All This Talk About the Veto...

... has piqued my curiosity.  Obama is threatening his third; the Senate is daring him to (on the XL Pipeline.) Where did the idea of veto come from?  Why?  What was the original intent?  Is it working as it was supposed to?

"Veto" is Latin for "I forbid" and it originated in the Roman Republic where either of the two consuls holding office in a given year could block a decision by the other.  And any tribune, heads of government departments, could veto an act passed by the Roman Senate.  A republic in name but pretty centralized at the top.

Our veto, of course, is in the Constitution,  Article I, Section 7:

                "Every Bill ... before it becomes a Law (shall) be presented to the President of the United States: if he approve (sic) he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall ... proceed to reconsider it.  If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of  that House, it shall become a Law.... If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return,  in which Case it shall not be a Law.

So there it is -- the veto and the pocket veto, but note that the founders did not use the word.  Hamilton called it the Executive Negative.

How did it come about?  From the very start of the Constitutional Convention, in May of 1787, the idea of an executive negative was proposed.  Yet in Colonial times, one of the prime complaints of the colonists was the right of Royal Governors to veto bills passed by the colonial legislatures or parliaments.  And if the Governors did not veto, the King could withhold his assent and a bill would not become law.  That withholding of assent was the first of the string of complaints against George the III cataloged in our Declaration of Independence.   So why now, just ten years later, the 180° turnabout?  Well, during the few years under the Articles of Confederation, those "Founding Fathers" had witnessed State legislatures steady nibbling away at the prerogatives of the executive, steadily encroaching on his (no sexism -- they were only hes) his authority and responsibilities.   

Delegate James Madison proposed that the President and four Supreme Court Justices either assent to or negate a bill.  Delegate Alexander Hamilton, concerned with separation of powers and wanting a strong executive, proposed an absolute Presidential aye or nay -- no recourse for Congress.  It was Randolph who framed the compromise, giving Congress the way to override a Presidential rejection through a 2/3rds majority of both houses.

In the battles for state ratification of this proposed, radical Constitution, among more influential voices were Madison's, Hamilton's and John Jay's, who together published a series of 83 op-eds in New York newspapers, which collectively we know as The Federalist Papers.  # 73, written by Hamilton, dealt mainly with what he termed "the qualified negative."  He presented two arguments for the veto:

        1.  That it protected the Executive from incursions of the legislative branch.  It was the "power of self-defense" said Hamilton. And this last week, just as Hamilton warned, we've seen an example as the House of Representatives challenged Obama's executive orders on immigration and restraints on deportations.

        2.  That it provides "security against the enaction of improper laws." By requiring a return with Objections in writing and a reconsideration first by one house and then, if overridden in the first, by the other, the veto process provides a cooling off period for reflection.  Prescient Hamilton commented that a "spirit of faction" can sometimes pervert thoughtful, rational deliberation.  By "faction" read party.  There were no parties in 1788, and the founders generally distrusted them.  But a few short years later, those very founders were creating political parties, the very ones we have today and, as Hamilton predicted, they often warp and pervert thoughtful problem solving.

In #73, Hamilton forecast that the veto would be little used and even more rarely overturned.  Was he right?  Well, yes and no.  Let's go to the numbers.

Seven of our 44 Presidents did not veto any bills.  But the thirty-seven who did averaged a whopping 69 vetos!  The median?  Eighteen used it between once and twenty-eight times; eighteen, more than 30 times.  Such a large difference between the mean of 69 and median of 29 indicates that a few Presidents really racked up the vetoes.  I guess: 635 times; 584 times, 250 times!

The first veto was exercised by our first President at the beginning of his second term.  At issue was a bill about using census data to apportion congressional seats.  Washington thought the bill gave an unfair advantage to the northern states despite his Sect. of State and fellow Virginian Jefferson's endorsement and in agreement with his Sect. of Treasury New Yorker Hamilton's opposition. Confusing?  But the point is sectionalism had raised its ugly head again.   The Federalist majority in Congress did not override.

It was another 17 years before the next veto.  Madison, who had strongly argued for the veto, used it seven times.  Congress first overrode a presidential veto, one of Tyler's ten, in 1845, more than fifty years and 43 vetoes after Washington's first.

So who used it more than the median?  Fast forward to post civil war days:

·         Andrew Johnson -- 29 in less than two Congresses with 15 -- more than half -- overridden as he battled for reconstruction moderation as Lincoln had intended versus the Radical Republicans who wanted to hammer the South.  Little wonder that Congress wound up impeaching Johnson.

·         US Grant -- despite enjoying a solid Republican Congress, Grant still vetoed 93 times.  I guess he was accustomed to having his own way.  Overridden only four times.

·         Now we come to opening the flood gates.  Grover Cleveland -- 584 in eight years, four Congresses!  Cleveland was an interesting character, the first Democrat elected to the Presidency since Buchanan, the first to win popular but lose electoral votes, the only one to win non-consecutive terms, in 1884 and again in 1892. Cleveland was pro-business, anti-labor, for sound (read gold) money, against government spending and farm and mining subsidies.   He was what we would come in another 40 years to call a Southern Democrat -- but Cleveland was from Buffalo, NY.  Most of his vetoes were of bills granting lifetime pensions to widows of Civil War vets of questionable merit -- the vets, I mean, not the widows.   He used the pocket veto a lot, but of his 346 "active", i.e., in session vetoes, only seven were overridden.

·         When Teddy Roosevelt ascended to the Oval Office, conservative Republicans, who thought they had safely kicked the pesky progressive reformer upstairs into the harmless vice presidency, found themselves in a battle.  Teddy vetoed 82 bills and had only one overridden.

·         FDR has the record: 635 vetoes, of which 40% were via pocket.  But that was over 12 years and into his seventh Congress.  Overridden nine times.

·         Truman, of course, faced that "do-nothing" 80th Congress.  He dealt with four Congresses to whom he issued 180 veto messages, plus another 70 via his pocket.  Despite the Republican majority with their southern Democratic allies, he was overturned only 12 times.

·         Lest one think that an un-elected President and the only one since the 19th C to have served as Speaker of the House would be more respectful of Congress's will, Gerald Ford wielded the veto pen 66 times in less than two and a half years.

·         Reagan, with a Democratic House and sometimes Senate, needed 78 vetoes to work his will; all but nine successfully.

From there, it tails off:  Clinton, 37; Dubya, twelve; Obama, just two.  I think the reason is the filibuster threat in the Senate and Dennis Hastert's majority-of-the-majority standard in the House.  These have gummed up the legislative process, and threats of veto embolden opposition to the majorities.  Congress also plays games with "adjournment" to forestall pocket vetoes.  We'll see fewer vetoes until legislators come to their senses and start legislating with simple and just majorities once again. 

So, was Hamilton right: rarely used and even more rarely overridden?  Not so on usage ...  2,564 vetoes overall.   But on overrides, yes.  Presidents are upheld: 110 overrides, 4% of total vetoes and -- a better measure -- just 7% of "active" vetoes.  The President prevails 96% of the time.                

Two hundred, twenty-eight years ago, Madison, Hamilton, Randolph and the other founders, watching state legislators grasp for more power and foreseeing how factionalism could pervert thoughtful, deliberative government, conceived a federal system with separate and balanced powers and gave each tools to protect their independence.  For the Executive, that tool is the veto.  And yes, it's working as those remarkably farsighted founders intended.  Now if we can just get those clowns in Washington to get to work ....