[Pages S4222-S4260]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

LEGISLATIVE LINE-ITEM VETO ACT

The Senate continued with the consideration of the bill.
The PRESIDING OFFICER (Mr. Abraham). The pending question is
amendment No. 347 offered by the majority leader to the bill S. 4.

Leave of Absence

Mr. STEVENS addressed the Chair.
The PRESIDING OFFICER. The Senator from Alaska.
Mr. STEVENS. Mr. President, I have to attend a meeting in Delta
Junction, AK, pertaining to Fort Greeley on Friday, March 24. I ask
unanimous consent that I be excused from attendance in the Senate from
3:45 on Thursday, March 23, until the Senate convenes on March 27.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Idaho.
Mr. CRAIG. Mr. President, this afternoon I rise in support of S. 4,
the Legislative Line-Item Veto Act.
What is now ongoing is, in my opinion, the long overdue and what I
hope is a historic debate toward resolution of this very important
issue.
Let me recognize both Senator Coats and Senator McCain, as well as
Chairman Pete Domenici and Majority Leader Dole, for their willingness
to work together to bring us to a point of compromise that I think has
produced a line-item veto product in S. 4 that can pass the Senate,
work through the conference with the House, and ultimately be placed on
the President's desk with the degree of confidence I think we now have
that he will sign it.
This is one of those items that an overwhelming majority of the
citizens of our country say they agree with. It is certainly something
that most Senators have agreed with in principle, and now that we have
been able to refine it, we have a product that I think the majority can
support.
The issues, of course, were the two-thirds override: What kind of
authority would the President have in the ability to veto and in our
ability to react to that veto? I think it has to be a tough vote, a
supermajority vote. The idea of a simple majority, while I supported a
concept like that a year ago, now clearly, if we can get the tougher
version, we ought to do so.
The idea of separate enrollment or rescission is an issue that has
been discussed. To extend the line-item veto authority in new, direct
entitlement spending as well as appropriations is another issue that we
had to work our way through. And, of course, to extend the targeted tax
benefits, again, is another one of those issues that I am extremely
pleased to see that we have been able to deal with.
Let me first talk about the majority versus the two-thirds override
which is really at the heart of all of this. It is the heart of the
division of authority and responsibility and the power associated with
that authority. As I have mentioned, I have supported both approaches
in the past, but I have always argued in doing so it was extremely
important that the Congress of the United States pass the strongest
possible line-item veto. In fact, as Senator McCain read earlier
yesterday, that is exactly what the President has now said publicly he
wants--the
the strongest possible product that the Senate of the United States or
the Congress collectively can yield.

Last year's House passed a majority override. This year, an
overwhelmingly bipartisan House, by a majority of 294 to 134, passed
the two-thirds override, an important signal from that new Republican
House.
Now that Senators know we are firing with what all of us know are
real bullet votes, it is an opportunity to get our two-thirds. That is
the product at hand now. That is why I am extremely pleased that we can
deal with it.
The second issue I mentioned, the idea of separate enrollment versus
rescission--as I say, I have sponsored both and cosponsored both
because, whether I was in the majority or whether I was in the
minority, I have always argued that we had to get to the President's
desk and into his power some form of line-item veto. The stronger
versions were always greatly appreciated by this Senator, but at the
same time I felt it was critically important that we move the issue.
Now my preferences lie clearly with a strengthened rescission approach.
It is simpler. In enrollment, transmission to the President, and at
signing of a law, it could be used as a scalpel instead of the idea of
a butcher knife, because rescissions can reduce as well as zero out an
item. I think that is the way we want to handle this.
But I will vote for a separate enrollment--or I would have, if that
had been
[[Page S4223]] the case. We think that is not going to be.
It should not sacrifice the good at the altar of the perfect. We have
worked out what can be called near perfect on this issue, and I am
pleased that all of the Senators came together to strive to build the
compromise. The only line-item veto that will become law is the one
that we can send to a conference with the House and work out our
differences on. From what I am hearing from some of my former
colleagues in the House, we can get that done now with the work product
that we are debating here at this time.
Separate enrollment was a second-best approach. That still makes it
definitely preferable to the status quo. Senator Bradley and Senator
Hollings have introduced a version of that concept. The Senate Budget
Committee reported one out several years ago. The Senate considered a
separate approach in 1985. It is not mysterious, last-minute kind of
work. It is simply the kind of product that had to be looked at as we
worked our way through the differences with this kind of legislation.
Opponents can have it both ways, I guess, in their arguments. Some of
those who criticized us for defending a balanced budget amendment as
reported from the committee now are complaining that the committee-
reported bill may be changed on the floor. We now have built a majority
consensus so that kind of issue will not have to be worried about or
dealt with as we work our will in the final debate, moving through
cloture, I hope, to final passage.
At a policy lunch today the leader, Leader Dole, mentioned it was
possible we could get to a unanimous-consent agreement that would not
take us through cloture. I hope that will be the case. This ought not
be a contentious debate, or protracted. When an overwhelming majority
of the American people want their Government to perform in a certain
way, then we ought to make every effort to get that done. And certainly
both Senators McCain and Coats, working with the other Senators
mentioned, I believe have tried to accomplish that. And S. 4, I think,
clearly embodies that kind of effort on the part of the Senate.
Extend it to targeted tax benefits, the other issue I have mentioned.
It is important to remember that taxing and spending are fundamentally
different kinds of things. When Congress reduces someone's tax burden
we are not giving out something that is the Government's, although
there are some here who would like to argue, when we talk about this
kind of thing, that somehow it is taking money away from the
Government. I strongly argue taxpayers' money is theirs in the first
instance. It is a majority issue of Government, when Government decides
to ask the citizens of this country to give a certain amount of their
hard-earned effort in behalf of Government. But the idea that we are
giving something back, to me has always been an astounding attitude on
the part of many in Congress. I simply have argued the opposite and
always will continue to do so.
I believe in a free society it is the citizens who govern and not the
government. In this instance, I think we are caught in a debate of that
kind of argument when we deal with the differences.
It is why I support the concept of a flat tax and always have. The
line-item veto should extend to the tax side of the budget, and that is
what we are trying to do now. If it is limited to a veto over narrowly
targeted tax benefits--in other words, tax pork--then we ought to look
at that. That is what this ought to do and that is exactly what we will
be attempting to accomplish. Generally applicable tax relief, like rate
reduction, indexing, or deductions or exclusions that apply to all
taxpayers who are similarly situated, should not be the subject in some
instances of a line-item veto. It should apply only in cases where
similarly situated taxpayers within a group are targeted directly and
are arbitrarily dealt with in tax legislation.
Let us debate substance in this instance and quit playing the
politics of this. Let us pass a bill and send to the conference and to
the President a document that truly works with the kind of issues we
deal with and gives the President substantive participation in the
processes of budgeting. I hoped what happened on the balanced budget
amendment is not going to happen here. It now appears we have been able
to strike a compromise that will allow it. But there is also something
else important to remember. Balanced budget amendments require two-
thirds votes. This will require a majority of the Senate voting in
favor of this.
If we had been able to solve the problem of cloture, if we have been
able to pass through that now with a unanimous-consent agreement--and I
hope we can get there in the next few hours--let me tell you, it is
going to be awfully important in resolving this issue and showing the
American people the Congress of the United States and the Senate can be
responsive to the issues at hand.
Promoting fiscal responsibility--that really is the issue underlying
all that we do with the line-item veto. In 1974, from then until
October 1994, the President requested 1,084 rescissions totaling $72.8
billion. Of the 1,084 rescissions, Congress approved 399, or about 37
percent. That amounted to $22.9 billion or 31 percent of dollar volumes
requested.
Alone, a line-item veto process is not going to be enough to balance
the budget. But it is widely estimated it can save at least an
additional $10 billion a year in the current budgeting scenario. To
paraphrase Senator Everett Dirksen: $10 billion here and $10 billion
there, and pretty soon we are talking about real money.
Interestingly enough, while we might forget that, thank goodness, the
taxpayers and the American public have not forgotten it. That is why
the line-item veto constantly over the years has increased in
popularity as a concept and an important device for the executive
branch of Government to have.
Does it yield exclusive power to the President or to the executive
branch? Absolutely not. But what it does, whether it is a Republican
President or Democrat President, it gives that President the
opportunity to single out some of the budgeting and expenditure
activities that have gone on here on this Hill far too long. The
special project of the special Senator, knowing full well that project
alone could not come to the floor and sustain itself with a majority
vote of the Senate itself, but because it has been tucked away in an
appropriations bill, because it was give a little here and get a little
from another Senator--that game has been played for years. And
literally hundreds of billions of dollars have been spent for very
questionable projects in individual States that should never have been
allowed. That is the goal of a line-item veto. That alone would save us
billions of dollars a year, but that is not the only goal of a line-
item veto. The other goal is for the President himself or herself to
participate directly, to deal with broader issues, if they will, to
cause the targeting of the debate when it comes to the expenditure of
tax dollars in ways that simply have not been targeted.
I have served in State government where Governors had line-item
vetoes. I have had to go against a veto, take it to the floor of the
State Senate in Idaho, and argue why we ought not to sustain the
Governor's veto in many instances.
Let me tell you. It really works to refine your thinking. It forces
you to do your homework. It forces that issue to the floor in a laser
kind of direction of the conference or in this instance the Senate's
attention on a given legislative issue, a given appropriation issue.
All of us who have served here for any length of time know very clearly
that when many of these appropriation bills come to the floor they are
very large in nature, and the balance on them that has been created is
oftentimes very precarious.
So the question of legislative accountability, as I have been talking
about, has to be one of the other most important issues in bringing
about a line-item veto. As I have said, many of these appropriations
bills involve hundreds of pages of detail, and it is virtually
impossible for every Senator and for all staff to read every bill,
every page, every area of fine print.
Certainly, if it has happened to me once, it has happened to me many
times over the course of my years in
[[Page S4224]] serving Idaho both in the House and in the Senate to go
home and to hold a town meeting and to have someone come and say,
``Senator, did you know that in that bill you just passed there was
that provision in it?'' In all fairness I have to say, ``You know, I
did not know that. If I had known it, it might have changed my vote or
it might have changed the attitude in which I dealt with a given
issue.'' That is the responsibility that comes about as a result of
giving the President the kind of authority that is now offered in S. 4,
this very critical piece of legislation.
Very simply, that is why the American people by an overwhelming
majority have supported this concept.
So as we have worked out our differences in dealing with the style of
vote, and the way we handle different items that target the President's
attention and his authority under the line-item veto, in all fairness,
Mr. President, I am extremely proud of the work that we have been able
to do and what I think will show on the final vote to be a very
bipartisan issue.
One of my voters in Idaho said the other day, ``Well, Senator, do you
really think this is the time to give the President a line-item veto? I
mean he is a Democrat, you know.'' I laughed and said, ``There is no
good time, and there is no bad time. I have always supported this idea,
and if it is good enough for Ronald Reagan and George Bush, it is good
enough for Bill Clinton, and all of the other Presidents who will serve
after them.'' Why? Because it is good public policy. It is the right
thing to give the executive branch of Government because it fine tunes,
it brings about accountability, and it causes the Congress of the
United States and the Senate to do its homework in the kind of detail
that we have not been producing in the past.
In the final analysis, when I mentioned that 1,084 rescissions that
Presidents have asked for and the 300-plus that we have been able to
agree on, and the tens of billions of dollars that have been saved, and
the more that will be saved by the kind of effort that we are involved
in today, that is the bottom line. That is the bottom line we all
strive for. That is why this line-item veto embodied in S. 4 is good
public policy.
I hope that we can work out the necessary unanimous consent so that
we do not have to march down the road of a cloture vote and that we can
then bring ourselves to the finality of the debate and final passage.
But in the end, if we cannot, then I will certainly support cloture. It
is time we bring this issue finally to the floor for debate or for a
vote, and I hope we can accomplish that.
I yield the remainder of my time.
Mr. COATS. Mr. President, I thank the Senator from Idaho for his
comments, for his support, and for this effort. I appreciate the
contributions that he has made over the past several years in
attempting to deal with this.
Mr. President, I note the Senator from West Virginia is on the floor.
I certainly have no immediate requests for time at this point. I would
be happy to yield the floor.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER (Mr. Thompson). The Senator from West Virginia
[Mr. Byrd] is recognized.
Mr. BYRD. Mr. President, I suppose one of the evils that was included
in Pandora's box was the evil of the common cold, and I seem to have
been stricken with that virus for the present.
At last, we have seen unveiled the amendment which is the product of
the frenetic efforts of our Republican friends to come up with
something of a line-item veto nature behind which they could rally a
majority of their Members. Even a cursory examination of the amendment
will compel one to say, with, Macduff, ``Confusion now hath made his
masterpiece.''
I think it is prudent to reflect with some care and detail on this
far-reaching measure. I find the transfer of power from Congress to the
President, which would occur if this amendment were adopted and
implemented, a disturbing proposition. Mr. President, I fully realize
that when a Senator starts to talk about the shifting of power from the
legislative branch to the executive branch, his words, in great
measure, fall upon deaf ears insofar as his colleagues are concerned.
One may talk until he is blue in the face, though he may have lungs of
brass and a voice that will never tire, he simply cannot get within the
eardrums of a good many of the Members of this body if he happens to be
talking about separation of powers and checks and balances. They pay
little or no heed to what is being said. Consequently, I daresay that
what I have to say today will probably be treated in the norm. That is,
it will not be listened to by many Senators. Those who may happen to
pass by a TV screen and may hear it will nevertheless pay little
attention to it. Even if they were to sit in front of me here in a
chair and listen raptly, it would have no impact upon them.
I am sorry to say that we have come to such a state in the U.S.
Senate that we are not disturbed when measures come before this body
the effect of which would be to transfer power from the elected
representatives of the American people, in the legislative branch, to
the Chief Executive. But that is one thing this is all about.
This is not a line-item veto measure. It may be called that, as a
duck may be called a goose or a guinea pig or a chicken. But the duck
is still a duck, and all may call this a line-item veto who wish to
call it that. But it is not a line-item veto. Nevertheless, if it is
enacted, the shift of power will have taken place. The only good thing
I can say about the amendment that has been offered by the
distinguished Republican leader is that it does have a sunset date.
Consequently, there will come a time when the Senate, if it has
learned anything in the meantime, will perhaps make a determination not
to go down that fateful path again and renew the life of this measure.
I do not denigrate those who support this measure. I know that the
distinguished Senator from Indiana [Mr. Coats] and the distinguished
Senator from Arizona [Mr. McCain] have long labored in this vineyard,
and undoubtedly they believe in what they are doing. They believe it is
the right thing to do for the country and the right thing to do in the
effort to get some kind of control over our massive deficits. So I do
not in any way cast aspersions on them. We differ. We differ in our
philosophy, I suppose. We probably differ in our concept of the Senate
and the part that it is to play in the universe of institutions created
by the Constitution.
I think it is prudent to reflect with some care, as I say, on the
details of this far-reaching measure. I do find it a disturbing
proposition to contemplate the transfer of power from Congress to the
Executive. The power we are talking about here is the control over the
purse. I will not belabor the Senate with the long history of the
people of the British Isles, the long history of the English people,
who fought for centuries to bring about the logic of that power over
the purse in the hands of the elected representatives of the people of
England, the reposing of that power over the purse in Parliament. I
have not sought to belabor that point at this time. I think that that,
like almost anything else one may say on this subject, would probably
go unheard, even though there may be those with ears who might
otherwise listen. The fact that our Framers drew upon the experience of
the colonists and the States, which in turn had drawn upon the
experience of Englishmen for centuries, really means nothing in the
waiting ears of most of today's Members of this body.
Few people attach any, or certainly not very much, significance to
the checks and balances and separation of powers which our Framers
constructed. Few people attach any significance to the purpose of that
separation of powers. Few understand that that mechanism grew out of
the experiences of centuries of time in the motherland of most of our
forebears.
So it might be a waste of time to attempt to dwell upon those things,
except if one wishes that the record, which will last a thousand years,
will still be read by some, at least, who do work in the research field
and may find it of interest accordingly. But to most of us here today,
most of us who serve in this body, we do not pay much attention to
history. History is bunk, as Henry Ford was supposed to have said. And
I gather that most of my colleagues look at history in about the same
fashion.
[[Page S4225]] But the time will come when there will be those of
posterity who will look back and see the record. They will know where
the parting took place and where the delinkage occurred.
The power of the purse, which has been lodged in the legislative
branch for over 200 years, would, in considerable measure, be shifted
to the executive branch, and specifically to the Office of Management
and Budget.
That is where the power is going to go, to the Office of Management
and Budget.
One needs only to recall the words of David Stockman a decade ago
when asked, at the American Enterprise Institute Conference on the
Congressional Budget and Empowerment Control Act, what the line-item
vetoes effect on the Federal deficit would be. In a burst of candor,
David Stockman replied: ``Marginal, if at all.'' Mr. Stockman amplified
his answer by saying: ``Line-item veto is about political power and
political control. It can be used for lots of things. It would be great
for the director of OMB.'' David Stockman's words could not be more
true, and when applied to this amendment, they hit the nail right on
the head--right on the head.
There are those who say, ``Well, the States have the line-item veto.
Why not give the President the line-item veto?''
There are those who, as former Governors, say, ``I had the line-item
veto when I was Governor. Why not let the President have the line-item
veto?''
Mr. Reagan said when he was Governor of California, ``I had the line-
item veto. Now give me the line-item veto as President of the United
States.''
Well, I think the problem with that is that being Governor of a State
is one thing; being President of the United States is an entirely
different thing.
I have in my hand what we know of as the ``West Virginia Blue
Book''--the ``West Virginia Blue Book.'' Well, in this ``West Virginia
Blue Book,'' there are many items of interest, but the thing I shall
point to today is the Constitution of the United States of America. It
is printed in the ``West Virginia Blue Book.'' And in the ``West
Virginia Blue Book,'' it covers all of 15 pages. That is it. That is
the Constitution of the United States of America--15 pages in length.
Right here.
It is 60 pages in length--60 pages for the constitution of West
Virginia; 15 pages for the Constitution of the United States.
The constitution of the State of West Virginia goes into much detail
about numerous and sundry items that are of interest to the State of
West Virginia, of interest to a State.
And I daresay that there being 50 States, I would assume there are 50
constitutions of 50 States in this country. And I would also assume
that not one of those other constitutions, not one of the other 49
constitutions, is the same, precisely, as the constitution of my State
of West Virginia. They are all different.
Any high school student who is worthy of graduating from high school
understands that the State government and Federal Government are two
different things. Each operate in a separate sphere. The State is
supreme in its sphere. The Federal Government is supreme in its sphere.
Two far different entities, and one is not to be confused with the
other.
The Constitution of the United States provides certain powers for the
Congress: ``To borrow money on the credit of the United States.'' That
is a power of the Congress.
Let me read just a few of the section 8 powers, section 8 of article
I of the Constitution of the United States.

The Congress shall have Power To Lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debts and provide for
the common Defense and general Welfare of the United States.

Now not one of the 50 States' constitutions have that proviso in it.
Not one.
``The Congress shall have Power . . . To borrow money on the credit
of the United States.''
``The Congress shall have Power . . . To regulate Commerce with
foreign Nations, and among the several States, and with the Indian
Tribes.''
Not one of the 50 States, not one, provides that power upon the
government of the State.
``The Congress shall have Power . . . To establish a uniform Rule of
Naturalization, and uniform Laws on the subject of Bankruptcies
throughout the United States; To coin money''--no State in this country
may coin money. Prior to the creation of this Republic, States could
coin money in America. Under the Articles of Confederation, the States
could coin money. But no longer. Only the Federal Government.
``The Congress shall have power . . . To coin Money, regulate the
Value thereof, and of foreign Coin, and fix the Standard of Weights and
Measures.''
I know it is old fashioned to read the Constitution any more around
here. Before it is finally relegated to the rare book section of the
Library of Congress,
I would advise my friends to come to me and get a copy of this
Constitution. I carry it in my pocket. This is the Constitution of the
United States. It cost me 15 cents. It is a little worn now. I think it
costs $1 now, but this one only cost me 15 cents. I have several copies
of these which I will give to any Member of the Senate who supports
this line-item veto. I will be especially happy to give it to them.
Come and get a copy of the Constitution and read it. See the difference
in the State governments vis-a-vis the Federal Government.

To provide for the Punishment of counterfeiting the
Securities and current Coin of the United States;
To establish Post Offices and post Roads.

And so on and so on.

To declare War . . .
To raise and support Armies . . .
To provide and maintain a Navy.

These people argue about Governors having the line-item veto, give it
to the Governors; why not give it to the President of the United
States?

To provide and maintain a Navy . . .
To make all Laws which shall be necessary and proper for
carrying into Execution the foregoing Powers, and all other
Powers vested by this Constitution in the Government of the
United States, or in any Department or officer thereof.

And so the Framers deliberately created this system of separation of
powers and checks and balances.
Now, at the State level, the system is not so clearly and delicately
delineated, as it is at the Federal level. There is a system of
separation of powers at the Federal level. There is a system of checks
and balances at the Federal level. One can stand and talk until he is
blue, until his gills turn blue and we will still have Senators saying,
``Well, the Governors have line-item veto; this is just process.''
Well, it may be just process, but it is part of the constitutional
system of checks and balances and separation of powers and it is worth
fighting over.
I cannot conceive of a reelection for the U.S. Senate being so close
that I would be defeated because I voted against the line-item veto. I
cannot conceive of that, and if it is, then so be it. I believe, having
taken an oath to support this Constitution 13 times in going on 49
years now, I believe in that oath. I believe in supporting and
defending this Constitution, and that entails the defense of the
separation of powers and checks and balances. We cannot do that with a
wink and a nod. We cannot just brush it aside and say, ``Oh, that's
process. The Governors have it, we ought to let the President have
it.''
I know that there are a lot of Governors who believe that that is a
sufficient argument to make and that it is defensible. But I say read
the Constitution of the United States. Read the Federalist Papers.
There are 85 of them. About two-thirds were written by Hamilton; about
a third by Madison. Some of them are in dispute as to who is the
author, Madison or Hamilton. Five were written by John Jay. No. 2, 3,
4, 5 and I believe No. 64 were written by John Jay. Read them.
One cannot really fully understand this system which was created by
the Framers, among whom were Hamilton and Madison, without reading the
85 Federalist papers. It is the most marvelous exposition of this
system of Government that one may find anywhere under the Sun. And we
are about to lightly toss away this power over the purse, which is the
critical balance wheel in the system of checks and balances.
The novel approach of this amendment--and this is a novel amendment,
a novel approach--the novel approach of this amendment would empower
the enrolling clerk of the body in which an
[[Page S4226]] appropriations measure originated to dissect the bill
or joint resolution item by item, paragraph by paragraph, section by
section and then create bills and joint resolutions--so-called bills
and joint resolutions--for each of those items, add to them fictitious
enacting clauses--fictitious enacting clauses--and send the composite
products to the President as though these items were legislative
measures passed by both the House and the Senate in the format in which
they are presented.
For those who have the patience to listen and who may really care--
and I do not expect all my colleagues to be in that category, and
perhaps I cannot blame them. Because I feel so strongly and so deeply
about this, a common cold will not keep me from speaking. Oh, that my
voice would carry to the hills or the mountains, and though I had to be
brought into this Chamber on a stretcher, I would still fight for this
Constitution and its system. It is not a process. Process. This is the
Constitution we are talking of here. This is the constitutional system
that we are about to imperil.
This amendment that has been brought in by the distinguished majority
leader--and he is a distinguished majority leader, a very distinguished
majority leader--this amendment provides, in essence that a bill--this
is a bill. This bill is H.R. 4506. It is a bill that passed the
Congress in the 103d Congress, the second session. It is an act making
appropriations for energy and water development for the fiscal year
ending September 30, 1995, and for other purposes. We would refer to
this as the energy water bill. It is not a very lengthy bill.
This bill that is 43 pages--43 pages--includes the Senate amendments.
This bill came over from the House. H.R. 4506 came to the Senate from
the House, and the Senate acted to amend the bill in certain places.
There is the bill as passed by the Senate and the House.
Now, the bill went to conference so that the differences between the
two Houses could be resolved. When the bill came back from conference,
this is what it looked like. This is the conference report to accompany
H.R. 4506, making appropriations for energy and water development for
the fiscal year ending 1995, and for other purposes. And so I hold in
my hand this conference report. This means conferees from both Houses
sat down in conference, spent several hours, perhaps days, in resolving
the differences between the two Houses in connection with this bill,
H.R. 4506.
This conference report lays out in minute detail the items of
appropriation, setting forth the budget estimate on each item and the
conference agreement on each item. There they are, hundreds of them.
Now, when this conference report was agreed on by both Houses, then
the act went down to the President for his signature. This conference
report did not go to the President for his signature. He could not look
into the conference report and veto items in that conference report
because the conference report does not go to the President.
He looks at the bill. Here is the final public law, Public Law 103-
316, August 26, 1994, and it is composed of--I have not counted the
number of pages in it--17 pages. That is the final product. If someone
wants to see the final act making appropriations for the Department of
Defense, Department of the Army, Corps of Engineers, and so on, they
would ask for Public Law 103-316, 103d Congress. There it is. That is
the product of months of work, starting with this bill which is sent
over from the House, amended in the Senate, going to the conference,
with the conferees bringing back to each House this conference report,
and it went down to the President. He signed it. This is the final
product. That is public law.
Now, at the State level, under the State constitutions, the State
laws, most of the bills making appropriations at the State level are
set forth by items in the bill that is to go to the Governor's office,
and the Governor can line item this out, strike through it with his
pencil, put his initial there; go down to this item, strike it out, and
put his initial there; go down to the next item, strike it out, and put
his initial there. He has line-item vetoed several of the provisions in
that bill.
Well, I have already shown why the President cannot line-item veto
here. In the first place, he does not have the constitutional authority
to line-item veto, never had it, does not have it today. But the items
are not set forth in such minute detail, even if he had it. Most of the
items are set forth in large sums of moneys. To find out what is in
each sum, one goes to the conference report to find out the details.
Now comes this amendment which says that any appropriation bill, once
the amendment is agreed to, that hereafter becomes law, any
appropriation bill that comes to either body that does not have each of
these items set forth in the bill may be sent back to the committee
unless there is a waiver by three-fifths of the persons elected and
sworn. So every bill will now have each of these items, each item in
the bill. When it goes to conference and comes back, the conference
report, if the conference report which heretofore I have had in my hand
as representing the conference report on H.R. 4506 comes back at a
future time, the bill to which it relates will have to have every item,
every item enumerated therein.
And then what would happen? Well, now, this is sleight of hand. If I
ever saw sleight of hand, this is it in its rawest form. This bill will
be sent back to the clerk, the enrolling clerk of the body in which the
bill originated. Appropriations bills by custom, not by the
Constitution but by custom, originate in the other body. They originate
in the House of Representatives.
Consequently, the bill, once the conference report is agreed to in
both bodies, will be sent back to the enrolling clerk of the House of
Representatives where the bill originated, and that enrolling clerk in
the House of Representatives will break out each item, each unnumbered
paragraph, each section, and enroll each item, each section, each
paragraph as a bill. It will be kind of a cut-and-paste operation. In
order to speed up the process, I assume that the clerk will have a lot
of preprinted forms, and those preprinted forms will have on them, ``Be
it enacted by the Senate and House of Representatives of the United
States of America and Congress assembled.'' That will all be already
printed on the form. And then the clerk must in the wee hours of
midnight--he will undoubtedly have others help him--there in the
subterranean caverns of this massive Capitol, the enrolling clerk with
his helpers will break that bill down into those hundreds of little
pieces and each will be deemed to have been a bill passed by both
Houses. And each of those so-called bills or joint resolutions will
then be signed by the Speaker of the House and by the President pro
tempore of the Senate, or their designees, and sent to the President,
to the White House.
Now, let me just show you what this would have meant in the case of
this one bill, H.R. 4506. Remember, this is the bill that came to the
Senate. This is the final product, the conference report. There it is,
the conference report, setting forth all the paragraphs, sections, 116
pages. Now, that bill was enrolled and sent down to the President. Here
it is. That is the public act, 16 pages.
But now for the enrolling clerk to have broken down that bill into
each item, here is what it would have looked like. This is it. Ipso
facto, the enrolling clerk waves the magic wand, the enrolling clerk of
the House of Representatives waves a magic wand over that bill, and
here is what we have: more than 17 pounds of so-called bills--there are
over 2,000 of them--that go to the President for his signature.
Here is one of the bills. Here is another one. These are all to be
sent down to the President after having been enrolled by the clerk of
the originating House--which, as I say, in this instance it will be the
other body. Each of those will go to the President.
Does anyone in this Chamber believe that the President is going to
sit down and look at those and decide which he will sign and which he
will not? No. Those will be handed over to the Office of Management and
Budget and those fine, unelected, unidentified, nameless, anonymous
bureaucrats--and they are all good people--will take a look at those
and they will determine which of these, or somebody will determine and
give to the President--determine those that ought to be signed, those
that ought to be vetoed.
[[Page S4227]] Let us see what the Constitution says. Let us see what
the Constitution says about bills. This is article I, section 7, clause
2. This is the Constitution. This is not the so-called Contract With
America. This is the Constitution of the United States. This is the way
it has appeared for 206 years. There has been no change in this
language in 206 years. That is the same language that was there when
Washington became President; when Adams became President; when
Jefferson and Madison and Monroe became President; when John Quincy
Adams became President, the same language; and Andrew Jackson, William
Henry Harrison--no, Van Buren, Van Buren--he found it written just like
that. Then Harrison, then Tyler, Polk, Taylor, Fillmore, Pierce,
Buchanan, Lincoln, Andrew Johnson, and Grant. They found the same
language. Never a change.
Johnson, Grant, Rutherford B. Hayes, Garfield, Chester A. Arthur,
Cleveland, Benjamin Harrison, Cleveland again, McKinley, Roosevelt,
William Howard Taft, Wilson.
I was born in the administration of Woodrow Wilson. He had the same
language--it has not been changed. It was not changed. That is the same
language that has been there all the time.
Wilson, Harding, Coolidge, Hoover, Roosevelt found it--not a blemish,
not a stain. Just like it was when George Washington said when he had
to sign a bill he had to sign it all. There was not any line-item veto
in it.
It has not been changed since Roosevelt. Truman did not change it,
Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter. Reagan wanted a
line-item veto. But that is it. It withstood the trials of time.
The War of 1812; the war with Mexico, 1848; the Civil War, Spanish-
American War; World War I, World War II, Korean war, Vietnam war, the
Persian Gulf war. All of the panics and depressions, the panic of 1837,
1857, 1873, 1893, 1907, 1929, and 1930. This language has served
throughout all of American history.
And what does it say? It says:

Every Bill, which shall have passed the House of
Representatives and the Senate, shall, before it become a
Law, be presented to the President of the United States . . .

Let us read that again.

Every Bill, which shall have passed the House of
Representativesandthe Senate. . .

That indicates to me that when something reaches the President's desk
that is called a bill, it is something that shall have passed the House
of Representatives and the Senate. It cannot possibly mean something
that was enrolled by the enrolling clerk of the House of
Representatives. Can any Member truthfully say that if this legislation
had been adopted prior--this amendment by Mr. Dole--had been adopted
prior to the passage of this energy water bill, can any one of us say
that we voted for this bill? Can we say we voted for that bill? Can we
say we voted for this bill? No. I never saw it. That bill did not pass
both Houses. That bill did not even pass one House.
Each of these little billettes will have to carry a designation on it
that will distinguish it from each of the other 2,000 little billettes.
So I suppose this would be H.R. 4506 (1). The next one will be H.R.
4506 (2). The next will be H.R. 4506 dash, or parenthesis, 3.
Finally we would get to H.R. 4506-1909, H.R. 4506-2001.
Then, to make believe that each of these passed the House of
Representatives and the Senate is like looking at the noonday Sun and
saying it is midnight, without a star in the sky.
This is tomfoolery. I cannot believe that we Senators in our
generation are going to fall for this kind of sleight of hand.
This is public law here, H.R. 4506. Where are we going to find the
public law on H.R. 4506 when it is broken down into over 2,000 little
make-believe bills that have been enrolled by an enrolling clerk who is
not answerable to the voters and sent down to the President? Where is
the public law? Show me the public law.

Every bill which shall have passed the House of
Representatives and the Senate, shall, before it becomes a
law, be presented to the President of the United States; if
he approves, he shall sign it . . .

What is the antecedent of ``it''? The antecedent is ``bill.'' If it
is 2,000 little ``it's,'' how is he going to sign ``it''?

but if not he shall return it, with his objections to that
House in which it shall have originated . . .

Obviously, one item, one bill, is being contemplated by the Framers.
They are saying you cannot past two bills with the same number at the
same time.

If after such reconsideration two-thirds of that House
shall agree to pass the bill, it shall be sent, together with
the objections, to the other House, by which it shall
likewise be reconsidered, and if approved by two-thirds of
that House, it shall become a law.

We are going to have over 2,000 laws in one bill, and some bills will
contemplate more laws than that. Some not as many, but some more. We
just cannot be in control of our mental faculties if we are going to
look at this monstrosity and vote for it. We surely cannot be kidding
anybody but ourselves.
Have we read the Constitution lately? From the very beginning, S. 1
in 1789 was the Judiciary Act. It was a Senate bill. It started out in
the Senate. Its number was S. 1. That created the judiciary. And ever
since bills have been denominated S. 1 or H.R. 1. Resolutions are S. or
S. Res. 1 or S. Con. Res. 1 or S.J. Res. 1, depending on whether they
are simple resolutions or concurrent resolutions or joint resolutions.
This has been the style from time immemorial going back into the
colonial legislatures, going back into the British Parliament. It has
been ever thus.
The passage of a single appropriation bill by both Houses would be
followed by a cut-and-paste operation in the office of the enrolling
clerk of the originating body, and out of the wee hours of the night,
the fructifying wet pen, the scissors and paste and the whiz of the
computer of the enrolling clerk and his staff, would pour out a vast
litter of mini-bills, or ``billettes,'' not a single one of which had
been passed by either body of Congress.
Each of these is going to have a fictitious enacting clause on it.
The genuine bill, adopted by both Houses, will have been kidnapped,
and subjected to the prostitution and mutilation of a cut-and-paste
operation which may rightly be termed ``a getter of more bastard
children than war's a destroyer of men.'' Hundreds of little orphan
bills--nobody is going to claim these little orphan bills by the
enrolling clerk. ``And where did you come from?'' ``I came out of the
enrolling clerk's office.'' Who enacted this bill? Who will lay claim
to have enacted this bill? What Senator will lay claim to have voted on
this bill? Not I. Not one of these bills will have passed the House and
the Senate or the House or the Senate, not one.
Hundreds of little orphan bills will then make their way to the
Speaker's desk and to the desk of the Senate President pro tempore to
be laboriously signed and sent in a seemingly endless stream to the
Oval Office, there to be signed or vetoed by the President.
I tell you, I am glad this was not the practice when I was President
pro tempore of the Senate. Signing all of those bills will be a never-
ending job in itself. It will keep the President pro tempore busy just
to sign those bills.
Whatever else one may call it, this amendment will certainly prove to
have been a prolific one, and the period of incubation or gestation
which it will have created will put to shame that of the guinea pig or
rabbit or a mouse. This multiple mutation of the legislative process
will boggle the mind.
We surely cannot be in our senses. We are about to take leave of our
senses to vote for this piece of junk. This is not a line-item veto.
Why do we not bring on the line-item veto? Let us vote for a
constitutional amendment to give the line-item veto. Let the people
decide to give the line-item veto to the President.
As compared with the line-item veto, in the raw sense, this amendment
is a thing of unnatural deformity--``nothing but mutation, ay, and
that, from one bad thing to worse.''
It is a proposal which represents a significant abdication of power
by the legislative branch in favor of the executive branch.
It is an indication of power. We are becoming not only fools but lazy
fools. Just turn it all over to the President. Abdicate our power. Give
it to the man downtown. Bow down to power. Bow down to power. Remember
what David Stockman said. This is a ``power play.''
[[Page S4228]] It is a pale substitute for really doing something
substantial about the alarming budget deficits.
The amendment would also strengthen the House of Representatives at
the expense of the Senate.
Do we want to do that to the Senate?
Consequently, the House of Representatives would determine the format
of the measure that is sent here and would determine how these measures
would be broken apart into items or paragraphs or sections. Great power
to the President. More power to the Speaker. Great power to the
Director of the Office of Management and Budget.
And all resulting in diminished authority of the U.S. Senate. Senators
all know that when appropriations bills come to the Senate, the Senate
has a right to amend them. The two features about the Senate which,
more than all others, make the Senate the premier upper body in the
world are the ability to amend and the ability to speak at length. Now
when appropriation bills come to the Senate, the format will have been
laid out by the other body. When all of these little ``billettes,''
these little illegitimates that cannot really point to any parent--they
cannot point to a parent bill because the bill that passed both Houses
no longer exists. Where does it go? What does the enrolling clerk do
with it? Does he keep it? Does it go to the Archives? Does it go to the
Department of State? What happens to that bill? All of these little
illegitimates--I could call them bastards, but I will not do that; I
will call them illegitimates. All of these flow down to the President
in a stream. Let us say the President vetoes 75 of these 2,000. He
vetoes 75 and they all come back. Where do they go when they come? Do
they go back to the Senate? How many would say they go back to the
Senate? They go back to the body in which they originated. Of course,
these did not originate anywhere. They originated in the enrolling
clerk's office. But they would go back to the House of Representatives.
The House would determine whether or not it will vote to override the
veto. If the House does not vote to override the veto, then the Senate
does not get a crack at it at all.

We all know that the Senate does add to the bills that come from the
House by way of amendments. Some of the little ``billettes'' that the
President would amend, some of these little illegitimate offspring that
the President would decide to veto, would have originated in the Senate
because the Senate has a right to amend. Do you think the Senate is
going to get a second crack at that? Why, no. The House undoubtedly
will not attempt to override a veto that the President has attached to
one of these ``bills,'' which originated in the Senate.
This is an amendment by Robert C. Byrd that originated in the Senate.
That is supposed to be called a bill under this amendment. It
originated here. But it is not going to be sent back to the Senate. It
is going to go to the House because it will have a House number on it--
H.R. 4506, in this case. This number will be H.R. 4506-219, which
originated in the Senate. It was an amendment added by the Senator from
Nebraska [Mr. Exon]. But it will not come back to the Senate. The House
will decide whether or not there will be an attempt to override that
veto, and if the House decides not to attempt to override it, the
Senate does not get a second crack at it.
I do not know about other Senators, but I am not in favor of
subordinating the Senate to the other body. The Framers meant for the
two bodies to be equal, each to play its own role. There were checks
and balances between the two Houses. There will not be any checks and
balances here in this situation. The Senate will not be a player.
So let us take a look at this marvel of legislative fecundity.
This is an amendment on which there is no committee report and in
connection with which there are no printed hearings. That is the
amendment that was offered yesterday by Mr. Dole and immediately a
cloture motion was thrown in, to bring it to a vote. That is what we
have come to now in this body. We bring in an amendment which is a
brand new bill, which the Members of the minority had nothing to do
with insofar as helping to shape it. It is offered and a cloture motion
is offered on that amendment, and that means we have to vote up or
down, one way or the other, on the cloture motion the following day but
one, meaning tomorrow in this case.
No printed hearings. No committee report. The amendment comes before
us much like Minerva, who sprang from the brain of Jove, or Aphrodite,
who sprang from the ocean foam. It is the product of a collective
fertile mind, and from it will flow fertile confrontations, fertile
vetoes and, in all likelihood, it will undoubtedly prove to be a
fertile field for exploitation by the lawyers of the country.
It requires each item of any general or special appropriation bill or
any joint resolution making supplemental, deficiency, or continuing
appropriations that is agreed to by both Houses of Congress to be
separately enrolled as separate bills or joint resolutions for
presentation to the President. Any appropriations measure that passes
both Houses of the Congress will be turned over to the enrolling clerk
of the House in which the appropriations measure originated, to be then
enrolled as a separate measure for each item in the appropriations
bill. Each of these little orphan bills--Little Orphan Annie is going
to feel put upon when she sees all these multitude of orphan bills
running down to the White House--each of these little orphan bills
shall bear the designation of the parent measure of which it was a ward
prior to such enrollment, together with such other designations as may
be necessary to distinguish each little baby bill from the other
hundreds of measures enrolled pursuant to the provisions of the
amendment. Each appropriations ``billette'' will contain one item in
the original bill and each of these little offspring will be deemed to
be a bill under clauses 2 and 3 of section 7 of article I of the
Constitution of the United States. Each 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 in the manner
provided by the Constitution for bills and joint resolutions generally.
We will take a look at the phraseology of the Constitution on the
chart to my left again.
Article I of section 7 of the Constitution provides that, ``Every
bill which shall have passed the House of Representatives and the
Senate, shall, before it becomes a law, be presented to the President
of the United States''; note that the Constitution refers to ``every
bill which shall have passed'' both Houses of Congress shall be
presented to the President for his approval or rejection. But this
amendment now reads, in part, on page 4 of the amendment:

A measure enrolled pursuant to paragraph 1 of subsection
(a) 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--``shall be deemed to be a
bill.''

Well, the Constitution does not say that every bill which may be
deemed or which shall be deemed to ``have passed'' the two Houses. It
clearly states that every bill which shall have passed. We do not deem
it to have passed. We do not consider it to have been passed. We do not
think of it as something that has passed. We do not look upon it as
something which otherwise may have passed. It is something that passed.
Every bill which shall have passed the House of Representatives and the
Senate shall be presented to the President for his signature.
Under this rogue amendment, not a single one of the bogus bills
enrolled by the clerk of the originating House of Congress will have
``passed'' either the House or the Senate, to say nothing of both
Houses. Not a single Senator nor a single House Member will have voted
on the cut-and-paste so-called bill which goes to the President.
Hundreds of mini-bills will flow from a single appropriation bill or
joint resolution, and not one of these ``fictions'' will have
``passed'' the House and Senate in accordance with the requirements of
the Constitution. Not one will be a ``bill'' in the traditional sense
of the word; each will be ``deemed to be a bill.''
Each will be ``deemed'' to be a bill; each will be pretended to be a
bill. Not one will be a bill in the traditional sense.
It will be claimed that this odd construction is in keeping with
section 5 of article I of the Constitution which provides that each
House may determine the rules of its proceedings.
[[Page S4229]] So there will be those who will say, ``Well, in view
of the fact that under the Constitution each House may determine the
rules of its proceedings, it is within the power and authority of each
House to determine what is a bill. And if the House and Senate want to
deem something to have passed, well, that is within the rules of the
body.''
But certainly, the Framers could not have intended that any interim
rules of the two Houses could invalidate the clear instructions of the
Constitution with respect to the passage of a bill.
So if, within our internal rules, we may decide to ``deem'' a certain
piece of paper as being a bill, surely the internal rules of the two
Houses can never supersede or override the clear language of the
Constitution itself which says, ``Every bill which shall have passed
the House of Representatives and the Senate, shall, before it become a
law, be presented to the President of the United States.''
So the Framers could not have intended that any internal rules of the
two Houses could invalidate the clear instructions of the Constitution
with respect to the passage of a bill.
Now if a bill may be ``deemed'' to have passed both Houses, then
might not the first clause of section 7, article I, be also ``deemed''
in its thrust?
Let us read the first clause of section 7, article I.

All Bills for raising Revenue shall originate in the House
of Representatives.

Now, if Congress may deem this to have been a bill passed by both
Houses, why could not Congress deem this to be a revenue bill that was
deemed to have originated in the House of Representatives? If Congress
may deem a piece of paper enrolled by the clerk of either body, which
no Member of the Senate or the House has ever seen, if that may be
deemed a bill and be deemed to have passed both Houses, then why not
deem this tax revenue measure which originated in the Senate, why not
deem it to have originated in the House? That would be as much a use of
the internal rules of the Senate as would be the case in the former
instance.
There are those who say that, what Congress gives Congress can take
away. True. But when Congress seeks to take back this giveaway of its
powers, it must be prepared to produce a two-thirds vote in both Houses
to override a Presidential veto. This is a lose-lose proposition, as
far as Congress is concerned. Appropriations for national defense and
for the national welfare would be determined by unelected, unidentified
bureaucrats in the Office of Management and Budget, who would
determine, for the President, which of the orphan measures may be
considered worthy of his signature and which should be the victims of
his wet veto pen. No matter what pretty face one may attempt to put on
this hydra- headed monster, practically speaking, it will result in a
massive shift of power over the purse from the legislative branch to
the executive branch.
I know that means little or nothing to some of the Members of this
body who have sworn to uphold and support and defend the Constitution
of the United States. I realize that means nothing. But, nevertheless,
it is there.
The Constitution should not be demeaned and debased by this kind of
slight-of-hand work that would result from this amendment.
It is nothing less than legislative sleight-of-hand, and no self
respecting Member of the Congress should allow himself or herself to
participate in this emasculation of the Constitution to which we have
all sworn an oath to support and defend.
The great name of Thomas Jefferson has been frequently used in this
Chamber over the past several weeks during the debate on the balanced
budget amendment to the Constitution. Let us see what Thomas Jefferson
has to say with respect to the passage, the enrollment, and
presentation of a bill to the President.
Mr. President, I do not have in my hand a copy of the manual of
parliamentary practice by Thomas Jefferson, but I have one downstairs
in my office. The title of it is ``A Manual of Parliamentary Practice
for the use of the Senate of the United States.'' It is by Thomas
Jefferson, first edition, 1801.
On page 73 of Jefferson's manual, it is stated, ``After the bill is
passed, there can be no further alteration of it in any point.''
Now those who have been invoking the great name of Thomas Jefferson
throughout the debate on the balanced budget amendment to the
Constitution, let them hear. Jefferson, in his manual, states, ``After
the bill is passed, there can be no further alteration of it in any
point.'' And for his authority, Jefferson cites William Hakewill, who
prepared a manual entitled ``The Manner and Method How Laws are there
Enacted by Passing of bills, collected out of the Journal of the House
of Commons,'' 1671.
Thus, a bill, as contemplated by this amendment, stripped out of the
parent measure and enrolled by the enrolling clerk, presumably on a
predetermined form, with a fictitious enacting clause, flies in the
face of tradition, custom, and parliamentary practice coming down to us
from time immemorial, from the British Parliament, the Colonial
Legislatures, the American States that existed before the Constitution,
and the practices of 206 years of legislative history under the
Constitution. This is nothing less than legislative heresy, and ``With
new opinions, divers and dangerous, which are heresies, and, not
reform'd, may prove pernicious.'' It is a pernicious amendment, and it
is bound to have pernicious effects, if it is written into law.

Let us now take a look at rule XIV of the Standing Rules of the
Senate and determine whether or not each of the so-called bills and
joint resolutions will have complied with the provisions of rule XIV.
Rule XIV, paragraph 2, reads as follows:

Every bill and joint resolution shall receive three
readings previous to its passage, which readings on demand of
any Senator shall be on three different legislative days . .
. and the Presiding Officer shall give notice at each reading
whether it be the first, second, or third.

Now, are we to pretend, Mr. President, that each of these little
illegitimate ``billettes'' which are going to be sent down to the
President for his signature, does anyone here have the gall to say that
each of these will have been read three times? Well, that is what rule
XIV says with regard to bills and joint resolutions. It says:

Every bill and joint resolution shall receive three
readings previous to its passage, which readings on demand of
any Senator shall be on three different legislative days.

Paragraph 3, rule XIV, Standing Rules of the Senate:

No bill or joint resolution shall be committed or amended
until it shall have been twice read, after which it may be
referred to a committee.

Mr. President, not one of these 2,000 little ``billettes'' will have
been referred to a committee. Not one will have been twice read. Not
one will have been once read. Not one will have been three times read.
Not one will have seen the inside of a committee room, and it will be
sure they will see the inside of the enrolling clerk's committee room.
He might be able to take them home at night, over the weekend, do his
work at home, get a pair of scissors, scotch tape, or old-fashioned
library glue and take home some of these pre-prepared forms and enroll
the bills. Do it at home.

No bill or joint resolution shall be committed or amended
until it shall have been twice read, after which it may be
referred to a committee.

Paragraph 4:

Every bill and joint resolution reported from a committee,
not having previously been read, shall be read once . . .

Not one of these little orphans will have been reported from a
committee. And so rule XIV will not be complied with.

Every bill and joint resolution reported from a committee,
not having previously been read, shall be read once, and
twice, if not objected to, on the same day, and placed on the
Calendar in the order in which the same may be reported.

Not one of these will ever see the calendar. Not one will ever be on
that calendar, and we can thank heavens for that, because if all these
appeared on the calendar, the calendar itself would weigh, with 13
appropriations bills if they all land on there at the same time toward
the close of the fiscal year, the Calendar of Business would be thicker
than this stack of bills. That would be an illegitimate calendar made
up of illegitimate little bills.
Paragraph 5:

[[Page S4230]] All bills, amendments, and joint resolutions
shall be examined under the supervision of the Secretary of
the Senate before they go out of the possession of the Senate
. . .

Not according to this amendment. They are not going to be examined
under the supervision of the Secretary of the Senate. They are going to
be examined under the supervision of the clerk of the other body. The
Senate will turn over everything to the other body. Let the enrolling
clerk of the other body, because that is where the bills are going to
originate, let the enrolling clerk in the other body do the enrolling;
let him do the cutting and pasting, gluing together. The Secretary of
the Senate can take a walk. He will not have anything to do with it.
It says:

. . . All bills and joint resolutions which shall have
passed both Houses shall be examined under the supervision of
the Secretary of the Senate, to see that the same are
correctly enrolled . . .

The Secretary of the Senate is not going to do that under this
amendment. Under this amendment, the clerk of the other body will see
that they are correctly enrolled.

. . . and, when signed by the Speaker of the House and the
President of the Senate, the Secretary of the Senate shall
forthwith present the same, when they shall have originated
in the Senate, to the President of the United States.

Well, most of these will not have originated in the Senate.
Reading from paragraph 7:

When a bill or joint resolution shall have been ordered to
be read a third time, it shall not be in order to propose
amendments, unless by unanimous consent, but it shall be in
order at any time before the passage of any bill or
resolution to move its commitment; and when the bill or
resolution shall again be reported from the committee it
shall be placed on the Calendar.
When a bill or resolution is accompanied by a preamble, the
question shall first be put on the bill or resolution and
then on the preamble . . .

So, Mr. President, if there is a preamble on each of these bills--the
preamble on the parent bill, I presume, would have to be on each of the
little mini-bills, and the question would have been first on the bill
and then on the preamble.
No Senator can, of course, say with a modicum of truth and honesty
any vote occurred on that bill or preamble.
So much for the Standing Rules of the Senate.
Perhaps that can bear further study on a later date.
The hundreds of little counterfeit bills and joint resolutions will
not have received three readings prior to their passage, nor will they
have been examined under the supervision of the Secretary of the Senate
to see that they have been correctly enrolled.
Simply put, what this amendment does is to require the enrolling
clerk of the House, or the Senate, to take appropriation bills as well
as direct spending bills and those containing certain targeted tax
benefits and break those bills down into numerous parts after they have
been passed by both Houses. How many parts would depend on how many
numbered sections and unnumbered paragraphs the enrolling clerk found
in the complete bills.
To make matters worse, however, section 2 of the amendment requires
that any appropriation measures reported by the Committees on
Appropriations of the House and the Senate must contain the ``level of
detail on the allocation of an item of appropriation as is proposed by
that House such as is set forth in the committee report accompanying
such bill.'' The same requirement would be placed on conference
reports, as well. These requirements could be waived or suspended in
the House or Senate only by an affirmative vote of three-fifths of the
Members of that House duly sworn or chosen. Similar requirements would
apply to tax expenditure and direct spending bills.
What this means, Mr. President, is that the Appropriations Committees
would be required to place into each bill all of the literally hundreds
and in some cases thousands of items that are now contained in the
committee reports and the conference report, whereupon each of these
items would then be separately enrolled and become a separate law.
This process fails to recognize that unlike those of States, which
are highly itemized, Federal appropriation bills generally contain a
number of large appropriations, with the details of how the funds are
to be spent set forth in the accompanying reports. This practice has
worked well and is favored by the executive branch because it enables
agencies to respond to budgetary changes during a fiscal year by moving
funds from one area to a more pressing area. This process of
reprogramming funds is conducted pursuant to well-established
procedures which ensure that the Federal Government can carry out its
responsibilities within the general purpose specified in each account.
For example, the Energy and Water Development Appropriations Act for
fiscal year 1995 contains a lump-sum of $983,668,000 to cover general
construction for the Corps of Engineers. The statute identifies 34
specific projects, totaling $120,126,500. Most of the detail, however,
is contained in the conference report, which I have shown, instructing
the Corps of Engineers how to spend the nearly $1 billion. Because the
instructions are in a nonstatutory source and not a public law, the
agency can shift funds within the lump sum in response to their needs--
often requiring approval from review committees.
Yet, under the pending proposal, reprogrammings will no longer be
possible. Rather, every item listed in appropriations conference
reports would be considered an ``item'' and, as such, would be
separately enrolled. If that were done, then all of these items would
be frozen in their own separate laws and it would be illegal to shift
funds from one area to another without a change in statute. This would
mean a large increase in congressional workload. For every mid-course
correction needed by every agency of Government, the President would
have to seek legislation and we would have to enact every shift in
funds. Imagine how inefficient and cumbersome this would be.
I asked our Appropriations Committee staff to count up the number of
``items'' there are in each of the fiscal year 1995 appropriations acts
and conference reports which would have to be separately enrolled under
the pending amendment. Senators will recall that, under section 2(c)(1)
of the amendment, it will not be in order to report an appropriation
conference report that fails to contain the level of detail of an item
of appropriation such as is set forth in the statement of managers
accompanying that report. This means that every appropriation now named
in these statements of managers will have to be placed in the
conference report and, subsequently be separately enrolled and sent to
the President as a separate minibill which, if the President signs it,
will become a separate law.
One of the 1995 appropriation acts with the largest number of items
is the Energy and Water Development Appropriation Act.
And as I have already demonstrated, the law is 17 pages in length and
the statement for which every item has been provided is 116 pages in
length.
These two documents--the Public Law and the conference report
containing the statement of managers--are the culmination of months of
hearings, of subcommittee and full committee markups, of passage by the
House and Senate, and of a conference to settle the differences between
the two Houses. After all that work, and after adoption of the
conference report and the amendments in disagreement, this
appropriation bill finally became a public law and it is being carried
out pursuant to this conference report and statement of the managers.
Mr. President, as I have already shown, this stack of paper has been
prepared for the Energy and Water Development Appropriation Act for
1995 in conformance with Mr. Dole's proposal. And just in case there
may be some Members or staffs or people out there in TV land, this is
the energy and water--I cannot say bill. These are the 2,000 odd bills
that would be enrolled by the clerk of the other body and sent down to
the President and which in fact constituted the one bill, which had
only 16 pages, which is referred to as Public Law 103-316 that is the
energy and water appropriation bill. That is it, 17 pounds--17 pounds.
Each of those would have to be signed by the President pro tempore
and the Speaker of the House, and each would have to be signed by the
President, unless he decided to veto them or not sign them and let them
go into law without his signature. He might ease
[[Page S4231]] his workload by following that course of action.
Each of the items contained in that public law, which I hold in my
hand--right here--itemized in the tables of the conference report have
been enrolled separately pursuant to section 4 of the amendment that
has been offered by the distinguished majority leader. Each item of
appropriation will have to be separately signed by the Speaker of the
House and by the President of the Senate, and so instead of that one
public law and that one conference report we will have over 2,000
public laws for just one appropriation act.
Mr. President, is this not sheer madness? Sheer madness. All 12 of
the other appropriation acts will face similar requirements. The
estimates are that if the amendment offered by Mr. Dole had been in
effect for fiscal year 1995, the Agriculture Appropriation Act would
have been broken down into 757 separate acts; the Commerce, Justice,
State, and Judiciary Appropriation Act would have been broken down into
924 acts; the District of Columbia Appropriation Act would have been
broken down into 165 little enrolled bills which later became acts,
public laws; the Energy and Water Development Appropriation Act as I
already have said would have been broken down into 2,000 acts; the
Interior Appropriation Act would have been broken down into 1,000
separate acts; the Labor, Health and Human Services, Education
Appropriation Act would have been broken down into 200 acts; the
Transportation Appropriation Act would have been broken down into 750
acts; the Treasury, Postal Service Appropriation Act would have been
broken down into 479 acts; the Defense Appropriation Act would have
been broken down into 2,000 acts; the Military Construction
Appropriation Act would have been broken down into 225 acts; the
Foreign
Operations Appropriation Act would have been broken down into 225
acts; the VA/HUD Appropriation Act would have been broken down into 800
acts; and the Legislative Branch Appropriation Act would have been
broken down into 100 acts.

Perhaps we should call them actlettes, 100 actlettes.
That comes to a total of 9,625 minibills, or billettes or actlettes,
or public lawlettes--public lawlettes, 9,625 that would have been
necessary in 1995 rather than the 13 annual appropriation acts under
which we are currently operating.
So, here we will have passed 9,625 public laws and I would have
gotten credit for only voting on 13 of them--13; 13 rollcall votes. I
answered every one of them, yet there would have been 9,625 separate
legislative acts, not one of which passed the House or the Senate, to
say nothing of both Houses.
Since most of the annual appropriation bills are not finalized until
the last few days before the beginning of the fiscal year to which they
apply, one can see that this proposal, if enacted, would succeed in
bringing the appropriation process to a virtual standstill. It would
also be next to impossible for the President to approve these thousands
of bills before the beginning of the fiscal year, because there would
be no practical way to process that many bills, get them signed by the
Speaker and the President of the Senate, sent to the White House, and
signed by the President in such a short time.
Therefore, what we would be setting up is a more complicated process
under which a President and a Congress, through no fault of their own,
would not be able to complete its work in a timely fashion. We would be
virtually guaranteeing a return to government by continuing resolution.
But, on the other hand, think of the increased media attention it
will bring to bill-signing ceremonies.
I have been down at White House on a few occasions, a few occasions.
I have attended bill-signing ceremonies. The distinguished Senator from
Nebraska has been there on bill-signing ceremonies. We stand there
behind the President. We might even get up against him so we can say to
our grandchildren, this coat--this coat touched the President's coat.
See? This coat touched the hem of his garment. And the President signs
the bill, just a little bit at a time, and hands back the pen; signs
another little portion and hands back the pen.
I take that pen home and have it framed and I am able to tell my
grandchildren that there is a pen that the President used in signing
such and such a bill. Yes, the pen, he gave it to me. I never would
have thought it, this boy from the hill country--I never thought I
would be in the White House, never would have thought I would have been
in the Oval Office. And here, just to think of it, here is a pen that
the President signed the bill with and gave it to me.
``Aren't you proud of your grandpa? Aren't you proud of your
grandfather?"
My, what I have been missing, though. I have only had a few of those
pens.
Now think of the increased media attention that would be given to one
of those bill-signing affairs. For just the Energy and Water
Development Appropriation Act the President would have to sign all
these 2,000 little minibills. That would become an all day affair; let
us go down there for a whole day, the whole day. You would have to go
down to the White House early in the morning with the subcommittee
chairman, in this case it would be Mr. Domenici, and Mr. Johnston.
We would go down with the subcommittee chairman and ranking member,
leading the honored guests along with their House counterparts. The
President and appropriate members of the Cabinet would greet the
congressional delegation out on the White House lawn--would you say?
Out at the Rose Garden. They would be all lined up out there in the
Rose Garden. Up would drive one of these 16-wheelers, a big truck. It
would back its way up to the gate and they would start unloading all
those pens to sign those bills.
After a photo-op, the President would take out his first of many pens
and begin to sign this stack of 2,000 or so bills into law. He would
hand out pens to the gathered congressmen. There might be 24 separate
laws for New Mexico projects, so Senator Domenici would get 24 pens.
Perhaps Louisiana would have 32 projects and, therefore, 32 laws. So,
Senator Johnston would get 32 pens, and so on.
This process of signing over 2,000 minilaws would take quite some
time. There would probably have to be a lunch break, followed by more
signings in the afternoon. The President would say ``You boys''--he
would call us boys. I would not think anything of it, he calling me
boy. My mom used to call me boy. She would say, ``Robert, you be a good
boy. I'll always pray for you.'' He would say, ``You boys come back
this afternoon after lunch and we will finish signing these bills.'' Of
course we would be back because we would not want to miss out on our
pens.
I expect he would draw a good deal of attention. It would become a
very popular ritual for Congress and the President alike.
Now, let us look at what happens when a President decides he does
not----
Mr. EXON. Will the Senator yield for a brief question?
Mr. BYRD. Yes.
Mr. EXON. I have been listening with great interest. The Senator left
out whether or not he has made any calculation as to what the cost to
the taxpayers would be, for all of those pens? Do you have any
estimation of what that would be, in dollars, at the present time? Or
is that just a minor matter?
Mr. BYRD. It is not a minor matter. We put it on the computer and the
computer blew up. We tried to get that information out of the computer
and the computer blew up.
Mr. EXON. Gone.
Mr. BYRD. Gone.
Mr. EXON. More expenses to the taxpayer. I thank my friend from West
Virginia.
Mr. BYRD. I thank the Senator from Nebraska. I am sorry he has
decided to retire, after this term. We will miss him and he will miss
receiving all those pens. He will miss traveling down to the Rose
Garden, having the President hand him all those pens, for items that
are in the bill for Nebraska.
Seriously, I do say I shall miss him. He is a stalwart Member and one
who is forthright always with what he says. He has a backbone, the
courage of his convictions.
Now let us look at what happens when a President decides he does not
care to sign a number of these many
[[Page S4232]] thousands of appropriation bills. In this case, those
unsigned bills must be returned to the House of Congress which
originated them. In the case of appropriation bills, the overwhelming
majority will have originated in the House of Representatives.
Therefore, any of these thousands of annual appropriation bills which
the President returns unsigned will go to the House of Representatives.
Under article I, section 7, clause 2 of the Constitution, the House of
Representatives will then have total control of whether, and if so,
when to schedule a veto override vote. Let us say, for example, that a
President decides that he will not sign 5 percent of these thousands of
appropriation bills. The other 95 percent are fine--they get the
blessing of the President's unelected advisers. But these same advisers
recommend, and the President agrees, that 5 percent of them should not
be signed. That is not an unlikely scenario. The President's OMB
personnel will have scoured every one of these thousands of bills and
they are likely to find reasons to send a number of them back to the
House of Representatives; in this example 5 percent, or several hundred
of the bills are returned. What happens next? Under the Constitution,
that will be left entirely up to the House of Representatives. If the
House decides not to schedule a veto override vote on any or on all of
these returned bills, that is the end of it. The Senate will have no
say in the matter. Are Senators prepared for that state of affairs? Are
you prepared, Senators, to have to beg the House to take up a vetoed
bill?
I say to the Senator from Michigan, the able Senator from Michigan
[Mr. Levin], are you prepared to go over to the other body and beg the
House to take up that vetoed bill so that you at least get a vote in
the other body on the item that is of importance to your State?
Mr. President, this amendment, in the opinion of various scholars,
would be, in all likelihood, unconstitutional. For example, in recent
testimony before the Senate Judiciary Committee, Mr. Walter Dellinger,
Assistant Attorney General of the U.S. Department of Justice, made the
following statement:

As much as I regret saying so . . . [the] proposal for
separate enrollment also raises significant constitutional
issues, you know, that would atomize or dismember one of
these large appropriations bills into its individual items
which the President could then sign. I think it is either
invalid under the clause, in my view, or, at a minimum, it
raises such complicated questions under the Presentment
Clause that it is a foolhardy way to proceed because if we
and all of our predecessors are right, I think that which has
to be presented to the President is the thing that passed the
House and the Senate, and that which passed the House and the
Senate is the bill they voted on on final passage, not some
little piece of it or a series of little pieces of it. So I
have doubts about it.

That was Mr. Walter Dellinger, constitutional scholar, speaking.
Mr. President, although the bill before us today is being touted by
its sponsors as a line-item veto bill, that description is not correct.
This bill would not give the President line-item veto authority. The
only way for Congress to confer such power is through an amendment to
the Constitution. It cannot be done by mere statute. Therefore, a
fundamental thing that needs to be said about this bill is that it is
not, in any way, shape, or form, a line-item veto measure.
We could not give the President a line-item veto. Congress could not
pass that power on to the President. Only the people could do that by
way of constitutional amendment. But we could be just as effective in
shifting the power of legislative branch over the purse to the
President by way of a statute. That is what is about to occur.
Indeed, I question why, if not for partisan political reasons, anyone
would tell the American people the Senate is considering a line-item
veto bill, when, in fact, we are not?
In fact, we are not. That kind of misinformation does nothing but
confuse, mislead, and further alienate an already cynical public. So
Senators can disabuse themselves of that notion right from the start.
No one is going to be able to go home, and, in all honesty, claim
political favor by telling the voters they were for or against the
line-item veto.
Instead, what we have before us is a separate enrollment bill, an
enormously different creature. In short, what we have here is a slice-
and-dice approach to legislating.
I have been in the legislative branch for 49 years. I have never seen
anything like that.
Semantics aside, though, what the proponents of this measure have
presented to the Senate is a piece of legislation that would set up a
logistical nightmare, that would create an unworkable process, and that
is obviously not well thought out. This is the product of a desperate
political compromise aimed at getting anything through Congress which
can be mislabeled line-item veto.
Logistics are not, however, the only problem. In fact, they are not
even the most serious. What is fatal to this measure, as it would be
with any type of separate enrollment procedure, is that the entire
scheme is unconstitutional--unconstitutional. My colleagues and I have
been in this business for years. This is my seventh term. I am in my
seventh term. Seven times I have asked the people of West Virginia to
return me to the U.S. Senate, and three times in the other body prior
to my coming to the Senate, two times in the State House and once in
the State Senate. In all of those years, not once have I ever met a
creature like this, a bill that is not a bill, but call it a bill; and
we deem that it is passed in the House and the Senate.
What is fatal is that this bill is not constitutional, in my
judgment.
Anyone who reads the plain language contained in the first and
seventh sections of article I of the Constitution will see this to be
true. For those who I suggest are attending a matinee and who arrived
late on the scene, let me read again. Read the words, those two
sections and one will see why this measure violates the supreme law of
the land.
Article I, section 1, states:

All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a
Senate and House of Representatives.

So there are 25 words that state where legislative power under the
Constitution will vest. It will vest in a Congress of the United States
which shall consist of a Senate and a House of Representatives. All
legislative power will repose in this branch, this legislative branch.
With those 25 words, the very first sentence of the Constitution, the
Founding Fathers established the doctrine of separation of powers.
We find in section after section, article after article, paragraph
after paragraph, following on that first section of the first article
the doctrine of separation of powers laid out in great detail.
They explicitly placed all legislative powers in a Congress. The
power to fashion the laws that guide this Nation, the power to repeal
those laws as we see fit, and the power to amend a bill as it makes its
way through the two Houses of Congress, those powers reside here in the
Congress. The Constitution does not confer those powers upon any other
individual, or upon any other branch of government.
The President is not licensed by those powers, by those words, to
legislate.
All legislative powers herein granted shall be vested in a Congress
of the United States which shall consist of a House and a Senate and a
House of Representatives.
The Constitution does not confer those powers upon any other
individual, upon the President, upon any enrolling clerk, or upon any
other branch of government. The President is not licensed by those
powers to legislate. He alone cannot pass a bill. The President alone
cannot repeal a bill. The President alone cannot amend a bill. Only the
Congress has such power.
May I say to the distinguished Senator from Nebraska, and the able
Senator from Michigan, that under this bill things will have changed.
Under this amendment, the President would be given legislative power.
Do you believe that? He will have been given legislative power. Now, if
I hope to get an amendment added to the bill, I send to the desk an
amendment, the clerk reads the amendment, and the question is then on
the amendment by the Senator from West Virginia. If the Members of the
Senate, or the majority thereof, support my amendment, it is added to
the bill. That is not enough. That amendment has to be agreed to in
[[Page S4233]] the other body. So I cannot amend a bill; I can only be
an instrument in the amending of it. I alone cannot amend a bill. It
requires a majority of both Houses to support the instrument which I
send to the desk in the form of an amendment.
But under this amendment which Mr. Dole has introduced, and which is
cosponsored by several Republican Senators, the President alone can--by
his hand alone--repeal a bill. Here is a section of the bill that is
sent to the President by the enrolling clerk. Here is another section
of the bill. Here is another item of the bill sent down by the
enrolling clerk. The President may, by his wet veto pen, strike that
one. He has amended that bill by his veto pen. He may strike that one.
That is a whole section. He amended that bill--one man alone. And if
two-thirds of both Houses do not override him, then he has altered that
bill; he has amended it just as surely as I would have amended the bill
by sending a piece of paper to the desk, having a number on it and
striking from the bill that particular section. One man will have the
power that only a majority of both Houses on the hill here could have
in amending a bill.
So he will have been given the power, unilaterally and selectively,
to change what had previously been passed by the legislative branch.
Through a separate enrollment procedure, the President becomes the
legislative equal with the House and Senate, because he would have the
power to amend. No longer would the Congress be the sole legislative
body in our tripartite system. That is why this bill implicitly
vitiates the separation of powers, because it hands to the executive
branch one of the most important characteristics of legislative power.
The ability to amend legislation, and the right of extended debate,
are the two most important features that set the U.S. Senate apart from
every other legislative body in the world. This is the only upper
Chamber that has essentially unlimited amendment and debating powers.
With very few exceptions, which we ourselves have instituted, the
Senate can take any bill passed by the House of Representatives and
change that bill any way the Members think necessary and proper. But
under the process contained in this bill--I will call it a bill; it is
a substitute bill introduced by the majority leader--under the process
contained in this bill, the President would share that power. If he
were to veto even one of the thousands of bills created as a result of
separate enrollment, he would have altered the original bill agreed to
by the House and Senate. And that original bill, may I say to the
Senator from Nebraska, that original bill, may I say to the Senator
from Michigan--if the amendment stricken by the President had been
stricken by the Senate or by the House, the bill may never have passed,
because it would have been altered. Yet, the President can do that if
the substitute bill is agreed to. He would not have vetoed the entire
bill; he will have altered the bill. He would have vetoed only a
portion of it, thereby amending the underlying bill.
How does that situation square with the words in article I, section 1
of the Constitution, that ``all legislative powers'' herein granted
``shall be vested in the Congress of the United States.'' The ability
to amend is a legislative power, and all legislative powers are to be
vested in the Congress of the United States. How, then, can anyone
stand here and say they see no infraction of the clear mandate
contained in the Constitution? How can it be claimed that a President
who can amend has not been given legislative power?
The U.S. Supreme Court, in its landmark ruling in the 1952 case of
Youngstown Sheet and Tube Company versus Sawyer, the steel seizure
case, spoke to the argument perfectly. The Court said:

In the framework of our Constitution, the President's power
to see that the laws are faithfully executed refutes the idea
that he is to be a lawmaker. The Constitution limits his
functions in the lawmaking process to the recommending of
laws he thinks wise and the vetoing of laws he thinks bad.
And the Constitution is neither silent nor equivocal about
who shall make laws which the President is to execute.

Mr. President, recommending laws and vetoing laws are the only two
lawmaking functions that constitutionally confer to the President,
according to the Supreme Court. They did not include the power to
amend. They did not say the President is authorized to selectively
amend what has previously been passed by the Congress. All the
Constitution allows, as interpreted by the Court, is the vetoing of
laws.
In addition, this question of procedure, as it pertains to the
separation of powers, is hardly academic. It goes to the very heart of
our constitutional form of government. Again, I refer my colleagues to
the words of the Supreme Court. In its 1982 ruling in INS versus
Chadha, the Court noted that:

Explicit and unambiguous provisions of the Constitution
prescribe and define the respective functions of the Congress
and of the Executive in the legislative process.

Those provisions, the Court said, ``. . . are integral parts of the
constitutional design for the separation of powers.'' Thus,

It emerges clearly that the prescription for legislative
action in Article I, sections 1,7, represents the Framers'
decision that the legislative power of the Federal Government
be exercised in accord with a single, finely wrought and
exhaustively considered, procedure.

But in no way would this new process coincide with the ``single,
finely wrought and exhaustively considered, procedure'' contained in
article I.
Separated powers, and the system of checks and balances that maintain
the separation, were not an abstract or fleeting concept to the men who
framed our Constitution in Philadelphia. The doctrine is writ large
throughout the entire document. It is fused into every article, every
section, and nearly every clause of that great charter. One need only
read the Constitution to understand how fervently our Founding Fathers
embraced separated powers. But with this measure, we say those ideals
are not really important, that they do not matter. I am not prepared,
as others may be, to declare myself so wise as to be willing to undo
what was so finely done more than 200 years ago.
As such, all Senators effectively lose the power of their vote. We
would be creating a glut of little ``its''--note that in the
Constitution it refers to ``it,'' ``it,'' ``it''--the pronoun with the
antecedent ``bill.'' ``It.'' There is not going to be any ``it'' with
an appropriation bill that passes if this amendment by Mr. Dole is ever
adopted. There will be hundreds and hundreds of little ``its.'' Read
the bill. Read it and see how each of us gives up the right to vote on
any of the new bills.
We will not have voted on a single one of them. Not one of the bills
that goes to the President will have been voted on by Mr. Levin. Not
one. This amendment by Mr. Dole does not say where the original bill
will be kept. Nobody knows what happens to it.
The enrolling clerk in the House presumably can just throw it in the
wastebasket.
Read the bill. Read it and see how each and every one of us gives up
the right to vote on any of the new bills.
Mr. President, what this charade amounts to is a colossal non
sequitur. It simply does not make sense. On the one hand, we are being
told that a bill is a bill, which means the President can veto it. On
the other hand, though, the sponsors turn right around and claim that a
bill is not necessarily a bill--it can be ``deemed'' to be a bill--so
it does not need to be passed by the House and Senate. Which is it?
When does a bill become a bill? How can the sponsors of this
legislation tell us that any of those new bills are not really a bill?
How can they claim that the process created under separate enrollment
is a constitutional process? They cannot.
Even the authors of this legislative sorcery agree that, on its own,
the separate enrollment process cannot meet the test of
constitutionality. Again, I implore Senators to read this measure which
is now pending before the Senate. Read section 4(b), starting on page
4, line 8. It says, and I quote:

A measure enrolled pursuant to paragraph (1) of subsection
(a) with respect to an item shall be deemed to be a bill
under Clauses 2 and 3 of Section 7 of Article 1 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.

So here, Mr. President, we have a clear acknowledgement, an absolute
declaration from the very people who
[[Page S4234]] wrote this bill that the process that they want to
codify is unconstitutional. They are not talking about bills. They are
talking about counterfeit measures that are deemed to be bills.
So this is an absolute declaration from the very people who wrote the
bill that the process they want to codify is unconstitutional, that it
does not meet the standard set up under article I of the Constitution.
The authors say, right there in that passage, that ``a measure
enrolled pursuant to paragraph (1),'' which means taken out and
separately enrolled, ``shall be deemed to be a bill.''
Now, what does the dictionary say that ``deem'' means? Deem means to
consider--considered to be a bill; to be considered. We will just
pretend that it is a bill, may be thought of as a bill, but when you
strip all that language away, it is not a bill. If it were a bill, it
would not say it may be ``deemed'' to be a bill.
The authors say right there that ``a measure enrolled pursuant to
paragraph (1),'' which means taken out and separately enrolled, ``shall
be deemed to be a bill'' for purposes of the Constitution.
So how can any of my constituents hold me responsible for the
enactment of any one of these little billettes, these little
illegitimate offspring of unknown parents? How can anyone hold me
responsible for having voted for them, those thousands of new little
``its'' that were created through the separate enrollment process, that
are going to be ``deemed'' to be bills? What the sponsors are admitting
in that language is that those new bills are not, in fact, really
bills. They readily concede, right there in their own legislation, and
in their own words, that all those new little ``its'' are not bills.
If a piece of legislation that comes about as a result of being
separately enrolled is an actual bill, then why is it necessary to have
it ``deemed'' to be a bill. The answer is that the deeming is required
because none of those mini-bills are, in reality, legal,
constitutionally enacted bills. And the authors of this measure know
that fact.
I can assure my colleagues that none of this is some misguided
conclusion arrived at as a result of applying a radical new
interpretation to the Constitution. This is not judicial logic gone
awry. Quite the opposite. It is the considered judgement of renowned
scholars that a separate enrollment procedure is unconstitutional on
the grounds that it violates the presentment clause as written in
Article I, section 7, clause 2.
The truly sad fact in all of this, is that we do not need to proceed
along these lines. We do not need to trample on the Constitution to
accomplish what is intended. We have an alternative option, which
everyone agrees is constitutional. The bill originally introduced by
Senators Domenici and Exon, S. 14, would accomplish the goal of
guaranteeing the President a vote on his rescission proposals. And,
most importantly, it would do it through a process which does not
sacrifice to the alter of political expediency the sacred tenets
contained in the United States Constitution.
S. 14 would have allowed the President to go through any
appropriations bill and any tax bill containing targeted tax
expenditures and excise those items he felt were unwarranted. The
Congress would then have been forced to vote on each of those
proposals. It would not have created an unworkable process. It would
have maintained the separation of powers. It would have been
constitutional. But for some reason, the authors of the bill before us
do not want that. They are not satisfied with the procedure in S. 14.
In short, they are apparently not happy unless we ravage the most
important constitution ever laid down in writing.
The procedure which is set forth in this amendment is not, in my
opinion, in agreement with the words of the Constitution which govern
the passage of a bill. It is not in agreement with those words. The
Constitution, in article I, section 7, clause 2, says that a bill shall
have passed both Houses before it is presented to the President. It is
interesting to note that those who wrote the Constitution in clause 2
referred to a bill, whereas in clause 3 of section 7 of article I, they
wrote of resolutions, orders, and votes. In other words, they covered
the entire legislative landscape. They knew exactly what they were
doing.
Whatever the particular vehicle--whether it be a resolution, or vote,
or an order. Of course, orders do not go to the President for his
signature; votes do not go to the President for his signature;
resolutions do not go to the President. So whatever the particular
vehicle, it had to travel the same legislative course outlined in
clause 2 for a bill. In other words, whatever it is, it has to be
passed by both Houses and presented to the President. He may then sign
it, veto it, or let it become law without his signature, or he may give
it a pocket veto, depending on the circumstances.
Furthermore, nothing in the pending amendment would deal at all with
the more than $400 billion of lost revenue each year that results from
existing tax expenditures. I know Senators have heard the proponents of
this proposal say that it is very broad. They say it will cover
everything--appropriation bills, direct spending bills, and bills
containing tax preference items. But is that true? The answer is no.
All any Senator has to do is read the language of the amendment. It
reads as follows, as it related to entitlements and targeted tax
benefits in section 2(b)(1) on page 2 of the amendment:

A committee of either the House or the Senate shall not
report an authorization measure that contains new direct
spending or new targeted tax benefits unless such measure
presents each new direct spending or new targeted tax benefit
as a separate item and the accompanying committee report for
that measure shall contain such level of detail including, if
appropriate, detail related to the allocation of new direct
spending or new targeted tax benefits.

So, there you have it. This proposal will not touch one dollar--not
one thin dime--of any existing direct spending program or any of the
124 existing tax expenditures. Not one dollar. Not one dime. Not one
copper penny. The problem is, you see, that once these tax breaks are
written into law, they rarely get reviewed again. And, nothing in the
amendment that is before the Senate will require that these existing
tax breaks should be looked at and made subject to veto by the
President, just like annual appropriation bills.
These are the tax dollars that are lost to the Federal treasury due
to special provisions contained in the Federal Tax Code. These various
provisions allow deductions, exemptions, credits, or deferrals of taxes
and, in effect, reduce the amount of tax paid by those who qualify for
such items. The word ``expenditure'' is used to highlight the fact that
these tax preference items are, in many respects, no different than if
the government would write a check to the different individuals or
businesses who qualify for them.
The plain truth is that tax expenditures are nothing more than
another form of government spending. Unfortunately, they receive
little, if any, scrutiny because they are not subject to the annual
authorization or appropriation processes that other programs are
subjected to. Rather, once they are enacted into law, tax expenditures
rarely ever again come under congressional scrutiny. In fact, in a June
1994 report on this issue, the General Accounting Office found that
almost 85 percent of 1993 revenue losses from tax expenditures were
traceable to provisions enacted before 1950, while almost 50 percent of
those losses stem from tax expenditures enacted before 1920.
Because these tax breaks have largely escaped congressional review,
many have simply outlived their economic usefulness. But until they
come under the same scrutiny as other Federal spending, we will not
know for sure which ones should be modified or eliminated and which
ones should be kept.
We do know that, like entitlement spending, tax expenditures are
projected to grow dramatically over the next several years. In a
committee print issued in December 1994 by the Senate Budget Committee
entitled, ``Tax Expenditures, Compendium of Background Material of
Individual Provisions,'' the aggregate cost of these provisions will
equal $453 billion for fiscal year 1995 and will rise each year
thereafter to a total of $568.5 billion in fiscal year 1999.
The cumulative increase for those 4 years will equal $283.9 billion.
That level of increase dwarfs the total amount that is spent each year
on our
[[Page S4235]] entire domestic discretionary budget which amounts to
only $225.5 billion for fiscal year 1995 and is not projected to grow
at all over the next four years. In fact, to the contrary, it appears
that domestic discretionary spending will be called upon to suffer even
further cuts below a hard freeze than are already contemplated under
OBRA 1993.
When one considers that this area of the budget alone, namely, tax
expenditures, escapes the deficit-cutting axe that is being faced by
discretionary spending and hopefully to the area of entitlement
spending as well, it is little wonder that special interest groups find
these tax breaks to be very appealing.
I am not saying that all tax expenditures are bad. In fact, many
serve a worthwhile public purpose. The earned income tax credit has
benefited many hard-working Americans by lifting them out of poverty
and has enabled them to be able to support their families. A number of
others--such as those for charitable contributions, home mortgage
interest deduction, as well as a number of others--clearly serve a
useful purpose and are in the national interest. But I am convinced
that a number, perhaps a large number, of the more than 120 separate
tax expenditures in current law could be either modified or eliminated
altogether.
In its June 1994 report on this subject, the General Accounting
Office recommended that tax expenditures should be further integrated
into the budget in order to highlight the vast resources lost to the
Federal Government by these tax breaks. Moreover, these expenditures
should have to undergo periodic program reviews within the
congressional tax-writing committees. One way to ensure such scrutiny
would be to sunset most tax expenditures, thus requiring the
reenactment of those that are still worthwhile at regular intervals.
But, as I have shown, this amendment fails to do that.
And I am fully prepared to work with my colleagues in attempting to
enact legislation that would improve the existing rescission process
and would guarantee that a President's rescission proposals get
considered and voted upon--just as the proposal that was authored by
Mr. Domenici and Mr. Exon would have done--and, further, that any
savings resulting therefrom be applied only to deficit reduction. What
I am unwilling to do is to support any legislation that does not
adequately guard the constitutionally granted congressional power of
the purse.
I believe that the separate enrollment measure is constitutionally
flawed and would so encumber the existing appropriations and rescission
processes as to make it impossible for Congress and the President to
meet their responsibilities of enacting the annual appropriation bills
by the beginning of each fiscal year.
Finally, and critically important, Mr. President, this amendment will
not result in any deficit reduction whatsoever. None. Zilch. The reason
that is the case is because nothing in the amendment reduces Federal
spending. Under this amendment, any savings that might result from
vetoes of items in appropriation bills, or from vetoes of new direct
spending or new tax breaks, will not go toward deficit reduction.
Instead, those savings can simply be spent on something else. That is
the case because, unlike S. 14 or the Democratic alternative, which Mr.
Daschle will present, nothing in the Dole proposal reduces the
allocations of committees by the amount of the savings that will result
from the vetoes. Incredible as it may seem, the substitute does not
apply any of these spending cuts toward reducing the deficit. The
authors of the proposal, therefore, have chosen to allow all spending
reductions under their ``Separate Enrollment and Item Veto Act of
1995'' to be respent, rather than be applied to deficit reduction.
So, Mr. President, I urge my colleagues to defeat this proposal and
to vote for the Democratic alternative that will be presented by the
distinguished minority leader, which many of us will cosponsor, and
which will apply all of its savings from budget cuts to deficit
reduction.
I thank Senators who have patiently waited, and I yield the floor.
Mr. COATS addressed the Chair.
The PRESIDING OFFICER (Mr. Campbell). The Senator from Indiana is
recognized.
Mr. COATS. Mr. President, I appreciated the comments of the Senator
from West Virginia. I have been anticipating his arrival on the floor
to debate this issue. It is an important issue. It deserves full
discussion and debate.
We began this latest discussion, of course, on Thursday evening of
last week. Senator McCain and I discussed our proposal at length and
then, of course, we debated on Friday and all day Monday, and now it is
Tuesday.
Last evening, the majority leader offered an amendment to the
original proposal, offered by Senator McCain and myself, which, in this
Senator's opinion, substantially strengthens the effort which we are
undertaking by expanding the scope of the line-item veto to include not
just appropriations, but targeted tax expenditures, any new direct
spending and new spending in entitlements that change the law which
currently exists. It does not mean that new enrollees are not subject
to the benefits of entitlements as they currently exist on the books.
But it means that if attempts are made to expand those categories and
to provide new spending, they are also incorporated.

These were suggestions offered by Members of the Congress, in
particular Senator Stevens of Alaska, Senator Domenici of New Mexico.
We negotiated these changes. Many of these ideas originated in years
past, some of them offered by Senators from the other party.
I do not intend to take a great deal of time in responding to the
comments of the Senator from West Virginia. However, there are several
points I wish to make.
The Senator from West Virginia began his presentation by citing--and
I believe I am correctly quoting him--the ``frenetic efforts of
Republicans'' to bring a measure to the floor. Yes, there was
considerable negotiation, but it is negotiation upon a core and a base
of discussion around a concept which has been very much a part of the
history of this body.
Recent history, of course, in the last decade or so has shown that a
number of attempts have been made to bring line-item veto to a vote in
this body. All of them have been unsuccessful. There have been a number
of votes, all falling short of the necessary votes to either waive
provisions of the Budget Act or to break an attempted filibuster of the
effort.
So we have not been able to achieve 60 votes to bring the matter to
full debate and vote. But the concept of separate enrollment has been
discussed before on this floor at length and voted on, at least in a
procedural way. The underlying concepts of either enhanced rescission
or a process described as line-item veto or a discussion of line-item
veto, all of this has been very much a part of the debate and
discussion that has been present on this floor during the past decade.
But the concept of line-item veto goes back historically much further
than that.
In fact, it was in 1876 that then Representative Charles Faulkner of
West Virginia introduced for the first time the line-item veto concept.
It was referred to the Committee on the Judiciary where it there died,
and since that time about 200 line-item veto bills have been
introduced. In fact, in nearly every succeeding Congress a proposal has
been offered in varying forms but all centered around the same basic
premise, and that is will this legislative body cede to the President
some semblance of authority to provide a check and balance against the
spending power exercised by this body.
Now, as the Senator from West Virginia has enumerated, we are all
well aware of the provisions of the Constitution article I, section 7,
which outlines the procedures by which the legislature passes
legislation and by which the President approves it. And of course,
article I, section 7 clearly grants to the President the power to
reject what the Congress has proffered to him, or perhaps return is a
better word. It says that ``If any bill shall not be returned by the
President within 10 days after it shall have been presented to him, the
same shall be a law, in like manner as if he had signed it.''
But it also says that the President may ask this body to reconsider
what it has done and send back to us bills that we have forwarded to
him and it will require two-thirds vote of each body, both the House
and the Senate,
[[Page S4236]] in order to overturn what the President has done.
So the constitutional authority for the President to veto or reject
or return, however you want to phrase it, what this legislature has
presented is obviously well established as a part of the Constitution.
But the separate question is do we want to go one step further in
allowing the President the right within the legislation sent to him to
line item items back to this legislature, to look at the legislation
that we send to him and give the President the opportunity to say I
will accept this portion but not that portion. I will accept most of
what you sent but I want you to reconsider that separate portion.
That really is the question before us. As I said, there have been
nearly 200 attempts to do that. Most of those have died in committee.
Very few have been reported, and those that have were mostly reported
with adverse recommendations.
Our Founding Fathers discussed this issue. They were concerned about
the balance of power between the respective branches. That is why I
believe they wrote the veto power in the Constitution to the President.
But they were concerned about the unchecked power, the unbalanced power
of the legislative branch over the executive branch. In the Federalist
Paper No. 73, it was Hamilton who had this to say about the executive
veto.

The first thing that offers itself to our observation is
the qualified negative of the President upon the acts or
resolutions of the two houses of the legislature; or, in
other words, his power of returning all bills with objections
to have the effect of preventing their becoming laws, unless
they should afterwards be ratified by the two thirds of each
of the component members of the legislative body.

Mr. BYRD. Will the Senator yield? Will the Senator yield for a
question?
Mr. COATS. I would like to be able to give my statement and then I
will be happy at the end of that to yield. I know the Senator would
have many questions. I do not want to spend an excessive amount of time
because there are other Senators waiting to speak. If I could go
through my statement and then address the question, I would prefer to
do that.
Mr. BYRD. Very well.
Mr. COATS. Presidents throughout our history have asked for the line-
item veto. It goes all the way back to Ulysses Grant. It was President
Truman who said:

One important lack in the Presidential veto power, I
believe, is the authority to veto individual items in
appropriations bills. The President must approve the bill in
its entirety or refuse to approve it or let it become law
without his approval.

He later went on to say that it was a form of ``legislative
blackmail''--those are his words, legislative blackmail--when the
legislature sends to him a bill it otherwise knows needs to be approved
by the President or else the Government will cease to function or else
important appropriations for the provision of our national defense or
for the meeting of national emergency will have to be vetoed by the
President or accepted in whole even though it contains items which the
executive feels are not in the national interest and bear no
relationship to the legislation that is sent to him.
It is that practice that brings us to this point. It is the practice
of a Congress which has discovered that under the powers granted to it
by the Constitution rests and resides what I would term as an abusive
power, a power that does not go toward meeting the needs embodied in
the original appropriation or the original bill that is sent to the
President but which goes toward placating or pleasing an individual
parochial interest and is attached even though it is totally irrelevant
to the purpose for the original appropriation, attached because, as
President Truman said, we can hold this over the President's head
knowing that he needs this particular expenditure in order to meet a
pressing national need and his choice is limited to accepting the whole
or rejecting the whole.
It was in 1974 that this Congress stripped the President of his
executive power that was being exercised to impound funds, the power
that was exercised routinely from every President from Thomas Jefferson
to Richard Nixon. In fact, it was Jefferson who first employed the
power to refuse to spend appropriated funds in 1801 when he impounded
$50,000 that was appropriated for Navy gunboats. And it is the
particularly egregious practice, in this Senator's opinion, of loading
up otherwise necessary appropriations with items that are deemed
unnecessary, that necessitates, through line-item veto power, a check
and balance for the President, a restoration of the check and balance
power that allows someone--in this case the Executive--to put a
question mark on what we have done and to say, ``If you really believe
that is a necessary item, you have the constitutional power to override
my objection by a two-thirds vote.''
What that does is it sheds the light of public exposure, public
debate, and individual vote--an individual yea or nay on a particular
item--so our constituents, those we represent, have the ability to
examine how we have handled their tax dollars so that they can hold us
accountable, either favorably or unfavorably, for our actions, not on a
massive bill as a whole but on an individual item.
No longer will we be allowed the excuse of saying, ``Yes, I voted for
that particular measure, not because it contained the items you object
to, but because it had such a pressing national interest that it
overrode the specific objections.''
Our constituents say, ``But why did you not protest that particular
item?'' Frequently we find that particular item was buried deep within
a bill that was rushed to the floor to meet some national emergency or
was added in conference and brought back in a way that, under our
rules, is not amendable.
So what we are attempting to do with this process, with this concept
of separate enrollment, what we are attempting to do is to provide the
President with presentations from the legislature which are specified,
item by item by item, which the President with his able staff and with
the resources at their disposal can easily examine. They can look at
these items which do not comport with the thrust of the legislation
presented and send them back here for our review and, if we so choose,
our overriding that particular veto.
As opposed to the statement that the Senator from West Virginia made
about his fight to save the constitutional system, I would argue that
line-item veto is a fight to save the constitutional system, it is a
fight that honors what the Framers of our Constitution and what our
Founding Fathers attempted to achieve: a system of checks and balances.
It is difficult for this Senator to believe that the Founding Fathers
of this country, the Framers of the Constitution, intended that we
would present the Executive with a continuing resolution embodying
every penny of spending for this entire Federal Government and place it
on the desk of the President at the end of a session--sometimes it is
after we have adjourned that it arrives at his desk, although we are
still here in pro forma to finalize the formal adjournment--and say,
``Mr. President, take it or leave it. The entire budget of the United
States of America sits on your desk in one piece and your choice is to
take it all or reject it all.''
I would claim that is an abuse of the spending power, an abuse of the
power of the purse, an abuse of the Constitution, an abuse of what the
Founding Fathers intended as the way that body should act--act
responsibly.
The Senator from West Virginia has said that when all is finally said
and done, when we take Public Law 103-316, Making Appropriations for
Energy and Water Development for the Fiscal Year Ending September 30,
1995, and for other purposes--that all we send to the President is this
nice, neat little several-page piece of legislation. And that is a much
neater process than sending to the President the stack of separately
enrolled bills. In one sense it is, because it is much easier to read
through this small, little booklet than it is to peruse through that
stack of bills.
But what we have here and what we present to the President is
something that is so general that it is very difficult to itemize out
all that it accomplishes. It is a very neat way for Members to say, ``I
did not know what was in the final product.''
Under title I of this particular act that I am reading, it
appropriates, in
[[Page S4237]] one section here, ``$181,199,000 to remain available
until expended, of which funds are provided for the following
projects,'' in the amounts specified. And then it lists about 10
projects. But that $181 million actually goes to fund an additional 326
projects. So, when the President looks at this, it is extremely
difficult to determine which items are going to receive the specific
expenditures and which ones are not. Of course, it is impossible for
him to examine the legislation and come to the conclusion that there
are portions of this that should not be spent because he is forced to
accept the entirety or reject the entirety. He has no power, no
authority, granted to him to send back items that he does not deem
necessary.
The Senator from West Virginia talked about the process as a cut-and-
paste operation, conducted in the wee hours of the night with clerks
assigned from perhaps the Government Printing Office helping enroll the
separate bills. That is the way it used to be done. That is the way, I
would say to the Senator from West Virginia, that enrollment of
legislation used to be conducted.
It would be a mechanical problem--not an insurmountable one but a
mechanical problem--as we used to do it. But we do not do it that way
anymore. Modern computer technology has arrived in the Senate and
arrived at the House.
I spent some time with the enrolling clerk asking him how he now goes
about this process. He said, ``Well, it is very easy.'' He showed me a
computer sitting on his desk about this wide and about that high. He
showed me a software package which is called XyWrite, and he said, ``We
now do in a matter of minutes what used to take us hours, and we now do
in a matter of a few hours what used to take days.'' He said, ``While I
have authority to bring over people from the Government Printing
Office, I never have to call them anymore because the miracle of modern
technology allows us to separately enroll items literally with a push
of a few buttons. What used to take dozens if not hundreds of hours now
can be done literally in minutes.''
So it is not a mechanical problem. It is something that is easily
processed and easily handled by the enrollment clerk. The House clerk
has the same technology as the Senate.
The question of do we cede power to the enrolling clerk I do not
believe is valid any longer either because, as the enrolling clerk
explained to me, he does not have the authority. It is not vested in
him to make a determination as to what should be enrolled or what
should not be enrolled. It is the purview of the appropriators or those
who write the bill to define the items of expenditures in those bills.
And the power of the enrolling clerk only goes to enrolling that
particular separate item. To the extent that we are sloppy in our
efforts, that would raise a question as to what ought to be enrolled.
But I am confident that, if we understand that each item in a
particular appropriation or a tax bill or other item of legislation is
going to be separately enrolled, we will make sure it is separately
enumerated in the legislation that we send down to the enrolling clerk.
Any ambiguity relative to a question mark on enrollment can easily be
resolved by our own efforts.
As Senators know, the expansion of this legislation incorporates
targeted tax expenditures. The Senator from West Virginia is absolutely
right when he cites that the problem and the dimension of the problem
that we face does not fall solely on the shoulders of the
appropriations process to the discretionary account. In fact, I believe
it is less than 20 percent of the budget. In recognition of that, part
of the process in negotiating the amendment that was offered by the
majority leader was to expand the scope of the veto power of the
President, individual item veto power of the President, to incorporate
new spending, new spending in the entitlement functions, targeted tax
spending where specific tax--what I call tax pork--is incorporated in
tax legislation which goes not to serve a broad interest or a broad
classification like charitable deductions, like mortgage interest
deductions, items that the Senator from West Virginia mentioned, but go
to please or to satisfy a particular narrow interest, an individual
interest or a specific interest within a class rather than to the class
itself. That is defined in this bill. That will now be brought into
this bill.
That is an idea that was brought forward by the distinguished Senator
from New Jersey, Senator Bradley, who offered that last year on this
floor. So we have incorporated that idea. It is a good idea. It
immeasurably improves and expands the scope of the line-item veto. And
we have added expenditures which would be added under the category of
new expenditures to entitlement programs. It does not change the law
relative to entitlement programs--as to who is eligible and what
benefits they are eligible for. But, if this Congress changes the
benefits provided under the entitlement and expands those and that
results in increased expenditure, that too would be subject to the
President's veto. So we have expanded it far beyond the original
provisions of just applying it to the appropriations process.
I would like to conclude by making some points on the constitutional
question because that is a valid question and one which I believe
Members need to address.
Under article I, section 5, each House of Congress has unilateral
authority to make and amend rules governing its procedures. Separate
enrollment speaks to the question of what constitutes a bill. It does
nothing to erode the prerogatives of the President as that bill is
presented. Under the rulemaking clause, our procedures for defining and
enrolling a bill is ours to determine alone.
There is precedent provided in House rule 49, the Gephardt rule.
Under this rule the House clerk is instructed to prepare a joint
resolution raising the debt ceiling when Congress adopts a concurrent
budget resolution which exceeds the statutory debt limit. The House is
deemed to have voted on and passed a resolution on the debt ceiling
when the vote occurs on the concurrent resolution. Despite the fact
that a vote is never taken, the House is deemed to have passed it.
The American Law Division of the Congressional Research Service
analyzed separate enrollment legislation and indicated the following:

Evident, it would appear to be, that simply to authorize
the President to pick and choose among provisions of the same
bill would be to contravene this procedure. In separate
enrollment, however, a different tack was chosen. Separate
bills drawn out of a single original bill are forwarded to
the President. In this fashion, he may pick and choose.
Formal provisions of the presentation clause would seem to be
observed by this device.

Laurence Tribe, who is a distinguished constitutional professor of
law, who is frequently quoted on the Senate floor more often by
Democrats than Republicans, but nevertheless is a respected
constitutional scholar, has also observed that this measure is
constitutional. He recently wrote, and I quote:

The most promising line-item veto idea by far is that
Congress itself begin to treat each appropriation and each
tax measure as an individual bill to be presented separately
to the President for his signature or veto. Such a change
could be effected simply and with no real constitutional
difficulty by a temporary alteration in the congressional
rules regarding the enrolling and presentment of bills.

He went on to say:

Courts construing the rules clause of article I, section 5,
have interpreted it in expansive terms, and I have little
doubt that the sort of individual presentment envisioned by
such a rules change would fall within Congress' broad
authority.

The distinguished Senator from Delaware, Senator Biden, during his
tenure as chairman of the Senate Judiciary Committee, wrote extensive
additional views in a committee report on a constitutional line-item
veto. He wrote about a separate enrollment substitute which he offered.
And I quote from Senator Biden.

Under the separate enrollment process instituted by the
statutory line-item veto, the items of appropriation
presented to the President would not be passed according to
routine lawmaking procedures. Congress would vote on the
original appropriations bill but would not vote again on the
separately enrolled bills presented to the President.
And the absence of a second vote on the individual items of
appropriation has raised questions of constitutionality.
For the following reasons, such concerns are unfounded:
One, this does not change congressional authority. Each
House of Congress has the power to make and amend the rules
governing its internal procedures. And, of course,
[[Page S4238]] Congress has complete control over the content
of the legislation that passes. Thus, the decisions to
initiate the process of separate enrollment to terminate the
process through passage of a subsequent statute, to pass a
given appropriations bill and to establish the sections and
paragraphs of that bill, are all fully within Congress'
discretion and control.

That is exactly the process which is presented in Senator Dole's
amendment. We, the Congress, have complete control over the content of
the legislation we pass. Thus, the decisions to initiate the process of
separate enrollment, or to terminate that process through passage of a
subsequent statute, or by a sunset provision, which this Dole amendment
contains, and to establish the sections and paragraphs of the bill,
which we have the authority and the power to do, all are fully within
our control and discretion.
Quoting again from Senator Biden:

A requirement that Congress again pass each separately
enrolled item would only be a formal refinement, not a
substantive one. It would not prevent power from being
shifted from Congress to the President, because under the
statutory line-item veto, Congress will retain the full
extent of the legislative power. Nor would it serve to shield
Congress from the process of separate enrollment, because
Congress will retain the discretion to terminate the process.

If we pass the whole, surely we pass the parts. How can we argue that
having passed an appropriation bill that covers spending for certain
functions of Government--let us say the Commerce Department--it does
not incorporate the separate items of spending listed within that bill?
To argue otherwise is to say that Congress, in passing the whole, does
not pass the separate items. And it seems to me that a more legitimate
process--if you are concerned with that question--is to separately
enroll the items. Then there is no doubt that we have passed those
separate items. So passing the whole incorporates the parts.
Senator Biden said:

The second reason why he believes the constitutional
concerns are unfounded relates to House rule 49, the
statutory limit on public debt.

I will refer to that later.

Rule 49 of the House of Representatives empowers the
enrolling clerk of the House to prepare a joint resolution
raising the debt ceiling, when Congress adopts a concurrent
resolution on the budget, exceeding the statutory limit on
the public debt. This procedure, which has been in existence
since 1979, provides a clear precedent for the separate
enrollment of items of appropriation. The House never votes
on the joint resolution. Nonetheless, the House is deemed to
have voted on the resolution because of its vote on the
concurrent resolution. House rule 49 states, in part:
The vote by which the conference report and the concurrent
resolution on the budget was agreed to in the House shall be
deemed to have been a vote in favor of such joint resolution
upon final passage in the House of Representatives. The
committee report continued to elaborate on that by saying
House rule 49 has not been found unconstitutional because of
its modification of routine rulemaking procedures. It is
transmitted to the Senate for further action and presented to
the President for signature.

This process has been in effect for a decade. Despite the absence of
a separate vote by the House on the joint resolution, there have been
no constitutional challenges.
The American law division has supplied me with a number of cases
which further elaborate these points. In United States versus Balan,
decided in 1892, the Court articulated the power of the Congress to
determine its rules of proceeding. It said:

The Constitution empowers each House to determine its rules
of proceedings.

That is the Court speaking.

It may not by its rules ignore the 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
manners 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 enforced 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.

So is that not what we are doing? Are we not exercising that
continuous power articulated by the Court to make our rules? Once
exercised, that power is not exhausted, as the Court said. It is always
subject to be exercised. In this case, the Court was referring to an
action by the House. Obviously, it could apply to the Senate equally.
So it is not impeachment of the rule to say that some other way would
be better, more accurate, or even more just. Who is to say that this
method is not more accurate? I believe it is more accurate. It is
certainly more accurate than the 10- or 12-page bill presented to the
President for his signature, which does not begin to enumerate the
actions of this body. You can pore through this and not begin to
understand how the taxpayer' dollars are going to be spent. But if we
separately enroll, every Member of this Congress will have at his or
her disposal, immediately, exactly how dollars are spent, exactly how
projects are funded and which projects they are. They will be able to
pull pieces of paper out and say, ``I do not think this is the way we
ought to deal with the taxpayer's expenditures.'' And the light of day
will be shed on our actions. I think that is a more accurate and a more
just way of being held accountable to the very people that send us here
to deal with the allocation of their hard-earned dollars.
Killian asks:

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 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?
The issue 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 . . . second . . . it must be
observed that these rules are entirely an internal matter,
subject to alteration by simple resolution at any time in
either House. There is no irrevocable conveying away.
2. There is some question about whether the judiciary will
review this case at all. There is some precedent to indicate
that the judiciary may construe separate enrollment as a
political question unsuited for judicial review.
Marshall Field v. Clark (143 US 649 (1892):
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 House of
such bill as one that has passed Congress. It is a
declaration by the two Houses, through their presiding
officers, to be 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.
. . . 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.

Judith Best, a distinguished political scientist summed up these
arguments well. She said:

Under article I, section 5, Congress possesses the 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. . . . 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 coordinate political department. (Baker v. Carr, 369 US
186 (1962)) A ``textually demonstrable constitutional
commitment'' of the issue to
[[Page S4239]] the legislature is found in Each House
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 ungermane items is
constitutionally challengeable.

Mr. President, despite the best efforts of those who oppose line-item
veto in any form to characterize this bill as unconstitutional, I am
confident that separate enrollment clearly passes the constitutional
hurdle. Both conservative and liberal constitutional scholars agree;
the American Law Division of CRS and the former chairman of the Senate
Judiciary Committee have spoken clearly to its constitutionality.
If I thought that we would win the votes of those who are committed
to kill the statutory line-item veto by passing a constitutional
amendment, I would offer that amendment. However, I strongly suspect
that the very same Senators who are raising constitutional concerns
would fight just as hard against granting the President line-item veto
authority through a constitutional amendment. The real issue at hand is
not constitutionality, but Congress' willingness to change.
Mr. President, let me state that the real reason we are here is that
this body, this Congress, this legislature, has been unable to
responsibly exercise the authority and power given to them on behalf of
the people of the United States, or a reasonable exercise of expending
the money, which we require them to send to the Federal Government.
In 1994 we spent an average of $811.7 million a day on interest
payments. That is $33.8 million an hour, $564,000 a minute. Those
interest payments are due because this Congress did not have the
courage or the will to go before the taxpayer and demand payment up
front at the time of expenditure for items which it passed. And we
have, over the past 20 years, and I point the finger of blame at every
Member of this body, including myself--we have seen the national debt
increase in the last 15 years from under a trillion dollars to nearly
$5 trillion, a more than 500 percent increase.
Because we have not had the courage to go to the public and say, ``If
we are going to pass this program, which is pleasing to many, we are
going to have to ask you to pay for it as the money is expended.'' And
we have, in the process, passed on to future generations a staggering
debt burden which, as the Congressional Budget Office has enumerated,
adds a crushing debt load which will provide a stagnant standard of
living for future generations, which will place a burden on them that
we have not had placed on our own shoulders.
I believe what we have done borders on or, if not, is outright
immoral. I am not the first person to say that. Distinguished Americans
have said that. They have warned about that, and now they have observed
us doing it. It is grossly unfair for us to enjoy the fruits and the
blessings of this country without having to pay for them. A lesson that
each of us tries to teach our children has been ignored by this
Congress, and that is that debt will ultimately crush you. It will
ultimately destroy your hopes and your dreams.
Those items that we have deemed part of the American dream, at least
that are part of the vision and dreams for most of us--owning our own
home in which to raise our family, having the wherewithal to educate
our children, providing for their needs, their necessities, whether it
be transportation, clothing or food--those dreams and visions are going
be infinitely harder for future generations because we have failed to
act responsibly, because we have failed to honestly face the taxpayer
and honestly exercise the responsibilities they have given to us,
because we have had a very convenient excuse, and that is we can
postpone the day of reckoning, we can postpone the day of payment to a
future Congress, to a future generation.
To those who say that all we need do is stiffen our backbones and
exercise will, I say it has not been done. It has not been done in 55
out of the last 63 years and for 25 straight years it has not been
done. For one reason or another, there is always an excuse to postpone
it, usually past the next election. It is a natural human tendency
which we all fall prey to and that is a tendency to avoid a very
fundamental, basic principle of not having more than you can afford, of
being able to pay for it up front. But because the Federal Government
is allowed to float debt, because the Federal Government, unlike other
institutions, has a convenient out, we are able to tell our
constituents that they can have it all now and somebody else will pay
for it later. That is why we are here.
Now, in my opinion, we failed to enact the structural reform
necessary to change the way we behave, and that was the balanced budget
amendment. I regret that that failed by one vote. The line-item veto is
another structural reform that changes the way we behave. It is almost
as if we are trying to save ourselves from ourselves.
That is why I felt the balanced budget amendment was necessary
because, despite all the promises--and I have been here through the
budget deals and through the tax deals and through the promises--that
we are going to get it right the next time, despite all that, we fail.
We fail because it is so much easier to say yes than it is to say no,
because of that natural human tendency of wanting to go home and say
yes to the group that will vote in the subsequent November election on
whether or not they want us to stay here, who will be pleased if we say
yes and will be very unhappy if we say no.
And so that natural human tendency overcomes all of our best
intentions. And each year, then, we fail to step up to the
responsibilities of making the hard choices. Oh, we make some hard
choices, but they are just trimming at the margins.
So I have believed for a long time that the only way we are going to
accomplish what all of us, I believe, deep down in our hearts know we
need to accomplish is to put in place structural changes which will
either force us to accomplish that or make it much more difficult to
continue past practices.
The balanced budget amendment would have forced us to accomplish
that. We would have had to put our left hand on the Bible and our right
hand in the air and each time swear to uphold that Constitution. And
that Constitution would have required us to balance the budget. It
would have liberated us. It would have liberated us from the pressures
of constituencies, from special interests, from lobby groups. We could
have looked them in the eye and said, ``Yes, that is a worthy idea, but
you are going to have to sell it to the taxpayer, because I am
constitutionally bound to not spend more than we take in. You are
either going to have to suggest a reduction in an offsetting program or
you are going to have to suggest a tax increase that will pay for it.
But, by the end of the session, we have to balance the books.''
What a liberation that would be. We ought to self-liberate. That is
what I hope we will do now that we have not passed the balanced budget
amendment.
I hope we will realize and understand the gravity of the impact of
this debt. As Thomas Jefferson said:

The question whether one generation has the right to bind
another by the deficit it imposes is a question of such
consequence as to place it among the fundamental principles
of government. We should consider ourselves unauthorized to
saddle posterity with our debts, and morally bound to pay
them ourselves.

I hope that we will take that to heart and that we will summon the
will to accomplish that end.
The line-item veto is a pale shadow in comparison to the balanced
budget, but it is the only other game in town--the only other game in
town other than what we have been doing for 25 straight years, and that
is running deficits; despite our promises, despite our rhetoric,
despite our best intentions, the only other game in town that changes
the way in which this body operates, that provides a check on the way
we do things, a balance on the way we do things that makes it more
difficult for us to continue this practice of saddling future posterity
and generations with unnecessary debt as a result of spending that goes
to the narrow interests rather than national interests.
[[Page S4240]] And so what is before us now is the second attempt in
a month or so to fundamentally change the way we do business.
Some will argue for the status quo, saying that we are
constitutionally bound. I do not accept that argument. Neither do other
respected constitutional experts.
Some will say that we are tradition bound. What a tradition. Who can
defend the tradition of a $5 trillion debt? Who can possibly defend the
way that we have done business when faced with such staggering debt?
So the line-item veto, as I said, is just a shadow of what might have
been accomplished under a balanced budget amendment, but, nevertheless,
an important tool, an important tool to end the practice or at least to
make the practice substantially more difficult than the practice that
has been the traditional course of action here for perhaps the history
of this body, but certainly since 1974 when we took away the
President's right of impoundment.
It is a tool we need. It is a tool we need because it forces us to be
honest legislators, to own up to the individual item that somebody has
proposed and to defend it. And if it is defensible, if it is
meritorious, then it will pass. It will gain the votes and the support
of the Members of this body.
If it is not, it will fail. My guess is that many will not see the
light of day because those items are items that we know cannot generate
a majority of support, otherwise they would be brought as individual
items to this floor.
We will never know the full impact of line-item veto because most of
the items that would have been vetoed will never be put on the bills in
the first place. We will not risk the embarrassment of the
appropriation or the special tax break that will be labeled ``spending
pork'' or ``tax pork.'' Most will not risk that embarrassment of having
the President call out that separate bill and stamp ``veto'' on it and
send it back here and bring it up for debate and for a vote. We know in
our hearts it would never achieve a majority, let alone a two-thirds
vote.
So line-item veto will not be measured in the amount of money that it
saves in the future. Only we know in our hearts and in our minds what
items we might have attached if we had not had line-item veto. Those
are the broader reasons, Mr. President. We can argue the
technicalities. We can argue as we always do that, yes, I support the
concept but not this bill, not this definition.
Well, we have been going through and saying this now for more than a
decade. I do not know what perfect piece of legislation lies out there.
All I know is it is not offered. We have wrestled and wrestled with
this. We want something that is real, something that has teeth,
something that makes it harder for Congress to spend. Not 51 votes. We
want two-thirds, something that allows the President to know exactly
what it is we have done.
We do not want a 14-page bill sent to him that incorporates in its
first paragraph, 326 separate items. We would like those items defined,
in detail. A little extra work, yes. But we are not quill and pen any
more. We are computerized. We have the technology to do this, to do
this easily, to do this accurately, to do this fairly, to do this
justly.
Mr. President, I would hope our colleagues would conclude that the
time is now, the time to make a structural change, to make a
difference, is now. If we postpone this, if we continue to postpone it,
we simply will have a much more difficult task in the future.
So, let Members at least, having failed a balanced budget amendment,
let Members at least pass line-item veto so that we can say, ``We did
something different. We made some change in the way we do business.''
So that we do not have to go home and say ``Despite the mandate of
them, despite the burden of the debt, despite the speeches that each
Member has given about the insidiousness of the debt and
uncontrollability of this debt we did nothing structurally different.
We did nothing to change the way we did business.''
Does any Member want to go home and say that? This is our chance.
This is our time. I urge support for the amendment by the Senator from
Kansas, the majority leader, Senator Dole.
I yield the floor.
Mr. BYRD addressed the Chair.
The PRESIDING OFFICER (Mr. Brown). The Senator from West Virginia is
recognized.
Mr. BYRD. Mr. President, I asked the Senator from Indiana to yield.
He did not wish to yield.
He had two opportunities to vote for deficit reduction packages--and
I will be very brief--in 1990 and again in 1993.
Did he vote for either of those deficit reduction packages? The
opportunity was there to cut the deficits by a total of around $900
billion in both bills, 1990 and 1993. Did the Senator vote for either
of them?
Mr. COATS. Mr. President, if the Senator from West Virginia will
yield, first of all I apologize to the Senator for not yielding. I
guess I got carried away with my own rhetoric and conclusion. I forget
I promised the Senator from West Virginia that I would yield for a
question. I trust he will accept my apology for that.
The question the Senator from West Virginia has propounded to me is:
Did I vote for the 1990 or the 1993 budget resolution? The answer to
that is no.
I would like to explain why I did not. Because this Senator believes
that my constituents from Indiana have been taxed enough. And both of
those resolutions contained substantial increases in taxes, as well as
spending cuts. It was the philosophy of some who offered those
resolutions that our deficit ought to be attacked by a combination of
tax increases and spending cuts.
It is this Senator's opinion that we have taxed the taxpayers enough,
and that we ought to attack the deficit on the basis of spending cuts--
this Government has grown too large--and that our first priority ought
to be to reduce the scope and size of Government and to reduce
expenditures. Only then consider the possibility of an increase, if it
is needed, to address the balanced budget amendment.
So, if the vote was on a measure as we have had a number of votes, to
just reduce spending, this Senator is more than happy to vote for it.
But not if it includes raising taxes.
Mr. BYRD. Mr. President, the Senator has answered my question. The
answer is, he did not vote for either of those packages, which together
saved upward of $900 billion, would reduce the deficits by almost $1
trillion over 5-year periods. He did not choose to vote for either of
them and he says, ``Because they contained tax increases.''
Well, tax increases are one of the tools that has to be on the table,
in my judgment, if we are going to consider reducing the deficits.
Nobody likes to vote for tax increases. I do not like to. I have voted
for tax increases, I have voted for tax cuts. I would much rather vote
for tax cuts.
But tax increases is one of the options that we may have to use if we
relieve the burden of debt that is going to be placed upon our children
and grandchildren by virtue of our using the national credit card for
the last dozen to 15 years. We may have to use that option to increase
taxes.
Now, the distinguished Senator refers to the Gephardt rule. The
Gephardt rule has never been adjudicated by the courts. We do not know
how the courts would hold on the Gephardt rule.
Furthermore, I might suggest that if we can deem, in the words of the
amendment that has been offered by Mr. Dole, if we can deem, and I read
the language therefrom, ``a measure enrolled pursuant to paragraph one
of subsection (A) with respect to an item shall be deemed to be a bill
under clauses 2 and 3 of section 7 of article I.''
Mr. President, the distinguished Senator from Indiana says that we
``may deem'' such measure to be a bill under clause 2 and 3, and he
says that we may do that based on article I, section 5, which leaves to
the two Houses the judgment of determining their own rules, but I would
hope that the Senator would not argue that the Senate or the House
under the cloak of article V, the determining of the rules that the
House and Senate could supervene a clear clause in the Constitution of
the United States.
Neither House can create a rule that would in itself, violate the
Constitution of the United States, or supervene it, or take precedence
over it. All rules of the House and Senate--even though the House and
Senate are given the power and authority under article I,
[[Page S4241]] section 5, to determine the rules of--all Senate and
House rules must fall if inconsistent with the Constitution of the
United States.
Now, if a bill enrolled pursuant to paragraph 1 of subsection (A)
with respect to this item shall be deemed to be a bill, if one of these
little ``billettes'' may be deemed to be a bill, if the Constitution
said ``Every bill which shall have passed the House of Representatives
and the Senate, shall, before it becomes a law, be presented to the
President of the United States''; if we can deem that and thereby avoid
the requirements of the Constitution, I wonder if we might not just
deem an appropriation bill that passes the House of Representatives,
just deem that it has passed the Senate?
Any appropriation bill that passes the House, why not just deem it to
have passed the Senate and go home? It would seem to me to be just as
appropriate to deem an appropriations bill that has passed the House,
deem it as having passed the Senate, as to deem the section or a
paragraph or an item in the appropriations bill, deem that to be a
bill.
There is one final suggestion I have. The distinguished Senator spoke
of the qualified negative which the constitutional Framers gave to the
President, and they did reject the idea of giving the President an
absolute negative, an absolute veto. They gave him a qualified veto.
But in practice, it would seem to me that if the pending amendment
becomes law, it could, in effect, be the same as giving the President
an absolute veto for this reason:
Let us say that the several States in the Northeast--Maine, New
Hampshire, Vermont, Rhode Island, Connecticut, and so on--let us say
that those States were able to get something into an appropriations
bill that was very vital to the Northeast region. Suppose the President
vetoed that item or those items from the bill and sent those bills back
to the House of Representatives where they originated. Well, obviously,
the votes of all the States in the Northeast, when added together, in
the House of Representatives would fall far short of being sufficient
to override a Presidential veto. The small States would be hard put to
corral the votes necessary to override a Presidential veto of items
that affected the small States.
West Virginia has three votes in the House and, in effect, then, it
would seem to me that the President, in exercising his veto under the
amendment that has been offered by Mr. Dole, would, in practice, as far
as practicality is concerned, be exercising an absolute veto. Small
States should look at this amendment with great concern. Perhaps the
States of California, Texas, Florida, Michigan, New York, Indiana, and
Illinois could come together and marshal enough votes among themselves
to at least uphold a Presidential veto, sustain it.
But the President could take that bill and knock out items that were
of importance to the smaller States, and it would be very, very
difficult, if not impossible, for the small States to garner the
support in the House of Representatives to override that veto. They
would not be able to produce the two-thirds vote. So, in essence, it
gives to the President an absolute veto, which the Framers discussed
but rejected.
Mr. President, I have had more than my share of time here this
afternoon. I apologize to those other Senators who have been waiting. I
yield the floor.
Several Senators addressed the Chair.
The PRESIDING OFFICER. I believe the next Senator is the Senator from
California. The Senator from California is recognized.
Mrs. FEINSTEIN. Mr. President, this is a very short statement. I do
appreciate the opportunity to make it. I rise today in support of the
substitute amendment to S. 4.
For more than 100 years now, arguments both pro and con have been
made revolving around whether a President should or should not have a
line-item veto. As a matter of fact, since 1876, more than 200
resolutions have been introduced on this subject. Presidents,
Democratic and Republican, have asked for this special blue pencil.
This President has asked for the strongest possible bill, and I believe
that there are several Democratic Senators prepared to vote for this
legislation.
Basically, the arguments on a line-item veto are either philosophical
or constitutional. But regardless, the trend on many levels has clearly
been toward a stronger chief executive in both State and local
jurisdictions.
Today, 43 States have a line-item veto, and mayors of cities, big and
small, as well as county executives, are being granted this authority.
In California, the latest city to grant a line-item veto to a newly
strengthened mayor is Fresno, a major city with a population of 667,000
people in California's Central Valley breadbasket. The Fresno mayor
will have this authority beginning in 1997.
In Maryland, the State legislature is this year considering granting
this authority to the county executive.
In California, the line-item veto has been used 254 times in the last
4 years. The Governor has had this authority since 1908, and a recent
survey found that 92 percent of all current and former State Governors
believe that the line-item veto would help curb spending.
Before New Jersey Gov. Christine Todd Whitman signed a $15 billion
supplemental budget into law this past year, she used the blue pencil
to cut $3.17 million from the bill.
The most powerful line-item veto is probably that provided in
Wisconsin, where the Governor cannot only veto lines but also
individual words. Governor Thompson has used it over 1,500 times since
1987, sometimes to change actual policy. It is my understanding that
this is not the case in the legislation being considered today.
Virtually all businesses' and corporations' CEO's or CFO's have this
authority. But the President of the United States, who runs the largest
combination of major governmental enterprises in the world, does not
have this authority.
Today, the President has little recourse to fine tune a budget passed
by the Congress, except to shut down entire segments of the Government
by vetoing an entire appropriations bill.
In 1992, the General Accounting Office estimated that a line-item
veto could have pared $70.7 billion in pork-barrel spending between
1984 and 1989. That is just 5 years. If in the next 5 years a similar
amount could be cut, then the line-item veto will have done its job.
Enacting a line-item veto will, of course, give the Executive more
authority, and I recognize that that is a problem for some. And even
though a President may not use that power frequently, the threat of
such action may be the impetus needed to force Congress to be more
responsible in the formulation of the budget.
I believe the line-item veto will increase positive relations between
the executive and legislative branches because Members will no longer
have the ability to insert special projects that have little overall
merit in appropriation bills without the concurrence of the Chief
Executive. The line-item veto can force executive-legislative
cooperation and agreement before the bill reaches the White House for
signature or veto.
It also encourages caution on the part of the Chief Executive who
would use it sparingly in order to prevent his veto from being
overridden. Really, what a line-item veto is all about is deterrence,
and that deterrence is aimed at the pork barrel. I sincerely believe
that a line-item veto will work.
In our caucus today, some papers were passed around which showed a
paragraph from a bill involving the Patent and Trademark Office, and
there were several subsets attached--items which were certainly not
reflected in the paragraph of the bill. One of these stated:

* * * of which not to exceed $11 million shall remain
available until expended for furniture and furnishings
related to new space alteration and construction projects.

Now, if I were President, I would say to my staff--take a look at
this. Does the Patent and Copyright Office really need $11 million in
furnishings? I think it is worth a look.
Mr. LEVIN. Will the Senator yield on that?
Mrs. FEINSTEIN. I certainly will.
Mr. LEVIN. I was the one who circulated this paper. This has nothing
to do with the Patent Office. This had to do with the Federal courts,
which
[[Page S4242]] shows the problem with the pending substitute before us,
which is there is no way of telling from the bill that will be
submitted to the President what it relates to. It is just language
pulled out of bills and you do not even know what it relates to. The
Senator is saying that this was from the Patent Office.
Mrs. FEINSTEIN. Let me respond to that. The fact is, I do not care
what department it is; any $11 million item for furniture should
certainly be looked at a second time, whether it is courts or
agricultural offices or Interior or anything else.
Mr. LEVIN. If the Senator from California will yield further, this
language was language which the computer produced, and the Senator from
Indiana handed the computer to State, Commerce and Justice
appropriations. And the Senator from Indiana said, gee, that computer
does it simply, fairly, accurately, and the Senator from California
said that this related to the Patent Office. And in fact it has nothing
to do with the Patent Office.
Mrs. FEINSTEIN. Let me apologize. The papers were passed out together
at our caucus, and I made perhaps the mistaken and inadvertent, but not
surprising, conclusion that since they were passed out together they
related to one another.
Now, if I might finish my statement----
The PRESIDING OFFICER. The Senator from California has the floor.
Mrs. FEINSTEIN. I believe that what a line-item veto essentially does
is encourage caution on the part of both the Chief Executive and the
legislative body. I think the time has come for fiscal discipline. As I
said, I sincerely believe the line-item veto can help us achieve that
goal.
Let me give an example. When I was mayor of San Francisco, the budget
did not correspond with the size of the Federal budget, but there were
52 departments, and the budget was over $1 billion. Yet, it was very
difficult to get down to the actual line items. There was one line for
salaries. As a chief executive, I really had no opportunity to go
through every salary to make judgments about how many people should be
continued and how many people should not.
A line-item veto gives the chief executive this opportunity, and I
think the blue pencil is a necessary tool of government for a Chief
Executive in a modern day.
I also believe that tax breaks and appropriations should be treated
similarly. They may be two different items, but the results are very
much the same: they benefit a small segment of the population at the
expense of the greater good of all the people. Regardless of the item,
they both reduce the amount of money in the U.S. Treasury.
Currently, debates are raging at every level of government about the
institution of a line-item veto. Maryland, as I said, is now debating
it. Fresno, CA, has just granted it. I believe that the people of this
country understand the benefits of a line-item veto and are expanding
the use of it. I believe we ought to give this power to our President.
So I am very pleased to be able to support the legislation before
this body.
I thank the Presiding Officer, and I yield the floor.
The PRESIDING OFFICER. The Senator from Kansas is recognized.
Mr. DOLE. Mr. President, I just want to make an announcement to my
colleagues on both sides to know what the program is for the remainder
of the evening.
The distinguished Democratic leader has given me a list of potential
amendments which numbers 33 on that side, 4 on this side, for a total
of 37, and I am not in a position to say that is an agreement that we
would want to agree to. So I would just suggest tonight, if somebody
wants to debate the bill, it is all right to have the debate, but we
are not going to take up any amendments tonight. And then I will meet
with our leadership tomorrow morning on this proposal.
I do not see how we are going to complete 37 amendments between now
and Friday morning. Many will probably be the same amendment we have
had time after time after time in an effort to delay and delay and
delay action on a bill that ought to be passed around here in 2 or 3
days. It is something we debated 7 times in the past 8 years. But I
know Members have a right in the Senate to offer all the amendments
they want. And if we cannot get cloture, why, I assume they can offer
all the amendments they want. But I do not think it would be in the
interest of anybody to start off and suggest we are going to finish by
Friday when we have 37 amendments with no time agreement on a single
amendment. It is the same thing we have done all year long--throw in
all the amendments you can think of, clean out the garbage can,
whatever, and then put them on a list and say take it or leave it. My
view at this time is to leave it. If anybody wants to make speeches on
the bill or on any amendment tonight, there will be no disposition of
any amendment tonight.
The PRESIDING OFFICER. The Senator from Nebraska is recognized.
Mr. EXON. Mr. President, I am sorry to hear what the leader has just
said. We were prepared to offer an amendment. There have been those of
us in the Chamber today who have not had a chance to talk. Some people
do not follow the usual order around here, but I was prepared to yield
to my colleague from Illinois for the purpose of offering an amendment.
Do I understand that the leader is saying he does not want any
amendments offered as of now?
Mr. DOLE. I do not object to an amendment being offered; there just
will not be any vote tonight if the Senator from Illinois would like to
offer an amendment, if somebody else would like to offer another
amendment.
Mr. EXON. I have listened to the statement made by the leader, and I
would simply say that we are prepared to move ahead on these things as
quickly as possible. This is a very important piece of legislation, and
I have listened to a lot of talk today that some people misconstrue
what most of us on this side want to do, and that is pass some
acceptable version of the line-item veto or enhanced rescission
proposal.
So we are not being dilatory. I do not think anybody is
filibustering. There has been no threat of a filibuster. I hope, for
the purpose of moving ahead now, to show we want to get things done--as
soon as the Chair thinks it appropriate, I would appreciate him
recognizing the Senator from Illinois for the purpose of offering an
amendment to get on with what we think the request of the majority
leader is. Let us get going on offering the amendments.
Mr. DOLE. I will just take 1 additional minute. Again, everybody has
the right to offer amendments. We certainly learned that this year. We
have voted on the same amendments time after time after time. I bet
half of them are right on here again. Everybody out trying to make
points: Social Security, children, or somebody else--offering these
amendments.
That is a right we have on both sides of the aisle, but we do not
have to take a week just because Friday is coming. We do not have to
say we cannot finish this bill before Friday. We have a lot of work to
do if we are going to have any Easter recess around here.
We have a list of ``must do'' legislation. There comes a point when
you must get it done. I think if we can finish this bill on Thursday,
start on either the supplemental appropriation, the second supplemental
or the modified bipartisan measure on regulatory reform--not the
moratorium but the 45-day review period, which I think Senator Reid and
Senator Nickles are working on--then after that, we have the self-
employed tax deduction, which is going to be very important to our
constituents. Tax time is coming. We need to pass that early next week.
Then we have the second supplemental with billions of dollars in there
for FEMA, among other things. Then we have a couple of conference
reports on the first supplemental; and then on paper simplification.
My view is, if we do not push on this one we are--and if we do a
couple of amendments tonight, that would only leave 35.
My view is, certainly if the Senator from Illinois wants to offer an
amendment, he can do that tonight. But I suggest we then have the vote
on that amendment tomorrow, and we will just start and see how far we
can go until we have a cloture vote tomorrow sometime.
[[Page S4243]] Mr. SIMON. Will the majority leader yield?
Mr. DOLE. I will be happy to yield.
Mr. SIMON. Let me just explain, the amendment I hope to offer simply
calls for expedited judicial review. It is identical to an amendment
that was accepted on the House side.
I think, whether you are for or against this bill, it makes sense. I
believe it would be acceptable to both sides but I at least want to lay
it down tonight and then, if there is not agreement tonight, then we
can agree on it tomorrow.
Mr. DOLE. Is the Senator going to send the amendment to the desk?
Mr. DASCHLE. If the Senator will yield?
Mr. SIMON. If the Senator will yield for that purpose.
The PRESIDING OFFICER. Does the Senator from Kansas yield?
Mr. DOLE. I yield the floor.
Several Senators addressed the Chair.
Mr. DASCHLE. Mr. President, I did not hear all the words of the
distinguished majority leader, but I did hear the end of his comments.
Let me say again, as I have said to him personally: it is not our
desire to hold up this piece of legislation. Our desire all along has
been to work in good faith with the Republican majority. We have
consulted with a number of our colleagues, all of whom have indicated
their amendments are relevant.
I am somewhat surprised myself, frankly, with the list of amendment.
I had indicated publicly I did not think the list was going to be as
long as the list is. But I have given the assurance to the majority
leader that we desire to finish this bill this week. We have also
indicated that our message to all Members would be that they would have
to offer their amendments prior to 10 o'clock on Thursday. That is an
excellent guarantee.
We have also indicated that the amendments that we intend to offer
would be relevant. These have not necessarily been offered in the past,
and I hope we could find some way to accommodate all Senators here. If
we have to go to a cloture vote, we will go to a cloture vote. But the
issue, if we go to a cloture vote, will be whether we, as a minority,
have the opportunity to be heard on a very important issue, and to
offer all relevant amendments.
We only received this amendment yesterday evening. It is a substitute
that was laid down yesterday. We have not been given an opportunity
today to even offer an amendment. There will be no votes on amendments
tonight.
So I hope that everyone shows some accommodation, and some
willingness to cooperate. We are doing our best. We may be able to get
that list down even some more. But I hope we can continue to work in
good faith. And let me emphasize to the majority leader and to others,
I think if we do work in good faith, we can accommodate all Senators in
a responsible way.
But to lay down this substitute, then to file cloture, then to tell
us that we cannot even offer amendments--most of which or all of which
should be relevant--in my view is just unacceptable. I hope in the end
we can deal with this in a reasonable way. I am sure that we can.
With that, I yield the floor.
The PRESIDING OFFICER. The Republican leader.
Mr. DOLE. Mr. President, we may have an opportunity overnight to go
back and shorten the list some. I cannot believe there are 37--34
amendments on that side of the aisle. First there were 40; then they
reduced it to 34. I cannot believe all those amendments. I think there
may be some legitimate amendments. There are probably a half dozen, but
I do not think there are 34.
Maybe we can come back and take another look. We now have three
amendments or four amendments on this side of the aisle. The important
thing is, it is not just this legislation. We took 4 or 5 weeks on the
balanced budget amendment. We listened to--everybody got to offer their
Social Security amendment on the other side. They tried to make that
the issue. Many people who voted for the balanced budget amendment last
year, the identical measure, stood right here and voted no this year.
There were a couple of minor changes.
We do not want to go through that process again. You are either for
or you are against a line-item veto, and we ought to find out. Those
who are for it on both sides--not everybody is for it on this side. But
those who are for it on both sides, I think, would want us to move
ahead and get on to the next piece of legislation if, in fact, we are
going to have a recess, which would come when, if it happens? April 7.
But there are some things we need to do. I understand today there is
some treaty the administration wants us to do that may take some time.
So we are trying to accommodate the administration. In fact, the
line-item veto is something the President says he is for. He said today
at the White House they did not mind these separate enrollments. They
have a lot of pens at the White House. They make good souvenirs. If
there are a lot of enrollments, they could have a lot of signing
ceremonies. That is what, in effect, Mr. McCurry said, the President's
press spokesman, I think, on that line-item veto.
So we would be happy to work with the leader overnight. But I say to
the Senator from Illinois, if he wants to offer the amendment, he
certainly has every right. If somebody else wants to offer an
amendment, Senator McCain said he would stay here until 8, 9, 10
o'clock, so we could stack some of those votes if they are not subject
to second-degree amendments and have those votes tomorrow morning.
We do not want to keep anybody from offering amendments. I just do
not want to try to do this this evening.
The PRESIDING OFFICER. The minority leader.
Mr. DASCHLE. Mr. President, let me emphasize to Senators on our side
of the aisle that I hope we could offer some amendments tonight. Now, I
understand the majority leader to say if we have the ability to vote on
them, let us do that. Let us move ahead.
But there are really two issues here. The first issue is whether or
not the Democratic minority will have the right to offer amendments to
be heard on any one of a number of bills that may come before us. I do
not think the Republicans in the past have been any more willing to
accept the majority laying down a bill, cutting off debate, and not
allowing amendments, especially those that may be germane or relevant,
from being considered and debated upon and ultimately voted on.
That is not how we should do business here. What I thought we did was
to try to work out arrangements whereby both the majority and the
minority would have the opportunity to offer amendments in a reasonable
way, and to have votes on those amendments and ultimately work through
the legislative process. If we are precluded from doing that, then in
my view we have no choice but to vote against cloture and to drag this
process out as long as we must. Nobody wants to do that. But I think I
can say for many members of the Democratic caucus that we will do that
if that is our only recourse.
Second, let me just say this is not just a question of a line-item
veto. Obviously, there are legitimate differences of opinion with
regard to what is the most appropriate form of a line-item veto. There
are differences on both sides of the aisle. Our hope is that we can
work through those differences and come up with a meaningful piece of
legislation that will enjoy broad bipartisan support. But whether we
have broad bipartisan support depends upon whether or not there is
bipartisan cooperation. It is not just a vote on a line-item veto. It
is a vote on various concepts involving line-item veto or line-item
rescission and I am fairly optimistic that ultimately as we work
through these amendments, and as we work through the course of the
week, that we can come to some ultimate closure on this issue in a way
that would allow everyone here to feel good about our progress.
So I hope cooler heads can prevail, and that we can truly accomplish
all that both the majority leader and I and others have expressed a
desire to do this week.
Mr. McCAIN. Will the Democratic leader yield? I would like to say
that the distinguished Democratic leader that I am prepared to stay
here. We are prepared to consider amendments. I hope all of our
colleagues on both sides of the aisle understand that.
[[Page S4244]] It is my understanding that the majority leader would
like to stack those votes tomorrow, which I hope is acceptable to the
Democratic leader. I hope we can move forward, and hopefully by
tomorrow perhaps we can find, as we usually do, that some of those
amendments that are on that list are not necessary so we can achieve
the goal that both of us seek.
I fully understand and appreciate the desire and commitment of the
distinguished Democratic leader to protect his and the rights on that
side of the aisle.
Mr. DASCHLE. Mr. President, I will not belabor this point. Let me
state one last reminder to my colleagues. If we have an agreement, that
agreement will entail, at least as it stands now, an understanding that
all Senators would have to file their amendments no later than Thursday
morning. That leaves tonight and tomorrow and Thursday morning up to a
time certain to offer amendments. So if Senators are serious about
offering these amendments, I hope they will come to the floor tonight
as late as it takes. This is an opportunity to present your amendments.
Come to the floor tomorrow. But take advantage of what I think is an
effort on both sides of the aisle to accommodate Senators with serious
suggestions and proposals as to how to improve this piece of
legislation. If we do that, I am sure the distinguished Senator from
Arizona is correct. We can reach some agreement tomorrow as to how to
dispose of this bill in a way that will accommodate all Senators.
I yield the floor.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I want to briefly thank the distinguished
Democratic leader for his patience. I want to thank the Senator from
California for a very important statement, and frankly one that I think
has gotten a lot of very important messages associated with it. I
appreciate her support of the line-item veto. I appreciate also the
patience of the Senator from Michigan and the Senator from Illinois.
I yield the floor.
Mr. SIMON addressed the Chair.
The PRESIDING OFFICER. The Senator from Illinois.
Mr. SIMON. I assure my colleagues I will just take a few minutes.

Amendment No. 393

(Purpose: To provide for expedited judicial review)

Mr. SIMON. Mr. President, I send an amendment to the desk in behalf
of myself and Senator Levin, and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Illinois [Mr. Simon], for himself and Mr.
Levin, proposes an amendment numbered 293.

Mr. SIMON. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the appropriate place in the pending amendment, insert
the following:

SEC. . JUDICIAL REVIEW.

(a) Expedited Review.--
(1) Any Member of Congress may bring an action, in the
United States District Court for the District of Columbia,
for declaratory judgment and injunctive relief on the ground
that any provision of this Act violates the Constitution.
(2) A copy of any complaint in an action brought under
paragraph (1) shall be promptly delivered to the Secretary of
the Senate and the Clerk of the House of Representatives, and
each House of Congress shall have the right to intervene in
such action.
(3) Any action brought under paragraph (1) shall be heard
and determined by a three-judge court in accordance with
section 2284 of title 28, United States Code.
Nothing in this section or in any other law shall infringe
upon the right of the House of Representatives or the Senate
to intervene in an action brought under paragraph (1) without
the necessity of adopting a resolution to authorize such
intervention.
(b) Appeal to Supreme Court.--
Notwithstanding any other provisions of law, any order of
the United States District Court for the District of Columbia
which is issued pursuant to an action brought under paragraph
(1) of subsection (a) shall be reviewable by appeal directly
to the Supreme Court of the United States. Any such appeal
shall be taken by a notice of appeal filed within 10 days
after such order is entered; and the jurisdictional statement
shall be filed within 30 days after such order is entered. No
stay of an order issued pursuant to an action brought under
paragraph (1) of subsection (a) shall be issued by a single
Justice of the Supreme Court.
(c) Expedited Consideration.--
It shall be the duty of the District Court for the District
of Columbia and the Supreme Court of the United States to
advance on the docket and to expedite to the greatest
possible extent the disposition of any matter brought under
subsection (a).

Mr. SIMON. Mr. President, I believe this is an amendment that will be
acceptable to both sides. But my colleagues will have overnight to look
at it and make a determination. It is identical to the language that is
in the House. It says that any Member of Congress may bring the
question of constitutionality before the Federal court, and a panel of
three judges will make a determination of its constitutionality and
then it can be appealed directly to the U.S. Supreme Court.
What we do not want is to live in limbo. We have people like John
Killian of CRS and Prof. Larry Tribe of Harvard who believe it is
constitutional. You have others like Louis Fisher of CRS and Walter
Dellinger, who believe it is not constitutional. I do not know who is
right. The courts have to make that determination. But we ought to know
as quickly as possible whether it is constitutional. My sense is it
will pass, and it is clearly going to be signed by the President. Let
us find out whether it meets constitutional test.
That is what we are asking. And that very simply is what the
amendment does.
I thank the President. I thank my colleagues for yielding, and
particularly Senator Levin who was here on the floor before I was.
Mr. EXON addressed the Chair.
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. EXON. Mr. President, I rise in support of the amendment offered
by the Senator from Illinois. It is a very good one, and a very timely
one. This amendment is simply good and prudent planning.
The distinguished Senator from West Virginia has detailed our real
concerns with the separate enrollment concept advanced by the
Republican substitute. Legal scholars can debate whether the separate
enrollment violates the clause of the Constitution. That would be
affected regardless of where the Senate comes out on this issue of
separate enrollment. It is a constitutional question.
I hope that all can agree that we do not want a constitutional cloud
hanging over what I think we will eventually pass in the form of
whatever kind of line-item veto or enhanced rescission we come up with
here in our debate on a final vote. We do not want that cloud hanging
over forever.
The pending amendment simply allows a speedy resolution of this
constitutional issue. It does not allow a legal challenge to hang over
all the bills for years upon years. Let us provide an expedited
judicial review, which the Senator from Illinois suggested. As I
understand it, it is identical to what was passed in the House of
Representatives.
Possibly this is something that can be passed by a voice vote, since
I know of no objection to it on this side of the aisle.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I appreciate the intentions of the Senator
from Illinois. I am in agreement, except with one caveat; that is, that
the opening paragraph of the amendment says any Member of Congress may
bring an action in U.S. District Court for the District of Columbia for
declaratory judgment and injunctive relief on the ground that any
provision of this act violates the Constitution.
I have not seen the House language, I say to my friend from Illinois.
But I am concerned about any provision of the act which is
unconstitutional, and whether the entire act would be unconstitutional,
if that was the intent of the amendment. If it was the intent of the
amendment, would a severability clause added to the amendment be
acceptable to the Senator from Illinois?
Mr. SIMON. Mr. President, if my colleague will yield, Mr. President,
I am sure we can work that out. If the Senator's staff will work with
my staff overnight, I think we are reaching a point of agreement.
Mr. LEVIN. Will the Senator from Arizona yield briefly?
[[Page S4245]] My understanding is that language tracks the Gramm-
Rudman judicial review language as well. That may be helpful as a
precedent as you review this overnight.
Mr. McCAIN. I thank the Senators from Illinois and Michigan.
I would like to ensure--and I think the Senator from Illinois is in
agreement with me. If one minor provision of the act is declared
unconstitutional, I would not want the entire act to be declared
unconstitutional. I know what the opponents of this legislation are
trying to get at. It is primarily separate enrollment. I understand
that. If it were declared unconstitutional, then obviously, the entire
act would be out. If it is a minor aspect of it, I would like to not
see the entire legislation knocked out.
So I look forward to working with the staff of the Senator from
Illinois overnight, and obviously with the good counsel of the Senator
from Michigan. I hope we can work that out during the course of the
evening.
I thank the Senator.
Mr. SIMON. I thank my colleague from Arizona.
Mr. McCAIN. Mr. President, we will not accept the amendment at this
time until we get the language worked out and also in keeping with the
wishes of the majority leader that we not do any amendments this
evening. But I also would like to assure the Senator from Illinois that
I think it is entirely fair and justified to see an expedited review of
this legislation.
I ask unanimous consent that the pending amendment be set aside.
The PRESIDING OFFICER (Ms. Snowe). Without objection, it is so
ordered.
Mr. EXON. Madam President, I have been listening all afternoon to the
excellent presentation by Senator Byrd from West Virginia and learned a
great deal. I think we would all agree that the Senator from West
Virginia is a very talented and experienced constitutional lawyer. I
thought he brought up some excellent points today, and I simply say
that I think it is very important that the Congress listen to somebody
with the experience of Senator Byrd and not get ourselves into a
situation where we, once again, try, and maybe this time pass, some
version of a line-item veto and then have it promptly set aside by the
courts. None of us want that. There have been a lot of arguments back
and forth, and I will submit for the Record at this juncture a
statement by Walter Dellinger in front of the Judiciary Committee in
January of this year which disagrees with the holding of Senator Biden
of the Judiciary Committee, the former chairman, with regard to this
concept of enrollment.
I ask unanimous consent that that be printed in the Record at this
point.
There being no objection, the material was ordered to be printed in
the Record, as follows:

Excerpt of Mr. Dellinger's Testimony Before the Subcommittee on the
Constitution, January 1995

As much as I regret saying so, I think that Senator Biden's
proposal for separate enrollment also raises significant
constitutional issues, you know, that would atomize or
dismember one of these large appropriations bills into its
individual items which the President could then sign. I think
it is either invalid under the clause, in my view, or, at a
minimum, it raises such complicated questions under the
Presentment Clause that it is a foolhardy way to proceed
because if we and all of our predecessors are right, I think
that which has to be presented to the President is the thing
that passed the House and the Senate, and that which passed
the House and the Senate is the bill they voted on on final
passage, not some little piece of it or a series of little
pieces of it. So I have doubts about it.

Mr. EXON. Mr. President, during the extensive debate that has gone on
now since 2:15 this afternoon, a lot of things have been talked about.
I simply emphasize once again that, as far as this Senator is
concerned, I am working very hard and have been for many years to try
to come up with something that we can generally agree on, get it
passed, hoping it is constitutional. I go way back to 1986 when the
then Indiana Senator, Dan Quayle--the predecessor to Senator Coats, who
was in the chair most of the afternoon--and I combined at that time on
what was called the pork-buster bill. That launched one of the first
recent initiatives trying to do something about putting some brakes on
some of the pork that goes into the bills.
So, therefore, I wanted to march shoulder to shoulder, as I did with
the chairman of the Budget Committee, Senator Domenici, this year in
introducing S. 4. And then came, of course, S. 14, which came after S.
4. It was introduced by Senator McCain and others. We held a very
interesting hearing on that. It now seems that many of the things
embodied in S. 4 have changed to the new concept offered by the
majority leader last night. I think some significant changes were made
that brings the proposal that is now before the body much, much closer
to S. 14, which Senator Domenici and myself introduced under the number
S. 14.
So I think we are making progress. I think we are going to pass
something now. But I certainly hope that we recognize and realize that
nothing is perfect, and the substitute offered last night, which I
understand has been agreed to by most of the Senators on that side of
the aisle in the majority, is something that we are looking at. I think
some changes would be in order, and I certainly hope that we will not
dismiss out of hand the detailed presentation made by Senator Byrd
today. The points he made, I thought, were tremendously important, and
we should take a look at that.
I am not sure where and when it came after the introduction of S. 4
and S. 14, which were the two principal bills in this area, that had
nothing about actions of an enrollment clerk. I am not sure yet how
that has become such a centerpiece. I hope that those on that side of
the aisle will at least listen to those of us here who would like to
suggest and have a vote on what we may think would be a better way that
would keep us, hopefully, away from the courts intervening and saying
that we have done something unconstitutional.
I simply say that I believe there are some concerns with regard to an
enrollment clerk. I listened to the Senator from Indiana this afternoon
talk about how computers could be used to expedite this process and it
would not be as laborious as indicated in the presentation by Senator
Byrd. I wonder if we recognize that the Constitution probably does not
allow computers to sign bills or ``billettes,'' as they were called
today by Senator Byrd in his rather extensive debate.
When you start talking about this enrollment proposition, I do not
believe that the Framers of the Constitution ever envisioned that an
enrollment clerk would be involved in such an intricate way. If the
enrollment clerk would be required to enroll all of these bills
separately, given that, we also have to recognize that the Speaker of
the House of Representatives, the President pro tempore of the Senate,
and the President of the United States all have to sign these. I
suspect and would hope that we would not have changed the system so
much that we do not require the signature of those key officers, as
established in the Constitution, and that they can sign through a
computer. It might well be that we have advanced to the point where the
computer can sign the name of the President of the United States. But I
suspect that that might be somewhat suspect from a constitutional
standpoint.
I simply say, Mr. President, that all we are trying to do here is to
move ahead aggressively. Let us have an open debate. Let us not try to
shut off debate, because this is a very important matter. Certainly,
when you are talking about matters like this, matters that we debate at
some length regarding the constitutional amendment to balance the
budget--an item, by the way, on which this Senator sided with those on
the majority side of the aisle. I still think constructive debate,
dialog and discussion is part of the Senate process, and we should not
try to move as quickly on everything as does the House of
Representatives.
I remind all that the U.S. Senate is not the House of
Representatives. If there is one thing that was made clear by the
Framers of the Constitution, they felt that the U.S. Senate should be
the more deliberative body. That does not mean we should be so
deliberative that we get nothing done. Nor does it mean that we have to
race down the track like they do in the House of Representatives to
meet some magic 100 days that I think means little, if anything, if we
are going to properly
[[Page S4246]] discharge our duties in the manner in which we have
traditionally done it in the U.S. Senate.
I was extremely disappointed by the vote on the balanced budget
amendment. However, we cannot spend the rest of the session licking our
wounds and assigning blame. The world did not come to a screeching halt
because the balanced budget amendment failed to carry the day. We
continue to run deficits and we continue to pile up debt. It is time to
move forward on a bipartisan basis. It is time to balance the budget
with or without a balanced budget amendment.
Oftentimes, during the balanced budget amendment, I found people
talking by each other, as I thought we did to some extent this
afternoon. I was here all afternoon. I listened very carefully to the
Senator from Indiana. I thought the Senator from Indiana was setting up
a straw man and knocking the straw man down, because I have not seen
anybody on this side of the aisle or that side of the aisle who has
been up talking against the concept, at least, of enacting some kind of
enhanced rescission line-item veto. Call it what you will.
So I hope that we are not going to be talking a great deal during
this debate assuming that there are people on this side of the aisle
that are trying to stop this. I assure you, Mr. President, and I assure
all Members on both sides of the aisle that I see no determination on
either side of the aisle of a filibuster.
But I do see a desire to thoroughly think things through and then
move ahead.
But back to the situation at hand. A long time ago, I hitched my
wagon to fiscal discipline and responsibility. I certainly do not plan
to switch horses because of one setback in the form of the
constitutional amendment to balance the budget.
Nebraskans care more about what we leave than what we take. I do not
choose to leave other's children or my grandchildren trillions of
dollars in debt.
I will not leave them a Nation where we spend 17 cents of every tax
dollar for interest on the debt. I will not rob them of thousands of
dollars that they will have to pay to service the debt even before we
begin to start reducing the principal. That is what the debate on the
balanced budget amendment and it is what the debate here is all about--
how do we best do these things in a fashion that gets them done?
I will not cheat them, my children or grandchildren, out of the
legacy they so richly deserve. We must do everything in our power to
blot out the red ink.
I am a realist, though, Madam President. The legislation before the
Senate today will not break the back of the deficit, and we should all
understand that. It will not cause the mountain of debt to vanish into
thin air. But it will rein in pork-barrel spending, and that is an
enormous step in the right direction.
Madam President, there is a common thread between this legislation
and the balanced budget amendment. When we debate either measure, this
Chamber sounds like a revival tent of sinners repenting. Senators vow
to refrain from wasteful spending.
I say, ``All evidence to the contrary.'' We have been out of control
and spending abounds. The only thing in short supply is self-restraint.
Revenue acts are chocked full of special interest tax credits and
expenditures. Appropriations bills are larded with pet projects that
cost the taxpayer billions of dollars. There are groaning with pork
that is carefully tucked away--so carefully placed that the President
cannot extract it without bringing down the entire bill.
Our colleagues have become quite skillful in slipping in these
projects. The President has a tough choice to make. Will the President
veto an appropriations or revenue bill just to get rid of the pork?
My colleagues know the drill and how it works. The President brings
out the scales and weighs the good against the bad. More often than
not, the President holds his nose and signs the bill.
The obvious solution is to grant the President the line-item veto,
more properly called, I suspect, an ``expedited'' or ``enhanced''
rescission authority. That is what we are about and I think that we are
going to accomplish it this time.
Suffice it to say, there are few in this body and even fewer in the
House who have firsthand experience with or have ever experienced a
line-item veto. It is my hope that the limited few, with firsthand
experience, will be listened to.
Today, 43 of the 50 State Governors have some form of veto authority.
As Governor of the State of Nebraska, I was privileged to have that
line-item veto. It was an invaluable weapon in my arsenal to control
spending by my State legislature.
I think the President of the United States, President Clinton and all
the Presidents that come after him, should have a line-item veto
authority so that they can take similar action, as I think the
President of the United States can and should do if we can do it in a
fashion--and I emphasize, Madam President, if we can do it in a
fashion--that is not on its face constitutionally suspect.
I have long believed that the President should have this power. All
but two Presidents in the 20th century have advocated some type of
line-item veto authority. President Clinton strongly supports it.
On the first day of the 104th Congress, I joined in introducing the
legislative line-item veto proposal, known as S. 14. This bipartisan
compromise was cosponsored by the distinguished Republican and
Democratic leaders, the chairman of the Budget Committee, Senator
Domenici, and Senators Bradley, Craig and Cohen. The original S. 14
stood in stark contrast to some of the other line-item veto proposals.
I am not saying that ours was perfect and I do not think others were.
S. 14, though, would have forced Congress to vote on the cancellation
of a budget item proposed by the President. However, it needed only a
simple majority of both Houses of Congress to override the President's
veto. This proposition was a viable alternative if it was still a fact,
as I suggest it was and maybe still is, that S. 4 as introduced would
fall to a filibuster. I do not think any of us wanted that.
S. 4, as originally introduced, would be the legislative equivalent
of shooting oneself in the foot, in my view. If we are serious about
reducing the deficit, tax expenditures should be included in any line-
item veto legislation. Anything else would be a half measure. The
significantly revised S. 4 that has been introduced by the Republican
leader as of yesterday has come a considerable distance towards
addressing the concerns that this Senator had with that portion of S.
4. But S. 4 also had a lot of good things in it.
Mr. President, a little history, I think, is in order. On February 3,
1993, the Budget Committee held a hearing on the impact of tax
expenditures on the Federal budget. What we found was rather startling.
At that time, tax expenditures were projected to cost more than $400
billion and were slated to increase to $525 billion by the year 1997.
Today, tax expenditures are $450 billion and are projected to rise to
$565 billion in 1999.
Like entitlement programs, tax expenditures cost the treasury
billions of dollars each year. And like entitlements, they receive
little scrutiny once they are enacted into law. Even though they
increase the deficit like mandatory programs, tax expenditures escape
any sort of fiscal oversight. Indeed, by masquerading as tax
expenditures, a program or activity that might not otherwise pass
congressional muster could be indirectly funded. Certainly I would say
that we have to take a look at these things and a close look.
Office of Management and Budget Director Alice Rivlin correctly
summed up the situation, and I quote:.

Tax expenditures add to the Federal deficit in the same way
that direct spending programs do.

If we are willing to subject annual appropriations to the President's
veto pen, then that same oversight should be granted to the President
on tax expenditures. Pork is pork. We should be willing to say ``no''
to both spending pork and tax pork. The revised S. 4 finally recognizes
some of its earlier shortcomings, in the view of this Senator.
For too long, many of our colleagues have clung to the thin reed that
we can
[[Page S4247]] solve the deficit by cutting only appropriated spending.
Unfortunately, the reed has given way and we are sinking in an ocean of
red ink.
In spite of the pay-as-you-go provisions of the 1990 Budget
Enforcement Act, entitlement spending is the largest and fastest
growing part of the Federal budget. The terrible truth is that
entitlement or mandatory spending is projected to grow from about 55
percent of the Federal spending in the current fiscal year to 62
percent in the year 2005.
The surge occurs in Federal health care programs. They are the only
programs that will grow at a rate significantly faster than the
economy, increasing from 3.8 percent of the gross domestic product in
fiscal year 1995 to 6 percent of GDP in 2005.
On the other hand, discretionary spending, which currently makes up
only about one-third of all of the Federal budget, has been
significantly curbed. It is expected to decline as a percent of the
economy over the same time period.
However, we cannot take much comfort in this success story. As much
as we cut away at the fat and well into the bone in appropriated
spending, we get to a point of diminishing returns. We will not be able
to balance the budget if we rely essentially only on appropriated
spending, as anyone who understands the budget process knows. Sooner or
later we must look the deficit squarely in the eye and make some tough
and painful choices.
Entitlement spending and tax expenditures are two that we can no
longer avoid.

The new found Republican realism about a sunset provision in the
amended S. 4 is helpful in improving chances to pass the legislative
line-item veto. This is a brandnew legislation that is untried and
untested. The sunset provisions will allow Congress to look at any
glitches and problems that may arise. If for some reason the line-item
veto does not perform to our expectation, we can trade it in and start
anew.
I also have been stressing that the only way to bring down the
deficit is on a bipartisan basis. I support the line-item veto
legislation, but some of my colleagues have doubts. A sunset provision
will ease some of those concerns because this bill will not be carved
in stone. We will be able to revisit the bill at a day certain and make
some changes if necessary.
During markup, I offered several sunset provisions that failed on
party line votes. I am pleased that the majority has reconsidered.
The legislative line-item veto does not exist in a vacuum. We must
revisit the entire Budget Act in 1998. That is when the caps and other
major provisions, including the one that creates a 60-vote point of
order and the system of sequesters, expires. What better time to
reexamine the legislative line-item veto?
Madam President, I have finally had an opportunity to review the
majority party substitute version of the line-item veto legislation. I
must say at the outset that I am extremely disappointed by the manner
in which this bill was brought to the floor and how the majority party
apparently hopes to force this bill through very quickly.
As the majority leader knows and as the chairman of the Senate Budget
Committee knows, there are many on this side of the aisle who would
like to see a line-item veto bill pass this Senate. I think it will. We
have been working on a bipartisan basis to do so. As evidence of the
bipartisan effort, I note that the majority leader and the minority
leader were cosponsors of S. 14 as introduced by Chairman Domenici and
myself. As a long-time supporter of the line-item veto legislation, I
am very encouraged that this topic is finally being debated on the
floor of the Senate.
I hope and trust that the majority leader will back off of some of
the tactics and the ``hurry up'' actions that have been so far
demonstrated.
I am reminded of what the great historian Barbara Tuchman wrote about
the 14th-century knights of war:

They were concerned with action, not the goal--which was
why the goal was so rarely attained.

If we can have a free and open debate, absent hardball politics, and
if we can keep our focus on the attainable goal and not just partisan
reactions, we can prevail.
Madam President, I have some concerns regarding the substitute that
is before the Congress, although I think it is a vast improvement over
what we have considered previously. Although I understand the need for
changes and compromises, this bill raises some questions that I think
need to be fully explored.
For example, the majority party has chosen to vest in the enrolling
clerk the power to divide up appropriations bills into many, perhaps
hundreds, of pieces. How might such a procedure actually work in
practice? Is such a procedure realistic? Legislative drafters already
are coming up with ways to get around this bizarre mechanism.
There are many other troubling questions regarding the substitute,
but I think they can be corrected if we can work together, at least
corrected to satisfy this Senator and most on this side of the aisle.
For example, what is to prevent the Congress from enacting provisions
that do not take effect until other specified provisions take effect?
Or, what about a provision that spends $80 million if, and only if, a
second provision spends $20 million, but suspends $100 million if the
second provision is not enacted? What about a provision that funds
every item specified in a separate piece of legislation?
The majority substitute does not allow the President to veto these
provisions effectively. The legislative process may end up the victim
much more so than all would like to see.
The measure before Members raises constitutional questions as well,
as Senator Byrd so eloquently pointed out earlier today. It would be
very unfortunate if after all of these years the Congress was finally
successful in passing a line-item veto, only to have it declared
unconstitutional by the U.S. Supreme Court. Other proposals such as S.
14 do not have that potential Achilles heel.
There are also issues which the substitute does not address that I
think it should. I believe that most Members would agree as they look
at the measure objectively. For example, the President cannot--I
emphasize cannot--reduce any amount. The President can only sign or
kill it. He cannot scale it back to a more reasonable amount. Under S.
4, the President had that option of reducing the amount.
In closing, let me say, Madam President, what about the goal of
reducing the deficit? S. 14 wisely includes a lockbox to ensure that
any money saved in rescission goes to reduce the deficit. The
Republican substitute includes no deficit reduction lockbox. I think it
should. And I think when my friends on that side of the aisle take a
look at that, they will agree.
In conclusion, then, I believe the substitute needs further
consideration, although I am disappointed by the process used by the
majority leader to force a cloture vote immediately--supposedly
tomorrow--to cut off debate on this important matter. I am encouraged
that the substitute bill has moved in the right direction by including
tax expenditures, which previous versions of that did not. Yet it is
far from a perfect bill and could be improved by addressing some of the
concerns that I have mentioned and others that will be addressed by
Senator Levin and other of my colleagues.
Mr. President, in the hours and days ahead, I hope we can put aside
overheated rhetoric and partisanship on the legislative line-item veto.
No Senator has a monopoly on all of the issues. No Senator is all right
or all wrong. No Senator has all the answers.
I hope that we can accommodate as many views as possible during the
upcoming debate. If we stay on this track, Madam President, we will
pass a legislative line-item veto--or call it what you will--that is as
good as a promise that I think we can do in keeping faith with the
American people. I thank the Chair.
I yield the floor.
Mr. McCAIN addressed the Chair.
The PRESIDING OFFICER. The Chair recognizes the Senator from Arizona.
Mr. McCAIN. I will be very brief. I have a lot of responses to the
statement from Senator Exon, but I think for the record, it might be
interesting to point out that I count 22 of the 34 amendments from that
side come from Senator Exon.
[[Page S4248]] One, sunset in 1997; sunset in 1998. When I see the
amendments, I understand the frustration of the majority leader. I can
assure the Senator from Nebraska there may be changes made to this
bill. One thing I can assure the Senator from Nebraska. We will not
change the two-thirds majority required to override the President's
veto.
If there is anything that is clearly unconstitutional, it is to call
a veto a majority vote by one House. I would be more than happy to
respond to the other remarks of the Senator from Nebraska after the
Senator from Michigan and then the Senator from Wisconsin finish their
statements.
I also finally state unequivocally, the Senator from Indiana on the
floor here was not setting up any straw men. The Senator from Indiana
has been involved in this issue with me for 8 years. The Senator from
Indiana does not set up straw men.
I have watched the debate, and the Senator from Indiana has
conducted, I thought, a very illuminating and important debate between
himself and Senator Byrd. Senator Byrd, as always, does an outstanding
job, and I am proud of the outstanding job defending his point of view
and his perspective that the Senator from Indiana conducted himself in
such fashion. I am proud. I reject any allegation that he sets up any
straw men.
I yield the floor.
Mr. EXON. Madam President, if I could correct just one impression
that the Senator from Arizona said about the filing of amendments.
As a manager of the bill, I filed a whole series of amendments before
1 o'clock today, which I had to do to protect this side from a whole
series of important matters that we thought were necessary on this
side.
I simply advise my colleague from Arizona that as of the breakdown,
the Senator from Nebraska has only four amendments, and I think we will
dismiss two of those, which gives the manager of the bill only two
amendments. And I think, by any measure, that is reasonable.
I yield the floor.
Mr. LEVIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Michigan.
Mr. LEVIN. Madam President, first let me comment on a couple of the
points the Senator from Nebraska made in which I concur. He indicated
most, if not all of us, support some form of line-item veto, and I
think he is right. I think that just about every Member of this body
wants to give the President greater control over individual items in
appropriations bills. I am one of those. I happen to support S. 14. I
think it is constitutional, which is very important to me, and I think
it gives the President additional power without running into the clear
provisions of the Constitution relative to the presentment clause.
I also agree with the Senator from Nebraska when he says not to rely
too much on line-item veto to cure our budget problems and our deficit
problems. It has proven historically not to be a significant cure in
States when it comes to the amount of money which has been vetoed by
Governors. It is a deterrent. That is worth something, clearly.
We, at one point, submitted a budget, I believe, to President Reagan
and said, ``If you had line-item veto, what would you veto?'' And I
think his total vetoes came to be about 1 or 2 percent of the deficit
that year, a very small percentage of the deficit. So it is not a major
cure for willpower.
It may or may not do some good, depending on how the President uses
it. It actually can do some harm if he uses it wrong. Nonetheless, the
Senator from Nebraska is correct that it is not going to significantly
reduce the deficit. It may help somewhat slightly, but do not rely on
it too heavily.
Further evidence of that is the fact that the President controls
every line of the budget that he submits to the Congress. Each line in
those budgets is a line which has been approved by the President or the
President's staff.
During the 12 years of the two Reagan administrations and the Bush
administration, six times out of the 12 years, the appropriations in
Congress exceeded those requests. Six times Congress reduced
appropriations below the level requested by those two Presidents.
If you look at the average appropriations level that the Congress
appropriated compared to the appropriations requested by the President,
again, where the President has control over every line, in the Reagan
years, the average appropriation by Congress was $1.7 billion less than
requested by President Reagan, and the appropriations during the Bush
years were $3.7 billion less than the appropriations requested by the
President.
So we cannot just say Congress has been the source of the deficit
problem. It has been a joint problem. Presidents, as well as Congress,
have contributed to it at least equally--at least equally. And if you
look at averages, slightly more by the executive branch than by the
legislative branch. So when we talk about those add-ons, those back-
home projects, that does not explain the deficits that we have run up
during the 1980's. It is much deeper than that. It is much more
complicated than that, and if we think line-item veto is going to cure
it, we are making a mistake, because it will not. Will it help? I think
it could.
In my book, it has to be constitutional or I cannot vote for it. S.
14 is constitutional and I am able to support that and vote for it as a
substitute to the substitute when we get to it. But the Dole substitute
before us, I believe, is unconstitutional and is unworkable.
Before the Dole substitute was presented to us, we had two line-item
veto bills reported out of the Budget and Governmental Affairs
Committees, two different line item vetoes. One was an enhanced
rescission and one was expedited rescission. One clearly
constitutional, one of debatable constitutionality.
But now we have a third one, a very different bill than was reported
by either the Budget or the Governmental Affairs Committee.
The top constitutional experts of the Clinton administration and the
Bush administration do not probably agree on a whole lot, but they do
agree on one thing. As much as they want to see the enactment of a
line-item veto, because both President Bush and President Clinton want
line-item veto, both their top constitutional experts have serious
constitutional problems with this separate enrollment approach which is
now before us. I think it is fair to say that both--and I am going to
read their words --believe that this approach is unconstitutional.
The Constitution, as Senator Byrd has gone through this afternoon,
establishes the method by which laws are enacted and by which they are
repealed. It specifies a bill becomes a law when it is passed by both
Houses of Congress, signed by the President, or if the bill is vetoed
by the President, when that veto is overridden by a two-thirds vote in
each House.
The substitute before us purports to create a third way by which a
law can be made, by giving the Clerk of the House of Representatives
and the Secretary of the Senate the power to enroll and to send to the
President for his signature bills that have never passed either House
of the Congress.
Madam President, I do not believe that we can or should seek to
override constitutionally mandated procedures by statute. We cannot do
it if we wanted to, but we should not do it and should not try to do
it.
Article I, section 7 of the Constitution says that each ``bill which
shall have passed the House of Representatives and the Senate shall be
presented to the President for signature.''
The Constitution does not say that pieces and parts of bills passed
by the Congress may be presented to the President for signature. It
does not say that line items or paragraphs or subparagraphs of bills
passed by the Congress shall be presented. It says that bills passed by
the Congress shall be presented to the President for signature.
Lewis Fisher of the Congressional Research Service explained the
problem several years ago when he testified relative to an early
version of this separate enrollment approach, and this is what Dr.
Fisher said.
He said under that bill:

The enrolling clerk would take a numbered section or
unnumbered paragraph and add to it an enacting or resolving
clause, provide the appropriate title and presumably affix a
new Senate or House bill number. Such a bill, in the form as
fashioned by the enrolling clerk, and submitted to the
President would not appear to have passed the House of
Representatives and the Senate.

[[Page S4249]] In other words, the bill that is presented, or the
bills, the wheelbarrow full of bills that is presented to the
President, has not passed the Senate and the House. It is different
from the bill that we passed. It is bits and pieces of a bill that we
passed, and that is the problem with the Dole substitute before us. It
purports to give to the Clerk of the House of Representatives or to the
Secretary of the Senate the power to attest and to send to the
President for his signature bills which have not been passed by the
House or the Senate.
Under the Constitution, a bill cannot become law unless that bill has
passed both Houses of Congress.
Madam President, I have no doubt that the Congress could, after
passing an appropriations bill, take that bill up again, divide it into
100, 200, even 1,000 separate pieces and pass those pieces again as
freestanding measures. Those separate bills then would have been
approved by the Congress and could be sent to the President for
signature. I even suppose that we could adopt some form of streamlined
procedures for consideration of these separate parts, these separate
pieces of legislation.
While that approach would result in the President spending hours and
hours signing various pieces of a single appropriation bill, it at
least would be constitutional. We would have adopted the same bills
that the President is signing. But the bill before us contains no
requirement for any consideration of the separate measures by the
Senate and the House. Rather, it directs the enrolling clerks to create
such separate bills and to send them to the President as if--as if--
passed by the Congress.
The Supreme Court held in the Chadha case that the legislative steps
outlined in article I of the Constitution cannot be amended by
legislation. We cannot amend article I of the Constitution by
legislation. We may want to do it. We may have a good motive in doing
it. Our goal may be important and great. But we cannot amend the
Constitution by legislation. And this is what the Chadha Court said:

The explicit prescription for legislative action contained
in article I cannot be amended by legislation. The
legislative steps outlined in article I are not empty
formalities. They were designed to assure that both Houses of
Congress and the President participate in the exercise of
lawmaking authority.
The bicameral requirements--the presentment clauses, the
President's veto, and the Congress' power to override a
veto--were intended to erect enduring checks on each branch
and to protect the people from the improvident exercise of
power by mandating certain prescribed steps. To preserve
those checks and to maintain the separation of powers, the
carefully defined limits on the power of each branch must not
be eroded.
With all the obvious flaws of delay, untidiness, and
potential for abuse, we have not yet found a better way to
preserve freedom than by making the exercise of power subject
to the carefully crafted restraints spelled out in the
Constitution.

Madam President, President Clinton favors a line-item veto. His top
aide, the top official of the administration on matters of
constitutional law, Assistant Attorney General Walter Dellinger,
testified earlier this year that the enhanced rescission bill
introduced by the Senator from Arizona would probably be found to be
constitutional, a conclusion with which I happen to disagree but
nonetheless the top constitutional lawyer in this administration found
that the approach of Senator McCain would likely be found to be
constitutional.
However, even Mr. Dellinger could not find a way to get around the
constitutional problems with the Dole substitute now before us. The
separate enrollment approach, Mr. Dellinger testified, runs into the
plain language of the presentment clause in article I. This is what Mr.
Dellinger said:

As much as I regret saying so, I think that the proposal
for separate enrollment also raises significant
constitutional issues. I think it is either invalid under the
presentment clause or at a minimum it raises such complicated
questions under the presentment clause that it is a foolhardy
way to proceed.

This is the sentence that I now want to emphasize of Assistant
Attorney General Dellinger.

If we and all our predecessors are right--we and all of our
predecessors in that office are right--
that which has to be presented to the President is the
thing that passed the House and the Senate and that which
passed the House and the Senate is the bill they voted on
final passage, not some little piece of it or a series of
little pieces of it.

Now, on March 16, just a week ago, in a memorandum to Judge Mikva,
White House Counsel, Dr. Dellinger, reiterated the constitutional
problems with the amendment now before us, with the Dole substitute,
and this is what he said.

On what seems to us to be the best reading of the
presentment clause, what must be presented to the President
is the bill in exactly the form in which it was voted on and
passed by both the House of Representatives and the Senate
rather than a measure or a series of measures that
subsequently has been abstracted from that bill by the clerk
of the relevant House.

That is the top constitutional official in the administration, in
this administration that wants line-item veto. That is what they have
concluded. The best reading of the presentment clause says that the
bill going to the President has to be the same bill in the same form
that we passed.
He went on to state--but, of course, this constitutional question is
open to debate like all constitutional questions, I presume. He also
said that it would have a better chance to be ruled constitutional if
it made some provision, in this approach, for Congress to take up the
separate bills and to pass them en bloc.
The substitute before us, Madam President, contains no such provision
to address the constitutional infirmity that Mr. Dellinger pointed out.
Now, President Bush has also been a strong advocate of line-item
veto, but the top constitutional law expert of his administration also
has taken the position that separate enrollment is unconstitutional.
Former Assistant Attorney General Timothy Flanagan testified before the
Judiciary Committee as follows:

One type of line-item veto statute would attempt to avoid
the problem of the Constitution's all-or-nothing approach to
Presidential action on bills by providing that after a bill
had passed the House and Senate, individual titles or items
of the bill would be enrolled and presented to the President
as separate bills.
Such an approach suffers from a number of constitutional
defects. First and foremost, the Constitution plainly implies
that the same bill upon which the Congress voted is to be
submitted to the President. If the Constitution's text is to
be read otherwise to permit the presentment requirement to be
met by dividing a bill up into individual pieces after
Congress has passed it and before presentment, then there is
no logical reason why the opposite process could not be
permitted. Congress could require individual appropriation
bills as well as others to be aggregated into a giant omnibus
bill before presentment to the President as a single opus.

And again this is what President Bush's top constitutional lawyer in
the Justice Department is telling us. He concluded:

In my view, the Constitution permits neither result but
requires that the bill be presented to the President as
passed by Congress.

As passed by Congress.
So the top constitutional experts, Madam President, of both this
administration and the prior administration agree that the separate
enrollment approach taken by this substitute has great constitutional
problems.
Now, the amendment before us attempts to address the constitutional
problems with the separate enrollment approach by stating that each,
each of the separate bills enrolled and sent to the President ``shall
be deemed to be a bill under clauses 2 and 3 of section 7 of article I
of the Constitution.''
Now we are going to amend the Constitution by a statutory deeming
process, and how convenient.
I suppose we could pass other laws, under this theory, which
contravene the Constitution, and deem those provisions to be
constitutional as well. We do not have that power. We did not have it
before Chadha, when the Supreme Court wrote that we cannot amend the
Constitution by legislation. And we do not have it after Chadha.
It does not do any good to deem separate measures as bills. The
question is not whether they are bills in an abstract sense, the
question is whether they are bills ``which shall have passed" both
Houses of Congress as required by the Constitution.
These bits and pieces, the product of disassembling a bill, these
parts have not passed either House in that form
[[Page S4250]] and may never have passed either House in that form. No
amount of deeming, as convenient as it is, can change that.
The Constitution does not say that pieces and parts of bills passed
by the Congress may be presented to the President. It does not say that
line-item vetoes or paragraphs or subparagraphs of bills passed by
Congress shall be presented to the President. It says that the actual
bills passed by Congress shall be presented to the President for
signature.
This may all sound like process and a technicality, but it is the
essence of what we do around here. A vote for a bill is not the same
thing as a separate vote on each of its provisions. The bill is a whole
and we finally vote on it as a whole. We all vote for bills. I think
every one of us has said on the floor of this Senate or on the floor of
the House or in a speech somewhere: I do not agree with every provision
in this bill but I am going to vote for it because on balance there are
more good provisions than bad provisions.
When we, as Members of the Senate, vote for final passage of a
particular bill, we are not voting on each provision as though standing
alone. We are voting for the whole. And the reality
is--our real world is--that if we chop up a bill into its component
parts for the President to sign we would be creating very different
bills from the one bill that actually passed the Congress.
Let me just take the supplemental appropriations bill that we just
passed. This was a defense supplemental appropriations bill that was
adopted last week. By my count, there are approximately 78 separate
items in this bill and that does not include suballocations, which
would make it a much larger number of items. But just not including
suballocations, I think there are 78 separate items in this bill. Each
of these would be enrolled under the Dole substitute before us. That
includes 12 paragraphs of appropriations for military personnel, 20
paragraphs of rescissions--20 paragraphs of rescissions of DOD
appropriations--and 18 paragraphs of rescissions of non-DOD funds.
There are also 20 general and miscellaneous provisions in here, in this
bill we just passed, which would have to be enrolled separately under
the amendment before us.
I voted for this supplemental bill. I did not vote for each of those
78 items separately and I would not have voted for a lot of those
separately. Under the approach that is before us now, the President
would be voting--each separate 78, the President would be deciding on
whether to sign 78 separate bills, whereas we did not vote separately
on 78 separate bills, and a whole bunch of those may not have passed as
78 separate bills. And the whole bill may not have passed had some of
those 78 separate items not been included in the bill.
If we had a separate vote on each of the separate items in the
defense appropriations bill, some might have passed, some might not
have passed. But we did not do that. We voted on the package. If we had
voted again on each of these items separately, the final outcome might
have been very different. Some may have voted for the final bill, this
full bill, specifically because of the inclusion of specific items in
the package. That may have actually won the vote of some of us. We do
that all the time. ``Unless these provisions, 1, 10, 30, and 38, are in
this bill, I cannot vote for it.'' If those items were in separate
bills, some of us may have chosen not to vote for this single
supplemental appropriations bill.
Let me just give a couple of examples. Section 108 of the defense
appropriations bill contains a requirement for a report on the cost and
the source of funds for military activities in Haiti. This is a
separate section of the bill, section 108. Under the substitute before
us, it would be separately enrolled and the President could veto it.
But some of us may have voted for the funds provided in this bill for
operations in Haiti only because there was another provision in this
bill requiring a very important report. Would the appropriation have
passed without the reporting requirement? We do not know. We did not
vote on it.
Section 106 of this bill contains defense rescissions. Those
rescissions are intended to pay for the appropriations that are made in
the bill. We are rescinding some previous appropriations in order to
pay for some current appropriations. Under the amendment before us,
each of the rescissions would be separately enrolled and sent to the
President for signature. The President could veto any or all of the
rescissions. But how many of us would have voted for the appropriations
if they were not paid for by the rescissions? Would the appropriations
have passed without the rescissions? That is a very basic point. That
was a matter of real contention, as to whether or not we should be
appropriating money in this supplemental unless we were defunding,
unappropriating, rescinding previous appropriations. Would that bill
have passed without those rescissions? We do not know. We did not vote
on that.
Under the substitute before us, the President will decide whether to
sign separately the rescissions and the appropriations. That is very
different from what we voted on, one package with both.
The supplemental appropriations bill that we passed last week was
actually a rather simple bill as appropriations measures go. We
routinely pass appropriations bills that contain hundreds, even
thousands of items. Here is a quick listing of last year's
appropriations bills, how many items they had, not including what are
now called suballocations. I will get to that issue in a moment. But
without getting even to pulling apart paragraphs, just looking at
paragraphs themselves, numbered or unnumbered, without subdividing
paragraphs into suballocations, last year's appropriations
bills had the following number of items: Commerce, Justice, and State
had 214; Defense, 262; Transportation, 150; foreign ops, 150;
Agriculture, 160; Treasury-Postal, 252.
I will stop there, and I ask unanimous consent the list be printed in
the Record.
The PRESIDING OFFICER. Without objection, it is so ordered.
There being no objection, the list was ordered to be printed in the
Record, as follows:

Commerce, Justice and State Appropriations--214
Defense Appropriations--262
Transportation Appropriations--150
Foreign Operations Appropriations--151
Agriculture Appropriations--162
Defense Construction Appropriations--45
Veterans Affairs, HUD, and Indep. Agencies--174
Treasury, Postal Service Appropriations--252
Legislative Branch Appropriations--114
District of Columbia Appropriations--86

Mr. LEVIN. Madam President, I am told one of the omnibus
appropriations bills that passed the Congress in the mid-1980's had
over 2,000 line items. Again, I think that is without those
suballocations, so we could multiply that significantly.
Some of the items, by the way, some of the items in appropriations
bills increase spending levels. We know that. That is what is usually
thought of when we increase spending.
But other items in appropriations bills decrease spending levels or
they set conditions on spending or they prohibit spending for certain
purposes. We have provisions in appropriations that reduce or limit
spending. Those are rescissions. There are also conditions placed on
expenditures, and prohibitions, again, for spending for particular
purposes.
If those provisions are placed in separate sections, as they
frequently have been in the past, they could be vetoed under the
substitute before us. The President could use the line-item veto to
actually repeal, to stop, the prohibitions on spending that we put in
the appropriations bills. That would increase spending. They are not
uncommon. Limitations on appropriations or on rescissions are not
uncommon. We have plenty of them just voted on. Yet, a line-item veto
could be used. When used against rescissions or prohibitions on
limitations, it could end up increasing spending and not cutting
spending.
The bottom line is that Members who vote for an appropriations bill
usually do not support every item in it. We do not vote on each of
those items separately. We would not know what the result would be if
we cast such votes on each item separately. We finally vote on an
entire packet. That is the bill that we pass, and that is the bill that
must be sent to the President under the Constitution. I believe that in
an appropriations bill of any size, each of
[[Page S4251]] us likes some of the provisions and dislikes others.
That balancing is the essence of the legislative process. It is what
enables us to legislate. In many cases, it is what enables us to cut
appropriations.
For instance, I may be willing to accept a significant cut in a
program that affects my State because I know that a sacrifice will be
shared, because I know that in the bill it causes a cut in a program
that is good for my State where other programs that benefit other
States are being cut in the same bill. That does not mean that I would
have voted for the cut on the one appropriation involving my State as a
freestanding measure. It is because the pain is distributed as part of
a package so that we are often able to support an overall measure.
The Constitution says one thing that is so critical to this
substitute. Only those bills which shall have passed the Senate and the
House of Representatives are to be sent to the President for signature.
The substitute before us says something quite different; that the
President would get pieces of bills that we have passed instead of the
bills themselves. That approach is plainly at odds with the
requirements of the Constitution, and we should reject it.
Madam President, I do not know if there are others who are waiting to
speak. I have some additional points that I want to make on the
practical problems with the enrollment process that relate to an
amendment that I will be offering tomorrow. I am wondering if I might
ask my friend from Wisconsin about how long he expects to be, if I may
ask unanimous consent to make that inquiry.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Wisconsin.
Mr. FEINGOLD. Madam President, I think roughly half an hour.
Mr. LEVIN. Madam President, I will try to conclude in about 10
minutes and then give my friend some time.
The PRESIDING OFFICER. The Senator may proceed.
Mr. LEVIN. Madam President, the majority leader said yesterday that
the Senate would have an easy time adopting this substitute. One of the
reasons was that most of its provisions have been considered by the
Senate and passed. There is a lot of new language in the substitute. It
is worth taking some time to analyze that new language. For example,
the first half of the substitute is devoted to points of order against
any appropriations bill that fails to include in the bill language
detail that is in the committee report. I do not think that has been
proposed before.
We tried to check the separate enrollment approach. I do not believe
that has ever been part of the bill before. I do not think it has been
considered by the Senate. If I am wrong, I will stand corrected. But it
is going to have a significant impact on the appropriations process. It
is going to be much more rigid. We are going to have much lengthier,
cumbersome appropriations bills. But, nonetheless, whether it is good
or bad, it is different from what we have had before.
But I want to focus on a different provision. That is the definition
of the term ``item.'' This provision is the key to the entire bill
because an ``item'' is what must be separately enrolled. That is the
test of whether or not the enrollment must be made separate by the
clerk. There is some very significant new language in this substitute
which again, to the best of our ability, does not appear in previous
legislation that we have considered.
The term ``item'' means (a) with respect to an appropriations
measure; No. 1, any numbered section; No. 2, any unnumbered paragraph,
or, No. 3, any allocation or suballocation of an appropriation made in
compliance with section (2)(a) contained in a numbered section or an
unnumbered paragraph.
It is those words ``allocation or suballocation'' which are the new
material. The earlier bills referred to items as being either numbered
sections of a bill or unnumbered paragraphs of a bill. So the enrolling
clerk could take any numbered section or any unnumbered paragraph and
separate it out and enroll it. That is what has been considered in
these bills today relative to separate enrollment. But now in the
substitute before us we have an additional thing that has to be
subdivided out. That is something called an allocation or a
suballocation of an appropriation that is contained in either a
numbered section or an unnumbered paragraph.
How do we break the allocation or suballocation out of a bill and
enroll it as a separate bill? We do not have to wonder totally about
that because the Senator from Indiana has already asked the enrolling
clerk to put together a sample appropriations bill for us based on last
year's Commerce-State-Justice appropriations bill and has asked the
enrolling clerk to take that actual bill and to subdivide it according
to this substitute. That is what the Senator from Indiana called a
trial run. He is a very, very thorough and a very thoughtful Senator
and took the time to go to the enrolling clerk and say, ``Here, take
last year's State-Justice-Commerce appropriations bill and apply the
approach that is used in the substitute to that bill.''
He explained on the floor the other day--and he explained again this
afternoon--that we have all kinds of new technology. We can use
computers. We can punch buttons, and we can subdivide bills in pieces.
We do not have to have the enrolling clerks in green eyeshades who are
trying to figure out what is going on and type things out in longhand.
We have computers. ``Modern technology'' is what the Senator referred
to; ``miracle of modern technology.'' It is no longer a difficult
process. He used the words ``easy, accurate and fair.'' I believe those
are his words. I hope I am quoting him correctly. He quoted the
enrolling clerk last week. He said it is at least 1,000 times faster
than the old system with today's technology. Then he said he asked the
enrolling clerk to do a trial run. He took the largest bill that we
passed, State-Justice-Commerce and Judiciary, and asked him to
separately enroll it.
Well, the stack of paper which we got from the enrolling clerk was
pretty thick. Here is a copy of the way it came out. This is what we
sent to the President last year. This is what goes to the President
this year. The pamphlet was about 50 pages long.
There are 582 bills in here, or items. This is just one appropriation
bill. This is a 3-inch-thick stack. Mind you, this is not a 3-inch
bill. This is 582 bills here that go to the President--each separate,
signed by the Speaker, signed by the President of the Senate, sent to
the President for signature. But that is only the writer's cramp part
of it. That is interesting, but that is just hours and days of the
President's time.

Another interesting question is what is in these pieces of paper,
this trial run, this bill, that was said to be so successful by our
friend from Indiana. What is the product when you punch the computer
and come out with 582 pages, when you suballocate a paragraph, you rip
out a paragraph, and you get a bill that can stand on its own, with
four corners? We tried looking at that. Here is one of the bills. The
Chair has good eyes, but I am afraid this is far away. I will read it.
It has all the formal headings, and it sure looks like a bill. If you
took a quick glance at that, you would say it is a bill. It has fancy
writing at the top; it is italicized. All good bills are italicized.
``103d Congress, second session, in Washington,'' and then it says,
``An act making appropriations for the Department of Commerce, Justice,
and State, related agencies * * * be it enacted * * * the following
sums are appropriated out of the Treasury''--and then you get to the
text of the bill. What looks like a bill is incomprehensible. This is
the text of that bill. It says, ``of which $200,000 shall be available
pursuant to subtitle (b) of title I of said act.''
That is the bill the President is supposed to sign in this test run.
What act? This act? No, not this act. If you go back to the bill which
no longer exists, which has been cut up like a salami into all these
slices, then you can figure out that they are not relating to this act.
It is some other act. It is the crime bill of last year. The computer
generated this in a successful trial run. Hundreds of pages are just
like this.
(Mr. SANTORUM assumed the chair.)
Mr. McCAIN. If the Senator will yield, has the Senator ever examined
the appropriations bills that are normally passed through here and
tried to ascertain which funds went where, under what circumstances,
and maybe he can explain why it takes days, weeks, sometimes months, to
figure
[[Page S4252]] out who got what money under what circumstances? I
suggest--and I ask the Senator from Michigan if that is more
complicated than that is, since I have spent a lot of years trying to
figure out where the pork goes in appropriations bills and it has taken
weeks and months for experts to figure it out. I think it might be
easier to figure it out that way. All they have to do is pick up the
phone and ask, ``What is that $200,000 or $300,000 for?'' And then they
can respond.
Mr. LEVIN. Where do you look to find out?
Mr. McCAIN. You call up the people who wrote the bill.
Mr. LEVIN. The bill----
Mr. McCAIN. It is far better, in my view, to have a single line there
than the pork that is hidden away and tucked into little areas of the
appropriations bills which sometimes people never ever find.
Mr. LEVIN. I tell my friend that at least you can find them if you
look. In this bill you cannot find them. That is the bill.
Mr. McCAIN. That is the bill. That applies to a certain section,
which all you have to do is ask, ``What does it apply to?'' If the
President asks that and it applies to a piece of pork, he can say,
``Fine, I will veto that.''
Mr. LEVIN. That is the whole bill. It says, ``$200,000 shall be
available pursuant to subtitle (b) of title''----
Mr. McCAIN. Yes, and they might say, ``Well, it is a special project
in Michigan.'' And the President might say, ``Fine, thanks. Now I know
that, and I will veto it.''
Mr. LEVIN. There is no way of knowing if it is a special project.
This is the entire bill.
Mr. McCAIN. All they have to do is ask.
Mr. LEVIN. If I can say to my friend from Arizona, when the computer
split up this appropriations bill into these pieces, this is the bill
which the President signed. He can ask day and night for all the
information he wants. That is what the bill says. In an appropriations
bill now, sure it may take you some time to figure out what the
crosswalks are, but you can find out from that bill and the conference
report for that bill exactly what it is. In this, 571 bills that are
going to the President, each one a separate bill, and it is gibberish,
you cannot figure out what that is.
Mr. McCAIN. If I can respond to my colleague, and I know we are
skirting the rules of the Senate. All I have to do is ask, ``What
section is that under; what part of the entire bill was enrolled by the
enrolling clerk?'' There was a bill that was enrolled, and what does
that apply to? I think that is pretty easy. I thank my colleague for
his patience.
Mr. LEVIN. My understanding is that the whole bill is not enrolled by
the clerk. I am wondering whether the Senator is saying the bill,
before it was disintegrated, was enrolled.
Mr. McCAIN. It was passed by both Houses. So all I had to do was pick
up the bill and say, ``See what was in it.'' That is not really
difficult.
Mr. LEVIN. My question of my friend was, Was the bill that was passed
ever enrolled?
Mr. McCAIN. Portions were enrolled that have appropriations
associated with them, obviously. But the bill as passed is available
for reference to be looked at to find out where that applies to. In my
view, that is far better than looking through bills. And I have spent
hours in fine print, and we find out we are spending $2.5 million to
study the effect on the ozone layer of flatulence in cows, and nobody
knew it was in there until long after it was spent. That is what we are
trying to stop here by having a single bill there that says exactly
what that is being spent for. All you have to do is go back to the
original legislation that was passed and you will know--the President
will know whether or not to veto it.
Mr. LEVIN. My question is, When the Senator says the legislation that
was passed, the legislation no longer exists, and would my friend agree
that what he called ``the bill, as passed'' was never enrolled? Would
he agree?
Mr. McCAIN. I would agree that the relevant portions of the bill that
were going to be signed into law were enrolled.
Mr. LEVIN. Would the Senator agree that the bill as passed--passed as
one bill--was never enrolled as a bill?
Mr. McCAIN. No. I agree that the relevant portions that are important
to the taxpayers of America were enrolled in each separate bill. Again,
I thank my friend from Michigan.
Mr. LEVIN. Mr. President, let us go back to what goes to the
President. That goes to the President. It is without meaning. Nobody
can look at this bill. This is now a bill. This is no longer a part of
a bill. This is the bill. Nobody looking at that is going to be able to
say what it means. One is going to have to go back to a bill, which no
longer exists, and was never enrolled, to try to figure out what that
means. Let me go into some more detail as to what the complications are
when one does that.
This is another line that comes out of the bits and pieces of
Commerce, State, Justice. This goes to the President. This is the bill.
This is it. It is one of 572 bills that go to the President. It reads,
after the italic and all of the other stuff--this is the total text:

. . . of which $6 million is available only for the
acquisition of high performance computing capability.

If he signs that, that is the law of the land. That is a law. The $6
million is available only for this. That is a limitation on something.
It is a limitation on the expenditure of funds.
What is it or what was it a part of?
Let us go back and look at what that was a part of. That was part of
the Patent and Trademark Office appropriations, State, Commerce,
Justice, which said the following, ``For necessary expenses of the
Patent and Trademark Office provided by law, including defense of suits
. . . $83 million to remain available until expended.''
That is another bill, by the way. That goes to the President just
that way.
Now, if the President signs the $83 million, he then, if you look
back at the bill that was passed but never enrolled, gets to this
section: ``Of which $6 million is available only for the acquisition of
high performance computing capability.''
That is a restriction on the money. That is a restriction on the $83
million. It is a limit. If this is vetoed, then he has greater use of
the $83 million, not less.
This is an example where an appropriations bill's limitation,
restriction, limits the use of money, does not enlarge it.
And so, now what? Now we have an appropriation of $83 million and if
the President signs that, if he does not want to be limited in that
way, he now has $83 million to spend without any limit. That is
supposed to be an elimination of pork, to give the President $83
million unlimited instead of $83 million with a restriction on it?
And then the one that I discussed with the Senator from California.
This is a bill that goes to the President. The total bill, total text:
``Of which not to exceed $11 million shall remain available until
expended for furniture and furnishings related to new space alteration
and construction projects; and''.
That is the text of a bill that goes to the President of the United
States. The Senator from California said, ``Well, gee, the President
should probably veto that. We do not need new furniture and
furnishings.''
This says no more than $11 million, not to exceed $11 million. This
is a restriction on how much money will be spent on furniture. This
does not say that $11 million must be spent. It says not to exceed. It
is exactly the opposite of how the Senator from California interpreted
this. And that is the problem of giving this kind of gibberish to the
President. There is no context.
In trying to give the President more power, we are creating an
approach here which is going to be so cumbersome, so empty, such a
void, so much of an unrecognizable mishmash, hundreds and hundreds and
hundreds of bills to the President like this.
By the way, a lot of Governors have the line-item veto. A lot of
States have the line-item veto. I do not think there is one State in
the United States which has a separate enrollment approach. If there
is, I would like to know about it.
This makes it impossible to know what you are signing. The bill that
passed the legislature, in this case the Congress, no longer exists. It
was not enrolled as a bill. It was split up, sliced like a salami,
sliced into bits and
[[Page S4253]] pieces, and the bits and pieces go to the President. And
somehow or other, the President is going to figure out the context.
Well, I think we can do a lot better than that as a legislative
process. That is not what this process is all about.
Again, this is not my summary here. This is not my test case. This is
a real test case of the Senator from Indiana, who gave a real bill to
an enrolling clerk and said, ``Apply the Dole approach, the separate
enrollment approach, with these suballocations''--I emphasize the word
``suballocations,'' because that is what these are --``and apply it to
a real bill.'' That is a test case, said to be successful. ``Punch a
computer button, folks. It will solve our problems for us.'' It is
going to create a lot more problems than we solve.
I have no doubt that we could craft 582 separate bills that actually
put together the right allocations and suballocations and the right
conditions so that it all made sense and the bills could then really be
signed or vetoed independent of each other. They really could be bills.
They would not just be like pieces of a puzzle thrown up into the air
and then coming down in 582 pieces. We could do that. We could actually
craft 582 bills. It would be a lot of work, but it is doable. But it is
not doable this way.
It would probably take a lot of effort of the Appropriations staff
working around the clock for weeks to do it. We would then all have to
review it carefully to make sure that they really did it right. Are the
right conditions attached to the right appropriations?
There is a name for that process. It is called legislation. That is
what the name of that process is: legislation. It is something that we
do as Members of Congress. It cannot be done by an enrolling clerk and
it cannot be done by a computer.
So I say to my colleagues, wherever you are on this subject, whether
you are sure you are for the substitute or not, get a copy of this
separately enrolled document which the Senator from Indiana got
produced from the enrolling clerk. Get a copy of it before you vote on
the substitute before us, because whichever way you are voting on it,
this is what we are going to be producing for ourselves if it passes.
And we ought to be very careful.
It is worth taking the time to analyze this process and to make sure,
in trying to give the President additional power, we are not creating
total uncertainty, total confusion, total chaos and, I think, at the
end of the game, probably, instead of reducing expenditures, perhaps
increasing expenditures.
I yield the floor.
I took much more than the 10 minutes I said I would take at the end.
I thank my friend from Wisconsin for his patience.
Mr. McCAIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I thank my friend from Michigan for a very
intelligent and persuasive argument.
I am sure, as the Senator from Michigan mentioned, he knows that the
legislation will be written differently. The process will change. In
fact, this whole line-item veto is a change in the process.
The Senator from Michigan knows very well that in envisioning the
separate enrollments taking place that there will be legislation
written in a different fashion so that they will be clear. Even if they
are not totally clear, the President of the United States can ask what
it applies to before he signs or vetoes a bill.
Finally, I found it interesting that the President of the United
States, in his comments today, did not find it a difficult task. In
fact, he said, I believe, that he looked forward to having lots of
signing pens and does not view with such alarm the process or obstacles
that he may face as outlined by the Senator from Michigan.
I yield the floor.
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD addressed the Chair.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I thank the Chair, and I thank the
managers.
I ask unanimous consent that the Simon amendment be temporarily set
aside so I can offer two amendments.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 356

(Purpose: To amend the Congressional Budget and Impoundment Control Act
of 1974 to limit consideration of nonemergency matters in emergency
legislation)

Mr. FEINGOLD. Thank you, Mr. President. I send amendment numbered 356
to the desk and ask for its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Wisconsin [Mr. Feingold] proposes an
amendment numbered 356.

Mr. FEINGOLD. Mr. President, I ask unanimous consent further reading
be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the end of the pending amendment #374, add the
following:

SEC. . TREATMENT OF EMERGENCY SPENDING.

(a) Emergencty Appropriations.--Section 251(b)(2)(D)(i) of
the Balanced Budget and Emergency Deficit Control Act of 1985
is amended by adding at the end the following new sentence:
``However, OMB shall not adjust any discretionary spending
limit under this clause for any statute that designates
appropriations as emergency requirements if that statute
contains an appropriation for any other matter, event, or
occurrence, but that statute may contain rescissions of
budget authority.''.
(b) Emergency Legislation.--Section 252(e) of the Balanced
Budget and Emergency Deficit Act of 1985 is amended by adding
at the end the following new sentence: ``However, OMB shall
not designate any such amounts of new budget authority,
outlays, or receipts as emergency requirements in the report
required under subsection (d) if that statute contains any
other provisions that are not so designated, but that statute
may contain provisions that reduce direct spending.''.
(c) New Point of Order.--Title IV of the Congressional
Budget Act of 1974 is amended by adding at the end the
following new section:

``point of order regarding emergencies

``Sec. 408. It shall not be in order in the House of
Representatives or the Senate to consider any bill or joint
resolution, or amendment thereto or conference report
thereon, containing an emergency designation for purposes of
section 251(b)(2)(D) or 252(e) of the Balanced Budget and
Emergency Deficit Control Act of 1985 if it also provides an
appropriation or direct spending for any other item or
contains any other matter, but that bill or joint resolution,
amendment, or conference report may contain rescissions of
budget authority or reductions of direct spending, or that
amendment may reduce amounts for that emergency.''.
(d) Conforming Amendment.--The table of contents set forth
in section 1(b) of the Congressional Budget and Impoundment
Control Act of 1974 is amended by inserting after the item
relating to section 407 the following new item:
``Sec. 408. Point of order regarding emergencies.''.

Mr. FEINGOLD. Thank you, Mr. President.
This amendment is based upon legislation, S. 289, the Emergency
Spending Control Act of 1995, which I introduced on January 26 with the
Senator from Arizona [Mr. McCain], the manager of the bill before the
Congress, as well as the Senator from Kansas [Mrs. Kassebaum], the
Senator from California [Mrs. Feinstein], and the Senator from Colorado
[Mr. Campbell].
This is a measure which had passed the other body in the 103d
Congress by an overwhelming vote, and was designed to limit
consideration of nonemergency matters in emergency legislation.
The Washington Post, in an editorial dated August 22, 1994, called
this legislation ``a good idea.'' And it is a good idea.
The line-item veto legislation before Congress is intended to allow
the President to remove pork-barrel spending from appropriations bills.
This amendment is designed to prevent some of that pork from getting
into appropriations bills in the first place.
Anyone who has watched the congressional appropriations process at
any length knows exactly what we are talking about. An emergency
appropriations bill begins moving through the legislative process and
it is almost as if a red alert is sounded that a fast-moving
appropriations vehicle is on the launch pad.
What happens, Mr. President, is staff begin drafting legislative
language to insert some project that did not get funded in the regular
appropriations bill or got left out in the conference
[[Page S4254]] committee cutting floor, to insert into this bill.
In some cases, the proponents simply do not want to wait for a
regular appropriations bill to present their arguments on behalf of an
item. They just see this opportunity of an emergency bill to shortcut
the whole process.
Mr. President, that is the way things have operated in Congress for
many years. That is the way the Federal dollars have poured into
special projects that might not otherwise be able to compete for
limited Federal funds. That is the way that public confidence in our
ability to achieve fiscal discipline has been eroded over the years.
Mr. President, it is time that we stop this abuse of the legislative
process. Emergency spending bills should be limited to what they are
supposed to be for--emergency spending. They should not become vehicles
for an odd assortment of spending projects.
As the Washington Post said in its editorial last year, there should
be no ``hitchhikers in an ambulance.'' Specifically, Mr. President, my
amendment limits emergency spending bills solely to emergencies by
establishing a new point of order against nonemergency matters other
than rescissions of budget authority or reductions in direct spending,
spending in any bill that contains an emergency bill or an amendment to
an emergency measure or a conference report that contains an emergency
measure.
Mr. President, as an additional enforcement mechanism this amendment
adds further protection by prohibiting the Office of Management and
Budget from adjusting the caps on discretionary spending or from
adjusting the sequester process for direct spending and receipt
measures for any emergency appropriations bill if the bill includes
extraneous items other than rescissions of budget authority or
reductions in direct spending.
Mr. President, though this proposal, like the underlying line-item
veto measure, can help in the fight to reduce the deficit, I want to
stress that process rules themselves do not solve the deficit problem.
No rule can--whether it is a procedural rule of the Senate, a statute,
or even a constitutional amendment.
The only way we can lower the deficit is through specific policy
action. Still, Mr. President, the budget rules can help Members
maintain the kind of discipline that is necessary to achieve our goals
of deficit reduction.
Mr. President, I am delighted that the main coauthor of this
amendment, or the bill that led to this amendment, is the manager on
the majority side, Senator McCain, who called me after the election and
said, ``Aren't there some reforms items we can work on together?'' And
this is one of the first we chose to work together on.
In general, Mr. President, the rules require that new spending--
whether through direct spending, tax expenditures, or discretionary
programs--be offset with spending cuts or revenue increases.
However, the rules provide for exceptions in the event of an
emergency, and I think, rightly so. The deliberate review through the
Federal budget process, weighing one priority against another, in some
cases may not permit a timely response to an international crisis, a
national disaster, or some other emergency.
In other words, Mr. President, we do not ask that earthquake victims
find a funding source before we send them aid. Mr. President, the
emergency exception to our budget rules designed to expedite a response
to an urgent need has become something very different. It has become a
loophole, abused by those trying to circumvent the scrutiny of the
budget process.
These abuses have taken essentially two different forms: First,
declaring some expenditure to be an emergency that is truly not an
urgent or unexpected matter. A second approach is adding nonemergency
matters to emergency legislation that is receiving the special
accelerated consideration that appropriate emergency measures are
supposed to get.
Mr. President, this amendment does not prevent every abuse of the
emergency spending exceptions to our budget rule. In fact, it is only
aimed at the second problem I just identified. That is, adding those
nonemergency matters to emergency legislation. This proposal will not
stop Congress and the President from declaring a matter to be an
emergency thus funding it by adding it to the deficit when it is not
truly urgent or unexpected.
I am not saying we should not do that. I am saying that is something
we must address in the future.
In fact, we saw this recently as last year when the Department of
Defense's continuing peacekeeping operation in Somalia, Bosnia, Iraq,
and Haiti were declared emergencies, suddenly with the costs added to
our Federal budget deficit.
In most cases, those operations had been ongoing for significant
periods of time. They were not sudden, urgent, or unforeseen costs
which would have justified circumventing budget rules.
I offered an amendment last year during floor consideration of H.R.
3759 to strike these questionable provisions. Although there were only
a handful of votes for this amendment, a number of Members expressed
concern about whether such spending was appropriately tied to the
California earthquake emergency. The basic problem is that when these
spending items are packaged together on a fast track, it is difficult
to separate questionable items for fear of jeopardizing the entire
measure which is supposed to respond to some very immediate human needs
in places such as California after the earthquake.
Although this amendment does not address this particular problem, it
is aimed at limiting the abuses surrounding emergency measures by
helping to keep those measures clean of extraneous matters on which
there is not even an amendment to make an actual emergency designation.
When the appropriations bill to provide relief for the Los Angeles
earthquake was introduced last session it officially did four things:
Provided $7.8 billion for the Los Angeles quake, $1.2 billion for the
Department of Defense peacekeeping operations that I mentioned, $436
million for Midwest flood relief, and $315 million more for the 1989
California earthquake.
Mr. President, it went a lot further than that. By the time the Los
Angeles earthquake bill became law it also provided $1.4 million to
fight potato fungus, $2.3 million for FDA pay raises, $14.4 million for
the National Park Service, $12.4 million for the Bureau of Indian
Affairs, $10 million for a new Amtrak station in New York. I guess we
got on the wrong side of the country on that one.
Mr. McCAIN. Will the Senator respond to a question?
Mr. FEINGOLD. I am happy to respond.
Mr. McCAIN. Is the Senator from Wisconsin saying the San Andreas
fault extended all the way to New York City?
Mr. FEINGOLD. Apparently, under a new geographical approach used by
the Senate on this bill. We are hoping to change that.
Mr. McCAIN. I thank the Senator.
Mr. FEINGOLD. To continue the litany, including the Amtrak station in
New York, we not only had a geographical amazement with regard to our
continent, we had $40 million for the space shuttle in the California
earthquake bill, $20 million for a fingerprints lab, $500,000 for the
U.S. Trade Representative travel office, and $5.2 million for the
Bureau of Public Debt.
Mr. McCAIN. Does the Senator say $20 million for a fingerprints lab?
Mr. FEINGOLD. That is what I understand.
Mr. McCAIN. Where is the location of that fingerprints lab?
Mr. FEINGOLD. I guess more the eastern side of the United States than
the west.
Mr. McCAIN. I thank the Senator.
Mr. FEINGOLD. Although nonemergency matters attached to emergency
bills are still subject to spending caps established in the current
budget resolution as long as total spending remains under those caps,
as the Senator well knows, these unrelated spending matters are not
required to be offset with spending cuts.
In the case of the Los Angeles earthquake bill because the caps have
been reached, the new spending was offset by rescission, but in my view
those rescissions might otherwise have been used for deficit reduction.
We lost an opportunity for deficit reduction of those offsets because
they had to be
[[Page S4255]] used to offset the items I have just listed that did not
belong in the California earthquake bill.
Moreover, by using emergency appropriations bills as a vehicle these
extraneous proposals avoid the examination through which legislative
proposals must usually go to justify Federal spending.
If there is truly a need to shift funds to these programs, an
alternative vehicle--a regular supplemental appropriations bill, not an
emergency spending bill--is what should be used.
Mr. President, the amendment I am offering today will end that kind
of misuse of the emergency appropriations process. It is a reasonable
first step toward cleaning up our emergency appropriations process.
Adding nonemergency extraneous matters to emergency appropriations
not only is an attempt to avoid legitimate scrutiny of our normal
budget process, it can also jeopardize our ability to actually provide
relief to those who are really suffering from a disaster to which we
are trying to respond.
Just as importantly, adding superfluous material to emergency
appropriations bills degrades those very budget rules on which we rely
to impose fiscal discipline. Mr. President, I think that only
encourages further erosion of our efforts to reduce the deficit.
This amendment that I am offering today to the line-item veto
proposal passed the other body in the last Congress with overwhelming
bipartisan support, first as a substitute amendment on a vote of 322 to
99, and then as amended by a vote of 406 to 6.
So I urge my colleagues to support this effort to end this abusive
practice. As I indicated in my opening remarks, this amendment is both
consistent with and complementary to the underlying bill. It is an
attempt to impose a prior restraint on Congress so that this kind of
spending is not added in the first place to an emergency spending bill.
This amendment is an attempt to make a fundamental change in the way
Congress has done business in the past. Slipping pork projects into
appropriations bills may at one time have been the hallmark of a
successful legislator, but I hope in this new era of fiscal constraint
it is time that this practice ended. I hope that this amendment will
receive the broad bipartisan support that it surely deserves.
I wish to conclude this part of my remarks by again thanking the
Senator from Arizona for his work with me on this and for his rather
effective questioning during my presentation.
Mr. McCAIN addressed the Chair.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I congratulate the Senator from Wisconsin
on this amendment. I think it is a very important one. I say with some
modesty, Mr. President, I believe that I have come over the years to
have a degree of expertise on pork-barrel spending. I have found over
the years that perhaps one of the most egregious abuses of the
legislative process is the issue which the amendment of the Senator
from Wisconsin addresses. That is, when we have a genuine emergency
which requires near immediate action because it is clear that there are
American citizens who need help, and it is our responsibility as a
Congress to cooperate with the executive branch and provide that much-
needed emergency relief--in the case that the Senator from Wisconsin
was describing, the terrible and tragic earthquakes in California--all
too often we discover it is used as a vehicle for pet projects,
appropriations which have no relation to the emergency, bear no
relation to the emergency, and in fact are an egregious abuse and
misuse of the taxpayers' dollars.
I would suggest, if the Senator from Wisconsin took the time, he and
I could go back through virtually every emergency appropriations bill
over the past 10 or 15 years and would find similar abuses, some of
them a bit amusing.
As I mentioned, San Andreas fault stretched all the way to New York
City in one case and, of course, fingerprint labs would probably not
have been appropriated in that fashion, at least without some
discussion and debate.
But the point is that rather than look back and criticize, as I know
neither the Senator from Wisconsin nor I wish to do, it is time to look
forward, and that is to enact the amendment of the Senator from
Wisconsin to prevent it in the future, so there will not be any
temptation involved.
I thank the Senator from Wisconsin not only on this bill but a
variety of other issues where he has worked on legislation which would
restore, to some degree anyway, the image that the American people want
to have of this body, one that is responsible with their tax dollars,
behaves responsibly, and is not going to act in a fashion that makes
them lose their confidence in their ability to trust our Government.
Mr. President, I suggest to the Senator from Wisconsin that on this
amendment it is possible it may be accepted. I have obviously some
objections to a voice vote at this time. But I know that the Senator
from Wisconsin may want the yeas and yeas, and that is perfectly
acceptable. But I might suggest that he wait until tomorrow to ask for
the yeas and nays in case it happens to be acceptable. It may save time
of this body.
So I assure the Senator from Wisconsin, if it is objected to, I would
also make sure that the yeas and nays are ordered and it not be
disposed of on a voice vote without his permission.
Mr. President, I yield the floor.
Mr. FEINGOLD. Mr. President, I thank the Senator from Arizona. That
sounds like a very reasonable approach to this amendment. I hope it can
be accepted.
I wish to again thank him for his willingness and effort to work on a
bipartisan basis, and also for his personal efforts and the efforts of
his staff over the years to identify those pork projects. I think it is
one of the reasons that these kinds of amendments have a chance of
prevailing in this environment.
Mr. President, I ask unanimous consent to set aside my first
amendment so that I can call up my second amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 362 to Amendment No. 347

(Purpose: To express the sense of the Senate regarding deficit
reduction and tax cuts)

Mr. FEINGOLD. Mr. President, I have a second amendment No. 362
pending at the desk that I call up and ask for its immediate
consideration.
The PRESIDING OFFICER. The clerk will report.
The legislative clerk read as follows:

The Senator from Wisconsin [Mr. Feingold], for himself and
Mr. Simon, proposes an amendment numbered 362 to amendment
No. 347.

Mr. FEINGOLD. Mr. President, I ask unanimous consent that reading of
the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the end of the pending amendment No. 347, add the
following:

SEC. . SENSE OF THE SENATE REGARDING DEFICIT REDUCTION AND
TAX CUTS.

The Senate finds that--
(1) the Federal budget according to the most recent
estimates of the Congressional Budget Office continues to be
in deficit in excess of $190 billion;
(2) continuing annual Federal budget deficits add to the
Federal debt which soon is projected to exceed $5 trillion;
(3) continuing Federal budget deficits and growing Federal
debt reduce savings and capital formation;
(4) continuing Federal budget deficits contribute to a
higher level of interest rates than would otherwise occur,
raising capital costs and curtailing total investment;
(5) continuing Federal budget deficits also contribute to
significant trade deficits and dependence on foreign capital;
(6) the Federal debt that results from persistent Federal
deficits transfers a potentially crushing burden to future
generations, making their living standards lower than they
otherwise would have been;
(7) efforts to reduce the Federal deficit should be among
the highest economic priorities of the 104th Congress;
(8) enacting across-the-board or so-called middle class tax
cut measures could impede efforts during the 104th Congress
to significantly reduce the Federal deficit, and;
(9) it is the Sense of the Senate that reducing the Federal
deficit should be one of the Nation's highest priorities,
that enacting an across-the-board or so-called middle class
tax cut during the 104th Congress would hinder efforts to
reduce the Federal deficit.

Mr. FEINGOLD. I thank the Chair. I also ask unanimous consent that
Senator Simon of Illinois be added as a cosponsor to this sense-of-the-
Senate amendment having to do with tax cuts.
The PRESIDING OFFICER. Without objection, it is so ordered.
[[Page S4256]] Mr. FEINGOLD. I thank the Chair.
I rise now to urge my colleagues to support the amendment that I have
offered with the Senator from Arkansas [Mr. Bumpers] and the Senator
from Illinois [Mr. Simon], expressing the sense of the Senate that
reducing the Federal deficit should be one of the Nation's highest
priorities, and that enacting an across-the-board, so-called middle-
class tax cut during the 104th Congress would actually hinder efforts
to reduce the Federal deficit.
I have argued against broad tax cuts on a number of occasions, and I
am especially pleased to be joined by the Senator from Arkansas and the
Senator from Illinois in this effort. And I might note that the manager
of the bill on the minority side, Senator Exon, was one of the first
people to identify the absurdity in the rush to tax cuts. He has been a
very key leader on this issue, both in his own right and as the ranking
member of the Budget Committee.
All of these Senators are passionate advocates for deficit reduction.
I am also pleased to see that many others share our concern that broad
tax cuts will impede our efforts to reduce the deficit.
Today's Washington Post featured a story that included a number of
statements from colleagues in which they expressed their concerns about
broad tax cuts at this time. The ranking member of the Finance
Committee, Mr. Moynihan, of New York, was quoted as saying that deficit
reduction was the issue and that tax cuts were out of order. With his
usual eloquence, the senior Senator from New York has nicely summarized
the matter in two short statements. Mr. President, deficit reduction is
the issue and tax cuts are out of order.
Mr. President, the underlying measure before us proposes to enhance
the ability of the President to pare down spending by exercising
something like a line-item veto authority. In great part, this measure
is before us because of those continued budget deficits. Although we
certainly will not balance the budget simply by granting the President
some form of a line-item veto authority, many of us do feel that such
authority can in a small way help alleviate some of the pressure on the
deficit.
Mr. President, the amount of pork that the President can trim from
our budget pales in comparison to the effect a broad middle-class tax
cut will have on our deficit or that our resistance to such a tax cut
could have on reducing the deficit.
The President's budget proposes $63 billion in tax cuts. If the only
change we made to that budget was to eliminate those tax cuts, we would
save not only that $63 billion but another $9 billion in interest costs
for a total savings of $72 billion in additional deficit reduction. In
fiscal year 2000 alone, we could lower the deficit by $24 billion more
than is projected, achieving nearly $4 billion in deficit reduction
just from interest savings.
Mr. President, forgoing the tax cuts imposed by the Contract With
America produces even more telling results. If we just could resist the
tax cuts called for in the Contract With America, we would save this
country over $200 billion and about $20 billion in interest costs
alone.
Assuming those tax cuts were offset with spending cuts, doing nothing
more to the budget than forgoing those proposed tax cuts could reduce
the deficit by $80 billion in fiscal year 2000 and we would be
approaching an annual deficit of $114 billion.
Mr. President, at this point I am delighted to ask unanimous consent
that the senior Senator from Nebraska, Senator Exon, also be added as
an original cosponsor of the sense-of-the-Senate resolution.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. Exon addressed the Chair.
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. EXON. Mr. President, I want to compliment my friend and colleague
from the State of Wisconsin. Let me just make a brief statement in
support of the amendment he is offering. The numbers speak for
themselves, I suggest. The Joint Committee on Taxation has estimated
that the tax cuts in the so-called Contract With America will worsen
the deficit by over $700 billion over the next 10 years. Added to that
the Congressional Budget Office has estimated that we will need to cut
spending by $1.2 trillion to balance the budget over the next 7 years.
What this means is that if we want to cut taxes as proposed in the
Contract With America, we will have to make some pretty dramatic
additional cuts in spending.
My position is that I am all for tax cuts but we have to cut the
deficit first, then consider what we can do, if anything, about tax
cuts.
I thank my friend from Wisconsin. I think it is a good amendment.
The PRESIDING OFFICER. The Senator from Wisconsin is recognized.
Mr. FEINGOLD. Mr. President, I thank the Senator from Nebraska. He is
the perfect person to be describing the specifics of what this does
about reducing our Federal deficit. Nobody knows the issue better. I
can only say my only regret is that the Senator has chosen not to seek
reelection. I think his being here in the next 6 years would be one of
the keys to eliminating this Federal deficit, but we will certainly be
delighted to have the benefit of his great skills in the area of
deficit reduction over the next several months.
Does the Senator have a question?
Mr. McCAIN. I thought the Senator was finished. I am sorry.
Mr. FEINGOLD. I will continue just a brief time longer.
Mr. President, let me take a couple of other points on this matter of
the sense-of-the-Senate resolution.
Some proponents of these tax cuts argue that they have to be a high
priority because the American people are insisting on them. The Senator
from Louisiana [Mr. Breaux] a distinguished member of our tax-writing
committee, had a very good response to this contention.
In today's Washington Post he was quoted as saying, ``We do not have
a lot of people marching on Washington asking for tax cuts.''
The Senator from Louisiana hit the nail on the head. There is no
great demand for tax cuts, but there is widespread support for us to
cut spending and to use those savings to reduce the deficit.
I have been speaking out on this issue for several months now,
basically since November 8 when I first saw the Republican contract and
then after I saw the President's proposal on December 15. I took issue
with the President's proposed tax cuts last December on the day he
announced them, and I did so because I felt tax cuts were just not
fiscally responsible right now.
I concede that I would be tempted to make this argument even without
strong support from my constituents. Sometimes that is part of this
job. The voters elect you to make some tough calls, not to constantly
stick out your finger to test the political winds before every vote. On
this issue, the people of Wisconsin have been overwhelmingly
supportive. They realize what they would get back in lower taxes--a
meaningful amount to many people--was simply not worth the devastation
it would cause our Federal budget. In just the last few weeks, the
phone calls and letters to my office have been running 7 to 1 in favor
of reducing the deficit over cutting taxes. Here are just a few of the
things they have been saying.
A gentleman from Janesville wrote:

As popular as a ``middle class tax cut'' may be, this is
not the time for such action. . . . I urge you to keep your
eye on the prize. Concentrate your efforts on balancing the
budget and then, begin to pay down our national debt. Please,
do not make this process more difficult by returning a
pittance to this over taxed citizen.

A woman from Prairie du Sac wrote:

. . . any tax cut at this time would be pure folly. . . .
Reducing the deficit must be the number one priority of this
Congress now and for many years to come. Our country's
economy is dependent on this. . . .

And a gentleman from Minong, just a few miles from the Minnesota
border, wrote this to me:

It's not that I don't believe the middle class deserve a
tax cut. I just don't think we can afford to cut taxes when
we can't cover our budget right now. . . . When we are out of
debt, then the time has come to grant tax cuts. Not before.

My office has received hundreds of calls and letters that are similar
to these.
And, though I do not presume to speak for the constituents of other
Members, I think this view is widely shared outside Wisconsin as well.
[[Page S4257]] A USA Today/CNN poll published on December 20 found
that 70 percent of those polled said if Congress is able to cut
spending, then reducing the deficit is a higher priority than tax cuts.
A Washington Post-ABC News poll from January 6 showed that people
favored deficit reduction over tax cuts by a 3-to-2 margin.
And in a column in today's Washington Post, James Glassman notes that
an NBC-Wall Street Journal poll found only 13 percent of respondents
said taxes were the ``most important economic issue facing the
country'' while nearly three times as many said it was the deficit.
Mr. President, while polling often can be one-dimensional measures of
opinion, there was nothing one-dimensional about the response to the
field hearings of the House Budget Committee on this matter.
The crowds that attended those hearings showed clear, vocal
majorities supporting deficit reduction over tax cuts.
Mr. President, it is frustrating to hear constituents, who could
certainly use the money, urge Congress to make deficit reduction a
higher priority than tax cuts, and then watch the rush to see who can
propose the bigger tax cut.
In his column, Mr. Glassman calls upon Republicans to immediately
shelve their plans to cut taxes this year and instead devote all their
energy to cutting spending.
I will add that I think both Democrats and Republicans should shelve
plans to cut taxes.
Let us focus on the task of identifying spending that can be cut, and
then use the savings we achieve from those cuts to reduce the deficit.
Mr. President, I ask unanimous consent that copies of the column by
James Glassman, and the story headlined ``Senate GOP Prepares to
Invalidate Tax Provisions of House `Contract,''' both from today's
Washington Post, be included in the Record at this point.
There being no objection, the articles were ordered to be printed in
the Record, as follows:

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

Shelve the Tax Cuts

(By James K. Glassman)

Republicans should immediately shelve their plans to cut
taxes this year and instead devote all their energy to
cutting spending.
Don't get me wrong. I think taxes are too high. They now
consume a bigger share of the average family's expenses than
housing, food, clothing and medical costs combined. High
taxes are a drag on economic growth and a license for
government to increase wasteful spending. And our current tax
system bears much of the blame for the shamefully low U.S.
savings rate.
For these reasons, tax reform is a necessity, and a flat
tax or a consumption tax is almost certainly the best answer.
But such changes can't possibly be approved in 1995--or even
1996. Americans need a full-scale debate, preferably during a
presidential campaign.
Instead of building support for major reform later, the
Republican strategy this year is to enact a typical
Christmas-tree tax bill, festooned with baubles for
businesses, investors, retirees and middle-class families.
President Clinton introduced his own, smaller tax cut plan in
February.
Tax relief is normally a crowd pleaser, but not today. On
fiscal matters, Americans seem to have just one thought in
mind: Balance the budget. Only 13 percent of respondents to
an NBC-Wall Street Journal poll said taxes were the ``most
important economic issue facing the country'' while nearly
three times as many said it was the deficit.
``They aren't thinking taxes now,'' says Kellyanne
Fitzpatrick of the Luntz Research Cos. of Arlington, the firm
that helped House GOP leaders draw up the Contract With
America. ``People are vehement about having spending cuts
first.''
Politicians are at last starting to notice how the public
is ordering its priorities. On Capitol Hill last week, I
found no members who were truly enthusiastic about tax cuts.
Economists aren't clamoring for them either. With gross
domestic product rising nicely, the cuts aren't needed as a
short-term economic stimulus; on the contrary, they'll
probably boost inflation.
So the logical conclusion is to forget taxes entirely for
this year. Unfortunately, the Contract has a mind of its own.
Last week, the tax-relief bill passed the Ways and Means
Committee on a party-line vote. It includes a reduction in
the capital-gains rate, a tax credit of $500 per child for
families earning up to $200,000, a revival of IRAs, a modest
credit to make up for the ``marriage penalty'' on two-earner
couples and a few other goodies. Over the next five years,
the changes in the bill will make the deficit a total of
about $190 billion larger than current projections.
The bill is scheduled for a vote in the House next week,
and already dozens of Republicans
are asking House Speaker Newt Gingrich to scale it back.
They know that, based on projections by the Congressional
Budget Office, we can allow federal spending to rise
another $350 billion between now and 2002 and still
balance the budget--but only if we refrain from reducing
tax revenue.
If the tax bill passes, it goes next to the Senate Finance
Committee, whose chairman, Sen. Bob Packwood (R-Ore.), has
indicated that his panel would give it a frosty reception.
Packwood is a big thinker who almost certainly would prefer
reforming the whole tax system--but only after spending is
cut, a step he believes will lead to lower interest rates as
the government's borrowing requirements fall.
Either a consumption tax or a flat tax would remedy two of
the greatest problems of the current system--that it's too
complicated and that it imposes marginal rates so high they
discourage investing. The flat tax also has an amazing appeal
that many politicians have overlooked: Americans at all
income levels believe it's more fair than what we have now;
they suspect that fat cats use loopholes to avoid their fair
share.
Under the flat tax proposed by House Majority Leader Dick
Armey (R-Tex.) earlier this year, a married couple making
less than $26,200 would pay no federal income tax. Beyond
that, the rate would be 17 percent on all income, with no
deductions allowed.
A flat tax could easily be linked by law to a balanced-
budget requirement: At the start of each year, Congress would
have to set a single rate (whether it's 17, 18 or 22 percent)
that would bring in enough revenues to cover federal
expenses. That would be as powerful a deterrent to overtaxing
and overspending as any constitutional amendment.
Fitzpatrick says that Luntz has conducted polling
nationwide and focus groups in three cities, and the results
are clear: ``The flat tax is a big home run for everybody.''
She added, however, that Americans are so intent on
balancing the budget that ``some people in the focus groups
actually complained that they themselves would pay zero under
a flat tax. They want to contribute something to balancing
the budget.''
Gingrich would be nuts to ignore that kind of sentiment. He
should postpone the tax-relief vote indefinitely, concentrate
on spending cuts and lay the groundwork for Republicans to
run on a flat-tax platform next year--unless Clinton is
cleaver enough to beat them to it.
____

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

Senate GOP Prepares to Invalidate Tax Provisions of House `Contract'

(By Eric Pianin and Dan Morgan)

Senate Republicans have begun moving on several tracks to
rearrange key tax and spending provisions of the House GOP's
``Contract With America.''
Senate Finance Committee Republicans emerged from a weekend
retreat with their Democratic colleagues resolved to block
passage of the House GOP's $188 billion tax cut package and
to put off action on tax reliefs proposals until Congress
completes work on the major deficit reduction this summer.
Finance Committee Chairman Bob Packwood (R-Ore.) said
yesterday that Congress would reduce the deficit by ``an
immense magnitudes beyond what people believe is possible,''
but that major tax reductions along the lines advocated by
House Republicans were not in the cards.
``To the extent that we can both reduce the deficit to zero
over seven years and have tax cuts, so much the better,''
Packwood said in a speech to the national Association of
Manufacturers. ``But I don't thing we should
put the priority of tax cuts first and then reducing
spending later.''
House Republican leaders plan to complete work on their tax
package--including both a $500-per-child tax credit for
families making up to $200,000 a year and a sharp reduction
in the capital gains tax--before Congress leaves for the
Easter recess. Nearly 100 Republicans plan to deliver a
letter to the House GOP leadership today, urging that the
credit be targeted to families making a maximum of $95,000 a
year.
However, an aide to House Speaker Newt Gingrich (R-Ga.)
said such a change is unlikely.
Sen. Daniel Patrick Moynihan (N.Y.), the ranking Democrat
on the Finance Committee, who attended the weekend retreat,
said Democrats and Republicans generally agreed that
``deficit reduction was the issue'' and that ``tax cuts were
out of order.''
Sen. John Breaux (D-La.), another committee member at the
retreat, said, ``We do not have a lot of people marching on
Washington asking for tax cuts.''
But committee member Sen. Charles E. Grassley (R-Iowa)
predicted that some ``modest'' tax relief would emerge from
Congress later this year to satisfy the demands of Sen. Phil
Gramm (Tex.), a Republican presidential candidate, and other
conservatives sympathetic to the House tax proposals.
``They [the tax cuts] don't have to be as great as the
House wants and they must be oriented toward the family,''
Grassley said.
The Senate also may put its imprint on a recision bill
passed last week by the House that would pare $17.1 billion
from spending that had been approved in the current budget.
Cumulatively, the bill would reduce congressional ability to
make spending commitments by $40 billion to $50 billion over
five years.
[[Page S4258]] The House legislation exempted defense and
military construction accounts, but Sen. Mark O. Hatfield (R-
Ore.), who chairs the Senate Appropriations Committee, said
yesterday that he has directed that those accounts be
screened for possible cuts as well.
Some Democrats and Republicans say deficit reduction should
take precedence over everything, including tax cuts and
increases in Pentagon spending, or the spending cuts could be
branded as imprudent and unfair.
The liberal-leaning Center on Budget and Policy Priorities
concluded that 63 percent of the House cuts are in programs
for low-in-come families and individuals. Hatfield suggested
yesterday in an interview that military spending could not be
``disconnected'' from the deficit problem any more than the
tax cut issue could be.
``They're asking people to make sacrifices at the same time
they're saying military spending must escalate,'' he said.
On Sunday, House Budget Committee Chairman John R. Kasich
(R-Ohio) said House Republican leaders had agreed to freeze
defense spending at the current $270 billion for at least the
next five years, rather than increasing it.
Hatfield, who was attacked by senators within his own party
for casting the lone Republican vote against the balanced
budget amendment, indicated that the size of the Senate's
spending recision package would be in the same ``ballpark''
as the House-passed version, but with different spending
cuts.
In addition to possibly tapping defense and military
contruction, Hatfield said the Appropriations transportation
subcommittee that he chairs probably would make deeper cuts
than the House did.
``We'll never balance the budget on the baseline of
discretionary spending,'' Hatfield said, referring to the
one-third of the total budget that does not cover interest on
the debt or Social Security, Medicare and other such
``entitlement'' programs.
Speaking to reporters after his speech to the manufacturers
association, Packwood said that he agreed with Republican
budget committee leaders in the House and Senate that the
budget could be balanced by 2002 merely by slowing the growth
of spending by $1 trillion or more, but that ``nothing is
sacred,'' including Social Security and other entitlement
programs.
``I have said all along Social Security should be on the
table,'' he said, but ``we haven't crossed that yet.''
Packwood said that while cuts in Social Security benefits
have been ruled out by Republican leaders, his committee
would consider trying to eliminate a bias in a formula that
overstates cost-of-living adjustments in Social Security
payments.

Mr. FEINGOLD. Mr. President, I understand the majority leader intends
to stack votes on amendments offered tonight for some time to be
determined and I ask unanimous consent, on the amendment I just
proposed, it be in order to ask for the yeas and nays.
The PRESIDING OFFICER. Without objection, it is so ordered.
Is there a sufficient second?
There is a sufficient second.
The yeas and nays were ordered.
Mr. FEINGOLD. Mr. President, I will defer the request for the yeas
and nays on the first amendment in response to the suggestion of the
manager, the Senator from Arizona. I thank both the managers for their
kindness and cooperation in my opportunity to offer these amendments.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nebraska.
Mr. EXON. Mr. President, I ask for the regular order with regard to
the Simon amendment No. 393.
Mr. McCAIN. Mr. President, I object.
Mr. President, I had not finished with the debate on the amendment.
Mr. EXON. Mr. President, I withdraw the request.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. McCAIN. Mr. President, I just want to briefly respond to the
amendment of the Senator from Wisconsin. I know there will be objection
on this side, as he knows. The so-called Contract With America was
clear on the point that middle-income Americans--middle-class
Americans--deserve a tax cut. I understand the Senator from Wisconsin's
zeal to balance the budget. I appreciate it. I believe I share it.
I would like to point out that in 1950, a median-income family of
four in America--that is a man, woman, and two children--sent $1 out of
$50 of their income to Washington, DC, in 1950. In 1990 that same
family of four, median-income American family, sends $1 out of every $4
to Washington, DC, in the form of taxes. Then, when you put on State
and local taxes, they rapidly jump up into the 40 percent bracket. If
we do not add another entitlement program between now and the turn of
the century, if we do not add one penny to Federal spending, that
number will be $1 out of every $3.
I say to my friend from Wisconsin, we cannot afford to lay this
burden on middle-income Americans or we will see the disappearance of
middle-class America. They are staggering under a crushing tax burden.
I believe it makes it much more difficult to both reduce the deficit
and enact tax cuts, but I, frankly--maybe the Senator from Louisiana
has not heard of people marching on Washington, saying ``cut taxes.''
Around April 15 there will be people marching on my office and calling
my office when they file their income taxes again this year and find
out that, again, their taxes have gone up and it will now require, I
believe the date is May 15, to which they will work in order to pay
their State and local and Federal taxes before they start earning a
penny for themselves and their families.
I understand very well what this $4.8 trillion debt, now projected by
1996 to be a $5.2 trillion debt, can do to America. But I also know
what a crushing tax burden means to the average American family which
is bearing an enormous burden and that burden has contributed
significantly to the most startling and, in my view, alarming polling
number, polling statistic, that we got out of the 1994 elections. That
is that the majority of Americans who voted in the 1994 election do not
believe that their children will be better off than they are. They
believe that for a variety of reasons, I say to my friend from
Wisconsin. But one of the reasons they say that is that they do not
believe they will have enough income to provide for their children's
futures.
The essence of the American dream, as most of us know it, is that
people came to this country, worked hard, put in sweat and blood and
tears in order to ensure the future generations--their children--would
have a better opportunity than they.
I say to my friend from Wisconsin, that is not the case anymore. One
of the reasons for that is because they see so many of their hard-
earned dollars going to Washington and to State and local taxes, so
they do not believe they will be able to afford to pay for their
medical bills, their children's education, and the other necessities
that are required for people, not only for the rest of their lives but
to ensure the future of their children.
But I do not disagree with the Senator from Wisconsin about the
daunting task we face when we say we are both going to reduce the
deficit and the debt and at the same time relieve the tax burden on
middle-income Americans.
Mr. President, I apologize for interrupting the Senator from
Nebraska. I just wanted to respond to the Senator from Wisconsin on
this amendment. I yield the floor.
The PRESIDING OFFICER. The Senator from Wisconsin.
Mr. FEINGOLD. Mr. President, I will be very brief. I had an
opportunity to speak, but this may be the only debate on this amendment
the way this is structured.
Let me make two quick points. First of all, I am pleased to note this
is a nonpartisan issue. Everyone watching should be aware things are
not breaking down on a partisan basis. There is a disagreement on the
Republican side and there is a disagreement on the Democrat side
whether we can go with tax cuts. I think it is heartening for people to
realize the Senate can function in this way and we can resolve the
issue on other than a Democrat or Republican basis, and I hope that is
the way this tax cut debate will continue.
The other point I would just make in response to the Senator from
Arizona is that I am also willing to examine the impact that this issue
of tax cuts and deficit reduction has on the bottom line for American
families. I had a meeting yesterday in Wisconsin with a business
advisory group, and the business men and women there were absolutely
convinced that doing the tax cut, rather than using the money for
deficit reduction, would mean that the actual budgetary picture of
those individual families would be worse with the tax cut, for two
reasons. One, they believed if we do not reduce the deficit as
dramatically as we can right now, in other words not using the tax
cuts, that the interest we have to pay on the Federal debt will
inevitably cause them to have less money of their own because so much
of our national economy will be going toward paying the
[[Page S4259]] horrible burden that the interest on the debt already
causes.
The other point was very specific. Their belief was that the increase
in interest rate that will occur because of the failure to deal with
the deficit, and possibly because of the tax cuts, could generate an
inflationary effect and would mean a greater increase in their costs
monthly in the form of interest on car payments and home payments.
So I think the Senator's analysis is a fair approach, not just the
macroeconomic one of what happens to the whole society and our deficit,
but the macroeconomic issue of what happens to those individual
families. I hope, as we go on this debate, that we will look at it from
both points of view. Both are central to this issue.
I thank the Chair. I yield the floor.
Mr. EXON. Mr. President, what is the pending question?
The PRESIDING OFFICER. The pending question is amendment 393 offered
by the Senator from Illinois.

Amendment No. 393, as Modified, to Amendment No. 347
(Purpose: To provide for expedited judicial review)

Mr. EXON. Mr. President, the Senator from Illinois and the Senator
from Arizona have been working on the language of the Senator's
amendment on judicial review that was debated briefly an hour or so
ago. Senator Simon has given me language that he believes addresses the
concerns of the Senator from Arizona regarding severability. Senator
Simon asked me to seek to modify his amendment to reflect the changes.
So, Mr. President, on behalf of the Senator from Illinois, I send a
modification of his amendment numbered 393 to the desk, and I ask that
it be so modified.
The PRESIDING OFFICER. Is there objection? The amendment is so
modified.
The amendment (No. 393), as modified, to amendment No. 347, is as
follows:

At the appropriate place in the bill, insert the following:

SEC. . JUDICIAL REVIEW.

(a) Expedited Review.--
(1) Any Member of Congress may bring an action, in the
United States District Court for the District of Columbia,
for declaratory judgment and injunctive relief on the ground
that a provision of this Act violates the Constitution.
(2) A copy of any complaint in an action brought under
paragraph (1) shall be promptly delivered to the Secretary of
the Senate and the Clerk of the House of Representatives, and
each House of Congress shall have the right to intervene in
such action.
(3) Any action brought under paragraph (1) shall be heard
and determined by a three-judge court in accordance with
section 2284 of title 28, United States Code.
Nothing in this section or in any other law shall infringe
upon the right of the House of Representatives or the Senate
to intervene in an action brought under paragraph (1) without
the necessity of adopting a resolution to authorize such
intervention.
(b) Appeal to Supreme Court.--
Notwithstanding any other provisions of law, any order of
the United States District Court for the District of Columbia
which is issued pursuant to an action brought under paragraph
(1) of subsection (a) shall be reviewable by appeal directly
to the Supreme Court of the United States. Any such appeal
shall be taken by a notice of appeal filed within 10 days
after such order is entered; and the jurisdictional statement
shall be filed within 30 days after such order is entered. No
stay of an order issued pursuant to an action brought under
paragraph (1) of subsection (a) shall be issued by a single
Justice of the Supreme Court.
(c) Expedited Consideration.--
It shall be the duty of the District Court for the District
of Columbia and the Supreme Court of the United States to
advance on the docket and to expedite to the greatest
possible extent the disposition of any matter brought under
subsection (a).
(d) Severability.--
If any provision of this Act, or the application of such
provision to any person or circumstance is held
unconstitutional, the remainder of this Act and the
application of the provisions of such Act to any person or
circumstance shall not be affected thereby.

The PRESIDING OFFICER. Is there further debate on the amendment? If
not, the question is on agreeing to the amendment of the Senator from
Illinois, as modified.
The amendment (No. 393), as modified, was agreed to.
Mr. EXON. Mr. President, I ask unanimous consent that the pending
amendment be temporarily set aside.
The PRESIDING OFFICER. Without objection, it is so ordered.

Amendment No. 402 to Amendment No. 347

(Purpose: To provide a process to ensure that savings from rescission
bills be used for deficit reduction)

Mr. EXON. Mr. President, I send an amendment to the desk and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The bill clerk read as follows:

The Senator from Nebraska [Mr. Exon] proposes an amendment
numbered 402 to amendment No. 347.

Mr. EXON. Mr. President, I ask unanimous consent that reading of the
amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:

At the end of the matters proposed to be inserted, insert
the following:

SEC. .

(a) Not later than 45 days of continuous session after the
President vetoes an appropriations measure or an
authorization measure, the President shall--
(1) with respect to appropriations measures, reduce the
discretionary spending limits under section 601 of the
Congressional Budget Act of 1974 for the budget year and each
out year by the amount by which the measure would have
increased the deficit in each respective year;
(2) with respect to a repeal of direct spending, or a
targeted tax benefit, reduce the balances for the budget year
and each outyear under section 252(b) of the Balanced Budget
and Emergency Deficit Control Act of 1985 by the amount by
which the measure would have increased the deficit in each
respective year;
(b) Exceptions.
(1) This section shall not apply if the vetoed
appropriations measure or authorization measure becomes law,
over the objections of the President, before the President
orders the reduction required by subsections (a)(1) or
(a)(2).
(2) If the vetoed appropriations measure or authorization
measure becomes law, over the objections of the President
after the President has ordered the reductions required by
subsections (a)(1) or (a)(2), then the President shall
restore the discretionary spending limits under section 601
of the Congressional Budget Act of 1974 or the balances under
section 252(b) of the Balanced Budget and Emergency Deficit
Control Act of 1985 to reflect the positions existing before
the reduction ordered by the President in compliance with
subsection (a).

Mr. EXON. Mr. President, let me just briefly address this because I
had talked briefly about it earlier. This amendment would add to the
bill what is called a lock box to insure that any and all savings
achieved as a result of the line-item veto under the bill would go to
deficit reduction. This is simply a truth-in-advertising amendment. All
this amendment does is to ensure that, if you promise deficit reduction
in a veto, you actually have to deliver deficit reduction at the end of
the day.
I have nothing further on the amendment at the present time. I assume
we will have, if it is not accepted, probably a vote on it on tomorrow.
Mr. McCAIN. Mr. President, I am in support of the concept of this
amendment. I think clearly any savings should go to reduce the deficit.
There are objections on this side of the aisle at this time.
So I withhold approval. But hopefully some of those objections can be
satisfied before being voted on tomorrow.
I agree with the Senator from Nebraska that any savings should go to
deficit reduction rather than expenditures on other Government
programs.
Mr. EXON. Mr. President, I thank my colleague from Arizona.
Mr. McCAIN. Mr. President, it has been a long day for the Senator
from Nebraska. I will try to be relatively brief. I do not believe
there are any more amendments proposed for tonight.
I would just like to make some additional comments and then proceed
to wrap up, since we will be beginning at the hour of 9:30 in the
morning, it is my understanding.
Mr. President, I wanted to discuss this issue that has been heavily
argued today as far as the constitutionality of separate enrollment.
Earlier today, he included in the Record a statement from Mr. Johnny
Killiam, who is the senior specialist on American constitutional law in
the Congressional Research Service. The subject of this memorandum is
the separate enrollment bill and the Constitution. I am not going to
read the entire thing. I would like to again repeat the concluding
paragraph of his 12-page dissertation on the constitutionality of
separate enrollment.
He says:

[[Page S4260]] 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 that they are not precluded
from exercising authority to review this proposal. If the
proposal is reviewed by the court, 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.

What Mr. Killiam has said--and it is a very in-depth and in some ways
esoteric discussion--various cases have appeared before the Supreme
Court, and he argues at the end of his dissertation that there are
arguments that lead in favor of the constitutionality of separate
enrollment, but it could be subject to judicial review.
And his last sentence, I think, is probably the most operative, where
he said:

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

I also say to those who are concerned about the constitutionality of
this issue, the Simon amendment--and a similar amendment was adopted by
the House of Representatives--will call for expedited judicial review.
We will find out. I am not using that as an argument for somebody who
feels there is a clear constitutionality problem here and believes it
is unconstitutional to therefore vote for this legislation just because
it is going to receive judicial review. But I am saying to those who
may have some doubts that this issue will be resolved and resolved in a
very short period of time.
I also want to take a few minutes to quote from Judith Best, who has
been a well-known expert on this particular issue. It is a very short
quote. This part of her dissertation, entitled ``The Constitutional
Objection.''

The objection is that the proposal is unconstitutional--

Meaning separate enrollment is unconstitutional.

because it would change the Constitution, specifically the
veto power, by act of Congress alone. 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 the power to
define a bill. Congress certainly believes that it possesses
this power, since 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 to issues to a
coordinate political department. A textually demonstrable
constitutional commitment of the issue to the legislature as
found in each House may determine the rules of its
proceedings. Congress may define as a bill a package of
distinct programs and unrelated items to be separate bills.
Either Congress has a right to define a bill or it does not.
Either this proposal is constitutional or the recent practice
of Congress informing 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.

I think, basically, Professor Best lays it out there. The Congress
has a right to determine what a bill is. The Congress may define as a
bill a package of distinct programs and unrelated items. And her
argument, which I support, is that therefore the Congress of the United
States can define a single enrollment which was part of a package as a
bill as well.
But we will probably have much more debate on that in the couple of
days ahead. I want to express again my admiration for Senator Byrd, the
Senator from West Virginia, for his erudite and compelling and well-
informed arguments. I watched a great deal of the debate today between
the Senator from Indiana and the Senator from West Virginia. I think it
was edifying, and I think many of my colleagues had the opportunity to
observe them. I think most of the arguments concerning
constitutionality, enrollment, and other aspects of the line-item veto
were well described. I, again, express my admiration for the talent and
enormous knowledge that the Senator from West Virginia possesses.
Again, I want to emphasize again that a lot of time has been taken,
and more time will be taken on the floor on this issue. This is a
fundamental and structural change in the way we do business. I believe
it deserves thorough ventilation and debate. At the same time, I
believe we can probably bring it to a close. I thank the Senator.

____________________