Restoring balance through repeal

Posted: Sep 05, 2004 12:00 AM

For a while there the presidential race seemed pleasantly nostalgic. We read about where the Kerry bus stopped, where Bush spoke, which towns the two almost met in. You felt like breaking out the apple pie and singing a few patriotic anthems.

Then came the attacks upon past alleged heroisms and prevarications, and things got ugly. But hidden between the fluff and the tough scruff, one can actually find issues. Policy proposals. Ideas, even.

John Kerry, for instance, has called for resurrecting an old notion. "I'm going to resubmit a line-item veto structure that will pass constitutional muster," he said, "and get the waste and the pork and the special interest deals out of the system. . . ." After the line-item veto was passed in 1996, and after only a year in the hands of a willing president, the Supreme Court struck it down. Kerry suggests that a tricky procedural ploy will get around the Court's objection.

Earlier this year our sitting president, George W. Bush, also advocated the idea. But unlike Kerry, President Bush is not a lawmaker (well, not exactly); his policy proposals have to be taken up by someone in Congress to get the ball rolling. Kerry is a senator, and if he really thought enough of his version of the line-item veto, he could have started the ball rolling long ago.

So why hasn't he?

Is it a result of narrow partisanship? Though the 1996 Republican Congress gave a Democratic president the power of a line-item veto, could it be that this Democratic senator doesn't want his Republican president to have the power he wishes only for himself?

Only Kerry knows.

But let's give Kerry the benefit of the doubt: perhaps he realizes how hopeless a line-item veto would be in 2004's Republican-run Congresss. Those in power don't want their perks (and pork) taken away. And if ever there was a Congress run on venality and logrolling, today's Congress is it. Pork is king, and spending precisely what John Kerry says it is: out of control.

Why and Why Not

A line-item veto would rein in Congress's proven disregard for fiscal sanity. In the single year in which Bill Clinton exercised the line-item veto, he used this veto power 82 times, for a $2 billion savings. Had he been able to continue to use it, who knows how much of a deterrent to congressional extravagance it might have played?

But the Judicial Branch worried about the balance of powers, and took the tool away from the president.

Now, anyone with respect for the idea of limited government is likely to be sympathetic to the Court's worries. The U.S. Constitution was devised to limit government growth by separating powers. Fiddling with this balance, and giving the Executive Branch new powers, could very well have serious long-term effects.

We should face up to the obvious truth, though: the success of the Constitution as a barrier to government growth was short-lived. Over time taxing power and debt-creation powers increased, and Congress proved itself unable to show restraint. Over and over again.

Something new and radical is needed. Unfortunately, most of the ideas suggested, such as a balanced budget amendment, give birth to a myriad of devils once the details are made clear. Only term limits on legislators can be made simple enough to work. And term limits would have numerous beneficial effects, including restraining the habit of pork. To top it off, term limits would shift power back to the voters, but not away from Congress. The balance of powers ? the original idea of the Constitution ? would remain intact.

The Simplest Alternative

Still, Congress's spendthrift ways are so deeply rooted, something more direct and more immediate also seems in order. Can't something like a line-item veto be made to work?

After all, the Supreme Court did not strike down the idea of a line-item veto, merely the 1996 formulation of it. So perhaps we should put aside for a few years the deeper balance-of-power issue amongst the three branches of government to allow this one reform a chance to bring back some balance to budgeting. Think of the line-item veto as a necessary check on the powers given to the whole federal government at the expense of its citizens.

But there's another way of looking at the issue. As Stephen Moore has argued, the line-item veto would not give the presidency new powers so much as it would merely give back a portion of the powers that the office traditionally had until Congress took them away in 1974. From Thomas Jefferson to Richard Nixon, one of the powers regularly exercised by presidents was that of impoundment:

Jefferson first employed this power to refuse to spend appropriated funds in 1801 when he impounded $50,000 for Navy gunboats. The founders believed that the President, as the head of the executive branch and therefore responsible for executing the laws and spending taxpayer funds judiciously, had a unilateral authority not to spend money appropriated by the Congress if that spending was unnecessary.

And there's a lot of spending that's unecessary. If Bill Clinton can find it, anyone can.

Kill a Law, Save a Nation

While any line-item veto that John Kerry or George W. Bush proposes will have to navigate judicial review, the same cannot be said for impoundment. Congress, in post-Watergate fury, took away from the president a time-honored practice. So Congress, today, in shame at its own inability to control spending, might simply repeal the 1974 Budget Act that took away the power of impoundment, and restore to the presidency the office's traditional powers.

It would be that simple. No new law. Just repeal a bad old one.

And the appeal of this repeal could be much broader. That same act of Congress has also allowed our representatives to lie about spending ever since. It instituted a form of accounting that sneaks the expectation of growth into the baseline, so now politicians can call any decrease in proposed spending increases a "budget cut." There are many acts of Congress worthy of repeal ? a point I often make in my Common Sense e-letter ? but the "Congressional Budget and Impoundment Control Act of 1974" is surely at the top of the list.

Of course, that's one idea we are unlikely to hear in the current presidential debate. Perhaps, after the election, when the fury has died down and either John Kerry or George W. Bush is firmly in office, the American people can shame their representatives into doing this one little thing for them.

And then we can break out the apple pie and sing the anthems in earnest.