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Blame Avoidance and Budget Politics

- February 9, 2012

Yesterday’s House approval of a line-item veto bill (HR 3521) continues our national reprise of the budget politics of the 1990s — complete with Newt Gingrich, but probably without the rather important denouement of ultimate compromise and budget surplus.

It is worth thinking about the structure and likely outcome of line-item veto proposals. Given the importance of the veto power to interbranch relations, why would Congress expand its scope, encouraging presidential encroachment on the power of the purse?

The short answer is that item vetoes may be less about a balanced budget than about shifting blame for the failure to achieve one.

More than forty state governors have some sort of power to excise amounts, individual items, sections or even letters of text from an appropriations bill. Such a power was in the Confederacy’s constitution too. But the “presentment clause” of the US Constitution, on the other hand, treats a given bill as a single “it” which presidents can sign or veto. Thus in its ruling on the Line-Item Veto Act (LIVA) of 1996, the Supreme Court (Clinton v. City of New York (1998)), held that “If this Act were valid, it would authorize the President to create a law whose text was not voted on by either House or presented to the President for signature. That may or may not be desirable, but it is surely not a document that may ‘become a law’ pursuant” to the Constitution.

Let’s think about the “what” and the “why” of the item veto (the federal budget does not have distinct “lines” (as some state budgets do), and thus “item veto” is more accurate than “line-item veto.”)  First, a brief taxonomy. There are four main ways one could give the President an item veto:

(1) Amend the Constitution. The plus side: this is clearly constitutional. The downside: it’s hard to do. And it is not obvious how one would define an “item” in the amendment.

(2) Create “items,” in law. This is often called “separate enrollment,” with a pedigree at least to President Chester Arthur’s repeated call in the 1880s for the division of internal improvement bills into separate appropriations. (Bet you didn’t expect to ponder the administration of Chester Arthur today.)

Such an approach seeks to match the current budgeting process into one that fits the president’s existing veto power.  Breaking up budget (and sometimes revenue) bills into their component parts, Congress would send to the president a number of bills with monies dispersed across various accounts.  A full budget might consist of 10,000 “bill-ettes” (as former Sen. Robert Byrd mockingly called them) which could be signed into law or vetoed by the president under his current authority; those bills that were vetoed would return to Congress for override consideration.  The Senate version of the LIVA was of this nature, but opponents warned it would be unworkable in practice. Obviously, creating and passing 10,000 bills is a rather time-consuming task, even with changes to the rules.

(3) The third and fourth approaches take a different tack. After the Impoundment Control Act became law in 1974, presidents were given the authority to propose budget cuts (“rescissions”). Congress can approve those – but doesn’t have to, and doesn’t even have to debate them. Mostly it doesn’t. One option, then, would be to reverse the burden of proof, or rather the burden of action. While a rescission package is now deemed disapproved unless Congress acts to implement it, “enhanced rescission” powers put presidential proposals into effect unless each house of Congress takes affirmative action to stop them.  This act of disapproval would itself be in the form of a bill, subject to presidential veto. The LIVA in 1996 was of this general form.

(4) But the LIVA, as already noted, was deemed unconstitutional. Thus another version – and this is what the House passed yesterday – might be called “expedited rescission.”  This requires Congress to at least consider presidential recission recommendations and take an up-or-down vote on them within a specified period. In the House bill, the president has 10 days to recommend cuts to discretionary spending accounts. Within a dozen or so “session days” the recommendation must move to committee, be reported, and receive floor votes. In the House, floor debate is limited to two hours; in the Senate, ten.  Any savings approved are supposed to be dedicated to deficit reduction rather than re-allocated.

So, why pass such a veto? After all, the power of the purse is a core Congressional power (just ask James Madison – see Federalist #58.)  Yet the 104th Congress, and now the 112th House — bodies ideologically hostile to the sitting president — acted eagerly to diminish it. What explanatory leverage can we gain on this puzzle?

The public answer is usually that Congress, linked by district to particularistic interests, cannot get a global view. The internal game encourages log-rolling, not self-denial. Presidents can rise above this. “I’ll make the cuts, I’ll take the heat!” as President Reagan proclaimed.

Another answer might lie in a shift from credit claiming to blame avoidance, as David Mayhew long ago observed.

That is: the item veto has much in common with I.M. Destler’s 1994 conclusion regarding trade policy that “members of Congress find their interests well-served by a system of power sharing that gives them ample opportunity for initiative and visibility but allows the buck to stop elsewhere.”  Indeed, as early as the 1930s, V.L. Wilkinson wrote in the Georgetown Law Journal that an item veto would, “in the great name of politics, permit members of Congress to shift to the President the responsibility of deleting items inserted for ‘mending fences back home.’”

Pork is usually a prime legislative preference. It is a key device for buffering national tides through local service. But when the budget deficit has high salience (in parts of the 1980s, the early-mid 1990s, and today), public support for earmarks becomes dangerous. Giving just enough responsibility to the president to make it seem the deficit is his problem – without enough responsibility to actually reduce the deficit – becomes an attractive option.

Obviously this might cut both ways. Presidents seek item veto authority for a reason (Reagan, Bush, Clinton, Bush, and Obama all endorsed it): they see political benefits to trumpeting their own position as “tribune of the people,” unbeholden to special interests.

But either way, there is little reason to think that much deficit reduction will ensue. If Congress had adopted every presidential rescission proposal between 1974 and 1995,  it would have reduced the cumulative deficit by just 2.3%. And entitlement spending, no small part of the deficit debate, is safe from the item veto. Thus we can expect blame-shifting to be the major product of an item veto. In that, the politics of the item veto may echo deficit politics as a whole.

And consider one cynical coda. With an item veto, actual results become harder to achieve. But are there flip-side benefits?  Knowing that the President awaits, it is reasonable to suppose congressional results will be discounted, and thus easier to achieve.

If so:  Member A rails against deficits, but finds it easier to get his project through Congress (after all, surely the President will veto it.)  If the President does not veto it, well and good for A. If the President does veto it, A can still claim credit for having passed the item. Not only that, he has someone to blame, a clear and credible target for district wrath.  As a member of Congress interviewed by Cronin and Weill in a 1985 study put it, “we will get the credit and the chance to answer the mail both ways.” (The LIVA actually required the president to specify the districts affected by his proposed rescissions.)

Indeed, the President, foreseeing this, may actually be less inclined to veto it (especially if it is in, say, Florida, Ohio, or Pennsylvania). It may be that by giving up its ability to credibly commit — or, better, by credibly committing to being irresponsible — Congress wins…