What: All Issues : Making Government Work for Everyone, Not Just the Rich or Powerful : Curbing Presidential Power : Fair Minimum Wage Act of 2007 (H.R. 2), Sen. Judd Gregg (R-N.H.) amendment to require Congress to immediately reconsider individual items in spending bills that the president wants to rescind without vetoing the entire legislation/Motion to invoke cloture (limit debate) (2007 senate Roll Call 22)
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Fair Minimum Wage Act of 2007 (H.R. 2), Sen. Judd Gregg (R-N.H.) amendment to require Congress to immediately reconsider individual items in spending bills that the president wants to rescind without vetoing the entire legislation/Motion to invoke cloture (limit debate)
senate Roll Call 22     Jan 24, 2007
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This vote was on an amendment by Sen. Judd Gregg (R-N.H.) to legislation that would raise the minimum wage and provide tax cuts to small businesses. Gregg's amendment would have required that both chambers of Congress give the president an up-or-down vote on up to four previously enacted spending bills a year that the executive branch sent back to Congress with specific items it wants deleted. Gregg previously tried to attach his amendment to a lobbying and ethics reform bill (see Roll Call 16).

In common parlance, what Gregg was attempting to give the president is known as line-item veto authority. But the Supreme Court struck down such authority as unconstitutional in the late 1990s. Gregg and many of his Republican colleagues believed that they found a way to adhere to the court's decision while still giving the president the power to reject one provision of legislation while signing the rest into law. The way the went about this was to give Congress the final say, although its critics still questioned whether it was an undesirable and perhaps unconstitutional infringement upon the legislative branch by the executive.

Gregg's amendment would require both the House and the Senate to consider and vote on the president's rescission of a spending bill within 13 days of receiving it. The president would have the authority to demand Congress consider his cancellation of specific provisions from previously enacted legislation four times a year.

This proposal differs from the one struck down by the Supreme Court in 1998 because it would require Congress to endorse the rescissions before they could take effect. Under the line-item veto rejected by the high court, the rescissions would have gone into effect unless a two-thirds majority of both chambers voted to override the president, a much higher hurdle.

Gregg said his proposal was designed to give the president the ability to demand Congress take a second look at items in spending bills he considers to be wasteful. The process of tucking provisions in spending bills that benefit a specific agency, program, institution or locale has come under increased scrutiny in recent years. Because Congress has failed to pass all of the spending bills that keep the government running by the end of the fiscal year for 24 of the past 25 years, usually what happens is that many or all of the spending bills are then rolled into one huge piece of legislation, numbering in the thousands of pages, easing the way for the addition of billions of dollars worth of pet projects by individual lawmakers, a process that has been criticized as "pork-barrel" spending. The pet projects are often known as "earmarks."

The rationale behind Gregg's amendment is to allow the president to essentially veto those earmarks without vetoing the whole bill by sending the bill back to Congress and demanding reconsideration of those specific proposals. Congress would then, by majority vote, have to vote on whether to reapprove those specific spending items. Gregg called this process "enhanced rescission" and emphatically denied that it was "line-item veto" authority. Critics of the originally line-item veto said it was blatantly unconstitutional because it gave the executive some of Congress' power to set spending priorities.

"In fact, this amendment has been drafted so it will be constitutional," Gregg said. "The proposal we are putting forward is what we call second look at waste."

"We will be able to say to the taxpayer: Yes, that bill may have been a $500 billion bill. Maybe there were some things in there that we shouldn't have done. We are going take a second look at it to make sure those things were not wasteful. We are going to pass the bill because we need to pass the bill to keep the Government going, but we will have a chance to take a second look," Gregg continued.

But critics have repeatedly pointed out that Congress should just shoulder its constitutional responsibility in full the first time around. There was no more vociferous critic than Sen. Robert Byrd (D-W.Va.)

For his part, Byrd refused to use any other language than calling it "line-item veto" authority. He said the subject was one of the "most serious of constitutional questions."

"The amendment would alter by statute the constitutional role of the President of the United States in the legislative process," Byrd said. "It would allow the President to sign a spending bill into law and then to strip from that bill any spending items he dislikes."

Byrd said the president, by forcing an additional vote by Congress on spending items, could hamstring the legislative branch and "impound the funding" until Congress is able to pass the legislation a second time.

"Such a proposal is a lethal aggrandizement of the chief executive's role in the legislative process," Byrd said. "It is a gross, colossal distortion of the congressional power of the purse. It is a dangerous, dangerous proposition, a wolf in sheep's clothing of fiscal responsibility."

This vote was on a motion to invoke cloture on Gregg's amendment. Cloture is the only procedure in the Senate that restricts the amount of time a bill may be considered. Successfully invoking cloture means that the measure under consideration will be brought to a final vote. Otherwise, one Senator could hold up the legislation by refusing to yield the floor, and act known as a filibuster. Under Senate rules, cloture requires three-fifths of the chamber, normally 60 votes.

Gregg's proposal was unable to find a majority of Senators to support it, far short of the three-fifths needed to invoke cloture, however. By a vote of 49-48, the Senate rejected the motion, and thus Gregg's amendment was in effect killed at least for now, as the threat of a filibuster prevented further consideration. All but one Republican voted with Gregg to invoke cloture, and all but one Democrat voted against the motion. Therefore, legislation to increase the minimum wage and enact tax breaks for small business went forward without a proposal that would give the president authority to require Congress to reconsider line-items in previously passed spending bills.

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