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to assure that each committee with jurisdiction has an opportunity to consider and report to the House on such matters. The Speaker has discretion to divide matters for referral. It is not clear, however, that a motion to refer can do all that the Speaker has discretion to do. Moreover, if the item veto is limited to appropriation bills, it should be noted that general appropriation bills are very rarely if ever referred to a committee other than the Appropriations Committee.

POCKET VETO

Should the President have the authority to pocket veto items? If so, should matters in dispute concerning the pocket veto of bills be addressed in a grant of new authority to pocket veto items?

The reason to grant authority to pocket veto items is the same reason that the President has the authority to pocket veto bills. Without that authority, the President would be denied the opportunity to return a disapproved bill (or items in the bill) if Congress adjourns sine die at the end of a Congress and less than ten days after the President receives the bill.

On the other hand, twenty-six of the forty-three governors with item-veto authority (more than three-fifths) do not have the authority to pocket veto items. There is a difference between pocket vetoing a bill and pocket vetoing an item. The remainder of the bill becomes a law when the President pocket vetoes an item; the entire bill fails to become law when a bill is pocket vetoed.

If authority to pocket veto items is nonetheless granted, should matters now in litigation with respect to the pocket veto of bills be clarified in establishing the new power? The exercise of the pocket veto, as noted above, is currently governed by an uneasy accommodation between the branches. What effect would the item-veto authority have on that accommodation? Should the Congress remain silent on these matters or use the grant of new veto authority to try to resolve the issues in dispute? Congress might grant authority to pocket veto items but specify that only sine die adjournment at the end of a Congress prevents the return of a bill.

CONCLUSION

The procedural aspects of the item veto need further study. This chapter suggests we should examine legislative proposals for the item veto with the question in mind: Would Congress need to modify existing rules and practices to provide for the reconsideration of vetoed items? Two major issues are (1) could consideration of the several items vetoed in one bill be divided, either by the President or the Congress? and (2) does the special urgency to reconsider vetoed items promptly (because the remainder of the bill becomes law) require changes in House rules and procedures?

In summary, there are many procedural questions left unanswered about the reconsideration of vetoed items:

(1) Must the President include all items that he disapproves in a single veto message? Must he provide a separate message for each vetoed item? Does he have the discretion to package items in as many or few messages as he wishes?

(2) Should a prompt vote be required on any items returned by the President in order to test the severability of those items from the remainder of the bill?

(3) By what majority must each House pass, on reconsideration, items disapproved by the President?

(4) What is the form of the question on reconsideration of vetoed items?

(5) Is the question on reconsideration of vetoed items divisible? Can a Member demand a separate vote on each or any of the disapproved items?

(6) Should the motion to adjourn be restricted to ensure reconsideration of vetoed items?

(7) Should the motion to lay on the table be made divisible to allow a separate vote on some items and the setting aside of others?

(8) Should the motion to postpone reconsideration of vetoed items to a day certain be made divisible? Should it be limited to ensure that severability is tested before the remainder of the bill takes effect?

(9) If the motion for the previous question is defeated, should amendments be made in order?

(10) Can the motion to refer be used to provide for separate consideration of each or any of several vetoed items?

(11) Should the President have the power to pocket veto items? Should the Congress try to resolve controversies over the pocket veto of bills if it grants the President authority to pocket veto items in bills?

CHAPTER V. IMPACT OF THE ITEM VETO

Historically, the general veto and the item veto have been important weapons in the governor's arsenal. The veto power thrusts the governor directly into the center of the legislative arena. Used either as a threat during the legislative process or as an accomplished fact after a bill passes the legislature, the veto adds an extra dimension to the governor's office and to legislative-executive relations.

The item veto is not (as sometimes depicted) a simple device for bringing economy and efficiency to state government. It remains, first and foremost, a political instrument. It functions with subtle side-effects that introduce new means of leverage in the legislative process. A politically astute governor will use the item veto with care and may decide that his political objectives are best achieved by not using it at all. Like most political instruments, the item veto in practice possesses its share of surprises, producing results that both please and disappoint its promoters.

Although the item veto alters legislative-executive relations, its impact is difficult to measure or assess. Statistics are neither as complete nor as useful as one would like. Only a few governors have made the item veto a major factor in their political strategy. Once an item veto is invoked it is rarely overridden. The infrequency of overrides is explained partly by the legislative practice of passing most bills, important or otherwise, near the close of a session. This makes it difficult for lawmakers, even if so inclined, to attempt an override.

The importance of the item veto cannot be measured simply through statistics. Quantitative tests in this area are more likely to mislead than illuminate. This is so for a number of reasons. The threat of the item veto, for example, may be more politically influential than its actual use, but how do we measure a "threat"? Informal negotiations by the governor and his assistants can result in the deletion of items that are never recorded in the books as a veto. The "bill recall" procedure has effects similar to an item veto. Between 1932 and 1973, a total of 1,401 bills were recalled by the New York legislature and 618 of those bills were subsequently resubmitted to the governor for his signature. Of the returned measures, the legislature amended 451 to meet the governor's objectives.1 None of these actions was recorded as a veto.

Massachusetts, a state with the item veto, item-reduction veto, and amendatory veto, experienced a sharp drop in the use of the gubernatorial veto between 1947 and 1960. The reason, according to one study, was the availability of the bill-recall procedure:

1 Frank W. Prescott and Joseph F. Zimmerman, The Politics of the Veto of Legislation in New York State 1206 (1980).

In Massachusetts, a fundamental change in the role of the veto power has occurred: cooperation between the governor and the General Court [the legislature] was developed to such a high degree in the period 1949-1960 that the veto power was seldom exercised-most conflicts between the views of the governor and the General Court on proposed legislation were resolved informally during the legislative process by extraconstitutional means.

The relative disuse by the Massachusetts governor of his prerogative to veto bills has not destroyed the reality of the veto's existence and its disuse is to be attributed solely to the development of an extraconstitutional method of solving gubernatorial-legislative differences. 2

Infrequent use of item vetoes may reflect the political realities of the budget-making process. The governor and the legislature cooperatively produce a budget "and the governor does not welch on agreements by vetoing items." 3 The structure of an appropriation bill may eliminate, as a practical matter, the opportunity for an item veto. Item vetoes are rarely used in Alabama because the legislature has preferred to appropriate in lump sums.4

Although the item veto permits the governor to use a scalpel rather than a cleaver on appropriation bills, its availability may encourage legislators to act less responsibly. "Savings" achieved by the item veto might simply offset spending that was added for the very reason that the governor possessed the power to strike unwanted projects. A study of Pennsylvania concluded: "When a legislator, even though opposed in principle to an appropriation, is reasonable certain that the governor will slice it down to more moderate size, he is tempted to bolster himself politically by voting large sums of money to a popular cause." 5 Another writer said that the experience of Michigan supported the comment of one author who claimed that that the item veto "has encouraged legislators to please their constituents by voting for appropriations far in excess of anticipated revenues thus forcing the governor to make the inevitable reductions and incur the wrath of the interests adversely affected." During the hearings in 1984, Senator Mark O. Hatfield (who served as governor of Oregon from 1958 to 1966) remarked:

We also know that the legislatures in States which have the line-item veto routinely "pad" their budgets, and that was my experience, with projects which they expect, or even want their Governors to veto. It is a wonderful way for a Democratcontrolled legislature, that I had, to put a Republican Governor on the spot: Let him be the one to line-item these issues that were either politically popular, or very emotional.7

Some governors have hesitated to use the item veto vigorously for fear that this would shift too much legislative responsibility to the governor and relieve legislators of the need to exercise independent and continuing judgment on the merit of bills. Aggressive

2 Joseph F. Zimmerman, "The Executive Veto in Massachusetts, 1947-1960." 37 Social Science 162, 167 (1962).

3 Duane Lockard, The Politics of State and Local Government 394 (1963).

4 Frank W. Prescott, "The Executive Veto in American States," 3 West. Pol. Q. 107 (1950). Coleman B. Ransone, Jr., The Office of Governor in the South 83 (1951).

5 M. Nelson McGeary, "The Governor's Veto in Pennsylvania," 41 Am. Pol. Sci. Rev. 941, 943 (1947).

6 John A. Perkins, "The Role of the Governor of Michigan in the Enactment of Appropriations," Michigan Governmental Studies No. 11 (1943), at 56, quoting Austin F. Macdonald, American State Government and Administration 209-10 (1940).

7 "Line-Item Veto," hearing before the Senate Committee on the Judiciary, 98th Cong., 2d Sess. 21 (1984).

8 Harold M. Dorr, "The Executive Veto in Michigan," 20 Mich. Hist. Mag. 91, 101-102 (1936).

use of the item veto could also dilute the significance of the veto power. One student of the presidency offered these thoughts on amending the Constitution to provide for an item veto:

The executive power of veto would be cheapened, since its more frequent use on a selective [item] basis would not carry anything like the rebuke to Congress that present presidential disapproval entails. Our chief executive must feel certain of the merits of his action before vetoing an act of Congress. Congress must feel very confident of its position before it overrides a veto. The existing arrangement tends to keep such struggles on a relatively high plane. But suppose the president could strike out any detail of which he disapproved: Congress would become a less responsible body both in its substantive lawmaking and in the ease with which it could find shelter from political difficulties behind the White House.9

Every governmental (and private) organization needs to discover methods of resolving conflicts. The item veto can help resolve some disputes, but it also represents another source of conflict among the branches. At the state level, the exercise of the item-veto power continues to generate a substantial amount of litigation. Casework is heavy in some states and relatively light in others. Notwithstanding decades of state court decisions, there has been difficulty in establishing principles that are stable. Indeed, the situation is more judicially unsettled than it was fifty years ago.

There is a subtle dimension of the item veto that is often overlooked. The item veto is not a simple, politically neutral way of constraining state budgets. Its use may result in some reduction of expenditures, although the dynamics of executive-legislative relations make that difficult to prove. The principal consequence might be to change the level of political conflict.

When an executive possesses only general veto authority, the legislature is under both external and internal pressures to produce a budget that represents its best collective judgment. Whatever passes is likely to be enacted. The incentives of the system encourage compromise before the bill reaches the executive. Negotiations take place as the bill progresses from committee to the floor and from one house to another. If the bill contains too many offensive passages, the executive may veto it and jeopardize hard-won agreements and accommodations.

Availability of the item veto may provide effective means of avoiding impasse over omnibus bills. It may also diminish the incentive for lawmakers to closely control substantive provisions and the level of appropriations. They can insert extravagant and unreasonable items with the expectation that the executive will be at liberty to strike them from the bill. Colleagues in the legislative branch are less likely to challenge unsound provisions, preferring to leave that task to reviewers in the executive branch. Intead of negotiating in private without the risk of public exposure and criticism, important issues are left unresolved until the bill reaches the executive. The result may be a series of head-on clashes between the executive and the legislators, carried on in public where the debate acquires an emotional and impassioned character. Interest groups are given one more "crack" at influencing the outcome.

Under this scenario, political conflicts are not resolved as much as they are exacerbated. The item veto, billed as an essential in

9 Pendleton Herring, Presidential Leadership 76-77 (1940).

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