Additional comments on the President's veto powers
Preserving executive independence
Two functions of veto power
The veto power has two functions, a) preserving the executive as a power separate from the legislature, and b) providing the citizens with a defense against pressure groups in the legislature. This second function, which has been expanded, effectively sets the President up as the third house of the legislature.
The veto power is indispensable when it comes to preserving the President's independence. Since time immemorial the legislatures of the world has tried to put themselves in the place of the executive. There is not necessarily anything sinister in this. On the contrary, this was how modern democracy came into existence. Even today, these encroachments come about not necessarily because of the legislature's lust for power as such, but as a natural function of their interest in politics and their attempts to guide society in the perceived, most advantageous direction. It is a bias built into the system. It cannot be prevented, but only alleviated through other, if possible equally strong, counteracting forces.
By giving the President a veto power, he is given the means with which to defend himself and his office from being reduced to a pawn of the legislature, and through the ordinary course of human nature, i.e. wanting to preserve his own independence and importance, he can fairly safely be relied on to exercise this power.
The value of flexibility
When the veto power was introduced into the presidency through the U.S. Constitution it was limited in comparison to the British monarch's veto which was the reference known to the founders. Instead of having an absolute veto, like the king of Great Britain, the President was given a limited veto that could be overturned by a two thirds' vote in each house of congress. The framers of the American Constitution believed that a limited veto would be put to more active use than an absolute veto, and by being put to more active use it would be in reality if not nominally, more effective. By comparing subsequent political developments in Britain and the U.S., we can see that this belief in a limited veto was justified.
A digression on the value of flexibility in a European context
The lesson taught us by the history of the veto power is also applicable to the current state of affairs in the European Community, and ought to be a cause for concern. Today, if a decision of the community is perceived to be contrary to the vital national interests of one of the members, that country may veto the decision. In effect, each member government has an absolute veto on Community decisions. However, since this veto is absolute, and since it is binding on all members its function is very much like that of the traditional veto powers of the British sovereign.
Is it going to go the way of the British royal veto ? Yes, this is the most likely outcome. It is fairly obvious to any observer, that there is an increasing reluctance on the part of member countries to exercise their veto powers. More and more the veto power itself is perceived only as a bargaining tool. This is the first step. After a little while, the bargaining tool loses its efficacy however, as the implied threat becomes less and less credible. (Perhaps this is already taking place.) Finally the power itself loses its practical value as the institution rendering the veto is overwhelmed (by Parliament in the case of the British King, by the European commission in the case of the national member countries of the European Community).
The European community veto power can only be sustained, on two conditions:
Introducing flexibility in presidential vetoes
Returning to the confederate President; Experience has shown that even more flexibility than that accorded the American President is needed. By bundling together ever more issues in one bill, Congress has made it harder and harder for the U.S. President to exercise his veto powers effectively. He cannot distinguish between the parts he likes and the parts that he doesn't like. He has to approve or disapprove the bill in its totality. What makes it even harder, is that Congress has tended to insert especially objectionable parts into bills (continuing resolutions and debt ceiling legislation) that the President cannot veto unless he wants the government to grind to a complete stop. For natural reasons, the President is reluctant to force the issue by shutting down government, and so there has been a steady erosion in executive power, in the same way, but at a slower pace, than in Britain. If a confederate President is to preserve his independence, he has to be given more flexible powers than the U.S. President.
Line item veto
One option, much discussed in the U.S. and already conferred on many American governors, is the line item veto. This is the ability to veto one or more lines or parts of a bill. The line item veto enables the President to defend himself against the bundling of issues, and effectively restores to him the veto power lost through such tactics. In continuing resolution bills, he can veto the objectionable parts without stopping government.
Constitutional sunset clause
Another method of strengthening the veto power is by giving the President a fresh opportunity from time to time, or rather by giving new Presidents the opportunity of correcting the mistakes or compromises of previous Presidents. (See Section 10.4 Sunset clause.)
Even with a line item veto, no President will veto all items encroaching on presidential powers. Most Presidents have their own political program, and will be willing to make sacrifices to ensure the goodwill of the legislature, or even to make an outright compromise with the legislature to ensure the passage of appropriate legislation. During the term of a single President, this is not a problem. But over time, it means that legislation is a one way street, as it piles up and whether this happens fast or slow, it steadily erodes the powers of the executive at the expense of the legislature. If allowed to pile up indefinitely, the executive is again reduced to a pawn.
The veto as a defense against pressure groups
The legislature as a collection of special interests
The other reason, and perhaps the most important reason for granting the President veto powers is to provide the citizens with a defense against special interests. Since the President is elected by the whole population, he is much more vulnerable to charges of favoritism than individual representatives and senators. In fact, representatives and senators, are in many instances expected to work in favor of special interests. They are all elected from geographical districts, and they are expected to defend the interests of those districts in the legislature. Theirs are the interests of the special interests.
The President, on the other hand, cannot get elected or re-elected if he consistently favors one region or one special interest. By the way he is chosen, he has to be more aware of the interests of the whole rather than the parts. Although imperfect, the President on a day to day basis, is expected to do to the smaller issues, what the people can do to the larger issues through the instruments of Initiative and Referendum. He is the representative of the whole people and not its constituent parts.
Special interests and appropriations
In addition to strengthened veto powers, the author also proposes strengthened powers to deal with the accumulated effects of special interests in the field of appropriations, i.e. the tendency for governments to run ever increasing budgetary deficits. This is a special problem, not separate from those of legislation generally, but sufficiently serious and obvious to warrant special attention. Several sections and subsections deal with this issue.
Most obviously; there has to be a yearly confederate budget, it has to be honest, and it has to be balanced.
The Confederation may only run a deficit if it is approved by a two-thirds majority of both houses of Congress. This last condition gives a way out for those special circumstances when a deficit may be appropriate, but it makes the decision subject to a Presidential veto that can only be overridden by a five sixths majority.
Secondly, the President is given the power to enforce the balanced budget requirement through reducing or eliminating appropriations. This is a less crude method than the line item veto. By the reasoning above, this ought to make it more effective. It has the added advantage that it can be employed as events unfold during the fiscal year. If the budget has underestimated outlays, the President may reduce or eliminate non-essential appropriations.
Appropriations may of course, be reinstated by Congress, but they must then either be compensated for by reductions elsewhere, or be reinstated by a two thirds majority, and possibly subjected to the President's five sixths majority veto power.
Reconciling the case for a unitary independent executive with the Swiss experience
This book advocates the case of a unitary independent executive, a powerful elected President. How then, it might be asked, explain the success of a plural executive like the one found in Switzerland ? The explanation is simple enough. The success of the Swiss system in all probability does not rest with its plural executive, but with its system of referendums and initiatives. If we look to other countries or organizations, Yugoslavia for instance, or the European Community or the UN Security Council, we see how useless plural executives become in times of crisis.
Switzerland of course, has not had a crisis of similar nature since its introduction of the consensus executive. Also, it was only after the introduction of the referendum and the initiative that the current Swiss non-confrontational system of involving all major parties in the executive evolved.
In fact the development of the plural executive in Switzerland, points to another negative aspect of this system beyond its inability for effective action in times of crisis.
Around the turn of the century, Switzerland, in the eyes of the parliamentary majority, became almost ungovernable. Every time a politically controversial proposal was put to the parliament, the opposition would start a petition drive and have the issue referred to the voters. The solution to this problem turned out to be to include the opposition in the executive. It was hoped, and this has turned out to be true, that by giving the opposition a stake in government, they would "keep quiet".
The problem with this system is that it limits the choices of the voters. In today's Switzerland the opposition's teeth has been pulled so effectively that they no longer, in many circumstances, act as an effective opposition. Thus there is even in this country, a tendency of a division between "them" (the federal politicians) and "us" (the rest of the population). Typically enough, in recent years there have been a surge in initiatives and referendums, but this time not sponsored by the minority parties in government, but by outside groups and single action committees. The real opposition has thus been transferred, as in so many other countries, from groups within the Parliament, to groups somewhat opposed to and outside the normal political process.
It is a tribute to the strength of the initiative and referendum processes that in spite of these developments, Switzerland still has the most responsive government in Europe. But it ought not be a goal in itself to provide our political agents, the politicians, the means whereby they will be able to insulate themselves, if only to a limited extent, from the opinions of the public. A unitary independent executive will be able to preserve the diversity of opinions within the central government, thereby facilitating rather than limiting the political choice of the citizens.
Copyright © 1991-2003 John F. Knutsen
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