Center for American Progress

President’s ‘Line-Item Veto’ Is Weak Medicine

Originally published in Roll Call

The budget that President Bush sent to Congress last month requested $2.8 trillion in new spending authority for the fiscal year that begins Oct. 1. He is soon expected to increase that request by $50 billion to cover a larger portion of the coming year’s Iraq war costs. Assuming that Congress grants most or all of the money requested in the president’s budget, federal spending will have increased by $830 billion a year — more than 42 percent — since the 2001 budget that was in place when Bush took office.

On Wednesday, the president also asked Congress to provide him with special powers to strike items in Congressionally passed legislation that he disagrees with, in order to “help to limit spending.” It seems like an obvious question, but few people are raising it: If the president wants to control spending, why doesn’t he ask for less money?

This year, as in the past, Congress provided him with almost exactly the amount of spending that he requested. Yet since signing the final appropriations bill, he has once again sought record-breaking supplemental appropriations, this time totaling $91 billion. It would seem that if the White House is interested in instilling a new commitment to frugality, it would be more effective to exercise it at the beginning of the process than at the end.

But the argument that the new authority is needed to slow spending is no weaker than the argument the White House is putting forward — that it would help limit “spending that is not fully justified, is a low priority, or is earmarked to avoid the discipline of competitive or merit-based reviews.”

Anyone who has read accounts of the earmarks in the recent highway bill, who’s watched the explosion in of earmarking in the appropriation process or who knows of the recent criminal investigations involving Congressional earmarks has to wonder whether the practice isn’t completely out of control. But is what the White House is proposing an effective solution?

First of all, it is important to point out that the president’s proposal is not, as he claims, a “line-item veto.” It is in fact only a modest change in the existing authority of the president to propose to Congress what are known as “rescissions.” A rescission is simply a decision by Congress to reverse an earlier decision to spend money. The only new thing in the White House proposal is that Congress would be required to hold an up or down vote on the president’s recommendation within a given time period.

If the White House uses this authority in a targeted and restrained manner, it may stand a chance of eliminating a small percentage of earmarks, but that approach will achieve very little in savings. If the White House attacks a large portion of total earmarks, it will have little prospect for success and, thus, the likelihood of no savings at all.

But there is another problem with the proposal. The Constitution invests in Congress broad and complete authority over the passage of legislation. It does not limit the time period in which it can consider legislation or direct the content of any legislation that Congress wishes to consider.

Any statute that seeks to do that can be overturned by a subsequent statute. For instance, nothing in the legislation that the president is proposing would stop an appropriations bill or highway bill from containing a provision that would exempt it from the president’s new rescission authority — or from repealing the authority outright.

So while the proposal creates the appearance of action, it offers little to those who worry about the continued growth of earmarking. That does not mean that the president is powerless. The Constitution reserves certain powers for Congress, but also gives the president strong tools for influencing legislative outcomes.

The most significant of these tools is the veto, and this president has used the veto less than any president in 175 years. Why did he sign a highway bill containing $23 billion in earmarks in the first place? Why can’t the president demand before the appropriation cycle begins that earmarking in each of the bills be cut by a certain percentage from previous year levels if Congress wants his signature?

The issue raised by the president goes well beyond earmarking. If we are to spend the taxpayers’ money based on the “discipline of competitive or merit-based reviews” as he urges, then we need to take new steps in the executive branch as well as Congress.

Former Rep. Duke Cunningham (R-Calif.) used appropriations bills to “plus-up” programs that his contractor friends wanted to milk, but abuses of the competitive bidding requirements by the Bush administration also played a major role in the web of corruption that federal prosecutors have unraveled.

Last year, after the story of Cunningham’s overpriced home sale to a defense contractor made the papers, the Defense Department’s inspector general ruled that the mechanism by which the contracts were awarded was inappropriate and contrary to government procurement rules. But the IGs in Defense and across the government have not been able to turn back the tide of noncompetitive contracting that has extended from the purchase of oilfield services in Iraq to the acquisition and transport of trailers to Hurricane Katrina victims in Mississippi and Louisiana.

Two of the co-conspirators in the Cunningham case were able to bypass normal bidding procedures by having their companies approved for “blanket purchase agreements” by the General Services Administration.

That designation once allowed vendors to sell basic products such as paper clips, pencils or copy paper at a preset price approved by the GSA. But the “blanket purchase” loophole was stretched to the point that it permitted the Cunningham contractors to receive what amounted to sole-source contracts for tens of millions of dollars in products and services at prices that were in some instances many times the contractor’s cost. The huge profit margins this policy permitted were the reason this scandal involves the biggest bribes, by far, paid to a public official in the nation’s history.

These lax acquisition policies were not simply failings of low- level officials. They were official policy decisions from the top down. The director of the White House Office of Federal Procurement Policy, David Safavian, spoke to a Federal Acquisition Conference last summer — before he was indicted for lying to federal prosecutors about travel he had accepted from former lobbyist Jack Abramoff — and told the assembled procurement officers that “if something is close to the line, document it, but don’t shy away.” According to Government Executive magazine, Safavian “reminded the audience that if a contracting action is not forbidden by the Federal Acquisition Regulation, then it’s permissible.”

The president has identified an important issue. But it should be addressed by a comprehensive and effective strategy to subject all spending to “the discipline of competitive or merit-based reviews.” The “line-item veto” proposal he sent to Congress does not get us there.

Scott Lilly is a Senior Fellow at the Center for American Progress who writes and does research in wide range of areas including governance, federal budgeting, national security and the economy.

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Scott Lilly

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