President Obama in recent weeks has twice threatened to veto legislation before Congress. Don’t hold your breath that it will happen.
It’s not that Obama isn’t sincerely troubled by bills regarding debt repayment and online privacy. Actually vetoing legislation, though, no longer seems to be part of the equation — in part because so few bills actually make it to the president’s desk.
In more than four years in office, Obama has issued a grand total of two vetoes. That’s a lot fewer than some of his recent predecessors. In fact, it’s the lowest total since Martin Van Buren, who left office in 1841.
By comparison, George H.W. Bush exercised his veto authority 44 times during his single term, while Bill Clinton took out his veto pen 37 times.
The veto gives presidents enormous sway over legislation. They can stop bills dead that they don’t like because it takes two-thirds majorities in both chambers to override a veto, which rarely happens.
“You can coerce cooperation out of Congress,” says Sarah Binder, an expert on Congress at the Brookings Institution. “As long as Congress prefers something to nothing, they have an incentive to be responsive to the presidential veto.”
But there have been fewer vetoes to respond to in recent years. George W. Bush issued only a dozen vetoes, all in his second term. He had been the first president since John Quincy Adams to go an entire term without vetoing anything.
There are a number of reasons why the veto is becoming a forgotten part of the legislative process:
1. The White House Shapes Legislation Early
When a major bill is moving, it’s now typically shepherded not by committee chairs, but by top chamber leaders. They consult with the administration early and often to make sure the president will sign off on the final product.
“If they’re going to make an effort to pass anything, they want to get the White House involved,” says Brendan Daly, a former aide to House Democratic Leader Nancy Pelosi of California. “There just aren’t that many laws that are passing, and those that do pass need help from the White House.”
Whether it’s Obama trying to work things out with House Speaker John Boehner, or Vice President Joe Biden negotiating with Senate Republican Leader Mitch McConnell of Kentucky, the administration makes its desires known while bills are still being shaped.
“The divide in Congress is so deep that they’re not working through the [traditional] legislative process,” says Ilona Nickels, a congressional scholar. “They’re starting by talking to the White House to find out what is possible.”
2. A Divided Congress Mitigates Veto Threats
Presidents typically veto more legislation when Congress is controlled by the other party. In the current situation, with Congress itself divided — the House is controlled by Republicans and the Senate is held by Democrats — Obama is going to see fewer bills to which he might object.
During the Congress that concluded in January, House Republicans on more than 30 occasions passed legislation to overturn, defund or dismantle the president’s health care law. Obama would have been happy to veto any one of those bills, but the Senate never bothered with them.
For all the complaints from House Republicans that the Senate doesn’t take up their bills, at least it spares them from having to worry about vetoes.
“The [Senate] Democrats are going to have some impact,” Binder says. “They’re not going to send a bill through the Senate that Obama’s going to reject.”
3. You Can’t Veto What Doesn’t Pass
Obama’s smaller veto total has a lot to do with the lack of legislation coming out of Capitol Hill these days. The 112th Congress was by some measures among the least productive in history.
That Congress managed to pass fewer than 230 bills, the least in decades. Many of these had to do with naming U.S. Post Offices and the like.
“You have to have it on your desk before you can veto it,” says Don Ritchie, the Senate’s official historian.
4. Bills Have Gotten Bigger
With so few bills moving, the stakes are higher for the few pieces of major legislation that do pass.
This means the president has to think long and hard before rejecting significant legislation.
“Bills have gotten bigger,” Ritchie says. “They bundle lots of issues, and the president is loath to veto parts of it.”
In January, Obama signed a $633 billion defense authorization act despite having threatened to veto it, issuing a signing statement that said the need for the bill was “too great to ignore.”
5. Presidents Object Only To Parts Of Bills
The statement gave Obama the chance to highlight and challenge parts of the law that prompted his veto threat, including policy toward prisoners at Guantanamo Bay.
The use of signing statements has become a way for presidents to offer what amounts to a partial veto, saying they will direct agencies to disregard the provisions they don’t like.
Ronald Reagan expanded the use of signing statements, according to the Congressional Research Service, but the practice gained notoriety during the presidency of George W. Bush, who challenged more than 1,000 provisions of law.
The American Bar Association complained that this amounted to a flouting of the constitutional separation of powers, but it may also act as a pressure valve encouraging presidents to sign bills they might otherwise veto.
“Basically, what Bush was doing was item-vetoing stuff,” says Cary Covington, a University of Iowa political scientist. “Now, Obama’s doing the same thing.”