[House Hearing, 118 Congress]
[From the U.S. Government Publishing Office]
EXAMINING PROPOSED CONSTITUTIONAL AMENDMENTS
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON THE CONSTITUTION AND LIMITED GOVERNMENT
OF THE
COMMITTEE ON THE JUDICIARY
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
TUESDAY, SEPTEMBER 19, 2023
__________
Serial No. 118-44
__________
Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available via: http://judiciary.house.gov
______
U.S. GOVERNMENT PUBLISHING OFFICE
53-604 WASHINGTON : 2023
COMMITTEE ON THE JUDICIARY
JIM JORDAN, Ohio, Chair
DARRELL ISSA, California JERROLD NADLER, New York, Ranking
KEN BUCK, Colorado Member
MATT GAETZ, Florida ZOE LOFGREN, California
MIKE JOHNSON, Louisiana SHEILA JACKSON LEE, Texas
ANDY BIGGS, Arizona STEVE COHEN, Tennessee
TOM McCLINTOCK, California HENRY C. ``HANK'' JOHNSON, Jr.,
TOM TIFFANY, Wisconsin Georgia
THOMAS MASSIE, Kentucky ADAM SCHIFF, California
CHIP ROY, Texas ERIC SWALWELL, California
DAN BISHOP, North Carolina TED LIEU, California
VICTORIA SPARTZ, Indiana PRAMILA JAYAPAL, Washington
SCOTT FITZGERALD, Wisconsin J. LUIS CORREA, California
CLIFF BENTZ, Oregon MARY GAY SCANLON, Pennsylvania
BEN CLINE, Virginia JOE NEGUSE, Colorado
LANCE GOODEN, Texas LUCY McBATH, Georgia
JEFF VAN DREW, New Jersey MADELEINE DEAN, Pennsylvania
TROY NEHLS, Texas VERONICA ESCOBAR, Texas
BARRY MOORE, Alabama DEBORAH ROSS, North Carolina
KEVIN KILEY, California CORI BUSH, Missouri
HARRIET HAGEMAN, Wyoming GLENN IVEY, Maryland
NATHANIEL MORAN, Texas BECCA BALINT, Vermont
LAUREL LEE, Florida
WESLEY HUNT, Texas
RUSSELL FRY, South Carolina
------
SUBCOMMITTEE ON THE CONSTITUTION AND LIMITED GOVERNMENT
MIKE JOHNSON, Louisiana, Chair
TOM McCLINTOCK, California MARY GAY SCANLON, Pennsylvania,
CHIP ROY, Texas Ranking Member
DAN BISHOP, North Carolina STEVE COHEN, Tennessee
KEVIN KILEY, California VERONICA ESCOBAR, Texas
HARRIET HAGEMAN, Wyoming CORI BUSH, Missouri
WESLEY HUNT, Texas SHEILA JACKSON LEE, Texas
RUSSELL FRY, South Carolina BECCA BALINT, Vermont
CHRISTOPHER HIXON, Majority Staff Director
AMY RUTKIN, Minority Staff Director & Chief of Staff
C O N T E N T S
----------
Tuesday, September 19, 2023
Page
OPENING STATEMENTS
The Honorable Mike Johnson, Chair of the Subcommittee on the
Constitution and Limited Government from the State of Louisiana 1
The Honorable Mary Gay Scanlon, Ranking Member of the
Subcommittee on the Constitution and Limited Government from
the State of Pennsylvania...................................... 3
The Honorable Jerrold Nadler, Ranking Member of the Committee on
the Judiciary from the State of New York....................... 5
WITNESSES
Nick Tomboulides, Executive Director, U.S. Term Limits
Oral Testimony................................................. 6
Prepared Testimony............................................. 8
David Primo, Ani and Mark Gabrellian Professor, Professor of
Political Science and Business Administration, University of
Rochester
Oral Testimony................................................. 10
Prepared Testimony............................................. 12
Stephen Spaulding, Vice President of Policy and External Affairs,
Common Cause
Oral Testimony................................................. 17
Prepared Testimony............................................. 19
Thomas Jipping, Senior Legal Fellow, Edwin Meese III Center for
Legal and Judicial Studies, The Heritage Foundation
Oral Testimony................................................. 26
Prepared Testimony............................................. 28
LETTERS, STATEMENTS, ETC. SUBMITTED FOR THE HEARING
All materials submitted for the record by the Subcommittee on the
Constitution and Limited Government are listed below........... 82
A statement from Art Harman, Executive Director, Americans for
Term Limits, Sept. 19, 2023, submitted by the Honorable Mike
Johnson, Chair of the Subcommittee on the Constitution and
Limited Government from the State of Louisiana, for the record
Materials submitted by the Honorable Mary Gay Scanlon, Ranking
Member of the Subcommittee on the Constitution and Limited
Government from the State of Pennsylvania, for the record
An article entitled, ``Warning: A `Convention of States' Is
Practicing to Rewrite the Constitution,'' Jul. 14, 2023,
The Nation
An article entitled, ``A Second Constitutional Convention?
Some Republicans Want to Force One,'' Sept. 4, 2022, The
New York Times
An Issue Brief entitled, ``A Dangerous Adventure: No
Safeguards Would Protect Basic Liberties from an Article
V Convention,'' Oct. 2021, American Constitution Society
An article entitled, ``5 Reasons to Reject Any Constitutional
Balanced Budget Amendment,'' Apr. 29, 2019, The Center on
Budget and Policy Priorities
An article entitled, ``Tax Cuts Are Primarily Responsible for
the Increasing Debt Ratio,'' May 27, 2023, Center for
American Progress
An article entitled, ``Constitutional Balanced Budget
Amendment Poses Serious Risks,'' Mar. 16, 2018, Center on
Budget and Policy Priorities
An article entitled, ``Term limits would upend Congress as we
know it,'' Sept. 16, 2023, The Washington Post
APPENDIX
A statement submitted by the Honorable Sheila Jackson Lee, a
Member of the Subcommittee on the Constitution and Limited
Government from the State of Texas, for the record
Materials submitted by the Honorable Mike Johnson, Chair of the
Subcommittee on the Constitution and Limited Government from
the State of Louisiana, for the record
A statement from Kurt Couchman, Senior Fellow, Fiscal Policy
for Americans for Prosperity, Sept. 19, 2023
An article entitled, ``A well-crafted budget amendment can
succeed,'' Jan. 20, 2017, The Hill
EXAMINING PROPOSED CONSTITUTIONAL AMENDMENTS
----------
Tuesday, September 19, 2023
House of Representatives
Subcommittee on the Constitution and Limited Government
Committee on the Judiciary
Washington, DC
The Committee met, pursuant to notice, at 2:07 p.m., in
Room 2141, Rayburn House Office Building, the Hon. Mike Johnson
of Louisiana [Chair of the Subcommittee] presiding.
Members present: Representatives Johnson of Louisiana,
Jordan, McClintock, Kiley, Hageman, Hunt, Fry, Scanlon, Nadler,
Cohen, Jackson Lee, and Balint.
Also present: Representative Moran.
Mr. Johnson of Louisiana. The Subcommittee will come to
order. Without objection, the Chair is authorized to declare a
recess at any time, and we may well have to do that. We're
expecting the vote series to be called in the next \1/2\ hour.
I'm told that there are five votes in the series. So, if you do
the math maybe 50 minutes or so that we'll break. We're going
to do the best we can because we want to be good stewards of
all your time so we appreciate you being here.
We welcome you to today's hearing on proposed
Constitutional Amendments. Without objection, our colleague,
Mr. Moran, on the Full Committee will be able to participate in
the hearing today.
I will now recognize myself for an opening statement.
Sunday, as we all know, was Constitution Day in America. A
great celebration because it was on September 17, 1787 that our
Nation's Founders signed the Constitution that they had drafted
during the Constitutional Convention in Philadelphia.
The Constitution was a new and ambitious experiment in
self-governance. It still is that. It stood the test of time.
and we're now 236 years into this experiment.
It is the oldest and shortest Constitution the world has
ever known. It laid the foundation for our country to be the
freest, most powerful, most successful Nation in history. It is
the envy of the whole world. It is the model for everyone.
A key part of the Constitution is Article V, of course,
which establishes two mechanisms to amend it. The Founders
viewed the ability to amend the Constitution as one of its most
important features. It has been that.
At the convention, Elbridge Gerry argued that, ``The
novelty and difficulty of the experiment requires periodical
revision.'' George Mason similarly acknowledged that, ``better
to provide for them in an easy, regular and Constitutional
way.''
Of course, we've used Article V, that process, to amend the
Constitution 27 times since 1787, most recently in 1992. Some
of these amendments articulate and protect the most cherished
rights of Americans. It's sad for me to say this, but we really
do need those protections more than ever today arguably because
our most fundamental rights have recently come under
unprecedented attack.
According to a recent Federal Court decision, upheld by the
Fifth Circuit here about a week ago, the Biden Administration
has engineered what the District Court called, ``arguably the
most massive attack on free speech in the United States
history'' with its censorship schemes with the big tech
platforms online.
We have liberal Democratic Governors like Newsome, Lujan
Grisham, and Whitmer, who are devising new ways seemingly to
trample on our Bill of Rights.
Among other things, the First Amendment, as we know,
protects our rights to free speech in association, and it
prohibits the establishment of a national church, like they had
the Church of England, while carefully preserving the vibrant
expression of faith in a public square and the free exercise of
religion.
The Second Amendment secures our right to protect ourselves
and our families with firearms.
The three amendments adopted near the end of the Civil War
moved us closer to fulfilling the promissory note of our
Declaration of Independence that all men are created equal and
endowed with the same God given rights. Our national ideal is
expressed in the preamble of our Constitution, forming a more
perfect union.
Many other Constitutional Amendments have been proposed
over the years but never adopted. The provisions of Article V
create a very difficult process to change the Constitution and,
of course, that is by design. They didn't want it to be done
arbitrarily.
The two mechanisms to amend are very straightforward. An
amendment may be proposed by a two-thirds vote of both Houses
of Congress and then be ratified by three-quarters of the State
Legislatures or an amendment may be proposed by two-thirds of
the States in a convention called for that purpose. That
amendment must then be ratified by three-quarters of the State
legislatures or three-quarters of the conventions called in
each State for ratification.
Today, no such convention has ever been called, but efforts
have been underway in recent years to do so.
The witnesses before us today will speak about the process
for proposing amendments and specific proposed amendments as
well. We'll hear about a proposed amendment introduced by
Representative Ralph Norman to impose term limits on Members of
Congress.
I will say parenthetically many of us here agree with that
idea, and I have joined in legislation for years to urge that
change.
We will also hear about the Balanced Budget Amendment,
which would impose a measure of fiscal discipline that Congress
has lacked in recent decades. I certainly agree with that very
sensible idea as well.
I thank our witnesses for appearing here today, and we look
forward to the discussion on these important issues.
I will now recognize the Ranking Member, the gentlewoman
from Pennsylvania, Ms. Scanlon, for her opening statement.
Ms. Scanlon. Thank you, Chair. I thank our witnesses for
sharing their expertise and views on Article V of the
Constitution today. I look forward to an interesting
conversation about the methods provided by the Founders for
revision of the Constitution because, of course, in their
wisdom our Founders recognized that neither our Constitution
nor our Union were perfect at their inception, and it was
important to provide for the continual improvement of both.
Article V provides the means for revising the Constitution,
but requires extraordinary action by Congress and the States to
make changes to that foundational document and our national
government, deliberately placing the process of amending it
above the fray of day-to-day politics and factionalism.
The ordinary and traditional process for amendment under
Article V requires two-thirds of each House of Congress to pass
an amendment and three-quarters of the States to ratify it.
That is what we've done in this country at critical moments in
our history to propose amendments, whether through the initial
Bill of Rights, amendments expanding suffrage and civil rights,
affirming the Federal Government's power of taxation or
clarifying the order of Presidential succession.
Our colleagues across the aisle have called this hearing to
highlight some amendments which they would like to make to the
Constitution, but which have failed to gain traction over the
years. I will discuss them briefly in a moment.
The secondary and more troubling purpose of this hearing is
to normalize the idea of a Second Constitutional Convention,
which is being actively promoted in some Republican circles.
Article V also provides for Congress to call a Constitutional
Convention if two-thirds of State legislatures petition
Congress for such a convention. Three-quarters of the States
would then have to ratify any revisions made by such a
convention. Beyond this, neither the Constitution nor history
provide much guidance.
Although some will argue today that the push for a
Constitutional Convention is a grassroots movement, it's
actually an astroturf effort, fueled by dark money to promote
an extremist agenda. Essentially being unable to gain the
popular support to amend the Constitution in the traditional
manner, some right-wing factions are now seeking to convene a
convention to remake the Constitution to their liking, opening
the door for the erasure of fundamental civil liberties and
upending, potentially, our Constitutional order.
At a moment when our national politics are so riven by
partisanship that Congress cannot even muster the votes to fund
the government, this seems to be a very dangerous idea.
Convening a Constitutional Convention is unchartered territory
that raises many questions.
How do we count petitions for an Article V Convention? Who
gets to select delegates or determine their qualifications?
Will the number of delegates be proportional to the population
or similar to the electoral college, be based on the number of
States regardless of their populations? Who even gets to decide
the answers to these or other procedural questions?
It also raises alarms that this right-wing call for a
Constitutional Convention seeks to capitalize on the efforts of
the National Republican Party to capture the majority of State
legislatures through the red-map strategy over the last 15
years.
Today our Republican colleagues seek to highlight two
particular changes to the Constitution, which they would like
to impose, either through amendment or a Constitutional
Convention, a Balanced Budget Amendment and term limits for
Members of Congress and the Senate. They've been pushing
unsuccessfully for those amendments for decades, even when they
controlled both Houses of Congress.
The reason why they have not succeeded thus far is that
while superficially appealing, once one dives into the details,
most people decide that these ideas, if implemented, would
actually undermine our democracy and tangibly harm Americans'
basic well-being.
One of the reasons a Balanced Budget Amendment is so
unpopular, is that it would slash critical social safety net
programs that millions of Americans depend on to support
themselves and their families, such as Social Security Medicare
or Medicaid, SNAP, unemployment insurance, and veterans'
benefits. It's not just those social safety net programs that
would be at risk.
Federal Deposit Insurance and Military Retirement Funds
would be imperiled under a Balanced Budget Amendment, anything
funded by drawing on savings accumulated in prior years would
be prohibited. Of course, it would hamstring the Federal
Government, its ability to respond in cases of a national
emergency.
A Balanced Budget Amendment is essentially a gimmick. We
don't need a Balanced Budget Amendment to balance a budget. In
fact, Congress has balanced the Federal budget as recently as
the 90's without any amendment. It does require Congress to be
responsible about both the revenue it collects and the spending
it authorizes.
When those proposing a Balanced Budget Amendment do so
while being unwilling to require wealthy corporations and
billionaires to pay their fair share, they make clear that they
are only interested in balancing the budget at the expense of
the middle class and vulnerable Americans.
Finally, a quick word about term limits because I know
others will speak about this as well. We do already have term
limits. They are called elections. Voters should decide when an
elected official's time in office is over, and shame on them if
they are not exercising their right to do so. Rather than
binding future voters through a Constitutional Amendment, we
should redouble our efforts to promote civic engagement, making
it easier, not harder, for eligible votes to participate.
I thank our witnesses for being here and look forward to
their testimony.
Mr. Johnson of Louisiana. I thank the Ranking Member, and I
will call on the Chair of the Full Committee, Chair Jordan, for
his opening statement.
Chair Jordan. I thank the Chair for convening this hearing
and for the good work he and the Committee are doing on a
number of issues and our witnesses. I would just say it seems
to me there are 33 trillion reasons why we need a Balanced
Budget Amendment. Every State has to balance their budget,
every county, every city, every township, everybody has to
balance their budget except the one entity that has the $33
trillion debt.
So, maybe we should just have a Balanced Budget Amendment
to the Constitution and just tackling this huge, huge problem
and maybe one of the ways to help in that effort is to limit
the terms of the politicians who created the $33 trillion debt.
That seems pretty common sense to me.
The good folks I get the privilege of representing back in
the Fourth District of Ohio, my guess is the vast majority of
them would say that's pretty common sense. So, I appreciate the
witnesses who are here today, the fact that we're talking about
these issues, something that I think needs to happen and should
have happened a long time ago. With that I yield back.
Mr. Johnson of Louisiana. I thank the Chair. Without
objection, all other opening statements will be included in the
record.
We'll now introduce today's witnesses. Mr. Nick Tomboulides
is the Executive Director of U.S. Term Limits, a nonprofit
organization that advocates for term limits at all levels of
government. He's a graduate of the University of Connecticut
with a degree in economics.
Dr. David Primo is the Ani and Mark Gabrellian Professor of
Political Science and Business Administration at the University
of Rochester. He's also a senior affiliate scholar at the
Mercatus Center. He's an expert on fiscal policy in the budget
process and has authored several books on the topic, including
``Rules and Restraint: Government Spending and the Design of
Institutions.'' I haven't read that, but I want to.
Mr. Thomas Jipping is a Senior Legal Fellow in the Edwin
Meese III Center for Legal and Judicial Studies at the Heritage
Foundation. His research focuses on the Constitution, the
political process, the courts, and other issues. Prior to
joining the Heritage Foundation, he served for 15 years on the
staff of Senator Orrin Hatch.
Mr. Stephen Spaulding is the Vice President for Policy and
External Affairs at Common Cause. He previously served as a
staff member in Congress, including the House Administration
Committee and the Senate Rules Committee, and served as a
Special Counsel to FEC Commissioner Ann Ravel.
We welcome our witnesses, and we thank you all for
appearing today especially under these sorts of unique
circumstances.
We will begin by swearing you in, and I will ask you to
rise and raise your right hand.
Do you solemnly swear or affirm under penalty of perjury
that the testimony that you are about to give is true and
correct to the best of your knowledge, information and belief
so help you God?
Let the record reflect the witnesses have answered in the
affirmative.
So, you know that your written statement is entered into
the record in its entirety. So, because of that, we ask you to
summarize your testimony in five minutes. You all have done
this before, but the microphone in front of you has a clock and
a series of lights. When the light turns yellow, you should
begin to conclude your remarks. When it turns red, your time
has expired. Mr. Tomboulides, we will begin with you. Oh,
sorry, yes, push that button there for me.
Mr. Tomboulides. All right. All good?
Mr. Johnson of Louisiana. Very good.
STATEMENT OF NICK TOMBOULIDES
Mr. Tomboulides. Thank you again. Each year Gallup does a
poll where they ask Americans how much confidence they have in
16 different social institutions. At the very top of the list
is small businesses. Seventy percent of Americans have
confidence in those.
The lowest-rated group is the U.S. Congress. Only eight
percent of people trust Congress. It's also no shock, of
course, that 83 percent of Americans support term limits. That
includes huge majorities of Democrats, Republicans, and
independent voters.
So, if 83 percent of us want term limits, why is it not yet
the law of the land? Because the permanent political class
thinks the American people are wrong. They think we are
unsophisticated. They think we are not smart enough to decide
this issue.
I couldn't disagree more. I think the American people can
see exactly what is happening here. In the real world, we are
surrounded by change, by progress, and by evolution. Technology
doubles every year. The only thing that never changes and never
adapts is Congress.
You probably saw the story about the two ancient frozen
mummies. Mexico calls them space aliens. Here we call them
Senators. A third of our Senate is 70 or older, including
several Members who were born before or during World War II. Of
course, because of the seniority system, the older you are, the
more power you have.
In the real world, when a powerful person is showing
obvious mental decline, the people around them do what is best
for that person. Washington is not the real world. It is a
fantasy world where you get ahead not by speaking the truth,
but by groveling to those above you. If you fall in line and
vote with leadership, you get to keep your seat for life.
We are always told that Members of Congress are hard at
work protecting our democracy, protecting it from Presidents,
former Presidents, the Supreme Court and so on.
One Member of this Committee even wrote a book about that.
In reality, there is nothing less democratic than a
Congressional election. Over the last 20 years, House
incumbents have had a 94 percent reelection rate. The Senate
numbers aren't much better. Last year, 100 percent of Senators
were reelected. That doesn't happen because people are thrilled
with their Congress Members. Come on. It happens because the
ruling elite have rigged the system in favor of incumbents.
I will give you an example. In just the last few months, I
have received a stack of full color mail brochures from my
Member of Congress. I assume everybody in the district got one.
On the back in fine print, it says paid for by the taxpayers.
So, he spends a million bucks in public funds to tell us
that he's against wasteful spending. You can help me figure
that out. The bottom line is he is campaigning on the
taxpayer's dime. If someone wanted to challenge him, they would
have to raise money the old-fashioned way from real donors. So,
you can see how the deck is stacked.
Where does all the big money go? It flows to incumbents,
through the power of PACS, lobbyists, and special interest.
Incumbents raise roughly 10 times more money than their
challengers. That is to say nothing of all the other advantages
they hold like free media, name recognition, and a staff of 20
people who are basically a government-funded campaign team.
This very Committee has held hearings where politicians
have asked, is Mark Zuckerberg too powerful or is Elon Musk too
powerful? I think it's time we started asking, is Congress too
powerful?
Look what's happening to Google right now. When a private
business uses its power to eliminate the competition; it's
called a monopoly. It gets fined and maybe even shut down. When
a Member of Congress does the same thing, they get reelected.
It's a double standard.
So, the game has been rigged. As a result only about 15
percent of Congressional elections are actually competitive.
Our most senior Members run with phony opposition, similar to
how Vladimir Putin and Xi Jinping managed to stay in power.
Is it any surprise voter apathy is reaching record highs,
and people are increasingly saying, I don't feel like my vote
matters. I don't have faith in our elections. We need to fix
this.
A Constitutional Amendment for term limits is the only way
forward. It will create open seats, lower the barriers to
entry, and provide us with a citizen legislature as our
Founders intended.
It has to be a six-year limit in the House and a 12-year
limit in the Senate because that is what the American people,
your employers, demand.
Fortunately, 112 Members of the House have signed a pledge
to support this specific term limits amendment and nothing
longer. If the bill gets amended to a longer limit, voting for
it would be breaking that pledge.
I believe this upcoming vote on term limits will be a
defining moment for our country. The ball is in your court. You
get to decide how history will remember you.
Will you be remembered as the rich men North of Richmond,
as the punch line to every joke, as the people with an eight-
percent approval rating that nobody can stand or will you be
remembered as the modern day George Washington? When Washington
had the opportunity to become a king, he said, ``no'' because
he believed in this country, and he trusted in its people. He
knew there was a time to step aside and let new leaders emerge.
For our generation, now is that time.
Thank you. I am happy to answer any questions you may have.
[The statement of Mr. Tomboulides follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Louisiana. Thank you, Mr. Tomboulides.
Professor Primo, you may begin next.
STATEMENT OF DAVID PRIMO
Mr. Primo. Chair Johnson, Ranking Member Scanlon, and
Members of the Subcommittee, thank you for inviting me to
discuss the urgent need for a Constitutional Amendment that
restrains the Federal budget.
My three-part message today is this. First, the Federal
budget outlook is grim and threatens the economic future of the
United States.
Second, Congress is constitutionally incapable of tying its
own hands, making it difficult for legislators to implement
durable changes to the Federal budget.
Third, a Constitutional Amendment restraining the budget,
if well designed, would provide the foundation for credible and
sustainable fiscal policy.
My first point is going to take us back in time to 2011.
When I first testified on this subject back then, the Nation's
fiscal problems were receiving significant attention from
Congress, the White House, credit rating agencies, and the
American public.
Regrettably, this window of opportunity for reform shut
before meaningful changes occurred. The result, Federal debt
held by the public when I testified in 2011 was $9.7 trillion,
about 60 percent of GDP at the time. Today, that debt held by
the public stands at $26.2 trillion and is basically equal to
the size of our economy.
The debt storm budget experts like me have been predicting
is here, and it is going to intensify. The Congressional Budget
Office projects that debt levels might reach 181 percent of GDP
in 30 years if Congress fails to act.
Unchecked debt growth is going to have enormous
consequences on the economy, interest payments on the debt, and
ultimately, it is going to produce a fiscal crisis. The current
fiscal path is unsustainable and threatens of well-being of
Americans, especially those in future generations.
To get on a stable fiscal path and stay there, Congress
needs to act quickly and credibly. So, why hasn't it?
Well, that takes me to my second point. Congress is its own
worst enemy when it comes to fiscal policy. Congressional
reelection motivations make it tempting for lawmakers to leave
difficult decisions about programs like Medicare for tomorrow.
Politically, it seems there is never a good time to deal with
the budget crisis.
Now, even if the political hurdles facing budget reform are
overcome, and that's a big if, Congress faces yet another
problem. Specifically, Article I, Section 5, of the U.S.
Constitution which reads, in part, ``Each House may determine
the rules of its proceedings.''
The reality is, Congress cannot write a contract that binds
itself to a future course of action. This is true with respect
to both substantive reforms, like reforms to Medicare, and
process reforms, such as changes to budget rules. What Congress
does today, a future Congress can undo tomorrow.
In my third and final point, I propose a solution to this
quandary, a well-designed amendment to the U.S. Constitution.
Such an amendment would place permanent, truly enforceable
limits on Congress' ability to tax and spend. In doing so, it
would create an environment under which the question for
Members would no longer be whether to fix the Nation's
problems, but how to do so.
So, what should an amendment look like? In my remaining
time, I will sketch three broad principles for budget rule
design.
First, the amendment should account for the economic ups
and downs that we observe by setting spending limits or targets
based on multiyear period of economic performance, thereby
accounting for fluctuations that we will see naturally over
time in the economy. This smoothing approach has been adopted
to much success in countries like Germany and Switzerland.
Second, the amendment should be flexible enough to account
for major disruptions like a war or a pandemic and at the same
time should be stringent enough to prevent end runs around its
provisions. A large super majority voting threshold for
emergency waivers would go a long way in that regard ensuring
that funding for true emergencies would still be available.
For instance, the CARES Act, which passed in the early days
of the pandemic, a time of true emergency, could have been
enacted even if a Constitutional Amendment were in force at the
time.
Third, concerns about U.S. Supreme Court involvement in
enforcing the amendment should be addressed by eliminating
remedies and clarifying which parties have standing. The one
thing we don't want to do, reject the entire enterprise of a
Constitutional budget rule as some skeptics have done based on
critiques of specific proposals.
In closing, the United States is in precarious fiscal
health, necessitating the serious step of amending the U.S.
Constitution. To be clear, the amendment process is fraught
with political and procedural challenges, but a well-designed
Constitutional Amendment will help the country achieve credible
and sustainable budget reform.
While successes in budgeting have occurred on occasion,
these successes have almost always been short-lived. A
Constitutional Amendment can help make future budget agreements
durable and reduce political uncertainty.
In the absence of a Constitutional Amendment, I fear it
will take a fiscal crisis before Congress acts. Nobody wants
that. Thank you again for allowing me to testify, and I look
forward to your questions.
[The prepared statement of Mr. Primo follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Mr. Johnson of Louisiana. Thank you, Professor Primo. Ms.
Spaulding, I'll ask you to go next. You all are probably the
buzzer means we have votes that started. We have 20 minutes to
get there so we will squeeze these two in if that is OK with
everybody and then we will race, break, and we will come back.
So, Mr. Spaulding, go ahead.
STATEMENT OF STEPHEN SPAULDING
Mr. Spaulding. Thank you, Mr. Chair, Ranking Member
Scanlon, distinguished Members of the Committee. Thank you for
the opportunity to testify this afternoon.
Our Constitution has endured for 234 years not because it
is perfect, but because it is a constant work in progress.
Despite its famous first three words, ``we the people,'' the
Constitution long excluded the people who make up the backbone
of our Nation, including people brought here in chains and
counted as three-fifths of a person in the very charter that
promised the blessings of liberty.
Yet, through the hard work of generations of our fellow
Americans, our Constitution has gradually expanded freedom,
equality, and made our union more perfect, but there is a long
way to go.
Pursuant to Article V, the Constitution has been amended 27
times in our history and each time, Congress has sent proposed
amendments to the States after they passed both houses by two-
thirds. This process gives certainty and stability to our
system.
The alternative way would require Congress to convene
Constitutional Convention if two-thirds of the States petition
it to do so. There are at least three reasons why convening a
Constitutional Convention is unsound.
First, even if it is purportedly called to address a single
issue, there are no rules to limit the scope of a convention to
protect us from big, permanent changes to our Constitutional
rights that could set our country back.
Second, there is an extraordinary risk that secretive
wealthy special interests, the same ones that pump millions of
dark money into our elections, will use a Constitutional
Convention to further stack the deck and bake their proposals
into the Constitution.
Third, it puts at grave risk the rights and freedoms that
are enshrined in our founding charter.
Harvard Law Professor Larry Tribe said such a convention
would mean, ``putting the whole Constitution up for grabs.''
The late Justice Antonin Scalia said, ``[he] certainly would
not want a Constitutional Convention.'' Whoa! Who knows what
would come out of it?
Article V provides no rules for how a convention would
work. Who sets the rules? Who enforces the rules? Can it be
limited to a single subject? How would the delegates be chosen?
Will the convention be one person, one vote, sort of like the
House or one State, one vote sort of like the Senate? Could the
convention--or I should say two votes in the Senate but equal
representation of the States in the Senate.
Could the convention require a super majority to propose
amendments? If each State gets one vote, should it still
require delegates who represent a majority of the population to
support an amendment that gets proposed?
The point is there are no settled answers to these
questions, and now is not the time to experiment with the
Constitution.
A convention would undoubtedly attract intense lobbying
efforts from special interest groups and powerful people who
want to shape the outcome. The influence of unlimited big
special interest money and political pressure on the
convention's delegates would lead to amendments that serve
narrow interests rather than the common good.
An intense lobbying effort is already underway to open the
Constitution up. One group, the American Legislative Exchange
Council, or ALEC, has been particularly active in this effort.
Although ALEC is organized as a charity, it is underwritten by
major corporations and brings corporate lobbyists and State
legislators together to write model laws that are then
disseminated throughout the country and State Houses.
ALEC and other big money groups have been working hard to
pursue an effort to convene a convention with a goal of writing
a Balanced Budget Amendment into the Constitution. If this is
added, it would harm the economy, force cuts to key programs
that protect our health and safety, and destabilize our ability
to respond to crises like armed conflict or the next pandemic.
Most proponents of a Balanced Budget Amendment assert that
28 States have called for that convention, leaving them six
short of the necessary 34 that they need.
Considering the times, we live in with the government on
the brink of a shutdown, trust in government is at near record
lows. While a Constitutional Convention is a route that the
Constitution authorizes, there are deep disagreements over how
a convention would work, who would write the rules, how those
rules would be enforced, and how the convention could be
manipulated by those special interests I mentioned who have
already shown a willingness to stack the deck against the
people. When the stakes are as high as they are at this moment,
too many people would question the legitimacy of whatever came
out of that convention, which would invite chaos.
We all want things to improve in our country, and the
Constitution is not without its imperfections. Its enduring
strength lies in its ability to adapt and evolve through a
carefully structured amendment process. At a time of unlimited
money and politics and extreme gerrymandering using this
untested, risky process is the wrong way to make those
improvements. The responsible path is to follow that of those
who came before us that worked for the 27 amendments added to
the Constitution. Thank you. I look forward to your questions.
[The prepared statement of Mr. Spaulding follows:]
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Mr. Johnson of Louisiana. Thank you, Mr. Spaulding. Mr.
Jipping, you may begin.
Mr. Jipping. Thank you, Mr. Chair.
Mr. Johnson of Louisiana. Press that button for me again.
STATEMENT OF THOMAS JIPPING
Mr. Jipping. Thank you, Mr. Chair. President George
Washington first published his farewell address to the American
people 227 years ago today, September 19, 1796, in the
Philadelphia Daily American Advertiser. He explained that the
Constitution can be changed only by ``an explicit and authentic
act of the whole people.''
That Act, defined in Article V of the Constitution, is
ratification by three-quarters of the States of a proposed
amendment in the manner Congress has specified and within a
deadline that Congress has set.
Under Article V, amendments may be proposed by two-thirds
of Congress or by a convention called by Congress on
application of two-thirds of the States.
Each of the 33 proposed amendments in American history has
come from Congress. The States have ratified 27. Four proposed
without a ratification deadline are pending before the States.
Two, the 1972 Equal Rights Amendment, and the 1978 District of
Columbia Voting Rights Amendment, expired when their deadlines
passed with insufficient State support.
Congress has three powers in the Constitutional Amendment
process, proposing amendments, setting the mode of
ratification, and according to the Supreme Court in Dillon v.
Gloss, imposing a ratification deadline.
Congress proposes an amendment by passing a joint
resolution with two parts, a proposing clause containing
procedural rules, such as the mode of ratification and any
ratification deadline, and the text of the proposed amendment.
Congress has proposed 10 amendments with a ratification
deadline, placing it in the joint resolution's proposing clause
of five and in the proposed amendment's text for the rest. The
validity of a ratification deadline depends on Congress'
authority to set one, not on where Congress chooses to put it.
The Biden Administration's Justice Department agrees. Last
year it defended the archivist of the United States against a
lawsuit by Illinois and Nevada trying to force him to certify
the 1972 ERA as the 28th Amendment.
The Justice Department's brief in Illinois v. Ferriero
noted that, ``Members of Congress did not ascribe any
substantive difference to the two types of deadlines,'' and
that substantial historical practice supports Congress'
authority to decide where to place a ratification deadline.
Turning to the alternative way to propose amendments, in
the 1787 convention that produced the Constitution, the framers
sought to give the States a way to initiate amendments before,
by compromise, they gave that power to Congress.
An Article V Convention is an interState convention. What
the Justice Department's Office of Legal Counsel has described
as a ``servant of the legislature'' rather than an independent
body. Its powers, therefore, are defined by the States and
expressed through their applications for a convention.
In deciding whether it must call it an Article V
Convention, Congress must be guided by the fact that the
framers did not want Congress to interfere in the convention
process.
A February 1993 House Judiciary Committee report reviewed
many of the questions that Congress must consider in that
light, including whether convention applications that specify a
particular subject may be counted with those that do not,
whether applications that specify different subjects may be
counted together, whether applications must be worded
identically or be relatively contemporaneous, and whether
States may rescind or withdraw an application before the two-
thirds threshold is reached.
Current campaigns for an Article V Convention appear to be
taking steps to minimize conflicts over these issues. The
convention of States, for example, advocates that States pass
an identical application limited to proposing amendments that
would impose fiscal restraints on the Federal Government, limit
the power and jurisdiction of the Federal Government, and limit
the terms of office for its officials and for Members of
Congress.
I have included with my written statement a new legal
memorandum published by the Heritage Foundation last Friday
that discusses many of the issues that I've touched on today in
the context of the 1972 ERA.
Thank you again for the opportunity to testify today, and I
look forward to answering your questions.
[The statement of Mr. Jipping follows:]
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Mr. Johnson of Louisiana. Thank you, Mr. Jipping. All of
you, votes have been called on the floor. So, the Subcommittee
will stand in recess until immediately after votes. I
appreciate your patience.
[Recess]
Mr. Johnson of Louisiana. All right, this Subcommittee will
come to order, we want to thank the witnesses again for your
patience. We will now proceed under the five-minute rule with
questions.
The Chair recognizes the gentleman from Texas, Mr. Hunt,
for five minutes.
Mr. Hunt. I would like to delegate my time to Mr. Moran
from Texas, please.
Mr. Moran. Thank you, Mr. Chair. Thank you, Mr. Hunt. When
I came to Congress last year, this year, I viewed our out-of-
control spending as one of the greatest threats to our economic
freedom. Our country's prosperity relies heavily on our ability
to grow and innovate, which we can do when we have our fiscal
house in order. Well, we have a bloated national debt of 33
trillion and growing. It's not the fault of just one party,
it's both.
Consider these statistics from just the past few
administrations. During the Obama administration we added eight
trillion dollars plus to our national debt. Which at the time,
he took over was just South of 12 trillion. Then under
President Trump, another eight trillion dollars was added to
the national debt. Since then, President Biden has added
approximately 3\1/2\ trillion to the national debt.
Now, today, we sit at close to 33 trillion in national
debt. As a result of our fiscal mess, I introduced the
Principles-Based Balanced Budget Amendment, which is House
Joint Resolution 80 earlier this year. We've been working
closely with Americans for Prosperity on the language of this
issue. This Constitutional Amendment, which is written in a way
that is meant to be flexible, comprehensible, meaningful, and
frankly able to be passed, and to be ratified, will allow
Congress to affirm the principles of maintaining a balanced
budget without overriding any of the policymaking power.
The core text of the amendment and the primary principle
reads simply this way. Expenditures and receipts shall be
balanced, which may occur over more than one year. In fact the
total text of this proposed amendment is just two paragraphs.
It also allows for emergency spending with two-thirds approvals
from both chambers. It allows Congress to decide how to balance
the budget, whether it's structural or biennial, and gives
Congress flexibility to change the design of the implementing
legislation.
The BBA serves as a foundation for Congress to implement
detailed legislation over time that meets the moment.
Washington has racked up a pretty hefty bill over the past 20
years, and now families and businesses are experiencing
rippling inflation and soaring interest rates as a result. They
balance their budgets, why can't we? Increased debt leads to
decreased freedom.
Regardless of the statutes that would underline this
Constitutional Amendment that would put in place those things
that need to happen to make it a reality, we cannot ignore this
any further. Mr. Primo, you mentioned in your opening remarks
that quote, ``Congress is constitutionally incapable of tying
its own hands.'' At present, I agree with you, but I'd like to
change that with my proposed Constitutional Amendment.
You testified before this Committee in the past in favor of
a Balanced Budget Amendment in 2017, do you think it's need
more now than it was then, and if so, why?
Mr. Primo. Frankly, I go back, and I look at my old
testimony, and I was talking with the concerns I had then about
the national debt, and then I look at where we are now. If I
was concerned then, I'm even more concerned now. I just don't
see a path forward for Congress to, again, act on its own to
balance the budget, or even come close to balance in the
absence of some external constraints.
One of the things you always hear is Congress can balance
the budget any time it wants. Well, empirically, we can look
back in history and see that at least in the last few decades,
that really doesn't happen anymore.
Mr. Moran. Without a Constitutional Balanced Budget
Amendment, do you think Congress really will reign in spending
the way it needs to, and get its house in fiscal order?
Mr. Primo. Unfortunately, just looking at the track record
of Congress on lots of other issues, it often will take a
crisis before meaningful action occurs. Some people say crisis
is a great opportunity for action as the saying goes, but I
actually think that's a really terrible time to make
legislation and make decisions because you're under the gun.
Mr. Moran. In your opinion, how does the national debt pose
a concern long term for future generations of American
taxpayers, and in terms of our daily lives, how is it going to
impact us if we do not plot a new course and make this change
now?
Mr. Primo. Well, as the national debt continues to grow,
interest payments obviously are going to increase, especially
if we continue to see a high interest rate environment. What
that means is that a greater share of the government spending
will be to paying interest on the debt, which of course means
that less funds can be spent on other things that are important
to Americans. In addition to that, eventually we're going to
start to see an effect of the national debt in economic growth.
Of course, low growth is a huge problem for societies,
because it means that we won't have the level of prosperity we
could otherwise have as a country.
Mr. Moran. Many programs such as Medicare and Social
Security are captivating a whole lot of our annual spending. Do
you think that these important programs should be considered
when we are balancing our budget each year?
Mr. Primo. I just don't see a way to not tackle the entire
budget if the goal is to have long term fiscal responsibility.
I think the key to remember is that the claim is well, you
never can touch Medicare, you never can touch Social Security,
but the math just doesn't work out if you don't consider how
you're going to reform those programs. They need to be changed.
Mr. Moran. Dr. Primo, I appreciate your time and appreciate
your perspective, and agree that we need to tie the hands of
Congress moving forward, plot a new course, get on a fiscally
sane course to balance our budget over the next decade. Thank
you for your time.
I yield back.
Mr. Johnson of Louisiana. The gentleman's time has expired.
The Chair recognizes the Ranking Member of the Full
Committee, the gentleman from New York for five minutes.
Mr. Nadler. Thank you, Mr. Chair. Mr. Spaulding, how would
a Constitutional Amendment requiring a balanced budget
undermine Social Security spending, military retirement
benefits, and other important public service programs?
Mr. Spaulding. Thank you, Mr. Nadler. There have been a
variety of Balanced Budget Amendments that have been considered
by Congress, but among the many troubling results would be that
it would essentially render it unconstitutional to spend
reserves, and spend reserves on Social Security benefits, on
military benefits. Because the proposals that have been before
this Congress have limited expenditures to revenues brought in
the same year.
That would require significant and severe changes to Social
Security, and a whole host of other programs that ensure
security, and it's a bad idea.
Mr. Nadler. Isn't Social Security premised on the idea of
prepaying?
Mr. Spaulding. Precisely. So, when you are going to limit
expenditures only to revenues that have come in that year, the
way Social Security is set up, it would require cuts to Social
Security. That's not the only challenge with a Balanced Budget
Amendment. What it's doing is putting fiscal policy into the
Constitution. It would put Congress in a straitjacket. It would
make it exceedingly difficult to respond to economic crises, to
recessions, to armed conflict, and to a pandemic as I mentioned
earlier.
That is not the way our Constitution is designed. It would
also put judges, and jurists, and attorneys in a strange
position where they would be refereeing debates that should be
happening here in the Article I branch of government, and not
over in Article III, and having jurists weigh fiscal policy.
So, for a whole host of reasons, the Constitution is not the
appropriate place to be debating fiscal policy.
Mr. Nadler. Thank you. Mr. Spaulding, do the States or the
Congress have the authority to mandate limits on the scope of
an Article V Convention, such as limiting discussion to a
single subject or amendment?
Mr. Spaulding. No, and that is one of the concerns, if not
the top concerns. There are no rules. The language in Article V
about convening a Constitutional Convention is incredibly
spare; it just says Congress convenes a convention. There's a
whole host of questions that I included in my written testimony
that I touched on at the oral portion of the testimony, but
there are no rules, there are no answers.
That's why jurists from across the ideological spectrum
have expressed serious concern about how a convention would
work. To answer your question, ultimately there is no
enforceable way to ensure that the convention only considers a
single subject.
Mr. Nadler. Thank you, Mr. Spaulding. Last month a far-
right group convention of States organized a so called
simulation of an Article V Convention. The mock convention
resulted in, among other things, the adoption of a limitation
of Congress' power to regulate interState commerce, which would
negatively impact numerous areas of public policy, including
the continued viability of Federal civil rights laws like the
Civil Rights Act of 1964, and other laws that prohibit
discrimination in public accommodations.
In your view, would an Article V Convention be more likely
to threaten, or to protect Americans' individual and civil
rights?
Mr. Spaulding. Well, the convention of States, and the
organization that has been pushing this amendment, and the
organization that has been pushing this amendment, and has been
getting a number of States to call for this convention is
calling for a radical rewrite of the commerce clause to do
exactly what you are talking about. To significantly, and
severely undermine civil rights laws, laws that protect
workers, laws that protect our environment, laws that protect
our health, safety, and security.
So, I think it is a significant, major risk, given that
this is one of their top priorities, is a significant rewrite
of the commerce clause.
Mr. Nadler. Would you say that the rewrite or limitation of
the commerce clause would take us back a long way through the
Articles of Confederation?
Mr. Spaulding. I think it would take us way back, who knows
how far back. In ways that we have settled this question. It is
extremely dangerous, and if you look at the whole host of
things that came out of their mock convention, that was among
their top priority. They also would posit that a simple
majority of States could rescind any act of Congress, the
President, or a Federal agency.
There's a whole host of other provisions that they are
pushing for a convention, that again, has no rules.
Mr. Nadler. That does sound like the Articles of
Confederation, which the framers found highly inadequate, which
was you had the Constitutional Convention of 1787. My time is
expired, I thank you.
I yield back.
Mr. Johnson of Louisiana. The gentleman yields back.
The Chair recognizes the gentleman from California for five
minutes.
Mr. McClintock. Thank you. Mr. Jipping, I introduced a call
for a Constitutional Convention for a balanced budget when I
was in the State assembly close to 40 years ago now. The
arguments against it came from the right, but they were exactly
the same arguments we're hearing from Mr. Spaulding, and the
Democrats that well, you have no idea, a runaway convention,
there's no way to limit it, it could go out of control.
Isn't it true that a Constitutional Convention has no more
power to change a punctuation mark on the Constitution than the
U.S. Congress has held every single day that it has sat for
nearly 250 years? In either case, the product, whether it comes
from Congress or a convention, has to be ratified by three-
quarters of the States.
Mr. Jipping. That's a critical point that hasn't been heard
here today much, and that is the ultimate stop gap of both
methods of proposing amendments. Is that three-quarters of the
States have to ratify it.
Mr. McClintock. That's the ultimate check. Dr. Primo, I
share your desire for a Balanced Budget Amendment, but the
process you outlined seems to me to be attempting to
micromanage our affairs into times that we can't foresee;
meaning defining classes of spending and revenue, specifying
what constitutes an emergency, multiyear accounting periods,
fluctuations in economic performance, the smoothing approach,
whatever that means.
The beauty of the American Constitution is in its
simplicity and its humility. In crafting a Balanced Budget
Amendment, it seems to me we need to maintain these qualities.
We shouldn't be attempting to tell future generations
specifically how they should manage their revenues and
expenditures. What is a balanced budget? Isn't it simply a
budget that doesn't require us to borrow? If that's the case,
why don't we just say so?
That's the essence of the amendment that Thomas Jefferson
advocated. Instead of trying to define fiscal years, outlays,
expenditures, revenues, emergencies, triggers, sequestrations
and so on, I hope we could just consider 27 simple words. The
U.S. Government may not increase its debt except for a specific
purpose by legislation adopted by three-quarters of the
membership of both houses of Congress.
That's sort of an amendment, what would naturally require
both a balanced budget, and a prudent reserve to accommodate
fluctuations in revenues, and routine contingencies. It trusts
that three-quarters of the Congress will be able to recognize a
genuine emergency when they see it, and that one-quarters of
Congress will be strong enough to resist borrowing for light or
passing reasons.
That is actually my House Resolution Nine. What's your
opinion of that approach?
Mr. Primo. Thank you for the question. So, my focus is that
in fact--or the way I would think about it is my--the proposal
I have where you sort of allow for a smoothing approach is
actually placing less of a restraint on Congress to follow the
Rules of the Constitution, if you will. In other words, it's
saying to Congress that you need to have some flexibility.
That you may not have perfect balance year in and year out,
and it would be impractical to call everything an emergency.
So, if you required three-quarters vote to exceed the--
Mr. McClintock. Well, if you can't borrow, you're rather
forced to do that, and that's the whole point of the amendment,
is to force the Congress to live within its means, but not tell
it how to do that. I would commend that for your consideration.
Mr. Tomboulides, the Founders considered term limits for
Members of Congress, they explicitly rejected them. I was only
one of two sitting Members of the California Assembly to
endorse legislative term limits in 1990 in California, it was
Prop. 140.
It set a six-year limit on the assembly at the time. I
thought it was going to encourage more goal-oriented Members to
be much more skeptical of the bureaucracy, much more resistant
to the legislative leaders. As karma would have it, I left the
assembly in 1992, and the term limits had had no practical
effect. I returned in 1996 when they had had complete effect,
and the differences that I saw were absolutely jarring.
They achieved the opposite of their intended effect.
Instead of arriving in the legislature contemplating their
political mortality, Members simply arrived contemplating their
next political move. They had no experience in State
government, so they were far more dependent on the bureaucracy.
Since their term was limited, they were far more dependent on
the leadership since it was limited, for their next political
move.
Prior to term limits, Members on the Committees often had
far more experience in the subject matter than the
bureaucracies appearing before them. Term limits stripped the
Legislative Branch of this advantage. It shifted enormous
influence from the Legislative Branch to the bureaucracy.
Before term limits there was a sense of loyalty to the
institution and the process. After term limits, there weren't
any.
I would just urge you and my conservative colleagues who
mistakenly believe that term limits are going to improve the
Legislative Branch, please, please look to States like
California that succumbed to that siren song, and ask yourself
if you really want to send the Congress in that direction.
I yield back.
Mr. Johnson of Louisiana. The gentleman's time is--
Mr. Primo. May I respond to that?
Mr. Johnson of Louisiana. Go ahead, yes, we'll let you
respond.
Mr. Primo. Yes, so you mentioned the framers of the
Constitution, they were actually quite divided about whether we
needed term limits for Congress or not--
Mr. McClintock. They rejected them.
Mr. Primo. Not all of them, Benjamin Franklin supported
them--
Mr. McClintock. No, the majority of them rejected it for
very good reasons. Among them, according to Madison--
Mr. Primo. That may be true, but--
Mr. McClintock. That someone approaching a term limit would
become far more interested in their self-interest rather than
in the Nation's interest, that's just human nature.
Mr. Primo. When Thomas Jefferson--
Mr. Johnson of Louisiana. Let me interrupt, because we're
going to have votes called again soon, and I don't want to
leave anybody hanging. We'll get back to that.
The Chair now recognizes the gentlelady from Vermont for
five minutes.
Ms. Balint. Thank you, Mr. Chair. It seems to me that a lot
of the momentum behind the efforts to hold an Article V
Convention is based in extreme frustration with our current
system, and I certainly understand that frustration with the
democratic process and worries that our priorities often are
not in the right place. I would just mention, I'm extremely
frustrated that we're on the brink of yet another government
shutdown because of the demands of a minority faction in
Congress.
So, we know that the blow everything up option doesn't
work, and it often hurts regular Americans the most. I fear
that an Article V Convention is uncharted, and in fact
dangerous territory. Mr. Spaulding, can you explain the worst-
case scenario for an Article V Convention?
Mr. Spaulding. The worst-case scenario is that it
completely puts all our cherished Constitutional rights and
civil rights completely up for grabs. Special corporate
interests, the same corporate interests that are backing this
effort right now through the American Legislative Exchange
Council and others, would choose the delegates, would write the
rules, could even rewrite the ratification rules.
We've heard about how it would take thirty-eight States to
ratify whatever comes out of this convention. That is not--the
last time there was a Constitutional Convention, the
ratification Rules in 1787 were rewritten in such a way. So,
that is, for me, not a safe backstop. You don't start a fire,
and hope that the fire department's going to come and put it
out, that the 38 States are going to reject them, that could be
rewritten.
So, you have special interests putting our civil rights up
for grabs, and completely tilting our founding charter even
more in their favor and making those changes permanent.
Ms. Balint. That's my concern as well. The Constitution, as
you all know, is a bulwark to preserve important rights and
liberties, and especially for folks on the margin. If you think
about the attacks on the LGBTQ+ community right now across this
country, would something like same sex marriage be at risk?
Would it continue to be protected under the Fourteenth
Amendment? Can we guarantee that if we were to hold a
convention of the States?
Mr. Spaulding. Absolutely not. I think all those cherished
rights, marriage equality, the right to marry the person that
you love, climate justice, racial justice, all these rights and
freedoms that we are pursuing, and that we hold dear, that
would all be up for grabs. Those Constitutional rights would be
at risk of a major rewrite. The people that are backing--
Ms. Balint. Yes, tell me more about that, let's just lay it
out there.
Mr. Spaulding. Some that are pushing for some of these
amendments are quite hostile to the freedoms that have been
expanding throughout our history. That is one of the goals, is
to constrain those freedoms. If you explore sort of where some
of that money is coming from, some of the interests that are
backing these proposals, it's dangerous. It's why 240 groups
have signed a statement opposing an Article V Convention.
Because it would, as Professor Tribe said, ``put our
Constitution up for grabs.''
Ms. Balint. Do you think it's fair to say that an Article V
Convention has the potential to follow unrepresentative
processes, and could result in some very undemocratic outcomes?
Mr. Spaulding. Absolutely. Again, the language is so spare,
it just says that Congress is going to convene a convention. It
doesn't make clear whether people are going to be equally
represented, or whether States are going to be equally
represented. So, is it going to further empower States that
represent a small minority of this country, or is it going to
empower people? How are Delegates going to be chosen?
Again, as I brought up in my opening statement, we're at a
time of extreme gerrymandering. One group that is pushing the
convention of States, it is their view, notwithstanding the
text of the Constitution, that States would write those rules,
and that States would set the rules. It would be one State, one
vote. That State legislators would choose who is going to go to
this convention. I don't know where they're getting that from,
that is not in the text of the Constitution.
All the more reason that this process would not be nearly
as democratic and people powered as some are positing.
Ms. Balint. I really appreciate that. In the last 30
seconds here, I know a Balanced Budget Amendment is something
that sounds great in the abstract, but often makes no practical
sense for a modern Nation. Can you just speak briefly about
your sense of what a Balanced Budget Amendment could do to the
economy?
Mr. Spaulding. Well, it would make it much more difficult
to deal with economic crises, recessions, war, and pandemics.
It would harm people in our country that depend on a government
that is representing them, and is meeting their needs. So, all
of that again, to put Congress in that kind of a straitjacket,
and then to tell unelected judges that they're going to
interpret, and rule on fiscal policy is not the way our system
is designed.
Ms. Balint. Thank you very much, Mr. Spaulding.
I yield back.
Mr. Johnson of Louisiana. The gentlelady yields back, and
the Chair, just for a moment, I ask unanimous consent that a
statement from Americans for Term Limits on the history and
utility of term limits be inserted in the record. Without
objection, so ordered.
The Chair now recognizes the gentleman from South Carolina
for five minutes.
Mr. Fry. Thank you, Mr. Chair, for having this hearing
today. Thank you for our witnesses for being here. When I was
in the South Carolina General Assembly, I supported a joint
resolution calling for an Article V Convention of States. This
was just last year, it passed this resolution, and became the
19th State in the country calling for that convention of
States.
Mr. Jipping, can you briefly describe the steps for
amending the Constitution under Article V?
Mr. Jipping. Either Congress or the convention you referred
to can propose an amendment by a two-thirds margin. At the end
of the day, nothing becomes part of the Constitution that's not
ratified by three-quarters of the States. So, the logic that
says you should not allow an Article V Convention to exist
because of the theoretical possibility that it could propose
something untoward would say you shouldn't allow Congress to
propose any amendments because Congress could propose something
that was untoward.
The fact is, the Constitution belongs to the American
people. They alone--this is why I started my opening statement
with President Washington's farewell address. The Supreme Court
actually held in 1795, a year earlier, they actually asked the
question what is a Constitution? They said that the
Constitution can only be changed by the authority that made it.
So, we've seen lots of rewriting of the Constitution.
People who say that this could happen by a very long and
considered process involving a convention, the Supreme Court
does it all the time. So, we have an illegitimate process if
changing our Constitution through the Supreme Court. I worked
for Senator Orrin Hatch, one of his predecessors as a Senator
from Utah was on the Supreme Court, George Sutherland. He wrote
there's a difference between an amendment, and an amendment in
the guise of interpretation.
Mr. Fry. So, if you look at this, there have been
thousands, thousands of amendments proposed to the
Constitution, and a handful of them have been adopted.
Mr. Jipping. That's right, about over 12 thousand joint
resolutions have been introduced in Congress to propose
Constitutional Amendments. Congress has proposed 33 amendments.
Mr. Fry. Right, and so to the point, I hear the sky is
falling from the other gentleman earlier, like that we're going
to somehow go backward in some way. To me, the only thing that
could be proposed and ratified are things that are extremely
popular with the American public, like a Balanced Budget
Amendment, like term limits. These are the types of things that
could rally the people to do that. Would you agree with that?
Mr. Jipping. Absolutely. The sky is not falling, I think if
we had a dime for every time that was the argument against a
particular position, the national debt would be lower than what
it is. I think that nothing comes into the Constitution except
three-quarters of the States ratify it. I don't know what the
scenario is that would get three-quarters of the States to
ratify some of the sky is falling proposals that have been
suggested here.
Mr. Fry. I agree with you. Professor Primo, can you talk to
me, how many States currently require a balanced budget?
Mr. Primo. Basically, every State requires a balanced
budget.
Mr. Fry. Right, and so every State has to comply with that
requirement when they set out the budget. I know in South
Carolina we have that. The budget cannot pass until it is
certified that it is in balance with tax revenues, and what we
are appropriating. So, States are doing these things, and
States are doing OK, right? So, to borrow that logic, I mean
how would that benefit the country?
You talked about this with Mr. Moran earlier, but how would
that with Mr. Moran earlier, but how would that benefit the
country to have this on the Federal level?
Mr. Jipping. What it does, there's a couple things it does.
First, it sets the stage for how budget negotiations will
proceed. It sets a framework for how Congress has to act with
regard to spending. One of the things we've heard is that well,
Congress won't be able to respond to emergencies if a Balanced
Budget Amendment were to pass, but that's simply not the case.
We saw the Congress come together at the beginning of the
pandemic and pass the CARES Act nearly unanimously, basically.
So, when you have true emergencies, the Congress comes
together. In situations where you have pieces of legislation
that add trillions of dollars to the debt as we saw a couple of
years ago under conditions that weren't really an emergency if
we take that term seriously, those bills wouldn't have passed
under the Constitutional Amendment. So, you see that's exactly
the kind of discipline Congress needs.
Mr. Fry. Yes, but would it be surprising to know that in
South Carolina that the budget is passed every year almost
unanimously with both parties agreeing?
Mr. Jipping. That would surprise me, I'll be honest.
Mr. Fry. I mean section by section, you go through, but at
the end it is completely bipartisan. Last question, if a
Balanced Budget Amendment were to go into effect, how long do
you think it would take to truly tackle the national deficit?
Mr. Jipping. I think the optimal approach is to have a
glide path to a balanced budget. Where you give Congress at
least a decade, maybe even a little more to really bring the
budget into balance. Because you can't go from sort of a piggy
bank that just seems limitless to all of a sudden saying now,
we're going to have a balanced budget next year, because that
would lead to economic dislocation.
That would cause many of the same economic harm that the
current levels have potential to cause. So, glide path to
balance, and then a smoothing approach once you actually get
into balance.
Mr. Fry. Thank you.
Mr. Chair, I yield.
Mr. Johnson of Louisiana. The gentleman yields back.
The Chair now recognizes the gentleman from Tennessee for
five minutes.
Mr. Cohen. Thank you, Mr. Chair. I have had an amendment
for some years, this year it's House Joint Res. 77, that
proposes an amendment limiting the pardon power of the
President. When introduced in the previous Congress, some might
have thought that it was aimed at Donald Trump, and indeed his
actions did inspire it, but it's good for the goose, it's good
for the gander, and I introduced it again this year so it would
be effective with President Biden.
One of the things it does is it makes clear the pardon
power really hasn't worked as it should for several reasons.
(1) This particular revision would say the President shall
not have the power to grant pardons or reprieves to him or
herself.
(2) To any member of their family up to the third degree,
or spouse thereof. Any current or former Member of the
President's Administration, any person who worked on the
President's Presidential Campaign as a paid employee.
(3) Any person or entity for an offense that was motivated
by direct and significant personal interest of any of the
foregoing persons.
(4) Any person or entity for an offense that was at the
direction or the coordination with the President.
So, this would have affected Mr. Trump, it would affect Mr.
Biden now, and who knows who it might affect after that, but it
effects everybody.
In my opinion, the President does not have the power now to
pardon him or herself, but they shouldn't. The pardon power,
that would put one person absolutely above the law, and I don't
think they should be able to pardon any Member of their family.
Whether it's their brother, whether it's their son, whether
it's their daughter, that should be prohibited. It's just too
inside baseball.
With party people that are part of your administration, or
people that are in your campaign, again, it's almost like
pardoning yourself because they're your representatives. We saw
Trump, of course, pardon Manafort, and what's the guy with the
hats, Roger Stone, and several others, taking care of people
and trying to keep them quiet. Mr. Spaulding, what do you think
about limiting the pardon power in these ways or any other
ways?
Mr. Spaulding. I would certainly, Mr. Cohen, be interested
in reviewing the language. Given the breadth and scope of the
pardon power, no question that we were on the brink, we saw
abuse of the pardon power. For all the examples you just gave,
close associates of the former President, his recent interview
just over the weekend, continuing to dangle this concept of a
self-pardon merits serious consideration.
I think outside of the Constitutional Amendment process,
there is pending legislation, the Protecting our Democracy Act,
which would also ensure more transparency into the pardon
process, and would ensure that you have the information that
you need as a Member of Congress to provide effective
oversight, and to further understand how the pardon power is
being used or abused.
Mr. Cohen. I think Mr. Flynn was pardoned too if I remember
correctly. Flynn, Stone, and Manafort, who are some of the
others I might have forgotten?
Mr. Spaulding. There was a number, I won't opine off the
top of my head, but as he was out the door, a number of
pardons. Including for major donors--
Mr. Cohen. Anybody else in the panel remember any of the
people that Trump pardoned that were kind of part of his team,
want to offer anything? Mr.--is it Tomboulides?
Mr. Tomboulides. Close enough.
Mr. Cohen. I'm sorry, I listened to your testimony, and you
said some Member of Congress, I think you said it was a Member
of Congress, put out these pamphlets, and you said he spent a
million dollars. I'd like to have his MRA, who was that Member
of Congress that you said spent a million dollars?
Mr. Tomboulides. Well, that was my estimate based on the
size of our district and the number of mailers that were sent
out. That was my Congressman Bill Posey who did that, but it's
a practice that's all too common here in Congress. It's a way
that incumbents are able to--
Mr. Cohen. When was Bill Posey a Member of Congress?
Mr. Tomboulides. I'm sorry, sir?
Mr. Cohen. Is Bill Posey a Member of Congress now?
Mr. Tomboulides. Yes, correct, he's a Member of Congress
from Florida.
Mr. Cohen. Is he a freshman?
Mr. Tomboulides. No.
Mr. Cohen. Well, he's like DeSantis, he hasn't done
anything yet. Some of the former Congressmen, you don't know
they're on the Committee until they run for Governor, and then
you find out they're on the Committee. A million dollars is
much more than anybody could have in their MRA to spend that
money, they'd have to have no staff, because you pay your staff
out of that, your transportation, your travel, et cetera,
you're exaggerating?
Mr. Tomboulides. Well, it's a series of mailers that have
been sent to my house for years, and years, and years, sir. So,
I was referring to the aggregate spending on that.
Mr. Cohen. Thank you. Mr. Spaulding, what about pardoning
Members of a President's family, whether it's Hunter Biden, or
whether it's whoever, the daughter that had the Chinese patents
or copyrights?
Mr. Spaulding. I think that would be an abuse of the pardon
power.
Mr. Cohen. It should be limited. I proposed it, and I
propose it again, and I think if it's good for one, it's good
for the other. I don't think there should be pardoning of
family members. That would certainly--if you think that the
President did something involved with his son, this would be a
way to make sure, let the son know that if he's going to do
something like that he's not going to get any benefit on the
back end, so I think that would help a lot. Let me ask, also--
Mr. Johnson of Louisiana. The gentleman's time has expired.
Mr. Cohen. That was quick.
Mr. Johnson of Louisiana. Yes, now it's has been expired
for a while.
Mr. Cohen. I'm sorry, thank you for giving me that extra
time.
Mr. Johnson of Louisiana. Yes, sir.
Mr. Cohen. I yield back the balance of my time.
Mr. Johnson of Louisiana. Gentleman yields time he has not.
So, the Chair will yield next to the gentlelady from Wyoming. I
would just point out Congressman Bill Posey is Florida's Eight
Congressional District, seven term Congressman. So, you need to
go to more cocktail parties.
The Chair recognizes the gentlelady from Wyoming for five
minutes.
Ms. Hageman. Well, thank you, and thank you for being here,
gentlemen. I always love having a discussion about the
Constitution. I want to State right up front, I am opposed to
term limits, and not for any self-serving reason, but because I
think they are a bad idea in terms of the future of our
republic. I also believe that the intent of the framers must
remain a dominant force, and should guide the current
discussion.
The finality of the qualifications clause for Congressional
Members is settled through the text of the Constitution itself.
They debated term limits, and some of the framers, even
supported them in the Articles of Confederation, but after
debate they were dropped. That doesn't mean that term limits
don't exist, they certainly do, which is why the American
people go to the ballot every two years for the Members of the
U.S. House, and every six years to select their U.S. Senators.
In addition, legislative supremacy is something the
Founders clearly established in the long list of enumerated and
implied powers granted to Congress. As compared to the brevity
of powers granted to the President in Article II. What does
that mean? That the drafters of our Constitution intended the
Legislative Branch, the one directly elected and accountable to
the voters, to be the most robust, and strongest of the three
branches.
I believe that term limits would not only undermine that
intent, but substantially alter our relationship with our
elected officials. Again, what do I mean by that? For years I
have been railing against the expansion and growth of the
Administrative State. Those unelected bureaucrats who have
taken on the role of legislating in violation of the separation
of powers provisions in our Constitution.
The annual regulatory burden in this country is 2.1
trillion dollars. That is the cost of the rules, regulations,
and guidance documents issued by agencies such as the USDA,
EPA, Corps of Engineers, U.S. Fish and Wildlife Service, U.S.
Forestry Service, et cetera, et cetera. Yet, of all these
agencies, all of them are totally unaccountable to the American
people.
I believe we need to strengthen the Legislative Branch, not
weaken it. Yet, that is ultimately what will happen if we have
term limits. I ran on a platform of empowering the people over
the bureaucracy, which means that it is our Legislative Branch
that needs to reclaim its rightful place of making the law.
Term limits in Congress will not solve the problem that you
have identified.
Now, more than ever, our Congressional Representatives need
to stand strong, and requiring a routine cycling of elected
officials seems to me to be a distraction from where the real
issues in Washington, DC, lie. While I am opposed to any kind
of an amendment for term limits, I appreciate my colleague from
South Carolina's focus on the need for reform in this broken
town.
To that extent, one area where I am willing to meet my
colleague in the middle to advance reform is in imposing term
limits on bureaucrats that make up the administrative State.
Those bureaucrats who are nearly impossible to remove and are
encouraged to become career officials through benefits such as
pensions are in DC, for generations, and have never been
approved or voted on by the American people.
This is the real danger to our society, these officials
make policies with no constituencies, and cannot be held
accountable if they do something which goes against the needs
of the American people, which they routinely do. An example
being the radical war on affordable energy being waged by the
Biden bureaucracy. I also want to say that as a freshman Member
of Congress, I think that it is a problem to underestimate the
importance of institutional knowledge.
How can a Member be here for six years, and effectively
take on a career official who has been here for 35 years? Is
Washington, DC, broken? Absolutely, and the odds are stacked
against the American people in a government which has grown too
powerful and big to control, and instead it now controls us. It
controls us because of the unelected bureaucrats, not because
of your elected officials here in Washington, DC.
Reform is necessary, and it should come from the people who
are actually elected by the American people. The only directly
elected officials in town should not become the target, it
should be those who are unaccountable. This Congress needs to
unify and hold accountable those officials who spend their
entire lives in DC, without taking a single vote, yet impose
trillions of dollars of hidden taxes against us.
I want to close by reiterating that term limits already
exist through elections, but limiting ballot choices doesn't
fix problems, it only creates more.
With that, I yield back.
Mr. Johnson of Louisiana. The gentlelady yields back.
The Chair now recognizes the gentlelady from Texas for five
minutes.
Ms. Jackson Lee. Let me thank the witnesses for their
presence here today, and for the hearing that we had. It's
important, Mr. Spaulding, I'm going to focus on trying not to
be redundant but deliberate more with you on this process.
First, I'm glad that the founding fathers added Article V to at
least acknowledge as a democracy, we should be prepared in
times of absolute need, or change, or maybe crisis, to
effectively maneuver a process with two-thirds and three-
quarters that might work on a serious need for change.
I heard one Member make an important point, I don't think
it is a Constitutional change, but what the Supreme Court does
is it interprets the Constitution, and by its interpretation,
which I know that I have had extensive disagreement with the
Supreme Court of recent years. One could say that they've
altered Constitutional law, or decisions that were premised on
Constitutional law.
What comes to mind of course is the Shelby case, it
literally destroyed the Voting Rights Act that was grounded in
the Fourteenth Amendment, equal protection, possibly the
Fifteenth Amendment, and then of course, due process. How they
got to their decision of just eliminating voting protections,
and of course we have deteriorated and gone further down.
I think the issue of a Constitutional Convention is
clearly--should be perceived from the perspective of the
representation of the American people. First, by way of States,
and we have the Tenth Amendment, what is not left to the
Federal Government is left to the States. Then cities, and
hamlets, and counties that have different jurisdictions as
well.
So, my first question is because of the system that we
have, our States, our cities, counties, and hamlets, villages
are dependent on the Federal Government. The government does
major work from interState highways, from the railroads, now
we've gotten into more modern issues of climate change. We see
that crime is an issue across America, cities and States are
looking to have a partner in the Federal Government in how you
work to bring down crime.
Education has a component of the Federal Government. So,
what would, first, could you emphasize that dependency, and
that a Balanced Budget Amendment, though well intentioned, is
distinctive from a city that balances a budget? Which people
want to constantly say my city balances a budget, and how does
that in any way argue favorably for the national government to
have that obligation?
Mr. Spaulding. I agree with you, Ms. Jackson Lee,
wholeheartedly, that many States, local jurisdictions depend on
resources from the Federal Government to carry out their
activities. One important point we've heard about States having
balanced budget requirements, States generally have an
operating budget which may be balanced, and then they also have
a capital budget, which may include borrowing.
Which may include needing to dip into reserves that weren't
raised that year. So, I think there is some nuance there when
we're talking about States abiding by balanced budgets, because
in general there's two. So, that's a point that I appreciate
having the opportunity to make.
Ms. Jackson Lee. So, we can make the argument that local
governments, State governments that balance their budget, there
may be some unique focus that doesn't equate to a massive
budget that the Federal Government has to utilize.
Mr. Spaulding. That's right.
Ms. Jackson Lee. Based on the needs of the American people.
Last, very quickly, two of my colleagues were eloquent on this
whole question of term limits. I think it is important to point
out that the founding fathers rejected it. Give me your worst-
case scenario for the Federal Government, institutional memory
gone, the massiveness of the government, the ability to have
elected persons in the people's house be able to reflect what
the people want as the government is guided by the Executive.
How important is the maintenance of the ability to elect
who you choose, and not have term limits?
Mr. Spaulding. It is incredibly important to have that
continuity, and that institutional memory. It's also important
to acknowledge people are frustrated. They expect a democracy
that is representative, reflective, and responsive. The
challenge in my view, and in Common Cause's view is not the
length of a term, because there's tremendous wisdom and
experience that comes with those who are closest to the people
being chosen by the people.
The challenge is the attacks on the freedom to vote,
extreme gerrymandering, and the influence of money in politics
that has distorted representative democracy. We've got to fix
those challenges, it's not term limits. To your ultimate point,
completely agree that term limits can increase the power of
lobbyists and folks on K Street who are here a very long time
as people rotate in and off of Capitol Hill.
It undermines accountability, because Members who aren't
facing reelection may take other votes potentially, but
ultimately I think it undermines the freedom to vote.
Ultimately, the people to choose who they would like to
represent them in the halls of the legislature.
Mr. Johnson of Louisiana. The gentlelady--
Ms. Jackson Lee. Mr. Chair, I want to thank you for your
indulgence, I just want to make one last sentence on the
record. Mr. Spaulding, you said it, ``it undermines the
people's ability to run their government as they choose.'' We
have to fix it, and make it work, but it undermines the people.
I'm standing with the people. From cities, to hamlets, to
villages, and to States. Mr. Chair, thank you for allowing me
to introduce that statement, and to the Ranking Member as well.
I yield back.
Mr. Johnson of Louisiana. The gentlelady yields back.
The Chair recognizes myself for five minutes. We've got to
answer some of this, Mr. Tomboulides.
Mr. Tomboulides. Let's do it.
Mr. Johnson of Louisiana. So, you noted that Gallup says 83
percent of Americans believe in term limits now, there's good
reasons for that.
Mr. Tomboulides. Correct.
Mr. Johnson of Louisiana. One of the difficult questions
that's been brought up today, and that we get often, is about
the unintended consequences. So, how do you answer the
objection that if we impose term limits in Congress, the
professional staff, who have long careers here, will be the
ones with all the institutional knowledge, and they'll
effectively become the unaccountable ruling class? What's the
answer to that?
Mr. Tomboulides. Well, first, I do find it very ironic that
the point has been made here that representatives will be
choosing the people over term limits, when it's actually 83
percent of the people who want term limits. So, I think the
people don't just have a limited right to elect their
representatives, they absolutely have a right to decide the
parameters around elected office.
Senator Mark Warner had a good quote, he called ``the U.S.
Federal bureaucracy the largest in the world.'' Over the last
hundred years, the bureaucracy in this Nation has gone from 2.5
percent of GDP to 25 percent of GDP. According to the Federal
Register, we have over 400 different departments, agencies, and
subagencies, over 100,000 different Federal Rules and
Regulations.
This is the biggest bureaucracy, and yet puzzlingly,
Congress has never had term limits. So, therefore we are left
to conclude that this entire bureaucracy that everyone has a
problem with, that has become so unaccountable, and so
undemocratic, that was created by career politicians, it wasn't
created by term limits. Career politicians created the enabling
laws, they sustained it, they perpetuated it, and they supplied
it with a limitless stream of funding.
So, if the charge is creating bureaucracy, I must say we
are putting the wrong defendant on trial. It is career
politicians over and over again who blow up bureaucracy, not
term limits. I will tell you, Representative, there is a
relationship between term limits and bureaucracy, term limits
reduce bureaucracy. We know this because it happens at the
State level. There was a paper by Professor Randy Holcomb,
Florida State University.
He found that States with term limits reduce the size of
their bureaucracy. There was an analysis done by the National
Taxpayers Union which found that the longest serving Members of
Congress vote to spend the most money on bureaucracy. Then
there was another paper that just came out last year by an NYU
Professor Mona Vakilifathi, who found that in States with term
limits, the legislators actually give bureaucrats a more
confined mandate, and less discretion with respect to what they
can do.
So, the laws are written to bureaucrats, you must implement
our law this way, other than you may implement our law this
way. That is a tremendous difference, because it means that
those legislators, those democratically elected legislators
will have their policy wishes carried out into the next
generation. As opposed to letting unelected bureaucrats decide
the rules of the game.
Mr. Johnson of Louisiana. Got it. In the amendment process,
Mr. Jipping, in the amendment process, can a State Legislature
alter or amend the language of a proposed Constitutional
Amendment after it has been transmitted to them for
ratification?
Mr. Jipping. Not in any substantive way, no. There are
different States that will ratify or not ratify, but they'll
make their ratification decision in somewhat different ways.
When a Constitutional Amendment is proposed, the States
consider ratifying that Constitutional Amendment.
Mr. Johnson of Louisiana. That specific language, so
there's not a danger that it goes off the rails at that point.
Can Congress set a time limit for States to ratify a proposed
amendment?
Mr. Jipping. Absolutely they can, and they've done it many,
many times. As I said, the validity, or whether a time limit is
valid and binding, depends on Congress' authority, not whether
Congress puts it here or here on the page of a joint
resolution. They've done both, States have ratified both, and
certainly Congress throughout history, from Representative
Martha Griffiths in 1972 would not have put that ratification
deadline in the joint resolutions proposing clause saying that
doing so would increase support for the amendment if it wasn't
valid.
Mr. Johnson of Louisiana. As the ERA, right?
Mr. Jipping. That's right.
Mr. Johnson of Louisiana. Yes. So, we know that one lapsed,
by the way, because we have that debate here all the time, it's
clearly the ERA's time limit is lapsed.
Mr. Jipping. It died more than 40 years ago. Everyone knew
that it died, everyone knew that the deadline was valid. In
1986, Gloria Steinem was on Oprah Winfrey, and an audience
member asked her, ``What was the status of the ERA?'' She said,
``it ran out of time, it has to start over and go through the
process again.'' I don't find myself in agreement with Gloria
Steinem about many things, but she was right.
Mr. Johnson of Louisiana. All right, unfortunately I'm out
of time.
So, I will now recognize the Ranking Member of the
Subcommittee, Ms. Scanlon for five minutes.
Ms. Scanlon. Thank you. So, as we've explored these issues
around amending or revising the Constitution pursuant to either
process authorized by Article V, we've had some interesting
conversations, which expose just how complicated issues of
Constitutional change can be, and why we should proceed with
caution. I've been heartened to find areas of agreement with
some of our colleagues across the aisle, including issues of
term limits and Balanced Budget Amendments. I was interested in
your observation, Mr. Spaulding, that the influx of dark money
in politics is probably more corrosive to our democracy than
the absence of term limits, I would agree with that. So, here
we are, we've just returned from the House floor, where, yet
again, an attempt to fund the government, a poor Constitutional
duty for Congress, has been thwarted by an extremist,
antigovernment minority.
Not even a majority, a minority. So, I'm listening with
trepidation to these suggestions that we should impose
additional burdens, whether a Balanced Budget Amendment, or
some kind of super majority requirement on our budgetary
process when we can't even seem to get it done right now with
what we have. I understand many people are frustrated by the
difficulty and pace of confirming Constitutional amendments.
Mr. Cohen mentioned his amendment, which would limit the
ability of a President to pardon him or herself. I've been
waiting my entire adult life for final acknowledgment,
enrollment, or resurrection of the equal rights amendment,
depending on what side of that debate you want to come down on.
In the past month I've had constituents advocate for
amendments, many of which have been adopted by various States,
including amendments to guarantee access to reproductive
healthcare, including abortion care.
To overturn the Citizens United decision, which has allowed
a flood of dark money in our politics. To guarantee the right
of labor to organize and collectively bargain. To protect and
improve a healthy environment for current and future
generations. A right to a thorough and efficient public
education, and the possibility of advising or repealing the
second amendment.
So, these are all ideas that have merit, and deserve
Congressional consideration. Recently, former Senator Russ
Feingold, Constitutional scholar Peter Prindiville published an
interesting analysis of the purpose and history of Article V.
It's entitled, ``The Constitution in Jeopardy,'' probably too
long to enter in the record, but it examines many of these open
questions, and the pitfalls in the current Article V.
Suggesting that maybe we should consider streamlining, or
somehow managing this process so that we could have a more
fluid Constitutional Amendment process without denigrating the
really touchstone that the Constitution is supposed to be.
Keeping it above the fray of ordinary politics and
factionalism. Mr. Spaulding, do you have anything to comment on
that idea?
Mr. Spaulding. Thank you, Ranking Member Scanlon. It's a
terrific book, and I highly recommend it as well. I think it
grapples with all the unanswered questions that we've been
talking about today. All the risks that a Constitutional
Convention would put our civil rights and civil liberties up
for grab. We're living in a time right now where there's a
fever among some States to ban books, and directly attack the
First Amendment.
So, would that be issue A at a Constitutional Convention?
One of the proposals that Senator Feingold and Mr. Prindiville
have in that book is to have, in this very room, have Congress
explore an amendment to Article V that would answer some of
these questions, but would proceed through the stable,
transparent route that we've followed 27 times before, that
would allow open debate, that would allow us to explore answers
to those questions.
It's a provocative and interesting proposal that does merit
review. What's most important is it both preserves, and
empowers people, but it also recognizes the important stability
that is provided by Congressional review.
Ms. Scanlon. OK, thank you. I would seek unanimous consent
to include the following items in the record.
First, is an article written by former Senator Russ
Feingold, now President of the American Constitution Society
titled, ``Warning a Convention of States is Practicing to
Rewrite the Constitution,'' published in The Nation, July 14,
2023.
A September 2022 The New York Times article entitled, ``A
Second Constitutional Convention some Republicans Want to Force
One.''
An extensive piece by Professor David Super of Georgetown
University Law Center dated October 2021 titled, ``A Dangerous
Adventure: No Safeguard Would Protect Basic Liberties from an
Article V Convention.''
An article from the Center on Budget and Policy Priorities,
``Five Reasons to Reject any Constitutional Balanced Budget
Amendment.''
An article from the Center for American Progress entitled,
``Tax Cuts are Primarily Responsible for the Increasing Debt
Ratio.''
Two more. An article from the Center on Budget and Policy
Priorities entitled, ``Constitutional Balanced Budget Amendment
Poses Serious Risks.''
A Washington Post article dated September 16, 2023,
entitled, ``What Term Limits for Congress Would Actually do to
Senate and House.''
Mr. Johnson of Louisiana. Without objection.
Ms. Scanlon. Thank you. Seeing my time is expired, I would
yield back.
Mr. Johnson of Louisiana. The gentlelady yields back. This
will conclude today's hearing, and we want to sincerely thank
our witnesses again for appearing today, and for your
flexibility and your patience, it means a lot to us. Without
objection, all Members will have five legislative days to
submit additional written questions for the witnesses, or
additional materials for the record.
Given that big load there, I'll probably have to do that to
balance the record. Without objection, the hearing is
adjourned. Thank you.
[Whereupon, at 4:48 p.m., the Subcommittee was adjourned.]
All materials submitted for the record by Members of the
Subcommittee on the Constitution and Limited Government can
be found at: https://docs.house.gov/Committee/Calendar/ByEvent
.aspx?EventID=116370.
[all]