Do Ya Feel Lucky, Punk? Obama, Vetos, and SAP’s

When is a veto threat not a veto threat?  That’s the question one needs to ask in light of the recent media stories and blog posts suggesting that President Obama has threatened to veto a recently passed military authorization bill for the next fiscal year because it includes language that could be construed as limiting the President’s flexibility to hold suspected terrorists in civilian custody.  The bill also contains provisions restricting Obama’s power to relocate enemy combatants now held at Guantanamo Bay, another detail that did not sit with the Obama Administration.  Despite the administration’s apparent veto threat, however, the bill passed the Senate by overwhelming numbers (93-7), and was supported by most of the Senate Democrats as well as Republicans. And yet, as I discussed here, the President apparently is persisting with his veto threat – a tactic that is both surprising, since Obama has only vetoed two bills so far, and risky, since it would appear that there would be enough votes in both the Senate and the House to override a presidential veto.

So what explains the President’s veto threat?  Why has he apparently stiffened his spine? The answer is that, despite my and others’ loose choice of words, Obama has not issued a veto threat.  His advisers have.

Let me explain.

Presidents typically issue a threat to veto pending legislation by issuing a SAP – a Statement of Administrative Policy. (Technically, these are issued by the Office of Management and Budget on the President’s behalf). Presidents issue SAP’s not just to signal their intent to veto; they may also be used to voice support for a bill, or to recommend that it be altered.  Frequently the SAP will say that the President opposes a bill, but it will stop short of threatening a veto. So, for example, today the administration  issued this SAP regarding legislation now being debated on Capitol Hill to extend the payroll tax cut, which is due to expire on Jan. 1.  In it, the Obama administration says it opposes one version of the bill now under consideration in the Senate, but supports another version.  However, it does not threaten to veto the less desirable bill.

On the other hand, here’s the language used in the Administration’s SAP regarding the House’s bill H.R. 2 which would repeal the Affordable Health Care Act:  “If the President were presented with H.R. 2, he would veto it” with the “would” underscored in the original document.

That is an unmistakable veto threat, one that does not leave the President with much wiggle room. More generally, SAPs serve as a signaling device.  They are a means by which the President can convey information to Congress regarding his legislative preferences.  Congress can then decide how to respond.    Political scientists have spent extensive time unpacking the logic of these signaling games, focusing in particular on veto threats and vetoes, in large part because these tactics are amenable to the type of deductive reasoning that rational choice theorists employ, and because it is easy to test some of the logical implications of these models.  I won’t delve too deeply into these models here, except to say that they can get very complicated depending on the assumptions one incorporates into them. The important point to remember is that the particular phrasing a president uses in a SAP is actually crucial to the signaling game; words convey not only a President’s preferences, but also the intensity with which he holds those preferences.

So, what does the Obama Administration’s SAP dealing with the military authorization bill actually say?  Here’s the opening line:  “The Administration supports Senate passage of S. 1867, the National Defense Authorization Act for Fiscal Year (FY) 2012.”  That’s right – the bill that most media and blogging outlets (including mine) are reporting that Obama is threatening to veto actually had the administration’s support, at least as of November 17! But wait – there’s more; further down the SAP contains this language:

“The Administration strongly objects to the military custody provision of section 1032, which would appear to mandate military custody for a certain class of terrorism suspects. This unnecessary, untested, and legally controversial restriction of the President’s authority to defend the Nation from terrorist threats would tie the hands of our intelligence and law enforcement professionals. Moreover, applying this military custody requirement to individuals inside the United States, as some Members of Congress have suggested is their intention, would raise serious and unsettled legal questions and would be inconsistent with the fundamental American principle that our military does not patrol our streets.”

And finally – and this is the crucial passage: “Any bill that challenges or constrains the President’s critical authorities to collect intelligence, incapacitate dangerous terrorists, and protect the Nation would prompt the President’s senior advisers to recommend a veto” (italics added).

So, to be clear, unlike the wording of the SAP stating the President’s reaction to the bill proposing to repeal Obamacare, the President has – as yet – not issued a SAP saying he will veto the military authorization bill.  In fact, he has left his final decision unclear, although he has noted that his advisers will be pressing him to veto.  Senators – including members of Obama’s own party – were forced to decide what the President would do if this bill passes in its current form.  Evidently most concluded that either the President will not act on his advisers’ recommendation to veto the bill, or that if he does they have the votes to override it. Or perhaps they expect the veto to be sustained, but still felt it in their own political interest to vote for the bill.  Note that there may be a range of motives in play, and not all of them are necessarily equally applicable to each Senator.

This is where the notion of “professional reputation”, a phrase coined by presidency scholar Richard Neustadt, comes into play.  Simply put, in trying to anticipate what the President might do, senators look in part Obama’s prior actions for clues regarding his likely behavior in this case. How many veto threats did he issue before? In how many cases did those threats come to fruition?

If we put ourselves in their shoes and examine Obama’s prior veto threats, what do we find?

Owen Witek looked through all of the Obama SAP’s listed on the White House website  that have been issued since he took office to see how many contained veto threats.  In this case, Owen used a rather broad definition of a veto threat; he counted any language suggesting a potential veto, even if issued by Obama’s advisers, as a real veto threat. (Note: these were SAP’s dealing with nonappropriation-related legislation.)  Interestingly, in the first two years of his presidency, Obama expressed opposition to only four bills being considered in the 111^th Congress, and he threatened to veto three of those bills. He eventually issued two vetoes, but they were not directed to any of the bills that were the subject of veto threats. (One was an appropriations bill, so it wouldn’t have made Witek’s list.)

Since the Republican takeover of the House, however, the number of nonappropriation-related veto threats, as defined here, has jumped dramatically; in the first session of the 112^th Congress, Witek counts 52 SAP’s that contain language saying Obama opposes all or a portion of pending legislation.  Thirty-one of those statements contain veto threats.  Since Witek made his count, the President has apparently issued at least one more veto threat (although I’ve yet to see the SAP for it on the White House website), this time objecting to efforts by House Republicans to package a plan to support the controversial Keystone oil shale pipeline with legislation extending the payroll tax cuts that are now due to expire Jan. 1.  Despite Obama’s threat, House Republican leaders seem intent on including the provision, which they see as necessary to win over Tea Party-backed Republicans.  These Republicans fear that by extending the payroll tax cut they are jeopardizing entitlement programs funded through these funds.  The House bill also includes other sweeteners designed to appease Republicans, including restrictions on illegal immigrants receiving tax benefits and reducing long-term unemployment benefits.

So, what does this record suggest about Obama’s likely response to the military authorization bill if it reaches his desk?  Frankly, it’s hard to tell without going into a deeper study of Obama’s SAPs, the context in which they were issued, and the reaction to his veto threats.  My best guess that Obama is not likely to veto it, his advisers’ recommendations to the contrary notwithstanding.  The Keystone rider to the payroll bill, on the other hand, is an entirely different matter – here it is Obama who has personally and publicly issued the veto threat, daring the Republicans to call his bluff.  It’s inconceivable to me that if it somehow passed the Senate in its current form (it won’t) and came to the President’s desk for his signature, he would not veto it.

Looking ahead, it seems clear to me that by the end of this congressional session his current veto total is likely to increase beyond the current two.  Note that neither George W. Bush nor Bill Clinton vetoed any bills in their first two years in office – in fact, Bush didn’t issue his first veto until after his reelection to a second term.  But Clinton ended up issuing 36 vetoes – all after the Republicans took control of Congress in 1994, and Bush ended up with 12 vetoes, 11 coming when the Democrats captured the Congress in 2006. In issuing these vetoes, Bush was overturned 4 times, Clinton just twice.

Whenever the Congress and the President are involved in a veto game, they have to ask themselves: what do I think I know about the other actor’s reputation?  Are their threats credible?  Or are they bluffing?  And perhaps most crucial: what are the consequences if I’m wrong? Sometimes the consequences can be quite costly, which is why presidents are very judicious in the wording they use in their SAP’s.

In any type of negotiation like this, of course, the key is not to misjudge one’s opponent….punk.