The veto power in comparative perspective: a
comparison between Venezuela and United States.
Martina Misantoni
Professor Gianluca Passarelli
Sapienza University of Rome
[email protected]
[email protected]
Paper prepared for the ECPR General Conference Charles University in Prague,
Prague 7-10 September 2016.
FIRST DRAFT – please do not quote without authors’ permission.
1 The strength of the Congress consists in the right to pass statutes; the strength of the President in
the right to veto them.
James Bryce
ABSTRACT
This paper examines how institutional arrangement that govern the veto strength has affected the
Venezuelan president’s behaviour at the beginning of the democratic era in 1958 until President
Hugo Chávez Frías came to power in 1999. The way in which the reactive power has been used
depending on the party composition of the Congress and the consequences of its usage on the
agenda setting are analyzed. To better understand the developments in this field, the paper promotes
a comparative study with the US, a state in which the veto power provides the presidents with
markedly different authority.
1. INTRODUCTION
Today is generally recognized that the presidential veto plays an important role in the legislative
process. The executive powers around the world are given the possibility of returning bills to the
legislature for reconsideration and there are variations in the rules governing the use of the veto.
The conventional impression is that the effects of the veto power are to help the president get his or
her way. Actually, the Latin American version of the presidential veto can be disadvantageous to
the President as the Venezuelan case demonstrated.
The objective of this paper is to contribute to the debate on veto power through a comparison of the
use of the presidential veto in Venezuela under the now defunct 1961 Constitution and in the US.
The study determines the frequency of the veto usage by the Venezuelan and US presidents and
investigates when they were more likely to use the veto between 1958 and 1995. The strategies
available to the presidents when vetoing and the way Venezuelan and US veto clauses have varied
in what they say about override majorities, default opinions, presidential revisions, congressional
consent to those revisions and the range of legislation that the presidents may veto are analyzed
(Alemán and Schwartz, 2006: 98).
The present paper is divided in five parts including this introduction. The second part provides a
summary of the literature on the power and influence of the veto, the third part describes briefly the
use of the veto in Venezuela and in the US. The fourth and last part compares the use of the veto
during the selected presidencies. The analysis begins with Eisenhower and ends with George Bush’s
2 administrations, this 40-year span, from 1953 to 1993, covers eight presidencies while the list of
Venezuelan presidents goes from Romulo Betancourt to Rafael Caldera. The conclusions show how
the partisan factors and the socio-economic environment have influenced the president and
Congress’ actions in these two countries.
2. Power and influence of the veto
The veto power is a reactive instrument (Shugart and Mainwaring, 1997: 42). In principle it allowed
a president to protect the constitutional separation of powers and the rights of citizens as part of a
system of checks and balances. Through the years scholars have done researches on the ways
vetoes are used and when they are most likely to occur: such variables, that can be considered
institutionalized, are party opposition in Congress, the election cycle, presidential approval ratings,
party identification and the type of legislation being proposed. Presidents use the power of the veto
in many different ways and for many different reasons: for pursuing legislation that the president
finds more agreeable (Ingberman and Yao 1991; Kiewit and McCubbins 1988), for mere positiontaking reasons (Conley and Kreppel 2001) or to make public his or her stance over certain issues.
Indeed, the veto can be used not only as an obstacle to legislation, but also in a reactive way as an
executive check on the legislative branch and as a potent tool for agenda setting. There are different
kinds of veto power: if the veto is very limited, it allows the president just to reject a law, if it is not
restricted, it may allow the president to determine the content of the legislative packages. The
effective veto power can be at any intermediate point between these two extremities and its features
may move the balance of power between the Congress and the president in favor of the former or
the latter one, without compromising the main principle of the presidential system according to
which the origin and the survival of the legislative and executive powers must remain independents.
3. Veto power in Venezuela and in the U.S: An Overview
The veto is considered a presidential asset: its effect, when it has one, is to help the President get his
or her way. That is why it is commonly seen. But the analysis of the Venezuelan version of the
presidential veto (under the 1961 Constitution) shows that this impression can be wrong: its version
could be positively disadvantageous to the President and his or her electoral constituency. Article
173 of the 1961 Constitution stated that the President of the Republic could promulgate the law
within ten days after the date of receipt, but within that period s/he could return it with suggested
changes. S/he did not have the right to limit revision to a particular part of the bill. The Chambers in
3 joint session could decide on the points raised by the President of the Republic and write a new text
for the provisions objected to and those connected with them. When a decision was adopted by twothirds of those present, the President proceeded with the promulgation of the law within the five
days following its receipt, and s/he did not offer new comments. When the decision was reached by
simple majority, the President of the Republic may choose between promulgating the law and
returning it to Congress within the same five-day period for a new and final reconsideration. The
decision of the Chamber in joint session was definitive, even if by simple majority, and the
promulgation of the law should be made within the five days following its receipt. However, if the
president’s objection was based on unconstitutionality, the President of the Republic could have
recourse to the Supreme Court of Justice, requesting its decision as to the alleged
unconstitutionality. The Court could decide within a period of ten days, counted from the date of
receipt of the communication from the President of the Republic. If the Court denied the claim of
unconstitutionality, or did not decide within the aforementioned period, the President of the
Republic should promulgate the law within five days after the decision of the Court or the
expiration of that period. Thus, Venezuelan Presidents held a weak veto over bills which could be
overridden with the simple majority of the Congress. Although the Constitution defined the revision
process as a veto, it was not an executive veto as it is commonly known. Instead it represented a
formal process according to the President could make public his or her objections to the bill
approved by the Congress forcing the latter one to express better its support for the bill.
The US Constitution, under the Section II Article VII, states that «Every bill, order or vote to which
the concurrence of the Senate and House of representatives may be necessary» must be presented to
the president for approval. This requirement does not apply to constitutional amendments,
procedural rules of each house and several other types of legislative actions. The president has ten
days in which to consider legislation presented for approval and s/he has three options: sign the bill,
making it law; veto the bill or take no action on the bill during the ten-period. If the president vetoes
the bill, it can be overridden by a two-third majority of both houses of Congress.1 President George
Washington issued the first regular veto on April 5, 1792 whereas the first successful congressional
override occurred on March 3, 1845, when Congress overrode President John Tyler’s veto. If the
president takes no action, the bill automatically becomes law after ten days. However, if Congress
adjourns before the ten days expired and the president has not signed the bill, it is said to have been
subjected to the “pocket veto”, which differs from a regular veto in that the pocket veto cannot be
1
Some Latin American countries also require such majority (e.g. Argentina, Bolivia and Cile). 4 overridden by Congress.2 Thus, a pocket veto is an extremely useful tool in the president’s arsenal:
president James Madison was the first President to use it in 1812 and the most avid users of this
maneuver were President G.H.W Bush who used this power fifteen times and Reagan’s thirty-nine.
Savvy presidents use «vetoes not only to block legislation but to shape it […] Vetoes are not fatal
bullets but bargaining ploys.» (M. Cameron, 2000: 171) particularly under divided government
which has become a constant in US modern politics, the President and the Congress frequently
came to loggerheads over legislation.3
The president’s principal legislative tool is the use of the veto in order to extract policy concessions
and shape legislation. Even the veto threats, which are not scarce in most modern presidencies, can
serve many important purposes to a president: they can help the president obtain legislation which
comply with the administrative goals, they can enable an administration to communicate a position
or they can force compromise. Studies by Robert Spitzer, one of the key theorists on the presidential
veto, suggest that the veto threat may be an incredibly useful tool. Data collected from 1952-200
suggests that 32% of the time veto threats are followed by some sort of compromise and are
successful in killing a bill in its entirety 30% of the time.
3.1. Fate of Veto-Threatened Bills
President
Total
Threatened
Bills
Congress
Compromise
Backs Down
Bill Dies
President
Bill Passed
Backs Down
as Is
Bill Enacted
Vetoes Overridden
and Vetoed
___________________________________________________________________________________________________________
Kennedy
0
0
0
0
0
0
Johnson
0
0
0
0
0
0
Nixon
5
0
0
0
5
1
Ford
10
2
0
0
8
1
Carter
12
3
5
2
2
1
Reagan
48
9
19
4
16
5
Source: Spitzer,1993: 76.
Another presidential tool over legislation is the signing statement (Garber and Wimmer 1987;
Cooper 2005): it is simply a written message issued by the president when signing a piece of
2
In 1996, Congress gave the president the authority to select particular items from bills and individually veto them. The
line-item veto authority gave the president the ability to cut on the Federal Budget without vetoing a bill in its entirety
and like a regular veto, it could be overridden by a two-thirds majority vote of both houses. In 1998 the Supreme Court
ruled that the law was unconstitutional. 3
From 1953 to 1993 there had been five Republican Presidents, whereas the House was always Democratic. 5 legislation. This pronouncement give Presidents the opportunity to provide general commentary on
the bill and in practice, signing statements have been employed as a line-item veto to set boundaries
on the aim of legislation and to structure its implementation (Morgenstern, Polga, Rosenfield,
2013).
4. A comparison between the Republic of Venezuela and the US
According to González, Penfold and Obuchi (2004: 20), the Venezuelan veto served only to delay
the approval of legislation since the same simple majority that could approve a law could override
the president’s veto. Only three, maybe four, of the bills that were returned by the president were
effectively killed by this maneuver.
Tab.4.1. Number of Bills Returned per President (1959-1995).
President Period in Office President’s party
N of laws enacted N of Bills Returned
Bills returned to laws
Betancourt
1959-1964
AD: Majority
91
0
0
Leoni
1964-1969
AD: Minority
132
0
0
1
0.007
Caldera I
1969-1974
COPEI :Minority
134
Pérez I
1974-1979
AD : Majority
165
0
0
H. Campins 1979-1984
COPEI : Minority
159
5
0.031
Lusinchi
1984-1989
AD :Majority
179
5
0.028
Pérez II
1989-1993
AD : Minority
126
1
0.08
36
2
0.056
76*
6*
0.079
Velásquez 1993-1994
Non-partisan
Caldera II 1994-1999 CONV. : Minority
*Updated up to December 1995.
Source: adaptation from Amorim Neto and Magar, 2000: 36.
The evidence suggests that the formal power to delay the approval of legislation a few weeks did
not give the president much muscle to negotiate, so it has been rarely exercised. Furthermore,
presidents were rarely without majority support in Congress given the way the electoral laws were
set up, so they were forced to use the veto power hardly ever. For all these reasons, the number of
returned bills in 1959-1995 was impressively small. There have been 20 vetoes in 37 years and in
1959-89 there were 0.4 vetoes per year. The first 11 vetoes, which occurred between 1959 and
6 1989, contrast with the 860 bills that were signed into law by the executive after the Congress
authorized them in the same period: a ratio of 78 bills signed for every bill vetoed (Amorim Neto
and Magar, 2000: 10). In most instances presidents returned legislation for technical adjustments
that had to do with executing law and there were no efforts to seek change in its substance.
Tab.4.2. When a Venezuelan president vetoed a bill during his term.
No
Date bill was vetoed
President’s term ends
Days
remaining
term after the veto
12-Aug-69
11-Mar-74
1,672
30-Dec-80
1-Feb-84
1,128
3 Campins
4-Jan-82
1-Feb-84
758
4 Campins
24-Aug-82
1-Feb-84
526
5 Campins
10-Sep-82
1-Feb-84
509
6 Campins
13-Aug-83
1-Feb-84
172
7 Lusinchi
18-Apr-84
1-Feb-89
1750
8 Lusinchi
14-Dec-84
1-Feb-89
1510
9 Lusinchi
8-Oct-85
1-Feb-89
1212
10 Lusinchi
22-Dec-86
1-Feb-89
776
11 Lusinchi
2-Sep-87
1-Feb-89
518
12 Pérez
30-Dec-91
1-Feb-94ᵃ
764
2-Sep-93
1-Feb-94
152
14 Vélasquez
6-Sep-93
1-Feb-94
148
15 Caldera
25-Nov-94
1-Feb-99ᵇ
1529
16 Caldera
20-Dec-94
1-Feb-99ᵇ
1504
17 Caldera
20-Jan-95
1-Feb-99ᵇ
1473
18 Caldera
19-Jul-95
1-Feb-99ᵇ
1293
19 Caldera
27-Jul-95
1-Feb-99ᵇ
1285
20 Caldera
27-Jul-95
1-Feb-99ᵇ
1285
1 Caldera
(1969-1974)
2 Campins
(1979-1984)
(1984-1989)
(1989-1993)
13 Vélasquez
(1993-1994)
(1994-1999)
Average
7 998
in
Source: adaptation from Amorim Neto and Magar, 2000: 35.
ᵃ This is the formal end-date of C.A. Pérez’s term; he was impeached before expiration.
ᵇ Only the returned bills up to 29th November 1995 are followed.
Whenever the president’s party did not control the majority in Congress, the Venezuelan presidents
have used the veto power more frequently. The only exception was represented by Lusinchi’s
presidency. Lusinchi led AD to its greatest electoral victory in 25 years and he wanted to reform the
state in order to cope with the economic crisis. However, the initial support of AD and the internal
unity which carried Lusinchi into office became weak during his mandate. Some AD leaders started
to criticize their government publicly and the factionalism grew within the party leading the
President to block the will of the Congress always more frequently.
The presidents Pérez and Caldera have used the veto more frequently during their second mandate
showing that being lame ducks makes the presidents more comfortable when they have to veto.
The Congress hardly ever followed the will of the president and it reapproved the bills vetoed.
The analysis of the veto power and of its features shows that the Venezuelan bill-to-law provisions
worked not so much to give presidents some advantage over their congresses, but to block
interbranch deadlock. When a determined opposition controlled the Congress and the situation
could border on crisis, the parties have reverted their behavior from obstructionist oppositions to
protectors of the democratic system “above all else”.
The number of the vetoes has increased from 1980s reflecting the growing tension between the
President and the Congress during the years of the economic crisis and the resulting political
instability.4
As far as the timing of the vetoes is concerned, in Venezuela the vetoes occurred almost 1.000 days
before the end of the president’s mandate so the president remained, on average, 2 years and 9
months in office after the use of the veto. The standard deviation among the presidencies was small,
one year five months approximately. The vetoes that occurred closer to the next elections were
those issued by Ramón Velásquez. Thus, from the analysis it is evident that Venezuelan presidents
have not used the veto power frequently during the first mandate, when the relationship between the
recently elected president and the Congress is harmonious, the so-called “honeymoon period”.
4
Venezuelan economic decline persisted from 1979 to 1990. The debt crisis started in 1973 and the fell of oil prices
happened in 1985. Opposition started to organize itself, public services declined, infrastructure deteriorate and the party
system was affected by pathological tendencies such as corruption, loss of direction and controversial ideas within each
party. 8 In the US, 35 of 43 Presidents have exercised the veto power on a total of 2,550 occasions since the
beginning of the federal government in 1789. Of that number, 1,484, or 58 per cent, have been
returned vetoes and 1,066, or 42 per cent, were pocket vetoes. 7.1 per cent, or 106, of the 1,484
regular vetoes have been overridden by Congress. Congress attempted to override President Nixon
the most, on 87 percent of his vetoes. Several factors help explain why presidents have used the
veto power in the US. Firstly, presidential vetoes have been more likely when the presidency and
Congress were controlled by different political parties. Secondly, vetoes have been more likely in
the second or fourth years of a mandate and when there was a sag in public support for the President
(Spitzer, 1993: 72). Congress has been more likely to override a veto when party control was split
between the branches and when the president’s political standing was low for example during the
economic crisis.
Tab.4.3.
Congress
House
Senate
Total
Regular
Pocket
Overrides
*Success
Rate
Eisenhower
Totals
181
73
108
2
97.3%
83rd
50.8%
50%
52
21
31
0
100%
84th
46.7%
49%
34
12
22
0
100%
85
th
46.2%
49%
51
18
22
0
100%
86
th
35.2%
35%
44
22
22
2
90.9%
21
12
9
0
100%
J.F.
Totals
Kennedy
87th
60.5%
64%
20
11
9
0
100%
th
59.5%
66%
1
1
0
0
100%
30
16
14
0
100%
88
L.B.
Totals
Johnson
88th
59.5%
66%
8
4
4
0
100%
89th
67.8%
68%
14
10
4
0
100%
th
56.8%
64%
8
2
6
0
100%
43
26
17
7
73.1%
90
R.M.
Nixon
Totals
91
44.1%
43%
11
8
3
3
62.5%
92nd
41.4%
44%
20
6
14
2
66.7%
rd
44.1%
42%
12
12
0
2
83.3%
66
48
18
12
75.0%
27
16
11
4
75.0%
93
G.R. Ford
st
Totals
93rd
44.1%
42%
9 94th
J. Carter
R. Reagan
G.H. Bush
33.1%
38%
Totals
39
32
7
8
75%
31
13
18
2
84.6%
95th
67.1%
61%
19
6
13
0
100%
96th
63.7%
58%
12
7
5
2
71.4%
78
39
39
9
76.9%
Totals
97
th
44.1%
53%
15
9
6
2
77.8%
98
th
38.2%
54%
24
9
15
2
77.8%
99th
41.8%
53%
20
13
7
2
84.6%
100th
40.7%
45%
19
8
11
3
62.5%
44
29
15
1
96.6%
Totals
101
st
102nd
40.2%
45%
20
15
4
0
100%
38.4%
44%
24
14
11
1
92.9%
Source: House Partisan Divisions adapted from the Office of the Clerk of the United States House of Representatives.
Senate Partisan Divisions adapted from the United States Senate Historical Office.
• 1789 - 1945 vetoes data obtained from "Presidential Vetoes, 1789-1988" (Washington, D.C.: Government Printing
Office, 1992).
• 1945 - present vetoes data compiled by Gerhard Peters, The American Presidency Project.
*Veto success rate only includes regular vetoes. "Pocket vetoes" can only occur after a session of Congress has
adjourned and cannot be overridden by Congress.
The most noted use of the suspensive veto granted to the president as a real expression of
substantive disagreement between the president and the Congress over policy was that exercised by
Rafael Caldera during his first presidency. In 1969 Caldera won the presidency and it was the first
time that a candidate of COPEI became the head of the State. Caldera’s party did not have a
plurality in either Chamber and the Congress was the most factionalized in Venezuelan history. In
August 1969, members of Democratic Action (Acción Democrática), Democratic Republic Union
(Unión Republicana Democrática) and Democratic Popular Force (Fuerza Democrática Popular)
proposed to reform the Organic Law of Judicial Power in order to make a new body, the National
Judicial Council which would be responsible for naming 2.500 judges and it was going to be elected
by Congress with the participation of the executive and legislative branches. But in practice, the
National Judicial Council was controlled by the Congress which was guaranteed the majority.
Caldera exercised the presidential veto for the first time under the 1961 Constitution. When the
reform was returned to the President a second time with less than a two-thirds support, he exercised
the veto again. However, the reform law passed a third time and Caldera was obligated to
10 promulgate it (Crisp,1997: 186). From then on, the judicial system became ground for conflict
between the executive and legislative branches.
Eisenhower was the first president who faced three Congresses controlled by the opposite party, so
he learned quickly the importance of the veto to force compromise, above all in the final years of
his presidency. Of his 181 vetoes 73 were regular vetoes, 108 pocket vetoes and the Congress
overrode them twice. Kennedy was the first modern president to use the veto power less frequently
vetoing only 21 times but none of his vetoes have been overridden, as in Johnson’s case. Gerald
Ford (the most overridden presidents) and Richard Nixon are famous for the confrontational
environments in which they had to govern. Indeed, Ford (and Reagan) vetoed more than 50 bills
during his tenure in office (Kosar, 2005). Robert Spitzer (1993: 73) said that Ford’s presidency was
the only one in that century to adopt a true veto strategy. He faced a heavily Democratic controlled
Congress and issued sixty-six vetoes for his three years in office (forty-eight regular vetoes and
eighteen pocket), twelve of which were overturned. As a Republican, his heavy-handed use of the
veto caused problems for the Congress at a time when the country suffered from a deep economic
crisis accompanied by an increasingly high unemployment rate. A Ford legislative liaison officer
recalled, «We never deliberately sat down and made the decision that we would veto sixty bills in
two years.…It was the only alternative.» (Light C., 1999: 112). Jimmy Carter vetoed thirty-one
bills, despite having a comfortable Democratic majority, and two of Carter's vetoes were overridden
(15.4 percent of all his regular vetoes) including the 1980 Oil Imports Fee, which was judged a
major defeat for the President. Reagan in his eight-year term (1981–89) vetoed seventy-eight bills
(thirty-nine regular and thirty-nine pocket; nine overridden) in an age of growing domestic and
international difficulties. Bush found the veto to be a so important key instrument for blocking the
legislation passed by a Congress firmly under Democratic control, that David Lauter defined him
the “veto president”: all of his twenty-one vetoes during 1989-1991 were sustained.
McKay (1989), Lee (1975), and Copeland (1983) all find that being a Democrat leads to some
predisposition to veto legislation. Lee (1975) asserts that this can be because Democrats are more
activist in nature, due to their views on the role of government, more interventionist. However, as
the data show, Democrats were not more likely than Republicans to veto legislation among the
modern presidencies. Thus, in this sense, party identity can be considered as an heritage of the past
without having any independent effect on the use of the veto.
The Democratic hegemony of the 1960s was replaced by the conflicted years of 1970s, when the
relations between Republican presidents and Democratic Congresses were not in harmony and the
11 use of the veto increased correspondingly. With the return of a Democratic president in 1977, the
instrument was used less often.
Table 4.4. Presidential Vetoes of Public Bills, 1933-1986
President
Total
Regular
Pocket
Vetoes
per year
in
office
Override
attempts
Successful
Overrides
11
0
0
Override
attempts
as a %
of
regular
vetoes
36.6
0
0
Eisenhower
J.F.Kennedy
L.B.
Johnson
R.M. Nixon
G.R. Ford
J.Carter
R.Reagan
G.W. Bush
74
9
13
30
4
6
44
5
7
9.2
3.0
2.6
40
61
29
49
24
44
13
29
16
17
16
20
7.3
24.4
7.3
8.2
Successful
Overrides
as a % of
attempts
Successful
Overrides
as a % of
Regular
vetoes
2
0
0
18.2
0
0
6.6
0
0
22
28
4
10
91.6
63.6
30.8
34.5
5
11
2
6
22.8
39.3
50.0
66.0
20.8
25.0
15.4
20.7
Source: McKay, 1989: 453.
As McKay suggested (1989: 454), what emerges from the table is the existence of two distinct
periods: 1953-1968 and 1969-1986. Since 1969 the veto has been used more often and the party
control as a main explanation of this tendency receives a support from the experience of the
Eisenhower, Nixon and Ford administrations. Reagan did not experience an especially high
proportion of override attempts (34.5 per cent) but no less than two-thirds of these attempts were
successful, the highest of any modern president. Reagan's override majorities were actually larger
than Nixon and Ford's. Again, we should expect the opposite given Republican control. One
possible explanation can be that a split Congress produced a determination on the part of the Senate
controlled by the Republicans to maintain itself free of presidential pressures. According to Gilmour
(2002), Ford was most prone to using the veto, and Reagan, the least, even though Reagan
frequently spoke of using the veto («Go ahead, make my day!»5).
The main variable which explains the president’s usage of the veto power must be researched in the
party composition of the Congress. A significant amount of variation in presidential veto behaviour
is explained by the coincidence or the divergence between the president’s party and the majority in
Congress.
5
In 1985, President Ronald Reagan spoke out against taxes during the American Business Conference and stated «I
have my veto pen drawn and ready for any tax increase that Congress might even think of sending up. And I have only
one thing to say to the tax increasers. Go ahead—make my day.» 12 In the light of the data showed by the tables, it can be confirmed that the presidential veto in the
American version is actually a potential tool, but the Congress is not “without weapons”, not even
in front of popular and authoritarian Presidents. The analysis reveals that in Venezuela the decree
powers were the main source of the presidential power in the legislative process. A stronger veto
would have been necessary to strengthen the president’s position in the legislative process,
however, the Venezuelan send-back provisions had the bride side to block automatically
interbranch deadlock. The percentage of vetoes was greater in the second term than in the first, the
use of the veto power by the president increased to the end of their tenure, indeed, two-term
presidents employed the veto power 14.6% more during the final two years of the second term than
over the last two years of the first term.
5. Conclusions
The analysis of the presidential veto power in Venezuela and the US has shown that the veto has
been used more frequently when the presidency and Congress have been controlled by different
political parties; vetoes have been more likely in the second or fourth year of the presidential term
and when the president’s political standing was law, e.g. during the period of the economic crises.
In the US, the Congress has been more likely to override a veto when party control was split
between two branches.
13