Line Item Veto: Little Beef and Mostly Bun

The hoopla accompanying yesterday’s signing of the Line Item Veto Act included predictions that the legislation will bring about momentous changes. Some celebrated because they believe that the president will, at long last, have a powerful and badly-needed tool to strip low-priority, pork barrel spending from the budget and slash the deficit. Others mourned because they believe that Congress has unwisely relinquished a significant portion of its constitutional power of the purse to the president and that he will use his new authority to force his budget priorities on Congress and, possibly, even to meddle with the independence of the judiciary.

As is so often is the case in this the hyperbole capital of the world, the consequences of this legislation may be a good deal less than the rhetoric suggests. Neither budget outcomes nor the distribution of political power is likely to change much if the line item veto survives a constitutional challenge and takes effect on Jan. 1, 1997, as planned. One reason why this is the case is that the president hasn’t been given real beef, true item veto authority. Only a change in the Constitution could have conferred that power. Instead, the president has been given mostly bun, what in budget jargon is referred to as “enhanced rescission authority.”

At first glance, enhanced rescission authority looks like the real thing because it allows the president to selectively wipe out individual spending items in large appropriation bills or their reports, particular expansions of entitlement programs, and tax breaks that benefit only a handful of taxpayers. While Congress can try to nullify the president’s actions by passing a disapproval bill under expedited procedures, the president can veto that bill. His veto will prevail as long as he can rally the support of just one-third plus one of either the Senate or the House.

On closer examination, however, it turns out that the seemingly formidable power of enhanced rescission is rather limited and can be easily circumvented. Crafty legislative counsels will draft bills and write reports in ways that give the president few opportunities to veto favored items. Where that doesn’t work, the president’s new power can be suspended, just as it was extended, by legislative language. By tucking one simple sentence,”Appropriations provided under this act (or title or section) shall not be subject to provisions of the Line Item Veto Act” into an appropriation bill, Congress can put the president right back where he was before—forced to accept or reject an entire bill.

Some who haven’t been in town long might regard such a brazen act of congressional hypocrisy as unthinkable. They are probably right when it comes to protecting small scraps of pork, like the research grant to the university in the chairman’s district or the new court house for the committee member’s home town. But these tidbits amount to no more than the rounding errors in the Monthly Treasury Statement. When it comes down to the chops and hams that can constitute a satisfying budget meal, don’t underestimate Congress’s audacity. The larger spending and taxing differences over which Congresses and presidents fight can always be cast as disagreements involving policy. On these, Congress will continue to pursue its priorities with all the weapons at its disposal. Anyone who thinks otherwise should consider whether the 104th Congress would have allowed President Clinton to use the line item veto to slice out the extra $7 billion it put into the Pentagon’s budget this year? Would it have left the president with the opportunity to cancel the funds it added to keep the B-2 bomber production line open? Or would Congress have forthrightly asserted that language in the defense appropriation bill nullifying the president’s item veto authority was essential to protect the nation’s security from the president’s ill-considered and dangerous economies?

Even in the realm of pork scraps—that is, spending and tax provisions that primarily benefit a single congressional district or a member’s favorite interest group—don’t expect lean cuisine to become de rigueur. Chairmen and members of key committees and a few of their lucky colleagues get to slip spending items or tax breaks that carry Zip codes or PAC labels on them into legislation in the eleventh hour without any broad congressional scrutiny or, sometimes, even the knowledge of their compatriots. Although no member has ever been defeated for trying to bring home too much bacon, some such provisions could prove politically embarrassing if, once the line item veto kicks in, the president decides to showcase them. To guard against this possibility, the congressional leaders will want to work out a mutually acceptable list of special-interest provisions with the president before Congress votes on each bill. But don’t expect these negotiations to lead to less pork—just to a different set of dishes being served. Presidents, after all, are politicians too, and pork is one of the basic food groups that sustain our political system. Presidents’ tastes for pork tend to be more eclectic than members’, and their appetites are larger because they have more mouths to feed, a point exemplified by President Clinton’s concern for the entire state of California.

Some worry that a forceful or vindictive president—a Lyndon Johnson or a Richard Nixon, for example—might use the veto threat on particular distributive items to blackmail individual members into supporting presidential positions on matters of high policy. On the margin, some of this will occur. But in general this concern is overblown because members understand that they could pay the ultimate political price if their next opponent successfully accuses them of being for sale, of selling out a principle for a highway demonstration grant.

What about the lure of lower deficits? Won’t this encourage future presidents to exercise their enhanced rescission power to its fullest extent? Not if history is any guide for it provides little evidence that presidents are more interested in deficit reduction than Congresses. After all, there is a political cost to canceling even the narrowest of spending items and, as President Clinton knows only too well, little political credit goes to a president if the deficit is reduced.

Furthermore, one should be skeptical that the savings generated by enhanced rescissions will actually be devoted to deficit reduction as required. In theory, these savings will be deposited in a “lock box” and the discretionary spending caps and pay-as-you-go scorecard will be adjusted to ensure these savings can’t be spent. But the lock box will prove to be about as secure as a wallet left unattended on a park bench. Once several billion dollars accumulates in it, Congress and the president will develop an overpowering urge to spend the money on some supplemental appropriation measure. If politicians are shy about grabbing the money directly out of the lock box, they can accomplish the same end indirectly either by waiving the Budget Enforcement Act’s (BEA) spending limits or by employing the “emergency spending” provisions in the BEA. The perfectly valid justification for spending the lock box money would be that the appropriate deficit and spending levels should be set, as they have been, by the periodic, multi-year deficit reduction packages (the 1990 and 1993 budget agreements, for example) and not by the exercise of the president’s item veto authority.

So don’t expect the line item veto to allow future presidents to jerk Congress around, to cause a visible drop in the deficit, or to make pork barrel spending disappear from the political menu.