Item Veto: State Experience and Its Application to the Federal Situation

In the June 15, 1986, issue of the Science and Government Report, those opposed to earmarking have been described as "well-heeled institutions who can mobilize to keep their privileged place in the distribution of Federal research funds."

KANSAS PROJECTS

Mr. President, as my colleagues know, this supplemental contains $5 million for Wichita State University in Wichita, KS, to construct an aviation research center. This Senator would not have supported that program if it did not have significant merit and was not strongly supported by the community itself, as well as surrounding industries. Wichita happens to be the heart of the aircraft industry, and the Boeing, Cessna, and Beech companies have pledged to match the Federal funds dollar-for-dollar. This is what I consider to be an outstanding example of public-private sector cooperation.

The basic research conducted at universities provides the foundation for the later commercial development and application of new products and technologies critical to maintaining America's ability to compete in the international marketplace. This type of effort is also critical in establishing and maintaining a strong national defense.

The location of university research facilities has enormous economic consequences for the Nation at large and for the communities and regions in which they are situated in particular. New facilities create new jobs and attract new industries. Decisions on where such facilities should be built and what their purpose should be, have implications that surpass the realm of scientific responsibility or wisdom. Congress, not the academic community, often has a better sense of priorities in making these decisions.

University research facilities will stimulate the economic development of a community by attracting new industries interested in the university's research endeavors. The proximity of a university to certain industries will allow for the exchange of ideas, information, personnel, and technologies which will enhance the quality of the research and facilitate the rapid commerical application of research findings.

At this point, I might also mention that $2 million are designated to go to the University of Kansas Medical Center in Kansas City, KS, to carry out research activities related to toxic substances. I believe both of these projects have great merit, and should not be viewed in the negative light that some have attempted to shine on this issue.

CONCLUDING REMARKS

Mr. President, the nine universities that were designated to receive funds appropriated in the continuing resolution last year have relied on receipt of these funds. They have engaged in their own fundraising activities through the private sector, and if these funds are withdrawn at this point, it will leave them in a most awkward financial position. Such a situation is unfair and unjust. Congress in this instance is simply upholding action that it has already taken in last year's appropriations process. The conference committee has decided to restore specific funding for nine university research projects. I suggest that we should support the action of the conference committee. I urge my colleagues to vote against the motion of the Senator from Missouri.

The item veto would not be an effective tool to control education projects unless Congress itemizes in greater detail. Allocating Federal education funds by university in appropriation bills, however, is divisive and may be inappropriate.

Single-subject appropriation bills

The Mississippi legislature approves approximately 240 appropriation bills each year.50 Each one covers a single subject. There is no constitutional requirement for so many separate bills. In an early court decision,51 however, the Mississippi court said that the

50 The usual number of appropriation bills considered by each state legislature is found in "Legislative Appropriations Process" in the Book of the States, 1982-1983 (1982), at 220. 51 State v. Holder, 76 Miss. 158 (1898).

governor's item-veto authority was originally granted because appropriation bills cover more than one subject. The court ruled that the authority to veto items applied only to bills that "embrace distinct items of appropriation." Apparently, there is an informal accommodation. The Mississippi legislature considers and enacts many separate, single-subject appropriation bills and the Governor rarely uses his item-veto authority. He vetoes the entire bill if he finds any part sufficiently objectionable.

Mississippi House Bill Number 1172 52 illustrates the degree of itemization even in a single-subject bill:

Be it enacted by the legislature of the State of Mississippi:

SECTION 1. That the following sums, or so much thereof as may be necessary, are hereby appropriated out of any money in the State General Fund not otherwise appropriated, to the State Department of Education for the support and maintenance of the common schools of Mississippi and for the Minimum Education Program for the fiscal year beginning July 1, 1984, and ending June 30, 1985, as follows:

For the support and maintenance of the common schools:

(Common School Fund).

$5,000,000.00

An additional sum, to be known as the Minimum Education Program Fund, to be disbursed by the State Department of Education in compliance with the laws enacted at the Extraordinary Session of 1953, as amended

488,896,534.00

Total......

493,896,534.00

SECTION 2. Of the funds appropriated to the Minimum Education Program Fund under the provisions of Section 1, the maximum amount that shall be expended in each of the following elements of the Minimum Education Program shall be:

The above sum is intended to provide a level of support for 16,900 regular teacher units, 3,585 special education teacher units, 983 vocational teacher units, and 3,259 reading aide teacher units.

Any transfers or escalations shall be made in accordance with the terms, conditions, and procedures established by law during the 1984 Regular Legislative Session.

No general funds authorized to be expended herein shall be used to replace federal funds and/or other special funds which are being used for salaries authorized under the provisions of this act and which are withdrawn and no longer available. The State Department of Education, in reporting expenditures and disbursements to the Legislature, shall report the amounts expended and disbursed in categories corresponding to the elements outlined in this section.

SECTION 3. The money herein appropriated shall be paid by the State Treasurer out of any money in the State General Fund not otherwise appropriated, upon warrants issued by the State Auditor of Public Accounts; and the said Auditor shall issue his warrants upon requisitions signed by the proper person, officer or officers in the manner provided by law.

SECTION 4. This act shall take effect and be in force from and after July 1, 1984. The Congress could also send to the President single-subject appropriation bills by dividing up the bills it now considers and sending each paragraph or section as a separate bill.53 The President would still have to decide whether to approve a bill that includes matters he approves and matters he disapproves. Separate paragraphs of federal appropriation bills would include amounts that cover more than one project, program, and activity.

The President can, and does, veto an entire bill though he finds only one item objectionable. There is a long tradition of such vetoes. President Washington vetoed only two bills 54 and his veto message on the second bill 55 explained that only one provision concerned him. The President disapproved the immediate discharge of two military companies. He said it was unfair that the discharged men would not be compensated for their service between the time the bill was enacted and the time the news of their discharge reached them, perhaps as long as six weeks. The House sustained the veto by a vote of 55 yeas to 36 nays. The House promptly considered a new bill omitting the one item to which Washington had objected. The new bill was adopted on March 1, 1797 the same day that the veto was sustained, and it was signed into law on March 3, 1797. In essence, the President noted the provision he objected to and Congress promptly removed it. The history of Presidential vetoes is filled with similar stories.

53 See, for example, S. 43, 99th Cong., 1st Sess., introduced by Senator Mattingly. President Reagan, in his State of the Union address on February 6, 1985, endorsed this approach. The President said, "And I ask for the authority used responsibly by 43 Governors to veto individual items in appropriation bills. Senator Mattingly has introduced a bill permitting a 2-year trial use of the line-item veto. I hope you will pass and send that legislation to my desk." 131 Cong. Rec. H 324 (daily ed. February 6, 1985).

54 President Washington vetoed H.R. 163, 2nd Cong., 1st Sess. (1792) and H.R. 219, 4th Cong., 2nd Sess. (1797). See Harry Thomson "The First Presidential Vetoes" in 8 Presidential Studies Quarterly 27-32 (1978); also, J.S. Kimmitt, Roger Haley comp., Presidential Vetoes, 1789-1976 (1978).

55 February 28, 1797 H. Jour. 726.

The item veto as an executive bargaining tool

The use of the item veto to enhance the executive's bargaining position is most dramatically illustrated in the battle over the Pennsylvania budget for 1983-1984.56 The Governor's item veto message on Act 2A expresses his frustration with the General Assembly for its failure to enact any of his proposed tax increases. The message also suggests that the item vetoes were intended to force the legislature to return to the negotiating table and produce a new bill which the Governor could sign.57

To the Honorable, the Senate of the Commonwealth of Pennsylvania:

I have the honor to inform you that I have this day approved and signed Senate Bill 527, Printer's Number 1070 * * * except as to the following:

Under the State Constitution. I cannot aprove Senate Bill 527. Printer's Number 1070, in its present form because it, combined with the non-preferred appropriations, would result in spending provisions that would exceed available tax revenues by more than $1 billion. *** Moreover and regrettably, since the General Assembly has failed to enact even the moderate revenue increases called for in my budget proposal, I am forced to significantly reduce education grants, the single largest lineitem in the state budget. Further, I am substantially reducing certain other appropriations, including those of the General Assembly, in order to encourage a renewed effort to reach a final budget resolution that will meet the vital needs of this Commonwealth in a responsible fashion.

In Pennsylvania, the Governor has the authority to approve a portion of a sum as well as the authority to disapprove the entire amount for an item. The Governor approved approximately 38% of each amount appropriated to the Senate. The majority in the Senate were of the same party as the Governor:

Section 251. Senate: The following amounts are appropriated to the Senate:
For the salaries, wages and necessary expenses for the following purposes:
Salaries of Senators. State appropriation-$2,425,000.

This item is approved in the sum of $922,000. I withhold my approval from the remaining amount.

Salaries of employees of the President of the Senate. State appropriation$130,000.

This item is approved in the sum of $49,000. I withhold my approval from the remaining amount.

Salaries and wages of employees of the Chief Clerk and all necessary expenses to be allocated and disbursed at the direction of the President pro tempore. State appropriation-$1,705,000.

This item is approved in the sum of $648,000. I withhold my approval from the remaining amount.

Salaries and wages for employees of the Senate to be disbursed at the direction of the President pro tempore. State appropriation-$1,920,000.

This item is approved in the sum of $730,000. I withhold my approval from the remaining amount.

Incidental expenses for payment of maintenance, chairpersons and other expenses of the Senate State appropriation-550,000.

This item is approved in the sum of $209,000. I withhold my approval from the remaining amount.

For payment of postage for the Chief Clerk and

For payment of postage for the Chief Clerk and legislative journal. State appropriation-$80,000.

This item is approved in the sum of $30,000. I withhold my approval from the remaining amount.

Contingent expenses: President. State appropriation-$5,000.

This item is approved in the sum of $2,000. I withhold my approval from the remaining amount.

President pro tempore. State appropriation-$20,000.

56 Pennsylvania Senate Bill Number 527, final passage, June 30, 1983. 57 Governor's Veto Message (July 11, 1983).

This item is approved in the sum of $8,000. I withhold my approval from the remaining amount.

Floor leader (B). State appropriation-$6,000.

This item is approved in the sum of $2,000. I withhold my approval from the remaining amount.

Floor leader (D). State appropriation—$6,000.

This item is approved in the sum of $2,000. I withhold my approval from the remaining amount.

The House was controlled by the other party. The Governor used his item veto to eliminate completely each item of appropriation for the House:

Section 252. House of Representatives. The following amounts are appropriated to the House of Representatives:

For the salaries, wages and all necessary expenses for the following purposes: Salaries of Representatives and extra compensation to the Speaker of the House of Representatives. State appropriation-7,475,000