and is ginia yielded me 30 minutes, and I am tations—appropriations, entitlements, not subject to review by any court. quite sure I will not take that amount and tax cuts. This cancellation author- Historically, the Senate has enacted of time. I know there are many wishing ity bears closer resemblance to im- tax legislation either by unanimous to speak. It is one of those cases that poundment authority than to a tradi- consent, in the case of simple bills, or Mo Udall described one time: ‘‘Just tional veto. by agreeing to a conference report, in about everything that needs to be said What this legislation before us does the case of more significant bills. As a has been said but everybody has not is to allow a President to sign an ap- practical matter, the bills adopted by said it.’’ So I am going to add my two propriation, entitlement, or tax bill unanimous consent generally deal with cents worth. and then exercise a separate authority one subject and are not an important First of all, the constitutional prob- to cancel an item in those laws, such concern to advocates of a line-item lems with this bill are insurmountable. cancellation to be effective unless Con- veto authority in the tax area. Con- The people listening or watching gress passes another law, presumably ference reports, in contrast, may con- would be interested in knowing, no- over the President’s veto, to negate the tain a large number of tax items. It is where in the Constitution is the word President’s exercise of his cancellation in such context that a limited tax ben- veto mentioned. Here is what the authority. efit might be found. Framers said in article I of the Con- My concern with this legislation is Consequently, whenever a revenue or stitution: that I have never heard of impounding reconciliation bill or joint resolution Every bill which shall have passed through a tax cut. I have heard of impounding that amends the Internal Revenue Code the House of Representatives and the Senate spending, but not a tax cut. As you of 1986 is in conference, the Joint Com- shall before it become a law be presented to know, 43 State Governors have line- mittee on Taxation is required to re- the President of the United States. If he ap- item veto authority, but not a single view the legislation and identify any prove he shall sign it but if not he shall re- Governor has any authority to cancel a provision that constitutes a limited turn it with his Objections to the House in tax cut. tax benefit. If the conferees include which it shall have originated. It is my studied judgment that the this list of identified items in the con- I have been here 21 years. I am not a Federal Government spends too much ference report, the President can can- constitutional scholar but a country and taxes too much. The well being of cel a tax item only if it appears on the lawyer with a great reverence for the our people would be significantly im- list. If the Joint Committee on Tax- Constitution. I have voted against proved if both spending and taxation ation finds that the bill contains no more constitutional tinkering, I will were diminished. Consequently, I would limited tax benefits and Congress in- bet, than any Senator here in the past like this legislation better if it allowed cludes a statement in the conference 21 years. Unhappily, we have Members the President to cancel only spending report that no such items exist, the of this body who think that what Madi- items and not tax-cut items. President is thereby foreclosed from son and Adams and Franklin did 207 Fortunately, the President’s author- canceling any tax item. However, if years ago was simply a rough draft for ity in the tax area is narrow—evidence Congress does not include a statement us to finish. This is a classic case of of the fact that the conferees under- either identifying the specific limited casual tinkering with our Constitution, stood the anomaly of impounding tax tax benefits or declaring that none is that sacred document which was put cuts. In contrast to the authority on contained in the bill, then the Presi- together by the greatest assemblage of the spending side whereby the Presi- dent may cancel a tax item if it falls minds under one roof in the history of dent may cancel, first, ‘‘any dollar within the definition of a limited tax the world. amount of discretionary budget au- benefit and the exercise of the Presi- Do you know what else it is? It is a thority’’ and (2), ‘‘any item of new di- dent’s authority meets the require- classic political response to an admit- rect spending,’’ the authority on the ments of section 1021 of the Budget ted problem. It is a diversion and a dis- tax side is limited. The President has Act, as written by this pending legisla- traction of the American people. It the authority to cancel only items tion. Similarly, the President has such tells them, ‘‘Here is a simple answer to which meet the definition of a ‘‘limited authority to cancel a limited tax bene- spending and deficits.’’ tax benefit.’’ fit contained in legislation that is not Nothing could be further from the A ‘‘limited tax benefit’’ is a defined adopted as a conference report. How- truth. But people busy trying to make term, which covers two specific cat- ever, as I said, the occasion for an exer- a living and keeping food in the egories: cise of such authority would be rare, mouths of their children do not have First, a revenue losing provision indeed. time to examine the complicated de- which provides a Federal tax deduc- The pending legislation authorizes tails of this proposal. tion, credit, exclusion, or preference to conferees, in the above circumstances, How did it all start? Where did this 100 or fewer beneficiaries under the In- to include a statement regarding the idea of a line-item veto originate? I do ternal Revenue Code of 1986 in any fis- provision of limited tax benefits, not- not know. I had not been here very cal year for which the provision is in withstanding any precedents or House long when Ronald Reagan was elected effect; or or Senate rules—such as those rules re- President. He had promised to balance Second, any Federal tax provision lating to the proper scope of a con- the budget, and the first thing you which provides temporary or perma- ference—that might create a point of know the deficit was soaring. And 8 March 27, 1996 CONGRESSIONAL RECORD — SENATE S2969 years later the national debt had gone United States would use it. It is a le- den, AR. Are you beginning to get the from $1 trillion to $3 trillion—tripled in thal weapon in the hands of the execu- picture? The President might say, 8 years. I do not want to be hyper- tive branch. ‘‘Well, now, Senator, they tell me you critical of President Reagan, but I Today, at this very moment, the defi- are hot against the space station. I am heard him say time and time again, ‘‘I cit has fallen from a projected $390 bil- hot for it. And the Defense Department can’t spend a nickel that the Congress lion—that is what it was projected to told me they were thinking about mov- doesn’t appropriate.’’ be. In 1992, we were looking at a 1995 ing the manufacturing of the multiple- What he should have been saying is deficit of $390 billion. It is half that launch rockets from Camden, AR, to ‘‘The Government cannot spend a dime amount, and it is already down close to someplace in Alabama.’’ Do you think unless I sign off on it.’’ Despite all of $20 billion from that projection, during that does not get my attention, 750 that rhetoric and talk about spending just the first 31⁄2 months of this new fis- jobs? and deficits, from 1980 to 1992, the defi- cal year. And it was not done with a When James Madison and his col- cit went from $1 to $4 trillion. Presi- line-item veto. It was done by people leagues in Philadelphia in 1787 were dent Bush never vetoed an appropria- who were determined to try to get the crafting that document that has given tions bill, and President Reagan vetoed budget balanced. this country the oldest democracy in one spending bill because it was not big Oh, this is a terrible, terrible, lousy the history of the world, they said the enough—a Defense bill. He vetoed it be- idea. It started out as a political diver- power of the purse will be vested in cause it did not have enough money in sion for the benefit of a party, to say, Congress. They did not say ‘‘unless the it. ‘‘Oh, wouldn’t it be great if the Presi- President decides to tinker with the President Clinton told my friends on dent could just take all that pork out figures.’’ They said, ‘‘The Congress the other side of the aisle, ‘‘You pass of there?’’ I have seen figures to show if shall pass appropriation measures.’’ Do that reconciliation bill, and I am going the President utilized the line-item you know what they gave us in ex- to veto it.’’ And they passed it, and he veto to its maximum, it would have change for that? They said, ‘‘You can vetoed it. He did not veto it because of about a 1 to 2 percent effect on the spend the money, but you also have to the amount of money in it. He vetoed total budget. It is unneeded, hopelessly raise it.’’ That was supposed to be a it because of its priorities. But at this unworkable, and an unprecedented nice balance. You have to tax the peo- very moment, conferees all over this grant of power to the President of the ple. That is not popular. You have to Capitol building are meeting trying to United States. And, yes, it is patently raise the money with taxation before craft a resolution about differences on unconstitutional. you can spend it, but we are going to spending and programs. Frankly, not This morning we had a vote. Every- give you the power of the purse. making much headway. body here knows what it was about. It What are we doing? We are saying, The President wants another $3 bil- was about the Utah wilderness bill. ‘‘James Madison, you did not know lion in education, and that is the stick- Even the people of Utah, apparently, what you were doing. You made a co- ing point. Let me digress just for a mo- did not think much of that bill. It is lossal mistake when you crafted our ment on that point and say I saw the very controversial. But the bill tracked Constitution, so we are going to cor- most interesting quote yesterday. I almost exactly what President Bush rect it. We are going to give the Presi- think it was the President of Peru who recommended when he was President. dent all the powers you gave him in the said everything should be subordinate Now, if President Bush were sitting Constitution, and we are going to take to our children they are just forming in the White House right now and we some away from Congress and say you their brain cells, their bones, their were voting on cloture, as we did this not only have all the executive powers, minds, and bodies, and they do that in morning, and the advocates of the Utah being Commander in Chief and all a few short years. His point was that if wilderness bill needed the nine votes those things, we are now going to give you neglect your children, you have that they did not get this morning, you the power of the purse.’’ lost a generation of what would other- they could go to the White House and Colleagues, do not, 2 years from now, wise be healthy, productive citizens. the President could call three Repub- 3 years from now, come on this floor I thought that comment was beau- licans and maybe six Democrats and and start crying about this mistake we tiful, appropriate, and absolutely true. say, ‘‘I have been looking at this bill are about to make. Oh, I know it is So our President is simply saying over here. You know that little old re- popular. You walk in any diner in that for everybody we allow to grow up search center you have down in your America and ask, ‘‘Do you favor the in ignorance, we all pay a price for it. State? My people tell me they do not line-item veto?’’ You bet. ‘‘Do you I do not know whether he is going to much like that. They do not think it is favor prayer in school?’’ You bet. ‘‘Do get the $3 billion or not. We may have needed. They think it is a waste of you favor a balanced budget amend- another continuing resolution. I think money. I am inclined to disagree with ment to the Constitution?’’ You bet. we will. But my point is this. We are my people. But, while I have you on Count me in. ‘‘Are you against flag negotiating, and we are talking. If I the phone, I am a strong proponent of burning?’’ You bet. All those things were to say to my friends on the other the Utah wilderness bill. Perhaps you that have a great emotional impact on side of the aisle, ‘‘Let us just send this and I could sit down. We could talk people, until they have heard, as Paul bill over to the President and let him this over. Maybe you could see my way Harvey says, ‘‘the rest of the story.’’ pick and choose what he wants to kick on the Utah wilderness bill and perhaps We are saying, ‘‘Mr. President, stop out,’’ I would start a riot right on the I could see your way on that little re- us before we spend again. We are out of floor of the Senate. Nobody wants to do search center you have in your State.’’ control, and only you can bring us that. It is not unheard of. I just got under control.’’ I can remember when this line-item through confessing to you that is what This is not such a good idea for the veto thing came up. I did not like it. I did when I was Governor. I have President, either. Everybody knows People would say, ‘‘Well, you were a fought against 12 aircraft carriers; I President Clinton and I have served our Governor, weren’t you? thought 10 was adequate. I fought beloved State of Arkansas together for ‘‘Yes, I was Governor.’’ against bringing those old moth-eaten many, many years. He is my friend. ‘‘Didn’t you have a line-item veto?’’ battleships out of mothballs at a cost But he is for this. I am sick that I did ‘‘Yes, I had a line-item veto.’’ of about $2 billion. Now they are back not get a chance to dissuade him before And I used it occasionally. Do you in mothballs. I fought and have contin- he said that publicly. But he says he is know what I used it for? To get legisla- ued to fight against the space station, for a line-item veto, and that is a mild tors in line. which will go down in history as the disappointment to me. ‘‘Senator, you know that vo-tech most outrageous waste of money in the But, you know, Mr. President, if he school for your high school in this bill? history of the U.S. Government. We fi- picks out some projects that are the That sucker is going to be gone unless nally killed the super collider. On wrong projects and decides to send you get back down there and change every one of those things, the Presi- them back over here and require us, ul- your vote.’’ That is the way I used it. dent was on the other side. And we timately, to have a two-thirds vote in That is the way a President of the build a multiple launch rocket in Cam- both Houses in order to pass, he may S2970 CONGRESSIONAL RECORD — SENATE March 27, 1996 get in trouble in some State. So what sitting on the Court. You can take same form, the enrolling clerk would do you think he is going to do? He did their clerks and secretaries away from enroll each appropriations item, tar- not just fall off a watermelon truck. He them; you can cut the air-conditioning geted tax benefit, or new entitlement did not get elected President by being off. To give the President that kind of spending provision as a separate bill. In stupid. He is going to be very careful authority over the independent judici- allowing these items to be considered about what he excises out of the appro- ary is the height of irresponsibility. as separate bills, the President would priations bills for fear he will lose that We not only have an independent ju- be able to use his existing veto power State. diciary, we just, fortunately, had a as defined in the Constitution to reject Right now this Presidential race is very wise man named John Marshall legislation. heating up. Do you think a President is who was Chief Justice of the Supreme Currently, some 43 States provide going to take anything big out of a bill Court when the Marbury versus Madi- their chief executive with some version in an election year? In an off year, son case was argued. John Marshall of the veto pen. As a Governor of South when he is not running for President, said: ‘‘Somebody has to decide: Are Carolina, I used the line-item veto to he might pick out a couple of Senators those laws they’re passing over there balance four State budgets and win the he does not like, who have been par- in conformance with this Constitution first AAA credit rating of any South- ticularly obstreperous and have fought or not?’’ ern State. As a United States Senator, against some of his programs, and in a So was born the doctrine of judicial I have worked tirelessly to pass the year when he is not up for reelection, review. Thank God for John Marshall line-item veto. In 1985, working with he may decide to take some of those and judicial review and a truly inde- former Republican Mack Mattingly of projects out of the States of Senators pendent judiciary. Georgia, we rounded up 58 votes in the of the other party. So, Mr. President, this bill gives the Senate for a line-item veto that was Bear in mind, when we first started President a legislative authority to the prototype for the Senate passed talking about term limits, it swept this amend bills. He can literally amend version. In 1990, I offered similar legis- country like a prairie fire. It is a ter- our bills. I am terribly uncomfortable lation before the Senate Budget Com- rible idea, a lousy idea. I have never knowing this bill is going to sail mittee and we adopted my bill by a been for it and will never be for it. Vir- through here with a big majority, but I vote of 13 to 6—the first time ever that tually every Member of this body on am comforted in the fact that I believe the line-item veto had ever been favor- the other side of the aisle thought it the independent judiciary that was set ably reported out of the Budget Com- was wonderful until they got control of up to stop such foolishness as this will, mittee. In 1993, Senator BILL BRADLEY Congress, and now you cannot even get indeed, do so. So I repose my trust in and I offered an amendment to the it up for a vote. the Supreme Court of the United budget reconciliation bill that would We kept people’s attention diverted States on this issue. have applied the line-item veto to just long enough, and the Republicans I yield the floor. wasteful tax breaks as well as unneces- took control of Congress, and now it is Mr. HOLLINGS. Mr. President, when sary spending and garnered 53 votes. not worth the cost of electricity to the Senate passed the line-item veto But instead of fighting for the pro- have a roll call on term limits. It back in March of 1995, taxpayers across posal that has been gaining ground, the would be defeated soundly. And when it the Nation applauded the bipartisan ef- Republican majority, in resurrecting comes to the line-item veto, they want- forts of the 69 Democrats and Repub- the enhanced rescission proposal, has ed a line-item veto so desperately—in licans that worked shoulder to shoul- backed the wrong horse. First, the con- all fairness 19 Democrats voted for this der for the common good. What a dif- ference report’s enhanced rescission thing, too. What was it about? Take ference a year makes. A year later with approach damages the fundamental the heat off Ronald Reagan. That is Presidential politics well underway, balance of power between the coordi- really where it all started. Republican conferees have engaged in nate branches of Government that is Then, suddenly, the contract, the fa- an outrageous bait-and-switch oper- the cornerstone of our constitutional mous Contract With America, over in ation designed to win political points system of Government. Under current the House of Representatives, it was and push meaningful reforms onto the law, Presidential rescissions are sug- put in the contract: line-item veto. Not back burner. Gone is the carefully gestions. They have no force of law many people in America knew it. Not crafted compromise bill offered on the until Congress, as the legislative many people in America cared. So we floor by the distinguished majority branch, enacts those changes. However, passed it. How long did it take after leader that Republicans embraced after under new enhanced rescission powers, Bill Clinton got elected President— deep divisions arose in their own ranks Presidential spending cuts and loop- something nobody anticipated—we regarding the appropriateness of ex- hole closings would have immediate could not even get conferees appointed. panding Presidential rescission powers. force and thus, affirmatively change Do you know what the bill now says? It Instead, conferees have substituted leg- the existing law just passed by Con- will not go into effect until January islation based on the McCain-Coats en- gress. To reinstate those provisions, 1997, with the ardent, divine hope that hanced rescission proposal—a measure Congress would have to reenact the BOB DOLE will be President January 1, that in 1993 received only 45 votes. In specific proposals in a rescission dis- 1997. abandoning the Senate approach, the approval bill, itself subject to a Presi- Those are the shenanigans that are Republican majority has dangerously dential veto requiring two-thirds of going on with our sacred Constitution. eroded bipartisan support for the Sen- both Houses to override. In my view, Mr. President, another thing that ate line-item veto and now threatens giving the President such legislative those great minds in Philadelphia did to snatch defeat from the jaws of vic- power amounts to an unconstitutional almost 209 years ago is they provided a tory. transfer of legislative power. third branch of Government called the Mr. President, I have been in this Second, the conference report’s defi- judicial branch. They set up a Supreme fight for too long to accept such circus nition of a limited tax benefit would do Court and such lower courts as Con- tricks. For well over the last decade, I little to focus scrutiny on special inter- gress may establish. They are inde- have touted the line-item veto as a est tax breaks. The original Senate pendent, and they are named for life. meaningful way to restore responsibil- bill, like the legislative language in You cannot threaten them. An article ity and accountability to the budget the Republican Contract With Amer- in New York Times this morning de- process. Specifically, I have supported ica, appropriately recognized that pork scribes a letter from the Federal judges the separate enrollment legislative is pork, be it of the tax or spending va- vigorously opposing this, because if a line-item veto which avoids the con- riety. But under the conference report, Federal court renders a decision the stitutional objections that are evident the definition becomes a tax lawyer’s President does not like, the next time in proposals that seek to change the dream. It States that an item will be around, he can just take their money President’s constitutionally prescribed considered to be a limited tax benefit away from them. He cannot take their veto powers. Under the separate enroll- only if it is a tax benefit that goes to salaries because you cannot reduce ment mechanism, after legislation had 100 or fewer beneficiaries or a transi- their compensation as long as they are passed both Houses of Congress in the tional relief provision that accrues to March 27, 1996 CONGRESSIONAL RECORD — SENATE S2971 10 or fewer beneficiaries. This numeri- Mr. President, this struggle will con- So if, indeed, Mr. President, any cal distinction bears little relation to tinue. And I will be willing in the fu- President of the United States chooses the relative wastefulness of a tax break ture to work with colleagues on both to make a mockery of the Senate or and, if valid, might just as well apply sides of the aisle, as I have in the past, the House by arbitrarily exercising this to appropriations or new entitlement to develop a responsible, workable, veto, let me suggest the Senate has to spending. By setting numerical thresh- constitutional, and bipartisan legisla- confirm his Cabinet. The Senate has to olds, Congress does little to close out- tive line-item veto. I wish that day confirm his appointees, and there are dated tax loopholes and a lot to en- were today, but with the Presidential hundreds of them. Presidents of the courage the Gucci gulch crowd to abuse races in full swing, I fear once again United States need legislation. They the system and make sure that any that politics, not policy, is the driving work to get elected, and they send us newly proposed tax break has at least force behind today’s controversy. their proposals. Their proposals are 101 beneficiaries. Moreover, additional Mr. BIDEN. Mr. President, I have for their policies and they need to pass restrictions further reduce the scope of many years now supported a line-item Congress to become law. qualifying tax benefits and erode the veto that can help to wipe out wasteful Let me suggest that any President effectiveness of the line-item veto far special-interest spending items that who would choose to act capriciously beyond earlier versions. are added to our appropriations bills. and arbitrarily in this line-item veto Third, the conference report promises But I have also cosponsored and sup- exercise will do so at his own risk. We to give the President the veto pen, but ported line-item veto authority for the are really trying out this item veto—it withholds the ink. If conferees were President that includes the authority is an experiment in seeing if we can do really concerned about deficit reduc- to cut special-interest tax breaks, that a better job of spending the taxpayers’ tion and not politics, why not make lose money from the Treasury as sure- money. I believe Presidents who will the act effective immediately rather ly as any spending program. In many arbitrarily and capriciously use that that wait until either 1997 or the enact- ways they weaken our control over the tool take unto themselves the oppor- ment of a balanced budget plan? deficit more than annual spending tunity that will certainly find that It is a sad truth, that politics are bills. Congress will have a chance to a re- now more important than policy to Because tax breaks characteris- spond arbitrarily toward Presidents. this crowd. Having brought the line- tically last for years with little or no I am not threatening this, and I am item veto through the Senate on a bi- review, they can cause more damage not suggesting a tit-for-tat sort of situ- partisan basis, the Republican major- than any single item in 1 year’s appro- ation. But the truth of the matter is, ity has now retreated, fearing that a priations bill. there is some serious balance of this bipartisan line-item veto would leave The line-item veto we passed out of power that remains vested in the Con- no one over whom to claim victory. I the Senate last year, the separate en- gress of the United States, and, indeed, do not know whether the Republican rollment version that I have consist- speaking for our institution, the U.S. majority has the votes to prevail ently supported for over a decade, in- Senate, this institution, there are plen- today, but ultimately this enhanced re- cluded clear and strong language that ty of things Presidents need the U.S. scission approach will be found to be put special-interest tax breaks under Senate to do so they can do their exec- unconstitutional, which will bring us the same veto power as any pork-barrel utive work well. right back to where we started. spending project. After all, the President is the Execu- As I have stated earlier, it does not Unfortunately, the version that came tive. He needs Congress to help him so have to be that way. The bipartisan out of conference with the House has so he can use his Executive powers. If he proposal that I and others have advo- diluted that provision that it may well chooses to use them arbitrarily with cated, and that the Senate adopted last apply to virally no tax breaks. reference to the line-item veto, then, That is why I will vote for Senator year, allows Congress to consider indi- obviously, he might find an uncoopera- BYRD’s proposal, that restores the clear vidual items in enacted legislation as tive Senate, he might find an unco- authority to cut tax breaks as well as separate bills. The Founding Fathers operative Congress. I do not think that special-interest spending. entrusted our Nation’s chief executive is ever going to occur, but I thought it with the power of the veto to provide Mr. DOMENICI addressed the Chair. The PRESIDING OFFICER. The Sen- might be good for the record just to ex- our Government with the benefits of ator from New Mexico. plore that we have not given away all reconsideration and to promote legisla- Mr. DOMENICI. What is the time sit- our power, we have not given away all tive self-control. Unfortunately, over uation, Mr. President? our ability to say ‘‘yes’’ and ‘‘no’’ to time, congressional construction of The PRESIDING OFFICER. The Sen- Presidents of the United States on a legislation has eroded that veto power ator from New Mexico has 86 minutes. myriad of things that the President where disparate spending and tax pro- The Senator from West Virginia has 4 needs for his Executive power. visions are bundled in large omnibus hours 9 minutes. Now, why do I say it that way? Be- bills. As a result, the President is Mr. DOMENICI. At this moment, do I cause the contention is that he is tak- forced to take it or leave it. Thus, the understand there is 5 minutes before ing away some of our prerogatives as separate enrollment item veto elimi- Senator MOYNIHAN’s time? legislators in the appropriating proc- nates this all or nothing choice and al- The PRESIDING OFFICER. That is ess, and if he chooses to do that arbi- lows the President to apply his veto correct. trarily, then he is, obviously, weaken- power in considering each item on its Mr. DOMENICI. I yield myself 5 min- ing our power. own merits. utes. I am suggesting we are not without More importantly, by maintaining Mr. President, before we finally vote recourse. I think there is going to be a congressional control over the process, to table Senator BYRD’s motion, there give and take for a few years, but we the separate enrollment approach will be another 15 minutes on our side are not also accepting this concept in avoids the constitutional infirmities of for discussion and some kind of rejoin- perpetuity. We are giving the Execu- enhanced rescission bills. As Lawrence der. But I just want to have a 5-minute tive the line-item veto for 8 years, two Tribe, Constitutional Law Scholar at discussion with the Senators about this full Presidential terms. Then we will Harvard University, wrote in a letter issue of the shift in power. have to pass it again or change it. to Senator BRADLEY, I say to all of them, I have been con- But, indeed, that event of taking an- The most promising line-item veto by far cerned about that for a long time. I other look to see if it is being used is the suggestion . . . that Congress itself was concerned about it as this line- properly or if we should further define begin to treat each appropriation, and each item veto concept, over the last dec- things is not left solely within the dis- tax measure, as an individual ‘bill’ to be pre- ade, worked its way through here. But cretion of Presidents, because this line- sented separately to the President for his I do not think we ought to leave the signature or veto. Such a change could be af- item veto sunsets in 8 years and we fected simply, and with no constitutional record with any inference that Con- will have something to say about the difficulty, by a temporary alteration in Con- gress is left with no power to respond continuation of it. gressional rules regarding the enrolling and to a President’s use of this item veto The arguments about constitutional- presentment of bills. authority. ity, the arguments about balance of S2972 CONGRESSIONAL RECORD — SENATE March 27, 1996 power are serious. I commend the num- its fiscal resources. Fifteen days into reductions under the act. The Court ber of Senators for raising these seri- his Presidency, February 5, 1981, Presi- held that this violated the separation ous issues in very delicate and sincere dent Reagan declared in a television of powers because it vested an execu- ways and I commend them for their address, ‘‘There are always those who tive branch function in the Comptrol- concern. Most of all, I commend Sen- told us that taxes can’t be cut until ler General, who is a legislative branch ator BYRD for his dedicated expla- spending was reduced. Well, you know, official. ‘‘Underlying both decisions,’’ nations here and heretofore. He even we can lecture our children about ex- the Congressional Research Service has wrote a whole book about the Roman travagance until we run out of voice written, ‘‘was the premise . . . that the senate versus losing its power and com- and breath or we can cut their extrava- powers delegated to the three Branches pared it in many ways to what he per- gance by simply reducing their allow- are functionally identifiable, distinct, ceives might happen in this regard. ance.’’ and definable.’’ I was privileged to get one of those ‘‘Starve the beast’’ was the phrase. A There is no ambiguity about the books. I do not always read books that huge increase in debt was the result. meaning of the requirements of article are given to me, but I read that book. But at least until now we have not set I, section 7, nor is there any uncer- In fact, I told the Senator I had and I out to mangle the Constitution to tainty about why the framers vested thought it was exciting. make up for the honest mistakes of one the power of the purse in Congress. He reminded me the successor to administration. Madison in Federalist No. 58: The separate enrollment bill passed Rome was Italy. He reminded me I This power over the purse may, in fact, be might even be a descendant of one of by the Senate last March would have regarded as the most complete and effectual those people he wrote about. required appropriations bills to be dis- weapon with which any constitution can arm Nonetheless, I thought that we ought assembled by the enrolling clerks after the immediate representatives of the people, to get this short 5-minute argument in passage and presented to the President, for obtaining a redress of every grievance, response, just for our perspective in one by one, for his signature. During and for carrying into effect every just and terms of why we are not fearful, why that debate I spoke at some length salutary measure. we do this with open eyes and open about its constitutional and practical Until the Supreme Court considers minds, hoping that it will help the defects. The legislation before us is this bill—and it surely will—we will American people get better Govern- somewhat less convoluted. But its ef- not have a definitive constitutional de- ment at less cost. I yield the floor. fect on the separation of powers be- termination. But some of the Nation’s The PRESIDING OFFICER (Mr. tween legislative and executive leading constitutional scholars have al- ABRAHAM). The Senator from New York branches would be just as profoundly ready concluded that this legislation is recognized. destabilizing. will be struck down by the courts when Mr. MOYNIHAN. Mr. President, I I will describe at this point what has it reaches them. would like to begin by joining the been described as the methods, the pro- Michael J. Gerhardt, a sometime pro- chairman of the Budget Committee in cedure for cancellation. Once such a fessor of law at Cornell University, and expressing my profound gratitude and cancellation is made, it would ulti- now professor of law at the College of admiration to the revered, sometime mately require a two-thirds vote of the William and Mary, has written me to President pro tempore of the Senate, Congress to override. The legislation say, that in his opinion—I quote—‘‘its ROBERT C. BYRD, who has set us a would have us depart dramatically constitutionality is plainly doomed.’’ standard which if we fail to meet from the procedures set forth in the He argues first that this legislation today, will remain to measure those plain language of the presentment violates article I, section 7, in that it who come after us. clause in article I, section 7. permits enactment of a bill that has Mr. BYRD. Mr. President, I thank Every Bill which shall have passed the never been voted on by Congress as the distinguished Senator from New House of Representatives and the Senate, such. That is, by exercising its power York, whose obstinate veracity we all shall, before it becomes a Law, be presented to cancel any part of the bill after sign- to the President of the United States; If he admire. I thank the Senator. ing it, the President would be creating approve he shall sign it, but if not he shall a new law in a form never considered Mr. MOYNIHAN. Mr. President, I rise return it . . . in the serene confidence that this by Congress. That is plainly unconsti- There is nothing ambiguous about measure is constitutionally doomed. tutional. this provision. The Supreme Court de- That speaks to the stability of the Professor Gerhardt argues that clared in INS versus Chadha in 1983 American political system, a stability granting the President power to that—I quote the Court: sustained in so many moments of peril reconfigure bills passed by Congress is It emerges clearly that the prescription for a legislative function which may not be by the American judiciary. legislative action in Art. I, Section 7, rep- By contrast, I find myself once again resents the Framers’ decision—[the framers’ delegated to the Executive. Finally, he agitated that a measure of such enor- decision, Mr. President]—that the legislative notes that even if Congress could dele- mity—I use that word in both of its power of the Federal Government be exer- gate the proposed veto power to the meanings—comes to us for so frivolous cised in accord with a single, finely wrought President, ‘‘Congress lacks the author- a reason. We are told by the committee and exhaustively considered procedure. ity to restrict Presidential authority of conference that the purpose of the In Chadha the court held unconstitu- by limiting the grounds a President conference report, which is to say the tional a statute that permitted either may consider as appropriate for bill, is to promote savings. We are fur- House of Congress by resolution to in- vetoing something.’’ ther informed that this is necessary be- validate decisions of the executive In his treatise, ‘‘American Constitu- cause the American people consistently branch as to whether certain aliens tional Law,’’ Laurence H. Tribe of the cite runaway Federal spending and a could be deported. This so-called legis- Harvard Law School writes that— rising national debt as among the top lative veto, according to the Court, . . . empowering the President to veto ap- issues of national concern over the past impermissibly departed from the ex- propriations bills line by line would pro- 15 years alone. plicit procedures set forth in article I, foundly alter the Constitution’s balance of The national debt has quintupled which the court said were ‘‘integral power. The President would be free not only from 1981 and 1996. Our total national parts of the constitutional design for to nullify new congressional spending initia- debt amounted to just $1 trillion in tives and priorities, but to wipe out pre- the separation of powers.’’ viously enacted programs that receive their 1981. Yet today, just 15 years later, that And 3 years later, in Bowsher versus funding through the annual appropriations debt exceeds $5 trillion. Those numbers Synar, the Supreme Court was equally process. scrupulous in requiring strict adher- are not quite accurate, but they are ap- Professor Tribe goes on to say: proximate and will do. ence to the procedures set forth in arti- I have stood on this floor for on to 15 cle I. In Bowsher, the Court invalidated Congress, which the Constitution makes the master of the public purse, would be de- years making the plain point that the the provision of the Gramm-Rudman- moted to the role of giving fiscal advice that increase in debt of the 1980’s was an act Hollings Deficit Control Act, giving the the executive would be free to disregard. The of policy, designed to reduce the size of Comptroller General of the United Framers granted the President no such spe- the Federal Government by reducing States authority to execute spending cial veto over appropriations bills, despite March 27, 1996 CONGRESSIONAL RECORD — SENATE S2973 their awareness that the insistence of colo- available to avoid the limited tax bene- the debt. I am here to report—and I nial assemblies that their spending bills fit designation. By way of an example, hope someone will hear—that, in point could not be amended once they passed the the conference report states that a pro- of fact, the era of runaway spending is lower house had greatly enhanced the vision that benefits only automobile behind us. growth of legislative power. manufacturers would not be treated as The Federal budget is in primary sur- Yesterday, we asked Professor Tribe a limited tax benefit because ‘‘the ben- plus for the first time since the 1960’s— for his opinion on the legislation before efit is available to anyone who chooses for the first time. This came about the Senate today. He graciously tele- to engage in the activity.’’ Thus, a pro- largely as a consequence of the Omni- phoned our office this morning to say vision that benefits only Ford Motor bus Budget Reconciliation Act of 1993, that after studying the conference re- Co. but is drafted in a manner poten- which provided for deficit reduction of port, he has concluded as follows. This tially open to General Motors and some $500 billion—the largest deficit is Laurence H. Tribe this morning: Chrysler would apparently escape the reduction measure in the half century This is a direct attempt to circumvent the line-item veto. since the wartime-incurred deficit was constitutional prohibition against legisla- The tax-writing committees often reduced following World War II. Such tive vetoes, and its delegation of power to the President clearly fails to meet the req- and properly find that tax relief may was the size of the reductions that in- uisites of article I, section 7. Furthermore, be justified in narrow circumstances. terest rates fell sharply, and the deficit nothing in my letter of January 13, 1993 re- Such narrow relief is and ought to be premium, as it had been called, in the garding ‘‘separate enrollment’’ has any bear- granted sparingly, yet these features of markets dropped, and another $100 bil- ing on the mechanism that would be enacted the bill create a perverse incentive to lion was saved. And we are, at long here. craft broader tax benefits than nec- last, moving our deficits down—down Professor Tribe refers to a letter that essary in order to avoid application of to 2 percent of gross domestic product was quoted several times in last year’s the line-item veto. This is surely coun- this year. The difference between the debate in which he discussed the possi- terproductive. present deficit and a true surplus is bility that separate enrollment might Second, while seemingly objective on merely the debt service on the debt ac- be constitutional. He emphasizes now its face, the definition includes several cumulated in those previous 15 years. If that his 1993 letter should not be inter- elements that are seriously ambiguous, we had the debt of the 1970’s, we would preted to indicate any support for this raising a number of questions. For ex- be in surplus today. legislation, which he concludes is cer- ample, what does it mean to be ‘‘simi- The sequence whereby that happened tainly not constitutional. Those are larly situated?’’ Can a provision be was the surpluses of the Kennedy– the constitutional considerations brief- drafted to benefit all baseball team Johnson era became neutral in the ly stated. owners to the exclusion of other sport Nixon administration, and the reces- Now to an additional subject that is franchises? How does one determine sions and inflation of the Ford and of particular interest to me as ranking who are the beneficiaries of a particu- Carter administrations produced small member and sometime chairman of the lar provision? Would the football primary deficits. Then came the 1980’s. Committee on Finance, I direct the at- coaches pension provision—and, yes, Then came 1993 and, among other tention of the Senate to the provision there was one, in the vetoed Balanced things, I stand here saying —happily, of section 1021(A)(3) of this legislation Budget Act of 1995—be deemed to bene- to an almost empty Chamber—we had dealing with limited tax benefits. This fit only the pension plan itself or the the largest tax increase in history, and new language appears to be a response more than 100 coach participants? I I was chairman of the Finance Com- to the argument, raised in the debate could go on longer than the Senate mittee. It was not forgotten entirely in last year, that spending and tax bene- would be interested or perhaps even New York when I came back from the fits should be treated equally under a edified to hear. election. How did we do this? Very sim- line-item veto. There is a final point, sir. By vesting ply, we did it by compromise. We did it The provision purports to subject tax in the Joint Committee on Taxation by the kind of compromise the Framers benefits to the same treatment under the exclusive authority—not subject to anticipated. The Framers said they did the line-item veto as other spending, judicial review, not subject to debate not create a system of government yet the bill’s application to limited tax on the Senate floor—the exclusive au- which presumed virtue. They took in- benefits would have very little real ef- thority to make these determinations, terest as a given and virtue as some- fect, save, as I believe, pernicious ones. this legislation would effectively grant thing to be acquired. And the offsetting Under the proposal, ‘‘limited tax ben- great additional power in drafting tax principles, as Madison put it, to make efit’’ is defined as any tax provision legislation to the chairman of the Sen- up for the defect of better motives. We identified by the Joint Committee on ate Committee on Finance and the made all manner of compromises in Taxation as, (first), a revenue-losing chairman of the House Committee on that legislation, and we would not have provision; (second), having 100 or fewer Ways and Means—those two persons to our deficit down to 2 percentof GDP beneficiaries in any fiscal year; and the exclusion, I fear, of the rest of the today had we not. (third), not within a number of very Congress, the Members of either body. For example, the business meal tax broad exceptions designed to exempt While the Joint Tax Committee may deduction was reduced from 80 to 50 from the line-item veto any tax provi- indeed be the best institutional percent. That was something a chair- sion under which ‘‘all similarly situ- decisionmaker on technical tax issues, man from New York could offer and ated persons receive the same treat- the decision of what constitutes a lim- say, ‘‘Here, I am willing to do this.’’ ment.’’ Any transition rule that the ited tax benefit can and no doubt would The restaurant owners said, ‘‘What Joint Tax Committee estimates will be quite political. The chairmen of the about us?’’ They were given a tax cred- benefit 10 or fewer taxpayers in any fis- two tax-writing committees could it for the FICA tax they are required to cal year would also be defined as a lim- exert pressure on the Joint Tax Com- pay on their employees’ tips. Well, it ited tax benefit. mittee to exclude favored items from was a compromise. I could go on and on This definition is so narrowly drawn application of the bill. Conversely, the about that. Gasoline and diesel fuels that it will be almost effortlessly cir- chairmen would be granted potentially were raised 4.3 cents per gallon. Oh, cumvented, for it is surely simple undue influence over other Members’ Mr. President, do I remember that 0.3 enough—and, Senators, as a member of legislative items with the implicit cents—1 week in a room on the third the Finance Committee for 20 years, let threat that such items would be floor without windows of this Capitol. me assure you, there is no problem ex- deemed subject to the line-item veto. But we got that. How? Airlines were panding the number of beneficiaries In his letter to which I referred earlier, given a 2-year exemption from the in- from 10 to 100. It is very readily done Professor Gerhardt expresses similar creased tax. We also took away tax and perhaps too often so. concerns about this provision. benefits previously accorded exporters To the extent the drafters are unwill- Now, I mentioned that the purpose of of raw timber. ing or unable to manipulate this nu- this legislation, according to the con- Mr. President, these compromises merical standard, one of the ‘‘similarly ference committee, is to limit runaway make major legislation agreeable and situated’’ exceptions often will be Federal spending and thereby reduce effective. Supposing a member with S2974 CONGRESSIONAL RECORD — SENATE March 27, 1996 which a chairman worked were asked flaws in the Conference Report that I iden- ponent of checks and balances, and that the to make a concession in return for an tify and explain below, its constitutionality President’s veto authority is strictly a nega- accommodation; supposing that mem- is plainly doomed. tive power that enables him to strike down ber had to think: The minute this bill Describing how the law works is crucial for but not to rewrite whatever a majority of identifying and understanding the constitu- Congress has sent to him as a bill. becomes law, that chairman will go to tional and practical problems posed by some The wisdom of leaving the power of the that President and say, ‘‘Take out that of its major provisions. As I read it, the crit- purse in Congress, as the framers desired as provision that was made for the Sen- ical delegation made by the Republican draft a means of checking the executive, is but- ator from Louisiana, because it was to the President is the authority to ‘‘cancel’’ tressed by the recognition that pork barrel only done to get your bill by, Mr. all or any part of ‘‘discretionary budget au- appropriations—the evil sought to be elimi- President.’’ You will not have that thority,’’ ‘‘and item of direct spending,’’ or nated by the Republican draft—are just un- ‘‘any targeted tax benefit.’’ Presumably, a attractive examples of legislating for diverse which makes legislation possible. You interests, which is the very stuff of rep- will not have that spirit of trust, which presidential cancellation pursuant to the act has the effect of nullifying a portion of a resentative government. Apportioning the performance reinforces and creates the budgetary or appropriations bill unless a ma- public fisc in a large and diverse nation re- stability of our institutions. For if jority of each chamber of Congress agrees quires degrees of coordination and com- there is no trust, there will be no com- within a specified time period to pass a ‘‘dis- promise that the framers left to the initial promise, and if there is no compromise, approval bill’’ specifying its intention to re- discretion of Congress to be undone only as there will be no Government—no stable authorize the particular item cancelled by specified in Article I. The second constitutional defect with the Government. the President. The President may veto the disapproval bill, which can then become law Conference Report’s basic procedures in- I sometimes think of this simple fact. volves the legitimacy of the cancelling au- only if two-thirds of each chamber of Con- Mr. President, there are seven nations thority given to the President. Proponents of gress agree to override his veto. on Earth that both existed in 1914 and this cancellation power defend it as a legiti- In my opinion, there are three fatal con- mate delegation of congressional authority have not had their form of government stitutional problems with the procedures to the President; however, this argument changed by violence since 1914. There outlined above. First, the law effectively al- rests on a misunderstanding of the relevant are two since 1800, and we are one of lows any portion of a bill enacted by Con- constitutional doctrine. This misunderstand- them. We are one of the seven and we gress that the President signs into law but ing is reflected in the CRS Report, which does not cancel to become law, in spite of the are one of the two. That stability did claims erroneously that ‘‘while the [Su- fact that Congress will have never voted on not come easily, nor should it be as- preme] Court has used a balancing test in it as such. This kind of lawmaking by the sumed a given. That stability rests on some separation of powers cases, it has never President clearly violates Article I, section the rock bed of the Constitution, and chosen to do so in delegation cases.’’ 5 The 1, which grants ‘‘[a]ll legislative powers’’ to latter assertion is simply wrong. we do a very poor service to that sta- Congress, and Article I, section 7, which bility when we begin to dynamite away In fact, the Supreme Court has issued two grants to Congress alone the discretion to lines of cases on congressional delegations. parts of that rock bed. package bills as it sees fit. I will close with simply one state- The first, which is not implicated by the Article I states further that the Presi- Conference Report, involves delegations ment, which we are all required on our dent’s veto power applies to ‘‘every Bill . . ., from Congress to administrative agencies or oaths to observe. The Judicial Con- Every Order, Resolution or Vote to which inferior bodies. The Court tens to evaluate ference of the United States has writ- the Concurrence of the Senate and House of such delegations under a ‘‘functionalist’’ ap- 1 ten to us to say: Do not do this. We are Representatives may be necessary.’’ This proach to separation of powers under which the least harmless branch—again, re- means that the President may wield his veto the Court balances the competing concerns on the legislative product only, as Harvard or interests at stake to ensure that the core member Madison—and we cannot make Law Professor Laurence Tribe maintains in you do it. I will quote them: function of a branch is not frustrated. For his treatise, ‘‘in the form in which Congress example, the Court used this approach in The line-item veto authority poses a has chosen to send it to the White House: be Morrison v. Olson 6 to uphold the Independent threat to the independence of the judiciary the bill small or large, its concerns focused Counsel Act in which the Congress had dele- because a President could put pressure on or diffuse, its form particular or omnibus, gated the executive function of criminal the courts or retaliate against the judges by the President must accept or reject the en- prosecution to an individual not formally as- vetoing items in judicial appropriation bills. tire thing, swallowing the bitter with the sociated with any of the three branches. 2 This is a profound responsibility sweet.’’ Tribe’s subsequent change of posi- Similarly in Mistretta v. United States,7 the which—in the end, we will turn to the tion is of no consequence, because he was Court upheld the constitutionality of the courts to see sustained. I believe this is right in his initial understanding of the con- composition and lawmaking function of the stitutional dynamics of a statutorily created a serious concern. I hope that it will be United States Sentencing Commission, at line-item veto mechanism. The fact that the least three of whose members are required by attended to. Mr. President, I thank the President has signed the law as enacted is ir- Senate for its careful, courteous atten- statute to be lower court judges and to which relevant, because a law is valid only if it the Congress delegated the authorities to tion. I thank Senator DOMENICI. I takes effect in the precise configuration ap- promulgate, review, and revise sentence-de- thank, with special gratitude, Senator proved by the Congress. The President does terminative guidelines. BYRD. not have the authority to put into effect as The Republican Draft clearly violates, I will also, finally, ask unanimous a law only part of what Congress has passed however, the second line of Supreme Court consent that the letter from Prof. Mi- as such. The particular form a bill should decision on congressional delegations. These chael Gerhardt, along with two letters have as a law is, as the Supreme Court has cases involve delegations from Congress to said, the ‘‘kind of decision that can be imple- the titular head of a branch, such as one of from the Judicial Conference of the mented only in accordance with the proce- United States, be printed in the its chambers or the President. In these cases, dures set out in Article I.’’ 3 the Court has not used a balancing test; RECORD at this point. The Conference Report would enable the rather, the Court has used a ‘‘formalist’’ ap- There being no objection, the letters President to make affirmative budgetary proach that treats the Constitution as grant- were ordered to be printed in the choices that the framers definitely wanted to ing to each branch distinct powers and set- RECORD, as follows: preclude him from making. The framers de- ting forth the maximum degree to which the COLLEGE OF WILLIAM & MARY liberately chose to place the power of the branches may share those powers. A formal- SCHOOL OF LAW, purse outside of the executive because they ist approach to separation of powers treats Williamsburg, VA, March 27, 1996. feared the consequences of centralizing the the test of the Constitution and the intent of Hon. DANIEL PATRICK MOYNIHAN, powers of the purse and the sword. As James it drafters as controlling and changed cir- U.S. Senate, Madison wrote in the Federalist No. 58, cumstances and broader policy outcomes as Washington, DC. ‘‘This power of the purse may, in fact, be re- irrelevant to constitutional outcomes. In re- DEAR SENATOR MOYNIHAN: I appreciate the garded as the most complete and effectual cent years, the Court has used this approach chance to share with you my opinion on the weapon with which any constitution can arm to strike down the legislative veto in Chadha constitutionality of the Line Item Veto Act the immediate representatives of the peo- because it would have allowed one House to of 1996, as set forth in the Conference Report, ple.’’ 4 Every Congress (until perhaps this take legislative action without complying dated March 4, 1996 (hereinafter ‘‘the Repub- most recent one)—as well as all of the early with the procedures set forth in Article I; to lican draft’’ or ‘‘the Conference Report’’). In presidents, for that matter—has shared the hold in Bowsher v. Synar 8 that Congress may this letter, I focus only on a few of the more understandings that only the Congress has not delegate executive budgetary functions serious problems with the Republican Draft the authority to decide how to package legis- to an official over whom Congress has re- and do not purport to analyze exhaustively lation, that this authority is a crucial com- moval power; and to strike down in Washing- its constitutionality. Even so, I am of the ton Airports Authority v. Citizens for the Abate- view that, given just the few significant 1 Footnotes at end of letter. ment of Aircraft Noise 9 the creation of a Board March 27, 1996 CONGRESSIONAL RECORD — SENATE S2975 of Review partially composed of members of (yet again) voting for the appropriation. The is the place to turn for answers to such dead- Congress with executive veto-like power over net effect is that the President would get to locks. the decisions of the directors of the Metro- refuse to spend money 55% of the Congress Another practical difficulty is with the au- politan Washington Airports Authority. will have thrice said it wanted to spend. thorization made by the Republican draft to Undoubtedly, the Court would follow a for- Thus, the Conference Report would require the Joint Committee on Taxation to render malist approach in striking down the Repub- Congress to vote as many as three separate an official opinion, which may become a part lican draft. For one thing, the Court would times to fund something while assuming in of a budgetary or appropriations measure, on not be able to escape applying the logic of the process an increasingly defensive posture whether it ‘‘contains any targeted tax bene- Bowsher v. Synar to the proposed law. Where- vis-a-vis the President. In other words, the fit.’’ The bill precludes the House or the Sen- as the crucial problem in Bowsher was Con- Republican draft allows the President to ate from taking issue with the judgment of gress’ attempt to authorize the exercise of force Congress to go through two majority the Joint Committee’s finding. As a prac- certain executive authority by a legislative votes—the second of which is much more dif- tical matter, this empowers a small number agent—the Comptroller General, here the ficult to attain because it would have to be of members of Congress to impose their will problem is that the President would plainly in favor of a specific expenditure that is now on the whole body. Although this might have be exercising what everyone agrees is legis- severed from the other items of the com- the salutary effect of expediting the passage lative authority—the discretion to deter- promise giving rise to its inclusion in the of the covered legislation, it forces those mine the particular configuration of a bill first place—and one supermajority vote in members of Congress who disagree with the that will become law. Even the law’s pro- order to put into law a particular expendi- Joint Committee to express their disagree- ponents admit it allows the President to ex- ture. ment only by voting down rather than by ercise legislative authority, albeit in their A third constitutional problem with the trying to amend a bill that they otherwise view delegated to him by Congress. Conference Report involves the constraints would support. Formalist analysis would be appropriate in it tries to place on the President’s cancella- In summary, I believe that the Republican evaluating such a delegation’s constitu- tion authority. The latter is for all intents draft conflicts with the plain language, tionality because it would be the kind about and purposes a veto. It has the effect of a structure, and traditional understanding of which the framers were most concerned; the veto because it forces Congress in the midst the lawmaking procedure set forth in Article checks and balances set forth in the Con- of the lawmaking process into repassing I; relevant Supreme Court doctrine; and the stitution deal directly with how the titular something as a bill that ultimately must delicate balance of power between Congress heads of each branch should interrelate. carry a supermajority of each chamber in and the President on budget matters. I am Hence, the Court has opted for a formalist order to become law. Nevertheless, the Con- confident that the Supreme Court ultimately approach to deal with delegations between ference Report attempts to constrain the would strike the bill down if it were passed the branches at their respective apexes to reasons the President may have for cancel- by Congress and signed into law by the preclude one branch from aggrandizing itself ling some part of a budget or appropriations President. at the expense of another. The Conference bill. Just as Congress lacks the authority It has been a privilege for me to share my Report would clearly undermine the balance through legislation to enhance presidential opinions about the Conference Report with of power between the branches at the top, be- authority in the lawmaking process by em- you. If you have any other questions or need cause it would eliminate the Congress’s pri- powering him to reconfigure what Congress any further analysis, please do not hesitate macy in the budget area and would unravel has passed as a bill into some other form to let me know. the framers’ judgment to restrict the Presi- prior to its becoming a law, Congress lacks Very truly yours, dent’s role in the lawmaking process to a the authority to restrict presidential author- MICHAEL J. GERHARDT, qualified negative rather than to have him ity by limiting the grounds a president may Professor of Law. exercise an affirmative power to redraft or consider as appropriate for vetoing some- FOOTNOTES reconfigure a bill. thing. 1 U.S. Const. art. I, section 7, cls. 2, 3. Even if the Court used a functionalist ap- Even apart from whatever constitutional 2 Laurence Tribe, American Constitutional Law 265 proach to evaluate the constitutionality of problems the Conference Report may have, it (2d ed. 1988). the Republican draft, it would strike down poses two serious practical problems. First, 3 I.N.S. v. Chada, 462 U.S. 919, 954 (1982). the proposed law. The reason is that the law the possibility for substantial judicial review 4 The Federalist No. 58 at 300 (J. Madison) (M. establishes an uneven playing field for the of presidential or congressional compliance Beloff ed. 1987). 5 Congressional Research Service, Memorandum President and Congress on budgetary mat- with the Republican draft is quite high. For Regarding Constitutional Questions Respecting Bill ters. In so doing, it profoundly alters the bal- example, it seems likely that lawsuits could to Grant President Enhanced Rescission Authority ance of power set forth in the Constitution. be brought challenging whether the Presi- over Appropriations and Targeted Tax Benefits, at As Professor Tribe recognizes further in his dent has appropriately considered, as the act 16 (January 9, 1995). treatise, such a scheme ‘‘would enable the directs, such things as ‘‘the legislative his- 6 487 U.S. 654, 693 (1988). President to nullify new congressional tory’’ or ‘‘any specific sources of information 7 488 U.S. 361 (1989). spending initiatives and priorities as well as referenced in such law or, in the absence of 8 478 U.S. 714 (1986). 9 111 S. Ct. 2298 (1991). to wipe out previously enacted programs specific sources of information, the best 10 L. Tribe, supra note 2, at 267 (footnotes omitted). that receive their funding through the an- available information’’ or ‘‘the specific defi- 11 Id. at 267 (citing Note, Is a Presidential Item nual appropriations process. Congress, which nitions contained’’ within it. At the very Veto Constitutional? 96 Yale L.J. 838, 841–44 (1987)). the Constitution makes the master of the least, the bill requires that the President public purse, would be demoted to the role of make some showing that he has done these JUDICIAL CONFERENCE OF THE, giving fiscal advice that the President would things to the satisfaction of members of Con- UNITED STATES, be effectively free to disregard.10 Once again gress (or at least those disposed to bring a Washington, DC, March 15, 1996. Tribe’s subsequent change of position does lawsuit in the absence of such a showing.) Hon. NEWT GINGRICH, not undermine the soundness of his initial There are also numerous procedures OMB Speaker, U.S. House of Representatives, Capitol reasoning, for the historical record is clear and each house of Congress must follow that, Building, Washington, DC. that the framers, as Tribe had recognized presumably, could become the basis for judi- Hon. ROBERT J. DOLE, himself, never intended nor tried to grant cial challenge if not done completely to the Majority Leader, U.S. Senate, Capitol Building, the President any ‘‘special veto power over satisfaction of partisan foes in the other Washington, DC. appropriation bills, despite their awareness branch. In addition, there may be some ques- DEAR MR. SPEAKER AND MR. MAJORITY that the insistence of colonial assemblies tions as whether the President has in fact LEADER: I understand an agreement has been that their spending bills could not be amend- complied with Congress’ or the Republican reached between Republican negoitators on ed once they had passed the lower house had draft’s understanding of the kinds of items ‘‘line-item veto’’ legislation. Although we greatly enhanced the growth of legislative he may cancel, such as a ‘‘targeted tax bene- have not seen a draft of the agreement to de- power.’’ 11 fit.’’ termine the extent to which the Judiciary An example should illustrate the problem- The likely prospect of substantial judicial might be affected, I did not want to delay atic features of the proposed cancellation interference with the budgetary process is communicating with you. The Judiciary had mechanism. Suppose that 55% of Congress unsettling. The framers deliberately ex- concerns over some previous versions of the passes a law, including expenditures for a cluded the unselected federal judiciary from legislation that were considered by the new Veterans Administration hospital in exercising any kind of decisive role in budg- House and Senate. These concerns could also New York. The President decides he would etary negotiations or deliberations. The Re- apply to the version on which agreement was prefer for Congress not to spend any federal publican draft does not ensure that this ex- just reached, depending on how it is drafted. money on this project, so after signing the clusion will always be honored. The framers The Judiciary believes there may be con- bill into law, he exercises his authority to wanted all of the key decisionmakers within stitutional implications if the President is cancel the allocations made for the new fa- budget negotiations to be politically ac- given independent authority to make line- cility. Again 55% of the Congress agrees to countable; any budgetary impasse between item vetoes of its appropriations acts. The make this expenditure but this time through the President and Congress that the federal doctrine of separation of powers recognizes the passage of a disapproval bill. The Presi- courts help to resolve in favor of one or the the vital importance of protecting the Judi- dent vetoes the latter, and Congress fails to other will simply diminish even further the ciary against interference from any Presi- override his veto, with only 55% of Congress public’s confidence that the political process dent. S2976 CONGRESSIONAL RECORD — SENATE March 27, 1996 Protection of the Judiciary by Congress not endangered by the potential of Executive every Senator ought to carefully con- against Presidential power and potential Branch political influence. sider. intervention is also evident in the Budget We do not want our citizens to ever think His motion certainly would lead to a and Accounting Act of 1921, which ensures that they are back in the position of the more thoughtful approach, in my view. Colonists in 1776 who separated from Eng- that the financial affairs of the Judiciary be The Byrd motion is one that should be insulated from political influence by the land in part because of their perception, as President and his staff. Prior to this Act, the Jefferson stated in the Declaration of Inde- supported by all Members of the Sen- Judiciary’s budget was controlled by the Ex- pendence, that the Executive ‘‘has ob- ate. It instructs the conferees to report ecutive Branch. Now, by law, requests for ju- structed the administration of justice, by re- a bill similar to S. 14, a bipartisan bill dicial branch appropriations must be submit- fusing his assent to laws for establishing ju- that was debated very carefully on the ted to the President by the Judiciary, but diciary powers. He has made judges depend- Senate floor a little over one year ago. must be transmitted by him to Congress ent on his will alone, for the tenure of their It was sponsored by Senators DOMENICI ‘‘without change’’. offices, and the amount and payment of their and EXON and cosponsored by the ma- This protection needs to endure. Control of salaries.’’ the Judiciary’s budget rightly belongs to the Sincerely, jority leader, and reported out of the Congress and not the Executive Branch, par- GILBERT S. MERRITT, Budget Committee and the Govern- ticularly in light of the fact that the United Chairman. mental Affairs Committee. It does States, almost always through the Executive Mr. MOYNIHAN. Mr. President, I be- what the distinguished ranking mem- Branch, has more lawsuits in the Federal lieve I have two moments. I yield them ber of the Appropriations Committee courts than any other litigant. The integrity has indicated it would do—maintain and fairness of our Federal Courts should not to whichever Senator wishes to use them. I thank the Chair. the proper relationship between the be endangered by the potential of Executive role of Congress as well as the respon- Branch political influence. Mr. DOMENICI. Mr. President, I sug- In whatever agreement is ultimately gest the absence of a quorum. sibilities of the President. reached by the conference committee, on be- The PRESIDING OFFICER. The I believe it has three major advan- half of the Judicial Conference of the United clerk will call the roll. tages, and I want to touch very briefly States, I urge that the independence of the The assistant legislative clerk pro- on each of these advantages. Third Branch of Government be preserved. ceeded to call the roll. First, this plan provides an equal op- I appreciate your consideration and we portunity for the President to examine stand ready to assist you in any way nec- Mr. DOMENICI. Mr. President, I ask unanimous consent that the order for tax expenditures as well as appropria- essary. tions measures. The Republican plan, Sincerely, the quorum call be rescinded. LEONIDAS RALPH MECHAM, The PRESIDING OFFICER. Without constituted in the conference report, Secretary. objection, it is so ordered. does not allow the President to review Mr. DOMENICI. Mr. President, I note all of the special-interest tax breaks JUDICIAL CONFERENCE OF THE that the minority leader is on the that are all too often considered on the UNITED STATES, floor. I understand a vote is scheduled Senate floor. It applies only to those Washington, DC, March 21, 1995. for 5:45, and we have 15 minutes. Is that that benefit fewer than 100 taxpayers. Hon. ORRIN G. HATCH, Frankly, there are not many provisions Chairman, Committee on the Judiciary, U.S. the parliamentary situation? Senate, Dirksen Office Building, Washing- The PRESIDING OFFICER. Yes. that apply to 100 or fewer taxpayers. ton, DC. Mr. DOMENICI. Does the Senator de- The Joint Tax Committee determines DEAR SENATOR HATCH: On behalf of the Ju- sire to use his leader time? which breaks can be canceled, and I be- dicial Conference of the United States, I am Mr. DASCHLE. That is fine. lieve that in many cases that alone pleased to respond to your request for the Mr. DOMENICI. Can we do it even ought to give us pause. Under S. 14, the Judiciary’s views on an amendment to the though time is set? President has the opportunity to more Dole substitute to S. 4. The amendment Mr. DASCHLE. We can do that. broadly apply the powers to examine would require all appropriations of the Judi- Mr. DOMENICI. Mr. President, I ask ciary to be enrolled in one bill. all expenditures in a more careful way, The Judiciary believes the amendment is unanimous consent that the distin- not only on appropriations bills but critical to ensure the independence of the guished minority leader be permitted also with regard to tax expenditures. third branch. Without the amendment, each to speak for 10 minutes, after which Second, we protect majority rule, appropriated line item within the Judiciary the 15 minutes that I have follow, and which is a central principle of democ- would be a separate bill. The Executive after that we proceed to a vote on or in racy. S. 14 requires a congressional ma- Branch would then have the power to pick relation to the Byrd amendment. jority to approve the cuts proposed by and choose which activities of the Judiciary The PRESIDING OFFICER. Is there the President. Under the conference re- it did and did not want funded. Such power over individual items raises the possibility objection? port, the President can prevail with that the Executive could seek to influence Mr. STEVENS. Reserving the right the support of only one-third of either the outcome of litigation by selective vetoes to object. House of Congress. So, clearly, we ab- or could try to retaliate for unwelcome deci- Mr. DASCHLE. Mr. President, I rogate the concept of majority rule. We sions. The Executive is the major litigator in would be more than happy to keep my certainly would not permit a minority the federal courts. remarks to fewer than 5 minutes. So to hold a majority hostage in cases like The doctrine of separation of powers recog- perhaps if it would work, we can still this. nizes the extreme importance of protecting try to keep the time. I know a lot of Clearly, S. 14 is constitutional, as the the Judiciary against inappropriate Execu- tive Branch interference. This is reflected in people are scheduling their time for distinguished ranking member and the Constitution, which protects the tenure the vote. I will be happy to limit my former chairman of the Appropriations and salaries of Article III judges. It is also remarks to no more than 5 minutes, Committee has so eloquently described evident in the Budget and Accounting Act of and perhaps even less. in many ways this afternoon. He has 1921, which ensures that the financial affairs Mr. DOMENICI. Mr. President, I enlightened us as to the problems with of the Judiciary be insulated from political yield up to 5 minutes of my 15 minutes the conference report. The alternative influence by the President and his staff. to the distinguished minority leader so that he presents avoids these problems Prior to this Act, the Judiciary’s budget was we keep the time as agreed. by requiring Congress to vote to ap- controlled by the Executive Branch. Now, by Mr. DASCHLE. Mr. President, I law, requests for Judicial Branch appropria- prove Presidential rescissions. Con- tions must be submitted to the President thank the manager of the bill. Mr. gress should not approve a bill subject and transmitted by him to Congress ‘‘with- President, let me begin by acknowledg- to court challenge, and, clearly, the out change’’. This protection needs to en- ing the masterful presentation made by conference report will be challenged in dure. Control of the Judiciary’s budget right- the distinguished Senator from West court. ly belongs to the Congress and not the Exec- Virginia. No one knows this issue bet- So, I believe, Mr. President, the mo- utive Branch. The Judicial Branch budget ter than he does. No one has studied tion of the distinguished Senator from has never been the source of claims of ‘‘pork constitutional balance of power more West Virginia offers the best of both barrel’’ appropriations in Congress. I appreciate having the opportunity to carefully than has he. He has raised is- worlds. It gives the opportunity for the comment on this legislation and your sues today of constitutionality and the President to apply additional scrutiny amendment that will ensure that the integ- balance of power with a clarity of vi- to items in legislation which may be rity and fairness of our Federal Courts are sion and a depth of knowledge that called into question. It gives him the March 27, 1996 CONGRESSIONAL RECORD — SENATE S2977 opportunity to apply that scrutiny The issue here is whether the Con- President decides to be totally arbi- both to tax expenditures as well as ap- gress has the right to delegate to the trary about this, the Congress of the propriated spending. It allows us to re- President the authority to not spend United States does not have to appro- tain majority rule and preserves the money. This is not a violation of sepa- priate money for things the President balance of power. It avoids constitu- ration of powers or a violation of the wants. That is our balance. There can tional questions that will certainly be presentation clause of the Constitu- be no money spent unless we appro- raised as soon as this legislation would tion. We have given the President, priate it. be enacted, and it is effective imme- under this bill, limited authority to So, in addition to all of the other diately. cancel—that is, to not spend—certain things the President needs of a Con- We do not have to wait for the end of moneys Congress otherwise would have gress and a Senate under the Constitu- this year. We do not have to assume directed the President to spend. tion, those are all our powers that he that we have to wait until the next I want to make sure people under- needs to help him do his job. term of the President to allow the stand the way this works. A bill is sent power to be utilized. It allows him to to the President, which the President In addition, he needs dollars to run do it now. We can look between now may sign, reject, or let it take effect the Government of which he is the and the end of the year at the ways in without his signature under article I, Chief Executive, and we have to appro- which this might be utilized. This will section 7, of the Constitution. If, and priate those dollars. allow us more opportunity to examine only if, the President signs the bill into I am not worried about the balance of whether or not this approach is an ap- law, then under this bill the President power because, obviously, Congress will propriate way with which to assure ad- is given the delegated authority from withhold some of the President’s power ditional scrutiny of spending and tax Congress not to spend certain portions if this gets into an arbitrary match of breaks in the future. of the money that he cancels according power, and I believe it is going to be So I applaud the work of the Senator to the provisions of the bill. used to the betterment of our country, from West Virginia and others who I have heard the concept of many of our people, and the taxpayers. have brought us this opportunity. I the Senators, but I want to make sure With reference to the motion we are think it is important. It is critical that that we all understand this is no dif- going to vote on, let me be very brief we carefully consider the constitu- ferent from giving the President the and very forthright. The amendments tional questions that the distinguished discretion not to enforce a particular Senator BYRD has offered and that I am Senator from West Virginia has raised. law under certain circumstances or to going to move to table shortly will re- I hope our colleagues will support decide, when based on specific criteria, turn the line-item veto to conference. this motion to recommit. to impose or to lift an import duty. We It took us 6 months to reach a com- I yield the floor. have done that. This conference report Mr. DOMENICI. Mr. President, with promise on the line-item veto. To send has no Chadha problems, based on the the minority leader on the floor, I won- it back with instructions is to kill it Supreme Court decision in the Chadha der if it might be in order for me to ask because what is purported to be in- case. Congress is not going to be given unanimous consent that the yeas and structed cannot pass the Senate and the power to legislatively overturn a nays be ordered on the Domenici mo- cannot pass the House. Presidential decision with regard to a tion to table the underlying amend- veto or implementation of a law. This motion calls us to cast aside the ment. I ask unanimous consent for We have the power to take action for compromise embodied in this con- that. the second time after the President ference report. It calls on the conferees The PRESIDING OFFICER. Is there uses his authority under this bill to to adopt an expedited rescissions ap- objection? impound or cancel moneys and, in ef- proach instead. Both Houses rejected Without objection, it is so ordered. the expedited approach. Last year, dur- Is there a sufficient second? fect, put them into the track where There is a sufficient second. they will reduce the deficit. We can ing the Senate’s consideration of the The yeas and nays were ordered. pass a second bill. The President would line-item veto, we voted 62 to 38 to Mr. DOMENICI. I yield 5 minutes of veto that. He has no authority under table the expedited approach which the my time to Senator STEVENS. this bill to deal with that second pro- distinguished Senator from West Vir- The PRESIDING OFFICER. The Sen- posal. If we pass such a bill and direct ginia, Mr. BYRD, is asking us to in- ator from Alaska is recognized. the President to spend money he other- struct the conference committee to do Mr. STEVENS. Mr. President, I call wise thought he should cancel, he has again—a nullity for sure, for nothing the attention of the Senate to the very the authority to veto that bill, and we will happen, and I believe that is what basic provision in this bill. It says in have the authority to override his veto; is intended if these amendments were section 1021(a), ‘‘Notwithstanding the in effect, to mandate him to spend the adopted. provisions of part A and B, and subject money as we have said to do so on two I support the compromise, and it is to this part, the President may, with occasions. now time to vote on the conference re- respect to any bill or joint resolution But I urge Senators not to refer to port on the line-item veto. A vote in that has been signed into law pursuant this as some action to give the Presi- favor of the motion will be a vote to to article I, section 7, of the Constitu- dent the authority to change a bill be- defeat the line-item veto conference re- tion of the United States * * *’’ take fore it becomes law or to change in any port before us. I urge Senators not to the action under this bill. way legislation that does not affect do that. What we in fact under this bill are dollars. He only has the authority to, doing is giving the President the au- in effect, cancel the spending of dollars So we will all have a chance to make thority, in effect, to impound moneys under specific circumstances that, sure we do not send this to conference, that we have given him authority to while the circumstances are clearly I yield back the remaining time that I spend. And we have the right to take limited, the scope of the authority is have, and I yield the floor. that notification of any cancellation very broad. I move to table the underlying that he sends to us and send him, in ef- Mr. DOMENICI. Mr. President, first, amendment. fect, another bill saying we intend for let me add to my brief comments a The PRESIDING OFFICER. The you to spend those moneys. He may while ago about Presidents who might question is on agreeing to the motion veto that second bill if he wants. But abuse this power because a lot has been to table the motion to recommit the in the first instance, we are not giving said about how this might change the conference report. The yeas and nays the President any authority to change balance of power. have been ordered. The clerk will call the law. We are telling him he can can- I remind every Senator that there is the roll. cel funds provided only if the cancella- nothing in this bill that says we have tion would reduce the Federal budget to appropriate money that the Presi- The assistant legislative clerk called deficit, not impair essential Govern- dent asks us for. Let me repeat; we do the roll. ment functions, and not harm the na- not have to appropriate money that The result was announced—yeas 58, tional interest. the President asks us for. You see, if a nays 42, as follows: S2978 CONGRESSIONAL RECORD — SENATE March 27, 1996 [Rollcall Vote No. 55 Leg.] vation—that of supporting the wishes have wisdom and foresight that he YEAS—58 of a constituent who just happened to could not understand. The American Abraham Frist McCain be President of the United States. That people recognize the burden that a Ashcroft Gorton McConnell President was Chester A. Arthur, who spendthrift government can impose on Baucus Graham Murkowski advanced from Vice President to Presi- them, their children, and their grand- Bennett Gramm Nickles Bond Grams Pressler dent when James A. Garfield was trag- children. And that is why they have Breaux Grassley Robb ically struck down by an assassin’s bul- been so adamant about demanding Brown Gregg Roth let in 1881. change. Demanding less Government Burns Hatch Santorum In his annual message to the Con- Campbell Helms Shelby spending, lower taxes, and a leaner Chafee Hutchison Simpson gress, President Arthur stated: Government—before Tytler’s prophecy Coats Inhofe Smith I commend to your careful consideration comes to pass. Cochran Kassebaum Snowe the question whether an amendment of the The American people began to Coverdell Kempthorne Specter Federal Constitution . . . would not afford Craig Kennedy Stevens change the face of Congress in the last the best remedy for what is often a grave election. And of course, electing fis- D’Amato Kerry Thomas embarrassment both to Members of Congress DeWine Kyl Thompson and to the Executive, and is sometimes a se- cally responsible individuals to the Dole Lieberman Thurmond Congress is probably the most powerful Domenici Lott Warner rious public mischief. Faircloth Lugar The ‘‘embarrassment’’ and ‘‘public and effective weapon that the Amer- Feinstein Mack mischief’’ to which the 21st President ican people can wield in the fight NAYS—42 was referring was the same problem against pork-barrel spending. It is Akaka Feingold Levin then that it is today: The tactic we in more effective than a line-item veto Biden Ford Mikulski Congress employ of burying narrow can ever be. Bingaman Glenn Moseley-Braun spending provisions—which cannot on The line-item veto itself is not a Boxer Harkin Moynihan cure-all. It will not result in a balanced Bradley Hatfield Murray their own merits survive the legislative Bryan Heflin Nunn process—in massive must-pass appro- budget. There is not enough pork that Bumpers Hollings Pell priation bills. can be deleted from the budget to ac- Byrd Inouye Pryor Congressman Flowers delivered his complish that. But, if properly exer- Cohen Jeffords Reid cised by the President, it can make it Conrad Johnston Rockefeller speech 114 years ago. While the pro- Daschle Kerrey Sarbanes posal before us today is far less ambi- easier to get to balance. Dodd Kohl Simon tious than the constitutional amend- Make no mistake about it, this bill Dorgan Lautenberg Wellstone will shift a great deal of new power to Exon Leahy Wyden ment requested by President Arthur, the arguments have been thoroughly the President. I do not relish that pros- The motion to table the motion to vetted. pect because the potential for abuse by recommit was agreed to. Representative Flowers summarized the President is great. He can use the Mr. CHAFEE. Mr. President, I thank the arguments against the line-item veto power to reward or punish Mem- the managers for the opportunity to veto as: First ‘‘. . . an indignant howl bers of Congress, depending upon speak in favor of the conference report about our rights an interests’’ [in the whether they support or oppose other to accompany the Line-Item Veto Act, Legislative Branch]; and second, policies of his administration. S. 4. ‘‘. . . those who feign mistrust of the Most Presidents, however, will be re- I would challenge those who argue Executive, who fear too much ‘one-man sponsible about how they use this awe- that the President already has suffi- power.’ ’’ some new power. That is because all cient authority to rescind unwanted Wisely, the bill before the Senate eyes of the American people will be on spending items. The opposite is true. today includes a sunset provision. If it the President if he abuses it, or if he The rescission authority vested in the turns out that this authority is abused fails to properly delete wasteful spend- President today barely works at all. In by the Chief Executive—which I do not ing from appropriations bills. By sign- the overwhelming number of cases, fear—then Congress can let the author- ing this bill into law, President Clinton Presidential rescission orders are ig- ity die. will be accepting significant new re- nored by Congress, and the subject The point is, we have been debating sponsibilities from the American peo- funds are ultimately obligated. this issue for at least 114 years, and the ple to safeguard their hard-earned tax In fact, since the rescission authority arguments pro and con have been de- dollars. I have no doubt that they will was established in 1974, Congress has bated ad nauseam. Passage of this leg- hold him accountable if he fails to use only given approval to $23.7 billion of islation will not solve our deficit prob- the new power wisely. the $74 billion Presidential rescission lems. However, it will give the Amer- Mr. President, just a few weeks ago, requests. In other words two-thirds of ican people one more tool—one more the nonpartisan taxpayers’ organiza- the rescission requests died a quiet check against unnecessary spending. tion, Citizens Against Government death. Frankly, in my view, we need all the Waste, released the 1996 Congressional By requiring Congress to affirma- help we can get in that regard. So, I Pig Book Summary. The good news is tively disapprove rescissions, this leg- say: Let us pass this conference report that the organization certified that, in islation would transform the present and get on to other business. 1995, Congress produced the first pork- ‘‘paper tiger’’ into a functional tool for Mr. KYL. Mr. President, the Line- free appropriation bill ever—the legis- reducing and eliminating: Special in- Item Veto Act is a good bill, but one lative branch appropriations bill. terest spending items in appropriations that should not be necessary. Congress Unfortunately, however, not all of bills; expansions of existing, or estab- should always have the good sense to the news was good, and that is one rea- lishing of new, entitlements; and tax spend taxpayers’ hard-earned money son why the line-item veto is still nec- expenditures which benefit narrow wisely, for the benefit of all citizens. essary. Citizens Against Government groups of taxpayers. Mr. President, British historian Alex- Waste found a total of $12.5 billion in Mr. President, the debate over this ander Tytler once said: pork-barrel spending in eight other fis- issue has been a long and tortured one. A democracy cannot exist as a permanent cal year 1996 appropriations bills that In looking back, I found an interesting form of government. It can only exist until have been signed into law. Among the item which illustrates just how long the voters discover that they can vote them- projects that the group identified were and tortured it has been. I want to di- selves largesse from the public treasury. rice modeling at the Universities of Ar- From that moment on, the majority always rect the Senate’s attention to a speech votes for the candidates promising the most kansas and Missouri; shrimp aqua- given on the floor of the House by Con- benefits from the public treasury with the culture; brown tree snake research; the gressman R.P. Flowers from New York result that a democracy always collapses International Fund for Ireland; and the in support of the line-item veto. The over loose fiscal policy, always followed by a Iowa communications network, to date was December, 1882. dictatorship. The average age of the world’s name a few. In addition to a belief that it would greatest civilization has been 200 years. These are the kinds of projects that foster economy in Government, Rep- Alexander Tytler makes an excellent are likely to be the target of a line- resentative Flowers had another moti- point, but perhaps the American people item veto, projects that are typically March 27, 1996 CONGRESSIONAL RECORD — SENATE S2979 hidden away in annual spending bills. I know he shares my disappointment spending items—including appropria- They’re enough to demonstrate the that those provisions were dropped. tions, new entitlements, and limited ability of certain legislators to ‘‘bring Is it his understanding that though tax benefits. The President’s cancella- home the bacon’’ and curry favor with the emergency spending provisions tions will stand unless Congress passes special interest groups back home. But, were dropped from the final conference a bill restoring the spending and pro- they don’t amount to enough to cause version of the line-item veto measure, viding the two-thirds support nec- Congress to reject an entire bill or we have been given assurances that the essary to override any additional ve- prompt the President to veto a bill and Budget Committee staff will work with toes. bring large parts of the Government to our own staffs to bring this matter Some people argue that S. 4 shifts a standstill. back on an appropriate legislative ve- too much power from Congress to the The line-item veto is designed to hicle? President. However, I believe the Presi- bring accountability to the budget Mr. MCCAIN. Mr. President, that is dent needs a tool to help control Con- process. Instead of forcing the Presi- my understanding, and I look forward gress’ insatiable appetite for spending dent to accept wasteful and unneces- to working with the Senator from Wis- the taxpayers’ money. We must give sary spending in order to protect im- consin and the Budget Committee staff our Chief Executive the power to strike portant programs, it puts the onus on to address any technical concerns there discreet budget items which do not special interests and their congres- might be with the emergency spending serve the national interest. In fact, I sional patrons to prove their case in provisions. am so convinced that the line-item the public arena. It subjects projects Mr. FEINGOLD. I thank my friend veto is the right thing to do that I am with narrow special interests to a more from Arizona. willing to give this power to a Presi- stringent standard than programs of As we consider ways to empower the dent of another political party. national interest. The special interests President to veto unjustified spending While the line-item veto alone can- would have to win a two-thirds major- through this new authority, it only not balance our budget or pay off our ity in each House. Programs of na- makes sense to enact reforms that pre- national debt this one legislative tool tional interest would merely require a vent those abuses from passing in the could perform radical surgery on simple majority. first place. wasteful federal spending In 1992, the That is the shift in the balance of The emergency spending reforms General Accounting Office [GAO] esti- power which the line-item veto rep- that Senator MCCAIN and I introduced mated that a line-item veto could have resents. It is a shift in favor of the tax- as legislation, and included in S. 4 as it saved $70 billion in wasteful spending payers, and that is why I intend to sup- passed the Senate, did just that. during the last half of the 1980’s. That port it. If the Government were run- Our emergency spending legislation $70 billion could provide a $250 tax ning a surplus, the taxpayers might be previously passed the House by an credit for families with children for 7 willing to tolerate some extra projects. overwhelming vote and I am hopeful years. Taxpayer watchdog group Citi- But the Government is running annual that we will soon be able to overcome zens Against Government Waste identi- deficits that are far too high, and there the resistance to this provision and fied an additional $43 billion in proce- is no extra money to go around. There have it enacted into law as well. dural pork spending in the last 5 years, is not even enough to fund more basic And though I regret our reforms were spending which circumvented normal needs. not included in this proposal, I look budget procedures. Imagine how a line- Mr. President, when you find yourself forward to working with the Budget item veto could have saved a signifi- in a hole, the first rule of thumb is to Committee and my good friend from cant portion of that money. stop digging. Let us begin climbing out Arizona to iron out any drafting prob- But we don’t need the GAO or a tax- of the hole we have dug for ourselves lems, and find an appropriate vehicle payer watchdog to tell us that the line- and future generations. Let us pass the for this needed reform. item veto works. We only need to ask line-item veto. Mr. FRIST. Mr. President, I rise the 43 of our Nation’s Governors who EMERGENCY SPENDING PROVISIONS today in strong support of the line- use this tool on a regular basis. In fact, Mr. FEINGOLD. Mr. President, will item veto. No single legislative proce- when President Clinton was Governor the Senator from Arizona yield for a dure will do more to curb wasteful Gov- or Arkansas, he used the line-item veto question? ernment spending than this powerful 11 times. If the States can control Mr. President, the Senator from Ari- legislative tool. For years, Washington spending and balance their budgets, the zona noted in his opening statement on has talked about this idea without act- Federal Government should follow this measure that the emergency ing. I am proud to be a Member of the their example. spending reforms he and I were able to Congress that will make the line-item Mr. President, I look forward to the include in the Senate-passed version veto a reality. day when I can tell my three sons, my were dropped in the conference com- For years, the Federal Government fellow Tennesseans, and every Amer- mittee version of this line-item veto has demonstrated an appalling lack of ican that they have inherited a coun- measure. fiscal responsibility. Today, our na- try free of debt. I look forward to the Our provision limited emergency tional debt is over $5 trillion—more better job opportunities and higher the spending bills solely to emergencies by than $19,000 for every man, woman, and standards of living they they will establishing a new point of order child in America—and is growing at a enjoy. And at that moment, I hope I against nonemergency matters, other rate of $600 million a day. Entitlement can look back at the day we passed the than rescissions of budget authority or spending—the two-thirds of the Federal line-item veto as the day a bipartisan reductions in direct spending, in any budget on automatic pilot—is growing group of legislators took a significant bill that contains an emergency meas- so fast that it will consume all of our step down the road to fiscal account- ure, or an amendment to an emergency tax dollars in just over a decade. Mean- ability. I strongly urge my colleagues measure, or a conference report that while, the other third of our budget, to support this bill. contains an emergency measure. discretionary spending, is riddled with THE LINE-ITEM VETO: STILL AN ILL-CONSIDERED The provision also featured an addi- unnecessary pork-barrel projects. Basi- PROPOSITION tional enforcement mechanism to add cally, it is too easy to spend and too Mr. PELL. Mr. President, when the further protection by prohibiting the hard to save here in Washington. We line-item veto was last before us, I said Office of Management and Budget from owe it to the American taxpayer to im- that I found myself in opposition both adjusting the caps on discretionary pose fiscal discipline on Federal spend- on philosophical as well as practical spending, or from adjusting the seques- ing habits. grounds. ter process for direct spending and re- The line-item veto reforms our insti- I must be quick to acknowledge that ceipts measures, for any emergency ap- tutional and procedural tendency to my reservations on practical grounds propriations bill if the bill includes ex- overspend. Here’s how it works. The have been met. The conferees deserve traneous items other than rescissions President already can veto spending credit for replacing the cumbersome of budget authority or reductions in di- bills passed by Congress. S. 4 gives the and unworkable scheme of separate en- rect spending. President the authority to veto specific rollment in the Senate version of the S2980 CONGRESSIONAL RECORD — SENATE March 27, 1996 legislation, with at least a workable But supermajority power is not need- both Houses to care about the vetoed plan for enhanced rescission authority. ed to strike wasteful line items. project. But my underlying philosophical res- The purpose of any line-item veto It is truly a task for Hercules to ervation remains. As I said when the bill is to give the President the power override a veto. Just look at the bill was last before us, I simply believe to expose wasteful line items to the record—of the more than 2,500 Presi- that Congress should be extremely sunlight of a congressional vote. dential vetoes in our history, Congress chary in yielding its power of the purse A majority vote is enough to kill any has been able to override only 105. to the executive branch. I hold this wasteful line item while still allowing As noted so well in The Federalist view on the basis of my Senate service Members to convince their colleagues Papers: ‘‘the accumulation of all pow- under eight Presidents of both parties to vote for a worthy line item. ers, legislative, executive, and judici- during my 35 years in the Senate, and In addition, these supermajority re- ary, in the same hands, whether of one, notwithstanding the cordial relation- quirements hurt small States, like my a few or many, and whether hereditary, ships I have had with all of them. home State of Vermont, by upping the self-appointed, or elective, may justly I continue to believe that the execu- ante to take on the President. be pronounced the very definition of tive branch, which under our Constitu- Under the line-item veto, Members tyranny.’’ tion, quite properly is a separate power from small States would have to con- Let us not try to score cheap politi- center with its own agenda and its own vince two-thirds of Members in each cal points at the expense of over 200 priorities, inevitably will seek and use House to override the President’s veto years of constitutional separation of any additional power to achieve its ob- for the sake of a project in another powers. jectives. And the pending grant of veto Member’s district. Mr. REID. Mr. President, I rise in op- power over specific items, I fear, will With Vermont having only one rep- position to the proposed Line-Item surely give even the most benign and resentative in the House, why would Veto Act. The conference report does well-motivated Chief Executive a new other members risk the President’s more to upset the balance of powers means for exercising undue influence wrath to help us with a project vetoed than any legislation this body has con- and coercion over individual members by the President? sidered this year. This is not about of the legislative branch. Another question mark under this curbing expenditures. It is body abro- I hold this view, notwithstanding my conference report is tax breaks. gating constitutional responsibility. It loyalty and respect for President Clin- Under the bill, the President has au- is about ceding unbridled spending au- ton, who I know would use such a grant thority to veto only limited tax bene- thority to one individual in one branch of authority wisely. But it is the bal- fits, which are defined as providing a of the Government. It should not be ance of institutional forces that must Federal tax deduction, credit or con- called the Line-Item Veto Act. Rather, be considered, and it is in this connec- cession to 100 or fewer beneficiaries. it should be called the Presidential tion that we have been well served by Any accountant or lawyer worth his Spending Empowerment Act. It grants the erudition of the senior Senator or her high-priced fee will be able to unprecedented amounts of spending from West Virginia [Mr. BYRD], who find more than 100 clients who can ben- power to one individual. Proponents at- has reminded us so eloquently of the efit from a tax loophole. If more than tack discretionary spending as though need to protect the legislative preroga- 100 taxpayers can figure out a way to this were the reason for our deficit. tives. I agree with him and I commend shelter their income in a tax loophole, They know better. Discretionary him for his great service to the cause the President would not be able to spending becomes a smaller part of the of constitutional government. touch it. The bigger the loophole in Federal budget every year. The days of Mr. LEAHY. Mr. President, I have a terms of the number of people who can pork-barrel spending have long since number of serious concerns and ques- take advantage of it, the safer it is. passed. This concept is replaced by tions about the conference report on The definition of limited tax benefit yielding the President authority to the line-item veto, S. 4. sounds like a tax loophole in itself. punish his enemies. First, the line-item veto encourages Would the President have line-item This is an invitation to unfettered minority rule by allowing a Presi- veto authority over the capital gains politicization of the Federal spending dential-item veto to stand with the tax cut described in the House Repub- process. It is exactly this kind of undue support of only 34 Senators or 146 Rep- lican Contract With America? influence that the founders sought to resentatives. This is not majority rule. It certainly is estimated to lose reve- avoid through separation of powers We are back to anti-democratic super- nue—the bipartisan Joint Committee doctrine. It does not take the imagina- majority requirements, which I on Taxation has estimated that the tion of Machiavelli to see how this thought were dismissed during the bal- contract’s capital gains tax cut would power could be used for nefarious pur- anced budget amendment debate. lose almost $32 billion from 1995 to 2000. poses. This is particularly true in an By imposing a two-thirds Yet somehow I think a capital gains election year. Look at the possible sce- supermajority vote to override a Presi- tax cut would fall beyond the scope of narios that could be in store. This dential-item veto, the line-item veto being a limited tax benefit under this would give a future incumbent Presi- undermines the fundamental principle legislation. dent quite a political weapon. Perhaps of majority rule. Our Founders rejected Why do we not quit this shell game. it could be used to entice the endorse- such supermajority voting require- Just state in plain language that the ment of Members from key primary ments on matters within Congress’ President has line-item authority over States. A President could agree to not purview. all tax expenditures. cancel an item of new direct spending Alexander Hamilton described I believe we should tread carefully on the condition that a member en- supermajority requirements as a poi- when expanding the fiscal powers of dorse his candidacy. Conversely, he son that serves to destroy the energy of the Presidency. The line-item veto will could punish a Member for deciding not the government, and to substitute the change one of the fundamental checks to support him. Even in a nonelection pleasure, caprice, or artifices of an in- and balances that form the separation year, this unfettered power could be significant, turbulent, or corrupt junto of powers under the Constitution—the unleashed for the rawest of political to the regular deliberations and deci- power of the purse. purposes. Why? Because this legisla- sions of a respectable majority. The line-item veto hands over the tion creates an implied threat against Such supermajority requirements re- spending purse strings to the Presi- all Members of Congress. This implied flect a basic distrust not just of Con- dent, whose cuts would automatically threat is vested in one politician. It gress, but of the electorate itself. I re- become effective unless two-thirds of can be exercised on any piece of legis- ject that notion. both Houses of Congress override the lation this body considers. Moreover, supermajority require- veto. The significance of the conference re- ments in any line-item veto bill is The President would have no burden port is not what is said, it is what is overkill. I am afraid that this bill will of persuasion while a Member would not said. It attempts to remove politics sacrifice many worthy projects on the have the Herculean task of convincing from the process. Unfortunately, it will altar of supermajority votes. two-thirds of his or her colleagues in have the exact opposite effect that its March 27, 1996 CONGRESSIONAL RECORD — SENATE S2981 supporters intend. It injects the rawest pens all the time in every administra- override. This is a far worse bill than form of power politics into the Federal tion. Consider the conflict that could the one which made it out of this spending process. arise if the administration receives an Chamber a year ago. That bill included The conference report creates enor- unfavorable ruling from a particular a provision that allowed 60 Senators to mous political arsenal and endows it in court. Now, the President could employ prevent an item from being singled out one individual. Its proponents say it the power of the bully pulpit or appeal for a veto. The conference report re- will act as a shield against unnecessary to Congress to handle the matter legis- quires two-thirds of both the Senate spending. But it’s really an axe that latively. With this new political weap- and the House to override a veto. Thus, can bludgeon any legislator who dares on, he could also excise the appropria- the President needs only 34 percent of to disagree with a President. This is tion for that particular court. This is one House in order to rescind appro- not just about concentrating unprece- not meant to cast aspersions on our fu- priations the majority of Congress had dented amounts of power in one indi- ture Presidents. It merely reflects the previously voted to approve. vidual in one branch of government. It political reality that the Framers rec- This is an unprecedented amount of is about giving that individual a lethal ognized when they wrote the Constitu- veto power to endow in one individual. political weapon. We are giving that in- tion. This Senator contends it is an uncon- dividual license to use this weapon in Process for considering item vetoes stitutional delegation of legislative whichever manner he sees fit. binds this body to new rules that are power. Proponents of the conference report overly burdensome and unduly restric- Many legal scholars claim we have say this measure can be used as a sur- tive. It will be very disruptive to the little to fear because this act will be gical scalpel. I believe it more closely consideration of substantive legislative ruled unconstitutional in the courts. I resembles a hovering guillotine. It is matters. We don’t even know how this do not believe that is a chance worth not just congressional spending author- will play out and we are today being taking. I realize the majority party is ity that will be infringed. Our third asked to accept a 10-hour time agree- under a lot of pressure to complete its branch of government, the judiciary, ment. A large number of line-item ve- so-called Contract With America. But will have its independence placed in toes may deserve debate. Are we all in its zeal for closure is it really will- jeopardy. willing to enter into a 10-hour time ing to pass clearly unconstitutional I would encourage all Members to agreement today? What kind of chaos acts? Are we willing to now discount read an excellent piece on this issue in are we binding ourselves to? and discard the doctrine of separation today’s New York Times. It sets out There is a great deal of thought and of powers? And what are the con- some interesting arguments as to why consideration that goes into writing an sequences? the legislation is opposed by the judici- appropriations bill. Typically, the Perhaps it was best stated by the ary. Many legal scholars are beginning White House is involved throughout Senate’s great constitutional scholar, to make their opposition known. In- this process. It is not as if the adminis- Senator BYRD, in an earlier debate: deed, the Judicial Conference of the tration reads appropriations bills for ‘‘History shows that when the Roman United States has spoken out against the first time upon their passage. Ad- Senate gave away its power of the this measure. It said such authority ministration officials are actively in- purse, it gave away its check on the ex- posed a threat to the independence of volved in every step of the way. Why ecutive.’’ As for the line-item veto the judiciary because a President could not really make this easier? Allow the eliminating wasteful spending, Senator put pressure on the courts or retaliate administration to write the measures BYRD said it is ‘‘analogous to giving against judges be vetoing items in judi- and schedule up or down votes in both cyanide for a cold.’’ cial appropriations bills. bodies. Who are we, the benefactors of these Judge Gilbert Merritt, chief judge of Presidential veto of targeted tax ben- great constitutional rights, to sit in the Court of Appeals for the Sixth Cir- efits was a key feature of the Senate- judgment of our Founding Fathers? If cuit opposed this measure. Judge Mer- passed bill. The conference report at- they were so right then, could we be so ritt said it was unwise to give the tempts to define tax benefits by count- wrong today? President authority over the judicial ing the number of beneficiaries. At Mr. BIDEN. Mr. President, I have budget because the executive branch best, this is disingenuous. A tax benefit long supported an experiment with a was the biggest litigant in Federal is defined as an income tax deduction, line-item veto power for the President. court. I believe Judge Merritt is cor- credit exclusion or preference to 100 or Over a decade ago, I introduced my rect. The potential for conflict is obvi- fewer people. Why not limit the scope own plan for a line-item veto, with ous. All of us, at some point or an- of the veto to appropriations or new di- Senator Mattingly. Since then I have other, have likely found ourselves in rect spending that impacts 100 or fewer cosponsored several similar plans, in profound disagreement with a judicial beneficiaries? Perhaps this was added particular those offered by my distin- ruling. But we realize there is a process in conference to gain the support of tax guished colleagues Senator HOLLINGS in place for disagreeing with clearly lawyers. Any good tax lawyer will be and Senator BRADLEY. wrongheaded decisions. We introduce able to find an extra person or two to I have held this position for all these legislation, hold hearings, and attempt meet the sufficient number of bene- years, Mr. President, not because I be- to persuade our colleagues of the pro- ficiaries. lieve the line-item veto will solve our posal’s merits. None of us, individually, I believe that is why this body explic- deficit problem. No single procedural has the ability to influence a judicial itly rejected the concept of numerical change can do that. decision we disagree with. beneficiaries earlier. Different types of I support a line-item veto because it The conference report endows in one taxes are treated differently. Interest- will, at the margins, shift the incen- individual the tools with which to im- ingly, other taxes such as estate and tives now in our system to attach spe- mediately demonstrate displeasure. excise taxes would not be subject to a cial-interest spending to our appropria- Why don’t we simply eliminate the Presidential rescission. The report also tions bills. To rein in that practice, Mr. lifetime tenure provisions from article excludes tax breaks that target persons President, we must expose it. The line- III. Judges have good reason to fear owning the same type of property. item veto will give the President a this measure. They should be on notice Thus a tax benefit to owners of 1997 tool, if he chooses to use it, to raise the that all future decisions could be sub- Rolls Royces would not be subject to a profile of wasteful, special-interest ject to political appeal. The Supreme veto since all persons owned the same spending—to expose it to the light of Court may ultimately have the final type of property. public scrutiny. say but the President can ensure Today, less than 7 percent of vetoes The need to track down and remove whether it has the paper on which to are overridden. If this measure passes, wasteful spending is not new, Mr. say it. veto overrides will likely be nonexist- President, but it has never been more This political weapon can be exer- ent. This Presidential political weapon important than now. As we continue cised in many different ways. The exec- will be used against regions, States, or down the road toward a balanced budg- utive branch may be litigating one of congressional districts. There, of et, we must reserve every dime of tax- its policies in Federal court. This hap- course, will never be enough vetoes to payers’ money for the most important S2982 CONGRESSIONAL RECORD — SENATE March 27, 1996 priorities of this country. Now, more to the scrutiny it deserves, would re- President could then use his veto than ever, waste in one program will move the camouflage of the larger power, which would require a two- require cuts in more deserving areas. spending bills. thirds majority of each House of Con- So we must do all we can do to The modest hope is not that the gress to overturn. change the incentive to smuggle such President will, willy-nilly, cut and This is a powerful new tool in the spending into appropriations bills in slash special-interest items. hands of the President. That is why I the first place, or to give the President Rather, the expectation of those of us have always held that we should exper- the power to cut it out once it gets who have promoted this idea is that iment with the line-item veto—that we there. Members of Congress—confronted by a should set a date certain on which the Mr. President, the version of the line- President with this new power—would legislation will sunset. This line-item item veto that I have consistently sup- choose not to include those special in- legislation provides for an 8-year ex- ported is not the one before us now. terest items that cannot pass the periment, after which it will terminate Nevertheless, I will vote for this line- threshold of public scrutiny. unless Congress agrees that the experi- item veto plan today, because I believe That is essentially the version that ment has produced more benefits than that it can be a useful check on waste- we passed out of the Senate last year, costs. ful spending, at a time when we must Mr. President, with one important ad- This is longer than I think is nec- subject every dollar we spend to the dition. We included special interest tax essary—particularly if we discover un- most careful scrutiny. breaks among the items the President intended consequences—but it does Mr. President, I want to take a few could veto. Those tax expenditures lose provide for two Presidential adminis- minutes to explain the difference be- money from the Treasury just as sure- trations over which to test the merits tween the version I have consistently ly as any spending program. of this proposal. supported—the one, I must add, that And as for those items vetoed by the I am more disappointed that the we passed out of the Senate last year— President, the normal constitutional President’s ability to cut special inter- and the version here before us today. I procedures would apply—two-thirds est tax breaks has been severely weak- have long held that separate enroll- majorities of each House would be re- ened in conference with the House. The ment is the best approach, in contrast quired to override the veto, to restore remaining provision would apply to to the enhanced rescission plan before the spending that the President has only a few tax items—in fact, with us now. But what do those fancy titles cut. clever tax lawyers on the job, it could mean? I have supported that approach as well apply to virtually no tax breaks. The separate enrollment approach to the one that least disturbs the con- So, Mr. President, like so much legis- the line-item veto is the one that I stitutional relationship between the lation we consider and that becomes have supported, and the one that I President and Congress, particularly law, this line-item veto bill advances a think most people have in mind when on the crucial issue of the power of the worthy cause—cutting out waste and they think of a line-item veto. Quite purse. special-interest spending—but not in simply, separate enrollment requires I was heartened when that was the the ways that all of us may agree with. that the Congress take each item in version passed by the Senate last year. As someone who has for years advo- the spending bills we pass and send By the same token, Mr. President, I cated the separate enrollment method them to the President separately, in- am less happy about the version before of line-item veto, I wish we had chosen stead of lumped together as we do it us today. But because I am still con- that route. now. vinced that we need to improve our ca- But there is a more fundamental We used to send individual spending pacity to discourage if possible, and to question—Will we give the President a items to the President separately, back cut out if necessary, any wasteful, spe- power that will expose congressional before the Civil War. I believe that the cial-interest spending, I will vote for spending to a higher level of scrutiny? separate enrollment approach would this version. Will we take an additional step to pre- restore a relationship between Con- The line-item veto bill before us vent the inclusion of special-interest gress and the Executive that was upset today provides for a procedure that is spending in our appropriations bills? I by the practice of lumping those items more correctly known as enhanced re- am willing to take that step, Mr. Presi- together. To that extent, it would be scission. It greatly transforms a Presi- dent, and will vote for the conference less disruptive of the constitutional re- dential procedure that right now has report. lationship between the branches of our virtually no teeth—the rescission. Mr. SMITH. Mr. President, I rise in Government. Currently, the President may tell strong support of the line-item veto The way we do it now, we send the Congress that he doesn’t want to spend bill before the Senate today, and urge President every item for national de- funds for one or more items in a spend- my colleagues to pass this overdue fense, for example, in a single spending ing bill that he has signed into law. measure. As a long-time opponent of bill. If the President believes that But that will have no effect unless the pork-barrel spending, I am glad we are there are too many tanks, or too many Congress chooses, on its own, to pass a taking this first small step toward fis- trucks, or too many missiles, he must rescissions bill that may or may not cal sanity. veto the entire national defense bill to include the items specified by the When I attend a town meeting, or cut out the spending that he doesn’t President. hold a briefing on the Federal budget, I want. If Congress chooses not to act, the often hear a common sentiment: ‘‘Why We write bills that way on the bet President remains obligated to spend does Congress want to change Medi- that the President will accept addi- those funds in the legislation he has care, or education, or whatever, when tional spending as the price of getting signed into law. So right now the re- we are spending $5 million on Hawaiian our national defense or other basic scission power doesn’t amount to arts and crafts?’’ It is a question that needs paid for. much, Mr. President, unless Congress cannot be answered. Pork-barrel spend- And, we must admit, Mr. President, decides on its own to make it law. ing may constitute a relatively small we write bills that way because it The bill here today would change portion of the overall budget, but it serves the needs of individual Members that, would put real teeth in the rescis- represents a very symbolic part of the of Congress to have their special sion power. It would give the power of budget. If Congress cannot cut the lit- projects—that on their own merits, in the law to a President’s decision not to tle spending items, how on Earth can the cold light of day, could not muster spend money on those items he choos- we make the difficult decisions on the a majority vote—to have those special es. That decision would become law un- larger programs? projects pulled through the process by less Congress passed a specific bill to Will the line-item veto balance the the locomotive of essential legislation. disapprove of his action. If Congress Federal budget? Of course not. But it By sending each item of spending to did not act, then the President’s deci- will help restore discipline to our budg- the President as individual bills—by sion to cut those items would stand. et process. It is no secret that special separate enrollment of each item—Con- If Congress did pass a bill that dis- projects and narrow interest provisions gress would expose each of those items approved of the President’s cuts, the are often included in large spending March 27, 1996 CONGRESSIONAL RECORD — SENATE S2983 bills. We often see $1 or $2 million A specific example is the recent his- out entire dollar amounts in appropria- projects tucked away in multibillion tory of funding for the Appalachian Re- tion bills. He may not merely reduce a budget measures. A Senator or Con- gional Commission [ARC]. Recent Re- dollar amount; He may only cancel it gressman will issue a press release publican Presidents sought to elimi- entirely. With this line-item veto, a re- about the wonderful project, and then nate the Appalachian Regional Com- sponsible President will attack and feel compelled to vote for the overall mission [ARC] from the budget, but a cancel out latent direct-spending pro- bill. Slowly, but surely, the spending bipartisan group within Congress main- visions that would increase future bills begin to add up and the problem tained this important program to pro- spending. Thus, we will help prevent becomes worse. The pork-barrel spend- mote economic development in some of future deficit increases before they ing is the grease that allows the budget the poorest counties of our country. even begin; first, by eliminating a process to move forward. And that The ARC provides basic funding for in- wasteful provision, and second, by dedi- budget process has led this Nation to a frastructure and economic develop- cating any savings from operation of $5 trillion national debt. ment. the line-item veto to a special lockbox The line-item veto bill will give the In representing West Virginia’s inter- for deficit reduction. President—who has a national con- est, I do not believe that Congress In the area of tax expenditures, a re- stituency with a national interest—the should give any President free range to sponsible President can attack certain tool he needs to cut projects that serve cut discretionary spending. Under the flagged and frivolous tax legislation. a narrow constituency with a special line-item veto, a President could veto This line-item veto will instruct the interest. The legislation before the spending for the ARC, or other discre- nonpartisan Joint Committee on Tax- Senate today allows the President to tionary programs ranging from high- ation to identify and flag any limited veto appropriations, targeted tax pro- way projects to housing programs. tax benefits that may exist in future visions, and new entitlement spending. It is important to note that the conference reports of future tax bills. Any of these provisions, if passed sepa- present system already offers a way for This conference report on the line-item the President to express his dissatisfac- rately, are now subject to a Presi- veto defines limited tax benefits as any tion with provisions in spending bills, dential veto and a two-thirds override tax expenditures that would both, lose known as the rescission process. Al- requirement. The line-item veto bill is revenue either in the first year or over though this process might need to be a natural and simple extension of that the first 5 years, and benefit 100 or streamlined and simplified, the Presi- constitutional power. Projects worthy fewer persons Then, Congress would dent already has the ability to call for of scarce Federal tax dollars should add a list of these limited tax benefits the rejection of specific programs with- stand or fall on their own merit, not on to the conference report as a matter of in spending bills. Through the rescis- the merit of a larger unrelated bill. law. sion process, the President can call on Mr. President, I have supported and If the Joint Committee on Taxation Congress to make more immediate cuts cosponsored line-item veto legislation looks, but does not see, any limited tax in areas which he thinks are wasting for more than a decade. It has been a benefits, then it may issue a clean bill taxpayers’ money. The President can long and arduous fight. I, for one, am of health upon the related tax legisla- single out items in spending bills that glad that the fight is finally over. I tion. If the Joint Committee on Tax- he opposes, and if Congress approves commend my colleagues—Senator ation does not look for any limited tax the budget cuts are made immediately. MCCAIN and Senator COATS—for their I agree that Congress needs to chart benefits, then the Chief Executive may hard work on behalf of this landmark a careful course for deficit reduction himself look for the limited tax bene- legislation. This line-item veto bill be- and economic growth, and I continue fits. He would use our same objective fore the Senate today will certainly to vote for cuts in specific programs measure outlined in the conference re- stand the test of time. where I believe Congress has wasted port. Mr. ROCKEFELLER. Mr. President, I taxpayer money. I do not, however, Having found waste, a responsible am a proponent of responsibly reducing want to risk the careless elimination of President may effectively take out his the deficit, as are many of my col- critical programs which benefit West ruler and draw a line through any of- leagues. I, too, want to eliminate Virginia and other States. And I do not fending legislation. After operating a wasteful spending. But this conference want to irrevocably alter the balance line-item veto, the President would report on the line-item veto bill is not of power between Congress and the ex- send a special message back to Capitol the right way to ensure deficit reduc- ecutive branch which was enshrined in Hill outlining his actions. Both Houses tion or responsible fiscal management our constitution over 200 years ago. I of Congress would refer the vetoed line in my view. think Congress has duty to be excruci- items to the appropriate committees. As articulated so poignantly by my atingly careful when fundamental re- The operative Senate committees colleague from West Virginia, Senator writing of our Constitution is being may then report out a disapproval bill BYRD, the line-item veto legislation considered. This conference report has containing the vetoed line items. The raises many constitutional problems not been given proper consideration Senate would listen to only 10 hours of and it substantially alters the balance and I disagree with its intent on prin- debate and amendments before voting of power devised by the Framers of our ciple. I oppose passage of this con- on a disapproval bill. Thereafter, the Constitution. ference report. President may again see the same leg- Before supporting such a dramatic Mr. GRASSLEY. Mr. President, I am islation because the process would sim- change in the balance of powers, we proud to have this long awaited and ply start over. The President would need to examine it in light of what it unique opportunity to address the then have the Executive powers offered really offers our country. Chair about a successful conference re- by this line-item veto conference re- Giving a President broad power to port on a line-item veto. port and article I, section 7 of the Con- cut discretionary spending concerns me Some of us have spent much of our stitution. in theory, but it troubles me even more congressional careers fighting against Like the Constitution, this line-item to think about its potential effects in wasteful spending. Under present law, veto conference report has many proud practice. A President may hastily veto the Chief Executive often cannot join cosigners. I want to thank the chair- substantive provisions of a spending in the battle against waste without the men and ranking members of the Com- bill, which he considers wasteful, but risk of destroying the good along with mittees on Governmental Affairs and which really are essential programs for the extravagant. This line-item veto the Budget. I also want to thank Sen- States or regions. One person’s percep- conference report succeeds in allowing ators MCCAIN and COATS for their ef- tion of waste or pork may be another a responsible Chief Executive to join forts and commitment. Especially for person’s funding for roads, schools, our team of responsible legislators. In- his attention to the line-item veto as it needed housing, or rural hospitals. Or a deed, the line-item veto will allow a re- may affect future tax legislation. I President could even wield a line-item sponsible President to join us in weed- want to thank Senator ROTH, the able veto as a political tool to intimidate a ing the peoples’ legislative garden. chairman of the Committee on Fi- particular Member or groups of Mem- With this line-item veto, a respon- nance. Finally, I want to thank all bers. sible President can attack and cancel those with whom I have always joined S2984 CONGRESSIONAL RECORD — SENATE March 27, 1996 in our tireless efforts to stamp out the Founding Fathers. It shifts an enor- legislation was flawed, I was willing to Government waste of taxpayer capital. mous amount of power to the President support that experimental line-item This is a great day indeed. I urge all of the United States—directly conflict- veto authority to provide the President of my colleagues to join in support of ing with Congress’ constitutional du- with some additional authority to this conference report on the line-item ties. And, as written, this legislation eliminate inappropriate spending. veto. gives the President and a one-third mi- I do not believe the line-item veto is Mrs. MURRAY. Mr. President, I take nority in one House the power to veto the whole answer to our deficit prob- the floor to oppose the so-called line- legislation a majority of Congress ap- lem, or even most of the answer, but it item veto legislation before us today. I proved. It turns the idea of checks and certainly can be part of the answer. regret I cannot support this conference balances on its head. The legislation before us today, too, report, but unfortunately this report is Mr. President, I also have grave con- is flawed, but I am willing to give this careless, highly questionable and pos- cerns with the language pertaining to new mechanism a chance to work, and sibly unconstitutional. Mr. President, I targeted tax benefits. This language is to see it tested over the next several support the line-item veto proposal cleverly written in a way that ulti- years. Like the version of S. 4 that submitted by Senator BYRD. His expe- mately prohibits the President from passed the Senate, this measure also dited rescission proposal was well-writ- vetoing new targeted tax benefits. If we has a so-called sunset clause which ter- ten and made good common sense, but want to grant the President a line-item minates the expanded veto authority unfortunately, it was not accepted by veto, let us at least do it the right way. unless Congress takes action. the Senate. Let us at least let the President strike If the Congress decides, which it may I know all too well the abuse that new tax expenditures. well do, that we have gone too far in can arise through broad, sweeping line- Moreover, I urge all my colleagues delegating authority to the President, item veto authority. Mr. President, I from small States to read this legisla- the sunset clause will make it much served in the Washington State Senate tion carefully, because as it is written, easier to terminate the experiment, if prior to coming to the U.S. Senate. My the President has the power to strike necessary. The burden will be on those home State arms its executive with very specific language including charts who want to retain the authority. line-item veto authority, and while and graphs. For instance, the President Mr. President, in the end, that sunset serving in the State legislature I wit- would have the power to strike funding clause allowed me to support a meas- nessed, first hand, the horse trading for a single State if an appropriations ure with which I am far from satisfied. that results by giving the State’s exec- bill or report includes a chart breaking Without a sunset clause, Congress utive this authority. out spending per State. We know the would have to pass a bill to repeal the In my home State, the line-item veto President is not going to strike funding line-item veto authority. It is likely does not deter spending. Rather, it en- from electoral-vote rich States. But, that any President would veto such a courages more spending. It puts legis- what keeps the President from cutting bill, and unless two-thirds of the mem- lators in the position of having to ac- funds in smaller States? bers of both Houses were to override cept the Governor’s priorities in order Mr. President, this again reminds me that veto, the President would retain to make sure their legislative prior- of the horse trading I experienced in this extraordinary new power. ities are not vetoed by the Governor. my home State legislature. This legis- Mr. President, though the continuing As you know, Mr. President, this de- lation puts legislators in the awkward Federal budget deficits justify granting bate essentially was spawned out of our position of having to protect congres- this temporary authority to the Presi- desire to reduce Government waste and sionally approved legislation from the dent on a trial basis, I do have serious balance our Nation’s budget deficit. I President’s veto pen—legislation that concerns about this proposal, which I do not think there is a single Member was debated, considered and eventually want to highlight, and will continue to in this body that does not want to re- agreed to by Congress—agreed to the monitor. Possibly my biggest concern duce the Nation’s budget deficit. How- way our Founding Fathers envisioned is the effective threshold of two-thirds ever, I have great difficulty turning the process would work, and the way vote in each House to overcome this over my responsibility and Congress’ our constituents expect us to govern. new expanded veto authority. That fiscal responsibilities to the executive In no way did our Founding Fathers kind of threshold is provided in the branch. Mr. President, the line-item expect the President to unravel legisla- Constitution for entire bills, but ex- veto is a budget gimmick, and it sim- tion that was crafted through com- tending that authority for individual ply passes the power of the purse from promise by both the majority and the sections of a bill may be problematic. Congress to the President. minority. There are many uncertainties in this Since 1993, we have cut the Nation’s Mr. President, there is a right way to new authority that we are providing budget deficit in half. This is com- craft this legislation. It should be writ- the President, and no one can antici- mendable work. However, it was dif- ten clearly and carefully—without am- pate all the potential abuses that ficult work that required tough deci- biguity. We should craft legislation might flow from this new authority. sions. Congress and the Clinton admin- that doesn’t exempt specific tax Though we have no experience at the istration chose to reduce and cut hun- breaks, one that doesn’t allow a Presi- Federal level, those Members who have dreds of Federal programs. This was dent to attack entitlements, and one served in State government may have not easy, but it is what we were elected that doesn’t hold small States hostage. seen the use of line-item veto author- to do. We will get our fiscal house in So, Mr. President, I urge my col- ity at the State level. Indeed, much of order once we set our minds to it. We leagues to vote against this legislation. the support for a Federal line-item do not need a line-item veto. We need The line-item veto is not the solution veto stems from the State experience. courage. We should not shrink from to our deficit problems. We know what But, Mr. President, few other States, our constitutional responsibilities. We needs to be done to reduce the deficit, if any at all, have witnessed the abuses should accept the challenge. and we have done it here on this floor of line-item veto authority that we Mr. President, earlier today I lis- over the past 3 years. We know the have seen in Wisconsin. That abuse has tened to the elegant words of Senator line-item veto is not the tool needed to been bipartisan—Governors of both BYRD. Senator BYRD is a great orator, accomplish that goal, but rather, just a parties have used Wisconsin’s partial respected legislator and an excellent feel-good gimmick that puts off the veto authority in ways it is safe to say teacher—especially when it comes to tough decisions. no one anticipated when that authority the constitutional issues surrounding Mr. FEINGOLD. Mr. President, this was first contemplated. For example, the line-item veto. I hope my col- issue is not simple, nor is it easy. Mr. President, Wisconsin’s current leagues listened to his words, because If it were, there would be a larger Governor, Governor Thompson, has there are some real constitutional is- consensus on how we should proceed in used the veto authority not only to re- sues that need to be addressed because this area, if at all. write entire laws, but actually to in- of this legislation. I supported the version of S. 4 that crease spending and increase taxes. This legislation disrupts the delicate passed this body—the so-called sepa- The two-thirds threshold compounds balance of powers laid out by our rate enrollment approach. Though that the uncertainty about possible abuses March 27, 1996 CONGRESSIONAL RECORD — SENATE S2985 by making it that much more difficult called separate enrollment approach The proposal does not address that for Congress to respond to that possible envisioned in S. 4 as it passed the Sen- issue. It only mentions the words ‘‘spe- abuse. ate, the new enhanced rescission ap- cific provision of law’’ without further Mr. President, another serious flaw proach could provide the President definition. in this measure are the provisions re- with more rescission authority than As someone who has seen just how lating to tax expenditures. They are far was intended. creative a Governor can be with partial from adequate. The language in the In particular, the shift from Congress veto authority, this is a matter of seri- Senate-passed version of S. 4 relating to the President in defining the precise ous concern to me. to tax expenditures has been weakened material to be vetoed is potentially Mr. President, there are a few safe- significantly, essentially blunting this significant. Instead of vetoing or ap- guards built into this proposal that authority as a tool for restraining that proving individuals minibills, as under provide some comfort in this regard. As area of spending that is among the the separate enrollment approach, the I noted before, the new authority sun- largest and fastest growing, and that President decrees certain actions in sets in 8 years. We will have what includes unjustified subsidies to some the nature of rescissions—actions amounts to an 8-year trial period in of the wealthiest individuals and cor- which effectively are given statutory which we can monitor this new Presi- porations in the world. authority because they are surmounted dential authority, and we will. Eight Mr. President, tax expenditures con- only by enactment of a disapproval years represents two complete Presi- tribute greatly to pressure on the defi- bill. dential terms of office, and several cit, and if any area should be subjected The scope of these Presidential de- election cycles within both Houses, en- to the scrutiny of line-item veto au- crees are limited by the restrictions set suring a diverse set of partisan com- thority, it is this one. The failure of forth in this bill, and though the intent binations under which this new author- this proposal to target abuses in this of those proposing this new authority ity can be tested, and enhancing the area is a serious flaw, and I regret the may be clear enough in their own possibility that it will be used under special interests that generated some minds, there cannot be one hundred different circumstances and with dif- of these abuses in the first place are ex- percent certainty about the true scope ferent ideological intent. empt from this new Presidential au- of this new authority until it is actu- Also, it should be noted that this new thority. ally put into effect. The unintended or authority is established by statute, not Mr. President, I was disappointed, even unimagined consequence of this as part of the Constitution, thus the too, that the emergency spending re- new authority may be its biggest flaw. measure avoids magnifying these po- forms the senior Senator from Arizona This is just what happened in my own tential problems by making a perma- [Mr. MCCAIN] and I incorporated into State. It is difficult to argue that the nent change to our basic law. To the the Senate-passed version were dropped original sponsors of Wisconsin’s partial extent that Congress can selectively from this measure. That provision lim- veto authority ever intended that a fu- control this new authority in subse- ited emergency spending bills solely to ture governor would be able to veto in- quent statutes, even prior to the expi- emergencies by establishing a new dividual words within sentences or ration of the proposal before us, the point of order against nonemergency even individual letters within words, statutory approach to the line-item matters, other than rescissions of yet that is precisely what happened. veto or enhanced rescission authority budget authority or reductions in di- Successive court decisions gradually is much less restrictive than a con- rect spending, in any bill that contains expanded the partial veto authority for stitutional amendment. an emergency measure, or an amend- Wisconsin’s Governors, to the point Nevertheless, Mr. President, we can- ment to an emergency measure, or a that whole new laws could be created not be certain how this proposed au- conference report that contains an with the veto pen. thority will be used, no matter how emergency measure. Mr. President, could the temporary carefully we draft the restrictions on The provision also featured an addi- authority which this measure grants that authority. Those who support this tional enforcement mechanism to add the President be abused in this fash- measure bear a special responsibility further protection by prohibiting the ion? Though I do not believe it will, we in this regard. And to that end, should Office of Management and Budget from cannot be certain about what some this measure become law, I intend to adjusting the caps on discretionary court might rule in interpreting the re- establish a regular review process to spending, or from adjusting the seques- strictions spelled out in the bill. monitor how the new authority is used, ter process for direct spending and re- In some instances, the proposal be- how it is misused, how much deficit re- ceipts measures, for any emergency ap- fore us allows the President to exercise duction is produced, and lost opportu- propriations bill if the bill includes ex- his new authority based on committee nities for deficit reduction. traneous items other than rescissions reports or the statements of managers, Though temporary, this delegation of of budget authority or reductions in di- neither of which have the force of law, authority is significant, and close and rect spending. and neither of which have ever been continuing scrutiny is warranted, even As we consider ways to empower the the subject of a vote in either House. necessary. President to veto unjustified spending That is troubling. Mr. President, the debate we have through this new authority, it only I am disturbed, too, by the language had on this issue for over a year has makes sense to enact reforms that pre- in this proposal regarding so-called been instructive for me. For some, the vent those abuses from passing in the items of direct spending. In defining passage of a line-item veto authority first place. The emergency spending re- these items, the measure refers to spe- for the President will only mean they forms that Senator MCCAIN and I in- cific provisions of law. can scratch it off a list, and move on to cluded in S. 4 did just that, and I regret Mr. President, this definition is not another issue. they were not included in this pro- at all self-evident. Is a provision of law But this issue does not end with our posal. a numbered section, or can it be an un- vote, it begins. I understand, however, that commit- numbered paragraph as well? How We are about to embark on an impor- ments have been made to revisit this small a unit of entitlement authority tant experiment. Whether for the bene- provision in separate legislation. The does the proposal intend to expose to fit of the country and our democratic emergency spending legislation pre- the new Presidential authority? For institutions remains to be seen, but I viously passed the House by an over- example, if a clause in a sentence de- believe it is an experiment worth per- whelming vote and I am hopeful that fines new entitlement authority in forming. we will soon be able to overcome the some way, can that clause be canceled I congratulate the senior Senator resistance to this provision and have it without taking the entire sentence from Arizona and the Senator from Ne- enacted into law as well. with it? Or, can new entitlement au- braska [Mr. EXON] for their work on Mr. President, the basic structure of thority be limited by the selective can- this measure. I thank them especially this particular line-item veto author- cellation of one word if doing so meets for their past efforts on behalf of the ity also raises problems. Though it the other stated formal requirements amendment I offered to clean up the may be less cumbersome than the so- of the measure? emergency appropriations process. S2986 CONGRESSIONAL RECORD — SENATE March 27, 1996 Though it was not included in the final acted—to cut off spending Congress has to divide it among the many, distribut- version of this proposal, I very much deemed necessary. ing to every one exactly the functions appreciated their courtesy, and I look Moreover, this bill is contrary to its he is competent to perform.’’ The forward to working with them to find intended purpose: Deficit reduction. Founders thought that Congress was another vehicle for that worthy re- Some of my colleagues did not support competent to legislate our spending form. the balanced budget amendment to the bills, not the executive. More than 200 I yield the floor. Constitution, but I did. I supported it years of success is hard to argue with. Ms. MOSELEY-BRAUN. Mr. Presi- because it covers every dollar of spend- As we all know, it can take several dent, our system of government is ing and taxing. This bill does not. Fur- months of work to get a bill signed based on a separation of powers and thermore, the balanced budget amend- into law. Under current law, the House checks and balances. That is the way ment did not upset the balance of pow- and Senate can pass a bill and then the Founding Fathers structured it, ers between the branches. This bill send it to conference where the dif- and it is a system that has fostered does. ferences between the House and Senate America’s greatness for over 200 years. There is a cliche that to every prob- versions of the bill are resolved. Often- Yet, this bill would fundamentally lem there is a simple wrong solution. times conferees spend hours, even days change and unbalance that system by Do we have a deficit problem? Yes. Will and weeks, working to resolve dif- transferring power from Congress to this bill solve our fiscal crisis? No. This ferences, so that both Houses can sup- the President. bill is the wrong solution to our deficit port the end product. This can be a Some argue that this bill is unconsti- problems. It is almost solely aimed at delicate proceeding, calling for com- tutional. In a letter to Congress, L. discretionary spending, which is clear- promise and flexibility. Ralph Mecham, secretary of the Judi- ly not one of the major causes of the Upon completion of conference the cial Conference, stated that he fears budget crisis the Federal Government House and Senate vote on the con- that this bill will violate the separa- is facing. ference report and send the bill to the tion of powers. He writes, ‘‘The doc- I served on the Bipartisan Commis- President for signature. Under this leg- trine of separation of powers recognizes sion on Entitlement and Tax Reform. If islation, if the President decides to the vital importance of protecting the we do not act, by the year 2012 entitle- sign the bill, he could then decide to judiciary against interference from any ment spending will outstrip revenues. strike out, for instance, specific spend- President. This protection needs to en- So discretionary spending could be cut ing provisions in an appropriations bill. dure. Control of the judiciary’s budget to zero and still not solve our prob- Under this bill, the President would rightly belongs to the Congress and not lems. Domestic discretionary spending also have the power to line-item out the executive branch.’’ has not grown as a percentage of the items that are listed in graphs, tables, Furthermore, an article in today’s GDP since 1969, the last time we had a charts, conference committee’s state- New York Times stated that the line- balanced budget. Domestic discre- ment of managers, or portions of a item authority poses ‘‘a threat to the tionary spending comprises only one- committee report not superseded by independence of the judiciary because a sixth of the $1.5 trillion Federal budg- the conference report. The scope of pos- President could put pressure on the et, and that percentage is steadily de- sible rescissions is enormous. courts or retaliate against judges by clining. If Congress disagreed with the Presi- vetoing items in judicial appropria- In practice this bill will have a mini- dent’s rescissions, they could pass a tions bills.’’ The article stated that mal impact on the deficit. Yet this bill disapproval bill which would have to be Judge Gilbert Merritt, chairman of the will have a high impact on the level of passed by both Houses, get through executive committee of the Judicial the public’s cynicism because it will conference, and be passed again. Conference of the United States, stated not solve our country’s budget crisis. Should the President proceed to veto that ‘‘judges were given life tenure to Congress is already having difficulty to the disapproval bill, it would take be a barrier against the winds of tem- passing its 12th continuing resolution two-thirds of the Members in each porary public opinion. If we don’t have and the American people already have Chamber to override the President’s judicial independence, I’m not sure we doubts about Congress’ ability to pass veto. Since we have not even been able could maintain free speech and other funding measures. To reaffirm our to pass a budget this year, I tremble to constitutional liberties that we take commitment to the American people’s think what adding additional steps to for granted.’’ priorities, we should remind ourselves the process will do to Congress’ ability It is not clear what the Supreme of what we swore to do when we en- to act. Court will find when this law is chal- tered office: to uphold the Constitu- Clearly this is the most significant lenged. But what is clear to me is that tion. This line-item scheme violates delegation of authority to the Presi- this bill is anti-constitutional. It is the philosophy of that document. dent that we have seen in over 200 counter to the philosophy of the Con- Spending authority rests primarily years. If Congress passes this con- stitution. The Constitution clearly sep- with Congress because our Nation’s ference report we will abdicate our au- arated each branch of government, giv- Founders thought that that was the thority guaranteed to us under the ing each specific duties—and did so for best small ‘‘d’’ Democratic thing to do. Constitution, and give it to the Presi- a reason. 535 Members of Congress by definition dent. Moreover, although this bill If one reads the Constitution, it is are closer to the people than the Presi- seeks to solve our fiscal problems, it clear that the Framers deliberately dent. Members of Congress are elected could also serve to indirectly increase placed the power of the purse in the from all over the country reflecting spending. For instance, if the Adminis- hands of Congress. Article I, section 8 their constituents’ interests, be they tration sought to increase spending for of the Constitution states, ‘‘The Con- urban or rural. Can one executive re- a mandatory program, he could lobby gress shall have Power To lay and col- flect the needs of our Nation’s varied the Member to support his initiative by lect Taxes, Duties, Imposts and Ex- constituencies better than a Member of threatening to line-item out all of the cises, to pay the Debts and provide for the House who has to run every 2 appropriations for projects in that the common Defense and general Wel- years? The President, as stipulated in Member’s district. As my friend Ab fare of the United States.’’ the Constitution can only face the peo- Mikva wrote in the March 25th edition Power over the purse has consist- ple twice, and one of those times is be- of Legal Times, ‘‘For those of us who ently rested in the hands of the Rep- fore he takes office. think that the executive branch is resentatives and Senators of our coun- Part of our Nation’s success is due to strong enough, and that an imperial try. This power is critical in maintain- our healthy mistrust of the centraliza- presidency is more of a threat than an ing our system of checks and balances. tion of authority. The Founding Fa- overpowering Congress, the current The measure before us today would thers did not create a unitary system balance of power is just right.’’ shift that power away from Congress like in France. They built a country Mr. President, the Founding Fathers and put it in the hands of the Presi- based on a union. As Jefferson once carefully wrought our Constitution to dent. It allows the President to unilat- said, ‘‘the way to have good govern- include the doctrine of separations of erally change a law after it is en- ment is not to trust it all to one, but powers. I believe that this conference March 27, 1996 CONGRESSIONAL RECORD — SENATE S2987 report goes against that philosophy Therefore, if Congress passed a tax have shown on this issue, as well as and ultimately, will have little effect break for 99 owners of a certain type of Chairman DOMENICI and Chairman STE- on solving our fiscal problems, for yacht, the President could not veto VENS, for their work in shepherding these reasons, I will not support this this provision. this legislation through committee, report. In summary, this legislation allows earlier passage in the Senate, and now, Mr. LAUTENBERG. Mr. President, I the President to use the line-item veto the conference process. rise in strong opposition to this con- to reject investments in education and I also want to express my apprecia- ference report. There is a right way the environment but not to reject tax tion for the leadership of our distin- and a wrong way to provide the Presi- breaks for millionaires. This is prepos- guished majority leader, Senator DOLE, dent with a line-item veto. This is the terous. in bringing this vital reform to the wrong way. Finally, I object to the Republican floor. His name was at the top of this Mr. President, I have supported a political hypocrisy that went into bill when several of us first introduced line-item veto in the past. I believe choosing an effective date and sunset S. 4 on the first day of this 104th Con- that the President should have greater date for this legislation. gress, January 4, 1995, and he has been authority to weed out wasteful tax This bill was a part of the so-called solidly committed to passage of this breaks and unnecessary weapon sys- Contract With America. The House landmark legislation. tems. passed its version of this bill on Feb- There are three principal reasons to But this legislation goes too far. ruary 6, 1995. The Senate passed its ver- enact this kind of reform: I have three major objections to this sion on March 23, 1995. First, a line-item veto will promote conference report. During debate on this legislation, I fiscal responsibility. First, this legislation cedes too much heard many Republicans in both This is a major step on our way to- power to the President. Under this pro- Houses say that they were so commit- ward a balanced budget. posal, any President and one-third plus ted to passing this legislation that For more than 20 years, since the one in the House can stop any appro- they were even willing to give this President was hamstrung by some of priated item. This legislation goes power to a Democratic President. They the lesser provisions of the 1974 Im- much further than the so-called sepa- argued how important the line-item poundment Control and Budget Act, rate enrollment bill that passed the veto was to cut out wasteful spending congresses have ignored with impunity Senate. The legislation before us, in ef- and unnecessary tax breaks. most of the Presidential recommenda- fect, allows the President to veto re- Despite all of the clamoring by the tions to rescind spending authority for port language and tables in Committee Republicans, they began to drag their individual items. reports. This means that the President feet so that they would not have to Now, at least some obnoxious, unwar- can veto airport improvement funds for give this power to President Clinton. ranted spending will be struck down. Newark but keep funds for Kennedy They delayed naming conferees on the Opponents of this bill have argued and LaGuardia airports. And the only bill. They stalled on calling a meeting that it would lead to more spending, as way to override this type of veto is to for the conferees. They kept dragging Presidents use the leverage of the line- get two-thirds of the Members in both it out so that they could pass the fiscal item veto to get more spending for House to support an individual item— year 1996 appropriations bills before their pet programs, or as Congress which is highly unlikely. the line-item veto bill became law. loads still more spending into bills, in The President of the United States During this period of inaction, the hopes that at least some of it will get already has awesome constitutional Republican majority sent President by the President. Alternatively, they power. Look at what has happened in Clinton a pork-laden Defense appro- argue that Presidents will abuse this the past 6 months. priations bill that spent $7 billion more power and fundamentally distort the The President vetoed a Republican than the Pentagon wanted. This is balance of constitutional power be- budget that made huge cuts in Medi- when President Clinton really needed tween the executive and legislative care and Medicaid to pay for tax breaks the line-item veto—so he could reject branches. for the rich. He stopped this cold. this $7 billion in unnecessary spending. But the histories of the 43 States He also vetoed a welfare reform bill But he did not have this tool then. The that have given their Governors this that would have doomed 1.5 million Republicans were simply playing poli- veto authority do not bear out these children to live in poverty. tics with the line-item veto bill. dire—and purely theoretical— Finally, he vetoed spending bills that Now, we find ourselves with an entire warnings. made deep cuts in education, environ- new set of dates in this legislation. The experience of the States with the ment, and community policing. This bill will now go into effect on Jan- line-item veto, including that of my Mr. President, the Congress was uary 1, 1997 and it will last 8 years. State of Idaho, has been uniformly fa- never able to override these vetoes. Mr. President, this is so blatantly po- vorable. This demonstrates how powerful the litical. But this is not the reason why And, looking back over the last two Presidency can be when it comes to we should reject this conference report. or three generations, we see that State vetoing unfair budget priorities. We We should vote this down because it governments have increased spending should not provide the chief executive cedes too much power to the President and taxes at much lower rates than the with this new power on top of the tre- and renders him powerless to fight tax Federal Government. mendous power he already possesses. breaks to the wealthiest Americans. It is an amazing concept for some in Second, this legislation makes a I urge my colleagues to reject this Washington, DC, but, when you assign mockery of applying the line-item veto conference report. someone responsibility—in this case, to tax breaks. The Senate bill origi- I yield the floor. the responsibility that comes to chief nally allowed the President to use the Mr. CRAIG. Mr. President, I rise in executives with line-item veto author- line-item veto to stop some tax breaks. support of S. 4, the conference report ity—they often live up to high expecta- These breaks were defined far too nar- on the Line-Item Veto Act. The Senate tions. That has been the experience of rowly. But even this language did not is now wrapping up a long-overdue and the Sates. survive conference. historic debate. Alone, the line-item veto process is This conference report only allows I note that two words in particular not going to be enough to balance the the President to veto tax items that af- sound very good in this debate: con- budget. fect fewer than 100 persons. This means ference report. There must be many What we really need is to take up the that Congress can pass a tax break that Members in both the Senate and the balanced budget amendment to the only applies to people with incomes other body who have wondered if they Constitution once more, pass it, and over $1 million and the President could would ever hear those two words used send it to the Sates—send it to the peo- not single this out. Furthermore, the in connection with the line-item veto. ple—for ratification. language also exempts other classes of I want to recognize and commend the I challenge President Clinton, who at persons from the tax provisions of the leadership and longstanding commit- least saw the light on the line-item bill. One such exemption is property. ment that Senators MCCAIN and COATS veto, to support the balanced budget S2988 CONGRESSIONAL RECORD — SENATE March 27, 1996 amendment as well, and help pass it For years now, we have seen groups said, ‘‘Louisiana delegation gets piece through the Senate so we can attack like Citizens Against Government of pork.’’ They went on to describe an the cancerous Federal debt on a larger Waste and others come up with billions appropriation that Congressman LIV- scale. of dollars in long lists of pork items. INGSTON and I had gotten in the New Second, the line-item veto will im- Once the President starts using the Orleans area because we had a flood prove legislative accountability and line-item veto authority, he or she will down there of biblical proportions, over produce a more thoughtful legislative have to answer to the people if the use 20 inches of rain in a 24-hour period, process. of that authority doesn’t match the seven people killed, $1 billion in dam- Starting when this act takes effect, Presidential rhetoric. age. We were able to respond to that Congress will be forced to reconsider Congress would not lose the power of issue. questionable spending items and tar- the purse—but the President will soon They went on to define ‘‘pork’’ as geted tax breaks—items that Congress be expected to use the power of the that which was not in the President’s would never pass in the first place if spotlight of heightened public scrutiny. budget. If the Congress exercised its those items were considered on their Mr. DOLE addressed the Chair. power under the Constitution, the own merits—items that just do not The PRESIDING OFFICER (Ms. power of the purse, then that was pork, stand up under any amount of public SNOWE). The majority leader. according to this article and according scrutiny. Mr. DOLE. Madam President, I ask to the National Taxpayers Union. But It would cast an additional dose of unanimous consent that a vote on the had it been in the President’s budget, sunlight on the legislative process. adoption of the conference report ac- it would have been perfectly all right. We are all familiar with the rush to companying S. 4, the line-item veto The idiocy of that kind of formula- get the legislative trains out on time. bill, occur at 7 p.m. this evening, with tion, Madam President, is to me, abso- That means bills and reports span- the time between now and the vote to lutely incredible. Coming from a news- ning hundreds of pages that virtually be equally divided between Senators paper article, it is not unexpected be- no one is able to read—much less di- MCCAIN and BYRD. cause that is the kind of thing that gest—in the day or two that they are The PRESIDING OFFICER. Without people like to read. But coming on to before the body. objection, it is so ordered. the floor of the Senate and Senators Moreover, any more it seems that Mr. JOHNSTON addressed the Chair. saying it is the White House that virtually every appropriations bill— The PRESIDING OFFICER. The Sen- knows best, it is—and we are not talk- even the 13 regular bills—and virtually ator from Louisiana. ing about the President; we are talking every tax bill, is a huge bill. Mr. JOHNSTON. Madam President, I about the nameless, faceless gnomes in Knowing that any individual provi- rise in support of the position of the the White House who would be setting sion may have to return to Congress Senator from West Virginia, Mr. BYRD, priorities, making policies, making the one more time to stand on its own mer- on the line-item veto. decisions about our constituents. its will promote more responsible legis- The PRESIDING OFFICER. Who Our constituents would be coming to lation in the first place. yields the Senator time? us, as in the case of this 20-inch flood. In short, embarrassing items will not Mr. BYRD. How much time do I have You bet I was down there after the be sneaked into these bills in the first under my control, I ask the Chair? flood, as were my colleagues, going place. The PRESIDING OFFICER. The Sen- through the homes, looking at the dev- Third, a line-item veto would im- ator has 25 minutes. astation, trying to sympathize with proved executive accountability. Mr. BYRD. Twenty-five minutes. I the people, they demanding in turn There is always some concern that yield 5 minutes to the distinguished that we do something about this ter- the line-item veto would transfer too Senator from Louisiana. rible tragedy. Our colleagues are say- much power from the Congress to the Mr. JOHNSTON. I thank the Senator. ing, ‘‘Look, if it’s not in the Presi- President. Madam President, this matter is not dent’s budget, it should not be part of First, I suggest that is not such a bad about balancing the budget, it is not the bill. It is up to the White House to thing. The Framers of the Constitution even about the size of the deficit. This set those priorities.’’ never envisioned 1,500-page, omnibus matter is about the relative power of Madam President, there was nobody bills presented to the President on a the Chief Executive of the United from the White House down in Louisi- take-it-or-leave-it basis. States and the Congress of the United ana to see that flood. They could not This is not a swipe at the constitu- States. Why this Congress, this Senate, be. The Office of Management and tional system of checks and balances— would want to give up its constitu- Budget does not have that kind of trav- it is a correction. The system is bro- tional powers, which, by the way, I do el budget. They did not go down and ken. This is one of the first steps in fix- not believe under the Constitution look at the individual problems of indi- ing it. they have the right to do even if they vidual States. That is the job for elect- The supposed blackmail that Presi- wish to do that foolish thing, but why ed representatives. That is what the re- dents will exert over Congress as a re- we would want to do that, I do not dactors of our Constitution had in sult of the line-item veto, is nothing, know. mind. That is why they put the power compared what kind Congress has ex- I am particularly surprised, Madam of the purse in the Congress. erted for years on the President. President, that some of my colleagues We are closest to the people, and we A President will rarely, if ever, risk on the other side of the aisle who respond to them. To leave all of that closing down an entire department in a fought so hard, for example, for star power in, as I say, not the President— mere attempt to take out a handful of wars, why they would want to give to maybe the President would decide on earmarked, local benefits. the President the right to veto star star wars or some big item like that, But let me also differ a little with wars. I happen to have been an oppo- but the accumulation of items in that the presumption that a radical shift of nent through the years of star wars, at budget would be decided by OMB. And power would take place. least at the levels of expenditure—$33 what would be the policy of OMB? They Many of us on both sides of the aisle billion has been spent on star wars so would have to have broad policies, such have suggested, at different times, that far. I think that is a tremendous waste. as to say, if it is not in the President’s Presidents are not always serious But, Madam President, I defend the budget, we are going to veto it. We are about the rescissions messages they right of this body and of this Congress going to treat everybody alike. send to Congress. to set those priorities. Why you would The PRESIDING OFFICER. The Sen- And, sometimes, the volume of re- want to give it to the President to be ator’s 5 minutes have expired. scissions they propose do not live up to able to change a bill already signed Mr. JOHNSTON. One additional tough talk about what they would do if into law and just nit-pick that bill minute. they had the line-item veto. without taking out the whole bill, I do Mr. BYRD. I yield 1 additional It is time to call the President’s not know, Madam President. minute. bluff—and I mean every President, be- Yesterday, there was an article in Mr. JOHNSTON. Madam President, cause this is a bipartisan issue. one of the Louisiana papers in which it the shift in power which this would March 27, 1996 CONGRESSIONAL RECORD — SENATE S2989 bring out would be absolutely mind- warned of what this would bring about; need to be very careful and very pru- boggling to me. You know, the whole that it was the Senator from West Vir- dent. fight would be, ‘‘Can you get in the ginia who understood our existing con- Now, I submit it does not take great President’s budget or not?’’ It would stitutional system the best and saw the skill or vision to have a strong execu- make total supplicants of all Members dangers inherent in this proposal. tive. Lots of nations have strong execu- of Congress. You might like that if you Part of what is happening here is tives. In fact, if a country’s executive like the President. I think this Presi- that we are engaged in symbolism, not is too strong, we call it a dictatorship. dent is going to be reelected. I like the reality of addressing important na- If we review history, even look around him. I must say I do not like him tional problems. There is a skilled the world now, we can see clear exam- enough to turn over to him, and to all craftsmanship in addressing problems ples of this. It is one of the hallmarks of his successors, the power of the of public policy which members of a of a free society to have a legislative purse when it is vested by the Con- legislative body are supposed to bring branch with decisionmaking authority stitution in this Congress. to the task. Anyone can get up and hol- which can operate as a check and bal- Madam President, my colleague, Sen- ler about problems. The question is, ance upon the executive. Another hall- ator BYRD, and others, made a powerful can you formulate an appropriate re- mark is to have an independent judi- statement about the unconstitution- sponse? cial branch which can also operate as a ality of this provision earlier today. As the distinguished Senator from check and balance in the system. It They surely are right. If we do not Louisiana said, this proposal is not should be noted that we have received stand up for the rights of the Congress really about balancing the budget. You a letter from the Judicial Conference under the Constitution, I hope the balance the budget by tough-minded of the United States expressing their courts will. I will support the Senator decisions on the budget, which the very deep concern about this measure from West Virginia. President and the Congress have been and indicating that they feel it under- Mr. BYRD. Madam President, I making in recent years. mines the independence of the judicial thank the distinguished Senator. I What is happening here is an enor- branch of our Government. yield the remainder of my time to Sen- mous transfer of authority from the That letter states in part: ator SARBANES. legislative branch to the executive The Judiciary believes there may be con- Mr. SARBANES. Ten minutes? branch that completely contravenes stitutional implications if the President is Mr. BYRD. Ten minutes. and contradicts the Constitution, so given independent authority to make line- The PRESIDING OFFICER. The Sen- much so that I believe when tested in item vetoes of its appropriations acts. The the courts, this measure will be found doctrine of separation of powers recognizes ator from Maryland is recognized for 10 the vital importance of protecting the Judi- minutes. wanting. I fervently hope that will ciary against interference from any Presi- Mr. BUMPERS. Would the Senator prove to be the case. This proposal dent. from West Virginia give me 1 minute gives the President the power, or The Senator from West Virginia, to prior to the Senator from Maryland purports to give the President the his enormous credit, is a great institu- speaking and it not come off the Sen- power, once he signs a piece of legisla- tionalist. He believes in the institu- ator’s time? tion into law, to then take out of that tions of our Nation and is concerned Mr. BYRD. I yield 10 minutes to Sen- law various items—actually, as many with maintaining their strength and ator SARBANES, but first 1 minute to as he chooses to pick—by what is vitality and resists the political fad of Senator BUMPERS. called rescinding appropriation items— the moment. Our founders established The PRESIDING OFFICER. The Sen- that unmaking of existing law. The a balanced Government with independ- ator from Arkansas is recognized. Congress then, in order to override ent branches, not only an executive Mr. BUMPERS. I thank the Senator that rescission, would have to pass a with power and authority, but a legis- from Louisiana for a very powerful, co- disapproval bill which the President lative branch with power and author- gent statement. No. 2, I want to say to can veto. Once he vetoes the dis- ity, and a judiciary that is independ- my colleagues that, if by some chance approval bill it takes a two-thirds ma- ent. This measure significantly erodes the Supreme Court does not rule this jority in both Houses to override the the arrangement which has served the unconstitutional, you will never be President’s rescission. Republic well for over 200 years. able to take this power back. Thirty- Thus, under the proposal before us, I invite all of my colleagues to stop four Senators can keep you from ever the President, as long as he can hold on and think for a moment about how this taking this power back. It will be gone to one-third plus one of either the Sen- proposal opens up the opportunity for forever. ate or the House—not both bodies; ei- the executive branch, for the Presi- When the Framers assembled in ther the Senate or the House—can de- dent, to bring enormous pressure to Pennsylvania, in Philadelphia, in 1787, termine every spending priority of this bear upon the Members of the Congress the one thing they knew above every- country. Think of that. The President and therefore markedly affect the dy- thing else was they had had all the and 34 Senators, or the President and namics between the two branches. kings they wanted. They wanted no 146 Members of the House—not ‘‘and,’’ The President could link—easily more kings. And they succeeded admi- but ‘‘or’’—can determine every spend- link, obviously will link, in my judg- rably. We have had 43 Presidents and ing priority of this Nation. Obviously ment—unrelated matters to a specific no kings—until now. We are doing our this represents a fundamental reorder- item in the appropriations bill. Sup- very best to transfer kingly powers to ing of the separation of powers and the pose a Member is opposing the Presi- the President of the United States. I check and balance arrangements be- dent’s policy—perhaps somewhere thank the Senator for yielding. tween the legislative and the executive around the world or on some domestic Mr. SARBANES addressed the Chair. branch in our Nation’s Constitution. policy; perhaps a nomination which the The PRESIDING OFFICER. The Sen- Unfortunately, there is a tendency to President had made—and the President ator from Maryland. dismiss such broad-reaching constitu- receives a bill which contains in it an Mr. SARBANES. Madam President, I tional questions. They were, however, item of extreme importance to the want to express my very deep apprecia- very much at the forefront of the Member’s district or State, justified tion to the distinguished Senator from thinking of the Founding Fathers when under any criteria as serving the Na- West Virginia, Senator BYRD, for the they devised the Constitution in Phila- tion’s economic interest; for example, extraordinary statement which he delphia in the summer of 1787; a Con- the dredging of a harbor, or the build- made earlier today on this issue. It is stitution that I might observe has ing of a road. The President calls the my prediction that, if this measure served the Republic well for more than number and says he noticed this item, passes and is implemented, history will 2 centuries. As the able Senator from he certainly hopes he does not have to look back on this moment and say that West Virginia has observed a very care- rescind it. He does not want to do so. was a critical turning point in our con- fully balanced arrangement was put He knows it is meritorious. But at the stitutional system and that it was the into place and it has served this Nation same time, he has this other issue that Senator from West Virginia, above all well. Obviously, when we consider he is very concerned about in which others, who stood on the floor and changing our Nation’s basic charter we the Member is opposing him. S2990 CONGRESSIONAL RECORD — SENATE March 27, 1996 My friend from Louisiana spoke of ment, become a way to delete appro- mal in this country creates enormous pres- how the line-item veto power would be priation items, but rather a tool and a sure on the central government. This pres- used to directly neutralize congres- legislative strategy used by the White sure is certainly one of the causes of the sional policy on a particular issue. A mini-revolts that perpetually arise. The House and executive branch to pressure have-nots feel excluded from the process, majority is in favor of a certain policy, Members on their positions on unre- while the majority (or the military regime) the President pulls it out and negates lated items. It will become a heavy, co- exercise their power without taking care of it, holds on to one-third of one House, ercive weapon of pressure. the depressed areas of the country. and that is the end of it—even though This is a dangerous departure from It is more difficult to ignore the have-nots a clear majority in both Houses of the past constitutional practice, dras- in the United States. First of all, members of Congress wanted the policy. tically shifting the balance between Congress are elected as representatives of ge- The next step beyond rendering the the executive and legislative branches. ographic areas, rather than as representa- congressional opinion null and void on tives of parties. Woe betide the congressman It will fundamentally alter our con- who starts thinking too much like a national a specific issue itself, is to link that stitutional arrangement to the det- legislator and forgets the parochial interests issue to some other unrelated issue on riment of a system of government of his constituents. which the President is seeking to ob- which has served well our Republic and Second, the separate elections of the presi- tain leverage over the Member of Con- been the marvel of the world. dent and Congress creates the necessity for gress. In fact, in the hands of a vindic- Madam President, I close by again the two branches to cooperate in setting tive President, the line-item veto could expressing my deep gratitude to the spending priorities. Floating coalitions that take into account the needs of all the sec- be absolutely brutal. I want to lay that Senator from West Virginia for so on the record today. In the hands of a tions and groups in the country become es- clearly and eloquently setting forth sential. When urban interests wanted to pro- vindictive President the line-item veto the severe problems connected with mote a food program for the cities, for exam- could be absolutely brutal. But you this proposal. ple, they formed a coalition with agricul- would not need a vindictive President EXHIBIT 1 tural interests, and food stamps were joined for abuses. Presidents anxious to gain with farm subsidies. [From the Legal Times, Mar. 25, 1996] their way, as all Presidents are, will It is true that bundling encourages the use this weapon to pressure legislators. LOOSENING THE GLUE OF DEMOCRACY merger of bad ideas with good ideas, and di- Mr. JOHNSTON. Will the Senator THE LINE-ITEM VETO WOULD DISCOURAGE minishes the ability of the president to undo yield? CONGRESSIONAL COMPROMISE the package. A line-item veto, which would (By Abner J. Mikva) allow the president to veto any single piece Mr. SARBANES. I am happy to yield of an appropriations bill (or, under some pro- to the Senator. There is a certain hardiness to the idea of posals, reject disparate pieces of any other The PRESIDING OFFICER. The time a line-item veto that causes it to keep com- bill), makes the whole process more rational. of the Senator is expired. ing back: Presidents, of course, have always But it also makes it harder to find the glue Mr. BYRD. Mr. President, how much wanted it because the line-item veto rep- that holds the disparate parts of our country time do I have? resents a substantial transfer of power from together. City people usually don’t care The PRESIDING OFFICER. The Sen- the legislative branch to the executive about dams and farm policy. Their rural ator has 7 minutes. branch. Government purists favor the idea cousins don’t think much about mass trans- because the current appropriations process— portation or urban renewal or housing pol- Mr. BYRD. I yield 2 additional min- whereby all kinds of disparate expenditures utes to Senator SARBANES. icy. If the two groups of representatives are wrapped or ‘‘bundled’’ into one bill so don’t have anything to bargain about, it is Mr. SARBANES. I yield to the Sen- that the president must either swallow the ator from Louisiana. unlikely that either set of concerns will re- whole thing or veto the whole thing—is very ceive appropriate attention. Mr. JOHNSTON. Madam President, I messy and wasteful. Reformer generally urge The other downside to the line-item veto is wonder if the Senator finds this par- such a change because anything that curtails exactly the reason why almost all presidents allel: In a conference report, when the the power of Congress to spend has to be want the change and why, up to now, most Senate and the House go to a con- good. Congresses have resisted the idea. The line- ference committee, there are bargains My bias against the unbundling of appro- item veto transfers an enormous amount of struck, and finally a bill put together. priations and other legislative proposals has power from Congress to the president. For changed over the years. When I first saw the those of us who think that the executive Would it not be somewhat like being appropriations process, back in the Illinois able to strike a bargain, putting the branch is strong enough, and that an impe- legislature, it seemed the height of irrespon- rial presidency is more of a threat than an bill together, signing off on it, and sibility to bundle dozens of purposes into a overpowering Congress, the current balance then after the bill is signed, have one single bill. It also seemed unconstitutional of power is just right. House strike all the items that the since the Illinois Constitution had a ‘‘single That has been the gist of Sen. Robert other House wanted? purpose’’ clause, under which bills consid- Byrd’s opposition to the line-item veto. The Mr. SARBANES. You could abso- ered by the legislature were to contain only West Virginia Democrat has argued that the lutely redo the legislation. one subject matter. But the ‘‘single purpose’’ appropriations power, the power of the purse, I ask unanimous consent to have clause had been observed in the breach for is the only real power that Congress has and printed at the end of my remarks an many years by the time I was elected in 1956. that the line-item veto would diminish that I first saw the bundling process work when article written by Judge Abner Mikva power substantially. So far, he has pre- a single bill, presented for final passage, ap- vailed—although last year, the reason he on this very point, called ‘‘Loosening propriated money for both the Fair Employ- prevailed had more to do with the Repub- the Glue of Democracy.’’ ment Practices Commission and a host of licans’ unwillingness to give such a powerful The PRESIDING OFFICER. Without other commissions, including one to provide tool to President Bill Clinton. objection, it is so ordered. services for Spanish-American War veterans But now the political dynamics have (See exhibit 1.) (there were two left in the state at the time) changed. The Republicans in Congress can Mr. SARBANES. Madam President, and one to study the size of mosquitoes that fashion a line-item veto that will not benefit the Senator from West Virginia made a inhabited the downstate portions of Illinois. the incumbent president—unless he gets re- constructive proposal, which was just If I wanted to vote for the FEPC, I had to elected—and their probable presidential can- tabled, which would have allowed the swallow all those other commissions, which I didate, Senate Majority Leader Robert Dole, thought were wasteful. So I invoked the con- President to propose rescissions to the has recently made clear that he wants this stitutional clause. To my dismay, the legis- passed. Chances for the line-item veto are Congress for consideration on an expe- lature favored all the other commissions on vastly greater. dited basis, with the Congress having separate votes, but the FEPC went down to There are some constitutional problems in to vote on the rescission and with a defeat. That is how I learned that there are creating such a procedure. The wording of majority vote required to approve the some pluses to the bundling process. the Constitution suggests pretty strongly rescission. This would have enabled the Bundling is very asymmetrical in effect that a bill is presented to the president for President to spotlight those items of and probably wasteful. But it is also a legis- his signature or veto in its entirety. It will which he disapproved and required a lative device that allows various coalitions take some creative legislating to overcome to form and thus moves the legislative proc- such a ‘‘technicality.’’ I reluctantly advised congressional vote on them but would ess forward. the president last year that it was possible not have altered our basic constitu- Consider South America, where regional ri- to draft a line-item veto law that would pass tional arrangements. valries and resentments in many countries constitutional muster. The draft proposal in- The line-item veto tool contained in make governing very difficult. The inability volved a Rube Goldberg plan that ‘‘pre- this legislation will not, in my judg- to form the political coalitions that are nor- tended’’ that the omnibus appropriations March 27, 1996 CONGRESSIONAL RECORD — SENATE S2991 legislation passed by Congress and presented Madam President, again I am proud United States should have at his dis- to the president actually consists of separate that today the Senate is passing the posal every possible means to strip bills for various purposes. This pretense was conference report on the Line-Item away the pork from the Federal budg- effectuated by putting language in legisla- tion to that effect. Veto Act of 1996. Giving line-item veto et. The line-item veto should figure President Clinton was not then asking for authority to the President is a promise prominently in his arsenal. my policy views, and I did not have to rec- we made to the American people in the Mr. President, I will vote for this oncile my advice with my policy bias toward Contract With America, and it is a conference report, but I will not con- the first branch of government—Congress. promise we are following through on ceal my keen disappointment at what But I was uneasy enough to become more today. has emerged after nearly a year of sympathetic to the late Justice Robert Jack- Line-item veto seems to be the one stalling, partisan games, and bicker- son’s handling of a similar dilemma in one of ing. This is a classic case of what his Supreme Court opinions. He acknowl- thing that all modern Presidents agree edged his apostasy concerning an issue on on. All of our recent Presidents have might have been. I was a conferee but which he had opined to the contrary during called for the line-item veto—both as usual, the minority was shut out of his tenure as attorney general. Quoting an- Democrat and Republican Presidents the decisionmaking process. I also have other, Justice Jackson wrote, ‘‘The matter alike. And for good reason. The Presi- some possible constitutional questions does not appear to me now as it appears to dent, regardless of party, should be and concerns. have appeared to me then.’’ able to eliminate unnecessary pork- Anyone who doubts the partisanship My apostasy was less public. My memo to behind this legislation need look no the president was only an internal docu- barrel projects from large appropria- ment, and I didn’t have to tell him how I felt tions bills. further than its effective date—Janu- about the line-item veto. But now that I Most of our Nation’s Governors have ary 1, 1997. I have supported the line- have no representational responsibilities, I the line-item veto. Some States have item veto under Republican Presidents prefer to stand with Sen. Byrd. had line-item veto since the Civil War. and Democratic Presidents. Those of us Mr. BYRD. Madam President, I There’s a lot of experience out there in who have long sought the line-item thank the Senator for his excellent re- the States that shows us this is a good veto believe it is a good idea, regard- marks. idea; 43 Governors have the line-item less who sits in the White House. Mr. DOLE. Madam President, I am veto, and now—finally—the President So, we are in a big hurry to pass this going to yield 3 minutes of my leader will, too. legislation because it is a popular issue time to the distinguished Senator from President Clinton and I have talked in an election year. But, there is no Nebraska. First, I will take 30 seconds about the Line-Item Veto Act. He rush to make it effective. How strange. and then put my statement in the wants the line-item veto and we both That can wait until after the Repub- RECORD. I have a meeting in the office. think it is a good idea. lican Congress has passed one last set I have been listening to some of the Certainly, line-item veto is not a of appropriation bills and perhaps, for debate. I know the distinguished Sen- cure-all for budget deficits. No one is good measure, one last bill loaded with ator from West Virginia certainly un- pretending it is the one big answer to special interest tax breaks. derstands this issue better than any of I had great expectations for this leg- all of our budget problems. us. But we sometimes disagree. The islation; so did many of my colleagues But it is one additional tool a Presi- one thing we should not do is elect a on both sides. What we got was dimin- dent can use to help keep unnecessary vindictive President. I do not think the ished returns. It now seems that those spending down. It’s one way for us to present occupant is or the one chal- of us who fought the good fight will re- fulfill our pledge to American tax- lenging the President is. So we will be luctantly have to accept an inferior payers for less Washington spending. safe for the next 4 years, I tell the Sen- product. We desperately need this line- Line-item veto has a lot of support in ator from Maryland, and probably 8. item veto—as flawed as it may be. I understand what someone could do the Senate. We passed our version of Even the staunchest advocate of a to abuse the power of the Office of the the bill in the Senate just about a year line-item veto must confess that the President. But we have been negotiat- ago on March 17, 1995 with the support Senate bill did not age well in con- ing all afternoon in my office. We have of 69 Senators. ference. We do not have a better bill five appropriation bills, and we have But I know some are worried that it today. The line-item veto before the been trying to figure out how we can shifts the balance of power away from Senate today is a half-measure. It only come together on those, taking a little Congress and to the President. Well, addresses one side of wasteful Govern- out here and adding a little here. It is appropriations bills that go on for hun- ment spending. very, very complicated these days. We dreds of pages have already altered the Madam President, there are different are working with the White House. dynamic between the President and types of pork around here. There is I think many of the fears and con- Congress from what it was 200 years what I call classic pork, but it does not cerns expressed would be if you had ago. belong in a museum. It is the sweet- somebody in the White House who Even so, for those who aren’t so sure heart awards, the bogus studies, the stiffed Congress on everything and re- line-item veto is the right approach, phony commissions, the make-work fused to negotiate. Right now, in my this bill has a sunset in it. We will try projects that look good to the constitu- office we are negotiating with the this experiment for a few years and see ents back home. Chief of Staff, Mr. Panetta, and trying if it works. I am confident it will. It is Frittering away the taxpayers’ dol- to come together on a big, big appro- an idea whose time has come. lars is an affront to middle-income priation bill so that we can pass it on Mr. President, I want to thank Sen- Americans who have been stretched Friday. We may not get it done because ators STEVENS, DOMENICI, MCCAIN, and and squeezed enough. This is where the they have their priorities, and Con- COATS for their work on this bill. It is line-item veto can be a fierce instru- gress has its priorities. But I believe thanks to them that we are about to ment against waste. The President can the line-item veto is an idea whose pass this important and historic legis- slice out the pork with a slash of his time has come. lation. pen. In this regard, the measure before I certainly thank all those involved, Madam President, I yield 3 minutes the Senate should accomplish today particularly the Senator from Arizona, of my leader time to the Senator from what we set out to do, and I salute the Senator MCCAIN, and the Senator from Nebraska. managers of the conference. Indiana, Senator COATS, with the great Mr. EXON. Madam President, my col- But the special interests who benefit assistance of the Senator from New leagues know that I am an ardent sup- from pork always seem to be one-step Mexico, Senator DOMENICI, and the porter of a line-item veto. I had one ahead of the deficit cutters. You might Senator from Alaska, Mr. STEVENS. when I was Governor of Nebraska and not find their pork on the menu of an This is not a partisan measure. Presi- put it to excellent use. It was crucial appropriations bill. But they are still dent Clinton supports the line-item to my success in balancing the budget. dining a la carte at the Finance or veto. I think it has support on each I am an original cosponsor of line- Ways and Means Committees, and yes, side of the aisle. I know the Senator item veto legislation. I am proud of the the Budget Committee too. from West Virginia wants to leave here leadership role I have taken. I fer- They dress up pork in the latest fash- by 7 o’clock. vently believe that the President of the ion: special interest tax breaks or tax S2992 CONGRESSIONAL RECORD — SENATE March 27, 1996 expenditures. That is right, Mr. Presi- geted tax benefit for the purposes of gress, I introduced Senate Joint Reso- dent. It is still pork, but it will be riv- the line-item veto? I was surprised to lution 2, proposing a constitutional eted onto a revenue bill or a budget learn that it will be the Joint Commit- amendment to give the President line- reconciliation bill—like the one the tee on Taxation. I, certainly, do not in- item veto authority. Republican majority passed last fall. tend to disparage the committee and Presidential authority for a line-item Call it a tax loophole or whatever you its fine members, but this oversight veto is a significant fiscal tool which want, it is still just as wasteful, and it duty strikes this Senator like the pro- would provide a valuable means to re- is still just as shameful as appropriated verbial fox guarding the henhouse. This duce and restrain excessive appropria- pork spending. conference report would make Aesop tions. This proposal will give the Presi- This problem of tax expenditures is proud. dent the opportunity to approve or dis- not new. We have visited it many This is how it works. Under the pro- approve individual items of appropria- times, but with little resolution. The visions of the conference report, Joint tion which have passed the Congress. It Budget Committee held hearings going Committee on Taxation will review does not grant power to simply reduce back to 1993 on the budgetary effects of every tax bill and decide whether the the dollar amount legislated by the tax expenditures. OMB Director Dr. bill includes any tax loopholes, called Congress. Alice Rivlin testified, and I quote, limited tax benefits. The Joint Com- Madam President, 43 Governors cur- ‘‘Tax expenditures add to the Federal mittee then gives its ruling to the con- rently have constitutional authority to deficit in the same way that direct ference committee, which gets to reduce or eliminate items or provisions spending programs do.’’ choose whether to include that infor- in appropriation measures. My home I believe, and many of my colleagues mation in its conference report. Recall State of South Carolina provides this on both sides agree, that if we are seri- that it is very often the staff of this authority, and I found it most useful ous about cutting wasteful spending, if same Joint Committee on Taxation during my service as Governor. Surely we are serious about reducing the defi- that drafts the tax loopholes in the the President should have authority cit, if we are serious about a credible first place. that 43 Governors now have to check line-item veto, we should include spe- Here is the kicker. If the JCT state- unbridled spending. cial interest tax loopholes in the list of ment is included, the President can re- It is widely recognized that Federal what the President can line out. scind only, and I repeat, only those spending is out of control. The Federal What should shine forth from this items identified in the legislation as budget has been balanced only once in conference report is an attack on both limited tax benefits. The JCT declara- the last 35 years. Over the past 20 wasteful appropriated spending and tax years, Federal receipts, in current dol- tion is more than a piece of paper. It is benefit pork. But the long arm of the lars, have grown from $279 billion to a declaration of immunity for what special interests reached into the con- more than $1.3 trillion. In the mean- could very well be a limited tax bene- ference and turned off the lights when time, Federal outlays have grown from fit. It is an inoculation against a Presi- tax loopholes were put on the table. $332 billion in 1975, to more than $1.5 dential line-item veto. It is the magic From what I have seen of the con- trillion last year, an increase of great- bullet for tax lobbyists. ference report language, it could be er than $1.1 trillion. Annual budget I do not believe that any of my col- virtually impossible for the President deficits have reached $200 billion, with leagues fell off the turnip truck yester- to veto special interest tax breaks, or the national debt growing to more than day. We know how lobbyists work. I as they are now called, limited tax ben- $5 trillion. efits. There are so many exceptions guarantee you that they will be swarm- Madam President, it is clear that nei- that any tax lobbyist worth his salt ing over JCT like the sand hill cranes ther the President nor the Congress are will be able to write legislation in such returning to the Platte River in Ne- effectively dealing with the budget cri- a way that they will not be subject to braska. JCT will be thick as thieves sis. The President continues to submit the line-item veto procedure. And with tax lobbyists. And for good rea- budgets which contain little spending mark my words, they will. son, the committee will have the reform and continue to project annual The conference report language de- sweeping power to grant unprecedented deficits. fines a tax benefit as a revenue-losing immunity to any Tom, Dick, or Harry If we are to have sustained economic provision that does one or two things. with a sweetheart tax deal. growth, Government spending must be It could provide a Federal tax deduc- Madam President, I am disappointed significantly reduced. A balanced budg- tion, credit, exclusion, or preference to by the final product the conferees bring et amendment, which I am hopeful will 100 or fewer beneficiaries. What is to the floor today. It is a tarnished re- still be passed this Congress, and line- more, there are exclusions for tax flection of the hopes I brought to the item veto authority would do much to breaks that target persons in the same process. Yes; we should have done bet- bring about fiscal responsibility. industry, engaged in the same type of ter. Yes; we should have attacked pork Madam President, it would be a mis- activity, owning the same type of prop- in all of its guises, Yes; we should have take to fail to pass this measure. It is erty, or issuing the same type of in- been tougher. But I have my doubts my hope that this Congress will now vestment. that more time and more debate will approve the line-item veto and send a The exclusions do not end here; quite produce a different result—a superior clear message to the American people the contrary, they are expanded. There result. I tell my colleagues that giving that we are making a serious effort to are exceptions for individuals with dif- the President at least some power to get our Nation’s fiscal house in order. ferent incomes, marital status, number rein in wasteful spending is better than Madam President, I congratulate the of dependents, or tax return filing sta- doing nothing. So today, I will cast my conferees for their work on this bill. tus. For businesses and trade associa- vote for taking a small, but clear, step This conference report provides the tions the exclusion could be based on in the right direction. I urge my col- President with a very narrow authority size or form. leagues to do the same. to cancel specific appropriations, di- That is so limited, it does not exist. I yield my remaining time. rect spending, or limited tax benefits. It is nearly impossible to think of any Mr. MCCAIN. Madam President, I Under this provision, the Congress re- provision that it would cover. In fact, I yield 3 minutes to the Senator from tains its legislative power of the purse do not believe that more than one or South Carolina, Senator THURMOND. in that the Congress may enact a bill two of the more than dozens of tax pro- The PRESIDING OFFICER. The Sen- disapproving the President’s previous visions in the last year’s Republican ator from South Carolina. cancellation. This bill, of course, would budget reconciliation would be subject Mr. THURMOND. Madam President, I be subject to a Presidential veto and to a Presidential line-item veto under rise in support of the conference report subsequent congressional override. the report language. And that bill was accompanying S. 4, the Line-Item Veto Madam President, the conference re- drafted before the lobbyists needed to Act. For many years, I have been a port also requires that any canceled draft their way around the line-item supporter of giving authority to the budget authority, direct spending, or veto. President to disapprove specific items tax benefit be applied to deficit reduc- The exceptions are troubling enough, of appropriation presented to him. On tion. Canceled funds would not be but it gets worse. Who defines a tar- the first legislative day of this Con- available to offset additional spending. March 27, 1996 CONGRESSIONAL RECORD — SENATE S2993 Madam President, the line-item veto Amendment and repeal of statutes no less I would like to take this opportunity will introduce a new level of discipline than enactment must conform with article I. to thank some people for their extraor- in the Federal budget process. It will This conference report comes up with dinary work on this. I acknowledge bring an additional level of scrutiny to a new procedure which does not con- Senator BYRD’s articulate and worthy items of Federal spending. The line- form with article I and says that the opposition to this message throughout item veto, combined with a balanced President may cancel—that means re- the years that we have been debating budget amendment, true reforms in en- peal, void—the law of the land of the line-item veto. I want to thank Sen- titlement spending, and restraint in United States of America. He can with ator DOMENICI and Senator STEVENS for Federal appropriations, will put us his pen on day 1 create a law by signing helping us at a critical time. They were back on the track of fiscal responsibil- our bill, and on day 2, 3, 4, 5, or 6 cancel key to a strong, workable compromise ity. what is then already the law of the on the issue. Senator DOLE’s leader- The PRESIDING OFFICER. Who land. ship, his decision to make this happen, yields time? Madam President, the Constitution to break the impasse and achieve a Mr. BYRD. I yield to the Senator will not tolerate that. We should not compromise, was absolutely critical to from Michigan, Senator LEVIN. even attempt to do such a thing. There our success. Particularly, it is a privi- Mr. LEVIN. Madam President, I have been many reasons given for why thank the Senator from West Virginia. lege for me to thank my friend and col- the line-item veto in one version or an- Again, I congratulate him for the ex- league, JOHN MCCAIN from Arizona, for other would be useful in terms of defi- traordinary effort he has made to try his efforts in this regard. I deeply re- cit reduction. There are ways constitu- to make us pay attention to the under- spect his determination. He has been lying issues here. The bill before us tionally of doing it. The Senator from tireless in his fight against the current says that, notwithstanding certain pro- West Virginia made that effort earlier system and the status quo. He has per- visions, bills which have been signed this afternoon. The current conference severed in long odds, in the face of into law can be canceled by the Presi- report before us simply cannot stand what often looked like a losing battle. dent. muster. We joined together 8 years ago in a Never in the history of this body has Again, I thank my friend. commitment to pass a line-item veto, the Congress attempted to give to the Mr. MCCAIN. Madam President, how and it has been my privilege to partner President the power on his own to can- much time remains? with him in this effort. cel the law of the United States. The The PRESIDING OFFICER. There Madam President, this measure, in process is the President signs the ap- are 22 minutes remaining. my opinion, is the most important propriations bills. It is then the law of Mr. MCCAIN. I yield 11 minutes to Government reform that this Congress the land. Those words should have a the Senator from Indiana. for many Congresses has addressed. certain majesty in this body. This ap- The PRESIDING OFFICER. The Sen- Yes, a line-item veto will help reduce propriations bill now signed by the ator from Indiana is recognized. the deficit. Yes, a line-item veto will President is the law. But under the ap- Mr. COATS. Madam President, I eliminate foolish waste. But our ulti- proach before us, the President would thank my colleague for yielding. I ap- mate objective is different. Our current then have 5 days in which he can can- preciate the debate that we have had. budget process is designed for decep- cel a part or all of that law without It has been a long and difficult and tion. It requires the disinfectant of congressional involvement. Yes, the sometimes tortuous road to this par- scrutiny and debate. Congress could vote to override the ticular point. When we send spending to the Presi- cancellation, but if the Congress does It was in the early or late 1800’s that dent that cannot be justified on its not, the cancellation action of the the first attempt to provide the line- merits, it is attached more often than President canceling the law of the land item veto power to the executive not to important appropriations bills. stands. branch was offered in the Congress. This has tended, first, to tie the Presi- Never in the history of Congress has There have been 200 attempts subse- dent’s hands, leaving him with a take- there been an effort to hand to a Presi- quent to that. So it has been a long ef- it-or-leave-it decision on the entire dent that kind of power. We are told fort. bill. the President of the United States sup- The question was raised: Why would Second, it is used as a means of ob- ports this. Of course he does. Every Congress cede its independence? Why scuring spending in the shuffle of un- President would love Congress to hand would Congress cede its power of spend- counted billions of dollars of appropria- part of its power to the President. ing to the executive branch?—because tions. Every President would love a piece of it is an extraordinary effort; it is a his- When we hide our excess behind a the power of the purse. But the Con- toric effort. But I would say that the shield of vital legislation, our aim is stitution will not let us do it, and we reason this is happening and the reason plain. We do it to mask our wasteful should not try. this will pass very shortly with a pret- spending by confusing the American Mr. SARBANES. Will the Senator ty substantial bipartisan vote is that taxpayer. We have created a system yield? there has been an extraordinary abuse that avoids public ridicule only be- Mr. LEVIN. I am happy to yield. of the power of spending. Despite every cause it consciously attempts to keep Mr. SARBANES. In fact, the Con- legislative effort and every promise our citizens from knowing how their stitution says: and pledge on this floor, the egregious money is spent. This is not a rational Every Bill which shall have passed the practice of blackmailing the President House of Representatives and the Senate, process. This is a deception. It is a shall, before it becomes a Law, be presented by attaching to otherwise necessary trick, and it must stop. It is more than to the President of the United States; if he spending bills pork barrel projects, abuse of public money; it is a betrayal approve he shall sign it, but if not he shall projects spending that does not have of public trust. return it, with his Objections . ... any relevance to the particular bill and But now we have an opportunity to I do not see how constitutionally a would never probably stand the light of end that abuse and restore that trust. President can sign a bill, make it the day in debate on that particular issue We have a chance to pass legislative law, and then undo the law through a or receive a majority vote has been line-item veto in a form that has procedure that would not have been passed into law. gained support from both parties and permitted by the Constitution. I would just say in response to the in both Houses of Congress. We have Mr. LEVIN. The Supreme Court has Senator from Michigan that we have the power to make our goal of budget said it precisely in the Chadha case. I had constitutional lawyers pour over reform a reality. It is not all that we am going to read these words again. I this legislation for years and years. need to do, but it is a huge leap for- read them earlier this afternoon. The Chadha decision does not apply to ward. Amendment and repeal of statutes no less what we have done here. Constitutional The line-item veto is designed to than enactment must conform with article I. lawyers from each end of the spectrum confront our deficit and to save tax- The Supreme Court has told us what and in between have told us that the payers’ money. We have shaped this the Constitution tells us, as the Sen- legislation that we are presenting is legislation to accomplish that purpose ator from Maryland just read: constitutional. through a lockbox, ensuring that all S2994 CONGRESSIONAL RECORD — SENATE March 27, 1996 the savings canceled by the President about this legislation, and due to a ponents of the line-item veto know go forward toward deficit reduction. shortage of time I would not be able to that without his skillful leadership, The line-item veto is not a budgetary respond to them. With the help of my without his admonition to put dif- trick. Unlike the appropriations pos- friend and colleague from New Mexico, ferences over details aside for the sake sess that currently exists and has ex- we will submit a long statement for the of the principle of the line-item veto, isted from the beginning of this legisla- RECORD tomorrow in response to some we would not now stand at the thresh- tion, nothing is taken off budget. No of the comments and statements that old of accomplishing something of real pay dates are altered. It is a sub- were made about the impact of the value to this Nation. He is, as former stantive change aimed at discouraging line-item veto. I think it is important baseball great Reggie Jackson once de- budget waste by encouraging the kind that the record be clear in response to scribed himself, ‘‘the straw that stirs of openness and conflict that enforces some of those statements as I think in the drink’’ around this place. restraint. future years historians may be looking The rules and customs of the Senate The goal is not to hand the Executive at the debate that took place in the are not revered as inducements to ac- dominance in the budget process. The Chamber today. tion but, rather, for their restraining goal is the necessary nudge toward an Madam President, we have nearly ar- effect on ill-considered actions. Few equilibrium of budget influence rived at a moment I have sought for 10 things of real importance would ever strengthening vital checks on excess. years. In my life, I have had cause to occur here without Senator DOLE’s But I think it does something more. I develop a very keen appreciation for leadership. The advocates of this legis- think the real benefit of the line-item the value of time, and that apprecia- lation have cause to celebrate his lead- veto is that it exposes a process that tion has made it unlikely that I will ership today, but I think even the op- thrives on public deception. It is a last- soon enjoy a reputation for abiding pa- ponents of this particular measure ing, meaningful reform—changing the tience. I confess my great eagerness for could refer to the many occasions when very ground rules of the way this legis- this day’s arrival. The line-item veto’s all Senators have had cause to cele- lature has operated. elusiveness has encouraged in me if not brate Senator DOLE’s leadership of the We have reached a historic decision, patience, then certainly respect for Senate. a historic moment. The first line-item those who possess it in greater quan- Madam President, the support of my veto, as I said, was introduced 120 years tity than I. colleagues for the line-item veto have ago, interestingly enough, by a Con- Ten years may be but a moment in made this long, difficult contest worth- gressman from West Virginia, Charles the life of this venerable institution, while and an honor to have been in- Faulkner. It died then in committee, but it is a long time to me. In a few volved in, but even greater honor is de- and since then nearly 200 line-item minutes, the issue will be decided. I am rived from the quality of the opposi- veto bills have been introduced, each gratified beyond measure that the Sen- tion to this legislation. And every Sen- one buried in committee, blocked by ate is now apparently prepared to ator is aware that the quality of that procedures or killed by filibusters. adopt S. 4, the line-item veto con- opposition is directly proportional to Today we have not been blocked. ference report, that its adoption by the the quality of one Senator in particu- Today we have not been killed. And other body is assured, and that the lar, the estimable Senator from West this issue will no longer be ignored or President of the United States will Virginia, Senator BYRD. no longer be denied. The House and the soon sign this bill into law. Madam President, I would like to in- Senate are in agreement. The Presi- I am deeply grateful to my col- dulge a moment of common weakness dent is in agreement. The public is in leagues who have worked so hard to of politicians. I wish to quote myself. I agreement. And now just one final vote give the President this authority. I wish to quote from remarks I made 1 remains. wish to first thank my partner in this year ago when we first passed the line- This measure is a milestone of re- long, difficult fight, my dear friend, item veto. I said at that time that form. It is the first time that the Con- the Senator from Indiana, [Mr. COATS]. ‘‘Senator BYRD distinguished our de- gress will voluntarily part with a form His dedication to this legislation has bate, as he has distinguished so many of power it has abused. That is the re- been extraordinary and its success of our previous debates,’’ as he has dis- sult of a public that no longer accepts would not have been possible absent tinguished today’s debate, ‘‘with his our excesses and excuses. But it is also the great care and patience he has ex- passion and his eloquence, his wisdom evidence of a new era in Congress, ercised on its behalf. and his deep abiding patriotism. Al- proof of a sea change in American poli- I would like to thank Mark Buse on though my colleagues might believe I tics. This vote will prove that Congress my staff and Sharon Soderstrom and have eagerly sought opportunities to can overcome its own narrow institu- Megan Gilly on Senator COATS’ staff. contend with Senator BYRD, that was, tional interests to serve the interests Madam President, I am grateful to to use a sports colloquialism, only my of the Nation. That will be something the chairman of the Budget Commit- game face. I assure you I have ap- remarkable, something of which every tee, Senator DOMENICI, and the chair- proached each encounter with trepi- Member who supports this legislation man of the Governmental Affairs Com- dation. Senator BYRD is a very for- can rightfully be proud. mittee, Senator STEVENS. There have midable man.’’ With this vote, let us show the Amer- been moments in our conference when Madam President, I stand by that ican people we are serious about chang- my gratitude may not have been evi- tribute today. If there is a Member of ing the way this Congress works. Let dent, but I would not want this debate this body who loves his country more, us show them a legislative process con- to conclude without assuring both who reveres the Constitution more, or ducted without deception and without these Senators of my respect for them who defends the Congress more effec- the embarrassment we always feel and my appreciation for their sincere tively, I have not had the honor of his when it is exposed. Let us show them efforts to improve this legislation. We or her acquaintance. Should we pro- that their tax money will no longer be may have had a few differences on ponents of the line-item veto prevail, I wasted on favors for the few at the ex- some questions pertaining to the line- will take little pride in overcoming pense of the many. Let us show them item veto, but I know we are united in Senator BYRD’s impressive opposition that business as usual in Congress is fi- our commitment to the success of S. 4. but only renewed respect for the honor nally and decisively over. I also wish to thank the assistant of this body as personified by its ablest Madam President, I yield the floor. I majority leader, Senator LOTT. As he defender, Senator ROBERT BYRD. yield back any additional time that often does, amidst the confusion and Senator BYRD has solemnly adjured was yielded to me. controversies that often define con- the Senate to refrain from unwittingly The PRESIDING OFFICER. The Sen- ferences, he managed to identify the violating the Constitution. As I said, ator from Arizona. common ground and bring all parties his love for that noble document is pro- Mr. MCCAIN. Madam President, I to fair compromises and broad agree- found and worthy of a devoted public yield myself the remaining time. ment. servant. I, too, love the Constitution, Madam President, a number of com- Finally, let me say to the majority although I cannot equal the Senator’s ments and statements have been made leader, Senator DOLE, all the pro- ability to express that love. March 27, 1996 CONGRESSIONAL RECORD — SENATE S2995

Like Senator BYRD, my regard for Madam President, I urge my col- [Rollcall Vote No. 56 Leg.] the Constitution encompasses more leagues to support the line-item veto YEAS—69 than my appreciation for its genius and conference report and show the Amer- Abraham Faircloth Lugar for the wisdom of its authors. It is for ican people that, for their sake, we are Ashcroft Feingold Mack the ideas it protects, for the Nation prepared to relinquish a little of our Baucus Feinstein McCain Bennett Frist McConnell born of those ideas that I would ran- own power. Biden Gorton Murkowski som my life to defend the Constitution I am very pleased to be here on this Bond Graham Nickles of the United States. incredibly historic occasion. Bradley Gramm Pressler It is to help preserve the notion that Breaux Grams Robb I yield the remainder of my time. Brown Grassley Roth Government derived from the consent Mr. BYRD. Will the Senator yield? Burns Gregg Santorum of the governed is as sound as it is just Campbell Harkin Shelby that I have advocated this small shift Mr. MCCAIN. I am happy to yield. Chafee Hatch Simon The PRESIDING OFFICER. The Sen- Coats Helms Simpson in authority from one branch of our Cochran Hutchison Smith Government to another. I do not think ator from West Virginia. Coverdell Inhofe Snowe the change to be as precipitous as its Mr. BYRD. Madam President, I think Craig Kassebaum Specter opponents fear. Even with the line- of an old fable about two frogs. They D’Amato Kempthorne Stevens Daschle Kennedy Thomas item veto authority, the President both fell into a churn that was half DeWine Kerry Thompson could ill-afford to disregard the will of filled with milk. One of the frogs im- Dole Kohl Thurmond Congress. Should he abuse his author- mediately turned over, gave up the Domenici Kyl Warner Dorgan Lieberman Wellstone ity, Congress could and would compel fight, and perished. The other frog kept Exon Lott Wyden the redress of that abuse. kicking until he churned a big patty of I contend that granting the President butter. He mounted the butter, jumped NAYS—31 this authority is necessary given the out of the churn, and saved his life. Akaka Hatfield Moseley-Braun gravity of our fiscal problems and the Bingaman Heflin Moynihan The moral of the story is: Keep on Boxer Hollings Murray inadequacy of Congress’ past efforts to kicking and you will churn the butter. Bryan Inouye Nunn remedy those problems. I do not be- Madam President, I say this in order Bumpers Jeffords Pell lieve that the line-item veto will em- Byrd Johnston Pryor to congratulate Senator MCCAIN and power the President to cure Govern- Cohen Kerrey Reid Senator COATS especially, for their Conrad Lautenberg Rockefeller ment’s insolvency on its own. Indeed, long fight and for their success in hav- Dodd Leahy Sarbanes that burden is and it will always re- Ford Levin ing gained the prize after striving for Glenn Mikulski main Congress’ responsibility. The these many, many years. They never So, the conference report was agreed amounts of money that may be spared gave up. They never gave up hope. to. through the application of the line- They always said, ‘‘Well, we will be Mr. DOLE. I move to reconsider the item veto are significant but certainly back next year.’’ not significant enough to remedy the vote. Federal budget deficit. So I salute them in their victory and, The PRESIDING OFFICER. Without But granting the President this au- as for myself, I simply say, as the objection, the motion to lay on the thority is, I believe, a necessary first Apostle Paul, ‘‘I have fought a good table was agreed to. step toward improving certain of our fight, I have finished my course, I have Mr. DOLE addressed the Chair. own practices, improvements that kept the faith.’’ The PRESIDING OFFICER. The ma- must be made for serious redress of our I thank all Senators. jority leader. fiscal problems. The Senator from West Mr. COATS. Will the Senator yield, if Virginia reveres, as do I, the custom of I could just respond to that? f the Senate, but I am sure he would First of all, that is a high com- agree that all human institutions, just pliment and I am sure I speak for both CORRECTING THE ENROLLMENT as all human beings, must fall short of Senator MCCAIN and myself in thank- OF H.R. 2854 perfection. ing you for that. For some years now, the Congress Mr. DOLE. Pursuant to a previous But, second, I leave here, after this unanimous consent agreement, I now has failed to exercise its power of the vote, with the vivid picture in my mind purse with as much care as we should call up Senate Concurrent Resolution that the Senator from West Virginia is 49, correcting the enrollment of the have. Blame should not be unfairly ap- still kicking in the churn on this issue, portioned to one side of the aisle or the farm conference report. and that the final chapter probably is The PRESIDING OFFICER. Under other. All have shared in our failures. not written yet. Nor has Congress’ imperfections proved the previous order Senate Concurrent I admire his tenacity also, and I us to be inferior to other branches of Resolution 49, a concurrent resolution think he has gained the respect of Sen- Government. This is not what the pro- to correct the enrollment of H.R. 2854 ator MCCAIN and I and everyone else ponents contend. previously submitted by the Senator for his diligence in presenting his case. What we contend is that the Presi- from Indiana is agreed to. dent is less encumbered by the politi- Mr. BYRD. I thank the Senator. The concurrent resolution (Senate cal pressures affecting the spending de- Mr. MCCAIN. I yield my time. Concurrent Resolution 49) was agreed cisions of Members of Congress whose The PRESIDING OFFICER. The to as follows: constituencies are more narrowly de- question is on agreeing to the con- S. CON. RES. 49 fined than his. Thus, the President ference report on the line-item veto. Resolved by the Senate (the House of Rep- could take a sterner view of public ex- Mr. COATS. Mr. President, I ask for resentatives concurring), That the Clerk of the penditures which serve the interests of the yeas and nays. House of Representatives, in the enrollment of the bill (H.R. 2854) to modify the operation only a few which cannot be reasonably The PRESIDING OFFICER. Is there a argued as worth the expense given our of certain agricultural programs, shall make sufficient second? the following corrections: current financial difficulties. In antici- There is a sufficient second. In section 215— pation of a veto and the attendant pub- The yeas and nays were ordered. (1) in paragraph (1), insert ‘‘and’’ at the lic attention to the vetoed line-item end; appropriation, Members should prove The PRESIDING OFFICER. The (2) in paragraph (2), strike ‘‘; and’’ at the more able to resist the attractions of question is on agreeing to the con- end and insert a period; and unnecessary spending and thus begin ference report, the yeas and nays have (3) strike paragraph (3). the overdue reform of our spending been ordered. The clerk will call the The PRESIDING OFFICER. Under practices. It is not an indictment of roll. the previous order, the motion to re- Congress nor any of its Members to The bill clerk called the roll. consider that vote is laid on the table. note that this very human institution The result was announced, yeas 69, The motion to lay on the table was can stand a little reform now and then. nays 31, as follows: agreed to.