| No. 43 | October 27, 1997 |
Calendar No. 222
Reported from the Senate Appropriations Committee on October 23, 1997, with an amendment, by a vote of 26-1, (Senator Bumpers voted in the negative; there was no proxy vote for Senator Harkin). No written report.
[Note: in fact, not all 38 canceled projects met these criteria, and President Clinton now admits he canceled some of the projects -- but he has not admitted how many -- because of inaccurate data. See p. 3 of this Notice.]
The Line-Item Veto Act
The Line Item Veto Act [P.L. 104-130, 2 USCA 691 et seq. (1997)] was passed by the 104th Congress. The Act provides the President with the authority to cancel in whole any:
- Dollar amount of discretionary budget authority
- Item of new direct spending, or
- Limited tax benefit
President's Special Veto Message. When a President exercises that authority, he has five days (Sundays excluded) to send a special veto message to Congress [691]. That message must specify that the President has determined that the cancellation will "reduce the federal budget deficit; not impair any essential Government functions; and not harm the national interest." Further, it must specify the dollar amounts involved, the reasons for the veto, its expected economic impact, and more [691a]. Vetoed items are canceled as soon as Congress receives the message [691b]. A veto message is sent to both the Senate and the House of Representatives and is referred to the Budget Committees and the relevant authorizing or appropriating committees.
Introduction of a Disapproval Bill in the Senate. To qualify for expedited consideration, a bill disapproving the President's veto must be introduced within five days of session after receiving the President's message [691d(c)]. Generally, that bill must be acted on within 30 days of session [691d(b)]. The disapproval bill must refer exclusively to the reference numbers of the President's vetoes, but may contain any combination of his cancellations [see 691e(6)]. A disapproval bill is referred to the relevant committee which must report it within seven days of session but may amend it. If the committee fails to act, the bill is discharged automatically [691d(e)(1)]. (If a bill is received from the House, it goes on the Senate Calendar and is not referred to a committee [691d(e)(2)].)
Disapproval Bill on the Senate Floor. A motion to proceed to consideration of a disapproval bill is not debatable [691d(e)(5)]. Amendments are in order only if they strike a reference number of a cancellation or insert a reference number that is in the President's message but not the disapproval bill [691d(e)(4)(A)]. However, the rule limiting amendments may be waived by an affirmative vote of three-fifths of Senators [691d(e)(4)(B)]. Generally, Senate consideration of a disapproval bill is limited to no more than 10 hours, equally divided, but may be expanded to 15 hours [691d(e)(6)]. Debate on any amendment is limited to one hour [691d(e)(7)]. A motion to recommit is not in order [691d(e)(8)]. If the Senate is considering a message from the House on a disapproval bill, consideration is limited to four hours with debate on motions and amendments limited to 30 minutes, equally divided [691d(e)(10)]. Generally, the Senate will consider only one disapproval bill for each veto message [691d(e)(3)].
Disapproval Bill in Conference. If a disapproval bill is sent to a conference, the scope of the conference is limited: The conferees must include every cancellation where the two houses agreed but may not include any cancellation that neither house agreed to [691d(f)(4)]. In the Senate, consideration of a conference report is limited to no more than four hours, equally divided. A motion to recommit the conference report is not in order [691d(f)(3)].
Disapproval Bill Must be Signed. Once Congress has approved a conference report on a disapproval bill, it must be presented to the President. The President's vetoes/cancellations are not disapproved unless the bill becomes law, and it becomes law with the President's signature, after 10 days without his signature, or over his veto. [This is provided for not in the Act, but by Article I of the U.S. Constitution.]
Military Construction Items Canceled
On October 6, 1997, the President exercised his new line item veto authority by canceling 38 projects in 24 states from the $9.2 billion 1998 Military Construction Appropriations Bill (P.L. 105-45). Canceling these projects yields $287 million.
In response to the President's action, and in conformance with the Line Item Veto Act, Appropriations Chairman Stevens introduced S. 1292, a disapproval bill, on October 6, 1997. The original bill, cosponsored by 36 Senators, disapproved the President's cancellation of 36 of the 38 vetoed projects (one project each from South Dakota and Wisconsin was excluded at the request of those States' Senators). During mark-up of S. 1292, the bill was amended to exclude two projects from Indiana. So the bill that will be brought to the Senate floor disapproves the President's action on 34 military construction projects.
On October 7, 1997, Representatives Ed Whitfield (R-KY) and Joe Skeen (R-NM) each introduced House bills to disapprove all 38 projects in the President's line item veto of the Military Construction Appropriations Bill.
President Clinton's Reasons
In his special veto message [H. Doc. 105-147], the President offered the following three reasons for each of the canceled items. According to the veto message, the project is being canceled because:
- "it was not requested in the President's FY 1998 Budget"
- "it would not substantially improve the quality of life of military service members and their families"
- "architectural and engineering design of this project has not started, making it unlikely that these funds can be used for construction during FY 1998"
In clarifying the final criteria, Franklin Raines, Director of the Office of Management and Budget claimed that, "Ordinarily, a project won't be included by the Defense Department in the budget unless 35 percent of the design work has been completed. In this case, these projects had zero completed, so they would never have qualified in the normal military process to be on the priority list" [White House Briefing on Line-Item Veto, 10/6/97]. However, this information was not wholly accurate.
Senate Committee Action
On October 6, Chairman Stevens held a meeting to review the status of the 38 vetoed projects in the military's future budget plans and determine whether the projects could be executed in FY 1998. Senator Stevens emphasized that the meeting was convened to seek only factual information about the projects, and that none of the Pentagon witnesses were expected to defend any project or the President's decision, but were free to do so.
The three witnesses included: Major General Clair F. Gill, Director of the Army Budget; Major General Eugene Lupia, Air Force Civil Engineer; and Rear Admiral F. Amerault, USN, Director of Navy Budget/Fiscal Management.
Throughout the hearing, Senators asked the witnesses whether particular vetoed projects met the criteria as set out by the President. Most questions centered on the issue of whether each project could be executed in FY 1998 and if that project were mission essential. In every case, the answers were affirmative, confirming Senator Steven's statement that the White House's decision conflicted with the military needs of the armed forces. However, the meeting revealed that there were only two programs where no ["zero"] design work had been initiated.
Administration Admits Error
In trying to explain this discrepancy, Deputy Defense Secretary John Hamre wrote in a letter to Chairman Stevens that some of the information upon which the Administration made their decisions "may have been outdated" [Washington Post, 10/10/97]. For example, according to Congressional Quarterly, the Army reported that no design work had been done on a Fort Campbell, Ky, project, when in fact the design was 90 percent complete. [10/25/97, p. 2623]
Subsequently, on Thursday, October 23, Raines admitted that several projects were mistakenly crossed out of the military construction bill. In a letter to Senator Stevens, Raines said, "We are committed to working with Congress to restore funding for those projects that were canceled as a result of inaccuracies in the data provided by the Department of Defense" [Washington Post, 10/23/97]. However, during the October 23rd markup of S. 1292, Senator Stevens made clear his intention to move to consideration of the bill on the Senate floor the next week. It is likely the bill could be considered on the floor Wednesday of this week.
Other Considerations
Furthermore, during the meeting with the Service chiefs, some Senators stated that the President vetoed some programs that would significantly improve the day-to-day working conditions of our men and women in uniform, which could be argued as adding to a soldier's quality of life. One such program highlighted by Military Construction Subcommittee Chairman Senator Conrad Burns was the dining facility at Malstrom Air Force Base in Montana. This building was originally built for another purpose and only later changed to a dining facility whose serving areas would be borderline on a health inspection. Yet, the President line item vetoed the money required to upgrade this facility.
ADMINISTRATION POSITIONIn a letter to Chairman Stevens dated October 23, 1997, OMB Director Franklin Raines said the Administration strongly opposes S. 1292 and if it were sent to the White House in its present form, the President's senior advisors would recommend a veto.
[Attachment: chart]