Several months ago I wrote about how Congress can check executive power. Of course this checking power works both ways in that the President and the Judiciary have their own weapons to check Congressional power.
The past several weeks in Congress have led me to want to revisit this issue. Events in Congress have, to casual observers, appeared completely crazy. Almost every major bill being debated in Congress at this time has either been vetoed by the President or will be vetoed. Congress has spent weeks debating bills they know the President will veto. They debate and vote none-the-less. The use of the veto and how Congress deals with it is my topic this month and it is a very timely topic indeed.
The President has one very significant tool in his war chest to deal with bills he does not like that come from Congress. It is the Presidential veto. He merely notes on the bill his disapproval and sends it back to Congress. If both chambers cannot come up with a two-thirds majority to over-ride the veto, the bill fails. The veto is not absolute, but the wide partisan, geographic, and ideological diversity in Congress makes over-rides of vetoes fairly rare.
The veto is an inherently important device and is a creature of the three independent branches of government here in the United States. Parliamentary systems have no need of a veto, as the executive and legislative branches are one. Note: I am omitting royalty, but royal vetoes are long gone in Europe. The President is independent of Congress and vice versa. Congress must pass legislation, but the President must also sign it and if he is so opposed to the measure, he vetoes it. Over-riding vetoes requires a large majority – 2/3rds of the 100 Senators and 2/3rds of the 435 Representatives. A veto has been over-ridden only about 100 times since the 18th Century.
The veto is also a good way to illustrate the powers of the three branches of government: The President can veto a bill. The Supreme Court can declare a bill unconstitutional. And for a bill to become law, it must have the majority consent of both chambers of Congress.
The opinion of the President therefore is always an important factor when Congress is deliberating on a bill. The President will have to sign it and normally his opinions are factored in to negotiating during Congressional deliberations. Sometimes the members of the President’s party will play a proxy role for the President in negotiations. If you are in the minority in Congress, you do have some leverage with legislation if the President is behind you, too.
Another factor playing into the how things develop when a veto threat is issued revolves around the Senate. I have mentioned before that the Senate is a different place from the House. Its rules are different, its atmosphere is different and the issues causing a veto can be compromised in a different manner. In the Senate, to stop debate and vote on most measures, an agreement of 60 members is required; this is 10 more than a majority. The Senate has had razor thin majorities for the past 20 years, so a 10-vote majority will require some compromises to even get a vote in the Senate.
In the past few months, President Bush has unleashed a dozen messages to Congress announcing his intention to veto pretty much everything of substance the Congress is debating. It would seem like this would be complete deadlock or a crisis in government. It is not. It is precisely how the system was created and it has worked quite well over the past several hundred years, since a veto forces the two branches of government to find a compromise. If Congress really wants to do something and the President opposes some elements in the legislation, compromises can and will be made. Compromise lies at the heart of everything in Congress, even without Presidential vetoes as compromises need to be made within parties, between regional groups of members and even between a few stubborn members. By the time a bill finally comes to vote, hopefully all the compromising has been done. Adding the President to the equation makes things slow down, but is certainly not foreign to the legislative process.
Sometimes the process can get ugly however. During the Clinton administration, a dispute between the Republican Congress and the President on the appropriations bills led to a government shutdown. Non-essential government employees were sent home since the money wasn’t appropriated to pay them. Compromise prevailed and the employees were later paid.
The appropriations bills are often the tempting targets for a Presidential veto or for Congress to force a Presidential veto. Appropriations bills have to pass. But as we have seen in the past, some mechanism will be found to compromise. Last year, the appropriations compromise was to pass no appropriations bills (except Defense) and simply pass a bill that funded the government at roughly the same level as the year before (this is called a Continuing Resolution). It is very cumbersome for the accountants and for planning within Federal agencies, but it was a compromise, with which both sides could live with.
As stated above, the veto is not a common device, however. In fact, President Bush, prior to this year, vetoed only one bill during his first 6 years in office. There is, however, one new element that is present that wasn’t present in his first six years: the opposition party now controls both Houses of Congress. This means there are no internal checks within the chambers to stop legislation before it goes to the President.
Divided government is not a new situation and is, in fact, it is fairly common. President Clinton, George HW Bush, Reagan, Ford, Nixon and Eisenhower all had to deal with at least partial opposition Congresses. Nixon and Ford had overwhelming Democratic majorities in both Houses to deal with that could even over-ride vetoes, yet vetoes rarely happened.
The Democrats in Congress had been in the minority for a decade, so when they returned to power in 2007, they typically sought to rein in the President on issues that concerned them. As a result, we are seeing more vetoes and threats of vetoes. I view the whole process like a stage play or some television drama. The process has to work its way (all the way to a veto and veto over-ride sometimes) in order for a compromise to take shape. A passionate commitment to a specific piece of legislation is hardly passionate if you compromise at the start. Your supporters probably would throw you out the window. But the hurly burly of Congressional legislating, combined with the strong arm of the Presidential veto is drama enough to temper the passion and demonstrate to political supporters that compromise is the only way. In other words, the system needs to demonstrate the need for compromise and the veto is one way it does so.
Passionate issues are all over Congress lately. The Iraq War, Children’s Health Insurance, and Stem Cell Research. There are also issues that are hardly passion -sensitive, such as the Farm Bill or The Water Resources and Development Act (WRDA). If you were a Congressperson from a farm state, you would be passionate about the Farm Bill. And the WRDA bill was so full of goodies to constituents on both sides of the aisle, that members from both parties passionately joined together to override President Bush’s veto.
Before the end of year, all the passion will be compromised, as it should be in a democracy, although compromise is not pleasant for anyone. In fact, I rarely see examples of both parties completely satisfied with a compromise on legislation. This occasional lingering “let down” is inherent to our legislative process. It is how the system works, the essence of a functioning democracy. Of course it could break down and passion could trump compromise (which happened once and resulted in a Civil War). That experience, plus our genuine ability to live with compromise has suited us well so far. The veto in some cases forces the necessary compromise.