3.04.2009

Russ Feingold, John McCain, and Paul Ryan - The Line-Item Veto Rides Again

All three unveiled an effort to cut earmarks by giving the President the line-item veto.

While it sounds good - I certainly appreciate the ends - there's always the concern about the means. Specifically, I'm concerned that things will go the way they did in Wisconsin - the Frankenstein veto.

I'm most interested in seeing how the proposal addresses the legal aspect of the constitutionality of the line-item veto. A 1996 Act giving the President that power, you'll recall, was struck down as unconstitutional in 1998.

Here's the explanation of the new approach from a joint press release:

While the proposal gives the President an important tool to go after that unjustified spending it also protects Congress’ constitutional authority to make spending decisions by requiring both House and Senate to vote to approve the president’s proposed rescissions, before they can become law. If either chamber votes against a rescission by a simple majority, it will not be enacted. As a result, this legislation is fundamentally different than the line-item veto the Supreme Court struck down in 1998, which did not require congressional approval for the president’s rescissions to take effect.

This will be interesting. The additional layer of Congressional involvement, as opposed to supermajority veto override requirements in some states, means the proposal is really a diluted line-item veto, one that will allow the President to highlight earmarks and force a vote on them with more publicity focused narrowly on those earmarks in question. Hopefully that balanced approach will provide enough of a hurdle to stem earmarks and meet constitutional muster.

Here are some additional details of the provisions on the President's ability to send a "recission" request to Congress for specific earmarks he wants to veto:

· Give the House and Senate 12 legislative days after the President sends a rescission request to Congress to bring a rescission bill for consideration on the floor of the full House and Senate.

· Respect and preserve Congress’ constitutional responsibilities by requiring that both the House and Senate pass a rescission request before it can become law. If either the House or Senate votes against a rescission by a simple majority, it is not enacted.

· Require the President to submit earmark rescission requests to Congress within 30 calendar days of signing a bill into law.

· Limit the number of rescission requests per bill, to guard against gridlock in Congress due to multiple rescission proposals. Under this legislation, the President can propose one rescission package per ordinary bill, or two rescission packages for omnibus legislation. Each rescission request may include multiple earmarks.

The bill also contains a 2014 sunset provision. The biggest problem I see for the success of this measure in achieving its goal is in allowing a recission request to be defeated if a majority of either house says no (which ironically, is probably necessary to satisfy constitutional strictures).

If certain earmarks are key to helping a new member of the majority party, for example, that could easily lead to the party bucking the recission request (even if the recission format would make it a more distinct political item subject to more media and public scrutiny). Overall, though, the concept of the bill seems worth the attempt at first glance. As long as Frankenstein doesn't creep into the picture...