Reining in Congress: An Enforceable Balanced Budget Amendment

July 10, 2011 by Rob Natelson
Filed under: All Postings, Article V 

RGNStPaulsThere is growing sentiment that one or more constitutional amendments may be necessary to rein in the runaway Congress.

The principal mechanism the Founders built into the Constitution for such contingencies is the procedure in Article V by which two thirds of the state legislatures force what the Constitution calls a “Convention for proposing Amendments.”    Essentially this is a meeting of state legislative representatives for the drafting of one or more amendments on subjects designated by the legislatures.

Of course, Congress and its apologists have every reason to prevent such a convention from being called, so they have widely misled people as its nature and powers.  But if corrective amendments are to be proposed, there is no alternative to such a convention. History has shown that Congress will not do it:  Repeal of Prohibition aside, Congress has not proposed a constitutional amendment to limit or define its own powers since it passed the Bill of Rights in 1789!

In other posts I have dealt with the convention bugaboos—see, e.g., here and here. They need not detain us at this point. The more important questions are:

* What amendments are appropriate? and

* How should they be drafted?

Many people have their own pet amendments they’d like to see passed, but realistically, any such proposal must meet at least four criteria. To illustrate, I’ll test versions of balanced budget amendments against each of the four:

(1)    They must push government back toward Founding Era principles.

Historically, most successful constitutional amendments were perceived as doing this. One reason “progressives” promote their program in disregard of the Constitution’s true meaning is that they realize that the American people would never adopt constitutional amendments enacting it.

A balanced budget amendment might fill this criterion, but not if it included a provision conceding a large share of the economy to the federal government. For this reason, amendments that provide that federal expenditures must not exceed, say, 20% of GDP are non-starters. Properly interpreted, the federal government’s peacetime constitutional share of the economy is much less than that.

(2)    Proposed amendments must promise to have real force.

Merely symbolic amendments are not worth the trouble. For example, an amendment merely stating that Congress must balance the budget will be evaded. The amendment must contain an enforcement mechanism.

(3)    They must be widely popular.

This requires that they appeal to bipartisan constituencies. Some people support repeal of the 17th amendment (direct election of Senators), but repeal would not be widely popular. A balanced budget amendment probably would qualify, but not one that rules out tax increases as a balancing device. Too many people favor using tax increases to close all or part of the deficit, and without their support there is no chance a balanced budget amendment would pass.

(4)    Such amendments must be of the kind state lawmakers can appreciate.

Remember, state lawmakers are the people who force the convention and likely will be the ratifiers as well. Most can understand the need to balance a budget, since they are forced to do so (admittedly, sometimes with a certain amount of fudging) every general session. But they also are unlikely to approve an amendment that rules out tax increases as a balancing device.

There have been many suggestions for balanced budget amendments with teeth. Reader Andy Hawks has suggested three. One would create a line-item veto for the President when the budget was unbalanced. Another would prevent members of Congress from running for immediate re-election (or election to the other house) if the budget has been unbalanced for five consecutive years in which they have served. Still another, which he calls the F.E.A.R. (Fiscal Enforcement and Responsibility) amendment would combine both approaches. By permission I reproduce it here:

“SECTION 1. For purposes of this article, the budget of the United States for any fiscal year shall be deemed unbalanced whenever the total amount of the debt of United States held by the public at the close of such fiscal year is greater than the corresponding total amount of debt held by the public at the close of the preceding fiscal year.

“SECTION 2. No person who serves in Congress during any five consecutive fiscal years in which the budget of the United States is unbalanced shall be eligible for election or appointment to the Senate or election to the House of Representatives until the expiration of such person’s current term of office. The first five-year period governing eligibility for election under this section shall commence with the first fiscal year that both ends in an odd-numbered year and commences after this article takes effect.

“SECTION 3. If the budget of the United States is unbalanced for any given fiscal year, the President may separately approve, reduce, or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the legislative and judicial branches of the Government, and which is presented to the President during the next annual session of
Congress. This section shall take effect on the first day of the next regular session of Congress following its ratification.

“SECTION 4. Any legislation that the President approves with changes pursuant to section 3 of this article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed under section 7 of article I for bills disapproved by the President, separately
reconsider those reduced or disapproved monetary amounts.

“SECTION 5. The Congress shall have the power to implement this article by appropriate legislation.
“SECTION 6. This article shall be inoperative unless it shall have been ratified by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States.”

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