Civics 101: How Powerful is the President's Veto?
Civics 101: How Powerful is the President's Veto?: Audio automatically transcribed by Sonix
Civics 101: How Powerful is the President's Veto?: this mp3 audio file was automatically transcribed by Sonix with the best speech-to-text algorithms. This transcript may contain errors.
Barack Obama:
I am not signing the piece of legislation that came down to me today. I am signing a veto.
Nick Capodice:
The President is sometimes referred to as the most powerful person in the world. And just think about the kinds of power they have. They are the commander in chief of the armed forces, for example.
Hannah McCarthy:
They have access to the nuclear codes.
Nick Capodice:
And what about this? They have the power to block a bill from becoming law. Fun etymological fact: the word veto comes from the Latin for "I forbid."
Hannah McCarthy:
Hmm.
Bill Clinton:
Congress has sent me the tax bill I have repeatedly pledged to veto.
Hannah McCarthy:
This is Civics 101. One, I'm Hannah McCarthy.
Nick Capodice:
And I'm Nick Capodice. And today we are talking videos. We're going to take a closer look at the history of vetoes, the process and the different ways the President uses that veto pen to make a political point. But first, let's talk about why the President has veto power in the first place.
Dr. Gisela Sin:
So vetoes are an important element of the constitutional design of checks and balances.
Nick Capodice:
That is Dr. Gisela Sin. She's associate professor of political science at the University of Illinois.
Hannah McCarthy:
And that constitutional design of checks and balances, that is the way the Constitution gives each branch of the government - legislative, executive and judicial - the ability to check the other branches, in other words, to prevent them from collecting too much individual power.
Dr. Gisela Sin:
So the veto power is one of those institutions that translates this principle of checks and balances into concrete rules and procedures. First, a proposal can receive a majority in the House and the Senate. And the President consents or receives support from a majority of the House, a majority in the Senate.
Nick Capodice:
Now, Congress may still override a veto from the President, even if the President vetoes the law. That's something we'll get to in a minute.
Hannah McCarthy:
So basically, the President can check Congress and then Congress can check the President back. But where did the concept of veto originate?
Nick Capodice:
It first appeared in the early Roman Republic constitution.
Dr. Gisela Sin:
In this Republican Constitution, there were two executive official two consoles, and they were granted the right to veto the actions of each other. And the arrangement was basically designed to curb the exercise of arbitrary authority that had occurred before with the monarchy.
Hannah McCarthy:
What does she mean by arbitrary authority?
Nick Capodice:
Yeah, that's the way in which monarchs could make unrestricted decisions without consulting the people at all.
Dr. Gisela Sin:
And then with time, the plebeians also have representation for themselves in the political institutions of the Roman Republic.
Nick Capodice:
Now in Rome, there were also enslaved people who had no political representation. Those who did were known as plebeians. They were considered free commoners.
Dr. Gisela Sin:
They were represented by officers that were called tribunes, who were also granted a veto power over the actions of the consuls. And originally, they can only they could only be used to protect the plebeians from injustice and violence.
Hannah McCarthy:
All right. So the veto started as a means of checking the arbitrary exercise of political power in ancient Rome. Now. How did it become a part of the American system?
Nick Capodice:
Well, the framers of the Constitution were certainly inspired by the historical republics. We've covered that in past episodes, and we've talked about the language of the Constitution and the structure of the democracy. But they were also thinking a lot about their own, much more recent history.
Ken Kato:
For the late 18th century. There was the time of the founders. There really was a sense of trying to avoid tyranny.
Nick Capodice:
That is Ken Kato, former associate historian of the US House of Representatives. He spoke with Civics one on one in 2017.
Ken Kato:
So they created a system of mixed government the one, the few, the many.
Hannah McCarthy:
Which is how we ended up with an executive, a leader. That's the one. But then you also got the judiciary, the few, and then the representational democracy of Congress, the many. So if the founders were afraid of tyranny of the kind of authority granted to the king, why did we still end up with a veto?
Nick Capodice:
Well, we'll get to the reasons why Presidents utilize their veto authority in just a little bit, but let's go back to their constitutional beginnings. While the veto existed in some form, in some early state constitutions, it was frankly a controversial topic. During the Constitutional Convention, some delegates argued it would give the President too much power, and others argued it was essential to preserving the balance of power between the executive and legislative branches. And ultimately, the delegates reached a compromise. The President would have the power to veto laws, but Congress could override the veto with a two thirds majority.
Hannah McCarthy:
Which is about representing the will of the people. That's what Congress is there for. So if two thirds of them strongly support something, even if the President vetoes it, Congress can still say, no, this is what the people want and it's going to happen.
Nick Capodice:
Yeah, it's all about political context and timing, and the veto isn't always as powerful as he might think.
Dr. Gisela Sin:
So sometimes the ability to veto legislation gives the President a lot of influence, but other times it gives him little or no influence at all. So as we know, to enact legislation, a simple majority in the House and the Senate is needed and veto override requires two thirds majority. So if the President does not like a bill, but knows that more than two thirds of House members and senators are willing to vote for it, then the President's ability to veto legislation is not very useful because, you know, two thirds will override it. So it gives him no power at all.
Hannah McCarthy:
How often does this happen, the veto override?
Nick Capodice:
Not very often, because as you and I both know, Hannah, one party doesn't always control both the House and the Senate. And even when they do, there still has to be a lot of bipartisan political consensus on a bill or strong party majority in these chambers to get to that two thirds vote count. For example, there was only one veto override during Donald Trump's administration, one during the Obama administration, and four during the George W Bush administration. And of course, the President generally knows when the override is likely to happen, based on the consensus around the original passage of the bill.
Hannah McCarthy:
Why would the President bother issuing a veto knowing that it will be overridden? Kind of seems like a pointless exercise.
Nick Capodice:
Yeah. On the surface it may seem pointless, but there are political points to be made scored by vetoing a bill. The President is sending a strong message to Congress and the American people that they disapprove of the legislation and the veto might also put pressure on individual members of Congress, maybe those in the President's own party, to reconsider their position on the bill. And finally, Hannah, a veto gives the President an opportunity to offer alternatives on a bill. We'll get into veto overrides in more depth later on.
Hannah McCarthy:
And can we talk about those vetoes that actually stick?
Dr. Gisela Sin:
So the President veto has power when the coalitions that want to do something in Congress commands a majority in both houses, but it is not large enough to get the two thirds vote.
Nick Capodice:
A coalition, by the way, is a group of lawmakers who come together to support a piece of legislation.
Hannah McCarthy:
So that's kind of the sweet spot for the President's veto pen when they just get to say no to a bill. And that's that.
Nick Capodice:
Yeah, exactly. But don't forget, while the President does have this power to keep bills from becoming law, the veto can't be used to keep members of Congress from debating the bill in the first place. A veto cannot interrupt the normal process of legislation. Now, veto can be used to some extent to score political points like members of Congress can say to their constituents, Hey, this is the law we wanted, but it was the President that kept it from happening. They can even brag about passing a bill, even if it was a bill they knew was going to be dead in the water.
Hannah McCarthy:
I could even see a legislator using the threat of a veto or the veto itself to their own political advantage, right?
Nick Capodice:
Yeah. If the President has already signaled they're going to veto a bill, it won't stop legislators from debating it on the floor, talking about it with the press, and letting their constituents know that they were trying to serve the people's needs. But the President was getting in the way. It's like members of Congress are saying, look how hard we tried to represent you and look how your President is stopping us. And another thing that determines the power of the veto. This is an old joke. Hannah, ask me, what's the most important element in comedy?
Hannah McCarthy:
Nick. What's.
Nick Capodice:
The timing? My dad loved that joke.
Dr. Gisela Sin:
If the President faces a veto decision at the end of a congressional term, there is not enough time for negotiations. That is at the beginning or at the middle of the term. The President can use his veto to negotiate a bill he likes more, a bill closer to what he wants.
Nick Capodice:
For instance, if the President vetoes a bill at the beginning of the term, then Congress has time to go back to the drawing board and come up with legislation that the President might accept. And these are some back and forth negotiations over a bill, you know, the President vetoes and then Congress passes something new to try to get a compromise in the middle.
Dr. Gisela Sin:
But at the end of the term, there is not enough time for this bargaining with the additional pressure. Also that at the end of the term, there's always, you know, legislators have to go campaign. And also there's the additional pressure that the next Congress might be different, that the President might also be different, that the priorities might have changed. So at the end of the term, the vetoes are not really a powerful negotiation tool.
Nick Capodice:
After the break, we'll discuss the different types of vetoes and times when vetoes have actually been used to strategically shape the laws of the United States, as well as some interesting facts about the veto pen itself.
Hannah McCarthy:
Before the break, over the course of every one of these episodes, Nick and I discover a lot of information that ends up on the cutting room floor. Luckily, we have a place to sweep all those cuttings in to tell you about. It is called Extra Credit. It is our newsletter. We also put in updates about the show, things that are going on in the world. It's basically a little glimpse into what we talk about behind the scenes, and it's a way to keep in touch with you. It is a super not-annoying thing to look forward to in your inbox and I warmly recommend that you subscribe. You can do that at civics101podcast.org.
Barack Obama:
You know, I haven't used the veto pen very often since I've been in office, partly because legislation that I objected to was typically blocked in the Senate even after the House took over, Republicans took over the House. Now, I suspect there are going to be some times where I've got to pull that pen out.
Hannah McCarthy:
This is Civics 101. And today we were talking about the Presidential veto. Just really quick, I've watched coverage of vetoes and legislation signing ceremonies, and everyone seems to be really interested in the pens for some reason. There's always this moment where after the President signs something, he then takes a stack of pens and just hands them out to important people in the room. What is the deal with the pen?
Nick Capodice:
What is the deal with the pens? What's the deal with the veto pens? Hannah, absolutely. That is for sure. There's a big deal with the pens. Since the veto power is such a powerful check on the government, the pen itself symbolizes its importance. Pen Vibe, a go-to site for pen and pencil enthusiasts, reports the CEO of Cross Pens presented President Gerald Ford with a desk set of 12 karat gold pens and pencils in the 1970s, and Ford became a fan of that brand of pen. And after that, most Presidents have stuck with that brand from Cross Townsend. The pens, by the way, are produced at a plant in Rhode Island that's been around for more than 170 years now. The Cross Townsend collection that former President George W Bush amassed is on exhibit at the Presidential library. President Bush also utilized official White House sharpies to sign stuff.
Hannah McCarthy:
Yeah, I've heard that President Donald Trump also like to use the Sharpie. What about the tradition where we see the President using a whole bunch of pens to sign something and then giving the pens away? Is that something that happens with vetoes?
Nick Capodice:
Well, here's Ken Kato again. He worked as an historian at the House of Representatives.
Ken Kato:
Presidents and members of Congress love to claim credit. Lyndon Johnson was was the master of that. He could sign something with as many as two dozen pens.
Hannah McCarthy:
To sign just one thing.
Nick Capodice:
Just one thing, one signature, sometimes different pens for different letters of their name. And then they just hand each of those pens over to one of the people in the room who'd been a supporter of whatever they were signing. And it would become a souvenir.
Ken Kato:
And you can go on Capitol Hill and go into an office and you'll see a pen framed with a facsimile of the bill that had been signed into law. Vetoes don't usually make that, but they certainly can. And of course, there's the rhetorical one. I will use this pen to veto any legislation you send me.
Nick Capodice:
But there are a number of steps that bill has to take before it reaches the President's desk. Whether the President plans to sign it or veto it, whether that pen is going to come out of the drawer at all. For example, the President is not always making the decision to veto on their own. They get advice from elsewhere in the executive branch.
Ken Kato:
The Office of Management and Budget in the modern time would review the bill and decide which departments and agencies should have the option of making a recommendation to sign the bill into law or not.
Nick Capodice:
The Office of Management and Budget is extremely complicated, but in simplest terms, the OMB evaluates a bill and reports on budget implications, policy points and other issues. The bill might raise ripple effects, if you will, if it were to become law, and then the OMB sends it out to the departments that need to weigh in before making a recommendation as to whether the President should sign it.
Hannah McCarthy:
So a President could decide to veto because they don't like a bill. It goes against their goals as President or their ideology. But they could also decide to veto a bill because the OMB says it's not a good idea. Does the President have to explain to the public why they are vetoing a bill?
Ken Kato:
The Constitution requires a written justification for not approving the bill.
Nick Capodice:
The President's veto statement is a document that formally explains why the President vetoed a bill. And sometimes that statement is written by the OMB or the agency that recommended the veto for policy or budget reasons. And these statements vary in their length and complexity.
Hannah McCarthy:
And sometimes the President makes kind of a spectacle of the veto process, right? Like I'm thinking of the times we see the President presenting their rationale for their veto or potential veto on television.
Barack Obama:
We can't put the security of families at risk by taking away their health insurance or unraveling the new rules on Wall Street or refighting past battles on immigration. When we've got to fix a broken system and if a bill comes to my desk that tries to do any of these things, I will veto it. It will have earned my veto.
Nick Capodice:
Yeah. We don't actually see every veto on TV. The more politically divisive or controversial or high profile bills, those are the vetoes the President often likes to do in front of a crowd. But the lower profile ones, they just get the statement.
Hannah McCarthy:
So what happens next?
Nick Capodice:
Well, then the bill goes back to either the Senate or the House, whichever part of Congress it started in. And then the legislators can try to override the veto.
Ken Kato:
To override a veto. That would be an attempt to pass the law as they originally passed it. If they really feel strongly about a bill. They will debate it. Vote on it. The Constitution requires two thirds of each house by the yeas and nays, which means a roll call vote. It has to be recorded.
Hannah McCarthy:
And if both the House and the Senate pass it by two thirds, then it becomes law.
Nick Capodice:
Yes, the President can't do anything to stop it.
Hannah McCarthy:
Now, what if members of Congress know that they won't get this two thirds to override the President's veto, but they really want the bill to become law? Does the President get to make suggestions for the bill? Do they get to say, I'll sign it if you do these things.
Nick Capodice:
If the bill has already reached the President's desk and been vetoed? Congress basically has to start over.
Ken Kato:
Once they start tinkering, then there they have essentially started the legislative process back at square one.
Nick Capodice:
So it is essentially a new bill.
Hannah McCarthy:
So what is the time frame for how long the President has to veto a bill?
Dr. Gisela Sin:
If Congress is in session, the President has ten days to veto legislation. If he does not veto legislation, within ten days, the legislation becomes law.
Nick Capodice:
That again, is Professor Gisela Sin from the University of Illinois.
Dr. Gisela Sin:
However, if Congress is not in session and the President does not sign the bill, that bill is considered a veto. And that's what we call a pocket veto.
Hannah McCarthy:
All right. So a pocket veto is when the President takes no action at all before Congress ends its session. As long as the session has ended within that ten day time frame or has already ended when the bill reaches the President's desk. So, in essence, the President gets the veto without having to go through the veto process at all.
Nick Capodice:
Right. The President essentially just lets the clock run out. And again, if ten days pass and Congress is still in session, not including Sundays, yes, that bill becomes law. But if Congress isn't in session after those ten days, it does not become law. This pocket veto is a tool that President James Madison first used in 1812.
Hannah McCarthy:
Now I know that bills passed by Congress can often have a lot of stuff in them, right? Like items that have little or nothing to do with the main part of the bill. What happens when one of these huge, weighty bills gets to the President and the President maybe likes parts of it, but not all of it.
Archive:
The other was intended to help small farmers, but the way it was written, most of the tax break would have gone to one sugar beet refinery and its major stockholder, Texas multimillionaire Harold Simmons, a Republican donor.
Nick Capodice:
For a very short time from 1996 to 1998. The President did have the power to do something called a line item veto, and that allowed them to veto certain sections of a bill passed by Congress.
Archive:
President Clinton used his line item veto muscle to knock off three provisions in the new balanced budget.
Dr. Gisela Sin:
But they are a type of veto in which the executive can get rid of parts of a bill. So maybe an article, maybe a whole section. And in the most extreme, sometimes it can just get rid of a word. So imagine if it gets rid of a you know, you cannot do that and it gets rid of the "not" and it means you do that.
Hannah McCarthy:
It sounds like the most important thing about the line item veto is that everything that doesn't get changed becomes law.
Nick Capodice:
Right. Although Congress approved the line item veto. It was struck down by the Supreme Court in 1998 in the case Clinton v City of New York.
Hannah McCarthy:
What was the rationale there? Why did the Supreme Court say the line item veto was unconstitutional?
Nick Capodice:
Well, the Supreme Court said that line item vetoes violated the pre sentiment clause of the Constitution. That is the clause which says that the President can sign or veto an entire bill but not amend the bill.
Hannah McCarthy:
All right. So what happens now with these big bills since line item vetoes are no longer a thing? Do they have to live or die as they are?
Nick Capodice:
Yes and yes. These so-called omnibus bills with myriad items have become more and more prevalent and with them has grown this kind of politicking between the White House and Congress, which seems to just be making these bills bigger and bigger.
Dr. Gisela Sin:
So lately we have had the omnibus, a lot of omnibus bills where there are a lot of issues inside. And also in many in many bills, what you get is a lot of earmarks and pet projects for different legislators, which are needed, in fact, to gather support for a bill, something that I don't care much about. But it will - okay, if you give me something there, I'll vote for it. And the President, in fact, I mean, many times it says I'm going to veto the bill unless you unless you remove X, Y and Z. But then there's a lot of influence by the President simply because he or she threatens to veto a bill.
Hannah McCarthy:
What I'm hearing is that a President can have an impact on legislation long before it reaches their desk for signature.
Dr. Gisela Sin:
The veto really forces members of Congress to consider the President's preferences when they write and when they vote on the legislation. So many times legislative outcomes are different because the President's veto power.
Hannah McCarthy:
So the veto power means that negotiations happen with the White House before a bill is even voted on by the legislature. But does that mean the President is affecting the work of Congress, especially when they threatened to veto unless Congress does what the President wants?
Nick Capodice:
Yeah, you can think of it that way, but you can also think of it as just sort of a way to get stuff done. Because with this two-branch process of passing laws, especially in a politically divided government, when the executive and legislative branches are controlled by different parties, vetoes are likely to happen a lot more frequently. And even when the government isn't divided, it can be difficult because within the same party, political agendas aren't always in alignment. So negotiations are kind of a test where the President and the legislature will ultimately have to agree. So the veto gives the President some influence, but it also gives the legislature a place at the White House bargaining table.
Hannah McCarthy:
All right. Can we talk a little bit about some of the most historically significant Presidential vetoes, like the vetoes we remember, because they changed the course of government, maybe?
Ken Kato:
Andrew Johnson is probably the father of some of the most important ones. Soon after Lincoln's assassination, Johnson vetoed Republican legislation for civil rights for African-Americans and the Freedmen's Bureau, which was supposed to provide education and welfare support for freed slaves to become full citizens. Johnson's successful veto of this legislation in many ways condemned the United States to another century, where African-Americans were second class citizens.
Hannah McCarthy:
Now, how did Johnson justify that?
Nick Capodice:
Andrew Johnson, who was a Southern Democrat, essentially said that formerly enslaved black Americans shouldn't get the help that white people in poverty never had, and that it would make them too dependent on the government. And I want to add here that Johnson vetoed this Freedmen's Bureau act not once, but two times. Congress couldn't really rally together to get that two thirds majority to override it. So a few months later, they proposed a more moderate version of the act. Johnson vetoed it again, but this time Congress got the two thirds majority and overrode the veto. That override notwithstanding, this was a pretty clear message to Southern Democrats that Johnson was going to support them and keep pushing against the Freedmen's Bureau, resulting in its eventual abandonment in 1872.
Hannah McCarthy:
Okay. Well, in that case, clearly, the lawmakers in President Johnson's own party were aligned with him on that particular veto. But the President's ever faced legislators in their party who wouldn't agree with their veto.
Ken Kato:
That's what the focus of checks and balances has always been on. Representatives, senators and the President all have, in their own way, different constituents that can create conflict, even if they all belong to the same party.
Hannah McCarthy:
What does that conflict within the party look like?
Nick Capodice:
Yeah, I have an example. In 2006, President George W Bush ran into this issue.
Archive:
President Bush today defended a decision to entrust some of the operation of six U.S. seaports to a company owned by Dubai, one of the United Arab Emirates. The President reacted to growing criticism from lawmakers, including members of his own party.
Ken Kato:
A company from Dubai won the contract to be in charge of all the ports on the East Coast. Four House members, many of them Republicans, were up in arms about someone from the Middle East taking control of all our ports, even though Dubai was and is an ally of the U.S. in the war against terror.
George W. Bush:
I think it sends a terrible signal to friends around the world that it's okay for a company from one country to manage the port, but not a country that is plays by the rules and has got a good track record from another part of the world. Can't, can't manage the port.
Ken Kato:
George W Bush threatened to veto any legislation preventing Dubai from being in charge. He had to give up his veto threat, had to be swallowed because the public opinion and the members of the House were just not going to go along with the President.
Nick Capodice:
So sometimes the threat of the veto isn't strong enough to stand up to the might of Congress, but it is still a very powerful tool of the office. It allows the President to have authority over which laws are passed, and it gives the President leverage in negotiations with Congress.
Ken Kato:
It's almost inevitable there very few Presidents since the early, early Presidents who haven't vetoed legislation at some time or another. In fact, Franklin Roosevelt was once quoted as saying, "find me a bill to veto because he didn't want to be taken for granted by Congress."
Nick Capodice:
One last trivia tidbit, Hannah. Can you guess which former US President's veto pen was busier than any other?
Hannah McCarthy:
You have a pretty good guess. It's FDR. It's got to be, right?
Nick Capodice:
How many times do you think he did a veto?
Hannah McCarthy:
I don't know. Like. Yeah, like 400, 500,
Nick Capodice:
635.
Hannah McCarthy:
Whoa. Well, I mean, when you're President for that long, what are you supposed to fill your time with? Right? Veto here. Veto. There.
Hannah McCarthy:
This episode was produced by Jacqui Fulton with help from executive producer Rebecca Lavoie. Civics 101 is hosted by me, Hannah McCarthy and Nick Capodice. Christina Phillips is our senior producer. If you were just discovering civics one on one now, welcome. We're glad you're here. And we have a lot more where this comes from. You can follow us on Apple Podcasts, Spotify or wherever you get your podcasts.
Nick Capodice:
Music in this episode by Blue Dot Sessions, Anna Moya, Mike Franklin, Max Anson, Faruk, Dex 1200 Bonneville, Peerless and Cirque Nouvelle. Civics 101 is a production of NHPR, New Hampshire Public Radio.
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