Peter M. Shane: Line-item veto’s political web

Thursday, April 18, 1996 | 11:59 a.m.

ALREADY, the constitutionality of the line-item veto, signed into law by President Clinton this week, is being challenged in the courts. Critics charge that the act delegates too much power to the executive branch by allowing the president excessive discretion to strike particular items from appropriations legislation. And, they say, it abdicates to the president what should be, under the Constitution, Congress's exclusive "power of the purse."

But whether the line-item veto succeeds or fails isn't purely a constitutional question; it's a practical one. Will it accomplish what it's supposed to - encourage Congress to spend wisely and curtail the wheeling and dealing that goes on inside the beltway? In a perverse way, it may do just the opposite.

Anxiety that the veto is an over-broad delegation of administrative authority to the president is much ado about nothing. Hundreds of other statutes have been passed, unchallenged (or challenged unsuccessfully), that confer similar discretion to the chief executive. Courts are also unlikely to overturn the veto because it encroaches on Congress's appropriations power.

The main purpose of giving Congress that power in the first place was to ensure that no costly government initiative would go forward without legislative approval. The line-item veto won't change that. It doesn't allow the president to spend money at all; it merely authorizes him to limit spending.

The constitutionality of the act doesn't mean it will save money, though. In fact, it may undermine Congress's already questionable fiscal discipline.

For one thing, no president in his right mind will wield the line-item veto broadly. Every project included in an appropriations bill benefits at least one congressional district - a district full of voters who will inevitably play out their revenge in the ballot box if they feel a president has singlehandedly nixed a project that would create jobs and income in their area.

Even worse, the line-item veto may tempt members of Congress to fight even more for the inclusion of their personal "pork" in a massive appropriation.

Under the current system, the best rationale for not including a legislator's pet project is the "slippery slope" argument: If we fund yours, we'll have to fund dozens of others - and that would cost too much money. But with the veto, members of Congress will have nothing to lose. It will be up to the president to weed out irresponsible pork projects. If he doesn't, he'll take the heat, not Congress.

But the veto may put the president in a better bargaining position when it comes to non-appropriations matters. The biggest pork items are usually water projects out West and defense projects that tend to benefit particular states disproportionately.

When such a project is on the table, the president will be able to call the senator from Texas, for instance, and say, "Remember that dam you wanted built on your hometown creek? Well, now, let's talk about my health-care reform package." (The president will have to swing this hammer with a tad more subtlety, perhaps. But any president who doesn't take advantage of this leverage doesn't deserve, politically speaking, to be president.)

There is a chance that the line-item veto will enhance the president's capacity to improve the management of the executive branch and, therefore, advance our constitutional design. But my guess is that the actual operation of the new veto will be determined by a law more powerful than any in the Contract with America - namely, the law of unintended consequences.