strument for accountability, may actually diffuse responsibility by constantly shifting the onus of action to another body: from the legislature to the executive, from the executive back to the legislature, and then from both political branches to the courts. As these "items" are bounced back and forth between the branches, like a political shuttlecock, there will be substantial delays in the enactment of appropriation bills and uncertainty on the part of agencies and state governments regarding their funding levels.

The politics of the item veto in a particular state may bring incremental, sound compromise or be little more than public posturing. The legislature may deliberately try to embarrass the governor by padding his budget and then accuse him of heartless economy against disabled and disadvantaged constituents. On the other hand, some governors may find political advantage, as did Governor Reagan, from frequent and well-publicized use of the item veto against the "irresponsible legislature."

How the item veto would be used at the national level is a subject that demands extensive speculation. The item veto cannot be discussed apart from more general understanding of a state's political culture, legislative rules, and budgetary process. State constitutions are notably more restrictive on legislative activity, descending even into the details of the authorization-appropriation process and the format of appropriation bills. The U.S. Constitution leaves such matters to the rules of the House and the Senate.

The impact of the item veto at the state level is an issue that resists generalization. In no two states is the impact of the item veto quite the same. The experience of one state generally provides little instruction about what is likely to happen even in a neighboring state. The use of the item veto in every state reflects to some degree its unique political culture, institutional framework, and judicial philosophy. Like all political "reforms," it has been replete with unanticipated consequences.

3 By territorial statute in 1901, Arizona granted its Governor item-veto authority (Revised Statutes of Arizona, 1901, § 82). After the adoption of its constitution in 1910, which contained the item veto, Arizona was admitted as a State in 1912.

4 Alaska Home Rule Act, 37 Stat. 516, sec. 14 (1912). Alaska's Constitution of 1956 contained the item veto. Alaska was admitted as a State in 1959.

Sources: Benjamin Perley Poore, ed., "The Federal and State Constitutions" (2 vols. 1878); Francis Newton Thorpe, ed., "Federal and State Constitutions" (7 vols. 1909); William F. Swindler, ed., "Sources and Documents of United States Constitutions" (10 vols. 1973); Legislative Drafting Research Service, Columbia University, "Constitutions of the United States" (loose-leafed and regularly updated); annotated State statutes and constitutions.

ADOPTION OF THE ITEM VETO IN STATE CONSTITUTIONS ORIGINAL AND CURRENT CITATIONS

ADOPTION OF THE ITEM VETO IN STATE CONSTITUTIONS ORIGINAL AND CURRENT CITATIONS—

1 Alaska Home Rule Act, 37 Stat. 516, Sec. 14 (1912). Alaska's Constitution of 1956 contained the item veto. Alaska was admitted as a State in 1959.

2 By territorial statute in 1901, Arizona granted its Governor item veto authority (Revised Statutes of Arizona, 1901, §82). After the adoption of its Constitution in 1910, which contained the item veto, Arizona was admitted as a State in 1912.

3 Hawaii was admitted as a State in 1959.

Maryland has retained the item veto provision but in practice this power is not exercised because of constitutional restrictions on the legislature's authority to add to the Governor's budget.

5 New Mexico was admitted as a State in 1912.

Sources: Benjamin Perley Poore, ed., "The Federal and State Constitutions" (2 vols. 1878); Francis Newton Thorpe, ed., "Federal and State Constitutions" (7 vols. 1909); William F. Swindler, ed., "Sources and Documents of United States Constitutions" (10 vols. 1973); Legislative Drafting Research Service, Columbia University, "Constitutions of the United States" (loose-leaf regularly updated); annotated State statutes and constitutions.

Art. III, § 12..

APPENDIX B

THE FIRST ITEM VETO

[The first item veto made its entry into American politics through the Confederate Constitution. The history of this innovation is followed by selections from a speech by Robert H. Smith, who is considered the originator of the item veto idea.] An item veto first found expression in the Provisional Constitution of the Confederate States of America adopted on February 8, 1861, which permitted the President of the Confederacy to "veto any appropriation or appropriations and approve any other appropriation or appropriations in the same bill.” i A month later, on March 11, substantially the same provision was included in the Permanent Constitution of the Confederacy.2

ROBERT H. SMITH: AUTHOR OF THE ITEM VETO

The idea of an item veto originated with Robert H. Smith,3 an Alabama delegate to the Provisional Congress of the Confederacy. Smith, in the opinion of Confederate Vice President Alexander H. Stephens, was Alabama's most influential delegate. His numerous and varied accomplishments also distinguished him as one of the Congress' most able participants. After briefly attending West Point, he taught school in Virginia and Alabama, and then studied medicine before finally turning to law. He was admitted to the bar in 1835 at the age of thirty-two, and began a practice in Livingstone, Alabama.

In 1849, Smith was elected to represent Sumter County in the Alabama House of Representatives. Two years later, in a bitter campaign, he lost by one vote in his bid to move to the upper house of the Alabama legislature. Subsequently, Smith became a partner in a thriving law practice in Mobile that afforded him frequent opportunities to appear before the United States Supreme Court.

Following Abraham Lincoln's election, he was appointed by the Governor of Alabama as one of two commissioners to confer with the authorities of North Carolina on the subject of a union and cooperation among the Southern States in the event of the outbreak of hostilities with the North. Shortly thereafter, Smith was elected a delegate to the Montgomery Convention. As a member of the Provisional Congress, he initially served on the Committee of Twelve that framed the Provisional Constitution and then as a member of the Second Committee of Twelve that drafted the Permanent Constitution of the Confederacy.

1 U.S. Congress. Senate. Journal of the Congress of the Confederate States of America, 18611865. 7 vols. Senate Document No. 234, 58th Cong., 2d Sess. Washington, U.S. Govt. Print. Off., 1904. v. 1, p. 900 (Serial No. 4610).

2 Article I, Section 7 of the Permanent Constitution of the Confederate States of America. In Ibid., v. 1, p. 913.

3 It has been implied by at least two authors that Thomas R.R. Cobb of Georgia was largely responsible for writing the Confederate Constitution and as a consequence was the author of the item veto. Walter McElreath. A Treatise on the Constitution of Georgia. Atlanta, The Harrison Company, 1912. p. 130; and Albert B. Saye. A Constitutional History of Georgia, 1735-1945. Athens, Georgia, University of Georgia Press, 1970. p. 241. While Cobb was a delegate to the Montgomery Convention that established the Southern Confederacy, and participated in the floor debate preceeding the adoption of the Provisional Constitution on the evening of February 8, 1861, the Journal of those proceedings clearly credits Smith with introducing the motion to add an item veto to the draft Constitution under consideration. Journal of the Confederate Congress, v. 1, p. 34. An excellent analysis of this contention as well as Smith's role in drafting the Provisional Constitution is found in Charles Robert Lee, Jr. The Confederate Constitutions. Chapel Hill, North Carolina, University of North Carolina Press, 1963. p. 60-65. The confusion probably arose because Cobb was a member of the Committee of Twelve that subsequently drafted the Permanent Constitution and a printed copy of the draft of that document, which was presented to each member of the Convention for debate, was, except for three pages, "a reproduction of the manuscript draft which was drawn up by" Cobb. Handwritting comparisons suggested that those three pages not written by Cobb were probably penned by Smith. Ibid., p. 87– 88.

With the outbreak of the Civil War, Smith became a member of the 36th Alabama Infantry and was elected colonel, but was compelled to soon resign because of illhealth. During the remaining sixteen years of his life, he practiced law in Mobile.*

WHY AN ITEM VETO

It was late on the afternoon of February 8, 1861, when Robert Smith introduced his motion to add an item veto provision to the draft of the Provisional Constitution being debated by the delegates from the six seceeding states. Smith's resolution, granting the President the authority to "veto any appropriation or appropriations and approve any other appropriation or appropriations in the same bill," was apparently adopted without debate. Instead of either accepting or rejecting an appropriation bill in its entirety, as President Abraham Lincoln would have to, the new Confederate President would be able to accept parts of the measure and reject the rest. Charles Robert Lee, Jr., in his comprehensive study of The Confederate Constitutions, concludes that the "past experience of many of the delegates, particularly those who had served in Washington, guided their acceptance of this provision." AĬl too often, "the President had been required to sign an appropriation bill to continue the operation of the government, while, at the same time, he had to give his sanction to unacceptable measures attached to the bill." An item veto was found acceptable because it was seen as a way of promoting “greater harmony between the executive and legislative branches." 6

It was also included in the Provisional Constitution to protect the budget estimates of the President. "Smith's amendment," in Lee's opinion, "represents the most significant addition to the draft of the Provisional Constitution."7

At the time, however, Smith's item veto provision was not even mentioned by the newspapers covering the proceedings in Montgomery. The issues they considered important were the slavery and protective tariff provisions of the new Constitution.8 When the delegates convened on February 28 to begin their consideration of the draft of the Permanent Constitution prepared by the Second Committee of Twelve, the item veto clause was already embodied in that document. During the subsequent debate on the Permanent Constitution, the language of the provision was changed on March to read: "The President may approve any appropriation and disapprove any other appropriation in the same bill." 10 This new wording was adopted as part of the Permanent Constitution a week later.11

During a lengthy address at the Temperance Hall in Mobile near the end of March, Smith described the problem that he sought to address by proposing an item veto. In drafting the Confederate Constitution, Smith explained, "we have followed with almost literal fidelity the Constitution of the United States and departed from its text only so far as experience has clearly proven that additional checks were required for the preservation of the Nation's interest." 12

* Dumas Malone, ed. Dictionary of American Biography. 20 vols. New York, Charles Scribner's Sons, 1927-1938. v. 17, p. 339; and Stephens Croom. Robert H. Smith. Mobile Daily Register, March 23, 1879. p. 5. Other brief biographical accounts of Robert H. Smith are found in William Garnett. Reminiscences of the Public Men in Alabama. Atlanta, Plantation Publishing Company's Press, 1872. p. 540-542; Robert H. Smith. Mobile Daily Register, March 15, 1878. p. 2; and Thomas McAdory Owen. History of Alabama and Dictionary of Alabama Biography. Chicago, S.J. Clarke Publishing Co., 1921. v. 4, p. 1592.

5 Journal of the Confederate Congress, v. 1, p. 34. Unfortunately, the Journal of the Provisional Congress the Confederacy is incomplete and as a consequence it is not known to what extent the item veto was actually debated. For background on the disposition of the Journal, see William M. Robinson, Jr. Justice in Grey: A History of the Judicial System of the Confederate States of America. New York, Russell & Russell, 1941, 1968. p. 570-573.

6 Lee, The Confederate Constitutions, p. 64.

7 Ibid., p. 65. Fred Gantt, Jr., goes even further in his praise and suggests that "probably the major contribution of the Confederate States of America to the theory and practice of government was the use of the item veto in appropriations bills." Gantt. The Chief Executive in Texas. Austin, Texas, University of Texas Press, 1964. p. 183.

8 See for example Alexandria Gazette, February 11, 1861. p. 3; Charleston Daily Courier, February 11, 1861. p. 1; Charleston Mercury, February 12, 1961. p. 1, Daily Picayune, February 10, 1861. p. 1; New York Times, February 11, 1861, p.1; Washington Evening Star, February 11, 1861. p. 2, February 13, 1861. p. 2. It is mentioned without comment in the American National Cyclopedia and Register of Important Events of the Year 1861. New York, D. Appleton & Co., 1862. p. 155, 158-159.

9 Journal of the Confederate Congress, v. 1, p. 853.

10 Ibid., p. 864.

11 Ibid., p. 913.

12 Robert H. Smith, Address to the Citizens of Alabama on the Constitution and Laws of the Confederate States of Amercia. Mobile, Alabama, Mobile Daily Register Print. 1861. p. 7.