[Pages S4212-S4222]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

CLOTURE MOTION

Mr. McCAIN. Mr. President, I send a cloture motion to the desk and
ask for its immediate consideration.
The PRESIDING OFFICER. The cloture motion having been presented under
rule XXII, the Chair directs the clerk to read the motion.
The legislative clerk read as follows:

Cloture Motion

We the undersigned Senators, in accordance with the
provisions of rule XXII of the Standing Rules of the Senate,
do hereby move to bring to a close debate on S. 4, the line-
item veto bill:
Bob Dole, Trent Lott, Dan Coats, Slade Gorton, Robert
Bennett, John McCain, Ted Stevens, James Inhofe, Mike
DeWine, John Ashcroft, Craig Thomas, Bob Smith, Alfonse
D'Amato, Mitch McConnell, Larry Pressler, Don Nickles,
Pete Domenici.

[[Page S4213]] Mr. McCAIN. Mr. President, as my colleagues are aware,
that is the second cloture motion that has been filed at the desk.
Mr. President, after discussion with the majority leader, I think it
would be well to inform my colleagues that we anticipate a cloture vote
on Wednesday, tomorrow, at some point, at the discretion of the
majority leader, and then again on Thursday and, if necessary, another
one on Friday.
I remind my colleagues that the bill is under consideration. It is
open for amendments. We welcome amendments at this time. I remind
Members that first-degree amendments must be filed by 1 p.m. today in
the event of a cloture motion.
Mr. President, in discussions with the majority leader, he has
informed me that, if necessary, we would stay, in order to complete
consideration of this bill in a timely fashion, that we would plan on
staying in late both tonight, tomorrow night, and Thursday night, if
necessary. Hopefully, that is not necessary. Hopefully, we can pass a
cloture motion and close off debate in 30 hours, of course, with
relevant amendments that are germane to be considered at that time.
I also point out that, in the event there are amendments that are not
ruled specifically germane to the bill, the Members should file those
by 1 p.m. today.
Mr. President, it is clear the intentions on this side of the aisle,
and with the majority leader's help, that we do not intend to drag this
debate out for weeks. We intend to dispose of the issue. It has been
brought up on numerous occasions, dating back to 1985. As short a time
ago as last year, a sense- of-the-Senate resolution basically
encompassing most of the provisions of the Dole substitute was voted
on, and the issue is clear and will not require extended debate in the
view of the majority leader and those on this side of the aisle.
Let me just point out, in the 99th Congress, a hearing was held in
committee and the motion to proceed was filibustered. There are 53
current Members of the Senate who were here then. It has been
reintroduced every Congress since then. Additionally, in 1990, on July
25, the Senate, the Budget Committee, favorably reported this bill, and
finally during the 103d Congress, the Senate voted on a sense of the
Senate regarding this issue.
I also remind my colleagues that the bill is very short. It is five
pages and one sentence long. It does not require a great deal of time
and effort to digest it. It is, I think, rather simple, rather brief,
especially compared with bills that we dispose of that are of much
greater length on a routine basis around here.
Obviously, Mr. President, there will be questions about this bill.
There will be amendments, hopefully, that will help define this
legislation. We do not view it as perfect. But the fundamentals
associated with it are, in my view, important and unchangeable.
Those are based around the following assumptions:
First, that it would require a two-thirds majority in both Houses in
order to override the President's veto. In my view, that is the
fundamental principle behind the line-item veto and one that is not
negotiable.
Second, the separate enrollment aspect which allows the President to
eliminate pork using his constitutional authority by a simple veto as
each piece of legislation is divided up into separate bills. Now, there
will be a lot of discussion about that, Mr. President. There was the
last time, in 1985, when it was brought up.
I point out that I went to see the enrolling clerk to be briefed on
the mechanics of separate enrollment. We did a little experiment where
we took the Commerce, Science, and Justice bill, which is the largest
appropriations bill that was passed last year, just as a trial run, and
we broke it up into some 500 pieces of separate enrolled legislation.
I think to ask the President to sign a bill 500 times is a chore. I
also believe that to allow tens of billions of dollars of wasteful and
unwanted spending to be included, tucked into various appropriations
bills, is a far more serious and grievous error.
In another provision of the bill is the sunset provision, which would
sunset this line-item veto authority after 5 years. I was not
particularly happy about that provision, Mr. President, but there are
those on both sides of the aisle that view this for what it is--a
significant shift in authority from the legislative to the executive
branch.
There are concerns about abuse of this power. So they want an
opportunity to review the results of the enactment of this legislation
after a 5-year period.
Frankly, I think that that is appropriate. That is another aspect of
it.
The final aspect of it, Mr. President, that is going to be debated
and be significantly involved is the targeted tax benefits. The
targeted tax benefits allows the President to eliminate specific
targeted tax benefits. These are rightful shots for transition benefits
that help but a few that are not applicable to the general population.
The bill states clearly, and I quote from the legislation:

(5) The term ``targeted tax benefit'' means any provision:
(A) estimated by the Joint Committee on Taxation as losing
revenue within the period specified in the most recently
adopted concurrent resolution on the budget . . .
(B) having the practical effect of providing more favorable
tax treatment to a particular taxpayer or limited group of
taxpayers when compared with other similarly situated
taxpayers.

What that means, Mr. President, is that we are trying to avoid the
so-called transition rules in which tax breaks are included for favored
individuals or companies. We are trying to avoid things like what
happened--and I quote from a New York Times article of May 20, 1994:

A case in point is a provision that would allow some
homeowners who rent their homes for a brief period to
continue to escape taxes on their rental income. . . .
Since 1976, income from homes and apartments rented for 15
days a year or less has been tax free. No one now in Congress
knows for sure, but the word in tax circles for years is this
was put into the law for the benefit of people who live in
and around Augusta, GA, and who rent their homes for
thousands of dollars each April for the Masters golf
tournament. At the time that the measure went into the Tax
Code, Herman E. Talmadge, Democrat of Georgia, was the
second-ranking Senator on the Finance Committee.
This year, to raise money to offset various tax cuts, the
House decided to abolish the 15-day rule. But one narrow
exception was provided. The rent would still not be taxable
if the home was in an area where there was not enough hotel
or motel space to accommodate visitors at a particular event.
. . .
The folks in Atlanta who are planning housing for the 1996
Olympics this summer are quite pleased with the outcome.

Mr. President, we cannot do that anymore. There is going to be an
argument to expand this provision to basically any tax provision in the
tax law, in tax bills that are passed.
I think that would be very dangerous. I believe that if we did that,
then that would give the President of the United States the ability to
veto things like home mortgage deductions, medical expenses deductions,
child care tax credit, exclusion from income of employer-provided
health care benefits, earned income tax credit, personal exemption,
special exemption for the blind, special exemption for the elderly, et
cetera, including charitable contribution deductions and State and
local tax deductions.
The bill is intentionally narrowly focused on targeted tax benefits
to prevent the same kind of abuses that have become rampant in the
appropriations process.
I want to point out again and again and again, Mr. President, two-
thirds versus a simple majority is the crux of this bill.
We asked for an opinion by the Congressional Research Service on the
constitutionality of separate enrollment. There is a Congressional
Research Service memorandum to the Honorable Dan Coats from Mr. Johnny
H. Killian, who is a senior specialist in American consultant law. The
subject is separate enrollment bill and the Constitution.
It is a little long, but I think it is important enough to ask
unanimous consent that it be printed in the Record, and I ask unanimous
consent to print it in the Record.
There being no objection, the memorandum was ordered to be printed in
the Record, as follows:

[[Page S4214]] Congressional Research Service,

The Library of Congress,

Washington, DC, March 20, 1995.
To: Hon. Dan Coats. Attention: Megan Gilley.
From: American Law Division.
Subject: Separate enrollment bill and the Constitution.
This memorandum is in response to your request for a
constititional analysis of the draft substitute for the
various item veto-rescission proposals now pending in the
Senate. Briefly, your substitute would direct that the
appropriations committees, the authorization committees in
designated cases, and conference committees in designated
cases to include within their bills reported to the House of
Representatives or the Senate a level of detail on the
allocation of an item of appropriation (or other authority)
as is proposed by that House such as is set forth in the
committee report accompanying such bill. The substitute then
provides for separate enrollment of the designated bills,
once passed by both Houses in identical language, as is
detailed below.
Discussion here is of particular problems relating to
passage of the separated bills, insofar as constitutional
issues are raised. We do not deal in this memorandum with the
larger issues of separate enrollment and the item veto.\1\ In
a considerable amount of published material since the
preparation of the two memoranda, cited in n. 1, separate
enrollment has not been dealt with, the controversy exciting
much of the writing being the dispute over the assertion that
the President already has the power of item veto if he would
but use it.\2\ Discussion of that subject we also pretermit.
It is to the constitutionality of the mechanics of the
proposal's implementation that we turn.
Footnotes at end of article.
Under the proposal, once an appropriations bill and any
authorization bill or resolution providing direct spending or
targeted tax benefits has passed both Houses of Congress in
the same form, the Secretary of the Senate (if the bill or
joint resolution originated in the Senate) or the Clerk of
the House of Representatives (if the bill or joint resolution
originated in the House of Representatives) would cause the
enrolling clerk of such House to enroll each item of
appropriation or covered authorization as a separate bill or
joint resolution. The separately enrolled measure is to be
enrolled without substantive revision, is to conform in style
and form to the applicable provisions of chapter 2 of title 1
of the United States Code, and is to bear the designation of
the measure of which it was previously a part plus such other
designation as to distinguish it from the other items
separately enrolled from the same bill. The critical
provision then is the following excerpted section.
``A measure enrolled pursuant to [this act] with respect to
an item shall be deemed to be a bill under clauses 2 and 3 of
section 7 of article I of the Constitution of the United
States and shall be signed by the Speaker of the House and
the President of the Senate, or their designees, and
presented to the President for approval or disapproval (and
otherwise treated for all purposes) in the manner provided
for bills and joint resolutions generally.''
Constitutional difficulty for the separate-enrollment
proposal may be raised by the effectuation of this section.
At present, when both Houses have passed a bill in the same
form, it is presented by the last House acting on it to a
specially appointed clerk for enrolling. Bills and joint
resolutions are enrolled, and the enrolling clerk is to make
no change, however unimportant, in the text of a bill or
joint resolution, although the two Houses may, by concurrent
resolution, authorize the correction of errors when
enrollment is made. Following enrollment, the Speaker of the
House of Representatives and the President of the Senate sign
the bill, and it is then presented to the President.3
How is it, then, it may be asked, that separate bills,
which in their subsequent form have not passed both Houses,
may be deemed bills that have passed both Houses and are then
properly presented to the President? It is not
possible to make a definitive answer to this question. Sound
precedent is lacking. However, one may, on the basis of
existing precedents and general principles derived from
the rule-making powers of both Houses, develop two
possible resolutions to the quandary that will be suitable
in form for each House to make its own constitutional
determination.
Each House of Congress is empowered to ``determine the
Rules of its Proceedings,'' Art. I, Sec. 5, cl. 2. The
authority is quite broad and leaves much to the discretion of
each House, but it is not limitless. United States v. Ballin,
144 U.S. 1 (1892). In that case, the House of Representatives
had adopted a rule to break the obstruction of some Members
who would deny the existence of a quorum to do business by,
though present, refusing to vote or otherwise indicating
their presence for purposes of determining a quorum. The rule
authorized the Speaker to have the names of nonvoting Members
recorded and the Members counted and announced in determining
the presence of a quorum. When the rule was challenged, by
those asserting that a bill was not passed with a sufficient
quorum present, the Court rejected the attack.
``The Constitution empowers each house to determine its
rules of proceedings. It may not by its rules ignore
constitutional constraints or violate fundamental rights, and
there should be a reasonable relation between the mode or
method of proceeding established by the rule and the result
which is sought to be attained. But within these limitations
all matters of method are open to the determination of the
house, and it is no impeachment of the rule to say that some
other way would be better, more accurate or even more just.
It is no objection to the validity of a rule that a different
one has been prescribed and in force for a length of time.
The power to make rules is not one which once exercised is
exhausted. It is a continuous power, always subject to be
exercised by the house, and within the limitations suggested,
absolute and beyond the challenge of any other body or
tribunal.'' Id., 5.
Inasmuch as the Constitution required a quorum to do
business but prescribed no method of making the determination
of the existence of a quorum, ``it is therefore within the
competency of the house to prescribe any method which shall
be reasonably certain to ascertain the fact.'' Id., 6. The
Court then listed several methods the House might have used.
``Any one of these methods, it must be conceded, is
reasonably certain of ascertaining the fact, and as there is
no constitutional method prescribed, and no constitutional
inhibition of any of those, and no violation of fundamental
rights in any, it follows that the house may adopt either or
all, or it may provide for a combination of any two of the
methods.'' Ibid. Ballin, thus, stands for the proposition
that the power of the Senate and the House of Representatives
is quite broad and that the Court will defer in large
measure; but by its phrasing, the Court clearly said that it
has power to review rules and their application, if there are
constitutional inhibitions in existence or if private rights
are alleged to be abridged.
That judicial review of congressional rules may be an
expansive power is illustrated by United States v. Smith, 286
U.S. 6 (1932), an opinion by Justice Brandeis. Smith
concerned the meaning of a disputed rule of the Senate. The
Senate has confirmed an appointee to the FPC, the President
had been notified, the commission was signed, and Smith took
office. The Senate then requested that the nomination be
returned for reconsideration; upon the President's refusal,
the Senate nonetheless voted again and refused confirmation.
The Senate relied upon a role that it construed to authorize
such reconsideration.
``The question primarily at issue,'' the Court said,
``relates to the construction of the applicable rules, not to
their constitutionality,'' Id., 33 (emphasis supplied). The
supposed Ballin limits were passed. ``As the construction to
be given to the rules affects persons other than members of
the Senate, the question presented is of necessity a judicial
one.'' Ibid. While the Court purported to give great
deference to the Senate's construction of its rules, it read
the text of the rules, the history and precedents, and the
mischief attendant on the Senate's construction to interpret
the rules as precluding reconsideration of the appointment.
Id., 35-49.\4\
Other cases to be noticed are Christoffel v. United States,
338 U.S. 84 (1948), and Yellin v. United States, 374 U.S. 109
(1963), both relating to the practice of investigating
committees in following House rules, Christoffel involved the
question whether the fact that a quorum existed at the
beginning of a hearing created the presumption that a quorum
continued throughout, including when perjured statements were
made, as the house contended. The Court held that it must be
shown that a quorum was actually present when the perjury was
committed. In Yellin, the Court set aside a contempt-of-
Congress conviction, because it found the committee had
failed to follow its rules, rejecting the argument that under
the congressional interpretation of the rules the rules were
followed.
The Court of Appeals for the District of Columbia Circuit
has long emphasized that the rulemaking clause ``creates a
`specific constitutional base' which requires [the courts] to
`take special care to avoid intruding into a constitutionally
delineated prerogative of the Legislative Branch.'' Vander
Jagt v. O'Neill, 699 F.2d 1166, 1173 (D.C.Cir. 1982) (quoting
Harrington v. Bush, 553 F.2d 190, 214 (D.C. 1977)), cert.
den., 464 U.S. 823 (1983); Metzenbaum v. FERC, 675 F.2d 1282,
1287 (D.C.Cir. 1982). Nevertheless, the Vander Jagt court
dismissed the action, brought by minority-party Members of
Congress to contest the party distribution of committee
seats, only because it felt the Members had alternative
routes to political relief. In Gregg v. Barrett, 771 F.2d 539
(D.C.Cir. 1985), after dismissing Members as plaintiffs in a
suit challenging the accuracy of the Congressional Record,
the Court reached the merits of the suit on behalf of private
plaintiffs, although it decided against them. And, quite
recently, in Michel v. Anderson, 14 F.3d 623 (D.C.Cir. 1994),
the court reviewed on the
merits (finding constitutional) the changes in House rules
permitting delegates from the territories and the District
of Columbia to vote in the Committee of the Whole, subject
to revoting in certain instances.\5\
Thus far, we have established that the rule-making power of
each House is broad and is entitled to judicial deference,
although if there is a constitutional barrier to a particular
rule or impairment of a private right there may well be a
judicial remedy. We must, therefore, turn to the exercise of
the rule-making power of each House in the specific context
of the enactment of the separately-enrolled bills.
[[Page S4215]] Beginning that consideration leads us to
Marshall Field & Co. v. Clark, 143 U.S. 649 (1892), decided
the same Term as Ballin. In Clark, certain parties challenged
the validity of a tariff law, authenticated by the Speaker of
the House and the President of the Senate as having passed
Congress, signed into law by the President, and furnished to
the Public Printer by the Secretary of State as a correct
copy of the law. It was contended that the bill had not been
passed because congressional documents showed that a section
of the bill, as it finally passed, was not in the bill
authenticated by the signatures of the two officers and
approved by the President. The holding of the Court was that
the judiciary may not look behind the authenticating
signatures of the Speaker of the House and the President of
the Senate. Its reasoning requires lengthy quoting.
``The argument . . . is, that a bill, signed by the Speaker
of the House of Representatives and by the President of the
Senate, presented to and approved by the President of the
United States, and delivered by the letter to the Secretary
of State, as an act passed by Congress, does not become a law
of the United States if it had not in fact been passed by
Congress. In view of the express requirements of the
Constitution the correctness of this general principle cannot
be doubted. There is no authority in the presiding officers
of the House of Representatives and the Senate to attest by
their signatures, nor in the President to approve, nor in the
Secretary of State to receive and cause to be published, as a
legislative act, any bill not passed by Congress.
``But this concession of the correctness of the general
principle for which the appellants contend does not determine
the precise question before the court; for it
remains to inquire as to the nature of the evidence upon
which a court may act when the issue is made as to whether
a bill, originating in the House of Representatives or the
Senate, and asserted to have become a law, was or was not
passed by Congress. Id., 669-670.''
The challengers asserted that courts should recur to the
journal required to be kept by the Constitution. Art I,
Sec. 5, cl. 3. But the Court denied that the journal was the
best, if not conclusive, evidence upon the issue of whether a
bill, in the same form, was, in fact, passed by the two
Houses of Congress. The purpose of the requirement was not
related to this function, and there was no express
requirement in the Constitution relating to this question and
others pertaining to bills and joint resolution for inclusion
in the journal. These and other matters were left to the
discretion of Congress. To what should the courts look?
``The signing by the Speaker of the House of
Representatives and by the president of the Senate, in open
session, of an enrolled bill, is an official attestation by
the two houses of such bill as one that has passed Congress.
It is a declaration by the two houses, through their
presiding officers, to the president, that a bill, thus
attested, has received, in due form, the sanction of the
legislative branch of the government, and that it is
delivered to him in obedience to the constitutional
requirement that all bills which pass Congress shall be
presented to him. And when a bill, thus attested, receives
his approval, and is deposited in the public archives, its
authentication as a bill that has passed Congress should be
deemed complete and unimpeachable. As the President has no
authority to approve a bill not passed by Congress, an
enrolled act in the custody of the Secretary of State, and
having the official attestations of the Speaker of the House
of Representatives, of the President of the Senate, and of
the President of the United States, carries, on its face, a
solemn assurance by the legislative and executive departments
of the government, charged, respectively, with the duty of
enacting and executing the laws, that it was passed by
Congress. The respect due to coequal and independent
departments requires the judicial department to act upon that
assurance, and to accept, as having passed Congress, all
bills authenticated in the manner stated; leaving the courts
to determine, when the question properly arises, whether the
act, so authenticated, is in conformity with the
Constitution.'' Id., 672.
Upon the correct interpretation of Clark and the
convergence of Clark and Ballin, we suggest, may be found the
solution to the issue of the validity of the passage of a
series of bills after the passage of the one bill from which
the many bills are extracted. The difficulty is that it is
not clear what the correct
interpretation of Clark is; below, we set out three
possibilities and evaluate them.
First, Clark may be read as simply holding that the ``best
evidence'' of whether a bill had passed both Houses may be
found in the signatures of the Speaker of the House and the
President of the Senate. The Court would not allow
challengers to use the Journal or other legislative evidence
to counter the attesting signatures. In a very recent
decision, the Court, in part, casually adopted this reading
of Clark, but it did so in a footnote that also ambiguously
appears to go beyond that simple explanation. United States
v. Munoz-Flores, 495 U.S. 385, 391 n. 4 (1990).\6\ Inasmuch
as that footnote is relevant here and will be relevant in a
subsequent portion of this memorandum, we here quote the
entire pertinent parts of the footnote.
``[Clark] concerned ``the nature of the evidence'' the
Court would consider in determining whether a bill had
actually passed Congress. Id. [143 U.S.], at 670. Appellants
had argued that the constitutional Clause providing that
``[e]ach House shall keep a Journal of its Proceedings''
implied that whether a bill had passed must be determined by
an examination of the journals.. . . The Court rejected that
interpretation of the Journal Clause, holding that the
Constitution left it to Congress to determine how a bill is
to be authenticated as having passed. Id., at 670-671. In the
absence of any constitutional requirement binding Congress,
we stated that ``[t]he respect due to coequal and independent
departments'' demands that the courts accept as passed all
bills authenticated in the manner provided by Congress. Id.,
at 672. Where, as here, a constitutional provision is
implicated, Field does not apply.''
Should Clark be taken to be simply about what is the ``best
evidence'' that a bill passed both Houses, then in
practically all instances the attesting signatures will be
decisive. However, respecting the proposals for a separate
enrollment following adoption of a single bill and its
division into many bills, with these multiple bills being
``deemed'' to have passed both Houses, it is possible that
the courts would adopt a different view. Because both Houses
have adopted rules that expressly provide for a separate
enrollment, deeming, and the attestation signatures, the
courts could exercise judicial review to consider on the
merits the rules and their comportment with the Constitution,
viewing the
signatures of the two officers as essentially irrelevant in
the context of this particular situation.
Adoption of this reading of Clark, with an exception, would
not void the rules thus adopted. It would simply mean that
the courts would review the rules on the merits.
Second, Clark may be read much more broadly than merely as
a best evidence rule. The paragraph quoted in full above from
Clark does not read as if it is a decision placing a burden
of persuasion on some person or at some point. Rather, the
passage has the flavor of a ``political question'' approach
to a constitutional issue. ``The respect due to coequal and
independent departments requires the judicial department to
act upon that assurance, and to accept, as having passed
Congress, all bills authenticated in the manner stated. . .
.'' Clark, supra, 143 U.S., 672, See baker v. Carr, 369 U.S.
186, 217 (1962) (Identifying the features that identify
political questions, including ``the impossibility of a
court's undertaking independent resolution [of an issue]
without expressing lack of respect due coordinate branches of
government''). See also INS v. Chadha, 462 U.S. 919, 941
(1983) (quoting Baker); Nixon v. United States, 113 S.Ct.
732, 735 (1993) (quoting two of the other standards of
Baker). Indeed, in Baker, itself, the Court viewed Clark as a
political question case.\7\ The political-question doctrine
is ``essentially a function of the separation of powers.''
Baker v. Carr, supra, 217.
Baker, of course, is qualified in a number of respects.
``Our system of government requires that federal courts on
occasion interpret the Constitution in a manner at variance
with the construction given the document by another branch.
The alleged conflict that such an adjudication may cause
cannot justify the courts' avoiding their constitutional
responsibility.'' Powell v. McCormack, 395 U.S. 486, 549
(1969). In that case, the action of the House of
Representatives in excluding a Member-elect from office was
reviewed and overturned, because the Court determined that
there was a constitutional provision governing resolution of
the matter, a clause establishing exclusive qualifications
that the House had violated. See also United States v. Munoz-
Flores supra, 495 U.S., 389-396 (refusing to find a political
question bar to judicial resolution to whether a revenue-
raising measure did not originate in the House of
Representatives, as required by the origination clause).
Nonetheless, the political-question doctrine remains alive
if restrained in the courts. For example, in Nixon v. United
States, supra, 113 S. Ct., 735-740, the Court refused to
review, using the political-question doctrine, a claim by an
impeached federal judge that the Senate had used invalid
procedures in trying him. Under the impeachment clause, Art.
I, Sec. 3, cl. 6, ``[t]he Senate shall have the sole Power to
try all Impeachments.'' Under a rule of the Senate, a special
committee of Senators is appointed to ``receive and report
evidence.'' After hearings, the committee submits a
transcript and summary of its proceedings to the Full Senate,
which then conducts a trial. Nixon argued that the special-
committee procedure denied him a trial before the full
Senate. Applying two standards from the Baker list, the Court
found that the word ``sole'' in the clause was a textual
commitment of authority to the Senate to act alone without
court review; further, the Court found the word ``try'' in
the clause was sufficiently indefinite to cabin the Senate's
discretion, thus using the lack of judicially-manageable
standards factor of Baker. See also id., 738-739 (referring
to other Baker factors).
Superficially, the application of the political-question
doctrine in this context is contrary to INS v. Chadha, supra,
462 U.S., 940-943. That decision denied that a challenge to
the legislative veto presented a political question, and on
the merits the Court went on to hold that for a congressional
measure to have legal effect outside Congress it must be
acted on bicamerally and when passed in identical terms by
both Houses must be presented to the President. The Court
provided a truncated version of the quotation from Clark,
which we quoted above, to reject the argument that the issue
presented a politcal
[[Page S4216]] question. It did not consider the issue of
the effect of attesting signatures by the two congressional
officers, and it could not have done so because only bills
and joint resolutions are enrolled, signed, and presented to
the President. The simple resolution before the Court in
Chadha was not enrolled, signed, and presented to the
President, and neither was the concurrent resolution in
question in two-House legislative vetoes.\8\
Chadha, thus, was a case in which by statute congressional
actions having legal impact outside Congress were provided
for in which, in some instances two-House actions were
authorized, in others one-House actions, and none of the
resolutions or concurrent resolutions was presented to the
President. Chadha is, therefore, of no precedential value in
this context, although it must be considered below.
If, under the political-question doctrine, courts will not
look behind the attestation signatures of the Speaker and the
President of the Senate, then Congress may provide for
``deeming'' the passage of the separated bills without fear
of judicial review. This situation does not mean that
Congress is free of constitutional constraints. Members of
Congress take an oath, identical to the one taken by judges,
to support the Constitution, Art. VI, cl. 3, and Members of
Congress must determine for themselves that a measure upon
which they are voting is constitutional, United States v.
Munoz-Flores, supra, 495 U.S., 390-391, just as the
President must before he signs a bill. But it does mean
that Congress' constitutional determination is not
susceptible to judicial invalidation.
When Congress studies the constitutionality of a proposal,
it performs essentially the same analysis as a court does,
and we now turn to the issue of the merits.
Third, assuming the inapplicability of the political-
question doctrine, when either a court or Congress evaluates
the validity of the deeming mechanism, what should the
decision be?
Beyond question is the proposition that a measure must be
passed in the same form by both Houses before it is presented
to the President for his action; no bill not meeting this
qualification can become law. Clark, supra, 143 U.S. 669-670,
INS v. Chadha, supra, 462 U.S., 943, 944-946, 948-951, 956-
959. And that is precisely the question presented by this
proposal. A bill has passed both Houses in identical terms,
and it is then subdivided into a series of bills excerpted
out of the larger bill by an enrolling clerk acting pursuant
to the rules of the two bodies. If the separately-enrolled
bills are not again presented to both Houses for a vote,
perhaps an en bloc consideration, has the bicameralism
requirement been met.
That each House has the power to make the rules for its own
proceedings is a substantial authority, as Ballin certainly
demonstrates. There, the Constitution required a quorum to do
business, but the Constitution was silent with respect to how
a quorum was to be determined. Members present declined to
answer to a call of the roll to permit a determination that a
quorum was present, and the House of Representatives simply
provided that they would nonetheless be counted.
When the House of Representatives or the Senate determines
its rules of proceeding, the Ballin Court instructed us,
``[i]t may not by its rules ignore constitutional restraints
or violate fundamental rights, and there should be a
reasonable relation between the mode or method of proceeding
established by the rule and the result which is sought to be
attained.'' Ballin, supra, 144 U.S., 5. Within this capacious
concept, what provision of the Constitution would the
``deeming'' provision violate? We certainly cannot point to
any fundamental right that is abridged. The constitutional
constraint that is applicable is the first section of Article
I, which sets a bicameral requirement for the exercise of
lawmaking. But Congress in the proposal does not disregard
the bicameralism mandate. A bill in identical form has passed
both Houses. Then, a functionary, the enrolling clerk,
follows instructions embodied in the rules and separates out
of this bill a series of sections identical to the sections
contained in the larger bill and enrolls these sections into
separate bills; these bills are signed by the Speaker of the
House and the President of the Senate, and these bills are
then presented to the President for his signatures or his
vetoes.
One can readily see that the question is much more narrow
than the mere issue whether Congress can pass a law that has
not cleared both Houses in identical versions. A bill has
passed both Houses in an identical version. The separately
enrolled bills, taken together, are identical to that initial
bill. If Congress should conclude that this two-step process
comports with the constitutional requirement of bicameral
passage of a legislative measure, in what way has a
constitutional restraint been breached?
If the ``deeming'' procedure is invalid, the validity of
the deeming feature of Rule XLIX of the House of
Representatives is highly suspect. Under that Rule, adoption
by the House of Representatives of the conference report on
the concurrent resolution on the budget, or on the concurrent
resolution itself if there is no conference report, is deemed
to be a vote in favor of a joint resolution setting a
statutory limit on the public debt, different than the limit
then in effect, and the joint resolution is engrossed and
transmitted to the Senate. There is no precise equivalency
between the Rule and the proposal; yet, there is sufficient
identify to present the same constitutional question.
In some respects, as we briefly touch on below, the
appropriations committees, and perhaps some legislative
committees, may have to alter how they report bills that are
to be subject to this process, inasmuch as to continue the
present mode of bill drafting would require the enrolling
clerk[s] to exercise too much judgment, too much
discretion,in breaking down the bills, with the result that
to make sense of some sections designated as separate bills,
these bills would not be identical to the bill previously
passed. This reservation is meant only to suggest that some
separate enrollments might present an as-applied
constitutional challenge. We are here concerned with the
facial constitutional questions.
Issues of validity could also be influenced in
determination by two other factors. That is, first, Congress
is not seeking to aggrandize itself or to infringe on the
powers of another branch. Instead, the procedure would be, in
effect, and act of self-abnegation, a giving-up of some
degree of congressional power and influence in order to
enlarge the power and influence of the President and to lodge
in him the burden of deficit reduction. Second, to forestall
the argument that Congress might have invalidly given up too
much power, might have over-balanced presidential power, it
must be observed that these rules are entirely an internal
matter, subject to alternation by simple resolution at any
time in either House. There is no irrevocable conveying away.
Finally, as we suggested above, it may be necessary for the
appropriations committees to revamp the mode of reporting
bills. In addition to the necessity to achieve identify
between the original bill and the separated bills, to leave
to the enrolling clerk[s] too much discretion might violate
the principle, found in some cases, that Congress may not
delegate its legislative power to its Members or its officers
and employees. The legislative power is a collective one to
be exercised by Congress itself and not by delegates.
Metroplitan Washington Airports Auth. v. Citizens for the
Abagtement of Aircraft Noise, 501 U.S. 252, 271-277 (1991).
The details of this revamping remain open for consideration.
In conclusion, we have argued that the deeming procedure
may present a political question unsuited for judicial review
and thus that Congress would not be subject to judicial
review. We have considered, on the other hand, that the
courts may find they are not precluded from exercising
authority to review this proposal. If the proposal is
reviewed by the courts, and even if it is not, we have
presented an argument leading to sustaining the deeming
procedure as not in violation of the principle that a bill,
in order to become law, must be passed in identical versions
by the House of Representatives and the Senate. Because of
the lack of available precedent, we cannot argue that any of
the three versions of the argument is indisputably correct;
indeed, there are questions about all three. In the end,
Congress must exercise a constitutional judgment when
deciding on passage of the proposal.

Johnny H. Killian,

Senior Specialist,
American Constitutional Law.

footnotes
\1\In an older memorandum Killian, Constitutionality of
Empowering Item Veto by Legislation, CRS, Jan 4, 1984, and as
shorter follow-up memorandum, Killian, Constitutional
Questions Raised by S. 43 in Establishing Item Veto, Jan, 15,
1985, reprinted in Line Item Veto, Hearings before the Senate
Committee on Rules and Administration, 95th Cong., 1st Sess.
(1985), 10-20, we discussed at some length the question of
the line-item veto and whether it could be conferred on the
President by statute, concluding that only through a
separate-enrollment device would such a conferral be valid
constitutionally. In those memoranda, we raised and discussed
but were unable to decide the questions now being treated.
The longer memorandum also appears, in essentially the same
form, in Item Veto: State Experience and Its Application to
the Federal Situation, House Committee on Rules, 99th Cong.,
2d Sess. (Comm. Pr. 1986), 164.
\2\E.g., Rappaport, The President's Veto and the
Constitution, 87 Nw., U. L. Rev. 735 (1983), which also cites
a considerable number of articles on both sides of the issue.
\3\Constitution, Jefferson's Manual and Rules of the House of
Representatives, H. Doc. No. 102-105, 102d Cong., 2d sess.
(1993), Sec. Sec. 573-574; 7 L. Deschler's Precedents of the
United States House of Representatives, H. Doc. No. 94-661,
94th Cong., 2d Sess. (1977), ch. 24, Sec. 14.
4Compare Missouri Pac. Ry. Co. v. Kansas, 248 U.S. 276
(1919), in which, although it found justiciable an issue
regarding a congressional rule, the Court deferred much more
to the legislative construction than it did in Smith.
5See United States ex rel. Joseph v. Cannon, 642 F.2d
1373 (D.C.Cir. 1981) (dismissing suit under False Claims Act
based on use of senatorial employees in political campaigns
on the ground that Senate had developed no standards by which
court could determine whether Act had been violated,
reserving question whether it could enforce Senate rules even
if consensus had been reached), cert. den. 455 U.S. 999
(1982); Ray v. Proxmire, 581 F.2d 998, 1001 (D.C.Cir.)
(finding a Senate rule created no private cause of action and
reserving whether a Senate rule ever could), cert. den 439
U.S. 933 (1978).
6The Court was responding to a concurrence by Justice
Scalia that adopted a broad reading of Clark, in which he
would have declined to reach the merits of an origination
clause challenge to a law and would have instead accepted the
attesting signatures of the Speaker of the House and the
President of the Senate as showing that the bill, bearing a
House of Representatives designation, had in fact originated
in the House. Id., 408. The origination clause is Art. I,
Sec. 7, cl. 1.
7``In Coleman v. Miller, [307 U.S. 433 (1939)], this
Court held that the questions of how long a proposed
amendment to the Federal Constitution remained open to
ratification, and what effect a prior rejection had on a
subsequent ratification, were committed to congressional
resolution and involved criteria of decision that necessarily
escaped the judicial
[[Page S4217]] grasp. Similar considerations apply to the
enacting process: ``The respect due to coequal and
independent departments,'' and the need for finality and
certainty about the status of a statute contribute to
judicial reluctance to inquire whether, as passed, it
complied with all requisite formalities. [Citing Clark,
supra, 143 U.S., 672, 676-677; and also Leser v. Garnett, 258
U.S. 130, 137 [1922] (applying Clark to refuse to look behind
certifications by two States that they had ratified a
constitutional amendment; official notice ``is conclusive
upon the courts)].
8See Consumers Union v. FTC, 691 U.S. 575 (D.C.Cir.
1982), affd. sub nom. Process Gas Consumers Group v. Consumer
Energy Council, 463 U.S. 1216 (1983).

Mr. McCAIN. Mr. President, I will read the concluding paragraph and
urge my colleagues to read the entire opinion. Mr. Killian obviously is
a well-known and well-respected specialist on American constitutional
law. He states in the final paragraph:

In conclusion, we have argued that the deeming procedure
may present a political question unsuited for judicial review
and thus that Congress would not be subject to judicial
review. We have considered, on the other hand, that the
courts may find they are not precluded from exercising
authority to review this proposal. If the proposal is
reviewed by the courts, and even if it is not, we have
presented an argument leading to sustaining the deeming
procedure as not in violation of the principle that a bill,
in order to become law, must be passed in identical versions
by the House of Representatives and the Senate. Because of
the lack of available precedent, we cannot argue that any of
the three versions of the argument is indisputably correct;
indeed, there are questions about all three. In the end,
Congress must exercise a constitutional judgment when
deciding on passage of the proposal.

I want to repeat, again:

In the end, Congress must exercise a constitutional
judgment when deciding on passage of the proposal.

There will be views expressed by my colleagues that, indeed, there is
a question about constitutionality, and they may argue that that is a
reason for opposing this legislation. I will respect their views. I,
however, will not agree.
Mr. President, in this morning's Washington Times, there is an
article by Mr. Stephen Moore, who is the director of fiscal policy
studies at the Cato Institute. As we all know, the Cato Institute is a
well-regarded organization and one that is dedicated to many causes,
including fiscal responsibility.
Mr. President, I will read some parts of this article because I think
it is important, and I ask unanimous consent that this article be
printed in the Record.
There being no objection, the article was ordered to be printed in
the Record, as follows:

[From the Washington Times, Mar. 21, 1995]

Sharpening the Budget Scissors

(By Stephen Moore)

This week the Senate begins debate on the line-item veto
for the president, Taxpayers have been demanding this act of
fiscal sanity for at least 15 years.
Now, there they go again, Just when it appeared that the
line-item veto would become a reality, several moderate
Senate Republicans are lining up with liberal Democrats to
submarine the effort by insisting upon a line-item veto with
a dull blade. Yet the experience of the states--where 43
governors have line-item veto authority--indicates that
weakened versions of this budget cutting instrument are
almost the equivalent of no-item veto at all. The GOP needs
to band together to block this fraudulent alternative and
rally behind the toughest measure possible--the Coats-McCain
bill.
Once during the last year of the Reagan administration I
was asked to testify on the line-item veto before the House
Judiciary Committee. It was a miserable experience. One
Democrat after another savaged the idea as nothing more than
a blatant partisan power-grab. There message was
unmistakable: Reaganites are trying to pull an end run around
the Democrat-controlled Congress because they can't win at
the polls.
In hindsight, it is understandable why House Democrats
thought that way. Republicans seemed to have a permanent
electoral padlock on the White House, while the notion of a
GOP Congress seemed as improbable as the Speaker of the House
and the chairman of the Ways and Means Committee being
ejected from office in the same year. How ironic that the
first president to snip spending with the new veto scissors
may well be Democrat Bill Clinton, and he will be empowered
to do so by a Republican-controlled Congress. So much for the
partisan power-grab argument.
Now opponents have shifted gears. Today, we hear two new
objections to the line-item veto--both of which are also
wrong. The first argument is that the line-item veto would
involve a huge and unprecedented power shift in the direction
of the White House. Powerful Senate appropriators Robert Byrd
and Mark Hatfield are endlessly preaching that message.
But history disproves it. The line-item veto is only a
partial restoration of the rightful budgetary powers of the
president, which were stripped from the executive branch by
the 1974 Budget Act. That act took away the president's right
to impound funds--a power that was exercised routinely by
every president from Thomas Jefferson through Richard Nixon.
Jefferson first employed the power to refuse to spend
appropriated funds in 1801 when he impounded $50,000 for Navy
gunboats.
The Founders believed that the president, as the head of
the executive branch and therefore responsible for executing
the laws and spending taxpayer funds judiciously, had
unilateral authority not to spend money appropriated by
Congress if that spending was unnecessary.
Impoundment was an extremely powerful White House authority
that was exercised often for nearly 200 years. Presidents
Roosevelt, Kennedy, Johnson and Nixon used the impoundment
power rountinely--and in some years used it to cut federal
appropriations by more than 5 percent. In one year, Richard
Nixon impounded more than 7 percent of domestic
appropriations.
In 1974 Congress stripped the president of his lawful
impoundment powers and instead gave him two very weak
substitutes: the deferral and rescission authorities. But
rescissions require Congress affirmatively to approve a
presidential request not to spend money. Most rescissions are
simply ignored by Congress and never even voted on. Thus
through congressional in action, they are killed. Twenty-six
billion dollars of Ronald Reagan's rescissions were slain in
that fashion.
The second criticism of the line-item veto is that it won't
affect the level of spending or the debt. To test that
supposition, the Cato Institute recently surveyed 118
governors and former governors about what budget process
measures Washington should adopt to help balance the budget.
Sixty-seven of the respondents were Republicans, 50 were
Democrats, and one was an independent. Since 43 states have
the line-item veto, governors are in the best position to
assess its value. Some governors, such as Tommy Thompson of
Wisconsin, have relied heavily on the line-item veto to cut
expenditures and balance the budget.
The major findings of our survey were as follows:
Sixty-nine percent of the governors described the line-item
veto as ``a very useful tool'' in helping balance the state
budget.
Ninety-two percent of the governors believe that ``a line-
item veto for the president would help restrain federal
spending.''
Eighty-eight percent of the Democratic governors believed
the line-item veto would be useful.
Then we asked the governors why they supported or opposed
the line-item veto. Here are some of the more interesting
responses we received:
Hugh L. Carey, the former Democratic governor of New York,
said, ``I support the line-item veto because it is an
executive branch function to identify budget excesses and
wasteful items. It is an antidote for pork.''
Massachusetts governor William Weld wrote, ``Legislators
love to be loved, so they love to spend money. Line-item veto
is essential to enable the executive to hold down spending.''
Ronald Reagan said, ``When I was governor of California,
the governor had the line-item veto, and so you could veto
parts of the spending in a bill. The president can't do that.
I think, frankly--of course, I'm prejudiced--government would
be far better off if the president had the right of line-item
veto.''
Mike O'Callaghan, the former governor of Nevada, and a
Democrat, was the most concise: ``The line-item veto is a
tremendous tool for saving money.''
Critics are right when they complain that the line-item
veto won't balance the budget. But a useful way to determine
potential budget savings from the line-item veto is to look
at rescissions that have been ignored by Congress in recent
years. If those had been approved, savings would have been $5
billion to $10 billion a year in less shark research, lower
sugar subsidies, and fewer grants for obscene art.
And for those who still doubt the virtue of the line-item
veto, perhaps the most compelling case for this surgical tool
is made by Messrs. Byrd and Hatfield. Their violent
opposition should provoke a deep appreciation for the value
of these new fiscal scissors.

Mr. McCAIN. Mr. President, Mr. Moore's article begins:

This week the Senate begins debate on the line-item veto
for the President. Taxpayers have been demanding this act of
fiscal sanity for at least 15 years.
Now, there they go again. Just when it appeared that the
line-item veto would become a reality, several moderate
Senate Republicans are lining up with liberal Democrats to
submarine the effort by insisting upon a line-item veto with
a dull blade.

Mr. Moore wrote this article before we, all 54 Republicans, agreed to
vote for cloture to cut off debate on this issue.

Yet the experience of the States--where 43 Governors have
line-item veto authority--indicates that weakened versions of
this budget-cutting instrument are almost the equivalent of
no-item veto at all. The GOP needs to band together to block
this fraudulent alternative and rally behind the toughest
measure possible--the Coats-McCain bill.

He goes on to say:

[[Page S4218]]

Now opponents have shifted gears. Today, we hear two new
objections to the line-item veto--both of which are also
wrong. The first argument is that the line-item veto would
involve a huge and unprecedented power shift in the direction
of the White House. Powerful Senate appropriators . . . are
endlessly preaching that message.
But history disproves it. The line-item veto is only a
partial restoration of the rightful budgetary powers of the
President, which were stripped from the executive branch by
the 1974 Budget Act. That act took away the President's right
to impound funds--a power that was exercised routinely by
every President from Thomas Jefferson through Richard Nixon.
Jefferson first employed the power to refuse to spend
appropriated funds in 1801 when he impounded $50,000 for Navy
gunboats.

Mr. President, time after time on this floor, and I am sure during
the course of this debate I will point out again, it is not a
coincidence that up until 1974, revenues and expenditures on the part
of the Federal Government basically were in sync. There were times of
war when we ran up huge deficits, but after those emergencies subsided,
we again brought the budget into balance. It was in 1974 when the two
began to diverge to an incredible degree.
I want to point out again, and it is not coincidental, in 1974, the
entire annual deficit for that year was $6 billion. The entire national
debt was $483 billion. Now in 1994, the annual deficit is $203 billion,
about half of what the overall accumulated debt was, and the estimate
of the total debt between 1974 and 1996 has risen from $483 billion to
$5.299 trillion.
There is a direct correlation between the passage of the Budget
Impoundment Act of 1974 and the exploding deficit and annual deficit
and debt.

The Founders believed that the President, as the head of
the executive branch and therefore responsible for executing
laws and spending taxpayer funds judiciously, had unilateral
authority not to spend money appropriated by Congress if that
spending was unnecessary.
Impoundment was an extremely powerful White House authority
that was exercised often for nearly 200 years. Presidents
Roosevelt, Kennedy, Johnson, and Nixon used the impoundment
power routinely--and in some cases used it to cut Federal
appropriations by more than 5 percent. In 1 year, Richard
Nixon impounded more than 7 percent of domestic
appropriations.
In 1974, Congress stripped the President of his lawful
impoundment powers and instead gave him two very weak
substitutes: the deferral and rescission authorities. But
rescissions require Congress affirmatively to approve a
Presidential request not to spend money. Most rescissions are
simply ignored by Congress and never even voted on. Thus
through congressional inaction, they are killed. Twenty-six
billion dollars of Ronald Reagan's rescissions were slain in
that fashion.
The second criticism of the line-item veto is that it won't
affect the level of spending or the debt. To test that
supposition, the Cato Institute recently surveyed 118
Governors and former Governors about what budget process
measures Washington should adopt to help balance the budget:
27 of the respondents were Republicans, 50 were Democrats,
and 1 was an Independent. Since 43 States have the line-item
veto, Governors are in the best position to assess its value.
Some Governors, such as Tommy Thompson of Wisconsin, have
relied heavily on the line-item veto to cut expenditures and
balance the budget.
The major findings of our survey were as follows:
Sixty-nine percent of the Governors described the line-item
veto as ``a very useful tool'' in helping balance the State
budget.
Ninety-two percent of the Governors believed that ``a line-
item veto for the President would help restrain Federal
spending.''
Eighty-eight percent of the Democratic Governors believed
the line-item veto would be useful.
Then we asked the Governors why they supported or opposed
the line-item veto.

And some of the responses were very interesting.
I will not go through all of those answers, Mr. President except to
say the article concludes by saying:

Critics are right when they complain that the line-item
veto won't balance the budget. But a useful way to determine
potential budget savings from the line-item veto is to look
at rescissions that have been ignored by Congress in recent
years. If those had been approved, savings would have been $5
billion to $10 billion a year in less shark research, lower
sugar subsidies, and fewer grants for obscene art.
And for those who still doubt the virtue of the line-item
veto, perhaps the most compelling case for this surgical tool
is made by [others]. Their violent opposition should provoke
a deep appreciation of the value of these new fiscal
scissors.

Mr. President, I wish to address for a moment the issue of the
constitutionality of several issues that are raised here, and there are
a number of them. I will save some of them, but I wish to talk about
the aspect of the constitutional objection, the objection that it is
unconstitutional because it would change the Constitution, specifically
the veto power, by act of Congress. The response is as follows:

Article I, Section 5 of the Constitution permits this
procedure. Nothing in article I, section 7 is violated by
this procedure. Under this proposal, all bills must be
presented to the President. He may sign or veto all bills. He
must return vetoed bills with his objections. Congress may
override any veto with a two-thirds majority of each House.
Under article I, section 5, Congress possesses this power
to define a bill. Congress certainly believes that it
possesses this power since it and it alone has been doing so
since the first bill was presented to the first President in
the first Congress. If this construction of article I,
section 5 is correct, the definition of a bill is a political
question and not justiciable. ``Prominent on the surface of
any case held to involve a political question is found a
textually demonstrable Constitutional commitment of the issue
to a coordinated political depart.'' Baker v. Carr, 369 U.S.
186 (1962). ``A textually demonstrable constitutional
commitment'' of the issue to the legislature is found in
``Each house may determine the Rules of its Proceedings.'' If
Congress may define as a bill a package of distinct programs
and unrelated items, it can define distinct programs and
unrelated items to be separate bills. Either Congress has the
right to define a bill or it does not. Either this proposal
is constitutional or the recent practice of Congress in
forming omnibus bills containing unrelated programs and
nongermane items is constitutionally challengeable. If the
latter, the President would be well advised to bring such
suit against the next omnibus bill.

Mr. President, there have been about 3 days of debate now. We are
going into our 4th day. I have talked a great deal. The other side of
the aisle has not chosen to talk too much about it. I urge my
colleagues to take note of the fact that we are now open for
amendments. If there are amendments, I urge my colleagues on both sides
of the aisle to bring forth those amendments so they can be debated and
voted on. And as I said, again, it is the intention on this side of the
aisle expressed by the majority leader to dispose of this issue this
week by means of cloture votes. At the same time, as to any substantive
amendments and proposals, I believe there is sufficient time for them
to be considered and voted on.
I note the presence of the Senator from Nebraska in the Chamber.
Mr. President, I yield the floor.
Mr. EXON addressed the Chair.
The PRESIDING OFFICER. The Senator from Nebraska is recognized.
Mr. EXON. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. McCAIN. Mr. President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Inhofe). Without objection, it is so
ordered.
Mr. McCAIN. Mr. President, I yield to the Senator from Tennessee.
The PRESIDING OFFICER. The Senator from Tennessee.
Mr. THOMPSON. Mr. President, first of all I want to thank the Senator
from Arizona, along with the Senator from Indiana, who has shown such
leadership in this area for so many years. I welcome the opportunity to
assist in the effort.
Mr. President, the debate is now joined on the line-item veto and we
are hearing the arguments for and against. It has been joined before.
It has been discussed many times in this body. Hopefully, this time it
will pass. I think the time has come. The American people demand it and
the country needs it.
It has been said that the line-item veto or enhanced rescissions will
not in and of itself balance the budget. And that is certainly true. It
will require a President who is willing to use the tool that is given
to him, and use it firmly. And, I might add, it will also require a
President who will not use it simply to reprioritize his own programs
over those programs of the Congress.
But while we are debating the likely effectiveness of this issue, I
think it is important that we remember why we are engaging in this
debate at all, why the line-item veto is brought up again year after
year in this body, the reason for its overwhelming popularity among
[[Page S4219]] the American people and even the reason that for many
people in this country it has now become a virtual battle cry.
Mr. President, the short answer is that it is because we as a people
are struggling mightily in this country, some might even say
desperately, for ways to restrain Congress from irresponsible spending,
for ways to stop Congress from continuing down the road of fiscal
irresponsibility and the eventual bankruptcy of the United States of
America.
Congress, in times past, has shown that it cannot restrain itself. We
continue to look at $200 billion deficits every year as far as the eye
can see. We have debated in this body, over a period of 60 years or
more, the need for a balanced budget. We have reached almost unanimous
consensus, even in the debate over the balanced budget amendment, that,
yes, indeed, we must move toward a balanced budget, we must exercise
some fiscal restraint. Year after year over that period of time, we
have passed resolutions calling for a balanced budget. We have required
the President to submit budgets to Congress that were in balance. We
even passed a law in 1979 making it the law of this land that the
budget be balanced by 1981. And, of course, when 1981 rolled around,
another substantial deficit. Even our own laws were ignored by us.
In 1981, Congress was concerned, the entire Nation was concerned, as
the debate turned toward the fact that we were approaching a $1
trillion debt in this country.
Those were dire circumstances.

Now we are approaching a $5 trillion debt. Not only have we failed
legislatively, Mr. President, but we have proven that we cannot
restrain ourselves by means of a constitutional amendment. The balanced
budget amendment failed in this body, even though it enjoyed the
overwhelming support of the American people.
Appeals to self-interest and fear and shortsightedness carried the
day once again in this body. Social Security, the last refuge of those
in Congress who panic at the very thought of putting the lid on the
pork barrel, was trotted out once again, even though we all know that
the greatest threat and the only threat to Social Security is to
continue down the road of deficit spending, is to do nothing and
maintain the pattern that we have maintained in this Congress for so
many years, because we all know within a few years, it is going into
the red and we must have the farsightedness to address that now.
This is part of what we are about today, Mr. President. Now, having
failed legislatively, having failed to adopt a constitutional
amendment, the American people are saying that we should at least give
the President of the United States the opportunity to have the most
egregious, the most unnecessary, and the most wasteful spending
measures made a little bit more difficult--not to make them
impossible--to make them a little bit more difficult by requiring
Congress to come up with a two-thirds majority vote if they want to
pass it. I suggest to you that this is, indeed, a modest proposal in
light of the dire economic circumstances that we find ourselves in as a
nation.
And so for the second time in less than a month, we come together on
the floor of the Senate to debate whether or not we have the courage to
take the first step toward economic responsibility and recovery or
whether, once again, we are going to fail ourselves, fail our
constituents and fail the next generation. We simply must do better.
For 33 of the last 34 years, the Federal Government has run deficits
and our elected officials have not had the will to change that course.
Our Federal Government has run a deficit every year for the past 25
years--an entire generation--and we have not taken steps to break this
insidious, this persistent pattern. It took our Nation more than 205
years to reach a $1 trillion national debt, but it only took another 11
years to quadruple it. And still we lack the will.
Now, for the next 5 years at least, the President has proposed annual
budgets in excess of $200 billion a year. This means for the next 5
years, the Nation will accumulate another trillion dollars of debt,
debt that is stifling investment, cutting into productivity, debt that
has changed us from a creditor nation to a debtor nation.
Our economic growth has been anemic and one day surely, as night
follows day, if we continue this course of action, America will decline
as a great power. The first warning shot of that decline perhaps has
already been fired.
I am sure that we have all noted with concern the precipitous drop in
the dollar against the German mark and the Japanese yen since the
failure of Congress to pass the balanced budget amendment. I submit to
you that this is no accident. For decades, the U.S. dollar has been the
standard against which the value of all other currencies in this world
are measured. For many nations, it has served as a reserve currency. As
such, the dollar is used as a storehouse of value in exchange for goods
and services the world over. Investors buy the dollar because the U.S.
economy has had a long reputation for reliability and for stability.
Important commodities, such as oil, are priced in dollars. Any country
that wishes to import oil must pay in dollars. We have been fortunate
in this respect because of the high value placed upon the dollar in
making it attractive as an investment vehicle and, thus, giving us our
ability to, in large part, finance our national debt with foreign
dollars.
When our debt was a small percentage of the gross national product,
we could afford deficit spending and the inflation that it produced,
but now our mounting deficits scare away capital and the value of the
dollar. My distinguished colleague from Colorado, Senator Brown,
demonstrated recently in stark relief before the Senate Banking
Committee the fall of the value of the dollar against the yen and the
mark when the President announced the Mexican bailout. But more
importantly, he showed the clear and unmistakable drop in the dollar's
value when the balanced budget amendment was defeated in the Senate of
the United States. That drop occurred for only one reason--one reason
and one reason only --and that is that the world's investors lost faith
in the political leadership of this country to act as wise stewards of
America's Treasury.
That loss of confidence, manifested by the recent drop in the dollar,
will have an inflationary impact on our economy. Goods will become more
expensive as the price of imported components rise. Americans traveling
abroad will find it to be increasingly expensive. Finally, the drop in
the dollar's value will likely cause interest rates to rise and further
exacerbate our budget deficit.
We are deluding ourselves if we think that simply because of our
great wealth and natural resources that we are immune from economic
loss and that our reputation for economic stability and growth will
make us immune. We cannot continue to draw on this much foreign
investment to finance our deficit indefinitely, and we only have to
look to our neighbors to the south to give us some indication of what
can happen.
Mr. President, we are all aware that we have a system of checks and
balances in this country, a system of separation of powers, and that
there is a constant pulling and tugging between the executive and the
legislative branches of Government for power and authority, and
sometimes in our history, even ascendancy. This is right and proper
because this was one of the most fundamental parts of the framework
that our Founding Fathers put together in the operation of our
Government.
Some say that the line-item veto would give too much authority to the
President and take that system out of balance in favor of the
President. However, I think that in viewing history that we must
conclude on the contrary that the current legislation before this body
would bring things more into balance.
In fact, the 1989 report of the National Economic Commission has
suggested that ``the balance of power on budget issues has swung too
far from the executive toward the legislative branch.''
Virtually all Presidents have impounded funds as a routine matter of
their executive discretion to accomplish what they believe is
efficiency of management and Government. In the 1950's and 1960's,
disputes arose over the impoundment authority--in fact, disputes have
gone back much further
[[Page S4220]] than that--but during that particular period of time in
our history, which resulted from the refusal of several Presidents to
fund certain weapons systems, for example, to the full extent
authorized by Congress. President Johnson made broad use of impoundment
authority during his administration by deferring billions of dollars on
spending in an effort to restrain inflationary pressures on the economy
during that period of time.
Conflict over the use of impoundment has greatly increased, of
course, during the Nixon administration. A moratorium was placed on
many things that are currently on the table again and being debated and
discussed. Ironically enough, subsidized housing programs, community
development activities, certain farm programs--all were either
suspended or eliminated altogether during that period of time by
President Nixon.
However, by 1974, the Congress of the United States found not only a
weakened President Nixon because of Watergate but, because of that same
scandal, a weakened Presidency, and employing a vacuum, Congress moved
in and asserted itself and responded by passing the 1974 Budget Control
and Impoundment Act, which greatly diminished the President's authority
to impound funds.
So while this may be only one of many reasons--and it certainly is--I
think it not inappropriate to point out that since that time, we have
not had a balanced budget in this country. Since the President's
rescission now does not go through unless Congress actually votes
within 45 days to support him, few rescissions actually occur anymore.
According to the General Accounting Office, in the past 20 years
since this Budget Act was passed, there have been 1,084 Presidential
rescissions reflecting a total of $72.8 billion. Congress has agreed
with only 399, or about 23 billion dollars' worth.
That is why we are here today to consider this legislation, to
finally put some teeth into the rescission process. After 20 years in
which we have managed to cut only about $1 billion a year, time for
amending the 1974 act, I submit, is long overdue. We must finally
provide some recourse for the Nation's Chief Executive to reduce
spending that is actually sinking America $200 billion more in debt.
This legislation obviously is not a cure-all or a panacea, not for
everything that ails us. In reality, it is perhaps little more than a
few sandbags in the dike. But it is a beginning. It is a movement by
Congress in the right direction for a change. It is a step forward.
Mr. President, the current legislation is a result of many years of
hard work by many people. I have already recognized Senator McCain,
Senator Coats, Senator Domenici, and others who have worked on this so
hard--Senator Stevens on our side and several from the other side of
the aisle.
I think what we now have is a true bipartisan piece of legislation.
It represents already much compromise and much accommodation to the
legitimate concerns that have been expressed by Members on both sides
of the aisle. Now I think it represents a real opportunity to finally
inject some discipline into the budgetary process. It has been needed
for a long time. It does some things, from my understanding and review
of the history, which have not been done before, which have not been
submitted at this stage of the process before. For instance, it covers
any increase in any budget item. There has been criticism in times past
that proposals have only covered discretionary spending. And as we all
know, discretionary spending is becoming a smaller part of the overall
budget--I think now down to around 16 percent. This proposal would also
cover mandatory spending. As far as the future is concerned, it also
reaches targeted tax benefits that have the practical effect of giving
tax breaks to limited groups of taxpayers.
Now, this is an opportunity that we cannot afford to miss. Following
on the heels of the agonizing and divisive defeat of the balanced
budget amendment, the 104th Congress needs to recover and go on down
the road, Mr. President. There is much that this Congress can
accomplish if it does not dissolve into shortsightedness and partisan
bickering. This is a time and a place and a legislative proposal where
we can come together and put that to an end. If it is true that every
journey starts with one step, then let this measure before us serve as
that first step toward real budgetary reform.
I yield the floor.
Mr. COATS. Mr. President, I thank the Senator from Tennessee for his
statement in support of the line-item veto. He has only been here a few
months, but already he has been a powerful voice for change in this
institution. It is change which I believe the taxpayers and
constituents that we represent called for in the November elections.
They want a change in the way we do business. They want a change in the
way Congress represents them, a change in the mechanics. They are tired
of hearing promises delivered from this floor over and over and over
again that, yes, give us another chance; we will do better next time.
What we are seeking to do with this line-item veto proposal is change
fundamentally the way we make decisions and the way that we spend
taxpayers' dollars. The effort that Senator McCain and I and others
have been working on for so long appears to be reaching a point where
we will be making a final decision as to whether or not we will bring
that fundamental change to this body.
The substitute which Senator Dole offered last evening on this floor
was the result of days and weeks of some very tough negotiations
involving Members who have had a history of involvement with the
appropriations process, with the tax writing process, with the
entitlements process, with the spending process of this Congress.
We took an idea, a concept that has been discussed, as I indicated on
this floor yesterday, for nearly a century, that is enjoyed by 43
Governors, that has been called for, asked for, requested by, with one
exception, every President of this entire century.
The request is simply to allow the President a check and balance
against a practice that Congress has been engaging in which allows
Members of the legislative branch to attach to major pieces of
legislation, most of which they are pretty confident the President has
little or no choice of signing, specifically targeted items,
specifically designated items that go to provide a benefit for a
particular class of individuals, small group of individuals, which
cannot be defined in any sense in the national interest.
It may have been something that was generally accepted and overlooked
in the past as we were running budgets which were roughly in balance.
It was seen as a way of, I guess, making the process work here: You
support this for me; I will support that for you, or I need to take
this back home to let the constituents know that I am looking out
specifically for them.
At a time when our annual deficits are running $200 billion or more,
at a time when our national debt is reaching staggering proportions,
nearly $5 trillion, we can no longer afford to practice business as
usual. The vote which will eventually occur on this item is a vote for
one of two courses. One course is business as usual. The other is for a
change in the way business is done, for a discarding of the status quo.
For my colleagues who are in the process now of studying the final
proposal that was put forth and is the result of several weeks of
negotiations, let me just explain that it is not all that complicated.
It is only five pages and one line of language which essentially takes
the line-item veto concept--that is, the two-thirds vote that is
necessary to override a decision of the President of the United States
which will be granted to him, the authority of which will be granted to
him to line-item out specific spending requests or items that increase
spending, send them back to the Congress, and if the Congress wants to
reinstate those, it will require a two-thirds vote.
That is the core concept of line-item veto--veto, the process of
overriding a decision, that process which involves a two-thirds vote,
and it is embodied in the Constitution of the United States. We are
incorporating that into this process. We are then applying that
principle of two-thirds to the various functions of spending that take
place as we write legislation.
Originally, the McCain-Coats proposal only addressed appropriated
[[Page S4221]] items, items that came out of the Appropriations
Committee that affected discretionary spending. As Senator Stevens has
correctly pointed out, we were targeting then the line-item veto
procedure to too narrow a slice of spending. We were applying it to an
area under the control of the Appropriations Committee, which
admittedly carried what most would describe as pork-barrel, pork-
spending items, but which only went to a portion of our entire budget.
Senator Stevens suggested that that ought to be expanded, and we looked
for ways to do that. Interestingly enough, we reached back into a
process that has been debated at length on this Senate floor. It goes
back a decade or more.
We reached back to a process which has been suggested by prominent
members of the Democrat Party, led by committee chairmen who have
eloquently debated the rationale behind the need for the process called
separate enrollment but which also can be described as line-item veto,
and we used that as the basis for putting together this new legislation
that was introduced yesterday evening by the majority leader, Senator
Dole. We took that process and we applied it to a broader range of
spending, so now not only will appropriations bills be subjected to
line-item veto, but we will also subject other portions of the budget
to line-item veto. We have included direct expenditures, expenditures
of dollars, that occur outside the appropriations bills, including the
appropriations bill process but also go to authorizations which provide
for new spending.
We have expanded it to new entitlements. We are not changing the law
in terms of benefits that are currently available under the law to new
enrollees or to current enrollees within the entitlement programs, but
we are saying, if there is an attempt to expand that program as it
currently exists into new spending, then it will be subjected to the
President's new authority, should this bill pass, new authority to
line-item veto that.
Again, Congress could come back and with a two-thirds vote override
the President's decision, but obviously it will be much harder for
Congress to enact new spending. And we have expanded this to include
what we call targeted tax benefits. There is tax pork as well as
spending pork. Often what is described as the pork barrel involves not
just appropriated items but tax breaks targeted for specific groups of
people, specific individuals, a specific business entity within a
broader group, so it is directed to help a particular targeted group,
not the group as a whole.
This would not allow the President to veto a broad tax deduction on
the books, or a broad tax provision such as mortgage interest
deductions, such as real estate tax deduction, such as some of the
deductions that Americans now enjoy under the Tax Code. But it would go
to those specifically targeted items that often are added somewhere
along the line in the tax-writing process and go, not to benefit a
large group, but go to benefit a very specific targeted interest.
So the bill has been expanded considerably. It has a much broader
scope than it had before. It applies a discipline to the process that
is currently not available. It has a provision under the tax provision
and has a provision available to Senators that, if they do not agree
with the way in which a bill is brought forward and enrolled and think
there is something that has been excluded, they can raise a point of
order on this floor. Under that point of order they can subject that
particular item to the separate enrollment procedures which would allow
it then to be subject to the line-item veto of the President.
So, if a Senator does not believe that new entitlement spending or
targeted tax benefits have been fully identified in a reported tax bill
or an appropriations bill, the Dole amendment provides a means by which
those Senators can challenge the bill. If the Senator's point of order
is sustained, the relevant committee would then have to flush out or
pull out that particular provision and enroll it separately before the
bill could be in order on the floor.
So we have addressed that question that has been raised about: What
if the bill slips something in but does not separately enroll it and a
Senator believes it should be separately enrolled? We provided a
process for that.
Finally, let me state, because the questions have been raised: We are
not exactly sure how all this will work and we are a little bit nervous
about the authority we are giving to the President; should we not test
the idea? I suggest the idea has been tested. It has been tested for a
century by our Governors in working with our legislatures. But in order
to accommodate that concern, we have put a sunset in this bill so
Congress can revisit this new authority, can examine it on the basis of
how it applies, and if it wants can modify it or, of course, even
repeal it. So it does contain a sunset. It will provide a test period
to see how well it works.
Madam President, I suggest we will never know how fully effective the
line-item veto power to the President will be, in terms of
accomplishing real spending cuts, because it will fundamentally change
the way we think and behave. That fundamental change will mean that
items which would have been attached to appropriations bills or would
have been incorporated in the tax bills will not be, because of the
fear that they will be exposed to public scrutiny before it finally
becomes law.
It is shining the light of public scrutiny on our debate, on how we
write our legislation, and it is requiring a separate vote by Members
in support of or in opposition to a particularly targeted item that
does not benefit the national interest or the group as a whole but only
goes to benefit a particular individual or a particular entity. It is
that process which will, I believe, prevent most of what has taken
place in the past that we find so egregious. So we will never be able
to total up the amount of money that we have saved for our constituents
and for the taxpayer because the line-item veto will have accomplished
its purpose--its purpose being to prevent this kind of activity from
taking place in the first place; to prevent the kind of embarrassment
that we go through on an annual basis when we discover the items that
have been slipped into the appropriations bills, slipped into
legislation, slipped into tax bills at the last minute in conference,
behind closed doors, late at night, and then presented in a massive
bill with a limited time period for debate in the House of
Representatives and an urgency because of the end of the session or
whatever might occur--the urgency to get the legislation on the
President's desk and signed.
The President then looks at this massive bill and says: Ninety or
ninety-five percent of what is in here is what is beneficial to this
country, what I want to support. But you are forcing me--as President
Truman said, ``blackmailing me''--into either accepting the whole bill
with the egregious provisions or rejecting the whole bill. And the
emergency we are under, the timeframe we are under, requires that I
have little choice except to not reject the whole bill.
That is what we are offering here today. I trust my colleagues will
look at it carefully. I hope we can gain their support. It has the
support of the sponsors of the bill and the vast majority of
Republicans. It has support, I believe, of Democrats who have been
prominent in helping us advance this concept. And we look forward to
advancing it, hopefully, this week, and putting it on the President's
desk soon--something we should have done a long, long time ago.
Madam President, with that I yield the floor.
The PRESIDING OFFICER. The Senator from New Jersey.
Mr. BRADLEY. Madam President, I offer my congratulations to the
distinguished Senator from Indiana on the bill that has come before the
Senate, the new line-item veto bill. Many of the provisions in the
line-item veto bill that is before the Senate are provisions that were
embodied in the original bill that I introduced and the distinguished
Senator from Indiana cosponsored. The Dole bill does include a sunset
provision, as I understand it. After 5 years we will be able to see
whether this bill actually does tip the balance between the executive
and the legislative branches of Government. It, as I understand it,
also includes separate enrollment, which is the way the bill deals with
the constitutional question in addition to the sunset.
The bill, as I understand it, also includes tax expenditures and does
so in a way that is broader than the original
[[Page S4222]] House bill. As I understand it, it essentially says
that the President can veto tax expenditures that have the practical
effect of benefiting a particular taxpayer or limited class of
taxpayers when compared with other similarly situated taxpayers. While
there is some ambiguity, I take this provision to have a broad
interpretation.
I might offer an amendment during the course of the debate to clarify
that this provision should be interpreted broadly, or I might through
the course of the debate, in hearing what other Senators say about it
and my own interpretation of the amendment, decide not to offer such an
amendment. But I do think that it is a step far in the right direction.
This is really an opportunity to bring tax expenditures into the line-
item veto in a significant way, and allow the President of the United
States not only to veto those pork projects that are in the
appropriations process but also to look at every tax bill that often is
dotted with special interest provisions or attempts to expand special
interest provisions that are already in the Code and strike those lines
with a line-item veto.
So, Madam President, when we have the cloture vote on Wednesday, I
intend to vote for cloture. And I hope that we will be able to dispense
with this bill by the end of this week and move on to other matters. I
think this is an important measure.
I look forward to working with the distinguished Senator from Indiana
who has been a good colleague throughout this process. I compliment him
on the bill that has come before the Senate.
Mr. COATS addressed the Chair.
The PRESIDING OFFICER. The Senator from Indiana.
Mr. COATS. Madam President, I want to thank the Senator from New
Jersey for his remarks and commend him for his longstanding efforts on
behalf of the line-item veto concept.
The Senator from New Jersey has talked to me on numerous occasions
about expanding the original concept of the bill that Senator McCain
and I have proposed to include--not just appropriated items but also
tax expenditures. He, as a member of the Finance Committee, detailed
for me the process of what most would consider tax pork that occurs as
tax bills are written. It is not just the appropriations process.
I am pleased that we could address this issue in this bill as an
amendment introduced last evening by the majority leader. I say to the
Senator from New Jersey our goal, I believe, is the same--to address
the same items that he attempts to address. I hope that as we debate
through this and work through this we can clarify that so that Members
know exactly what we are after. It is hard to get the exact words in
place so that we understand just exactly how this applies to tax items.
But I believe that the targeted tax expenditures which are targeted in
the Dole amendment very closely parallel what the Senator from New
Jersey has tried for so long to accomplish.
So we look forward to working with him. I thank him for his support.
Madam President, I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call roll.
Mr. EXON. Madam President, I ask unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.

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