Mitt Romney and Rudy Giuliani have many differences and something in common: Each governed a liberal place, and each, while in office, often sided with liberals on particular issues. They are both making the presidential campaign more entertaining through strenuous but unconvincing attempts to live down those youthful indiscretions.
Lately they have been arguing over the line-item veto, which lets a president excise individual spending programs without killing an entire bill. Romney faults Giuliani for going to court to challenge the line-item veto enacted under President Clinton, and Giuliani insists he couldn't tolerate this well-meaning law because of his deep respect for the Constitution.
In last week's debate, Romney declared, "The best tool the president has had is a line-item veto. And Mayor Giuliani took the line-item veto that the president had all the way to the Supreme Court and took it away from the president of the United States. I think that was a mistake."
Giuliani said it was not a matter of loving spending cuts less but loving the Constitution more. "The line-item veto was unconstitutional," he replied. "What the heck can you do about that, if you're a strict constructionist?"
Romney has proven time and again that if he has to look ridiculous to become president, he's willing to make the sacrifice. No position he took in the past was so firm or clear that he is not willing to abandon it like a burning car. Abortion, gay rights, immigration, gun control—you name it, he's argued it either way.
But his latest venture puts him in an even odder position. When the Supreme Court struck down the line-item veto, he insisted, only two people applauded—Democratic Sen. Robert Byrd of West Virginia and Giuliani.
Not exactly. Contrary to Romney's recollection, it was not Giuliani who took away the line-item veto but the Supreme Court. Among the justices who voted to strike it down were two justices revered on the right: William Rehnquist and Clarence Thomas.
They voted that way because the line-item veto defied the clear intent of the framers—who stipulated that the president may sign a bill or veto a bill, but may not sign the whole and then veto a part, as this measure allowed. Anytime a Republican presidential candidate floats the proposition that Clarence Thomas is not conservative enough on matters of constitutional interpretation, he's not doing himself any favors.
But that's not the least believable notion advanced by Romney. His implication is that when an unconstitutional law serves worthy purposes, conservatives should forget the Constitution and keep the law. In Romney's eyes, Giuliani's sin was not being wrong about the statute, but being right. Had he just stayed out of court, the nation could have enjoyed indefinitely the benefits of an illegal expansion of President Clinton's authority.
Almost as outlandish as Romney's attack is Giuliani's defense, which is to cast himself as a lonely guardian of the Constitution. In fact, Giuliani used the Constitution mainly for target practice. Notes famed lawyer Floyd Abrams, "Over 35 separate successful lawsuits were brought against the city under Giuliani's stewardship arising out of his insistence on doing the one thing that the First Amendment most clearly forbids: using the power of government to restrict or punish speech critical of government itself."
When he challenged the line-item veto, in a case involving Medicaid funds, the mayor's chief concern was not legal principle but cash. "In an interview today," reported The New York Times in 1997, "Mr. Giuliani said he was filing the suit because the president's veto had jeopardized the state's system for financing care for the needy, most of whom live in New York City." Giuliani said, "What I'm concerned about is that New York is being treated unfairly and that we get the money we are entitled to."
There was his line in the sand: He would not tolerate any infringement on the separation of powers that cost his constituents money. Under him, the city's position was exactly what it would have been if Democrat David Dinkins, who lost to Giuliani in 1993, had still been mayor.
So there are the adversaries on the line-item veto: Mitt Romney dismissing a violation of the clear language of the Constitution, and Rudy Giuliani making a rare defense of the Constitution in an effort to keep a place at the federal trough. But their disagreement at least provides a definitive answer on which candidate is the authentic conservative: Neither.
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