[Congressional Record Volume 141, Number 26 (Thursday, February 9, 1995)]
[House]
[Pages H1539-H1541]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




   LAWSUIT CHALLENGING THREE-FIFTHS VOTE TO INCREASE INCOME TAX RATES

  The SPEAKER pro tempore (Mr. Cunningham). Under a previous order of 
the House, the gentleman from Colorado [Mr. Skaggs] is recognized for 5 
minutes.
  Mr. SKAGGS. Mr. Speaker, yesterday 15 Members of this body, including 
myself, 6 private citizens, and the League of Women Voters filed a 
lawsuit to overturn as unconstitutional the new House rule requiring a 
supermajority of three-fifths to pass any legislation raising income 
tax rates.
  Let me make this very, very clear: This lawsuit has absolutely 
nothing to do with taxes; it has everything to do with the Constitution 
of the United States.
  Last month each and every one of us took an oath to uphold and defend 
that Constitution. That is our first and our most serious and sacred 
duty.
  Unfortunately, the new House majority seems all too willing to treat 
the Constitution quite casually.
  This new House rule is intended to be a political
   statement that they are really serious about not raising taxes. We 
believe that the Constitution is far too important to set aside just 
for the sake of a political slogan.

  The new House rule violates one of the most fundamental principles of 
our democracy, the principle of majority rule. It sets an extremely 
dangerous precedent, and we simply believe that it should not be 
allowed to stand.
  This year the supermajority requirement may apply just to income tax 
rates; but next year--next year it could be international agreements or 
trade or civil rights or clean air, and perhaps unanimous consent 
required if this country should have to go to war.
  So it is extremely important to act now to purge the House rules of 
this very bad idea. To do it now, lest it serve as an invitation to 
some future Congress to do even more mischief with the Constitution, to 
yield to some temptation to an even greater level of constitutional 
stupidity.
  The Framers of the Constitution were very much aware of the 
difference between a supermajority and a simple majority. They met in 
Philadelphia in direct response to the requirement of the Articles of 
Confederation for a supermajority to raise and spend money or exercise 
other major powers. It was the paralysis of our National Government in 
those days, caused by the supermajority requirement of the Articles of 
Confederation, more than any other single reason, that led to the 
creation of our Constitution.
  In the convention in Philadelphia, the delegates repeatedly 
considered and rejected proposals to require a supermajority for action 
by Congress, either on all subjects or on specified ones. In only five 
instances did they specify something more than a regular majority vote: 
overriding a veto, ratifying a treaty, removing officials from office, 
expelling a Member, or proposing amendments to the Constitution itself.
  When they wanted to require supermajorities, they knew exactly how to 
do it. None of these instances have anything to do with the passage of 
legislation.
  Now, some argue that the three-fifths requirement to raise taxes 
would be like the two-thirds requirement to pass a bill on suspension 
or 60-vote requirement to end debate in the other body. Wrong. Those 
rules address procedural steps. A bill not approved under suspension of 
the rules can be brought back and passed by a simple majority later in 
the House.
  After a debate is over in the other body, the bill still needs to 
gather only a majority of votes to pass.
  The idea of a three-fifths vote to raise taxes was first proposed by 
the new majority in its so-called contract as part of the balanced 
budget amendment to the Constitution. For those who are serious about 
this idea, that is the way to do it, amending the Constitution itself. 
They cannot use the House rules to amend the Constitution on the cheap.
  The Framers had the wisdom and foresight to grant the courts the 
authority to decide the constitutionality of the acts of other branches 
of the Government.
  The Framers knew there would be times like this, times in our history 
when elected officials would be unable to resist the temptation to 
tamper with the Constitution.
  Today we have taken advantage of that foresight by asking the Federal 
District Court for the District of Columbia to strike down this 
politically motivated House rule and to preserve the integrity of the 
Constitution.
  Filing suit against the Clerk of the House is a step which none of us 
takes lightly. Last month I took an oath to uphold and defend the 
Constitution, and it is with deep respect for my colleagues in this 
body and my commitment to that oath I filed this suit.
  Mr. Speaker, yesterday I joined 14 other Members of Congress, 6 
interested private citizens, and the League of Women Voters in filing a 
lawsuit to strike down a new House rule which violates the principle of 
majority rule. We have asked the U.S. District Court for the District 
of Columbia to issue a declaratory judgment that the new House rule 
requiring a three-fifths vote to increase income tax rates is 
unconstitutional. The new rule violates one of the most fundamental 
principles of our democracy--majority rule--and it should not be 
allowed to stand.
  I am especially pleased that Lloyd Cutler, Partner at Wilmer, Cutler, 
and Pickering, and Prof. Bruce Ackerman of the Yale Law School have 
agreed to represent us in this suit. Their expertise and commitment 
have been invaluable in making this challenge possible.
  Let me make this clear, this case has nothing to do with taxes and 
everything to do with the Constitution. To make it look like they're 
really serious about opposing taxes, the new Republican majority is 
willing to subvert the 
[[Page H1540]]  constitutional principle of majority rule. We believe 
that the Constitution is too important to set aside for the sake of a 
political slogan. While this year the supermajority requirement might 
apply just to taxes, next year it could be trade or civil rights or 
clean air legislation or even a declaration of war. So, it's extremely 
important to act now to purge the House Rules of this bad idea, lest it 
serve as an invitation to some future Congress to do more mischief with 
the Constitution--to yield to some temptation to an even greater 
constitutional stupidity.
  Filing suit against the Clerk of the House of Representatives is not 
a step which any of us takes lightly. Unfortunately, the new House 
majority seems all too willing to treat the Constitution casually. At 
its insistence, the House voted last month to approve this rule, a 
frontal assault on the principle of majority rule and one which we 
believe violates the Constitution. The oath of office my colleagues and 
I took last month requires us to support and defend the Constitution. 
That is our first and most serious duty. Our commitment to that oath 
compels us to take this action.
  Our complaint asks the court to declare the new rule unconstitutional 
on two grounds. First, it unconstitutionally gives effective control of 
legislation to the minority during House consideration of tax measures. 
This violates the principle of majority rule embodied in the 
Constitution, a principle from which Congress is permitted to stray 
only in situations specifically stated in the Constitution.
  Second, the rule's prohibition on the consideration of retroactive 
Federal income tax increases unconstitutionally restricts the business 
of the House. The Constitution specifically grants Congress the 
authority to lay and collect taxes. The House does not have the power 
to override the Constitution by adopting rules which limit its 
constitutionally protected authority to act on tax matters, retroactive 
or otherwise.
  During debate on the rule last month, Republicans said this rule 
change made it clear that they are opposed to tax increases. What it 
really made clear is that for the sake of political posturing the 
Republicans are willing to trample on the Constitution which has guided 
us for 206 years.
  The Framers of the Constitution were very much aware of the 
difference between a supermajority and a simple majority. They met in 
Philadelphia against the historical backdrop of the Articles of 
Confederation, which required a supermajority in Congress for many 
actions, including the raising and spending of money. It was the 
paralysis of national government caused by the supermajority 
requirement, more than any other single cause, that led to the 
convening of the Constitutional Convention.
  In that convention in Philadelphia, the delegates repeatedly 
considered--and rejected--proposals to require a supermajority for 
action by Congress, either on all subjects or on certain subjects. In 
only five instances did they specify something more than a majority 
vote. These are for overriding a veto, ratifying a treaty, removing 
officials from office, expelling a Representative or Senator, and 
proposing amendments to the Constitution. Amendments to the 
Constitution later added two others: Restoring certain rights of former 
rebels, and determining the existence of a Presidential disability. 
None of these instances has to do with the passage of routine 
legislation.
  The records of the debates in Philadelphia make it clear that in all 
other instances the writers of the Constitution assumed that a simple 
majority would suffice for passage of legislation. The text of the 
Constitution itself says as much. Why, otherwise, would it provide that 
the Vice President votes in the Senate only when ``they be equally 
divided?'' Because, as Hamilton explained in Federalist No. 68, it was 
necessary ``to secure at all times the possibility of a definitive 
resolution of the body.'' Certainly the Framers didn't intend the 
Senate to operate by the principle of majority rule, but not the House. 
Majority rule is such a fundamental part of a democratic legislature 
that the Founders saw no need to state it explicitly.
  If the House could adopt its own supermajority requirements to pass 
unpopular legislation, that would leave a temporary majority of the 
House free to craft all sorts of voting schemes which would strengthen 
the power of minorities and make our legislature unworkable. For 
example, instead of simply requiring three-fifths of the whole House, 
the rules could say that a bill wouldn't be considered to have passed 
unless it has the votes of all the House committee chairmen. Or two-
thirds of its 100 most senior members. Or the vote of at least one 
Member from each State. To be sure, these are absurd and cumbersome 
proposals, but each would be permitted under the Republican's 
interpretation of the Constitution.
  The reason behind the principle of simple majority rule was stated 
clearly in The Federalist--one of the five books which the new Speaker 
has urged every Member to read. In Federalist No. 58, James Madison 
wrote:

       It has been said that more than a majority ought to have 
     been required for a quorum, and in particular cases, if not 
     in all, more than a majority of a quorum for a decision. That 
     some advantages might have resulted from such a precaution, 
     cannot be denied. It might have been an additional shield to 
     some particular interests, and another obstacle generally to 
     hasty and partial measures. But these considerations are 
     outweighed by the inconveniences in the opposite scale. In 
     all cases where justice or the general good might require new 
     laws to be passed, or active measures to be pursued, the 
     fundamental principle of free government would be reversed. 
     It would be no longer the majority that would rule; the power 
     would be transferred to the minority. Were the defensive 
     privilege limited to particular cases, an interested minority 
     might take advantage of it to screen themselves from 
     equitable sacrifices to the general weal, or in particular 
     emergencies to extort unreasonable indulgences. [Emphasis 
     added.]

  And again, remember that it was a lack of effective national 
government, produced by the minority-rule effects of the supermajority 
provisions of the Articles of Confederation, that led to the Convention 
that wrote the Constitution.
  Supporters of the new House rule note that the Constitution says the 
House may write its own rules. Yes. And the supporters have also cited 
an 1892 Supreme Court decision United States versus Ballin which says 
this rulemaking power ``is absolute and beyond the challenge of any 
other body or tribunal'' so long as it does ``not ignore constitutional 
constraints or violate fundamental rights.''
  But there's the rub. The rulemaking power of the House does not give 
us a license to steal other substantive provisions of the Constitution, 
especially not one so central as the principle of majority rule.
  The advocates of this rule conveniently fail to point out that a 
unanimous Supreme Court in that very same case determined that one 
constitutional constraint that limits the rulemaking power is the 
requirement that a simple majority is sufficient to pass regular 
legislation in Congress. To quote the Court:

       The general rule of all parliamentary bodies is that, when 
     a quorum is present, the act of a majority of the quorum is 
     the act of the body. This has been the rule for all time, 
     except so far as in any given case the terms of the organic 
     act under which the body is assembled have prescribed 
     specific limitations * * *. No such limitation is found in 
     the Federal Constitution, and therefore the general law of 
     such bodies obtains.

  The Court expressed the same understanding as recently as 1983, when, 
in Immigration and Naturalization Service versus Chadha, it stated:

       * * * Art. II, sect. 2, requires that two-thirds of the 
     Senators present concur in the Senate's consent to a treaty, 
     rather than the simple majority required for passage of 
     legislation.

  So, this principle, while not written into the text of the 
Constitution, was explicitly adopted by the Constitutional Convention. 
It was explicitly defend in The Federalist, the major contemporary 
explanation of the Framer's intent. It was followed by the first 
Congress on its first day, and by every Congress for every day since 
then. And, this principle has been explicitly found by the Supreme 
Court to be part of our constitutional framework.
  Some argue that a three-fifths requirement to raise taxes would be 
like a two-thirds vote requirement to suspend the rules and pass a 
bill, or the 60-vote requirement to end debate in the Senate. Wrong. 
Those rules address procedural steps. A bill not approved under 
suspension of the rules in the House can be reconsidered and passed by 
a simple majority. After debate is over in the Senate, only a simple 
majority is required to pass any bill.
  So this rule is not like any rule adopted in the 206 years in which 
we have operated under our Constitution. As 13 distinguished professors 
of constitutional law recently said in urging the House to reject this 
rule:

       This proposal violates the explicit intentions of the 
     Framers. It is inconsistent with the Constitution's language 
     and structure. It departs sharply from traditional 
     congressional practice. It may generate constitutional 
     litigation that will encourage Supreme Court intervention in 
     an area best left to responsible congressional decision.

  So, if this rule is so clearly unconstitutional, why was it adopted? 
The answer is simple. This rule is a gimmick. It is an act of high 
posturing. And as much as the Republicans may wish to be seen as 
opposed to tax increases, to demonstrate their absolute hostility 
toward tax increases, still it is unseemly to do so at the expense of 
the Constitution.
  Beyond that, if we start down this road of making it harder for 
Congress to carry out some of its responsibilities, who knows where it 
will end. In December, Representative Solomon sent out a ``Dear 
Colleague'' letter enclosing and endorsing a newspaper column saying 
that this supermajority requirement 
[[Page H1541]]  should be broadened to apply to all taxes and fees; to 
any spending increase; and to any bill imposing any costs on any type 
of private business--for example, the Clean Air Act.
  So let's be clear that if this supermajority requirement is allowed 
to stand for one type of legislation, in the future we'll
 be voting on extending that bad idea to other types of legislation, 
too. And with it, we slide measurably toward the empowerment of a 
minority against which Madison warned.

  Some question whether the court will even address the merits of our 
claim. We are confident it will. The U.S. Court of Appeals for the 
District of Columbia Circuit in Michel versus Anderson reached the 
merits of a new rule of the House to allow delegates to vote in the 
Committee of the Whole. There, the court rejected various procedural 
arguments to dismiss the case, stating that the courts are empowered to 
act on those House actions which ``transgress the identifiable textual 
limits'' of the Constitution. Moreover, the court ruled that private 
citizens have standing in these kinds of suits because they are being 
harmed through a dilution of the value of their vote in Congress, but 
unlike Representatives, they do not have the power to persuade the 
House to change its rules. The plaintiffs in our case are similarly 
affected by House rule XXI, a rule which, we argue, clearly exceeds 
congressional authority under the Constitution.
  The idea of a three-fifths majority to raise tax rates was first 
proposed in the Republican Contract With America as a part of a 
balanced budget amendment to the Constitution, not as a rules change. 
For those who are serious about this idea, that is the appropriate and 
lawful way to do it--through an amendment to the Constitution.
  Since the House did not follow that process, my coplaintiffs and I 
have been forced to involve the courts in this matter. The Framers had 
the wisdom and foresight to grant the Federal courts the authority to 
decide the constitutionality of acts of other branches of the 
Government. The Framers knew there would be times in our history when 
elected officials would be unable to resist the temptation to tamper 
with the Constitution for short-term political gain.
  Today we take advantage of that foresight by asking the court to 
strike down a politically motivated House rule and preserve the 
integrity of the Constitution. Our faith in the strength of the 
Constitution gives us faith in the process of judicial review, and we 
feel confident that the court will strike down this House rule.
  Mr. Speaker, I include in the Record the statement of Ms. Becky Cain, 
president of the League of Women Voters of the United States, in 
connection with the lawsuit.
  (The letter from Ms. Cain is as follows:)

   Statement by Becky Cain, president, League of Women Voters of the 
                    United States, February 8, 1995

       On the Lawsuit Challenging House Rule XXI:
       Good morning. My name is Becky Cain and I'm president of 
     the League of Women Voters of the United States. On behalf of 
     our members and on behalf of all voters, the League is 
     joining in this suit.
       Seventy-five years after its founding, the League still 
     believes in the concept of good government. We still believe 
     that maintaining the integrity of our political system is a 
     worthy goal. Call us old fashioned--we still believe that 
     representative government should operate on the principle of 
     majority rule. We oppose the tyranny of the minority.
       Good government means representative government. According 
     to the Constitution, majority rule is the keystone of 
     representative democracy. House Rule 21 turns this principle 
     on its head. By enacting a rule requiring three-fifths vote 
     to raise taxes, the two-fifths who oppose the bill gain 
     control. Congress has thus given up the most basic and 
     fundamental power granted by the Constitution--the power to 
     lay taxes--to minority rule. Good government also means 
     responsive government. But under the three-fifths rule, 
     Congress responds to the interests and will of only a 
     minority of its members.
       Good government means being able to make decisions--to make 
     hard choices. As we are seeing now, making decisions that 
     meet the needs of this diverse country is already difficult 
     enough. This rule makes tough budget and tax decisions 
     impossible.
       In 1951 when President Eisenhower asked Congress to help 
     him raise revenue for the Korean War effort, they did so by a 
     vote of 233 to 160 in the House of Representatives--less than 
     three-fifths. Under House Rule 21, Eisenhower's defense 
     program would have been blocked or the budget busted.
       Finally, good government means abiding by the Constitution. 
     The three-fifths rule does not. The Constitution explicitly 
     requires a supermajority in only seven cases. Requiring 
     supermajorities to pass legislation would, according to James 
     Madison, reverse the principle of free government. In the two 
     centuries since he made this argument, we've seen no evidence 
     that proves him wrong.
       Don't be fooled by the term ``supermajority.'' The day the 
     House passed Rule 21, the majority of citizens lost power. 
     Under this rule the votes of some representatives count less 
     than other, and thus the votes of some voters count less than 
     others. This is called vote dilution. We are taking this 
     action, then, on behalf of all those voters whose votes now 
     mean less than they used to.
       The League understands the anti-tax sentiment behind this 
     rule. Nobody likes to have their taxes raised. And certainly 
     Congress needs to think long and hard before it enacts any 
     increase. But good intentions do not equal good government. 
     And in those cases where Congress has to evade the 
     Constitution in order to legislate public sentiment, let the 
     voters beware.
       With so much at stake, maintaining majority rule is more 
     critical than ever. The League joins this lawsuit to halt the 
     erosion of this constitutional principle.
     

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