able bills [or items?] passing than it is to wait until they do pass and then veto them." 27 An insistence upon the proper functioning of the budget system would render such an amendment superflous. President Taft indicated on different occasions his disapproval of an amendment authorizing the Executive to veto items or clauses in appropriation bills when he said: "If it is urged that the President should have the power to veto items in an appropriation bill to restrain legislative extravagance, the answer is that this is not the best way." 28 "The right way, as shown in England and other countries where expenditures have, of necessity, to be counted and proportioned to resources, is a budget, stated at the beginning of a session, which shows the sources first and then the possible expenditures." 29 "It is wiser to leave the remedy for the above to the action of the people in condemning at the polls the party which becomes responsible for such riders than to give, in such a powerful instrument, a temptation to its sinister use by a President eager for continued political success.' "30 Congress can, by its own rules, consolidate the functions now exercised by the Ways and Means and the Appropriations Committees. By requiring these committees to coordinate their activities, by insisting on a balancing of income and outgo, by demanding additional taxes whenever a bill proposes expenditures in excess of the budget estimates would be the best insurance against the passage of undesirable items in appropriation bills. Furthermore, Congress can, by its own rules, eliminate the practice of attaching riders to appropriation bills. "As early as 1837 the House of Representatives adopted a rule to the general effect that legislation changing existing law should not appear in appropriation bills." 31 In substance this same rule, with amendments and interpretation, continues to govern the House. The Senate has a similar rule, less rigidly adhered to. An insistence upon the strict application of this rule, except in a clear emergency, would eliminate riders. Such benefits can be obtained without a constitutional amendment. 7. It would be an uncertain grant of power.—The language of the usual amendments designed to confer on the President the power to veto items or provisions in appropriation bills has been given varying interpretations in the several States. Seemingly an authorization "to disapprove of any item of any bill making appropriations of money, embracing distinct items" would require little judicial construction. Yet such phrases have given rise to no little litigation in several States.32 For example, the Pennsylvania Supreme Court has construed the expression "to disapprove of any item" to include the right "to reduce any item." In that case 33 the Pennsylvania Legislature had appropriated $5,500,000 for school purposes for each of 2 years. The Governor approved of the object of the bill, but indicated his disapproval of $500,000 of said appropriation; thereby reducing the biennial appropriation from $11 million to $10 million. He merely reduced the entire appropriation one-eleventh. The court held that such proceedings were proper under an authorization "to disapprove of any item." It is conceivable that the Supreme Court of the United States might place a similar interpretation on language of like import. In such an event, the President could modify legislative appropriations almost at will; he could delete some items; he could reduce others; he could approve the remainder. This would in effect shift control of the purse strings of the Government from Congress to the Executive. In Again one might assume that the word "item" would result in no ambiguity. However, the State courts have disagreed radically in their interpretation of what constitutes an "item" in an appropriation bill. A few of the problems which can arise in this connection will be apparent if one analyzes an actual appropriation bill, for example the Interior Department Appropriation Act for 1937.34 that act Congress authorized, "in all," "not to exceed" $2,606,475 for 19 nonreservation Indian boarding schools as follows: "Phoenix, Ariz.: For 475 pupils, including not to exceed $1,500 for printing and issuing school paper, $168,625; for pay of superintendent, drayage, and general repairs and improvements, $25,000; in all $193,625; 31 Chamber of Commerce, op. cit., p. 15. 32 For a discussion of these conflicting decisions on item veto provisions in the State constitutions see article by James D. Barnett, "The Executive Control of the Legislature," American Law Review, vol. 41 (1907), p. 384 et seq.; and annotations in 55 L. R. A. 882, and 35 A. L. R. 600. 33 Com. ex rel. Elkin v. Barnett, 199 Pa. 161; 55 L. R. A. 882. Public No. 741, 74th Cong. "Sherman Institute, Riverside, Calif.: For 650 pupils," etc.35 These sums were part of the appropriation made for the Bureau of Indian Affairs, a unit of the Department of the Interior. Under an amendment authorizing the President to approve or disapprove of "items" in an appropriation bill, could the President have vetoed the appropriation of $1,500 for printing at Phoenix or would he have been obliged to veto the entire sum of $193,625 allocated to the Phoenix school, or would it have been necessary to veto the entire "in all" appropriation of $2,606,475 for the nonreservation boarding schools? Had Congress provided an “in all” appropriation of $30,000,000 for the Bureau of Indian Affairs and then proceeded to enumerate the schools (as was done in the act under discussion), would it have been necessary to veto the entire appropriation of the Bureau in order to disapprove of the $1,500 for printing at Phoenix? In other words, what appropriations in this bill are "items"? The minute sums included under such clauses as "provided that not to exceed" or the "in all" appropriation for particular units? The State courts, when confronted with this problem, have arrived at irreconcilable conclusions. For example, in the case of State University v. Trapp ((1911), 28 Okla. 83), the Oklahoma court "held that a bill making an appropriation for the State university, and apportioning various sums out of the appropriation for specific purposes in connection with the operation of the university, embraced only a single item, and that a constitutional provision permitting the Governor to disapprove any item in an appropriation bill embracing distinct items did not apply to a bill containing only a single item, with directions as to how that item should be expended, so did not apply to the Governor's attempt to cut down a few of the sums apportioned out of the single item of appropriation." 38 But in the case of People ex rel. State Bd. v. Brady ((1917), 277 ÎÎ. 124), "where an act making an appropriation for the State board of agriculture the State beekeepers' association, and other named associations, appropriated to the board of agriculture a gross sum, 'to be used as follows,' enumerating 44 separate purposes, opposite each of which a specific amount was set down, it was held that the gross amount was not to be regarded as a single item, embracing what followed as directions as to how it should be used; but that each of the following items constituted an 'item,'***"' 37 If the Supreme Court of the United States were to follow the Oklahoma decision, it would be necessary for the President to veto the "in all" item of $2,606,475 appropriation for 19 schools should he desire to eliminate the $1,500 printing item for Phoenix. In such an event the proposed amendment would be a nullity. It would be no more effective than the present general veto provision. Congress could provide an “in all" appropriation of $600,000,000 for the Department of the Army. Under such a construction the grand total for each department would constitute the "item" and the further allocations would constitute "directions" or "regulations" governing the expenditure of said "item." On the other hand, were the Supreme Court to follow the Illinois conception of what constitutes as "item" it would be impossible to enact dependent or conditional appropriations. "To allow a single bill entire, inseparable, relating to one thing, containing several provisions, all complementary of each other and constituting one whole [just as the 19 nonreservation boarding schools constitutes an integrated educational program for Indians], to be picked to pieces and some of the pieces approved and others vetoed, is to divide the indivisible, to make one of several, to distort and pervert legislative action, and, by veto, make a two-thirds vote necessary to preserve what a majority passed allowable as to the entire bill, but inapplicable to a unit composed of divers complementary parts, the whole passed because of each.38 Such an interpretation would, furthermore, furnish the President with almost unlimited power. In the example cited above, the appropriation for the Phoenix school might be vetoed merely because the Senators or Representatives from Arizona had disagreed with the President on World Court or bonus issues. When one considers that four of the big appropriation bills of the last session were not approved by the President until after Congress had adjourned, one can appreciate the danger a Congressman would run by incurring the displeasure of the President. Every single individual item of interest to his particular district or State could be deleted, and if Congress had adjourned there would be no opportunity to restore the vetoed items. California has worked out a different rule. The Governor of California submitted to the legislature a budget and an appropriation bill covering the proposed 35 Public No. 741. 74th Cong., pp. 20-21. 26 35 A. L. R. 604. 87 35 A. L. R. 604. State er rel. Teachers and Officers v. Holder (1898) 76 Miss. 158, 182. biennium expenditures. Among other items was that of the department of industrial relations in the total sum of $1,625,185, with specific provisions that the sums of $328,000 and $20,000 thereof should be expended for certain purposes designated by the legislature. The Governor signed the bill but appended a statement of the items he objected to and the reasons therefor. The specific items of $328,000 and $20,000 were vetoed and the general sum of $1,625,185 was reduced to $1,397,185, a net reduction of $228,000. The legislature failed to override the Governor's action. The plaintiff, director of the department, contended in Reardon v. Riley 39 that the sum appropriated to this department was the general sum as reduced by the Governor (i. e., $1,397,185). The Comptroller, defendant in the action, claimed that, when the Governor eliminated the two specific items, he ipso facto reduced the general appropriation by the sum of the eliminated items, leaving as the sum appropriated to the department $1,277,185, which is $120,000 less than the plaintiff contends is allotted to the department. The Supreme Court ruled that the Governor may reduce the general sum appropriated by a sum less than the aggregate of the eliminated items. The decision was affirmed in a subsequent case Railroad Commission v. Riley 40 in which the Governor eliminated an item of $34,160 at the same time leaving intact the general sum appropriated for the commission. The court held the action of the Governor eliminated the specific item but did not affect the general appropriation. The fact that the Governor in the case of Reardon v. Riley reduced the general appropriation, while in this case he merely eliminated the specific item leaving the general sum intact, was not considered by the court to be a distinguishing feature. Operating under the California rule, a President might veto the $1,500 item for printing and still leave the sum for the Phoenix school intact. "These objections to the proposition are fatal to it. They are apparent on the surface of the question; but he knows but little of human affairs and has but little experience of the unseen and invisible consequences of political empiricism, who does not shrink from trying this experiment, which, once adopted cannot be recalled; and the operation of which in the machinery of the Government is concealed from our knowledge; especially when the proposition disturbs the balance between executive and legislative power over money, and vests in the former a controlling authority over the action of the latter, unknown in our constitutional history and dangerous to the equality of right and privilege, or burden and benefit of the members of our Union." 41 39 Reardon v. Riley (1938) 10 Cal. (2d) 531, 76 Pac. (2d) 101. 40 Railroad Commission v. Riley (1938) 96 Cal. 254, 82 Pac. (2d) 395. 4 H. Rep. No. 1879, 49th Cong., 1st sess., p. 3. O HEARINGS BEFORE THE SUBCOMMITTEE ON PRIVILEGES AND ELECTIONS OF THE COMMITTEE ON RULES AND ADMINISTRATION FIRST SESSION ON THE CONTEST OF PATRICK J. HURLEY v. DENNIS CHAVEZ FOR A SEAT IN THE UNITED STATES SENATE FROM THE STATE OF NEW MEXICO 40082 APRIL 27, MAY 1, 7, 11, 27, AND AUGUST 12, 1953 Printed for the use of the Committee on Rules and Administration UNITED STATES WASHINGTON: 1953 COMMITTEE ON RULES AND ADMINISTRATION WILLIAM E. JENNER, Indiana, Chairman FRANK CARLSON, Kansas CARL HAYDEN, Arizona THEODORE FRANCIS GREEN, Rhode Island THOMAS C. HENNINGS, JR., Missouri W. F. BOOK WALTER, Chief Olerk SUBCOMMITTEE ON PRIVILEGES AND ELECTIONS FRANK A. BARRETT, Wyoming, Chairman CHARLES E. POTTER, Michigan THOMAS C. HENNINGS, JR., Missouri WELLFORD H. WARE, Chief Counsel L. STANLEY KEMP, Chief Investigator II |