vention, James Bowdoin, the Federalist governor of Massachusetts, argued that the
veto power conferred to the President in the Federal Constitution was to be read
in light of the Massachusetts experience under which, as I have already noted, the
governor had enjoyed the right to veto or reduce by line-item since 1733.
In The Federalist No. 69, Alexander Hamilton, a member of the Constitutional
Convention who was soon to become the first Secretary of the Treasury, wrote that
the constitutional veto power "tallies exactly with the revisionary authority of the
council of revision" in New York, which, according to Professor McDonald, had the
power to revise appropriations bills, not merely accept or reject legislative enact-
ments in their entirety. This power was not unique to New York, as the Governors
of Massachusetts, Georgia, and Vermont (soon to be the first new State admitted
to the new union) also enjoyed revisionary authority over legislative appropriations.
As many of my colleagues know, our distinguished colleague from West Virginia,
the Chairman of the Appropriations Committee, has made a series of speeches on
the Senate floor drawing on his vast knowledge about the historical underpinnings
of our republican form of government and on the framers' rationale for the checks
and balances they created. His review of Roman history is apt, because, as he
knows, the framers were acutely aware of Roman history. This awareness helped
them develop their government of limited powers and of checks and balances. 'The
framers knew that the vice of faction, the desire to pursue one's private interest at
the expense of the public interest, had helped bring on the downfall of the Roman
Republic. Madison and others were convinced that by diffusing power and balancing
it off in different branches of government, we might avoid to the fullest extent pos-
sible, the defects of faction.
In another sense, however, the distinguished Chairman of the Appropriations
Committee, overlooks the fundamental differences between Rome's ancient govern-
ment and ours. In ours, the people have a direct say. In Rome's the male citizens
had a limited, indirect say, but mostly the ruling class was hereditary or was based
on wealth. We have a democracy; Rome did not.
This fundamental difference between our Nation and ancient Rome means that
there are more factions with which our government must contend. With so many
different factions, or "interest groups" as we call them today, it is much easier for
one of them to "capture" a single Member of Congress to advance its cause and to
fund it. Each representative has a much narrower focus than a Senator, each of
whom has a narrower focus than the President. Thus, Congress is more susceptible
to pressure from factions, as one member who wants a favor for a particular faction
trades his or her support for another member's preferred faction. We all know that
this appropriations log-rolling occurs. Ultimately, the President is presented with
one large spending bill, much of which reflects the political horse-trading that oc-
The line-item veto sheds hght on the power of private interests that seek to use
the appropriations process for their own private benefit. By excising line items and
making Congress vote on them individually in an efTort to override the veto, the
President can shed light directly on these private interests and force members to
be accountable to their constituents by voting on the projects identified by the Presi-
dent as unnecessary and wasteful.
Some, like the distinguished Chairman of the Appropriations Committee, contend
that the line-item veto would result in an intolerable shift of power from Congress
to the Executive. To this argument, I have two responses. The first is that, as I be-
lieve I show, the framers of the Constitution intended that the President have the
authority to veto individual items of appropriations. Thus, in their concept, the line-
item veto does not offend the balance oi powers.
The second response is related to the entire structure of the government. The
Constitution places the power of the purse in the hands of Congress. It is a pecu-
liarly legislative function to decide how much money to spend and how to allocate
these expenditures. In this regard, however, spending is no different than any other
legislative function. Thus, there is no reason to consider the line-item veto any more
of an infringement of the separation of powers than the President's ability to veto
bills at all. llamilton recognized the structural importance of the veto in The Fed-
eraliat 73, when he wrote that the veto provides "an additional security against the
enaction of improper laws ... to guard the community against the effects of faction,
precipitancy, or of any impulse unfriendly to the public good, which may happen to
mfluence a majority of (the legislative] body" from time to time. The framers were
acutely aware that it is the legislative branch that is most susceptible to factional
influence. Thus, they understood that the veto served a critical role.
But, opponents of the line-item veto argue, Hamilton's point went to bills as a
whole, and not simply pieces of them. The legislative process necessarily on horse-
trading to get things done, and nowhere is such trading more important than in the
appropriations process. This response, while acknowledging the reality, is an answer
that cfirectly contradicts the framers' intent and leads to bad government, for it ac-
cepts the premise that factions and the prominent Members of Congress who sup-
port their causes must be bought off witn goodies in appropriations bills. But that
15 precisely the evil that the framers sought to insulate against with the veto.
Given tne role of factions in the appropriation process, the use of the line-item
veto is completely consistent with the framers' conception of the veto power. Indeed,
that is not surprising, as the framers believed they had granted the President a
line-item veto. Despite the arguments of the distinguished Chairman of the Appro-
priations Committee to the contrary, the line-item veto was not only intended by
the framers but is an appropriate limitation on congressional authority to combat
the force of faction.
This process would not surprise the framers of the Constitution. Madison and the
others who met in Philadelphia in 1787 were not just knowledgeable about history.
They were practical men of affairs and politics who understood numan nature. They
knew the dangers of faction and the likelihood that faction would influence Confess
more so than the President, who is responsible to the entire Nation, not a single
district or State.
Thus, it is only to be expected that the framers provided Congress with the power
to appropriate funds, tempered with executive authority to line-item veto as a
means of expunging special interest spending was their resolution, and history
bears this out. The line-item veto is entirely consistent with the framers' conception
of government and the dangers of faction.
Shortly after the new Federal Constitution was ratified, several States, including
Georgia, Vermont, Kentucky, and my home State of Pennsylvania, rewrote their
constitutions to conform with the Federal one and specifically incorporated language
to give to their executives the authority to exercise a line-item veto. These States
were in addition to the States like Massachusetts and New York, where the gov-
ernor's power to revise items of appropriation was well-established. For example, ar-
ticle II, section 10 of the Georgia Constitution of 1789 gave the governor power of
"revision of all bills" subject to a two-thirds vote of the general assembly. Section
16 of chapter II of the Vermont Constitution of 1793 vested in the governor and
council the right to revise legislation or to propose amendments to the legislature,
which would nave to adopt the proposed amendments if the bill were to be enacted.
Article I of the Kentucky Constitution of 1792 and section 23 of article I of the
Pennsylvania Constitution of 1790 tracked the language of article I, section 7, clause
3 of the new United States Constitution.
The chief executives of both the State and new Federal governments immediately
employed the line-item veto. On the national level, the early practice was one in
which the President viewed appropriations as permissive rather than mandatory.
President Washington nnd his Treasury Secretary Hamilton assumed the authority
to shift appropriated funds from one account to another. Although his party had at
one time opposed such transfers, once he became President, Republican Thomas Jef-
ferson also embraced the practice, and at least on two occasions, he refused to spend
money that the Congress nad appropriated.
The practice continued. As late as 1830, President Andrew Jackson declined to en-
force provisions of a congressional enactment. Likewise in 1842, President John
Tvler signed a bill that he refused to execute in full. It was not until afler the Civil
War that a President assumed he did not already have the authority to veto individ-
ual items of appropriation, when President Grant urged the Congress to grant him
But President Grant's view was anomalous. The framers' understanding and their
original intent was that the Constitution did provide the authority to veto or im-
pound specific items of appropriations. The States understood that to be the case,
and many in fact embraced tne Federal model as a means of providing their own
executives this same authority.
I believe that the evidence strongly supports the position that under the Constitu-
tion the President has the authority to employ the line-item veto. At the very least,
the President's use of the line-item veto will almost certainly engender a court chal-
lenge if the veto is not overridden. The courts will then decide whether the Constitu-
tion authorizes the line-item veto. If they find it does, then the matter will be set-
tled. If they find it does not, then Congress may revisit the issue and decide whether
to amend the Constitution or grant statutory enhanced rescission authority to the
In conclusion, I urge the President to employ the line-item veto if he is seriously
committed to deficit reduction. As I have argued here today, the authority to exer-
cise this power is not dependent on the adoption of a constitutional amendment or
any additional legislation; it already exists. The framers' intent and the historical
practice of the first Presidents serve as ample evidence that the Constitution confers
to the executive the authority to line-item veto. Given President Clinton's use of the
line-item veto as governor and his support of it as a candidate, I urge him to act
on that authority consistent with his rightful power to do so.
I ask unanimous consent that a copy of a memorandum I have prepared summa-
rizing my research into the framers intent to establish a line-item veto and the
early national practice be included in the record at the conclusion of my remarks.
Re; Presidential authority to exercise a line-item veto
The President currently enjoys the authority under the Constitution to exercise
a line-item veto without any additional constitutional or statutory authority. The
constitutional basis for the President's exercise of a line-item veto is to be found in
article I, section 7, clause 3 of the Constitution.
The first article of the Constitution vests legislative authority in the two Houses
of Congress established thereunder. Clause 2 of section 7 of the first article provides
the presidential authority and procedure to veto "bills". This is the basis for the
President's clearly established authority to veto legislation. The provision also estab-
lished the procedure under which Congress may override the President's veto.
The question of conferring authority on the President to veto specific items within
a bill was not discussed at the Constitutional Convention. During the drafting of
the Constitution in 1787, however, James Madison noted in his subsequently pub-
lished diary that he had expressed his concern that Congress might try to get
around the President's veto power by labeling "bills" by some other term. In re-
sponse to Madison's concern and in order to guard the President's veto authority
from encroachment or being undermined and preserve the careful balance of power
it sought to establish, Edmund Randolph of Virginia proposed and the Convention
adopted language from the Massachusetts Constitution wnich became article I, sec-
tion 7, clause 3.
This clause requires that in addition to bills:
Every Order, Resolution, or Vote to which the Concurrence of the Senate
and House of Representatives may be necessary (except on a question of
Adjournment) shall be presented to the President of the United States; and
before the Same shall take Effect, shall be approved by him, or being dis-
approved by him, shall be repassed by two thirds of the Senate and House
of Representatives, according to the Rules and Limitations prescribed in the
Case of a Bill (these being set forth in article I, section 7, clause 2).
In combination with the preceding clause 2 of section 7, this third clause gives
the President the authority to veto any legislative adoption of Congress, subject to
Trie historical context of its adoption supports the position that clause 3 vests the
President with authority to veto individual items of appropriation.
According to the noted historian Professor Forrest McDonald in his paper 'The
Framers' Conception of the Veto Power", published in Pork Barrels and Principles:
The Politics of the Presidential Veto 1-7 (1988), clause 3 was taken directly from
a provision of the Massachusetts Constitution of 1780. This provision set in the
State's fundamental charter Massachusetts law dating to 1733 first implemented to
give the Royal Governor a check on unbridled spending by the colonial legislature,
which had put the colony in serious debt by avoiding the governor's veto power by
appropriating money through "votes" rather than legislation. Professor McDonald
has also noted in an op-cd article published in the Wall Street Journal, that the
agents of the King of England could disapprove or alter colonial legislative enact-
ments "in any part thereof"
Discussion and debate at the Constitutional Convention over the meaning of
clause 3 was scant. In his notes of the proceedings of the Convention, our main
source for the intent of the Framers of our fundamental Charter, Madison noted
only that Roger Sherman of Connecticut "thought (article I, section 7, clause 3] un-
necessary, except as to votes taking money out of the Treasury." No other member
of the Convention appears to have discussed the clause. Sherman's comment was
important, as it demonstrates the context in which the Framers saw the newly
added provision: it was needed only insofar as it pertained to votes appropriating
money from the Treasury. Perhaps discussion was so scant because the meaning of
the clause was clear to the Framers.
In his 1988 article. Professor McDonald notes that two Anti-Federalist pamphlet-
eers opposed the proposed Constitution in part because article I, section 7, clause
3 "made too strong a line-item veto in the nands of the President". The Federalist
Governor of Massachusetts, James Bowdoin, argued during the Massachusetts rati-
fying convention that the veto power was to be read in light of the Massachusetts
experience in which, as noted, the line-item veto was exercised by the governor. In
The Federalist No. 69. Alexander Hamilton wrote that the constitutional veto power
"tallies exactly with the revisionary authority of the council of revision" in New
York, which, according to Professor McDonald, had the power to revise appropria-
tions bills, not merely turn down the entire legislative enactment. Massachusetts,
Georgia, and Vermont also gave their executives revisionary authority over legisla-
Roger Sherman's comment was prescient, as he focused on the issue confronting
us over 200 years later. The language of clause 3 has proven to be redundant, as
Congress has not attempted to avoid the structures of the second clause. But clause
3 is not superfluous as regards, in Sherman's language, "votes taking money out of
the Treasury." In order to give effect to this provision, the President must have the
authority to separate out different items from a single appropriation bill and veto
one or more of those individual items.
This reading is consistent with the early national practice, under which Presi-
dents viewed appropriations as permissive rather than mandatory. President Wash-
ington and his Treasury Secretary, Alexander Hamilton, assumed that the President
had the authority to shifl appropriated funds from one account to another. The
former Anti-Federalist, having become the Republican party, objected to these trans-
fers. Once a Republican. Thomas Jefferson, became President, however, he too con-
sidered appropriations bills to be permissive and refused on at least two occasions
to spend money that had been appropriated by Congress.
Professor McDonald points out in nis 1988 article that shortly after the new Fed-
eral Constitution was ratified, several of the States rewrote their constitutions to
conform their basic charter to the Federal one. The contemporaneous experience of
these States is highly relevent to the Framers' understanding of the text they had
devised. Several States adopted new constitutions in 1789 or the early 1790*8. Of
these. Georgia and Pennsylvania, and the new States of Vermont and Kentucky all
adopted constitutions that included the phrasing of article I, section 7 to enable
their governors to exercise the line-item veto.
According to a 1984 report of the Committee on the Budget of the House of Rep-
resentatives, The Line-Item Veto: An Appraisal, the practice at the national level of
the President's exercise of a line-item veto continued. President Andrew Jackson de-
clined, over congressional obiection, to enforce provisions of a congressional enact-
ment in 1830. In 1842, President John Tyler signed a bill that he refused to execute
in full. Instead, he advised Congress that he had deposited with the Secretary of
State "an exposition of my reason for giving (the bill I my sanction." Congress issued
a report chaflpnging the legality of the President's action.
Professor McDonald noted that between 1844 and 1859. three northern States, re-
sponding to fiscal problems, adopted constitutions explicitly providing their gov-
ernors with power to veto individual items of appropriation. Building on this nis-
tory, the provisional Constitution of the Confederate States of America also made
explicit that the President of the Confederacy had line-item veto authority.
It was only after the Civil War that President Grant suggested that he did not
already enjoy the authority to veto individual items of appropriation and other spe-
cific riders to legislation and urged that he be grantea sucn authority. President
Grant's position that he did not enjoy a line-item veto under the Constitution was
directly contradictory to the original understanding of the Constitution, a position
endorsed by Presidents Washington, Jefferson, Jackson, and Tyler through usage.
It ignored the original understanding of the Framers of the Constitution and tne
historical context m which that document was drafted. Proposals for a Federal line-
item veto have been made intermittently since the Grant acfministration.
An alternative argument based on the lan^age of article I, section 7, clause 2,
but consistent with the original understandmg of the veto power, has also been
made to support the President's exercise of a Ime-item veto, in discussing why the
issue of a Ime-item veto was not raised during the Constitutional Convention, Pro-
fessor Russell Ross of the University of Iowa and former United States Representa-
tive Fred Schwengel wrote in an article "An Item Veto for the President?", 12 Presi-
dential Studies Quarterly 66 (1982), "i|t] is at least possible that this subject was
not raised because those attending the Convention gave the term 'bill' a much nar-
rower construction than has since been applied to the term. It may have been envi-
sioned that a bill would be concerned witn only one specific subject and that subject
would be clearly stated in the title."
Professor Ross and Mr. Schwengel quote at length the former Chairman of the
House Judiciary Committee, Hatton W. Sumners, who defended this view in a igS*?
letter to the Speaker of the House that was reprinted in the Congressional Record
on February 27, 1942. Chairman Sumners was of the view that the term "bill" as
used in clause 2 of section 7 of the first article was intended to be narrowly to refer
to "items which might have been the subject matter of separate bills." This reading
he thought most consistent with the purpose and plan of the Constitution. Thus,
Chairman Sumners believed that clause 2, as originally intended, could also be re-
lied upon to vest line-item veto authority in the President.
Chairman Sumners's reading is also consistent with the practice in some of the
colonies. Professor McDonald cites to the Maryland constitution of 1776, which ex-
pressly provided that any enacted bill could have only one subject. Several other
States followed Marylancl during the succeeding decades and limited legislative en-
actments to a single subject.
A review of the contemporary understanding of the veto provisions of the Con-
stitution when drafted supports the view that the President currently enjoys line-
item veto authority, which several Presidents have exercised.
Senator ExoN. Our next scheduled witness is Senator McCain. Is
Senator McCain here? Senator McCain is not present, and we will
move on to Senator Craig.
Senator Craig, welcome. We are very glad to have you. Your full
statement as submitted, if you have submitted one, is included in
the record at this time, without objection. Please proceed in any
fashion that you see fit.
STATEMENT OF THE HON. LARRY E. CRAIG, U.S. SENATOR
FROM THE STATE OF IDAHO
Senator Craig. Mr. Chairman, thank you very much. Let me
thank you and also Chairman Sasser for agreeing to these hear-
ings. We think they are timely. Of course, it is always a privilege
to come before Senator Domenici. I have tremendously respected
your leadership on these kinds of issues over the years. Senator,
and your farsightedness to try to get out in front of concerns that
the public has as it relates to the budget process.
Mr. Chairman, what I would like to do this morning is summa-
rize for you a piece of legislation that Senator Campbell and I in-
troduced on September 23 that you became a cosponsor of, along
with Senator Grassley, Senator Nickles, Senator Lott, Senator
Brown and Senator Gorton. This is known as the Common Sense
Budget Reform Act of 1994.
I do want to mention all the reforms within that Act briefly, and
then focus specifically on the line-item veto expedited rescission.
Senator ExoN. Senator Graig, let me ask you a question just for
the record, and I think I am correct. This measure has passed the
House of Representatives, is that correct?
Senator Craig. It has. Three of the four reforms in the total
package which now represents S. 2458 have passed the House.
When I talk about those reforms, I am talking about baseline budg-
eting reform, I am talking about what is known as a lockbox or
guarantee that a cut is a cut when we pass a spending cut amend-
ment, in other words that it does not move into another portion of
the budget, that it moves against the deficit, and the expedited re-
scission. Those three items have passed the House by large majori-
Keeping emergency appropriations clean of non-emergency items
is the last item in the total package that is embodied in the bill
that I am here to present to you that has not passed the House.
Of the three principles and the three reasons I think that are the
strongest for this Senate to look at in expedited rescission, probably
the greatest of them all and the one that has driven the whole
issue historically is the issue of fiscal responsibility.
According to GAO, Mr. Chairman, since 1974, Presidents have
requested 1,019 individual rescissions of appropriations. Congress
has approved 354 of them, or about 34.5 percent of these, account-
ing for 30 percent of the dollar volume of the proposed rescissions.