[Congressional Record Volume 141, Number 30 (Wednesday, February 15, 1995)]
[Senate]
[Pages S2679-S2732]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


             BALANCED BUDGET AMENDMENT TO THE CONSTITUTION
  The PRESIDING OFFICER. Under the previous order, the Senate will now 
resume consideration of House Joint Resolution 1, a joint resolution 
proposing a balanced budget amendment to the Constitution of United 
States.
  The clerk will report.
  The assistant legislative clerk read as follows:

       A joint resolution (H.J. Res. 1) proposing a balanced 
     budget amendment to the Constitution of the United States.

  The Senate resumed consideration of the joint resolution.


                           Amendment No. 248

(Purpose: To prohibit the House from requiring more than a majority of 
         quorum to adopt revenues increases and spending cuts)

  Mr. BINGAMAN. Mr. President, I call up amendment No. 248 for 
consideration.
  The PRESIDING OFFICER. The clerk will report.
  The assistant legislative clerk read as follows:

       The Senator from New Mexico [Mr. Bingaman] proposes an 
     amendment numbered 248.

  The amendment is as follows:

       On page 3, strike lines 9 through 11, and insert the 
     following:
       ``Section 8. This article shall take effect beginning with 
     the later of the following:
       ``(1) fiscal year 2002;
       ``(2) the second fiscal year beginning after its 
     ratification; or
       ``(3) the end of the first continuous seven-year period 
     starting after the adoption of the joint resolution of 
     Congress proposing this article during which period there is 
     not in effect any statute, rule, or other provision that 
     requires more than a majority of a quorum in either House of 
     Congress to approve either revenue increases or spending 
     cuts.''.

  Mr. BINGAMAN. Mr. President, the balanced budget amendment 
contemplates a 7-year period during which we would go from where we now 
are--that is, about a $200 billion annual deficit--to a zero deficit. 
This chart makes the point very obviously that, from 1996 to the year 
2002, we need to make substantial progress in getting from where we are 
to that zero deficit.
  My amendment tries to assure that during those 7 years--not after the 
7 years--but during those 7 years we can actually reach this goal of a 
balanced budget. My amendment says that during those 7 years you cannot 
have a requirement for a supermajority either to cut spending or to 
raise taxes in either House of the Congress.
  Mr. President, I voted for the balanced budget amendment before, and 
I can honestly say that the intent of the amendment's proponents in 
those previous debates here on the Senate floor seems to me different 
from what is their apparent intent this time. In the previous 
Congresses the amendment was offered as a mechanism to help achieve 
responsible fiscal policy. It was to be a prod to keep us focused on 
deficit reduction; an assist to us in pursuing sound fiscal policy. 
Since I agreed that more discipline was needed, I was willing to 
support the amendment.
  This time the amendment comes to us in a different context, supported 
by some different arguments. Now, the proponents do not just want 
deficit reduction and sound fiscal policy. They also want that deficit 
reduction achieved in their preferred way and in a way which most 
heavily benefits those they desire to benefit. That is a new and a 
disturbing aspect of this year's debate, Mr. President.
  This year, the amendment comes from the House of Representatives 
after the House has already amended its own rules to require a three-
fifths supermajority for any increase in income tax rates. Other taxes 
can still be raised with a simple majority. Of course, spending cuts 
can still be accomplished with a simple majority, but 
[[Page S2680]] income tax rates cannot be raised without a three-fifths 
vote, according to the House rule.
  Some argue that this is just a House rule and that we in the Senate 
do not need to concern ourselves with it. But under the Constitution, 
all revenue measures must originate in the House, so if the House has a 
rule that biases deficit reduction against changes in the income tax, 
that restricts the options available to the entire Congress, not just 
the House.
  Mr. President, this change of rules undermines genuine efforts at 
deficit reduction, and it undermines our ability to achieve sound 
fiscal policy. The purpose of the House rule is to advance a 
conservative political agenda of less taxation for certain taxpayers 
without regard for and in spite of the consequences for the deficit.
  The purposes of the rule are to protect individuals and corporations 
in the upper tax brackets and to accomplish any increase in revenue by 
raising regressive taxes that affect middle-income individuals and 
families, taxes such as the gas tax, Social Security taxes, sales and 
excise taxes.
  Supermajority requirements like the House rule make deficit reduction 
over the next 7 years even more different than it already is. But more 
importantly, they drastically alter the fundamental fairness of the way 
we will allocate the pain of deficit reduction during those 7 years.
  The supermajority requirement shifts the burden away from wealthy 
individuals and corporations and onto the backs of low- and middle-
income working families. For under the House rule, it is the working 
families of America, not the wealthy and the corporations, who will 
feel the spending cuts. It is those working families who will pay the 
gas taxes and the social insurance taxes and the excise taxes which 
must get us to a zero deficit.
  Never before have the proponents of this balanced budget amendment 
argued that it is right for middle-income families to pay to balance 
the budget but not right for the wealthy and the corporations to pay.
  So my amendment restores the fundamental fairness of previous 
balanced budget amendment discussions. It restores the ground rules to 
what they were during previous balanced budget amendment debates here 
on the floor by establishing this 7-year period in which to get to a 
zero deficit without unfair supermajority requirements in either House 
with regard either to particular spending cuts or particular tax 
increases.
  Now, looking at the second of these charts, it makes a very serious 
point which I am sure everyone knows here in the Senate and perhaps 
needs to be repeated. Deficit reduction is not rocket science. It is 
not difficult to know what to do. It is difficult to have the courage 
to do it.
  Deficit reduction can be accomplished in two ways. You can cut 
spending or you can increase revenue. Either one of those works. Both 
of them help get you to a zero deficit and a balanced budget. As the 
bottom part of the chart shows, my amendment merely says that during 
the 7 years leading up to 2002 we cannot have supermajority votes 
required either for spending cuts or for revenue increases.
  Our past experience and simple economic sense leads me to conclude 
that if we are going to seriously approach accomplishing a balanced 
budget, we will have to look at both spending cuts and revenue 
increases to get from here to where we need to go.
  If we look at history and look at what we have actually done in the 
last 15 years by way of deficit reduction, we can see the point I am 
trying to make. There have been five serious efforts at deficit 
reduction during the 1980's and the first half of the 1990's--under 
Republican Presidents and under Democratic Presidents I point out.
  In 1982, there was a significant deficit reduction effort. The total 
deficit reduction there was $116 billion. That was, of course, under 
President Reagan. He signed that bill and approved it. Most of the 
deficit reduction there was accomplished by revenue increases--not by 
spending cuts. People need to recognize that in each of the five cases 
here we have had both revenue increases and spending cuts.
  The second serious reduction was when President Reagan was in the 
White House in 1987, and again we had substantial revenue increases: 
$75 billion in revenue increases and $118 billion in spending cuts. So 
there was clearly a combination of the two in that case.
  In 1989, under President Bush, we had a deficit reduction effort 
which was about equally balanced between revenue increases and spending 
cuts.
  In 1990, we had a very major deficit reduction package when President 
Bush was in the White House. There was more in spending cuts, nearly 
twice as much in spending cuts or a little over twice as much in 
spending cuts as there were in revenue increases. But still there was a 
combination of the two.
  Then 2 years ago, in 1993, of course, we had President Clinton's 
deficit reduction package which involved both spending cuts and revenue 
increases, totaling, according to the CBO, $433 billion as originally 
proposed. I think the estimates are that that has increased since.
  I think it is interesting to note when we look at this history of how 
we have actually tried to accomplish deficit reduction, in four of the 
five deficit reduction efforts that were made in the 1980's and so far 
in the 1990's we did not have the three-fifths vote necessary in the 
House which would be required by this House rule. So these packages, 
four of the five, could not have passed under the House rule as it now 
stands. Not only does history indicate that serious deficit reduction 
will require both spending cuts and tax increases, but common sense 
indicates that it will as well.
  Now, looking at the next chart, that chart shows the Federal budget 
and shows what is available when we start to cut spending. Many 
previous speakers in the last couple of weeks have pointed to this 
chart or similar versions of this chart to make the very obvious point 
that the majority of the Federal budget is so-called mandatory 
spending, spending not readily available for cuts. Clearly we can 
change the eligibility requirements for Social Security or Medicare or 
Medicaid and get savings, but this is mandatory in the sense that it 
will take a change in the substantive law that we have had on the books 
for some time in order to bring that about.
  Interest accounts for about 15 percent of the debt. There is no way 
to dodge that. We have to pay that each year. We cannot make up 
spending cuts there. Medicare and Medicaid is about 17 percent, and as 
far as I know somebody is talking about cuts in Medicare and Medicaid. 
All they are talking about is whether we will restrain the rate of 
increase in those areas.
  Social Security, we have had votes in the last 2 or 3 days where 
everybody has gone on record, both Democrat and Republican, as not 
wanting to see Social Security counted as part of the way we get to 
deficit reduction to get to a balanced budget.
  And other mandatory spending, other entitlement programs, makes up 
about 10 percent. The areas that are discretionary are defense, which 
is about 18 percent of the Federal budget. The proposal I have heard 
around the Capitol in recent months is not to cut defense. It is added 
to what the President himself has proposed as increases in defense 
during the next 5 years.
  Of course, some people think we can balance the budget by cutting out 
international foreign aid. That is 1.4 percent of the Federal budget. I 
suggest that if we eliminate it entirely, we still would have a long 
way to go to get to a balanced budget.
  Domestic discretionary, 16.5 percent. That is where the cuts will 
come. I think everybody knows that when we get around to cutting 
spending, the cuts are going to come in domestic discretionary 
spending. That is law enforcement funding, that is education funding, 
that is public health funding, that is funding of a whole variety of 
things which generally keep the Government running.
  While virtually all experts agree that to get to a balanced budget, 
we will have to both cut spending and raise revenue, the House of 
Representatives by rule has made it very difficult for us to raise that 
additional revenue, at least to raise that additional revenue from the 
income tax.
  We are spending a great deal of time in the Congress this year, Mr. 
President, talking about the Contract With America. I read that 
contract, and part 
[[Page S2681]] of it did contain a promise to the American people not 
to raise taxes. The contract does not just contain a promise not to 
raise taxes, it has a promise to require a supermajority to raise 
taxes. The contract, in fact, proposed to include that supermajority 
requirement for tax increases in the balanced budget amendment itself.
  When the Speaker and the majority in the House finally started 
looking at their votes, they decided they did not have the votes to 
pass the balanced budget amendment in that form, but that they did have 
the votes to put in place a rule which would have the same effect; that 
is, a rule which would say that you have to have not a majority but you 
have to have three-fifths of the House voting for any kind of change in 
income tax rates in order to increase those rates.
  Not only has the Republican leadership in the House made good on 
their promise to require a supermajority to raise taxes and to put it 
in the rules, they have also committed to a major tax cut this year.
  We had quite a debate yesterday about whether or not it was wise to 
proceed with a tax cut. I believe myself that the 1981 tax cut was not 
responsible in light of the Federal deficit we faced then. It seems 
equally clear to me that this proposed tax cut, which is called for in 
the Contract With America, is also not responsible.
  Mr. President, I regret that President Clinton has chosen to advocate 
tax cuts at this particular time, although his proposal is much more 
reasonable in size and it is targeted toward families attempting to 
improve their own education or their children's education.
  This is the context in which we are considering a commitment to reach 
a balanced budget amendment in the next 7 years. The results, in my 
view, are two:
  First, the chances are overwhelming that if we keep this 
supermajority requirement in the House rules, we will not reach the 
goals set out in the amendment of a balanced budget by the year 2002.
  And second, that if we keep this supermajority requirement in the 
House rules, whatever steps we take to reach the goal are going to fall 
hardest on working families.
  My amendment tries to ensure a good faith effort by all to reach the 
goal of a balanced budget. It eliminates all the preconditions, it 
eliminates all the artificial barriers. No group, and certainly not the 
wealthy, could assume that it would be spared from sharing in the pain 
of deficit reduction.
  There would be no prohibition against cuts and particular types of 
spending; there would be no prohibition against increases and 
particular types of taxes. The House rules requiring three-fifths to 
change income tax rates would have to either be dropped or judged 
invalid by the Supreme Court.
  I point out to my colleagues that there is pending today in the court 
a suit brought by the League of Women Voters and 15 House Members 
challenging the constitutionality of the House rule.
  Mr. President, this is essentially a back-to-reality amendment. It is 
also a basic fairness amendment. I believe it is an important amendment 
dealing with this issue of a supermajority requirement, particularly as 
it has been manifested in this House rule.
  Let me look at one final chart to make that last point about the 
importance of the amendment. We have looked at where the spending 
occurs in Government. Let us look at where the revenue comes from to 
see what we are taking off the table by adopting that House rule.
  The income tax, of course, is our most progressive tax. Here you can 
see the individual taxes account for 43 percent of the revenue that the 
Government receives each year, and corporate taxes account for an 
additional 11 percent. So you add those two together and you have 54 
percent of the revenue that comes to the Federal Government by way of 
taxes.
  We are saying if you want to change the amount of revenue you receive 
from those taxes, if you want to get anymore revenue from those taxes, 
you have to have three-fifths under the House rule.
  That is a major amount. That is a major source of revenue to be 
building a supermajority requirement around. When you look at where 
else can we raise revenue, if we are not able to get the three-fifths 
necessary there, as we have not been able to get the three-fifths 
necessary in four of the last five major deficit reduction efforts in 
the Congress, where else can you get those?
  Social Security taxes, 37 percent; 37 percent of the total revenue 
coming into the Federal Government comes from Social Security taxes. So 
you can raise Social Security taxes. Excise taxes, 4 percent, and other 
taxes, 5 percent. That is things like the gasoline tax and other 
matters. I point out that the Social Security tax, excise tax, and 
gasoline taxes are regressive. That means that they fall most heavily 
on low- and moderate-income individuals. The income tax is the 
progressive tax. It is the tax that has higher rates that you are 
required to pay as your income goes up. So when you say you will not 
change the income tax, you are clearly looking out for those people 
with the high incomes.
  When we say a supermajority is required to raise rates in that tax 
but not in others, we are protecting those who are relatively 
disadvantaged by the progressive rate structure of the income tax, and 
those are clearly the wealthy in our society.
  The people most affected by taxes, other than the income tax, are not 
protected. Those are the working families, poor families, the elderly. 
Those other taxes are still available as sources of income. The 
gasoline tax is there, available, excise taxes. Some of my colleagues 
have an interest in beer and wine and tobacco taxes and other excise 
taxes as well. The main other source of income for the Federal 
Government is the Social Security tax. That accounts for 37 percent of 
all the revenue we receive.
  In addition to these sources of revenue to get from here to a 
balanced budget, we also, of course, have areas of spending that can be 
targeted for reduction. And the area of spending which we all know is 
most likely to be cut is domestic discretionary spending. That category 
includes programs that primarily go to benefit the average working 
people in the country--education grants, loans, health care, health 
clinics in our rural areas, nutrition, school lunch programs, law 
enforcement, funds needed to make good on the promises that were in 
last year's crime bill.
  To summarize, Mr. President, this amendment that I am offering today 
lets us go into this 7-year period with ground rules that do not make 
it virtually impossible to get from here to a balanced budget.
  They also let us go into this 7-year period with ground rules that do 
not require most of the pain--that is, a disproportionate amount of the 
pain--of deficit reduction to be borne by working families.
  In my view, this is a good amendment. I urge all Senators who are 
seriously committed to deficit reduction and to fairness in the way 
that we achieve that deficit reduction to support the amendment.
  Mr. President, I yield the floor and reserve the remainder of my 
time.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER (Mr. Faircloth). The Chair recognizes the 
Senator from Utah.
  Mr. HATCH. I thank the Chair.
  Mr. President, we are now in our 17th day under our balanced budget 
amendment debt tracker of the increase in the debt as we debate. While 
we are debating this--this is our 17th day of debate, or 17th day since 
we started this debate--we can see in this far chart the red line at 
the bottom is the $4.8 trillion debt that we started with at the 
beginning of this year. The green lines show how it is going up every 
day $829 million of additional debt on the backs of our children and 
our grandchildren. Today, the 17th day, we are now up to, as you can 
easily see here, $14,100,480,000--in additional debt just while we 
debate this.
  The reason we are doing this is so the American people can understand 
that this is serious business. For 17 days this has been delayed, a 
full 3 weeks of Senate floor time, 3 weeks on something that a vast 
majority of Senators are for, and we believe 67 of us will vote for it 
in the end because it is the only chance we have to get spending under 
control, the only chance we have. It is the first time in history that 
the House of Representatives has passed a balanced budget amendment.
  [[Page S2682]] Now they have sent it to us. It is the amendment we 
have been working on now for my whole 19 years in the Senate, and I 
have to say it is a bipartisan consensus, Democrat-Republican 
amendment. It is not perfect, but it is the best we can do, and it is 
much better than anything I have seen in all the time we have debated 
it. It will put a mechanism in the Constitution that will help us in 
the Congress to do that which we should have been doing all these years 
anyway, and that is to live within our means.
  The distinguished Senator from New Mexico is very sincere. He does 
not like the three-fifths vote over in the House that they have on a 
statutory basis. It can be changed anytime by a mere 51 percent vote. 
When they get a majority over there that can do it, they will change 
it. But that has nothing to do, in my opinion, with whether or not we 
should pass the balanced budget amendment in the Senate.
  I oppose the amendment offered by the distinguished Senator from New 
Mexico. The Bingaman amendment, while seemingly aimed at supermajority 
voting requirements to raise revenues or cut spending, would in fact 
kill the balanced budget amendment, not merely delay its 
implementation. As I will explain in a few moments, the Bingaman 
amendment, if adopted, would render the balanced budget amendment 
inherently contradictory and never, ever capable of going into effect.
  The Bingaman amendment would ostensibly delay the effective date of 
the balanced budget amendment until the end of the 7-year period after 
Congress adopts it, ``during which period there is not in effect any 
statute, rule or other provision that requires more than a majority of 
a quorum in either House of Congress to approve either revenue 
increases or spending cuts.''
  Now, it may seem that this amendment is aimed at the other body's 
recent rule that Federal income tax increases are effective only if 
they receive a three-fifths vote, but it hits the balanced budget 
amendment right in the heart. And this is not an errant, leftover arrow 
from Cupid's quiver. This is a poisoned dart.
  Section 4 of House Joint Resolution 1 states that ``no bill to 
increase revenue shall become law unless approved by a majority of the 
whole number of each House by a rollcall vote.'' That means at least 51 
Senators and 218 Members of the House of Representatives must be 
recorded in favor of any revenue increase. In other words, it is a 
constitutional majority that our amendment requires.
  If we adopt the Bingaman amendment into House Joint Resolution 1, 
however, then House Joint Resolution 1 can never, ever go into effect. 
The Bingaman proposal says that House Joint Resolution 1 cannot go into 
effect so long as a provision such as section 4 is law. After all, the 
Bingaman proposal says that a majority of a quorum can raise taxes. 
House Joint Resolution 1 says that only a majority of the whole number 
of both Houses can raise taxes. You cannot put the two provisions in 
the same constitutional amendment, at least not if you are really 
trying to enact that constitutional amendment into law.
  So the Bingaman amendment is about much more than raising the 
supermajority requirement for revenue increases or spending cuts. It is 
about killing the balanced budget amendment by making it incapable of 
ever going into effect.
  I might point out that had this section 4 provision been in effect in 
1993, then President Clinton's huge tax increase in 1993 would not have 
become law. That tax increase only garnered 50 votes in the Senate and 
needed Vice President Gore's tie breaker in order to be sent to the 
President. But while the Vice President is President of the Senate, he 
is not a Member of the Senate. Accordingly, the 1993 tax increase would 
have been killed by the 50-50 vote of the Senators under the pending 
balanced budget amendment.
  There are other serious problems with the Bingaman amendment. If 
Congress wants to adopt supermajority requirements for raising taxes 
and does so in a constitutional manner, I think that it will be 
perfectly appropriate protection for the taxpayers. I wish we could get 
the votes to pass the balanced budget amendment with such a 
requirement, but we cannot. I certainly do not believe that we should, 
in our fundamental charter, put in a provision that explicitly says as 
few as 26 Senators out of 100 can raise taxes. I think it is a terrible 
idea to write that explicitly into the Constitution. As I say, we 
should put into our Constitution stronger protections against tax 
raises.
  While section 4 is not as strong as some would prefer it, certainly 
in the House, it is better than the status quo. The Bingaman amendment, 
in contrast, would make the status quo an explicit part of our 
Constitution.
  Now, my colleagues should bear in mind that a vote for the Bingaman 
amendment is a vote in favor of stating right in the Constitution 
itself that as few as 26 Senators can pass tax raises. Statutory or 
internal congressional rules seeking to impose a higher hurdle for tax 
increases would be, on their face, invalid. Today at least we have a 
fighting chance to have such statutory or internal congressional rules 
imposing higher voting requirements for tax increases upheld.
  Moreover, if Congress adopts House Joint Resolution 1 and sends it to 
the States with the Bingaman language, even aside from the fatal flaw 
that I mentioned earlier, take a look at the hurdles House Joint 
Resolution 1 would have to go through, even within the terms of the 
Bingaman amendment itself. If the other body does not repeal its three-
fifths rule on tax increases, its statutory rule, for, say, 2 years, 
then House Joint Resolution 1 would have to wait 7 more years after 
such repeal before it can be effective under the Bingaman language. 
That puts us into the year 2004. We cannot wait that long for the 
discipline of the balanced budget amendment to go into effect.
  President Clinton's proposed budgets would add another $400 billion 
to the national debt in those 2 years alone, even under optimistic 
assumptions, and $1.8 trillion over that period to the year 2004.
  If my friend from New Mexico does not like the other body's rules on 
tax increases, I say with all respect that concern should not be 
addressed by tampering with the effective date of this badly needed 
constitutional mandate to balance the budget.
  Frankly, America cannot wait any longer than the balanced budget 
amendment already provides for the Congress to be placed under such a 
mandate. I certainly believe the distinguished Senator from New Mexico 
is sincere, but I think these arguments against it are overwhelming, 
and I hope our fellow Senators will vote down the Bingaman amendment.
  I reserve the remainder of my time.
  The PRESIDING OFFICER. The Chair recognizes the Senator from New 
Mexico.
  Mr. BINGAMAN. Mr. President, let me just respond to some of the 
points my friend and colleague from Utah has made.
  He suggests that the amendment I am offering would make the balanced 
budget amendment internally contradictory, because of section 4, as I 
understand his argument. I do not see it that way, and let me explain 
my view of it.
  As I understand the procedure that the balanced budget amendment 
contemplates, there is a 7-year period during which we try to get to a 
balanced budget. Section 8 says, ``This article shall take effect 
beginning with fiscal year 2002 or with the second fiscal year 
beginning after its ratification, whichever is later.'' So there is a 
7-year period from where we are to the balanced budget. Then the 
balanced budget amendment, including section 4, takes effect.
  He is correct, section 4 says, ``No bill to increase revenue shall 
become law unless approved by a majority of the whole number of each 
House by a rollcall vote.'' My amendment does not affect that. What my 
amendment says is during the first 7 years, during the time we are 
trying to get to the balanced budget, we should not have supermajority 
requirements. Once we have a balanced budget, section 4 says you have 
to have a majority of the whole number of each House to raise revenue, 
and I am not challenging that. My amendment does not challenge that. I 
do not know that it is great policy but my amendment does not challenge 
that.
  So I do not see anything inconsistent between my amendment, which 
deals with the first 7 years, from now until 
[[Page S2683]] the time we get to a balanced budget, and section 4, 
which deals with the time from the effective date of the balanced 
budget amendment, 7 years down the road, from then on in our Nation's 
history.
  So I do not see there is any inconsistency. If I am missing something 
in the argument I would be anxious to hear the response of the Senator 
from Utah on that. But I do not believe I am missing anything. I 
believe my amendment would improve the balanced budget amendment as it 
now stands before the Senate and would not build in any internal 
contradiction into it.
  The second point he makes is that if we were to invalidate the House 
rule, we would in fact be allowing as few as 26 Senators--we could be 
putting in the Constitution a provision which says that as few as 26 
Senators can raise taxes. I would just point out that is what the 
Constitution provides. That is what the Constitution has provided for 
206 years, that as few as 26, a majority of a quorum, is all that is 
required by both Houses to either raise taxes or cut spending. That is 
not changed.
  I do not see anything terrible about us putting a sentence in saying 
that is what the Constitution provides because that is what the 
Constitution provides. That is what it has always provided.
  This is not just a casual result. There was a great debate at the 
time the Constitution was being written about whether a supermajority 
should be required. In fact, one of the most famous of the Federalist 
Papers, No. 58, written by James Madison, dealt with this specific 
subject. I understand the Speaker of the House of Representatives has 
assigned this as one of the books he is requiring all House Members to 
read. So I am sure they are all familiar with this, but maybe some of 
my colleagues here in the Senate are not. Let me just read a short 
passage from the Federalist No. 58. This is James Madison writing. He 
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, impartial 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.

  That is James Madison's explanation for why the drafters of the 
Constitution did not put in there a requirement for a supermajority. 
They did not permit rules to exist such as the rule in the House. And 
we need to clarify that rules such as the rule in the House would not 
be permitted during this 7-year period while we get to a balanced 
budget. So I think it is clear that the argument for maintaining the 
right of the majority to rule is a strong argument. It is not a new 
argument in our democratic system. It is a strong argument we should 
stick with.
  The Senator from Utah made one final point. He said if my amendment 
were adopted we could delay the time that we are required to have a 
balanced budget by 2 years, or whatever period until the House decided 
to change its rule.
  I would point out the House could meet this afternoon and change its 
rule. There is nothing in my amendment which in any way prevents the 
House from changing its rule or any court--and we do have a court case 
pending on this--from determining that that rule is unconstitutional 
and invalid. As soon as that happens the 7 years begins to run.
  So if the concern is we cannot get the 7 years running fast enough, I 
would say there is a ready remedy for that, once my amendment is 
adopted, and that is a repeal of the rule.
  Mr. President, I yield the floor and reserve the remainder of my 
time.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Utah.
  Mr. HATCH. Mr. President, I appreciate the arguments of the 
distinguished Senator from New Mexico and I appreciate his sincerity. I 
just do not think it refutes what we said earlier.
  Could I ask the remaining time? On both sides?
  The PRESIDING OFFICER. The Senator from Utah has 5 minutes and it 
looks like 52 seconds. The Senator from New Mexico has 17 minutes and 
22 seconds.
  Mr. HATCH. I am prepared to yield back the remainder of my time if 
the Senator from New Mexico is.
  Mr. BINGAMAN. Mr. President, I have been advised by the Cloakroom 
that there are certain Senators who expect to have this vote at 10:30. 
I do not need to keep all my time but perhaps we should check on that 
before I yield back the remainder of my time.
  Mr. HATCH. If we both yield back our time I will move to table, get 
the yeas and nays, and then we will put it into a quorum call until 
then?
  Mr. BINGAMAN. Let me also check to see if Senator Bumpers is coming 
to the floor. Let me also ask unanimous consent to add Senator Bumpers 
and Senator Dorgan as cosponsors of the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum and ask 
we charge it equally to both sides.
  The PRESIDING OFFICER. Without objection, it is so ordered. The clerk 
will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. BINGAMAN. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BINGAMAN. Mr. President, how much time remains for the 
proponents?
  The PRESIDING OFFICER. Twelve minutes.
  Mr. BINGAMAN. Mr. President, I yield 2 minutes to the Senator from 
North Dakota.
  Mr. DORGAN. Mr. President, I do not believe I shall use the entire 
time. I want to stand in support of the amendment offered by the 
Senator from New Mexico [Mr. Bingaman] this morning.
  I find it interesting that those who most loudly profess to want a 
balanced budget find ways to try to provide handcuffs on those who 
ultimately want to achieve a balanced budget. I do not remember who it 
was who said it, but someone once said, ``The louder they boast of 
their honor, the faster I count my spoons.'' I sort of sense that is 
the situation here.
  We have a lot of people who say, ``Gee, we want to get to a balanced 
budget.'' Then they put into law these notions about supermajorities in 
order to do one thing or another. The other body now has a 
supermajority on raising revenue. What if you have a circumstance where 
the revenue system is out of kilter and you have one group of people, 
let us say wealthiest group, that are substantially underpaying what 
they ought to pay and we feel the need to raise rates on that group, 
and maybe use the money to provide partial benefits to somebody else 
who is overpaying. You would not be able to do that because it would 
take a supermajority. That does not make any sense.
  Why do we prejudge the answer on any taxing or spending issue to 
reach a balanced budget amendment? Some say we do not want anybody to 
increase taxes. I do not, either. In fact, sign me up for a zero tax 
rate for my constituents. That is what I want. No taxes. But the fact 
is, we have roads, we have schools, we have law enforcement, and we 
have defense to pay for, the defense of this country. So we have to pay 
for the things that we spend in the public sector.
  The question is, Who pays? How do they pay? We can construct a tax 
system to do that. Nobody likes it, but it is necessary. It is part of 
our life in this country. We spend money. We raise taxes. Should we cut 
spending? Yes. We should, and we will. Should we raise taxes? Probably 
not. But is it necessary in some instances probably to do that? We 
found in 1993 that we had to raise some taxes. I voted for it. I did 
not like it. The medicine does not taste good, but I was willing to do 
it because I felt it contributed to reducing the Federal deficit.
  But to allow either body of Congress to prejudge what is necessary to 
achieve a balanced budget is wrong. Senator Bingaman is saying during 
the 7-year period, you cannot do that. You cannot create 
supermajorities to try to prejudge those kinds of choices that we 
[[Page S2684]] must take in both the House and the Senate to try to 
achieve a balanced budget.
  I do not ever question motives with respect to Members of Congress. I 
think some feel very strongly that we ought to have this balanced 
budget amendment. Others feel equally strongly that we should not. All 
the Senator from New Mexico is saying is that if you feel strongly that 
we ought to have a balanced budget amendment or a balanced budget, 
either through an amendment or without an amendment, then you ought not 
put handcuffs on either the revenue or the spending side so that in the 
next 7 years, freethinking people of good will serving in the House and 
the Senate can decide on a range of items, on a menu of issues, on how 
to achieve that goal. It is much more important to achieve the goal of 
getting our fiscal house in order than it is to preach ideology about 
taxes.
  The goal is important. Those who crow on the floor of the Senate and 
the House about the balanced budget amendment are the ones who now say 
to us, yes, we want a balanced budget but we also want to straitjacket 
people by creating goofy rules. And the Senator from New Mexico says 
let us all be honest about these things. Let us decide if we are going 
to do this. We will do it the right way.
  I am happy to cosponsor this. I am pleased to speak for it. I hope 
that my colleagues who believe that we should balance the budget in 
this country, who agree with me that we ought to balance the budget to 
get our fiscal house in order, will understand that this is a necessary 
ingredient in doing so.
  I compliment the Senator from New Mexico for offering it.
  Mr. President, I yield the floor.
  Mr. BINGAMAN. Mr. President, I yield 5 minutes to my friend from 
Arkansas, Senator Bumpers.
  The PRESIDING OFFICER. The Senator from Arkansas [Mr. Bumpers].
  Mr. BUMPERS. Mr. President, I rise in support of what I believe is a 
very well-crafted and thoughtful amendment by the Senator from New 
Mexico. If this is going to be a permanent arrangement, then the House 
could legitimately say you have no business interfering with House 
rules. After all, we hate your 67-vote filibuster rule.
 But that is not what this amendment says. People should not confuse it 
with any Senate rules. This amendment is crafted to help the people who 
really believe in this amendment, and especially the people who have 
signed on to the Contract With America and promised the American people 
that they will balance the budget by the year 2002. In my opinion, a 
House rule that requires a 60-percent majority to raise only one kind 
of tax does not keep you from raising the gasoline tax, does not keep 
you from raising user fees, excise taxes, does not keep you from 
raising Social Security taxes. What the House has done is say that for 
now and ever you cannot raise taxes--income taxes only--without a 60-
vote majority. The Senator from New Mexico is simply saying that this 
cannot go until the House backs off of that for this 7-year period.

  Let me say to my colleagues on the other side of the aisle that if 
this passes or if this does not pass, I will continue to cooperate with 
every soul in this body who is genuinely concerned about deficit 
spending and trying to balance the budget. I will help you cut 
spending. I might even help raise taxes if they are properly targeted. 
I will do anything to keep from ending my career in the Senate without 
having addressed this most crucial problem facing this Nation. But you 
cannot--the Republicans voted yesterday, and a few Democrats, who said 
you cannot take Social Security off the table. It has to be a part of 
this whole plan to balance the budget. Yet, the House says income taxes 
are off the table.
  What kind of logic is that, to say that the most regressive taxes, 
sales taxes--and we may go with a value added tax here, we may raise 
gasoline taxes, excise taxes, user fees and, yes, even the FICA tax 
that pays for Social Security. But if you say income taxes are off the 
table, you are saying the only progressive tax that the Congress might 
want to use to balance the budget is off the table. Only the regressive 
taxes that fall heaviest on the people who can least afford it, that is 
where you must find it.
  Mr. President, I do not want to be preaching about this, but that is 
nonsense and it is not fair. It is not fair to the elderly. It is not 
fair to the working people of this country. The people who applaud this 
are the wealthiest people in America, because they pay an inordinately 
small part of their incomes for these regressive taxes like gasoline 
taxes and so on. There are people in my hometown of Charleston, AR, who 
commute 50 miles to Fort Smith to work. We are sort of a suburb to Fort 
Smith, and most people work in Fort Smith. They drive their cars as 
much as I do every year and pay the same tax on that gasoline that I 
pay. And I make $133,000 or $135,000 a year--I forget which--and they 
are working for $25,000 a year or less, and we are saying that is just 
Jakey, and we may raise taxes on you some more, but we will not raise 
the taxes on the wealthiest people in America.
  Mr. President, I ask for 1 additional minute from the Senator from 
New Mexico.
  Mr. BINGAMAN. I yield an additional minute to the Senator from 
Arkansas.
  Mr. BUMPERS. My administrative assistant and I were having a 
discussion on the way to work this morning, not just about this 
amendment but about the Senate. I said, ``You know, I feel so strongly 
about the balanced budget amendment and I am so adamantly opposed to it 
because I think it guarantees utter chaos.'' It is going to, at some 
point, absolutely render the U.S. Congress a eunuch. We are not going 
to be able to deal with it under that amendment. I said, ``I do not 
like to speak unless I feel strongly about something.'' I have a 
tendency to speak on maybe too many amendments. You can wear your 
welcome out around here by talking too much. So I try to choose 
carefully. It is very difficult for me because I detest this amendment 
so much. It is difficult to be as choosy about what I talk about. But I 
want you to know that the Senator from New Mexico is on to something 
very, very important.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. BINGAMAN. I yield an additional minute.
  Mr. BUMPERS. Mr. President, I just say to my colleagues that I have 
not seen the debate change a vote since the third battle of Manassas in 
1988. People walk on the floor, and they may listen to it in their 
offices, but most do not even do that. So the debate does not change 
it. I daresay that when people walk in here on both sides, they are 
going to say, ``What is our vote?'' without realizing the deadly 
consequences of what the House has done.
  Senator Bingaman and I and Senator Dorgan, want to help Republicans 
keep their commitment to balance the budget by the year 2002. I think 
it is utterly and wholly implausible and impossible. But I promise my 
cooperation in helping in any way I can. But to say the one thing you 
cannot do is to raise taxes that are progressive, but you can raise all 
the regressive taxes you want to to deal with this when we all know 
that working people in this country are having a terrible struggle just 
keeping their head above water.
  So I applaud the Senator from New Mexico. I am pleased he asked me to 
speak on this because I do feel strongly about it.
  I urge my colleagues to think very carefully before they vote on this 
amendment.
  Mr. BINGAMAN. Mr. President, Is there additional time?
  The PRESIDING OFFICER. The time has expired.
  Mr. HATCH. Mr. President, I move to table the amendment and ask for 
the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays are ordered, and the clerk will call the roll.
  The bill clerk called the roll.
  Mr. LOTT. I announce that the Senator from Kansas [Mrs. Kassebaum] is 
necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 59, nays 40, as follows:
               [[Page S2685]] [Rollcall Vote No. 69 Leg.]

                                YEAS--59

     Abraham
     Ashcroft
     Bennett
     Bond
     Brown
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Exon
     Faircloth
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Heflin
     Helms
     Hutchison
     Inhofe
     Jeffords
     Kempthorne
     Kohl
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Packwood
     Pressler
     Reid
     Roth
     Santorum
     Shelby
     Simon
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--40

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bryan
     Bumpers
     Byrd
     Conrad
     Daschle
     Dodd
     Dorgan
     Feingold
     Feinstein
     Ford
     Glenn
     Harkin
     Hollings
     Inouye
     Johnston
     Kennedy
     Kerrey
     Kerry
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Pell
     Pryor
     Robb
     Rockefeller
     Sarbanes
     Wellstone

                             NOT VOTING--1

       
     Kassebaum
       
  So the motion to lay on the table the amendment (No. 248) was agreed 
to.
  Mr. HATCH. Mr. President, I move to reconsider the vote.
  Mr. LEAHY. Mr. President, I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                            Motion to Refer

  Mr. WELLSTONE. Mr. President, on behalf of Senator Feingold, Senator 
Bradley and myself, I move to refer House Joint Resolution 1 to the 
Budget Committee with instructions to report back forthwith, House 
Joint Resolution 1 in status quo, and at the earliest date possible to 
issue a report. I send my motion to the desk.
  The PRESIDING OFFICER. The clerk will report the motion.
  The bill clerk read as follows:

       The Senator from Minnesota [Mr. Wellstone], for himself, 
     Mr. Feingold, and Mr. Bradley, moves to refer.

  Mr. WELLSTONE. Mr. President, I ask unanimous consent that further 
reading be dispensed.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The motion is as follows:

       I move to refer House Joint Resolution 1 to the Budget 
     Committee with instructions to report back forthwith House 
     Joint Resolution 1 in status quo and at the earliest date 
     possible, to issue a report, the text of which shall be the 
     following:
       The Committee finds that--
       (1) Congress is considering a proposed amendment to the 
     Constitution of the United States which will require a 
     balanced budget by the year 2002, or the second fiscal year 
     after its ratification, whichever is later;
       (2) the Congressional Budget Office has estimated, using 
     current baselines, that between 1996 and 2002, Congress would 
     have to enact some combination of spending cuts and revenue 
     increases totalling more than $1 trillion to achieve a 
     balanced budget;
       (3) some taxpayers now receive preferential tax treatment 
     and tax subsidies through such things as special industry-
     specific exemptions, exclusions, deductions, credits, 
     allowances, deferrals or depreciations which are not 
     available to other taxpayers;
       (4) some special industry-specific tax preferences do not 
     serve any compelling public purposes, but simply favor some 
     industries over others and serve to distort investment and 
     other economic decisionmaking;
       (5) certain of these tax preferences, which serve no 
     compelling public purpose, are special exceptions to the 
     general rules of the tax law to which most Americans are 
     required to adhere;
       (6) the costs of such tax preferences are borne in part by 
     middle-income taxpayers who pay at higher tax rates than they 
     would otherwise;
       (7) special tax treatment and tax subsidies constitute a 
     form of tax expenditures which should be subjected to the 
     same level of scrutiny in deficit reduction efforts as that 
     applied to direct spending programs, and
       (8) it is the sense of the Committee that in enacting the 
     policy changes necessary to achieve the more than $1 trillion 
     in deficit reduction necessary to achieve a balanced budget, 
     that tax expenditures, particularly industry-specific 
     preferential treatment, should be subjected to the same level 
     of scrutiny in the budget as direct spending programs.

  Mr. WELLSTONE. Mr. President, I want to yield myself such time as I 
may consume but before doing so, I would like to defer for a moment to 
the Senator from Washington who I know has another engagement. The 
Senator wanted to speak, I think, in opposition to this amendment, but 
I would like to give him the opportunity to do so since he will not 
have any time later on.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington is recognized.
  Mr. GORTON. First, Mr. President, I would like to thank my 
distinguished colleague from Minnesota for giving me the courtesy and 
referring me this time. It is, of course, appropriate for the maker of 
the motion to speak first. It is very nice of him to allow this.
  It does, however, seem to me that this motion is very closely related 
to the debate that we have had earlier on the proposition that there 
should be a condition which takes place before or during the time that 
the constitutional amendment is submitted to the States relating to the 
methods by which we are to meet the requirement of a balanced budget.
  In this case, I gather, most of the motion refers to tax 
expenditures.
 The bottom line, however, Mr. President, is that these motions and the 
amendments which have been proposed heretofore have almost, without 
exception, come from those who oppose amending the Constitution to 
require a balanced budget, and they are designed to inhibit or to slow 
  down either its passage by this body or its ratification by the States.
Most of those Members, I am certain, including the distinguished 
Senator from Minnesota, do speak of their devotion to fiscal 
responsibility and to a balanced budget. It seems to me that under 
those circumstances, the thrust, the duty to explain what they will do 
to deal with the terrible $200 billion-a-year budget deficits from now 
to eternity rests on them, those who feel that the status quo is 
perfectly all right; that we should not change the rules relating to 
budget deficits; that the way we have dealt with them in the past is 
the way we should deal with them in the future. It is they, Mr. 
President, who ought to explain to us precisely how it is that they 
would change either our spending processes or our taxing programs to 
bring the deficit of the United States into balance.
  Those of us who favor the passage of this constitutional amendment 
unadorned are those who feel that the system is broken, that the system 
is not working, that 25 consecutive years of mounting budget deficits 
and a $4 to $5 trillion debt require a drastic and a fundamental change 
in the way in which it would work and are doing so because we observe 
the history of those 25 years. We have observed all of the unsuccessful 
attempts to reach a degree of fiscal sanity and fiscal responsibility, 
and we have observed that those alternate methods have not worked and 
that it is unlikely that they will work in the future.
  We propose a constitutional amendment because a constitutional 
amendment will bring everyone into the fold. Presidents, liberal 
Members, conservative Members, Democrats and Republicans will be forced 
by the constraints of the Constitution to deal with budget deficits in 
the future in a way in which they have refused to deal with them in the 
past.
  The latest example of this failure, of course, is the President's 
budget itself, a budget which simply gives up on dealing with the 
deficit, which calls for no significant reductions in the deficit, not 
just for the 5 years that it covers but for 10-year projections out 
from today. It is a confession of failure. But more than a confession 
of failure, it is a confession of failure coupled with the proposition 
that there will be no attempt to cure that failure, to do better at any 
time in the future.
  So, Mr. President, I believe that the best thing, the desirable 
thing, for us to do in the Senate is to recognize that the system is 
broken, that the system needs fixing, that the only fix that is likely 
to be successful is a constitutional amendment, that we should pass it 
and begin the process by which the States can consider its ratification 
as quickly as possible.
  But in the alternative, it seems to me that it is up to those who 
oppose this constitutional amendment to tell us how they are going to 
cure the problem operating under exactly the system which has created 
the problem in the first place.
  I thank my colleague from Minnesota very, very much for yielding to 
me. I yield the floor.
   [[Page S2686]] The PRESIDING OFFICER (Mr. Kyl). The Senator from 
Minnesota.


                         Privilege of the Floor

  Mr. WELLSTONE. Mr. President, I ask unanimous consent that Douglas 
Johnson and Mark Miller be given the privilege of the floor for the 
duration of this debate.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. WELLSTONE. Mr. President, just to be very, very clear because I 
believe that all of us, Democrats and Republicans, should be clear 
about what we are voting on, this amendment does not in any way, shape 
or form have any kind of conditions vis-a-vis the balanced budget 
amendment. There is not any language in this amendment that so states.
  What this amendment says is:

       It is the sense of the Senate that in enacting the policy 
     changes necessary to achieve the more than $1 trillion in 
     deficit reduction necessary to achieve a balanced budget, 
     that tax expenditures, particularly industry-specific 
     preferential treatment, should be subject to the same level 
     of scrutiny in the budget as direct spending programs.

  It just simply says that since we know we are going to be involved in 
a serious effort on deficit reduction and since we know we all share 
the common goal of balancing the budget, though we may not agree a 
constitutional amendment is the way to do so, that we ought to make 
sure that tax expenditures, which Senator Feingold and I are going to 
explain at some length during the course of this debate, be on the 
table; that that be part of what we look at; that we look at certain 
breaks, loopholes, and certain deductions. That is all. There is no 
condition vis-a-vis the balanced budget amendment. The Senator from 
Washington is wrong on that point.
  Second, I might add, that procedurally, this is really identical to 
the motion of the majority leader dealing with Social Security. It is 
identical, and I believe that motion was passed by over 80 Senators. So 
this has nothing to do with your position on the balanced budget 
amendment one way or the other.
  Let me go on and explain.
  Mr. President, this motion will put the Senate on record saying that 
in our effort to balance the budget, in our effort to go forward with 
deficit reduction--whether it be by a balanced budget constitutional 
amendment or otherwise; we are all aiming in the same direction--that 
we will scrutinize all Federal spending not just, Mr. President, cuts 
of least resistance.
  What I am worried about, speaking for myself, and I look forward to 
hearing the remarks of the Senator from Wisconsin, is that when it 
comes to deficit reduction or when it comes to balancing the budget, 
what we will do is make cuts according to the path of least political 
resistance. That is to say, when it comes to ordinary citizens who do 
not have the clout, who do not have the lobbyists, who do not make the 
large contributions, they will be called upon to sacrifice.
  I think most people in the country are willing to sacrifice. We just 
want to make sure that there is a standard of fairness and that large 
interests, large corporations, financial interests, wealthy people, and 
others who, as a matter of fact, benefit disproportionately by some of 
the tax breaks which cause other people to pay more in taxes, also are 
called upon to pay their fair share or to sacrifice.
  Mr. President, in all of the debate on the balanced budget amendment, 
in all of the debate about how we are going to essentially have budget 
cuts of $1.4 trillion or thereabouts there is an enormous credibility 
gap. Because so far all I have heard on the Republican side is 
proposals for budget cuts of $277 billion. There is a big difference 
between $277 billion and $1.481 trillion.
  In all of the debate so far, whether it be right to know vis-a-vis 
States saying that the people back in our States ought to have a right 
to know what the impact would be on them or, for that matter, whether 
it is our right to know, I still believe that the most important 
principle of all is that Senators ought to have the right to know what 
they are voting on, where the cuts will take place, and how they will 
affect the people.
  There has not been a word uttered about one particular kind of 
spending that enjoys a special status within the Federal budget. I am 
talking about tax breaks for special classes or categories of 
taxpayers, many of whose benefits go largely to large corporations or 
the other wealthy interests in our society.
  I remind you, Mr. President, that when we have these tax breaks and 
when we have these deductions and loopholes and when certain citizens 
or certain large interests are forgiven from having to pay their fair 
share, all of the rest of us end up paying more.
  Let me make a simple point here that is often overlooked. We can 
spend money just as easily through the Tax Code through what are called 
tax expenditures as we can through the normal appropriations process. 
Spending is spending, whether it comes in the form of a government 
check or in the form of a tax break for some special purpose, like a 
subsidy, a credit, a deduction, or accelerated depreciation for a type 
of investment that is made. These tax expenditures--in some cases they 
are tax loopholes--allow some taxpayers to escape paying their fair 
share and thus they make everyone else pay at higher rates.
  The Congressional Joint Tax Committee has estimated that these tax 
expenditures cost the U.S. Treasury $420 billion every single year. 
These loopholes, these deductions cause the U.S. Treasury to lose $420 
billion every single year, and this amount will grow on present course 
by $60 billion to over $485 billion by 1999.
  Mr. President, these tax expenditures, often they are tax dodges, 
should be on the table along with other spending as we look for places 
to cut the deficit. That is our point. That is, by any standard of 
fairness, what we should do. Just because certain people have a 
tremendous amount of political clout does not mean they should not be 
asked also to be a part of this sacrifice.
  Mr. President, when we begin to weigh, for example, scaling back 
special treatment, depreciation allowance for the oil and gas 
industry--and the Congressional Budget Office estimates that 
eliminating this tax break would generate $3.4 billion over the next 5 
years--when we start to compare and measure tax breaks for oil 
companies compared to cuts we are going to be making in food and 
nutrition programs for hungry children, we might have a very different 
answer.
  We have to make tough choices. And what Senator Feingold, myself, and 
Senator Bradley want to make sure of is that all of the options are on 
the table, and that when we make these choices, and we do the painful 
deficit reduction, we do it according to some basic standard of 
fairness.
  What this motion does is simply state the sense of the Senate that we 
will carefully examine tax expenditures when the Budget Committee makes 
recommendations as to how we are going to continue on this path of 
deficit reduction and how we are going to balance the budget. At the 
moment, these tax expenditures are unexamined. They are hidden. They 
are untouchable. And, essentially, these are the real entitlements 
because we do not even examine any of these large subsidies.
  What we are saying in this amendment is that we ought to at least 
examine these tax expenditures, we ought to at least examine these 
subsidies. This motion does not specify what specific subsidies might 
be eliminated. It just says tax expenditures ought to be a part of our 
process here in the Congress as we make these decisions about where we 
are going to make the cuts.
  As I have listened to this debate--and again I am struck by this 
figure of $1.4 trillion worth of cuts that would have to be made by 
2002 to balance the budget--I must say that I have heard little 
discussion, first of all, about where we are going to make the cuts, 
and second of all, I have heard little discussion about any sacrifice 
from large corporations and special interests who have 
disproportionately enjoyed all of these breaks, all of these benefits, 
all of these preferences, all of these deductions that many, many 
middle-class Americans do not enjoy.
  And so that is why we offer this motion to refer this amendment to 
the Budget Committee with instructions to report back a sense of the 
Senate that these breaks and preferences should be put that on the 
table when we are talking about how we do our deficit reduction.
  Now, Mr. President, not all of these tax expenditures are bad. Let me 
be 
[[Page S2687]] clear. Not all of them should be eliminated. Some of 
them serve a real public purpose, providing incentives to investment, 
bolstering the nonprofit sector, enabling people to purchase a home. 
That is very important. However, some of them are simply tax dodges 
that can no longer be justified, but we do not even examine them. What 
we are saying in this amendment is, let us at least examine these tax 
expenditures and especially let us get strict and rigorous when we are 
looking at some of these tax dodges.
  Mr. President, this motion simply states that if we are going to move 
toward balancing the budget, tax expenditures that provide this 
preferential treatment to certain taxpayers should be subject to the 
same scrutiny as all direct spending programs. That is all we are 
saying. This is really a matter of accountability.
  I think it is also, Mr. President, a simple question of fairness. If 
we are going to make all of these cuts, then we should make sure that 
the wealthy interests in our society, those who have the political 
clout, those who hire the lobbyists, those who make the large 
contributions, those who we call the big players are also asked to 
sacrifice as much as regular middle-class folks in Minnesota and in 
Wisconsin; they should be asked to sacrifice as much as anybody else, 
especially when we know there are going to be deep and severe cuts in 
programs like Medicare and Medicaid, veterans programs, and education.
  The General Accounting Office issued a report last year. It is titled 
``Tax Policy--Tax Expenditures Deserve More Scrutiny.'' I commend it to 
my colleagues' attention. I really think that my colleagues ought to 
read it.
  I ask unanimous consent that an executive summary of the report be 
printed in the Record following my remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  Mr. WELLSTONE. The GAO report of 1993 makes a compelling case for 
subjecting these tax expenditures to greater congressional and 
administration scrutiny just as direct spending is scrutinized. The GAO 
notes that most of these tax expenditures currently in the Tax Code are 
not subject to any annual reauthorization or any kind of periodic 
review. And they observe that many of these special tax breaks were 
enacted in response to economic conditions that no longer exist. In 
fact, they found that of the 124 tax expenditures identified by the 
committee in 1993, half of these tax expenditures, half of these 
special breaks were enacted before 1950.
  Now, that does not automatically call them into question, and our 
amendment does not talk about any specific tax expenditure that should 
be eliminated. But it does illustrate the problem of not annually 
reviewing these tax expenditures. These tax expenditures should not be 
treated as entitlements. They should not go on year after year and 
decade after decade without there being any careful examination. There 
has been no systematic review of these expenditures.
  Indeed, the GAO reports that most of the revenue losses through tax 
expenditures come from provisions enacted during the years 1909 to 
1919. Let me repeat that. Most of the revenue lost from these tax 
breaks--some of them necessary but many of them just blatant tax 
dodges--must be made up by either regular taxpayers through higher 
taxes or revenue not there for deficit reduction, comes about from 
provisions enacted during the years 1909 to 1919.
  When I looked at the Republican Contract With America, I did not see 
one single sentence, not one single word in this Contract With America 
that called upon any large financial interest or any large corporation 
or, wealthy citizens, to be a part of this sacrifice. Let me just 
finish up by listing a few provisions, to give a sense of where we 
could have it. And, again, we call for no specific elimination of any 
specific tax expenditure.
  Mr. President, I think actually what I will do for the moment is 
yield myself the rest of the time I might need but defer to the Senator 
from Wisconsin for a moment.
  I yield the floor.
                               Exhibit 1

                        [From GAO Report 94-122]

 Tax Policy--Tax Expenditures Deserve More Scrutiny--Executive Summary


                                purpose

       At a time when the federal government faces hard choices to 
     reduce the deficit and use available resources wisely, no 
     federal expenditure or subsidy, whether it involves outlays 
     (i.e., discretionary or direct spending) or tax revenues 
     forgone, should escape careful examination. Congressional and 
     executive branch processes do not subject existing tax 
     expenditures to the same controls that apply to programs 
     receiving appropriated funds.
       Congressman William J. Coyne was concerned that a lack of 
     attention to income tax expenditures has allowed them to 
     increase and was interested in how they could be controlled. 
     GAO examined a wide range of alternatives for the review and 
     control of income tax expenditures. This report describes the 
     size of increases in tax expenditures; examines whether tax 
     expenditures need increased scrutiny; and identifies options 
     that could be used to increase the scrutiny of and/or control 
     the growth of tax expenditures, discussing the advantages and 
     disadvantages of each.


                               background

       Tax expenditures are reductions in tax liabilities that 
     result from preferential provisions in the tax code, such as 
     exemptions and exclusions from taxation, deductions, credits, 
     deferrals, and preferential tax rates. Many tax expenditures 
     are subsidies to encourage certain behaviors, such as 
     charitable giving. A few tax expenditures exist, at least in 
     part, to adjust for differences in individuals' ability to 
     pay taxes, such as deductions for catastrophic medical 
     expenses. Some tax expenditures may also compensate for other 
     parts of the tax system. For example, some argue the special 
     tax treatment of capital gains may in part offset the 
     increased taxes on capital income that result from such gains 
     not being indexed for inflation. Congress sometimes reviews 
     tax expenditures and has limited some tax expenditures by 
     various means, such as by limiting the benefits as taxpayers' 
     incomes increase.
       Although widely used to describe preferential provisions in 
     the tax code, the term tax ``expenditures'' is not 
     universally accepted. Some observers believe that labeling 
     these provisions tax ``expenditures'' implies that all forms 
     of income inherently belong to the government. However, the 
     concept was developed to show that certain tax provisions are 
     analogous to programs on the outlay side of the budget, and 
     it was intended to promote better informed decisions about 
     how to achieve federal
      objectives. In using this term, GAO is recognizing that, as 
     a practical matter, tax expenditures are part of the 
     federal budget, and Congress already uses the tax 
     expenditure concept to a limited extent in budgetary 
     processes.
       Currently, the House Committee on Ways and Means and the 
     Senate Committee on Finance have jurisdiction over both new 
     and existing tax expenditures. These Committees propose the 
     mix of tax rates and tax expenditures to be used to obtain a 
     specified amount of revenue. In reviewing tax expenditures, 
     these Committees have used several techniques to limit 
     individual tax expenditures or groups of them. These reviews, 
     however, are not conducted systematically and may not 
     explicitly consider possible trade-offs between tax 
     expenditures and federal outlay programs and mandates.


                            results in brief

       Tax expenditures can be a valid means for achieving certain 
     federal objectives. However, studies by GAO and others have 
     raised concerns about the effectiveness, efficiency, or 
     equity of some tax expenditures. Substantial revenues are 
     forgone through tax expenditures but they do not overtly 
     compete in the annual budget process, and most are not 
     subject to reauthorization. As a result, policymakers have 
     few opportunities to make explicit comparisons or trade-offs 
     between tax expenditures and federal spending programs. The 
     growing revenues forgone through tax expenditures reduce the 
     resources available to fund other programs or reduce the 
     deficit and force tax rates to be higher to obtain a given 
     amount of revenue.
       The three options discussed in this report may help 
     increase attention paid to tax expenditures and reduce their 
     revenue losses where appropriate. First, greater scrutiny 
     could be achieved with little or no change in congressional 
     processes and jurisdictions by strengthening or extending 
     techniques currently used to control tax expenditures. 
     Ceilings and floors on eligibility, better highlighting of 
     information, or setting a schedule for periodic review of 
     some tax expenditures are some possibilities under this 
     option. If controlling tax expenditures through the current 
     framework is considered insufficient, Congress could change 
     its processes to exert more control over them.
       The second option is for Congress to further integrate tax 
     expenditures into the budget process. One feasible approach 
     would be for Congress to decide whether savings in tax 
     expenditures are desirable and, if so, to set
      in annual budget resolutions specific savings targets. 
     Savings could be enforced through existing reconciliation 
       processes.A third option is to integrate reviews of tax 
     expenditures with functionally related outlay programs, which 
     could make the government's overall funding effort more 
     efficient. Such integrated reviews could be done by the 
     executive or legislative branches, or both.
       [[Page S2688]] Under the Government Performance and Results 
     Act of 1993 (GPRA), the Office of Management and Budget (OMB) 
     plans to report information on program goals and key 
     indicators for both outlays and tax expenditures. In January 
     1994, OMB designated 53 performance measurement pilot 
     projects to begin in 1994. Implementation of GPRA provides a 
     promising opportunity to increase the usefulness and 
     visibility of outcome-oriented performance data.


                             GAO's Analysis

       Tax expenditures can be a useful part of federal policy. 
     But in some cases tax expenditures may not be the most 
     effective, efficient, or equitable approach for providing 
     government subsidies. For example, it might be less expensive 
     for the federal government to provide assistance to state and 
     local governments through direct payments than through tax-
     exempt bonds. Because tax expenditures represent a 
     significant part of the total federal effort to reallocate 
     resources, choosing the best methods for achieving 
     objectives, including the most effective tax expenditure 
     designs, could have significant results. (See pp. 23-32).

    Tax expenditures have been growing but are difficult to measure

       GAO primarily used Joint Committee on Taxation (JCT) 
     estimates to analyze the size and growth of tax expenditures. 
     According to these data, tax expenditures totaled about $400 
     billion in 1993. Their average annual percent increase in 
     real terms for the period from 1974 to 1993 was about 4 
     percent, which compares to an average annual real increase 
     for gross domestic product of about 2.5 percent. Tax 
     expenditures are expected to continue growing; however, the 
     rate of growth is uncertain.
       As experts note, tax expenditure revenue loss estimates are 
     not as informative as the revenue estimates made for proposed 
     changes to the tax code. Whereas revenue estimates 
     incorporate the changes in taxpayer behavior that are 
     anticipated to occur as a result of the change, tax 
     expenditure revenue loss estimates do not incorporate any 
     behavioral effects. Furthermore, summing tax expenditure 
     revenue losses ignores
      interaction effects among tax code provisions. Because of 
     interactions with other parts of the tax code, the revenue 
     loss from the elimination of several tax expenditures 
     together may be greater or smaller than the sum of the 
     revenue losses for each tax expenditure measured alone. 
     Nevertheless, GAO believes tax expenditure revenue loss 
     totals represent a useful gauge of the general magnitude 
     of government subsidies carried out through the tax code.
       When trends in these totals are looked at, however, care 
     must be taken to consider the possible underlying causes. 
     Aggregate tax expenditure magnitudes are affected by changes 
     in tax rates, in economic activity, and in the number of tax 
     preferences. An overall growth in aggregate tax expenditures 
     may be due to rapid growth of a few tax expenditures--and 
     some point to the rapid growth of health-related expenditures 
     as a current example. However, no process currently prompts 
     Congress to address these trends and decide whether they 
     warrant policymaking actions.
       JCT and the Department of the Treasury devote limited 
     resources to estimating tax expenditure revenue losses 
     because decisions are not based routinely on this 
     information. GAO did not attempt to verify either JCT's or 
     Treasury's tax expenditure estimates. (See pp. 33-38.)

      Processes do not highlight tax expenditures for policymakers

       Despite their significance, existing tax expenditures do 
     not compete overtly in the annual budget process. Under 
     budget processes, new tax expenditures must be funded as they 
     are created. However, except for a few that are subject to 
     reauthorization, existing tax expenditures, like most 
     entitlement programs, can grow without congressional review. 
     These tax expenditures are indirectly controlled primarily to 
     the extent that revenue targets allocated to the tax 
     committees under the budget process create pressure to 
     decrease their growth. Although tax expenditures are listed 
     separately in the president's budget each year, the lists are 
     not used for making tax expenditure allocations or for 
     comparisons with outlay programs. As a result, policymakers 
     have few opportunities to make explicit comparisons or trade-
     offs between tax expenditures and federal spending programs. 
     (See pp. 30-32.)

                      Options for greater scrutiny

       Increased congressional review of or control over tax 
     expenditures could be achieved under three general options, 
     each consisting of several alternative approaches:
       Option 1: This option involves methods currently within the 
     purview of congressional tax-writing committees. It includes 
     ``program'' reviews of individual tax expenditures that may 
     lead to the redesign or elimination of some that are deemed 
     inefficient or outmoded. Currently available control 
     techniques include placing ceilings or floors on eligibility 
     for tax expenditure benefits, structuring tax expenditures as 
     credits rather than exclusion or deductions, limiting the 
     value of itemized deductions to the lowest marginal tax rate, 
     and limiting the value of deductions and exclusions for high-
     income taxpayers. To promote debate on tax expenditures, 
     additional information on them could also be highlighted 
     using current processes. For instance, they could be merged 
     into budget presentations with related outlay programs. The 
     methods currently used to review and control tax expenditures 
     also could be used in conjunction with the following two 
     options that would alter somewhat the existing congressional 
     procedures for overseeing tax expenditures. (See pp. 39-56.)
       Option 2: This option involves further integrating tax 
     expenditures into budget rules. This could limit existing tax 
     expenditures and encourage closer reviews of performance. One 
     approach to further integration that GAO examined--placing an 
     aggregate cap on forgone revenue--probably would not work 
     because technical problems would be difficult to overcome. A 
     second approach--in the form of a tax expenditure savings 
     target--is feasible. Under this approach, in years that it 
     wishes, Congress could specify a fixed amount of reduction in 
     forgone revenue from tax expenditures in the budget 
     resolution, which would be enforced through existing 
     reconciliation processes. To promote greater public 
     accountability, Congress could be prompted to explain in the 
     annual budget resolution the reasons for its decision to 
     either adopt or not adopt a savings target.
       Definitional and measurement problems, which are 
     exacerbated by an aggregate cap, could be lessened 
     substantially under a savings target. Technical problems 
     would be reduced because--as is now the case in 
     reconciliation--revenue estimates are required only for the 
     subset of tax expenditure provisions under consideration. 
     However, requiring a specific amount of base broadening 
     through the budget process would involve more actors in tax 
     policymaking, especially with respect to expanding the 
     authority of the budget committees. (See pp. 57-70.)
       Option 3: Joint reviews of federal spending programs and 
     related tax expenditures could be adopted to improve 
     coordination and reduce overlap or duplication among outlay 
     and tax expenditure programs. Joint reviews could be done in 
     both the legislative and executive branches. Joint
      review of spending programs and related tax expenditures 
     could be accomplished by having program committees hold joint 
     hearings with tax committees. More formally, Congress could 
     adopt sequential jurisdiction for tax expenditure subsidy 
     ``programs'' or establish joint committees in functional 
     areas. Because fewer jurisdictional hurdles would arise, the 
     executive branch annual budget preparation process may offer 
     a more expeditious opportunity to implement such reviews. 
  (See pp. 71-92.)Recent legislation promises better tax expenditure 
                              information

       According to the Senate Committee on Governmental Affairs 
     report on GPRA, OMB is expected to describe a framework for 
     undertaking periodic analyses of the effects of tax 
     expenditures in achieving performance goals in a May 1, 1997, 
     report to the President and Congress. GPRA thus presents an 
     opportunity to develop better information about tax 
     expenditure performance and to use that information to 
     stimulate discussion and oversight as well as to make 
     determinations as to how the government can best achieve its 
     objectives, OMB indicates that initial discussions have been 
     held on developing output measures for key tax expenditures 
     and that reviews or related tax expenditures and outlays will 
     be done in the future. (See pp. 90-92.)


               recommendation to congressional committees

       GAO recommends that the tax-writing committees explore, 
     within the existing framework, opportunities to exercise more 
     scrutiny over indirect ``spending'' through tax expenditures.


                matters for congressional consideration

       Should Congress wish to view tax expenditure efforts in a 
     broader context of the allocation of federal resources, it 
     could consider the options of further integrating them into 
     the budget process or instituting some form of integrated 
     functional reviews.


                         agency recommendations

       GAO makes several recommendations to the Director of the 
     Office of Management and Budget intended to encourage a more 
     informed debate about tax expenditures among executive and 
     legislative policymakers and to stimulate joint review within 
     the executive branch of tax expenditures and related spending 
     programs. These recommendations should result in more 
     informed decisions, by Congress and by the public, about the 
     most appropriate means of achieving federal objectives. GAO 
     envisions that in carrying out these recommendations, OMB 
     would consult as appropriate with the Department of the 
     Treasury and other federal agencies.


                            agency comments

       In written comments on a draft of this report, OMB and 
     Treasury's Office of Tax Analysis (OTA) expressed support for 
     expanded federal review of tax expenditures by the executive 
     branch or Congress. More specifically, OMB agreed, with 
     certain caveats, that GAO's recommendations to it were 
     reasonable and indicated that the recommendations were 
     consistent with efforts OMB has already begun. Regarding the 
     three options for improved oversight of tax expenditures, OMB 
     agreed that improved information on tax expenditures was 
     desirable and that integrated comparisons of outlay programs 
     and related tax expenditures may provide useful insights. In 
     its recently announced reorganization, OMB promised to 
     undertake joint reviews of related spending and tax 
     expenditure programs during upcoming budget cycles.
       OMB and Treasury were concerned that the integration of tax 
     expenditures into the 
     [[Page S2689]] budget process might not produce better 
     outcomes than current processes. Treasury also expressed 
     reservations about whether joint reviews of related spending 
     and tax expenditure programs would provide the benefits 
     anticipated.
       OMB and Treasury's comments are discussed at the end of 
     chapter 6. (See pp. 99-108.) OMB also suggested a number of 
     useful technical changes, which were included.
       OMB also obtained reactions on its draft report from JCT, 
     the Congressional Budget Office, and two individuals 
     knowledgeable about the issues discussed in the report. These 
     organizations and individuals made observations on the report 
     message, which are discussed at the end of chapter 6, and 
     offered technical suggestions, which were included as 
     appropriate.

  Mr. FEINGOLD. Mr. President, my particular thanks to the senior 
Senator from Minnesota, who is doing a wonderful job of raising this 
issue of tax expenditures. I have enjoyed, both here in the U.S. Senate 
and especially back in the Wisconsin State Senate, just trying to point 
out when you spend money on a tax loophole and give people a special 
tax break, that is spending, too. It is taking the hard-earned tax 
dollar of the American people, putting it into a package and sending it 
out just to a few people. It is an awful lot like a spending program.
  Our point here today is that often it does not get treated that way. 
It gets treated like somehow it is just a tax break for everybody, 
which, of course, it is not. If we are going to solve the Federal 
deficit and really have a balanced budget amendment, the Senator from 
Minnesota and I are saying this obviously has to be on the table. This 
has to be considered, too.
  So I am very pleased to join with the Senator from Minnesota in 
offering this motion which is designed to put the Senate on record, 
insisting that when we get around to actually trying to balance the 
Federal budget we have to subject these tax expenditures--many of them 
inappropriate tax loopholes--to the same kind of scrutiny we will use 
to examine direct spending programs.
  I feel I need to respond to the comments of the Senator from 
Washington, who spoke earlier today. He suggested all the Senator from 
Minnesota and I were doing was proposing an amendment designed to 
inhibit the balanced budget amendment itself. That is just not the 
case. I think those watching, everybody involved in this, should know 
that is really an unfortunate argument since the mechanism we are 
using, a motion to refer, is the very same mechanism that the majority 
leader used to get himself on record on Social Security. It does not 
delay the process at all. It just is a statement about the fact that 
certain things ought to be considered when we balance the budget.
  It strikes me as a little bit unfair to attack the motives of those 
behind this amendment. There is no possibility that this will upend the 
balanced budget amendment. Whether it has the votes or not, even though 
I like this amendment a lot I do not think the Senator from Minnesota 
or I have any belief at all this will stop the balanced budget 
amendment. It is just another attempt to have some honesty and some 
candor with the American people about what is going on here. And, in 
particular, to identify where the money is, why we have such a huge 
Federal deficit. One of the big reasons is tax loopholes that have not 
been covered, that have not been fixed, and that cost us a fortune.
  Mr. President, no one should mistake the difficult job that lies 
ahead in seeking to achieve a balanced budget, with or without a 
constitutional amendment.
  The Congressional Budget Office has already told us, using current 
baselines, that between 1996 and 2002, Congress will have to enact some 
combination of spending cuts and revenue increases totaling more than 
$1 trillion to achieve a balanced budget.
  There is strong sentiment, which I share, that we need to cut Federal 
spending, and that much of the deficit reduction achieved over the next 
several years will be as a result of cut backs in direct spending 
programs.
  That will happen. I am very enthusiastic about being part of that 
process, as I have been for the last 2 years--identifying specific 
programs that do not make sense anymore and that can and should be 
eliminated. That is very important to this process. But I also believe 
it is vitally important that in looking for ways to reduce the Federal 
deficit and bring the Federal budget into balance that we subject tax 
expenditures to the same kind of scrutiny applied to direct spending 
programs. That sounds simple, but in the land of the lobbyist inside 
the beltway of D.C., it is not so simple. Tax expenditures, tax 
loopholes get treated very differently. They are special. They are off 
the table. They are protected.
  Tax expenditures generally refer to preferential Tax Code provisions 
which give special treatment to specific industries or provide tax 
subsidies to consumers of particular products.
  Last year, the General Accounting Office issued a report, ``Tax 
Policy: Tax Expenditures Deserve More Scrutiny,'' which focused upon 
the need to subject tax expenditures to the same type of scrutiny 
applied to direct spending programs.
  The GAO report noted that most tax expenditures are not subject to 
reauthorization or any type of systematic review.
 Once they are in, they are in. They have a life of their own. They 
have immortality, in effect, in a way that spending programs do not. 
Once enacted these provisions are enshrined in the Tax Code and they 
  are very, very difficult to dislodge.GAO noted many were originally 
enacted to address economic conditions that at the time were important. 
But many of the economic conditions that these tax expenditures were 
meant to address just do not exist anymore. But they keep on going, 
like the Energizer tax expenditures--it does not matter. They can be 
completely irrelevant. Once they are in the Tax Code they are there and 
you are paying for it. We are all paying for these in higher taxes--or, 
at this point, in higher deficits and higher payment on interest to pay 
for those deficits.
  For example, the GAO found of the 124 tax expenditures identified by 
the Joint Tax Committee in 1993, about half were enacted before 1950 
something that the Senator from Minnesota has pointed out very 
persuasively. A lot of these are real old. They were not just enacted 
in the last 2 or 3 years. For example some of the tax allowances 
available to specific industries to recover certain costs of acquiring 
mineral deposits were enacted during World War I. Without an expiration 
date there is just very little impetus and no real trigger to review 
whether these provisions still make sense.
  It reminds me a lot of some of the programs we have talked about and 
both parties seem willing to eliminate, such as the helium program. I 
have authored a bill to eliminate the old helium program that had to do 
with providing helium for blimps. It is an old program from the earlier 
part of the century. The President said we should get rid of it. 
Republicans in the other body say we should get rid of it. Those are 
held up to scrutiny, those are held up to ridicule sometimes, as the 
wool and mohair program, the Tea Testing Board, the search for 
extraterrestrial intelligence--these get held up in the light of the 
day. Everybody laughs at them. They are prime time because they are 
spending programs. But if it is the same kind of thing for special 
interests in the Tax Code nobody talks about them. It is a nice, quiet 
thing to sweep under the rug and make the American people pay a ton of 
money to keep these tax expenditures going. Let me give a couple of 
examples.
  Since 1943, the Tax Code has allowed U.S. civilian employees who work 
abroad certain special allowances for things like housing and 
education, travel, and special cost-of-living allowances. As a result, 
employees who receive a large part of their incomes through these 
allowances rather than through direct salaries receive preferential 
treatment--a better deal than the rest of the American people.
  I became aware of these special allowances when I was involved in 
trying to accomplish another cut last session which we did achieve, a 
substantial spending cut in direct spending in overseas broadcasts. We 
found out in the last Congress that to curb some of the excessive 
salaries and allowances paid to employees of Radio Free Europe and 
Radio Liberty, to the Board of International Broadcasting, would 
involve dealing with one of these tax expenditures. As the Senator from 
Minnesota has said, some of these exemptions may be justifiable. 
However, I do know they can be abused and manipulated to 
[[Page S2690]] get around salary caps that Congress has put in place 
for all the other Federal agencies. For these folks there is a special 
deal. It gets no review.
  Another example, Citizens for Tax Justice noted in a recent report 
that interest income earned by foreign nationals on loans to American 
companies or the U.S. Government was exempted from the U.S. tax since 
1984. In other words each of us pays taxes on our interest income but a 
foreign national does not pay any U.S. tax on that income, according to 
the Citizen's for Tax Justice. And this is again an unfair deal, in my 
view. When this exemption was passed a decade ago maybe there was some 
justification for it. But we ought to have some kind of review of this 
type of tax preference to see if it is still appropriate. Has it had 
some beneficial impact in terms of inducing foreign nationals to make 
loans to U.S. entities? Maybe so. Or is it just a windfall that is 
stuck in the Tax Code and that we cannot get rid of? We need to ask 
whether in today's international climate our foreign investment 
decisions are made more on projections regarding political and economic 
stability or on these kind of breaks.
  A third example, and the Senator from Minnesota alluded to this.
  Since 1916, the gas and oil industry has had special expensing rules 
for exploration and development costs.
  A compendium of background material on individual tax expenditure 
provisions that was compiled by the Senate Budget Committee last 
December described these provisions as having ``very little, if any, 
economic justification.''
  This report goes on to say that many economists believe that these 
provisions are a ``costly and inefficient way to increase oil and gas 
output and enhance energy security.''
  Again, Mr. President, we are not raising this example alone because 
we have reached a final conclusion as to the merits of this special tax 
preference that is provided to one industry; rather, a tax preference 
established in 1916 simply ought to be carefully reconsidered in 1995 
and thereafter, and the burden, Mr. President, should be on the 
proponents of the special preference to justify it because, by having 
this special preference, we all have to pay more.
  If tax expenditures were subjected to reauthorization and sunset 
rules like direct spending programs, they might not fare as well as 
they do today.
  Mr. President, I see the Senator from Minnesota is interested in 
speaking again. Let me just add a few other quick comments.
  There are other cases. I just mentioned some larger items. Although 
the revenue loss to the Treasury over time is actually significant, it 
does not look like so much in any particular year. The Joint Tax 
Committee only lists preferential Tax Code provisions that have a 
projected total revenue loss of over $50 million or more in a 5-year 
period.
  So these are regarded as small tax court provisions and again, even 
though they amount to quite a bit over time, they escape scrutiny year 
after year in the budget process. In contrast, you can be sure, Mr. 
President, that a direct spending program that would cost $10 million 
per year for 5 years would certainly be subject to review by both an 
authorizing committee and the Appropriations Committee on a regular 
basis.
  But to try to put it simply, what the Senator from Minnesota and I 
are talking about is this: He said, if you have the political clout and 
the influence to stick a special tax exemption in the House Ways and 
Means Committee or in the Finance Committee in the Senate, you are all 
set. That thing is in there forever. It is protected. It is not talked 
about. It is not considered spending. It is not considered part of the 
deficit. It is not considered part of the debt. It is not considered 
part of the burden on our children and grandchildren. But it is money. 
It is real money. But if you are an older person who wants a meal at an 
elderly nutrition site, or a child who is in Head Start, or somebody 
who wants to see an Amtrak train in your State so people can get to 
work without polluting the environment, you are scrutinized. You have 
to defend and stand and undergo the tremendous pressure that this 
deficit has created, and, in part, that deficit is because of these tax 
loopholes.
  Mr. President, to conclude, there are a number of reasons why tax 
expenditures should be subjected to the same scrutiny as direct 
spending programs. First, it is an equity issue. When some taxpayers 
receive special preference, the burden shifts to those who do not have 
lobbyists to win special breaks to pick up the difference. Giving 
special tax breaks to some industry means other industries will have 
the higher tax rates to get the same revenue. It also means the 
taxpayers with similar income and expenses end up having to pay 
different rates of taxes depending on whether they engage in the tax 
subsidization activity. Many tax expenditures make sense, and they 
accomplish important policy goals. But it is important that all such 
expenditures receive regular review, and they ought to be measured 
against each other, perhaps a more important policy goal.
  So to conclude, Mr. President, the Senator from Washington says it is 
a confession of failure to attack the balanced budget amendment. This 
is a continued attempt to try to level with the American people just as 
the right-to-know amendment was. They talk about middle-class tax cuts. 
This is a huge pot of money that we need to balance the budget. It 
should be on the table. And the amendment of the Senator from Minnesota 
would put the Senate on record that we are not going to hold this 
immune while everyone else has to suffer.
  I thank the Chair.
  Mr. WELLSTONE. Mr. President, I thank the Senator from Wisconsin. I 
want to respond to some of his comments. But I would like to ask how 
much time remains.
  The PRESIDING OFFICER. The Senator has 14\1/2\ minutes remaining.
  Mr. WELLSTONE. I say to my friend from Utah that I would assume that 
he and others might want to respond to our amendment.
  The PRESIDING OFFICER. The Senator from you Utah has 10 minutes.
  Mr. HATCH. Mr. President, I yield such time as he may need to the 
Senator from Minnesota.
  Mr. GRAMS. Thank you very much. Mr. President, I ask unanimous 
consent to engage in a colloquy with the distinguished chairman of the 
Judiciary Committee, Senator Hatch.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. GRAMS. First, I would like to extend my thanks to the 
distinguished colleague from Utah for bringing the balanced budget 
amendment to the floor for a full debate and vote because I believe, 
more than any other legislation, passage of the balanced budget 
amendment means keeping the promises that we made to the American 
people last November.
  I also want to congratulate the chairman of the Judiciary Committee 
for his efforts to bring this legislation to the floor.
  I also want to thank the American voters for sending a clear message 
that they expect and that they also deserve fiscal responsibility from 
Congress, and that they expect it now.
  It is my understanding, however, that, like me, the distinguished 
Senator from Utah also supports the three-fifths vote, or the 
supermajority, amending the Constitution to make it a little more 
responsible in rating taxes. Is that correct?
  Mr. HATCH. There are a lot of us who would like to do that. On the 
other hand, a constitutional majority would provide for it here, a 
supermajority tax limiting device as well. But there are a lot of those 
who would like to have the three-fifths vote.
  Mr. GRAMS. When we are talking about the balanced budget amendment, I 
think the goal that we have is to make sure that the Government lives 
within its own means, or not being able to spend more dollars than it 
can take in. So I would like to believe that the balanced budget 
amendment is an attempt to reduce really the growth or irresponsible 
spending of the Federal Government rather than as a device or an excuse 
sometime in the future to raise taxes to cover these debts.
  Mr. HATCH. I think the Senator makes a very good point.
  Mr. GRAMS. I also believe it should be more difficult for Congress to 
be able to raise taxes or take tax dollars from hard-working Americans 
and to 
[[Page S2691]] make it harder for them to spend their hard-earned tax 
dollars. I also believe that the Federal Government has a budget 
deficit because spending is too high, not that taxes are too low. Does 
the Senator from Utah agree with me on that?
  Mr. HATCH. Boy, do I ever. I certainly do. I think that is one of the 
reasons for this balanced budget amendment.
  Mr. GRAMS. Is the Senator from Utah aware that in the country there 
are nine States that have a supermajority vote in order for their 
legislators to raise taxes? In those States, a portion of personal 
income has decreased on average by about 2-percent. So it does have the 
effect of not being able to raise--or reduce--the amount of taxes. 
Across the country, if you applied that 2 percent formula, you would 
save about $30 billion a year in taxes for hard-working Americans. That 
sounds like a good scenario.
  Mr. HATCH. I think it does. I am a firm believer that the right tax 
rate reduction, especially marginal tax rate reductions, actually leads 
to more revenues as it increases more savings, investment, creation of 
jobs, and people working and people paying into the system.
  Mr. GRAMS. Because of the sentiments expressed by the Senator from 
Utah and by thousands of Minnesotans that I have met over the last 2 
years, I introduced Senate Joint Resolution 22, a balanced budget 
amendment which requires a three-fifths supermajority vote to increase 
taxes. Because I believe that Congress must pass the balanced budget 
amendment this month and because I do not want the taxpayer protection 
clause to be used as a cynical device to derail passage of the balanced 
budget amendment, I have decided not to offer this legislation as a 
substitute to the legislation currently pending on the floor. But as 
the Speaker of the House of Representatives has scheduled a vote for a 
taxpayer protection amendment to the Constitution on April 15 of next 
year, I believe that the Senate should take a similar step in 
scheduling a similar vote for next year.
  Would the Senator from Utah agree with that?
  Mr. HATCH. I would have no problem with that, if that is what the 
majority leader decides to do.
  Mr. GRAMS. For that reason, I will be introducing a constitutional 
amendment requiring a three-fifths supermajority vote to increase taxes 
as separate legislation shortly in the Senate. I hope that the 
distinguished Senator from Utah will support this measure and also help 
us get it to the floor for a vote.
  Mr. HATCH. I commend the Senator for being willing to stand up on the 
three-fifths vote and be against further tax increases on an already 
burdened populace.
  Mr. GRAMS. I ask the chairman of the Judiciary Committee if he would 
be willing to hold hearings of this legislation yet later this year.
  Mr. HATCH. I would be willing to do so. I think they are worthy of 
hearings because so many people in the House, and the Senator from 
Minnesota, feels so strongly about it. I would be willing to hold a 
hearing at least.
  Mr. GRAMS. I thank the Senator for his assurance that we will have a 
hearing and also a markup on my legislation to protect taxpayers from 
higher taxes. I thank him for his efforts on behalf of all taxpayers, 
our children and grandchildren, to bring the balanced budget amendment 
to the floor of the Senate for a vote. I urge my colleagues to pass 
this measure without further delay.
  I yield the floor.
  Mr. HATCH. I thank the distinguished Senator from Minnesota and I 
appreciate his leadership in this area.
  Mr. President, How much time remains?
  The PRESIDING OFFICER. There are 5 minutes remaining.
  Mr. HATCH. If I may say a few words about the suggestion of the 
distinguished Senator from Minnesota and the Senator from Wisconsin. 
The Senators from Minnesota and Wisconsin, I believe, continue to 
confuse the distinction between a debate of constitutional language and 
principle and a debate of implementing legislation. We are here to 
affirm the principle of Government that we should not spend excessively 
and should not leave excessive debt for our children. But this motion 
does not deal with the timeless principles of Government of broad 
application. It deals with a subsection of our tax policy.
  I, once again, invite my dear colleagues to bring this and similar 
ideas back during the budget debate, or the debate over the 
implementing legislation, which we are going to have to go through 
following passage of the balanced budget amendment. That would be the 
appropriate time to do that. Self-declared opponents of the balanced 
budget amendment continue their attempt to shift this debate from the 
appropriate focus on constitutional principles to an inappropriate 
focus on the details of tax policy or some other minutia of 
implementation.
  My attitude is, let us do first things first. I think we have to 
table this motion and pass the balanced budget amendment, and then let 
us face these problems that they are sincerely raising on the 
implementing legislation and do what has to be done. If we can, that 
will be the way to do it.
  I reserve the remainder of my time.
  Mr. WELLSTONE addressed the Chair.
  The PRESIDING OFFICER. The Senator from Minnesota.
  Mr. WELLSTONE. Mr. President, first of all, let me just say I 
appreciate the colloquy. What we are trying to focus on at the moment 
is how we are going to cut $1.481 trillion, between now and the year 
2002. That is the credibility gap.
  I came on the floor earlier, several weeks ago, with an amendment 
that came right from the State of Minnesota, where the State senate 
unanimously--the house of delegates was three votes short of 
unanimous--and the Republican Governor all signed a resolution saying: 
Before you send the balanced budget amendment to Minnesota, Wisconsin, 
or any State, please specify where the cuts are going to take place, 
and how it will affect our States. Let us do the planning. What kinds 
of people are going to be affected by this? Step up to the plate and 
tell us what you are going to do.
  I still do not hear any of my colleagues on the other side or, for 
that matter, on this side, that are for this balanced budget amendment 
specifying how in fact we are going to reach this goal.
  But, Mr. President, this amendment today is identical to the majority 
leader's motion to refer. It does not have any real connection to the 
balanced budget amendment in terms of any conditionality at all. We are 
simply saying, given the focus on balancing the budget and on deficit 
reduction, do not take all of these tax expenditures--$420 billion 
worth--off the table. The motion is very general. It does not target 
specific tax breaks because we do not think that would be appropriate 
on a constitutional amendment. The Senator from Wisconsin made that 
clear and I have made it clear. We simply want to express the sense of 
the Senate that tax expenditures will undergo the same scrutiny that 
all other spending goes through. We do not eliminate any expenditures. 
We do not specify what should be eliminated. We leave that to another 
day, when we get to the specifics of the budget and the budget 
reconciliation process.
  This is a statement of principle today, that as we continue this 
budget debate in the Congress and in future Congresses, we intend to 
subject these $420 billion worth of tax expenditures--all too many of 
them tax dodges--to much closer scrutiny than in the past.
  My colleague from Utah wants to separate out this notion, this 
principle, from a debate on balancing the budget. You cannot. This is a 
basic standard of fairness. I think in many ways this amendment really 
is a litmus test, because what people in Minnesota and around the 
country are saying is we want to know where the cuts are going to take 
place.
  People are for the balanced budget amendment in the abstract, but 
when you get into specifics and people hear about draconian cuts, cuts 
in Medicare, Medicaid, higher education, people say, ``Wait a minute.'' 
Even if we all understand that we need to continue to invest in people 
and communities, but we also need to continue down the path of deficit 
reduction, what we are saying is that the Senate go on record saying we 
should evaluate these tax expenditures, 
[[Page S2692]] all of these different expenditures, some of which may 
be necessary but many of which, some say in the General Accounting 
Office, are outdated, inefficient, unnecessary--and I add, about the 
huge dodges.
  Why should regular Minnesotans be asked to pay more in taxes, be 
asked to sacrifice? I have not heard anybody on the other side--my 
colleague from Minnesota came out, but there was no response to this 
amendment. Nor have I really heard a response from my colleague from 
Utah. Should the Senate go on record that as we evaluate how we are 
going to reduce the deficit and balance the budget, that we are going 
to call upon all Americans to be part of the sacrifice? Large 
corporations, large financial institutions, the wealthiest of the 
wealthy people in our country, are we not going to ask them to be part 
of the sacrifice?
  I will tell you something, Mr. President. I think the Senate ought to 
go on record that each and every citizen and each and every interest, 
all interests, ought to be asked to be a part of the sacrifice. 
Everybody should be asked to sacrifice. There should be some standard 
of fairness. That is one of the reasons I have so much trouble with the 
last 2 weeks of this debate. We are asked to vote for a balanced budget 
amendment without specifying what you are going to do.
  If I thought there was some standard of fairness, if I was not so 
sure that there are just going to be cuts that are going to affect the 
most vulnerable citizens, if I was not sure about what this is going to 
do to higher education and health care, if I really thought we were 
going to go after $420 billion worth of tax expenditures and put that 
on the table, and that we were also going to scrutinize the Pentagon 
budget and we were going to cut where we should cut, that is exactly 
the path I want to go down. That is what this amendment says. Subject 
these expenditures to the same scrutiny that we are putting a whole lot 
of other programs and expenditures under.
  How much time do I have, I ask the Chair?
  The PRESIDING OFFICER. The Senator has 7\1/2\ minutes remaining.
  Mr. WELLSTONE. I yield the floor to the Senator from Wisconsin.
  Mr. FEINGOLD. I ask the Senator to yield for a question.
  Mr. WELLSTONE. I am pleased to.
  Mr. FEINGOLD. Mr. President, I ask the Senator from Minnesota if he 
noticed in his State the same thing I have in my State in recent weeks: 
That there is a heightened level of anxiety around our States about 
what is going to happen when we balance this budget.
  I am hearing people who are concerned about the elderly nutrition 
program, people that are concerned about what is going to happen with 
the Corporation for Public Broadcasting. So far, there does not seem to 
be much talk about the so-called tax loopholes as a way to solve the 
problem. That is one of the reasons I want to bring this up. I am 
wondering whether the Senator is experiencing this sort of discrepancy 
between direct spending programs versus not talking about the tax 
loopholes.
  Mr. WELLSTONE. Mr. President, I would say to my colleague, just this 
past Saturday, I was in southwest Minnesota in a meeting with a group 
of citizens that are really worried that Pioneer Public Television--
which, in the rural area, is so important; it is a pool of information; 
economic development, citizenship--is going to be eliminated. They are 
very worried about that for very good reasons. Certainly when I meet 
with the elderly or I meet with children or advocates for children, 
people who work in schools and universities, everybody was very worried 
about this.
  What people say to me in cafes is, ``Look, we understand that we have 
to continue down the path of deficit reduction; we have to be fiscally 
responsible. We also know that there are crying needs in our community. 
We want to make sure children have opportunity, that we have to invest 
in education in our communities. We know it is not done by waving a 
magic wand, but there has to be some standard of fairness.''
  That is what I think we are talking about here today. Absolutely.
  I would say to my colleague, I would be interested in his response. 
Let me just put a question to him.
  I really fell like if we are not willing to go on record today on 
this motion to refer, which just puts the Senate on record as saying we 
should just look at tax expenditures and consider whether they should 
be part of what should be cut. We see cynicism in people in Wisconsin 
and Minnesota who will say, ``Yeah, of course they will vote against 
this. Unlike those folks, we don't have the big bucks. We do not lobby 
everybody. Who do they represent? They don't represent us.''
  I think we have to consider these tax expenditures to have 
credibility.
  I will ask the Senator from Wisconsin what his view is about it.
  Mr. FEINGOLD. That is exactly my concern. We are out here talking 
about the big picture, in terms of we have to balance the budget, we 
are talking about direct spending programs, but we have an obligation 
to talk about everything that is spent out here.
  I find in Wisconsin, and I am sure you do in Minnesota, that people 
do not know about some of these oil and gas deals. They do not know, 
necessarily, that foreign nationals get the special deals on tax 
breaks. We talk about it. We do a heck of a job in telling people about 
where this item of pork--you know, the Lawrence Welk issue, the 
steamboat issue--and we should, and we made some progress on this.
  But back home people are being prevented from finding out--because we 
will not talk about it--that there is worse stuff a lot of times stuck 
in the Ways and Means Committee and in the Finance Committee that never 
comes up to public scrutiny.
  That is why it is particularly unfair, when these other programs are 
threatened that really help people and they may have to take some cuts, 
that they are on the chopping block and the American people are not 
even told the truth. No one is telling the people about the tax 
loopholes; in effect, a conspiracy not to talk about it.
  I think that is a very serious injustice to the people that you have 
described.
  Mr. WELLSTONE. Mr. President, might I interrupt my colleague to ask 
him a question?
  Mr. FEINGOLD. Yes.
  Mr. WELLSTONE. Is not also true that there is a very direct 
correlation--and, unfortunately, it is a hidden correlation, unless we 
are willing to be accountable and open and honest about this--between 
our failure to even look at--which is all we are asking for today--
these tax expenditures and the kinds of cuts that are going to take 
place in some of these programs that are so important to people? And, 
in addition, is it not also true that regular taxpayers end up paying 
more?
  Mr. FEINGOLD. Exactly.
  If I may respond to the Senator from Minnesota, let us just think 
about, if you happen to be a supporter of the balanced budget 
amendment, your goal out of all of this is, of course, is that the 
States would ratify the balanced budget amendment. What do the 
supporters of the balanced budget amendment think is going to happen 
back in our home States when the people that are concerned about these 
programs find out the following: when they find out that defense 
spending is going up; when they find out that we are going to give out 
a big tax break across the board to everybody in the country; when they 
find out we would not even talk about tax loopholes?
  It is not going to take too long before some of those State 
legislatures figure out, ``Wait a minute. What is this coming out of?''
  It is coming out of the local programs and the tax dollars, the 
property taxes, of hard-working people of places like Minnesota and 
Wisconsin.
  So I would think you would be concerned that not laying it out for 
the American people and putting tax expenditures off the table--as 
this, in effect, does if we do not put it in the sense of the Senate--I 
would think you would be concerned and I think the Senator from 
Minnesota is right on target.
  Mr. WELLSTONE. I would say to my colleague, if I was a proponent of 
this constitutional amendment to balance the budget, which I am not, I 
would vote for this amendment.
  Mr. FEINGOLD. Right.
  Mr. WELLSTONE. Because once people understand that some of the 
programs that have been most important 
[[Page S2693]] to them and their communities, be it Medicare, be it 
Medicaid, be it Pell grants, be it nutrition programs for children, be 
it veterans' programs, you name it--are going to be cut and cut 
deeply--but the Pentagon budget is going up; and, you have all of these 
loopholes which are flowing disproportionately to large corporations 
and financial institutions in America with all the clout, without their 
being asked to sacrifice at all, there is going to be a huge amount of 
anger.
  And I would say to my colleague, that is why I think the Senate must 
go on record today on this.
  I would say to my colleague from Wisconsin we have a little under a 
minute left. I would be pleased if he would just conclude for us. It 
has been a joy working with him and I hope we get a good strong vote.
  Mr. FEINGOLD. I thank the Senator from Minnesota. We will visit this 
subject again many times, both of us, and I know we will have support 
from others.
  But what it really comes down to, this is not an attempt to delay on 
the balanced budget amendment. What we are doing here is to try to 
point out there are certain special interests that are being protected 
by tax expenditures and that those tax expenditures should be on the 
table. And, in large part, this is true because these tax expenditures 
have been a big part of the reason why this mess was created in the 
first place; one of the big reasons we have this deficit.
  So why in the world should not that be on the table with all the 
other things?
  That is our message and that is why we would urge the adoption of 
this motion to refer.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I am prepared to yield back my time, if the 
distinguished Senators are prepared to yield back their time.
  Mr. WELLSTONE. I thank my colleague from Utah. I am prepared to yield 
back my time.
  The PRESIDING OFFICER. All time is yielded back.
  Mr. HATCH. Mr. President, I move to table the motion and ask for the 
yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second? There appears to 
be a sufficient second
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion of 
the Senator from Utah to table the motion of the Senator from Minnesota 
[Mr. Wellstone]. The yeas and nays have been ordered and the clerk will 
call the roll.
  The assistant legislative clerk called the roll.
  Mr. LOTT. I announce that the Senator from Kansas [Mrs. Kassebaum] is 
necessarily absent.
  The PRESIDING OFFICER (Mr. Ashcroft). Are there any other Senators in 
the Chamber who desire to vote?
  The result was announced--yeas 59, nays 40, as follows:

                      [Rollcall Vote No. 70 Leg.]

                                YEAS--59

     Abraham
     Ashcroft
     Bennett
     Bond
     Brown
     Bryan
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     DeWine
     Dole
     Domenici
     Faircloth
     Feinstein
     Frist
     Gorton
     Gramm
     Grams
     Grassley
     Gregg
     Hatch
     Hatfield
     Heflin
     Helms
     Hutchison
     Inhofe
     Jeffords
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Mikulski
     Murkowski
     Nickles
     Packwood
     Pressler
     Reid
     Roth
     Santorum
     Shelby
     Simon
     Simpson
     Smith
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--40

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Bradley
     Breaux
     Bumpers
     Byrd
     Conrad
     Daschle
     Dodd
     Dorgan
     Exon
     Feingold
     Ford
     Glenn
     Graham
     Harkin
     Hollings
     Inouye
     Johnston
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Moseley-Braun
     Moynihan
     Murray
     Nunn
     Pell
     Pryor
     Robb
     Rockefeller
     Sarbanes
     Wellstone

                             NOT VOTING--1

       
     Kassebaum
       
  So the motion was rejected.
                       MOTION INTENDED TO BE MADE

  Mr. BUMPERS. Mr. President, I ask unanimous consent that the text of 
a motion to refer House Joint Resolution 1 to the Budget Committee, 
which I intend to make, be printed in the Record for the information of 
Senators.
  There being no objection, the text was ordered to be printed in the 
Record, as follows:

       Proposed motion to be made by Mr. Bumpers:
       I move to refer House Joint Resolution 1 to the Budget 
     Committee with instructions to report back forthwith House 
     Joint Resolution 1 and issue a report, at the earliest 
     possible date, which shall include the following:
       ``Section 1. Prohibition on Budget Resolutions That Fail To 
     Set Forth a Balanced Budget.--Section 301 of the 
     Congressional Budget Act of 1974 is amended by inserting at 
     the end thereof the following new subsection:
       ``(j) Congressional Enforcement of a Balanced Budget.--
     Beginning in 2001, it shall not be in order to consider any 
     concurrent resolution on the budget (or amendment, motion, or 
     conference report thereon) that sets forth a level of outlays 
     for fiscal year 2002 or any subsequent fiscal year that 
     exceeds the level of revenues for that fiscal year.''
       ``Sec. 2. Point of Order Against Budget Resolutions That 
     Fail To Set Forth a Balanced Budget.--Add the following new 
     section immediately following Section 904 of the 
     Congressional Budget Act of 1974:
       ``Sec.   . Section 301(j) may be waived (A) in any fiscal 
     year by an affirmative vote of three-fifths of the whole 
     number of each House; (B) in any fiscal year in which a 
     declaration of war is in effect; or (C) in any fiscal year in 
     which the United States is engaged in military conflict which 
     causes an imminent and serious military threat to national 
     security and is so declared by a joint resolution, adopted by 
     a majority of the whole number of each House, which becomes 
     law.''

  Mr. DOLE. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. JOHNSTON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. JOHNSTON. Mr. President, I yield to the Senator from Idaho.
  Mr. CRAIG. I thank the Senator from Louisiana for yielding.
  He is about to lay down an amendment that is a very important 
amendment to this issue that I think both sides are very concerned 
about and want ample time to debate. I would like to see if we could 
not arrive at a unanimous consent agreement here. Is it acceptable to 
the Senator from Louisiana if we look at 4 hours equally divided?
  Mr. JOHNSTON. Mr. President, that is acceptable.
  Mr. CRAIG. I hope that if we can get a unanimous consent on that, we 
would both try to yield back as much as possible of the unused time and 
so encourage our colleagues.
  Mr. JOHNSTON. Certainly. Mr. President, there is no intent at all to 
delay. All amendments are important. But this is one that I hope will 
pass and that my colleagues on the other side of the aisle will accede 
to. But in any event, we will yield back to the extent we do not use 
the time.
  Mr. CRAIG. Mr. President, I then ask unanimous consent for 4 hours 
equally divided on the Johnston amendment, prior to a motion to table, 
and that no amendments to the Johnston amendment be in order.
  Mr. JOHNSTON. Mr. President, I certainly do not plan any second-
degree amendments. I do not see any of my colleagues who do. So that 
would be suitable.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. CRAIG. I thank my colleague.
  Mr. BYRD. Will the Senator yield?
  The PRESIDING OFFICER. The Senator from West Virginia.
  Mr. BYRD. I ask unanimous consent that upon the disposition of the 
amendment by Mr. Johnston, I be recognized to call up an amendment. If 
this request is not agreed to, I will be here and seek recognition in 
my own right. I make that request.
  The PRESIDING OFFICER. Is there objection to the request?
  Without objection, it is so ordered.
  Mr. JOHNSTON. Mr. President, will the Senator withhold that for just 
a 
[[Page S2694]] minute and let me talk to him about that?
  Mr. CRAIG. Mr. President, I note the absence of a quorum.
  The PRESIDING OFFICER. Does the Senator from West Virginia yield the 
floor?
  Mr. JOHNSTON addressed the Chair.
  Mr. BYRD. Was my request agreed to?
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Does the Senator have a unanimous-consent request?
  Mr. BYRD. That upon the disposition of the amendment that is being 
offered by Mr. Johnston, I be recognized to call up an amendment.
  Mr. CRAIG. Mr. President, reserving the right to object----
  The PRESIDING OFFICER. Is there objection?
  Mr. CRAIG. And I will not object, would the Senator from West 
Virginia mind discussing with us at this time the amendment he plans to 
offer following this amendment?
  Mr. BYRD. I stated to the Senator in private what it was.
  Mr. CRAIG. Would the Senator mind for the Record saying so?
  Mr. BYRD. I will say so when I get ready.
  Mr. CRAIG. I see. Let me say for the Record, because I do not want to 
object to proceedings here, the three-fourths amendment in section 1, 
it is my understanding the Senator from West Virginia plans to offer an 
amendment to it?
  Mr. BYRD. It is, but I have not reached the point yet that I feel I 
am under obligation to announce what my amendment does before I call it 
up.
  Mr. CRAIG. Mr. President, this is not an issue here. The Senator 
knows the rules of the Senate as do I, and certainly he is not under 
that obligation. I was only asking for a courtesy.
  Mr. BYRD. I told the Senator in private out of courtesy.
  The PRESIDING OFFICER. Is there objection to the request?
  Without objection, it is so ordered.
  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana.


                           Amendment No. 272
(Purpose: To provide that no court shall have the power to order relief 
 pursuant to any case or controversy arising under the balanced budget 
     constitutional amendment, except as provided in implementing 
                              legislation)

  Mr. JOHNSTON. Mr. President, I send an amendment to the desk and ask 
for its immediate consideration.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from Louisiana [Mr. Johnston], for himself, Mr. 
     Bumpers, Mr. Levin, Mrs. Boxer, and Mr. Pryor, proposes an 
     amendment numbered 272.

  Mr. JOHNSTON. Mr. President, I ask unanimous consent that reading of 
the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

       At the end of Section 6, add the following: ``No court 
     shall have the power to order relief pursuant to any case or 
     controversy arising under this article, except as may be 
     specifically authorized in implementing legislation pursuant 
     to this section.''

  Mr. JOHNSTON. Mr. President, this amendment is very simple. It is 
essentially the 1994 Danforth amendment which was adopted by this body 
without dissent.
  What it says is that no court shall have the power to order relief 
pursuant to any case or controversy arising under this article except 
as may be specifically authorized in implementing legislation pursuant 
to this section--no court jurisdiction unless specifically authorized 
by the Congress. That is virtually identical to the amendment which was 
adopted last year.
  Why do we propose this? On January 31, we had an extended debate here 
on the question of whether or not this amendment is enforceable, and if 
so, how it is enforceable. I opined that the way it would be likely 
enforced would be to have the Supreme Court order an income tax 
surcharge, because the Court is particularly ill qualified to make 
choices between various spending programs, to choose between the B-2 
bomber and the F/A-18, or to choose between Social Security and 
Medicare, or to determine what the effects of these budget cuts would 
be. The thing they would be able to do is to order an income tax 
surcharge. It would not change any of the rules. It would simply say 
you add on to the present income tax, using those rules, a surcharge, 
which they would order the Treasury to collect.
  In response to that argument, I had an extended colloquy with my 
friend from Utah, Mr. Hatch. Mr. Hatch stated that he did not see any 
way the courts would find standing or justiciability, that only the 
Congress had power to enforce this amendment. Mr. Hatch made very clear 
that it is the intent of the majority party that this amendment not be 
enforceable by the courts.
  I then asked, ``If that is the intent, why did you not spell it out 
as we did in the Danforth amendment the previous year?''
  To that, Mr. Hatch replied, in effect, that, ``Frankly, there are 
those on the other side who I think will argue the courts ought to have 
some control. We just want to avoid that particular argument.''
  So in effect what we have is an intentional ambiguity fashioned in 
order to appeal to both sides of this argument. There are some who 
think the courts ought to be involved. There are some who think the 
courts should not be involved. Mr. Hatch thinks the courts are not 
involved. So, therefore, it is left intentionally ambiguous.
  Mr. President, I would first like to submit to my colleagues that 
this is not at all clear. As a matter of fact, I believe the majority 
legal opinion would be that jurisdiction does lie. Quoting from a 
Harvard Law Review article of May 1983, they state:

       Doctrinal analysis demonstrates, however, that taxpayers 
     probably would have standing to challenge alleged violation 
     of either the deficit spending prohibition or the tax 
     limitation provision.

  Harvard Law Review says when you analyze all the cases, they probably 
would have standing.
  Assistant Attorney General Dellinger testified before the committee. 
Assistant Attorney General Walter Dellinger stated as follows:

       Moreover, it is possible that courts would hold that either 
     taxpayers or other litigants would have standing to 
     adjudicate various aspects of the budget process under the 
     balanced budget amendment. Even if taxpayers and Members of 
     Congress were not granted standing, a criminal defendant 
     prosecuted or sentenced under an omnibus crime bill that 
     improved tax enforcement or authorized fines or forfeitures 
     could argue that the bill ``increased revenues'' within the 
     meaning of section 4.

  Or take the distinguished professor, Harvard law professor Laurence 
Tribe. Mr. Tribe says:

       So that one way or another, Members of Congress, a House of 
     Congress, someone who has been cut off from a program, a 
     taxpayer--these people will be able to go to court. No 
     question about it.

  I have a whole folder of cases and experts who say that taxpayers 
could go to court, that there would be jurisdiction in the courts, that 
it would be enforceable. Others say it is a question to be determined 
by the courts.
  Suffice it to say, in my judgment, no one can seriously rise to his 
feet on the floor of this Senate and say that this is a clear question; 
that what Mr. Hatch says is correct, that is, that there is clearly no 
standing or jurisdiction to enforce this amendment. It simply is not 
so. As I have just quoted from Professor Tribe, from Professor 
Dellinger--Professor Fried says the same thing--Harvard Law Review--on 
and on. It is not clear what the limits of court jurisdiction would be.
  I ask my colleagues this question, which is a fundamental question. 
Is there advantage in ambiguity? Is there some reason that we in this 
U.S. Senate, understanding the ambiguity of court jurisdiction, would 
want to leave it ambiguous? I think the answer is--which Mr. Hatch 
gave--that some of our people think they ought to have jurisdiction and 
some think they should not have jurisdiction so, therefore, we leave it 
ambiguous and hope to get the votes of both sides.
  I submit that as a political matter on the floor of this Senate that 
is likely to do you more harm than good. There are some on this side of 
the Senate who, just as recently as 10 minutes ago, said the outcome of 
the Johnston amendment will influence their vote on this matter. There 
may be some on the other side of the aisle who feel differently.
  [[Page S2695]] I suggest if it is a political calculation that my 
friends on the other side of the aisle who are supporting this 
amendment check with their Members and see how many you lose by making 
clear the most fundamental question in this amendment. Are there really 
people in this Senate who would vote against the amendment because you 
cleared up an ambiguity? I do not believe so. But there may be some on 
this side of the aisle who recognize the pernicious, difficult effect 
of this amendment--no less authority than former Solicitor General, 
Judge Robert Bork, said the following, in a 1983 article:

       The result would likely be hundreds, if not thousands, of 
     lawsuits around the country, many of them on inconsistent 
     theories and providing inconsistent results. By the time the 
     Supreme Court straightened the whole matter out, the budget 
     question would at least be 4 years out of date and lawsuits 
     involving the next 3 fiscal years would be slowly climbing 
     toward the Supreme Court.

  Judge Bork is giving nothing but common sense. Everything the Federal 
Government would do would be subject to litigation. And, as Judge Bork 
says, thousands of lawsuits matriculating their way up to the Supreme 
Court, inconsistent results, and in the meantime what happens to this 
country? There would be bond issues which are subject to doubt. What 
attorney would issue an opinion on a bond issue that was clouded by a 
Supreme Court or by a district court case? There are so many other 
things that this Congress does with respect to issuing debts, making 
contracts--all would be unclear because we would not know what the 
jurisdiction of the court was.
  To those who say that the court needs to be involved, I say the 
Congress, under this amendment, has that power. To the extent that 
Congress specifically gives to the court the power to get involved in 
the balanced budget amendment, we have the ability to do so. And we may 
wish to do so. We may, for example, wish to limit them to declaratory 
judgments. We might wish to limit them to interpreting the words of the 
Constitution, determining what an outlay is, what a receipt is, et 
cetera. We may want to give them injunctive power. We may want to limit 
their ability to raise taxes. In fact, on the Republican side of this 
aisle, there is a lot of feeling against raising any taxes, whether by 
Congress--there was one amendment proposed which required 60 votes to 
raise taxes, as part of this amendment. But you would give that power 
to an unelected court.
  So the power to raise taxes is clearly, Mr. President, something that 
ought to be cleared up. Or, on the other hand, we may wish to say that 
the Supreme Court has original jurisdiction for the purpose of 
considering the balanced budget amendment. In other words, we may think 
that the matter is so important and it requires such expeditious 
relief, considering the uncertainties in the bond market, the 
uncertainties in contractual rights, that we need to expedite that 
consideration by providing that original jurisdiction in the Supreme 
Court. The Congress under this amendment would have that power. We 
would be able to define those limits, provide for that expediency, and 
provide whatever jurisdiction or limits on that jurisdiction that we 
wish under this amendment.
  Mr. President, I ask why not do that? Why not clear up that American 
ambiguity? Why not make this constitutional amendment so far as we can 
free from litigation?
  Mr. President, I ask my colleague from Idaho, for whom I have great 
respect and affection, first of all, if he agrees with me that this is 
a matter which is at least ambiguous and that the weight of authority 
is probably on the side of saying the court has jurisdiction. Would my 
colleague agree with that statement?
  Mr. KEMPTHORNE. Mr. President, in response to the Senator, I too have 
great respect for the Senator from Louisiana and admire the fact that 
he is bringing this sort of discussion to this issue. But really I 
would defer from responding to that because I think the chairman of the 
Judiciary Committee would be more appropriate who is grounded in this 
field and aspect of it to respond to you so you get the meaningful 
dialogue and exchange that really this issue merits.
  Mr. JOHNSTON. Will the Senator agree with me that, if it is a matter 
of ambiguity--and we will let Senator Hatch respond to that--then it 
ought to be an ambiguity that could be cleared up?
  Mr. KEMPTHORNE. I think when you have ambiguity, I do not know why we 
would want to proceed down the road of solidifying ambiguity.
  Mr. JOHNSTON. I thank the Senator. In his usual candor, he I think 
reinforces the point.
  Mr. President, I see my friend from Utah coming onto the floor. I 
wonder if I could engage with him in a colloquy on this matter.
  I thank my friend from Utah. My question was this: I had just quoted 
from the Harvard Law Review a number of professors who have stated that 
in their view there would be standing, justiciability and the matter 
would be handled by the court, although there are doubts about the 
limits about it. Will the Senator from Utah agree with me that it is at 
least a matter of ambiguity as to what the jurisdiction of the court 
would be?
  Mr. HATCH. I really do not agree. I really do not think that you can 
find standing across the board. I do not think you can find standing. 
There may be some isolated cases where a person's peculiar interests 
have been affected. I cannot think of any right offhand. But I am 
certainly not ruling that out. But I really do not think you can find 
all three of those conditions to exist with regard to the balanced 
budget amendment. I will be happy to address that in greater detail 
when it comes my time to say a few words about it.
  Mr. JOHNSTON. Did the Senator have an opportunity to hear me quote 
Assistant Attorney General Walter Dellinger who said that it is 
possible that the courts would hold that either taxpayers or other 
litigants would have standing to adjudicate various aspects of the 
budget process?
  Mr. HATCH. I was there when he said that and he backpedaled off that 
in the middle of the hearings and had to admit that there is not much 
basis for that statement. I might add that was in the face of a former 
Attorney General and a whole raft of other witnesses who said that just 
is not true.
  Mr. JOHNSTON. What Attorney General?
  Mr. HATCH. Attorney General Barr was there.
  Mr. JOHNSTON. You understand Attorney General Barr, to quote Attorney 
General Barr:

       I do believe Congress should consider including language in 
     the amendment that would expressly limit judicial review to 
     actions for declaratory judgments. If, however, such a 
     provision would prove to be politically unpopular, I believe 
     for the reasons detailed in my written statement that 
     Congress can safely pass the amendment in its current form 
     without undue concern that the courts will entertain large 
     numbers of suits challenging Congress' actions under the 
     amendment or that, even if the courts do entertain some 
     suits, they will order intrusive injunctive remedies.

  General Barr says we ought to clear up the ambiguity because 
according to him, he says they--I mean the obverse. He says they will 
not entertain large numbers of suits. I do not know what large numbers 
are to him, and I do not know what intrusive injunctive remedies are.
  Mr. HATCH. If the Senator will yield, I was there. He did say that as 
a political matter, if it helps you to pass a bill and dispose of 
amendments, that you might want to put a provision in with regard to 
declaratory judgments. We did that when we lost the last amendment. He 
said it is just a matter of political judgment. His opinion was that 
you are not going to----
  Mr. JOHNSTON. I just quoted his opinion.
  Mr. HATCH. No. No. That is what he said, not in his written 
statement. He was making a point in front of the committee that, if 
politically that helps you to pass the balanced budget amendment, you 
could live with that type of a provision. But his main points were that 
he did not see any reason to involve courts in the amendment either 
way.
  Mr. JOHNSTON. If the Senator will yield.
  Mr. HATCH. I will be happy to yield.
  Mr. JOHNSTON. I am quoting Attorney General Barr in a written answer 
to a posthearing statement in which he says ``I do believe''--do 
believe--``Congress should consider including language in the amendment 
that would 
[[Page S2696]] expressly limit judicial review to actions for 
declaratory judgment.''
  Mr. HATCH. Right. That is what we did in last year's debate.
  Mr. JOHNSTON. In the Danforth amendment.
  Mr. HATCH. But that has nothing to do withstanding, nothing to do 
with justiciability. The fact of the matter is----
  Mr. JOHNSTON. Of course it does.
  Mr. HATCH. Let me make my point. Declaratory relief in the eyes of 
many--and I think most authorities--can be as intrusive as injunctive 
relief. Take Justice Frankfurter in Coalgrave v. Green, 328 U.S. 549, 
page 552, a 1946 case, and he opined that declaratory relief should not 
be granted in situations where injunctions are inappropriate.
  Mr. JOHNSTON. If the Senator will yield----
  Mr. HATCH. If I could just finish, maybe I can help clarify. Let me 
finish. I only have two more comments to make.
  Thus declaratory relief would be limited by the standing political 
questions of separation of powers doctrines.
  Finally, the amendment of the distinguished Senator from Louisiana 
would be construed, if it passes, to grant the courts broad declaratory 
relief despite the standing in the political question of doctrine,
 and I might add the separation of powers doctrine. We think that is a 
  mistake.Mr. JOHNSTON. If I may correct the Senator at that point, my 
amendment precludes any judicial order of relief, except to the extent 
expressly authorized by the Congress and, unlike the Danforth 
amendment, does not include declaratory relief.
  What I was saying about Judge Barr was that Judge Barr says you ought 
to limit this at least to declaratory relief, but he goes on to point 
out that it is probable that you would have some suits entertained. The 
distinguished Harvard law professor, Laurence Tribe, says:

       So that one way or another, Members of Congress, a House of 
     Congress, someone who has been cut off from a program, a 
     taxpayer, these people will be able to go to court; no 
     question about it.

  We could go on here quoting from cases, quoting from other experts. I 
have not come across any expert who says it is clear that there is no 
jurisdiction, not one. I would welcome that statement.
  Mr. HATCH. The fact that we leave it open says there may be 
jurisdictions. It does not mean the courts will grant it. I do not 
think they will. Let me read----
  Mr. JOHNSTON. Wait. We are on my time now. Let me make my point 
first, and the Senator may respond. There is not one expert--not one--
that I have come across who says the matter of justiciability, the 
matter of standing, or the matter of being a political question, which 
are the three bases on which my friend from Utah relied in our January 
31 debate, not one expert says that that is a clear question. On the 
other hand, Professor Tribe says it is clear they would have standing. 
Mr. Dellinger says he believes they would have standing. Judge Barr 
says you ought to limit that because there may be some lawsuits and 
they may order some judicial relief, and no one that I can find 
disagrees with that.
  What I am saying is that it is at best an ambiguity--at best--and a 
probability of court jurisdiction, a probability of court intrusiveness 
here. How can my friend from Utah say it is not a matter of ambiguity 
in the face of the Harvard Law Review and distinguished professors, 
including his own, who say otherwise?
  Mr. HATCH. Because there is little or no chance that is going to 
happen. Let me, if I can, just go back to the written remarks----
  Mr. JOHNSTON. Can the Senator give me one single expert who agrees 
with him?
  Mr. HATCH. I am going to give it to you right now. Let me just go 
back--if you want to enshrine the word ambiguity, I am not going to do 
that for you. I can say that I cannot rule out that there might be some 
oddball case where somebody might have standing. I cannot rule that 
out. But I do believe we can rule it out on the basis of just 
reasonability that some oddball is not going to have an oddball case 
that affects everybody in the country because they are not going to be 
able to meet those three requirements.
  Here is what General Barr said in his written comments: ``In my view, 
though it is always difficult to predict the course of future 
constitutional law development''--from that standpoint, I have to grant 
the point that who knows whether some crackpots who occasionally do get 
to the courts, if we believe that is what is going to happen to the 
Supreme Court, who knows, you cannot say that anything is absolute in 
this world. Here is what he said:

       In my view, though it is always difficult to predict the 
     course of future constitutional law development, the courts' 
     role in enforcing the balanced budget amendment will be quite 
     limiting.

  I see little risk that the amendment will become the basis for 
judicial micromangement or superintendence of the Federal budget 
process.
  Furthermore, to the extent such judicial intrusion does arise, the 
amendment itself equips Congress to correct the problem by statute. On 
balance, moreover, whatever remote risks there may be that courts will 
play an overly intrusive role in enforcing the amendment, that risk is, 
in my opinion, vastly outweighed by the benefits of such an amendment.
  Then he says:

       I believe there are three basic constraints that will tend 
     to prevent the courts from becoming unduly involved in the 
     budgetary process. One, the limitation on the power of the 
     Federal courts contained in article III of the Constitution, 
     primarily the requirement of standing; two, the deference the 
     courts will owe to Congress, both under existing 
     constitutional doctrines and particularly under section 6 of 
     the amendment itself, which expressly confers enforcement 
     responsibility on Congress; and three, the limits on judicial 
     remedies running against coordinate branches of Government, 
     both that the courts have imposed upon themselves and that in 
     appropriate circumstances Congress may impose on the courts.

  When the Senator cites Laurence Tribe of Harvard to me and Walter 
Dellinger of Duke, they are both ardent advocates against the balanced 
budget amendment.
  Mr. JOHNSTON. Let us quote from Mr. Barr, who says in that same 
statement on page 8:

       But I would be the last to say that the standing doctrine 
     is an ironclad shield against judicial activism. The doctrine 
     is malleable and it has been manipulated by the courts in the 
     past.

  The one expert that my friend from Utah quotes to say that this 
matter is clear himself says it is unclear, and he says you cannot 
predict what the court will do, and himself urges that you limit the 
jurisdiction of the court. That is what he says.
  I ask my friend, why do we not clear it up?
  Mr. HATCH. Because we do not have to. Even though he says that there 
is no absolute in the law, because you can always find, or you may find 
in the future, some judicial activist who will ignore what the law 
says, we do have all kinds of checks and balances in this country, not 
just the courts, but in the other branches of Government as well. Even 
in the courts we have checks and balances. That is why we have nine 
Justices on the Supreme Court. What he is saying is there is little or 
no likelihood that anybody is going to be able to go to court and meet 
those three requisites under current law or under the law as he 
envisions it to be.
  If you ask him, well, assuming that there are no absolutes, and you 
want to be absolutely sure that the courts can never intrude, what 
would you do? Naturally, he would say I think you can have declaratory 
judgment relief if you want to write that into the amendment. We do not 
want to do that.
  Mr. JOHNSTON. What harm does it do, to clear up this matter, to say 
that there is no jurisdiction, no power for the courts to grant 
judicial relief except to the extent we authorize it in the Congress; 
what harm does it do?
  Mr. HATCH. I think the harm is that if the Senator writes the courts 
out of the Constitution, or out of this balanced budget amendment, he 
will be writing people out that we cannot foresee at this time--I do 
not know--who may have some legitimate, particularized injury to 
themselves that will enable them to have standing and a right to sue. 
That is a far cry from giving a broad, generalized right to the public 
at large.
  Mr. JOHNSTON. Does the Senator understand what he just said? He has 
just been saying that this matter is clear that there is no 
jurisdiction, but 
[[Page S2697]] we better not say there is no jurisdiction because there 
are some people we cannot foresee who may have jurisdiction and may 
want to sue, and the courts ought to be enforcing their rights.
  Mr. HATCH. There is a difference between a general right to sue for 
all citizens and a particularized injury to one individual which I 
cannot foresee right now. I do not believe there are any instances I 
can come up with, but there may be.
  Let me give you an illustration. Suppose Congress--this is not to say 
this is going to happen--but suppose Congress passes legislation 
cutting spending programs only to Jewish people. That will not happen, 
but let us give that as a bizarre illustration.
   In this case, should they not have a right to sue?Mr. JOHNSTON. 
Well, now, tell me, would the court's power to order relief be limited 
or could the court say you have not balanced the budget and therefore 
we order an income tax surcharge?
  Mr. HATCH. I do not think the court can do that.
  Mr. JOHNSTON. Where does my friend find such limitations on the 
court's power? If somebody has standing to sue, then they have standing 
to ask for whatever relief is appropriate.
  Mr. HATCH. We deal with judicial restraints, judicial powers, every 
day in our lives. And one of the reasons why the law develops year 
after year after year is because of ingenious people who find ways to 
develop it.
  All I am saying is this: We do not want to take away anybody's rights 
that may develop sometime in the future. We do not want a generalized 
right to sue and we do not believe anybody can make a good case that 
they will have that right.
  I do not think Professor Tribe did it or Walter Dellinger did it in 
front of the committee.
  Mr. JOHNSTON. Do you know what Robert Bork said?
  Mr. HATCH. And on the courts raising taxes, it is a question of 
redressability. You know, it is a separation of powers of doctrine.
  Mr. JOHNSTON. Judge Bork says:

       The result would be hundreds, it not thousands, of lawsuits 
     around the country, many of them on inconsistent theories and 
     providing inconsistent results.

  Mr. HATCH. And Judge Bork has very good reason to feel that way with 
the way he was treated. His legal contentions are based on 
overexaggerated fears of judicial activists. Actually, the post-Warren 
Supreme Court has tightened the standing and justiciability doctrines 
to such a degree that balanced budget enforcement suits would probably 
be dismissed on those grounds alone.
  And I cite the Lujan versus the Defenders of Wildlife case in 1992.
  In fact, Bork admits----
  Mr. JOHNSTON. If I may interrupt--and I do not like to interrupt.
  Mr. HATCH. If I may just finish.
  Mr. JOHNSTON. Are we proceeding on my time?
  Mr. HATCH. I will be happy to make this response on my time.
  Mr. JOHNSTON. Mr. President, I yield the floor.
  The PRESIDING OFFICER (Mr. Santorum). The Senator from Utah.
  Mr. HATCH. In fact, to make my case a little more clear, Bork admits, 
on page 2 of the letter he wrote, that standing would probably be 
denied. That is what most real constitutional experts would say. The 
substance of the legal argument is to speculate on the consequences of 
what if courts assumed jurisdiction. Well, what if courts decided to 
raise taxes? What if they decide to send armies to war? What if 
judicial activists decide to do anything that is outside of their 
jurisdiction and their range? I suspect we could conjure up any kind of 
a scare tactic, any kind of bizarre situation.
  What we have to rely on is what is the law. And it is very tough 
under current law and under the laws that existed for a long time, to 
come up with standing, with the requisites to meet the standing, 
justiciability, and the political question doctrine and some separation 
of powers doctrine in order to do what the distinguished Senator is 
suggesting Tribe and Dellinger say can be done.
  Mr. Dellinger back-pedaled quite a bit at that hearing. We did not 
have a lot of time to question him, and if we had, I think he would 
have back-pedaled a lot more. Neither Tribe nor Dellinger are 
supporters of the balanced budget amendment.
  And I have found, as the excellent lawyers they are, and they are 
really excellent lawyers, that they can come up, as law professors--and 
both of these are law professors, although Dellinger, Professor 
Dellinger, and I do not mean to denigrate him; Professor Dellinger is 
now down at the Justice Department--both of them can come up with 
alternatives on everything.
  Mr. JOHNSTON. Mr. Barr is a supporter.
  Mr. HATCH. No, Mr. Barr is not a supporter. I listened to the 
testimony, and in speculating about it and hypothesizing about it, he 
says, ``Well, if you want to do this, you can do it.'' But Barr 
basically says you should not have to do it; the law is such that you 
should not have to do it.
  And Bork is just saying it because he fears judicial activists. Bork 
is saying that, you know, well, his comments are based on what I 
consider to be, and I think many others, exaggerated fears of judicial 
activists.
  Mr. JOHNSTON. You do understand that Mr. Barr said:

       I do believe Congress should consider including language in 
     the amendment that would expressly limit judicial review.

  Mr. HATCH. I was there. I believe I was there when he said it.
  Mr. JOHNSTON. No, this was in the posthearing answer to written 
questions. That is the last word from Mr. Barr.
  Mr. HATCH. I am aware.
  Mr. JOHNSTON. Did he ever back up on that?
  Mr. HATCH. I think if Mr. Barr, if General Barr, was asked what his 
opinion is, he would say, ``Don't clutter up the Constitution.'' 
Because every time you add a provision like this into to, every time 
you add that kind of provision or any kind of provision, you have a 
whole myriad of problems that arise from there.
  Now we have people in both bodies who want the courts involved. We 
have people who do not want the courts involved. I think there is 
little or no likelihood that the courts are going to be involved on 
this amendment as it is written.
  Mr. JOHNSTON. Is that not the real answer; that some of your Members 
are for it and some are against it, and you want to please both sides, 
so you leave it ambiguous?
  Mr. HATCH. First of all, I do not think it is really ambiguous. 
Nothing is absolute, so I guess you can claim ambiguity on any 
proposition you make.
  Mr. JOHNSTON. I just read to you the most distinguished professors in 
the country, including Mr. Bork, and you have not one single expert, 
not one, who supports your position. Name me one. I mean, you do not 
like Judge Bork; you do not like----
  Mr. HATCH. I love Judge Bork. And I do not disregard Professor Tribe 
and Professor Dellinger.
  What I am saying is this: The Senator is partially correct. We are 
dealing here with a constitutional amendment of general application. We 
are dealing with one of the most difficult debates in the history of 
the country. We are dealing with consensus problems. We are dealing 
with Republicans and Democrats. We are dealing with 38 years of trying 
to get this to the floor--38 years; really, better than 200 years of 
getting the House to vote on this. Thirty-eight years of trying to get 
it to the floor, nineteen years in my life of trying to do it, having 
brought it to the floor in 1982, where we passed it in the Senate 
without that language, having brought it three other times to the 
floor, and this is the fourth time, and trying to bring people together 
who have a mixture of viewpoints.
  We are doing the best we can. Now, can we satisfy everybody's urge, 
including Professor Tribe's or Professor Dellinger's? Can we satisfy 
everybody's demand or desire for their own wording in this amendment? 
Can we satisfy those who do not want the courts involved in this to the 
exclusion of those who do? There are not many who do, but there are 
some who do.
  Or do we do what we have to do, and that is, get a consensus on this 
matter and fight for it as hard as we can and do the best we can? Well, 
that is what we are doing.
   [[Page S2698]] Mr. JOHNSTON. If I could ask my colleague at that 
point, I disagree not just with the legal calculus, but with the 
political calculus, as well.
  The Danforth amendment was virtually identical to this amendment and 
was passed without opposition. Is there really opposition on your side? 
Are there Senators who on your side would say, I will not support this 
amendment unless it has the right of the courts to order relief?
  Mr. HATCH. I believe there are. I believe there are some on your 
side. In fact, I think there are as many, if not more, on your side.
  So what I am saying is we are trying to do the art of the doable 
here. Personally, I do not like courts involved--in certain aspects of 
this, I would not want them involved at all--and I do not believe they 
will be, or I would be arguing for the Senator's position. I might add 
that some do like the courts involved in some of these areas, but I do 
not know many who do.
  But let me just say that what we are trying to do is bring Senators 
together and reach a 67-vote total. We are one or two votes away from 
that. Some think we are there, but I do not ever count that until the 
final vote. We are one or two votes away from being there. And we are 
trying to keep the amendment intact.
  And keep in mind, we have 300 people in the House of Representatives 
who voted for this amendment. If we add anything to it, it has to go 
back to them.
  These are considerations the distinguished Senator from Illinois and 
I have to meet.
  Now, as I recall, just to name two experts, Griffin Bell, former 
Attorney General of the United States, upholds this position. Professor 
Van Alstein, from Duke, who was Walter Dellinger's partner down there, 
upholds this position, as far as I know.
  Mr. JOHNSTON. Who say this is a matter that has no ambiguity.
  Mr. HATCH. Who say there is little or no likelihood that people can 
generally sue on behalf of all Senators under this amendment.
  Mr. JOHNSTON. There is a huge amount of difference between ``little 
likelihood'' and ``clear.''
  See, the difference is that we would have this litigation going 
through the courts. As Judge Bork said, thousands of cases with 
inconsistent results. Bond issues, contracts, subject to lack of 
clarity.
  It is not too much to say that the capital markets of this country 
could, during the pending litigation, be put into complete chaos.
  Mr. HATCH. I think those are scare tactics myself. Let me say a few 
things, and maybe I can clarify to a degree.
  Mr. President, the balanced budget amendment is a fine-tuned law. It 
manages to strike the delicate balance between reviewability by the 
courts and the limitations on the courts' ability to interfere with 
congressional authority.
  I wholeheartedly agree with the former Attorney General William B. 
Barr, who stated that if House Joint Resolution 1 is ratified there is,

       * * * little risk that the amendment will become the basis 
     for judicial micromanagement or superintendence of the 
     Federal budget process. Furthermore, to the extent such 
     judicial intrusion does arise, the amendment itself equips 
     Congress to correct the problem by statute.

  In other words, we can correct any problem that does arise. ``On 
balance,'' he goes on to say, ``whatever remote risk there may be the 
court will play an overtly intrusive role in forcing the amendment, 
that risk is, in my opinion, vastly outweighed by the benefits of such 
amendment.''
  In regard to Congress' power to restrain the courts, which I think is 
an important point, I think the Senator from Louisiana does the Senate 
a service in raising the issue.
  In order to resist the ambition of the courts, the framers gave to 
the Congress in article III of the Constitution the authority to limit 
the jurisdiction of the courts, the type of remedies the courts may 
remedy, if Congress truly fears certain courts may decide to ignore the 
law and the precedence. If Congress finds it necessary, through 
implementing legislation, it may forbid courts the use of their 
injunctive powers already. And the Congress has done that from time to 
time.
  Or Congress could create an exclusive cause of action or tribunal 
which carefully limits power satisfactory for Congress to deal with the 
balanced budget components or complaints.
  But Congress should not, as the distinguished Senator from Louisiana 
proposes, cut off all judicial review. I believe that House Joint 
Resolution 1 strikes the right balance in terms of judicial review. By 
remaining silent about judicial review in the amendment itself, its 
authors have refused to establish congressional sanction for the 
Federal courts to involve themselves in fundamental, macroeconomic, and 
budgetary issues in question.
  At the same time, this balanced budget amendment does not undermine 
the courts' equally fundamental obligation, as first stated in Marbury 
versus Madison, to say what the law is. After all, while I am confident 
that courts will not be able to interfere with our budgetary 
prerogatives, I am frank enough to say I cannot predict every 
conceivable lawsuit--nobody can--which might arise under this amendment 
and which does not implicate these budgetary prerogatives.
  A litigant in such a narrow circumstance, if he or she can 
demonstrate standing, ought to be heard. They ought to have their case 
heard. It is simply wrong to assume that Congress would just sit by in 
the unlikely event that a court would commit some overreaching end. 
Believe me, Congress knows how to defend itself. Congress knows how to 
restrict the jurisdiction of courts or limit the scope of judicial 
remedies where the courts get completely out of line as they would have 
to be in this situation.
  I do not think it is necessary. Lower courts by and large, and really 
almost always, follow precedent. The precepts of separation of powers 
and the political question doctrine effectively limit the ability of 
courts to interfere in the budgetary process. Nevertheless, if 
necessary, a shield against judicial interference is section 6 of House 
Joint Resolution 1, the constitutional amendment itself. Under this 
section Congress may adopt statutory remedies and mechanisms for any 
purported budgetary shortfall such as sequestration, rescission, or the 
establishment of a contingency. Pursuant to section 6, it is clear that 
Congress if it finds it necessary, could limit the type of remedies the 
court may grant or limit the courts' jurisdiction in some other manner 
to proscribe judicial overreaching. This is not at all a new device nor 
is it at all a new constitutional device. Congress has adopted such 
limitations in other circumstances pursuant to its article III 
authority.
  In fact, Congress may also limit standing, judicial review, 
particular special tribunals with limited authority to grant relief. 
Such a tribunal was set up recently as the Reagan administration needed 
a special claims tribunal to settle claims on Iranian assets. Beyond 
which, in the virtually impossible scenario where these safeguards 
fail, Congress can take whatever action it must to moot any case in 
which a risk of judicial overreaching becomes something real.
  Now, these standing, separation of powers, and political question 
issues are restraints. I might add, there is a distinction between 
remedies court can give and the ability to bring relief. Courts cannot 
interfere with the budgetary process. It is a political question. It 
would violate the separation of powers doctrine.
  These three restraints--these are basic constraints--prevent the 
courts from interfering in the budgetary process.
  Mr. JOHNSTON. Mr. President, will the Senator yield?
  Mr. HATCH. If I could finish this, I would like it to be 
uninterrupted. Then I would be happy to yield.
  First, limitations on Federal courts contained in article III of the 
Constitution, primarily the doctrine of standing. That is not one.
  Second, the deference the courts owe to Congress under both the 
political question doctrine and section 6 of the amendment itself, 
which confers enforcement authority in Congress--not in the courts, in 
Congress--specifically. I think a court would really have to overreach 
and overreach badly to try to go around that.
  Third, the limits on judicial remedies which can be imposed on a 
coordinate 
 [[Page S2699]] branch of government; in this case, the legislative 
branch.
  These are limitations on remedies self-imposed by courts and that, in 
appropriate circumstances, may be imposed on the courts by Congress. 
These limitations such as the doctrine of separation of powers 
prohibits courts from raising taxes--that is a power exclusively 
delegated to Congress by the Constitution--and it is not altered in any 
way, shape or form by the balanced budget amendment that we are 
offering here today.
  Consequently, contrary to the contention of the opponents of the 
balanced budget amendment, separation-of-power concerns further the 
purpose of the amendment in that it assures that the burden to balance 
the budget falls squarely on the shoulders of Congress, which is 
consistent, as I see it, with the Framers of the Constitution that all 
budgetary matters be placed in the hands of Congress.
  Concerning the doctrine of standing, it is beyond dispute that to 
succeed in any lawsuit, a litigant must further demonstrate the 
standing to sue. To demonstrate article III standing, a litigant at a 
minimum must meet three requirements: No. 1, injury, in fact, that the 
litigant suffered some concrete and particularized injury.
  No. 2, traceability
   --that the concrete injury, not only is the injury in fact because 
the litigants suffer some concrete or particularized injury, but 
traceability means that the concrete injury was both caused by and is 
  traceable to the unlawful conduct.And No. 3, redressability--that the 
relief sought will redress the alleged injury.
  That is a large hurdle for a litigant to demonstrate that injury in 
fact requirement. That is something more concrete than a generalized 
grievance and burden shared by all citizens and taxpayers.
  I do not know anybody who is an authority on this subject who would 
disagree with that. They might not like that, but that is what the law 
is. Even in the vastly improbable case where an injury in fact was 
established, a litigant would find it nearly impossible to establish 
the traceability and redressability requirement of the article III 
standing test. After all, there will be hundreds and hundreds of 
Federal spending programs even after Federal spending is brought under 
control.
  Furthermore, because the Congress would have numerous options to 
achieve balanced budget compliance, there would be no legitimate basis 
for a court to nullify or modify a specific spending measure objected 
to by the litigant.
  Now as to the redressability problem, this requirement would be 
difficult to meet because courts are wary of becoming involved in the 
budget process. They always have been, which they admit is legislative 
in nature, and separation of powers concerns will prevent courts from 
specifying adjustments of any Federal program or expenditures.
  Thus, for this reason, Missouri versus Jenkins, the 1990 case that is 
often cited, where the Supreme Court upheld a district court's power to 
order a local school district to levy taxes to support a desegregation 
plan is inapposite. Plainly put, the Jenkins case is not applicable to 
the balanced budget amendment because section 1 of the 14th amendment, 
from which the judiciary derives its power to rule against the States 
in equal protection claims, does not apply to the Federal Government 
and because the separation of powers doctrine prevents judicial 
encroachments on Congress' bailiwick. Courts simply will not have the 
authority to order Congress to raise taxes. It is just that simple. And 
anybody who argues the Jenkins case just does not understand its 14th 
amendment implications.
  Now on the political question, and these are important points, and I 
apologize to my colleague for making him wait until I make these points 
but I think they need to be made in order, and then, of course, I will 
be glad to discuss it with him.
  The well-established political question doctrine and justiciability 
doctrine will mandate that the courts give the greatest deference to 
congressional budgetary measures, particularly since section 6 of House 
Joint Resolution 1 explicitly confers on Congress the responsibility of 
enforcing the amendment, and the amendment allows Congress to ``rely on 
estimates of outlays and receipts.''
  Under these circumstances, it is extremely and all but unlikely that 
a court will substitute its judgment for that of Congress. I just 
cannot conceive of it, other than some future country that does not 
abide by its laws.
  Moreover, despite the argument of some opponents of the balanced 
budget amendment, the taxpayer standing case, Flast versus Cohen, in 
1968, is not applicable to enforcement of the balanced budget 
amendment. The Flast case has been limited by the Supreme Court to 
establishment clause cases. Also, Flast is, by its own terms, limited 
to challenging cases for an illicit purpose.
  I also believe there would be no so-called congressional standing for 
Members of Congress to commence actions under the balanced budget 
amendment because Members of Congress would not be able to demonstrate 
that they were harmed in fact by any dilution or nullification of their 
vote, and because under the doctrine of equitable discretion, Members 
would not be able to show that substantial relief could not otherwise 
be obtained from fellow legislators, through the enactment, repeal or 
enforcement or amendment of a statute, it is hardly likely that Members 
of Congress would have standing to challenge actions under the balanced 
budget amendment. Highly unlikely.
  Mr. President, I believe it is clear that the enforcement concerns 
about the balanced budget amendment do not amount to a hill of beans. 
The fear of the demon of judicial interference is exorcised by the 
reality of over a century of constitutional doctrines to prevent 
unelected courts from interfering with the power of the democratically 
elected branch of Government and to bestow Congress with the means to 
protect its prerogatives.
  I think that even though you can always say there are ambiguities in 
the law, there always are. That does not negate the fact that this 
balanced budget amendment does not need to be amended to take care of 
something that is the most highly unlikely set of occurrences that 
could happen.
  I will be happy to interchange with my friend from Louisiana.
  Mr. JOHNSTON. Mr. President, I thank my colleague for yielding. On 
this question of justiciability and standing, the Senator is, I 
believe, familiar with the fact that many States have balanced budget 
amendments and there is a plethora of litigation in which State courts 
have taken jurisdiction.
  In New York, in the 1977 fiscal crisis where they had a loan of $250 
million, the court declared that that was permissible; took 
jurisdiction.
  In the State of Georgia, a lease by development authority, the 
question whether that constituted indebtedness under that State's 
constitution.
  In Wisconsin, whether a lease-purchase agreement constituted 
indebtedness.
  In 1981 in Illinois, the legislature closed the schools early in 
pursuit of the balanced budget amendment of that State. The court took 
jurisdiction and, by the way, they said it was permissible but they 
took jurisdiction and made the decision.
  In California, the employees' retirement system challenged the action 
of the State legislature which, in turn, passed fiscal emergency 
legislation to suspend funding to the State employees' retirement 
system, and the court took jurisdiction in that case and was able to 
order. They do so all across the country.
  In my State, the courts specifically have stated they have 
jurisdiction. In the face of all of these State courts, in the face of 
Judge Bork, Attorney General Dellinger, in the face of Laurence Tribe 
of the Harvard Law Review and all of these others who say you probably 
would have standing, jurisdiction, justiciability, how it can be said--
and I ask my colleague--how it can be said that there is no standing 
justiciability or that this is a political question escapes me.
  Does the Senator desire to respond to that, or may I make one other 
point? Is he ready to respond to that? I see my colleague from Utah is 
not here.
  Mr. BROWN. The distinguished Senator from Louisiana may want to go 
 [[Page S2700]] ahead and complete his points before we respond.
  Mr. JOHNSTON. The Senator from Utah also said the Congress would have 
the power if there were courts who began to meddle in this, accepted 
jurisdiction, that the Congress would then have the power, I guess by 
getting 60 votes to overcome a filibuster, in order to limit that 
jurisdiction of a case already started.
  I just wonder at what point the Congress would feel constrained to 
act. Would it be after the district court had issued an injunction, 
after the court of appeals had ordered taxes increased or after the 
Supreme Court had acted? Why do we not fix that in advance so the court 
will not exercise this jurisdiction, will not exercise that power, 
except to the extent that the Congress specifically authorizes it? That 
is my question, and then I will yield to my friend from Michigan.
  Mr. BROWN. Mr. President, the distinguished Senator from Louisiana 
has raised some concerns. My hope is that I can offer at least some 
comments that will be helpful to a portion of his concerns.
  The issue of whether or not this provides ``a plethora of 
litigation''--I think those are the words that were stated--is a fair 
question to ask, and I think it is reasonable to bring it before the 
body. I asked that question specifically of the Assistant Attorney 
General when he came before the Judiciary Committee.
  The point of the administration was that this could lead to a flood 
of litigation. I noted that a large number of our States, the vast 
majority of our States have similar balanced budget amendments. The one 
in Colorado is, of course, very strict, much stricter than this. This 
is the softest form of a balanced budget amendment that I know of. I 
think Americans that watch this debate will be shocked to find how weak 
a version it is because it can be waived by simply 60 votes.
  However, the allegation that this would lead to a large amount of 
litigation already is a question that has been faced by this country 
because the vast majority of our States have constitutional amendments 
that require a balanced budget, and they are much tougher than anything 
we are talking about.
  I asked the Assistant Attorney General to name for me the cases that 
he was worried about, this flood of litigation. He could not name one 
single case. Mr. President, let me repeat that because the Attorney 
General who had made that allegation was unable to name a single 
solitary case. And when pressed on it, he came up with the name of 
several cases that, indeed, involved States but did not involve the 
balanced budget amendment that those States had.
  Now, what is the fact? Colorado has a balanced budget amendment. The 
last litigation we had----
  Mr. JOHNSTON. Will the Senator yield on the question of what the 
Attorney General said?
  Mr. BROWN. I would be happy to yield to my friend from Louisiana.
  Mr. JOHNSTON. Quoting from Mr. Dellinger, Assistant Attorney General 
Dellinger's testimony on page 137 of the hearings, he stated as 
follows:

       There is as yet nothing in this amendment proposal that 
     would preclude the courts of getting involved in issues of 
     taxation. Recall Missouri v. Jenkins from 1990, where the 
     Supreme Court held that while a Federal district court had 
     abused its discretion in directly imposing a tax increase to 
     fund a school desegregation program, that the modifications 
     made in that case by the Court of Appeals satisfied equitable 
     and constitutional principles.
       If we have an amendment that for the first time 
     constitutionalizes the taxing and spending process and 
     creates a constitutional mandate which the courts are sworn 
     on oath to uphold, there is simply no way that we can rule 
     out the possibility that tax increases or spending cuts would 
     be ordered by the judiciary.

  The Senator asked what was the case Mr. Dellinger was concerned 
about. That is it--taxing being ordered by the courts or spending cuts 
being ordered by the courts. That is page 137 of last year's hearing.
  Mr. President, I ask unanimous consent that I be allowed to place in 
the Record at this point Mr. Dellinger's testimony.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

  Excerpt From Hearing on Senate Joint Resolution 41--Balanced Budget 
                               Amendment

       Mr. DELLINGER. Mr. Chairman, thank you.
       Two hundred and seven years ago this summer, the framers of 
     the Constitution met in Philadelphia. Their goal, as one of 
     the founders put it, was to design a system of government 
     that would ensure the grandeur and importance of America 
     until time shall be no more.
       The coming together of the American Colonies into a single 
     Nation was more difficult than we can easily now imagine. 
     John Adams wrote home from the Continental Congress in 1775 
     to the remarkable Abigail Adams, and he spoke of 50 gentlemen 
     meeting together, all strangers, not acquainted with each 
     others' ideas, views, language, designs. We are, he said, 
     timid, skittish, jealous.
       They came as representatives of legislative democracies 
     that had some independence from England and had engaged in 
     self-government, in many instances, for more than a century. 
     They took enormous risk to create, in that summer of 1787, 
     between the first day, May 25, and the last day, September 
     17, 1787, a system of government that has lasted longer and 
     served better as a foundation for free government than any 
     other constitution yet written.
       It was the government designed to create a great republic, 
     the kind of republic that John Marshall could then imagine as 
     a young Chief Justice; where, from the St. Croix to the Gulf 
     of Mexico, revenue was to be collected and expended, armies 
     are to be marched and supported. To this end, Marshall wrote, 
     all the sword and the purse, all the external relations and 
     no inconsiderable portion of the industry of the Nation are 
     entrusted to this Government.
       This Government, under this system of government, as you 
     know as the great historian of this body, the Senate, has 
     provided an extraordinary basis for the achievement of the 
     grandeur and importance of the American Nation.
       I think we are considering today an amendment to that 
     document that poses great risk. For that amendment is 
     profoundly anticonstitutional, not unconstitutional--no 
     amendment ratified in due course could rightly be called 
     unconstitutional--but anti- constitutional in the 
     sense that it goes against the basic spirit, the basic 
     essence of some of the most profound aspects of the 
     Constitution.
       The Constitution, as written by the framers, did not 
     constrain choices, It, rather, empowers the people to enact 
     choices, except in those few instances, such as the freedom 
     of speech and the press and of religion, that are ruled out 
     of bounds altogether. This
      amendment is inconsistent with that goal, by seeking to 
       shackle government.It is a Constitution in which the 
     principle of majority rule is so fundamental, so essential, 
     that it literally goes without saying. There is no need even 
     to mention that decisions are made by majority rule. And yet, 
     here is an amendment that would, for the first time, allow 40 
     percent to hold hostage a majority of the Government with 
     respect to a matter--the passage of a budget--that must be 
     done.
       We have, and will hear in the judiciary subcommittee today 
     and yesterday, discussions to the fact that there are other 
     supermajority provisions of the Constitution--and so, there 
     are. But notice how different this proposal is. Each of the 
     other supermajority provisions of the Constitution--the 
     ratification of treaties, conviction of a President on 
     charges of impeachment, the override of a veto, the expulsion 
     of a Member or proposing an amendment to the Constitution--
     each of those calls for a supermajority in circumstances in 
     which the default, the status quo, is perfectly acceptable 
     and can remain if no action is taken.
       If we do not propose a constitutional amendment because 
     there is no supermajority, the Constitution we have remains 
     as it is. We can go without a treaty. We can decline to 
     impeach a President. We can decline to override the 
     President's veto. But we must pass a budget. There is no 
     underlying status quo of no budget that is acceptable. So 
     that, in this unusual event, we would distort and challenge 
     the basic notion of majority rule.
       Some have noted that, indeed--and you would know this 
     better than I--such a provision could, in fact, worsen budget 
     deficits. I would certainly defer to your judgment, Mr. 
     Chairman, on this, but I could easily imagine circumstances 
     in which a majority and a minority leader thought it a lot 
     more difficult to assemble 50 votes for a stringent budget 
     vastly increasing taxes and cutting cherished programs than 
     it would be to outbid each other to assemble 60 votes, where, 
     if you achieve 60 votes through a bidding war, there is 
     simply no limit on how large the deficit may be under this 
     amendment.
       So, you have this odd distortion between the votes 
     necessary to pass a budget and one which could work in quite 
     unexpected ways.
       But those, Mr. Chairman, are just introductory remarks to 
     what I think is the central concern that would be appropriate 
     for the Department of Justice to represent to you today. And 
     that is the implications of this amendment for the basic 
     structure of our constitutional government and to the status 
     of our Constitution as positive law.
       [[Page S2701]] Yesterday, one of the thoughtful supporters 
     of this amendment described it as a necessary, quote, 
     mechanism of discipline for our budget situations. And yet, 
     the very flaw of this proposal is that it has no mechanism. 
     And it is that absence of a mechanism of enforcement that 
     makes this amendment such a threat to our basic 
     constitutional values.
       The central problem is that this proposed amendment 
     promises a balanced budget without providing any mechanism 
     for accomplishing that goal. It simply declares that outlays 
     shall not exceed expenditures, without ever explaining how 
     this desirable state of
      affairs shall come about, and without specifying who among 
     our Government officials shall be empowered to ensure that 
     the amendment is not violated or, if violated, the Nation 
     is brought into compliance.
       Some have said that Congress will feel duty bound to comply 
     with the requirements of this constitutional amendment. And I 
     agree that each Member of Congress would properly consider 
     himself or herself individually bound to comply with the 
     amendment. The difficulty is that the amendment does not 
     provide any mechanism by which those individual Members of 
     Congress can coordinate their separate constitutional 
     obligation to support a balanced budget.
       Each Member of the Senate and House might conscientiously 
     set about to comply with the amendment. One Senator might 
     vote to cut military spending; another to reduce retirement 
     or other entitlement benefits; a third to raise taxes. Each 
     would have been faithful to his or her oath of office. But 
     each of the measures may fail to gain a majority support and, 
     therefore, the amendment would not be, and the requirements 
     of the amendment would not be, met.
       Or, of course, Congress might simply, by 55 votes, pass an 
     amendment that does not, in fact, produce a situation in 
     which outlays do not exceed receipts.
       What are we then left with? What would the senior advisors 
     to the President tell the President would be the case if this 
     amendment to the Constitution of the United States was not 
     being complied with by the functioning and processes of 
     Government?
       I think we would certainly expect a vast array of 
     litigation to ensure. One of the first matters to be 
     litigated would be whether the President was obligated or 
     entitled to make his own unilateral cuts in budget or 
     otherwise, unilaterally, to raise revenues. This would be a 
     very difficult question. I would imagine that different 
     courts would resolve the issue differently.
       Some would say that the President alone would be in a 
     position simply to order a cut, even where the law required 
     otherwise, because now he had the higher obligation to ensure 
     that the Constitution was complied with.
       Others would argue that it would be extraordinary to infer 
     from the silence of this amendment such a sweeping and 
     radical change in the allocation authority among the branches 
     of Government. And yet, the issue would be resolved by judges 
     and courts.
       Surely the most alarming aspect of the amendment is that by 
     constitutionalizing the budget process, the amendment appears 
     to mandate an extraordinary expansion of judicial authority. 
     Both State and Federal judges may well be required to make 
     fundamental decisions about taxing and spending--issues that 
     they clearly lack the institutional capacity to resolve in 
     any remotely satisfactory manner.
       One would hope that the judiciary would consider these 
     questions political and beyond their scope. This political 
     question doctrine, simply put, is the doctrine that is 
     designed to restrain the judiciary from inappropriate 
     interference in the business of the other branches of 
     Government.
       On its face, that basic doctrine would appear to constrain 
     the court's review of a balanced budget amendment. And yet, 
     the most recent decisions of the Supreme Court suggest that 
     the court would be prepared to resolve questions that might 
     once have been considered political.
       We have the example of United States v. Munoz-Flores from 
     1990, in which the court adjudicated a claim that an 
     assessment was unconstitutional because it failed to comply 
     with the provision that it originate in the House of 
     Representatives.
       I would have thought before Munoz-Flores that the court 
     would decline to adjudicate and would accept the 
     authentication of Congress. And I would have been wrong.
       In 1992, the court considered the congressional resolution 
     of how one goes about apportioning the last seat for the 
     House of Representatives, what formula to choose when 
     Congress decides which State gets that last 435th seat in 
     Congress. The losing State challenged--Montana--the 
     Department of Commerce. And I would have assumed that the 
     court would have considered this, too, a political question, 
     left for the final resolution of the Congress. And, again, I 
     was wrong in that assumption. Because the court did go to the 
     merits, did consider it judiciable, and did pass judgment on 
     this question.
       So I think that however wise or unwise it may be for the 
     courts to be involved in these issues--and I tend to think it 
     is unwise--it is nonetheless the case that no one can provide 
     any assurances that once this amendment constitutionalizes 
     the budget process the court will not consider itself 
     obligated to resolve issues that arise under that amendment.
       Let me mention, for example, one that I noted just last 
     evening where I could readily imagine a justiciable case 
     where the party has standing and a declaration invalidating a 
     major act of Congress, if this amendment were law today.
       Section 4 of Senate Joint Resolution 41 provides that no 
     bill to increase revenue shall become law--no bill shall 
     become law if it increases revenue--unless approved by a 
     majority of the whole number of each House on a rollcall 
     vote. It is often the case that there are major pieces of 
     legislation, like the crime bill, that contain provisions 
     which a litigant might later argue, increase revenue, by 
     providing more effective enforcement mechanisms, by providing 
     forfeiture provisions.
       A criminal defendant would surely have standing, prosecuted 
     or sentenced under omnibus crime legislation, to say that 
     this bill contains a provision which would increase revenues, 
     and, therefore, it falls under section 4 of this amendment 
     and is unconstitutional unless Congress had been alert to 
     ensure that its approval was by a majority of the whole 
     number of each House on a rollcall vote. Once you 
     constitutionalize an area you take the resolution of critical 
     questions, critical concerns, out of the hands of the elected 
     representatives of the people and leave them in the hands of 
     courts that now would be under a mandate to resolve these 
     issues.
       There are others who might have standing. Taxpayers, to be 
     sure. I have never, myself, fully been reconciled to Flast v. 
     Cohen, but it remains the law. Many of the provisions of this 
     amendment appear to be an express or specific limitation on 
     the tax against
      spending power which would generate standing in taxpayers to 
     litigate. Certainly, if the President took action to cut 
     benefits, if he, say, cut Social Security across the board 
     by 9 percent in order to comply with the amendment, a 
     beneficiary would challenge the President's authority to 
     do that, and that issue would wind up in litigation.
       There is as yet nothing in this amendment proposal that 
     would preclude the courts of getting involved in issues of 
     taxation. Recall Missouri v. Jenkins from 1990, where the 
     Supreme Court held that while a Federal district court had 
     abused its discretion in directly imposing a tax increase to 
     fund a school desegregation program, that the modifications 
     made in that case by the Court of Appeals satisfied equitable 
     and constitutional principles. Those modifications included 
     leaving the details of the mandate to increase taxes to State 
     authorities, while nonetheless imposing a mandate that must 
     have been met.
       If we have an amendment that for the first time 
     constitutionalizes the taxing and spending process and 
     creates a constitutional mandate which the courts are sworn 
     on oath to uphold, there is simply no way that we can rule 
     out the possibility that tax increases or spending cuts would 
     be ordered by the judiciary. And I think we would all agree 
     that that is a profound change in our constitutional system.
       I believe it was in the 48th Federalist that Madison 
     assured those who were about to vote on whether to ratify or 
     reject the proposed Constitution, Madison assured them that 
     the legislative department alone has access to the pockets of 
     the people. That is a theme which is carried forward by 
     Justice Anthony Kennedy in his dissent in Missouri v. 
     Jenkins, where he writes of how jarring it is to our 
     constitutional system to have unelected life tenure judges 
     involved in the process of taxation. Justice Kennedy wrote, 
     ``It is not surprising that imposition of taxes by an 
     authority so insulated from public comment and control can 
     lead to deep feelings of frustration, powerlessness, and 
     anger on the part of taxpaying citizens.'' We would not, I 
     think--you would not want lightly to have put out a provision 
     that so radically restructured the fundamental nature of our 
     constitutional system in the face of such limited discussion 
     about how these enforcement mechanisms would work.
       Chairman Byrd. Mr. Dellinger, what was the vote in that 
     case? The Supreme Court vote?
       Mr. Dellinger. I believe it was five to four. But I have 
     not checked the vote. I believe it was five to four. I am 
     seeing one of your very helpful staff members nodding behind 
     you and assuring me. So it is a very close case, and I think 
     the constitutional proposition set forth in section 1 would 
     provide for many justices a more sound basis for being 
     engaged in taxing and spending, where it says total outlays 
     for any fiscal year shall not exceed total receipts. This is 
     no longer part of the Pledge of Allegiance or a Fourth of 
     July speech. We are talking about making this a part of the 
     Constitution of the United States of America.

  Mr. BROWN. I thank my friend for raising that point, and it proves 
precisely the point that I want to make. That case was not based on a 
balanced budget amendment. That case was based on the 14th amendment.
  I might mention that the constitutional amendment before this body 
does not repeal the 14th amendment. The 14th amendment is in the 
Constitution. The cases are going to come up about the 14th amendment 
all the time. That was the whole point. The Assistant Attorney General 
had brought this specter of floods of litigation and his prime example 
was one 
 [[Page S2702]] that dealt not with the balanced budget amendment but 
dealt with the 14th amendment.
  Mr. JOHNSTON. He was saying that under the balanced budget amendment 
they would have the authority, that nothing would prevent the same 
authority exercised as in Missouri versus Jenkins.
  Mr. BROWN. I think the point here is that the case he cited to 
express his concern was one that did not deal with the balanced budget 
amendment, and there are many of them that exist across the country.
  Mr. JOHNSTON. No, but it dealt with the power of Federal courts to 
order taxation, which was what his concern was, which is what my 
concern is, and my amendment would prevent that. And why not do that?
  Mr. BROWN. Let me suggest, the Senator's amendment deals not with the 
14th amendment. It deals with appeals to courts and deals with appeals 
to courts on this amendment.
  Now, the question is clearly this: Is the passage of a balanced 
budget amendment going to lead to a flood of litigation? When the 
Assistant Attorney General was asked to name a case, one case where you 
have had appeals to the courts and litigation in the courts about the 
numerous balanced budget amendments around the country, he was unable 
to name a single solitary case.
  Now, Mr. President, those cases do exist. Colorado has had a 
constitutional amendment for a balanced budget in its constitution for 
over 100 years. We have had litigation on it. And the last litigation 
in Colorado on our balanced budget amendment was in 1933. It dealt with 
a peripheral case.
  Now, this flood of litigation that the Assistant Attorney General is 
forecasting has not reared its head in the State of Colorado for over a 
half century, not a single case in over a half century. And the one 
that came up literally 60 years ago was one that did not deal directly 
with the issue of the balanced budget. It dealt with a peripheral 
issue.
  Mr. JOHNSTON. Perhaps my friend did not hear the cases which I cited 
from around the country where courts have gotten involved in this. 
Looking to my own State of Louisiana, for example, in 1987, the court 
of appeals case, just to quote briefly, says:

       Defendants contend that there exists no justiciable issues 
     in this case because the courts should not ``step in and 
     substitute their judgment for that of the legislature and 
     executive branches'' in the budget process. We disagree. The 
     determination of whether the legislature has acted within 
     rather than outside its constitutional authority must rest 
     with the judicial branch of government.

  That is from Bruno v. Edwards, 517 So. 2d 818, a 1987 case. It is all 
over the country that this is done. I do not know what they have done 
in Colorado. They have done it in my State. They have done it in New 
York. They have done it in Georgia. They have done it in Wisconsin, 
California. All across the country they have taken balanced budget 
amendments, and there has been standing found and the courts have found 
those issues to be justiciable and indeed in a 14th-amendment case, 
Missouri versus Jenkins they ordered up taxes.
  Mr. BROWN. Let me reclaim my time, if I could.
  Mr. President, the statement that I made was not that it is 
impossible that you would ever have litigation. That certainly has 
never been my position, and it is not now. And if the Senator's point 
is that it is possible that you could have litigation over this 
question, I would certainly indicate to him I think he is right. It is 
possible you could have litigation come up.
  What we are dealing with here, though, is a question of whether or 
not this is going to engender a flood of litigation, a plethora of 
litigation, as has been indicated. That simply is not an accurate 
statement if you look at what has happened in the States of our 
country. It is simply inaccurate, and the proof--I have given proof in 
my State. We have not had a case in 60 years, and the one we did have 
60 years ago dealt with a side issue.
  Now, the Missouri versus Jenkins case that was referred to was a 
State action, and it dealt with the 14th amendment. It was not a 
balanced budget amendment case. So you can raise all sorts of specters, 
but let me suggest a test for all of these. Many Members honestly and 
sincerely think it is a mistake to have a limitation on spending. That 
is a difference between men and women of good spirit. While I am one 
who thinks the record shows that this country is not going to survive 
without a change in the way we appropriate money, while I am one who 
believes that some control on spending is essential to this Nation 
providing leadership in a world economy in the next century, I 
recognize that people of good spirit and good intentions may not share 
that view.
  But when the question is put, if this amendment is passed will people 
who currently oppose the amendment to the Constitution then vote in 
favor of the constitutional amendment, my understanding is that they 
will not. I think you have to ask yourself, is this amendment put 
forward to improve the constitutional amendment to balance the budget? 
I believe that is the intent of the Senator from Louisiana. It is a 
sincere effort to deal with a problem of excessive court involvement. I 
know he is sincere about that. I think the purpose of his amendment is, 
indeed, to improve this constitutional amendment.
  Mr. JOHNSTON. Will the Senator yield briefly on that point?
  Mr. BROWN. I will in just a moment.
  I think it is important to note that there does not appear to be 
anyone who is coming forward and saying look, if this amendment is 
adopted, we are willing to sign on and agree with you; limitations are 
important.
  I yield to the distinguished Senator.
  Mr. JOHNSTON. Mr. President, I just want to point out, right before 
this debate started there were, I believe, two Members who are 
undecided, on our side, who said in my presence right here that this 
amendment may determine how they vote. They will have to speak for 
themselves.
  I will tell my colleague privately who they were. I do not think I 
should use their names. They can speak for themselves. My question is, 
are there those on your side of the aisle whose votes you lose by 
making clear the jurisdiction of the court? My guess is you do not, 
because this is almost identical to the Danforth amendment which was 
passed in the last Congress without objection.
  Mr. BROWN. That is a fair and appropriate question. I suspect I have 
a responsibility to check on that.
  Mr. President, I wonder if the Senator from Louisiana would be 
willing to respond to a question of mine?
  Mr. JOHNSTON. Certainly.
  Mr. BROWN. I guess the question that occurs to me is, would it be the 
Senator's intent, if this constitutional amendment is passed and if 
Congress refuses to abide by that constitutional amendment, to preclude 
any enforcement of it through the courts?
  Mr. JOHNSTON. No. As a matter of fact, the amendment very 
specifically allows the Congress to implement the--to authorize 
judicial relief. But only to the extent that Congress specifically 
authorizes it.
  As I mentioned, the Congress may well want to, for example, say the 
court shall have declaratory relief; may be able to cut spending but 
not raise taxes; or you may want to have direct jurisdiction in the 
Supreme Court--original jurisdiction there, so as to expedite the 
hearings. There are all kinds of things we may want to do that would 
help clear up, for example, what happens in the bond market while these 
cases are moving through ever so slowly from all around the country. We 
ought to be able to deal with that in congressional legislation. I not 
only do not preclude that, I specifically authorize it in this 
amendment.
  The difference between that and the way we are now is it is unclear 
whether or not the courts have that inherent authority. If the Congress 
does not act, then it is my belief, along with Laurence Tribe and 
Robert Bork and Professor Dellinger, et cetera, that they would 
probably have that jurisdiction. I say: Make it clear.
  Mr. BROWN. At least my understanding is that Congress does have the 
ability to deal with that now.
  Mr. JOHNSTON. The Congress does have the ability under, I believe it 
is section 5--section 6, to do that. That is clear.
  However, upon failure to act by the Congress, then the courts would 
probably have this jurisdiction anyway. The difference between section 
6 of the amendment as presently stated and 
 [[Page S2703]] under my amendment, my amendment says that unless 
Congress specifically acts, there is no jurisdiction in the court. 
Whereas section 6 says the Congress may act, but in the meantime it is 
unclear what the authority of the courts is.
  Mr. BROWN. I wonder if the Senator has thought about spelling out in 
his amendment the kinds of appeals that he would have in mind? I think 
part of the concern as we look at the amendment is the concern that 
this could well end up sabotaging the balanced budget amendment, in 
that if the Senator spelled out the kinds of appeals he had in mind, it 
might go a long way toward generating support on it.
  Mr. JOHNSTON. What Senator Hatch has stated is that the court would 
have no jurisdiction. He says that is clear. I think it is demonstrably 
unclear.
  I think the question of how you spell out the jurisdiction and 
remedies ought really to take up some serious time of the Judiciary 
Committee: Bring in the legal experts, talk about whether you want to 
limit it to injunctive relief, whether you want to limit the power to 
enact taxes. All of those are very close and difficult legal questions 
that I think take a lot of thought, which are beyond my ability to 
spell out.
  I think you can spell out the broad constitutional terms right here. 
The court shall or shall not have power. But we would preserve that 
power of the Congress to do that. The real question is: Should the 
court have the power to order taxes, provide injunctive relief, make 
decisions, declaratory judgments, if the Congress does not specifically 
authorize it?
  I believe the answer to that is no. And that is why this amendment 
clears that up and makes it unambiguous.
  Mr. BROWN. I might say, Mr. President, at least my understanding, and 
the Senator may want to correct me if he feels I have misphrased it, my 
understanding is Senator Hatch's view is that the courts could not 
interfere with the budgetary process but that Senator Hatch does feel 
the courts should be able to give some limited relief.
  I think that may be a different way of describing the Senator's 
position. Obviously, Senator Hatch is quite able to describe his own 
position.
  Mr. JOHNSTON. My description of Senator Hatch's position is that he 
would like to have it both ways to satisfy those who think there ought 
to be court relief and to satisfy those who think there should not be 
court relief, because he has some of those voting for the amendment. I 
understand the position of my friend, Senator Hatch, which is he wants 
to pass the amendment, and that is fine.
  I have called into question the political calculus that says you lose 
votes by passing this amendment. I think you endanger, politically, 
this amendment by not clearing up this fundamental question.
  Mr. BROWN. Let me say I am shocked to hear that any Member of the 
Senate would want to have it both ways. I cannot imagine--it seems 
unprecedented--that any august Member of this body would take that 
position.
  Mr. JOHNSTON. One wants it this way and one wants it that way. You 
can sort of be all things to all people by saying: Well, it is clearly 
a settled question there is no standing to sue, so therefore the court 
will not get involved. But, on the other hand, there may be some cases 
that will need to come to the court, where the court will need to order 
some relief.
  The classic, to me, was Attorney General Barr, who said--this is 
really rich. First of all, he said:

       I do believe the Congress should consider including 
     language in the amendment that would expressly limit judicial 
     review to actions for declaratory judgment.

  Then he goes on to say:

       If, however, such a position would prove to be politically 
     unpopular, I believe, for the reasons detailed in my written 
     statement, that Congress can safely pass the amendment in its 
     current form without undue concern that the courts will 
     entertain large numbers of suits challenging Congress' action 
     on the amendment or that, even if the courts do entertain 
     some suits, they will order intrusive injunctive remedies.

  I mean, he says well, they are probably not going to do it. If they 
do, there will not be many. And even if they do a few, they will not 
order intrusive injunctive relief.
  What is intrusive? I would think Missouri versus Jenkins--if they got 
their foot in the door, and Solicitor General Barr says they might have 
some suits, having their foot in the door it does not take many orders 
of the Supreme Court increasing taxes to be pretty intrusive to the 
American people.
  Mr. BROWN. I thank the Senator for his comments. I, of course, am 
shocked that any Member would try and have it both ways as we go 
forward.
  But let me suggest----
  Mr. LEVIN. While the Senator is expressing his shock, I wonder if he 
will yield for additional comment?
  Mr. BROWN. No, I will not yield. Let me finish my statement, and then 
I will be glad to yield to the Senator.
  It is quite clear there is a distinction between remedies that the 
courts can give and their ability to bring relief. That is well 
established. I do not think anyone questions it. The courts cannot 
interfere with the budgetary process because it is a political 
question. I think that is well established. It would violate the 
separation of powers. Those are quite clear. The real question I think 
you get down to with this is do you want to find a way to wiggle out 
from even the very, very modest levels of discipline that this 
constitutional amendment would bring?
  My belief is that it is quite clear that the courts cannot get 
involved with a political question, that the talk about a 14th 
amendment case as applying here when it has not found that kind of 
action with regard to any of the balanced budget amendments that appear 
in any of the States is to raise a red herring. I do not mean it is not 
brought up in good faith. I share the view that the Missouri versus 
Jenkins case was not decided correctly. But it does not apply to the 
balanced budget amendments. It dealt with the 14th amendment.
  Let me just say one other thing. Any American that honestly believes 
that we can continue on the way we have been I think is kidding 
themselves. Any American that can look at the last quarter-century in 
which we have not balanced the budget one single solitary time and 
think that we are going to solve this without changing the system is 
kidding themselves. Whether Democrat, Republican, liberal or 
conservative, you are driving this train off a cliff. You are taking 
the future of this Nation, the future of our children and running it 
off a cliff.
  There may be Members who come to this floor and say, look. We can 
solve this thing. Just let us continue on the way we are, and say it 
sincerely. But I do not think it is true. I do not think you can look 
at what has happened and decide in any other spectrum that we have a 
train wreck ready to happen, that we are unable to help ourselves, that 
we have to have some discipline.
  The question I think that is fairly asked is, is this the right 
remedy? The American people ought to look at the States that have 
constitutional amendments that require a balanced budget. In Colorado 
we have had the constitutional mandate to balance the budget for over 
100 years. Of those over 100 years it has been balanced every single 
year. It has been balanced in good years and it has been balanced in 
bad years. It has been balanced when we have had a Republican 
administration and when we have had a Democratic administration. It has 
been balanced when we have had a Democratic legislature, and it has 
been balanced when we have had a Republican legislature, and it has 
been balanced because they had to do it. If you had not required them 
to do it, I guarantee it would not have gotten done.
  In the last 25 years, we have not had a single, solitary year, not 
one, where you have had a balanced budget. I do not think there is 
anybody in this Chamber--or at least not very many--who would come to 
the floor and say we have done a good job setting priorities. If 
anybody is comfortable with a program to subsidize tobacco at the same 
time you have a program to urge people not to use it, I want them to 
come forth and tell me about it. That is ludicrous. Whether you are 
from a tobacco State or not, to subsidize a crop that you turn around 
and urge people not to use and bill the taxpayers for both ends of it 
is stupid. That is what we are doing.
  We have a foreign assistance program that buys weapons for one 
country to 
 [[Page S2704]] counter the weapons we bought for another country which 
were given to counter the weapons we bought for the other country to 
begin with. That is nuts. We have refused to set priorities. That is 
just plain ludicrous.
  We have a farm program that results in people growing crops on land 
that are better suited to other crops. Does that make any sense at all? 
We literally grow crops on ground that would never be used for that 
purposes if you did not have a program like that. That is the silliest 
thing I ever heard of. And we continue to do it.
  If you think those examples are out of place, look at the rest of the 
way we spend our money. Does anybody believe that the Tea Tasting Board 
is a good idea? The National Jute Association or the International Jute 
Association? There is not one of these, there is not 10 of these, there 
is not 1,000 of these. There are thousands and thousands and thousands, 
and the reason they exist is we have not set priorities.
  The facts are these: We have not balanced the budget once in 25 
years. We have not balanced it when we have had a recession and we have 
not balanced it when we have had a boom.
  The President who says we can solve this without a balanced budget 
amendment sent us a budget the other day. The estimates I believe are 
inaccurate. But even if you accept the estimates, which incidentally 
include a suggestion that we are not going to have a recession in the 
next 5 years--and, if anybody wants to make a bet on that one, I would 
be glad to take their money--even with assumptions that you are not 
going to have a recession again, even with the assumptions that the 
rate of inflation is going to have less of an impact on increasing 
spending than it will on raising revenues. Let me be specific about 
that.
  They assume a rate of inflation that will increase revenue at a 
higher rate than you will increase the cost of programs. One level of 
inflation, and they assume that you are going to have a higher level of 
inflation for increasing revenue than you will have for increasing 
programs. It would be laughable if it were not so serious. Even with 
assumptions that by anybody's definition are creative, even with 
assumptions that say we are not going to have any new spending 
programs--and we have not had a Congress when you did not have new 
spending programs that I can recall--even with wild assumptions, even 
with no new programs, even with no emergencies, even with no waivers 
for the budget, the deficit continues on for a level of a couple 
hundred billion dollars. And CBO says that it is going to go up to 
above $400 billion by 10 years out.
  That is from the person who says we can solve this legislatively. It 
is nonsense. It is nonsense. To say no to a balanced budget amendment 
to the Constitution is to say no to our future, to gut this 
constitutional amendment from ever being able to be enforced is a 
travesty in this Member's view.
  Mr. JOHNSTON. Will the Senator yield?
  Mr. BROWN. If we are going to deal with this issue, we need an 
alternative. I have to tell you I think this balanced budget amendment 
that is before this body is far too weak. Colorado says you have to 
have a balanced budget. And we balanced it. This says you have to have 
a balanced budget unless 60 percent of Members vote to waive it. It is 
the softest, weakest, most ineffective balanced budget amendment I have 
seen. There may be others in the States that are weaker than this. But 
I do not know about them.
  This very, very, very modest form of discipline apparently is too 
much for people who believe that the future of our country is on 
uncontrolled spending. But let me tell you, Mr. President. This issue 
is a lot more important than Colorado or Louisiana or Michigan. This 
issue goes to the very heart of the future of this Nation and the 
future of the men and women who have their children and their 
grandchildren who are going to be raised in this country.
  This issue is a question of whether or not we are able to control the 
waste that has given us the biggest national deficit in the history of 
this country or the history of any country in the history of the world.
  Mr. JOHNSTON. Will the Senator yield at that point?
  Mr. BROWN. Let me finish my statement, if I could, because it seems 
to me we are overlooking the real problem. The real problem here is an 
appetite by this Congress for uncontrolled spending. The real problem 
here is an unwillingness to live by any limitation.
  Mr. President, I want to relate a fact to the Members in this body, 
because I think every one of them knows it and shares it. I came to 
Congress in 1981. We passed a budget, and the budget was not balanced. 
But what it said is the next year out it is going to be balanced. We 
are not balanced this year. But give us another year, and we will have 
it balanced. We had a plan to get there. We had limitations on 
spending, and projected tax revenue. What happened? What happened was 
this: Congress appropriated more money than they had allowed for in 
their own budget. They waived their own Budget Act. The fact was our 
estimates were overblown, and we exceeded our own spending limits. You 
would say, OK. That is one year out of one. That is not too bad. But 
what happened the next year? The next year we adopted a budget with the 
phony estimates in it. And that is exactly what they were. They were 
phony, and they were Reagan estimates, and I called them phony at the 
time. We adopted a budget with phony estimates in it, and Congress 
exceeded its own spending budget again. And everybody said next year. 
The next year we adopted a budget, and it said after a couple or 3 
years we are going to get down to a balanced budget. It had phony 
estimates in it, and Congress exceeded the amount that they allowed 
themselves to spend.
  Mr. President, that has happened every single, solitary year. It 
happened in 1981, it happened in 1982, and it happened in 1983 and 
1984, it happened in 1985, 1986, and 1987, 1988, 1989, 1990, 1991, 
1992, 1993, and 1994. Does anyone honestly believe it is not going to 
happen again and again and again? If you do not believe it look at the 
President's budget. Look at the assumptions that are in the President's 
budget. Come to this floor and honestly tell me you think we are on the 
right path.
  The simple facts are these: We are hoodwinking America. We have 
passed budgets every time in the last 15 years, and every time those 
budgets were not realistic, and every time those budgets were not 
followed and they are not going to be followed.
  We are debating an amendment that says we are going to eliminate the 
Court's ability to have any discipline here. It does not surprise me 
that this Congress does not want to have discipline over spending. But 
if anybody cares about the future of their kids and grandkids and what 
this country stands for, then they had better figure out a way to bring 
discipline to this place and figure out a way to have accurate 
estimates, better figure out a way to have us change our ways, because 
the reality is that this is shameful. The reality is that we have taken 
the future of the strongest, greatest Nation on the face of the Earth 
and we have thrown it in the trash because people did not have the 
courage and the willingness to stand up and eliminate wasteful spending 
and set priorities.
  I do not know how many people watch Presidential trips, but I can 
tell you it happens both in Democratic and Republican administrations. 
You have so many people that go with the President on trips, and it is 
shameful. Anyone who looks at the way Congress spends its money has to 
be shocked. Do you really need elevator operators on automatic 
elevators? Are Members really unable to push the buttons themselves? Do 
you really need a staff that is nine times bigger than any other 
country in the world has for its deliberative body? Incidentally, that 
is what our staff is, said the Congressional Research Service the last 
time they did a study on it. Does anybody believe we need 1,100 police 
officers on Capitol Hill? I mean, that is two, 2\1/2\ for every Member 
of Congress.
  Mr. President, this Congress is out of control. We desperately need 
controls. We desperately need discipline. To adopt an amendment that 
eliminates our ability to have this measure enforced, I think, turns a 
blind eye to the problem the American people have. I do not know 
whether this constitutional amendment is going to pass, but I will tell 
you one thing, the American people are not going to watch their future 
thrown down the drain.
   [[Page S2705]] This is a lot more important than Democrats or 
Republicans, a lot more important than party. It deals with the future 
of our country and of our children. I do not think anybody who believes 
you can continue on with the kind of abuse we have had for this system 
is looking at the world right. I have listened to the debate on the 
floor. I hear Members come to the floor say, goodness, the problem is 
not with Congress. The Congress' budgets have been less than what the 
President has asked for. That is right, but it is not accurate. The 
truth is, yes, the budgets Congress has passed have not been as large 
as what the Executive--sometimes--has asked for, but left unsaid in 
that is the fact that Congress has appropriated more than either they 
budgeted or what the President asked for in budgeting.
  To say that and describe the problem in that way simply misleads 
people. Congress has not been responsible when it has come to our 
budget. Yes, we have adopted budgets that look good at the time, but we 
did it with phony estimates and we turned around and ignored them.
  Mr. JOHNSTON. Will the Senator yield?
  Mr. BROWN. I think the point of all of this--and then I will yield--
is simply this: If we are looking for an answer to this problem that 
avoids discipline, that avoids controls, that avoids limits, we are 
going to fail.
  I yield the floor.
  Mr. JOHNSTON. Will the Senator yield for a question?
  Mr. BROWN. I am glad to yield.
  Mr. JOHNSTON. My colleague made a powerful speech--and I really mean 
that--for a balanced budget. But I do not understand him to be saying 
that the court ought to be the one to order a balanced budget, to order 
a tax increase, or to order spending cuts; am I correct in that?
  Mr. BROWN. Well, my belief is that political questions will not come 
out of the jurisdiction of the court. It seems to me there is an area 
for court jurisdiction here--enforcement.
  Mr. JOHNSTON. But is the Senator familiar with the fact that, in 
1982, two former attorneys general, Senators Gorton and Rudman, offered 
an amendment of the same import of my amendment today, and that 
although it was defeated, 12 Republicans who are still serving in the 
Senate voted for the amendment, including Senators Chafee, Cohen, Dole, 
Gorton, Hatfield, Kassebaum, Lugar, Murkowski, Pressler, Roth, Specter, 
and Stevens--that list includes some of the best lawyers in the 
Senate--and the point is, on this question of whether the courts ought 
to have jurisdiction--I think my friend would agree with me--is one 
that really merits some very serious thought; would the Senator not 
think?
  Mr. BROWN. I certainly agree. In terms of the other Members the 
distinguished Senator mentioned, I would leave it to them to defend 
their votes. I have enough trouble defending my own.
  Mr. JOHNSTON. Has the Senator voted on this question before?
  Mr. BROWN. I would be glad to check the record and let the Senator 
know.
  Mr. JOHNSTON. I would not think the Senator made the mistake of 
voting against this kind of amendment before. I do not believe he has, 
because it was passed in the last Congress, without objection. The 
Danforth amendment was passed in the last Congress, without objection. 
It truly has been a bipartisan amendment, where Senators on both sides 
have seen the real need to limit the intrusiveness of the courts. The 
power of the courts, once granted, can extend to raising taxes, as well 
as cutting budgets, and they are not elected. They do not represent the 
people and they should not be able to do it, except to the extent that 
we in the Congress give them the power to do it.
  I hope the Senator will come to my point of view. That has nothing to 
do with whether you are for this balanced budget amendment or not--just 
as those Republican Senators who voted in 1982 for the Rudman-Gorton 
amendment were supporters of the balanced budget amendment but wanted 
to limit the intrusive powers of the courts to get involved in this 
matter.
  Mr. BROWN. Let me suggest to my friend that while 1982 was not a long 
time ago, it was before the Lujan case, which occurred in 1992 and 
which, obviously, affects thinking in this area. Clearly, these Members 
will be able to speak for themselves and defend it as they wish. We 
have other requests for time, so I will yield the floor.
  Mr. LEVIN. Will the Senator from Colorado yield for a question?
  Mr. BROWN. Our time is limited. I will yield the floor, and I know 
the Senator will be recognized in due course by the Chair.
  Mr. JOHNSTON. Mr. President, I yield 10 minutes to the Senator from 
Michigan.
  Mr. LEVIN. I wonder if the Senator from Colorado will respond to some 
questions that I have of him on my time now. One of the things which 
the Senator from Colorado epitomizes is honesty and 
straightforwardness, and he, with great feeling, I think, expressed the 
view of all of the Members of this body, which is that we should not 
kid ourselves, that we ought to be honest. Honesty is something which 
he has reflected throughout his career, and I admire him for what he 
says, what he believes, what he feels and what he represents.
  The Senator has made some statements about the balanced budget 
amendment and how it is, in some respects, quite weak and not self-
enforcing which, frankly, I happen to share, but that is not the 
purpose of my question. The purpose of my question goes to the Johnston 
amendment and whether or not we should be honest as to whether or not 
the courts are going to be able to enforce the balanced budget 
amendment in the absence of legislation, pursuant to section 6.
  The Johnston amendment makes it very clear that we are able to 
authorize the court, if we adopt enforcement and implementation 
legislation, pursuant to section 6, to do whatever we authorize that 
court to do. But in the absence of implementation legislation, setting 
forth the authority of the court, the question is, honestly, what is 
the intention of this amendment? There is ambiguity, and if we are 
looking for honesty--and I believe we all are--we should clarify that 
issue. There is no reason to write a constitutional amendment which is 
ambiguous at the heart of the amendment which is: How is it going to be 
enforced? That is the heart of it. We can make all of the great 
statements we want about balancing the budget, and we have during the 
early 1980's.
  But the key to a constitutional amendment is how it is going to be 
enforced. The key to this constitutional amendment, as has been said 
over and over again by the sponsors, to section 6 which is the 
implementing legislation, implementing legislation which would be 
required of a future Congress.
  I have problems with laying this on the doorstep of a future 
Congress, because I think we ought to adopt implementing legislation. I 
do not think we ought to kick this can down the road up to 7 years. But 
that is a different speech. That goes to the question of just how 
effective this is as a budget balancing tool.
  My question of my friend from Colorado goes to the intent of the 
sponsors of this amendment as to court enforcement, and I have two 
questions. First, is it the intent, is it his understanding of the 
intent, that Members of Congress would have standing to file suit to 
enforce this constitutional amendment?
  Mr. BROWN. Well, the Senator is asking for a legal interpretation. I 
would be glad to supply that and I will supply it for both the Senator 
and for the Record.
  Let me say I think it is worthwhile noting here that none of the 
amendments to the Constitution--and, as you know, we have a number--
have included the language as suggested by the distinguished Senator 
from Louisiana. What is being suggested is different from what we have 
done with any other constitutional amendment.
  Second, we did have a proposal last year, I understand, that did 
limit appeals to declaratory judgments. That is the first time I am 
aware of--the distinguished Senators may wish to correct me--it is the 
first time I am aware of that you have had that added to a proposed 
amendment to the Constitution.
  Finally, let me suggest, I think it is section 2 of this amendment 
that deals with the question of whether or not those questions are left 
open or vague or unanswered. At least I think a fair 
 [[Page S2706]] reading of that section indicates that there is real 
guidance within the amendment itself.
  Mr. LEVIN. Specifically in section 2, what is the Senator referring 
to?
  Mr. BROWN. Let me get that section for you.
  Section 2 reads as follows:

       The limit on the debt of the United States held by the 
     public shall not be increased unless three-fifths of the 
     whole number of each House shall provide by law for such an 
     increase by rollcall vote.

  That, at least as I read the constitutional amendment, is where the 
real discipline of this matter is.
  Mr. LEVIN. My friend from Colorado points to something which has also 
been pointed to by other sponsors of this legislation, which is section 
2. But is it not true that section 2, in terms of that particular type 
of debt limit, requires Congress to act?
  Mr. BROWN. Sure.
  Mr. LEVIN. So that even section 2 depends upon implementation by 
Congress of a limit on the publicly held debt; is that correct?
  Mr. BROWN. I think the value of this, I say to my friend, is that 
while you are looking for a device that controls this and avoids ways 
for people to wiggle out of it, by focusing on what people borrow, we 
think that may be the single most effective enforcement device there 
can be.
  Mr. LEVIN. But my friend from Colorado is not responding to my 
question, which is: Is it not true that there is no current debt limit, 
as defined in section 2, which is a debt limit on the publicly held 
debt and, in order to establish such a debt limit, legislation would 
have to be passed?
  So again, it depends on a future Congress to establish a limit on the 
so-called publicly held debt, a limit which has not heretofore been 
established by statute; is that correct?
  Mr. BROWN. I think the Senator makes a valid point. There is no 
question that future Congresses obviously have to be involved in this 
decision, whether it is the discipline or whether it is the definition.
  Mr. LEVIN. The discipline which my friend refers to again depends on 
future Congress acting.
  I ask unanimous consent that a letter from the Attorney General to me 
stating exactly that be now printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                   U.S. Department of Justice,

                                Washington, DC, February 14, 1995.
     Hon. Carl Levin,
     U.S. Senate, Washington, DC.
       Dear Senator Levin: This responds to your letter to the 
     Attorney General of February 14, 1995, concerning the 
     proposed Balanced Budget Amendment to the Constitution. In 
     that letter you asked whether legislation setting a ``limit 
     on the debt of the United States held by the public'' would 
     have to be passed before Section 2 would have any force. 
     Section 2 states that any increase in the limit on such debt 
     must be passed by a three-fifths rollcoll vote of the whole 
     number of each House of Congress.
       We have consulted the Office of Management and Budget, 
     which has advised us that there is at present no statutory 
     limit on the ``debt of the United States held by the 
     public,'' the type of debt described in Section 2. Rather, 
     there is a limit on the ``public debt,'' which includes debt 
     held by the public and certain other debt, such as debt held 
     by the Social Security Trust Fund. Unless and until Congress 
     passes legislation establishing a limit on the type of debt 
     described in the amendment, the strictures against increasing 
     this debt limit would have no effect.
       Please do not hesitate to contact this Office if we can be 
     of assistance on this or any other matter.
           Sincerely,
                                                   Sheila Anthony,
                                       Assistant Attorney General.

  Mr. LEVIN. Because over and over again we have heard that section 2 
is the discipline. In fact, section 2 is only operative if a future 
Congress establishes something called a limit on publicly held debt--
publicly held debt.
  Mr. BROWN. I would beg to differ with my friend. I think the language 
of section 2 is quite clear, not vague. ``The limit on the debt of the 
United States held by the public shall not be increased unless three-
fifths of the whole number of each House shall provide by law for such 
an increase by rollcall vote.'' Obviously, it involves the Congress in 
several extents. One, of course, is the waiver should they vote---
  Mr. LEVIN. If I could interrupt my friend again. That is not the 
point I am making. Any increase in that debt would have to be voted by 
60 percent of the Senate. That is clear in the language. But the 
establishment of the limit itself would have to be, in the first 
instance, created by the Congress, because there is no such limit at 
the moment. Would the Senator from Colorado agree with that?
  Mr. BROWN. I think the Senator is right to point out that defining 
what the terms ``debt of the United States held by the public'' is 
indeed something that requires it.
  But I would point out---
  Mr. LEVIN. It requires Congress to act; is that correct?
  Mr. BROWN. Yes. Indeed, I think the Senator is correct. But I would 
point out on that that if that is the Senator's concern, let me suggest 
I think the words of that section are very clear. I do not mean to 
suggest to the Senator that creative minds that abound in this Congress 
and our courts could not find a way to misinterpret that. But I suspect 
that even the most creative minds would be pressed to find that 
language vague or unreasonable.
  Mr. LEVIN. I think it would be quite simple, actually, to have an 
argument as to what is meant by that term.
  Now to get back to my question. Is it the intent of the Senator from 
Colorado that a Member of Congress would have standing to file suits to 
enforce this constitutional provision?
  Mr. BROWN. That is an appropriate legal question. I would be glad to 
supply the Senator a legal memo to that effect, and I would be glad to 
put it in the Record.
  Mr. LEVIN. In that case, I will ask a second question. I think these 
are critical questions and I think we should get answers to them from 
the sponsors.
  Is it the intent of the Senator from Colorado that a court could 
invalidate an individual appropriation or a tax act?
  Mr. BROWN. Let me speak in reference to section 2. It seems to me, at 
least in regard to section 2, the device here that I think is so 
helpful, at least I like it very much, is that it limits Congress' 
ability to continue to borrow money in that regard and that indeed does 
have an impact on one's ability to fund new programs.
  The PRESIDING OFFICER. The time yielded to the Senator from Michigan 
has expired.
  Mr. LEVIN. Mr. President, I wonder if the Senator from Louisiana 
would yield me 5 additional minutes?
  Mr. JOHNSTON. I so yield.
  Mr. LEVIN. My question to the Senator from Colorado is: Is it the 
intention under this amendment that courts could invalidate the 
individual appropriations or tax acts? The Senator from Colorado 
repeatedly said that it is not the intention of the Congress, it is not 
the intention of this balanced budget amendment to have courts 
interfering with the budgetary process. That is what the Senator from 
Colorado has represented. It is not the intention of this amendment to 
have courts interfere in the budgetary process?
  My question is: Is it the intention of the sponsors or of the Senator 
from Colorado that a court could invalidate an individual 
appropriations or a tax act?
  Mr. BROWN. I am sorry.
  Mr. LEVIN. Does the Senator wish me to repeat the question?
  Mr. BROWN. Would you please?
  Mr. LEVIN. Is it the intention of the sponsors or the Senator from 
Colorado that a court could invalidate an individual appropriations or 
tax act?
  Mr. BROWN. It strikes me that the beauty of section 2 is that it 
places the limit on the amount we can borrow, which places then back in 
the hands of Congress the discretion as to what we fund and the limit 
discipline it places on us is our limit to add to the debt. So at least 
my impression would be Congress would retain the ability to make a 
decision as to where their limited funds would be allocated.
  Mr. LEVIN. Let me ask my friend from Illinois, because I do not think 
that is responsive to the question.
  The Senator from Illinois is on the floor. Is it the intention of the 
sponsors of this amendment that the court, without further authority 
under section 6, would have the power to invalidate an individual 
appropriation or a tax act?
  Mr. SIMON addressed the Chair.
   [[Page S2707]] The PRESIDING OFFICER. The Senator from Illinois.
  Mr. SIMON. Mr. President, in response, my instinct is that unless 
there was a blatant violation of the intent of this amendment, the 
courts would not get involved. We are not dealing with something like 
the 14th amendment where it is somewhat amorphous.
  Mr. LEVIN. The words ``blatant violation'' are all that have to be 
alleged in a suit brought in a court to then allow the invalidation of 
an appropriation or tax act.
  Is that what the Senator from Illinois is saying?
  Mr. SIMON. Mr. President, the answer is we can imagine all kinds of 
scenarios. But the reality is that we want to handle this ourselves. We 
do not want the courts to get involved. If some future Congress were 
just to blatantly say, ``We will ignore the Constitution,'' then the 
courts might get involved.
  The courts have only been involved in a tax matter in the Jenkins 
case in Kansas City where we have a different constitutional principle 
involved.
  In this amendment we are not talking about very precise things, but 
about a self-enforcing mechanism.
  Mr. LEVIN. Mr. President, since we are on my time, I say to the 
Senator from Illinois, I think the Senator from Pennsylvania wants to 
comment.
  Let me tell Members what the reason is that I am pressing folks on 
this. The key sponsor of this legislation in the House, Representative 
Schaefer of Colorado, who is the lead sponsor of Schaefer-Stenholm, had 
the language that we are debating now. He said the following: ``A 
Member of Congress or an appropriate administration official probably 
would have standing to file suit challenging legislation that subverted 
the amendment.''
  I want to read all three of these comments of Representative Schaefer 
and contrast this to the assurances that the Senator from Utah, I think 
in good conscience, gave as to his intention that there is no standing 
to sue on the part of Members of Congress, that the courts will not be 
able to intervene. And yet the sponsor on the House side states a very, 
very different intent, which is the reason we should adopt the Johnston 
amendment, because there is not only ambiguity among law professors, 
there are differences between sponsors on this side and sponsors on the 
House side.
  The second statement of Representative Schaefer: ``The courts * * * 
could invalidate an individual appropriation or tax act.'' Think about 
that. Here we are told there is no intention for courts to be involved 
in the budgetary process. The principal sponsor on the House side says 
under this amendment a court could invalidate an individual 
appropriation or tax act. If that is not meddling in the budgetary 
process, I do not know what it is.
  Finally--I think my time is run out. I yield the floor.
  I ask unanimous consent that a copy of the statements of 
Representative Schaefer, along with the accompanying letters, be 
inserted in the Record at this time.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                                  U.S. Senate,

                                Washington, DC, February 14, 1995.
     Hon. Janet Reno,
     Attorney General of the United States, Washington, DC.
       Dear Madam Attorney General: Enclosed is a copy of the 
     proposed Constitutional Amendment relative to the balanced 
     budget. My question is the following:
       The Committee Report states (p. 8) that the amendment is 
     ``self-enforcing'' because of Section 2, which requires a 
     three-fifths vote to increase ``[t]he limit on the debt of 
     the United States held by the public.'' Is Section 2 self-
     enforcing, or must Congress act pursuant to Section 6 to 
     adopt enforcement and implementation legislation for this 
     provision to be legally enforceable?
       I would appreciate your very prompt reply, given the fact 
     that we are debating this amendment at the current time.
       Thank you.
           Sincerely,
     Carl Levin.
                                                                    ____

                                   U.S. Department of Justice,

                                Washington, DC, February 14, 1995.
     Hon. Carl Levin,
     U.S. Senate, Washington, DC.
       Dear Senator Levin: This responds to your letter to the 
     Attorney General of February 14, 1995, concerning the 
     proposed Balanced Budget Amendment to the Constitution. In 
     that letter you asked whether legislation setting a ``limit 
     on the debt of the United States held by the public'' would 
     have to be passed before Section 2 would have any force. 
     Section 2 states that any increase in the limit on such debt 
     must be passed by a three-fifths rollcall vote of the whole 
     number of each House of Congress.
       We have consulted the Office of Management and Budget, 
     which has advised us that there is at present no statutory 
     limit on the ``debt of the United States held by the 
     public,'' the type of debt described in Section 2. Rather, 
     there is a limit on the ``public debt,'' which includes debt 
     held by the public and certain other debt, such as debt held 
     by the Social Security Trust Fund. Unless and until Congress 
     passes legislation establishing a limit on the type of debt 
     described in the amendment, the strictures against increasing 
     this debt limit would have no effect.
       Please do not hesitate to contact this Office if we can be 
     of assistance on this or any other matter.
           Sincerely,
                                                   Sheila Anthony,
     Assistant Attorney General.
                                                                    ____


    Statements of Representative Dan Schaefer, Lead Sponsor of the 
        Schaefer-Stenholm Substitute to House Joint Resolution 1

       A member of Congress or an appropriate Administration 
     official probably would have standing to file suit 
     challenging legislation that subverted the amendment.

                           *   *   *   *   *

       The courts could make only a limited range of decisions on 
     a limited number of issues. They could invalidate an 
     individual appropriation or tax Act. They could rule as to 
     whether a given Act of Congress or action by the Executive 
     violated the requirements of this amendment.

                           *   *   *   *   *

       . . . no role for the courts is foreseen beyond that of 
     making a determination as to whether an Act of Congress . . . 
     is unconstitutional and a court order not to execute such 
     Act. . . .

  Mr. JOHNSTON. Mr. President, I yield 15 minutes to the Senator from 
Wisconsin.
  Mr. FEINGOLD. Mr. President, I rise in strong support of the 
amendment offered by the distinguished Senator from Louisiana which 
would make it clear that the balanced budget amendment cannot be used 
to turn over to the judicial system the responsibilities of managing 
the fiscal obligations and priorities of the United States.
  The amendment of the Senator from Louisiana would make clear we do 
not intend that unelected judges would assume the power to set tax 
rates or impound Social Security checks of elderly citizens in order to 
comply with the constitutional mandate that is created through the 
balanced budget amendment.
  Mr. President, there is probably no more significant amendment that 
will be offered during this entire debate on the balanced budget 
amendment. It goes to the very heart and structure of our system of 
government which we established over two centuries ago.
  Unless the Johnston amendment is adopted, the constitutional 
amendment we are debating could be construed to authorize Federal and 
State courts to intervene into the most political decisions now made by 
elected officials, including decisions about levying taxes and spending 
the revenues raised on national priorities that are established through 
our democratic process.
  Instead, Mr. President, individuals appointed, not elected, to 
lifetime judicial seats could become intimately involved in these 
matters. The independent judiciary, of course, is as important to our 
system as any other element, one of the most important. We do intend 
that our judges be free from partisan pressures. We intend that they 
make decisions based upon the law, not upon opinion polls or election 
returns.
  That structure is also based on something else, Mr. President. It is 
based upon the assumption that those courts with unelected leadership 
will not be given the responsibility for actions which are intended and 
reserved for elected officials, those in the legislative and executive 
branches.
  If the balanced budget amendment is added to the Constitution without 
an amendment which clarifies and limits the potential role of the 
courts in establishing fiscal priorities for the Federal Government, we 
will have suddenly opened the door to one of the most radical 
restructurings of our system at any time in our history.
  I assume in the last Congress, Mr. President, concerns about this 
issue led 
 [[Page S2708]] to the adoption of the so-called Danforth amendment 
which specifically restricted the role of the courts in enforcement of 
the balanced budget amendment to the issuance only of declaratory 
judgments. We do not have that here in this amendment now. We do not 
have that restriction. Indeed, some of the most stalwart proponents of 
the amendment have conceded that without clear limitations, either in 
the amendment itself or the implementing legislation, the judiciary 
could become intimately involved in actually directing compliance with 
the balanced budget amendment.
  Now, of course, the response to these concerns has uniformly been, 
``Do not worry about the details; we will fix it later.'' That is what 
we are told about all of our amendments. Repeatedly it is asserted that 
this issue can be addressed simply by implementing legislation.
  Now, the Judiciary Committee report accompanying Senate Joint 
Resolution 1 suggests that the silence of the amendment on the issue of 
judicial review is somehow a good thing, a virtue, asserting that 
through this silence the authors have refused to establish a 
congressional sanction for the Federal courts to involve themselves in 
fundamental macroeconomic and budgetary questions while not undermining 
their equally fundamental obligation to say what the law is.
  The proponent goes on to say to the extent that we do have any 
judicial intrusion, it can be reigned in later on by having 
implementing legislation.
  Mr. President, that is the classic sidestepping of critical decisions 
that has engendered public disdain for this body and for elected 
officials in general. It is irresponsible and an abdication of our most 
awesome duties to have failed to address this issue in a forthright and 
honest manner.
  The role of the courts in enforcement of this amendment ought to be 
resolved now, not sometime later. This is when we send it out to the 
States, not later.
  Mr. President, this entire debate over the balanced budget amendment 
has become somewhat troubling. We seem to be rushing the proposal 
through to meet an arbitrary deadline that was originally set up as a 
campaigning proposition. There has been little serious debate over the 
words of the proposed constitutional amendment. We are constantly 
diverted from any real discussion of the problems that should be 
addressed before this language is placed in the Constitution to a 
generalized discussion of Federal deficits and their impact on the 
national economy.
  Mr. President, I suggest that for a moment we set aside these 
generalities and focus on the language of the balanced budget amendment 
that we are considering, and specifically the role of the courts. I 
strongly urge the supporters of the amendment to consider the Johnston 
amendment on the merits and not just vote it down again because of some 
prearranged agreement to defeat any and all amendments. That is not 
appropriate when we are talking about the most fundamental issue of the 
separation of powers that this country is founded upon. It is not 
appropriate, not in the U.S. Senate.
  This is a constitutional amendment we are debating and we may well be 
sending on to the States. We better take the time to ensure that we 
have not created unintended consequences by careless wording of the 
amendment.
  Mr. President, the ratification of the balanced budget amendment 
without the Johnston amendment will result in judicial involvement in 
its implementation. I think that is virtually without question.
  The Constitution of the United States has been amended only 27 times 
in over 2 centuries. Ten of those amendments comprise the Bill of 
Rights. Three others, the 13th, 14th, and 15th, arose out of the Civil 
War.
  Our Founding Fathers made it difficult to amend our great national 
charter, and rightly so.
  A constitution is designed to endure for the ages, not merely reflect 
the passing issues of the day.
  Once altered, it is very difficult to change.
  For example, the 18th amendment, Prohibition, was ratified in 1919. 
It was a mistake. It inserted government into the private lives of 
citizens. It was widely flaunted and bred disrespect for the law. It 
was not repealed until 1933 by the 21st amendment. It took 14 years to 
undo that error.
  An amendment to the Constitution is not like any ordinary legislative 
matter that we can change next year when we find out that it does not 
work exactly as intended.
  The Constitution is not something we can tinker with and adjust from 
one Congress to the next.
  If the 104th Congress is intent upon adding the balanced budget 
amendment to the Constitution of the United States, then we better do 
it right.
  We better take the time to ensure that we have not created unintended 
consequences by careless wording of the amendment.
  Let us not allow legitimate frustrations over the Federal deficit 
inadvertently lead to a radical restructuring of our entire system of 
governance.
  Mr. President, that ratification of the balanced budget amendment 
without the Johnston amendment will result in judicial involvement in 
its implementation is virtually without question.
  Legal scholars from left to right agree that the balanced budget 
constitutional amendment will force the courts into potentially endless 
litigation over its enforcement.
  Former Solicitor General and Federal Judge Robert Bork said,

       The result . . . would likely be hundreds, if not 
     thousands, of lawsuits around the country, many of them on 
     inconsistent theories and providing inconsistent results.

  Kathleen Sullivan, professor of law at Stanford University similarly 
observed,

       . . . enforcement of the Balanced Budget Amendment would 
     inevitably wind up on the doorsteps of the state and federal 
     courts, and ultimately at the Supreme Court.

  She further testified,

       . . . the possibilities for litigation over balanced budget 
     compliance are staggering. Judges [might be asked] to enforce 
     balanced budgets either by enjoining excess spending or by 
     ordering tax increases, the latter possibility no mere 
     phantom after recent decisions by the Supreme Court upholding 
     . . . federal judicial power to require the levy of a tax.

  Yale University professor of law, Burke Marshall, had this to say:

       I have little doubt that the courts ultimately would, 
     however reluctantly, exercise the power of judicial review 
     over such questions as the meaning of the language [used in 
     the Amendment].

  Although some may hope that the dictates of the amendment would be 
self-enforcing and self-policing by the Congress, there is little basis 
for such speculation. There is a virtual endless list of situations 
where litigation is likely to result from efforts to interpret or 
enforce the amendment.
  Courts will be asked to interpret the language of the amendment, 
including such questions as what constitutes total outlays and total 
revenues. These terms are not self-evident and are not likely to be 
self-evident to future generations.
  Litigation will surely ensue to determine what activities are or are 
not covered by the amendment.
  Almost unbelievably, the Judiciary Committee report, for example, 
makes the remarkable observation that the electrical power program of 
one quasi-public entity, the Tennessee Valley Authority, would not be 
covered by the amendment since its operations are entirely the 
responsibility of the electric ratepayers. Not only is the naming of 
this one agency remarkable, it clearly opens the door to many other 
quasi-public entities seeking similar status. As the author of 
legislation introduced on January 4, S. 43, to terminate some of the 
public funding of TVA programs and develop privatization plans for this 
entity, because I wanted to identify and show where I would create the 
balanced budget. I am both intrigued and perplexed by the decision to 
specifically exempt the Tennessee Valley Authority as a part of this 
balanced budget amendment process that supposedly is neutral as to what 
would and would not be included.
  Courts will be asked to hear challenges to the executive branch 
efforts to carry out the constitutional mandates. For example, if 
outlays exceed revenues in any fiscal year, the President could argue 
on constitutional grounds that it is necessary to impound funds and 
take other actions unilaterally to meet the requirements of balanced 
budget amendment. As 
 [[Page S2709]] Presidents test these powers, surely those affected 
will seek judicial review.
  For example, during the 1970's there was substantial litigation over 
the Presidential assertion of impoundment authority. Roughly 80 cases 
were decided by the courts on impoundment questions, generally against 
the broad interpretation of such power advanced by the Nixon 
administration. Passage of the Impoundment Control Act of 1974 brought 
that litigation to rest.
  Yet, backed by a new constitutional balanced budget amendment, many 
believe that the President would have not only the authority to impound 
appropriated funds, but would have an obligation to do so under the 
constitutional mandate.
  Surely, individuals whose retirement checks are withheld or Federal 
employees whose salaries are reduced by executive fiat would very 
likely have standing to sue under this amendment.
  Louis Fisher of the Congressional Research Services noted in 
testimony to the Senate Appropriations Committee that the experience in 
the States indicates that courts could well be asked to monitor 
spending, taxing, and indebtedness actions.
  Mr. Fisher observed, ``If state actions are a guide, judges will not 
be shy about tackling budgetary and fiscal questions, no matter how 
complex.''
  Former Solicitor General Charles Fried also testified before the 
Appropriations Committee that ``[t]he experience of state court 
adjudication under state constitutional provisions that require 
balanced budgets and impose debt limitations * * * shows that courts 
can get intimately involved in the budget process and that they almost 
certainly will.''
  Cases will also arise when Members of Congress seek to challenge the 
actions of the executive branch.
  One of my former professors, Prof. Archibald Cox, observed, ``There 
is * * * substantial likelihood that the Federal courts will be drawn 
in by congressional suits.''
  The Supreme Court has recently assumed that either House has standing 
to sue to enjoin action rendering its vote ineffectual, Burke versus 
Barnes (1987).
  Thus, if the President impounded funds appropriated by Congress on 
the grounds that anticipated revenues had fallen short of projections, 
either House might challenge such action and, again, as the Senator 
from Louisiana so well points out, we have the strong likelihood of the 
courts being involved. Although the question of when individual Members 
of Congress might have standing to pursue such actions remains open, 
the standing of Congress itself to assert its prerogatives seems 
clearly established.
  Finally, there are strong arguments to be made that individual 
taxpayers could have standing to bring suit to challenge a failure to 
enforce the amendment.
  Harvard Law Prof. Archibald Cox observed in his testimony before the 
Appropriations Committee last year that if the Supreme Court's 
formulation of standing in Flast versus Cohen, the seminal taxpayer 
standing case, is taken at face value, a Federal taxpayer would surely 
have standing to challenge an expenditure under the proposed amendment 
upon the allegation that it had resulted or would result in a violation 
of the specific limitation imposed by section 1 of the amendment.
  Certainly, taxpayer suits in the State courts are well-known, and the 
amendment does not restrict litigation to the Federal court system. 
Absent a provision placing exclusive jurisdiction in the Federal court 
system, the issue of State court litigation remains a viable option.
  This nightmare of litigation will likely have three major results.
  First, it will insert judges into policymaking functions that are 
unprecedented, for which they have no experience or judicially 
manageable standards to guide their decisions. That courts would take 
on such tasks as levying taxes is not mere speculation; the 1990 
decision of the Supreme Court in Missouri versus Jenkins, upholding a 
district court decision directing a local school district to levy a tax 
in order to support a target school required in a desegregation order 
makes it clear that this is a very real possibility.
  Second, it would entail a radical and fundamental transformation of 
roles assigned to the different branches of government in this country.
  As Nicholas Katzenbach testified,

       * * * to open up even the possibility that judges appointed 
     for life might end up making the most fundamental of all 
     political decision is not only an unprecedented shift of 
     constitutional roles and responsibilities but one that should 
     be totally unacceptable in a democratic society.

  Third, and equally important, this shift in power to the judiciary 
could do incalculable damage to the judiciary itself. As Federal courts 
take on the task of enjoining the expenditure of funds appropriated by 
Congress or requiring the levy of specific taxes, the backlash toward 
judicial fiats could be enormous. Ultimately, the very effectiveness of 
the courts in preserving constitutional rights and liberties of 
citizens could be undermined.
  The answer to these concerns which has been made by the opponents of 
this amendment has been singularly unsatisfactory. Repeatedly, we are 
told, ``we will deal with the problem in the implementing 
legislation.''
  Well, Mr. President, the short answer is what if Congress fails to 
agree on implementing legislation?
  What if the President vetoes any implementing legislation passed by 
Congress and Congress lacks the two-thirds majority needed to override 
such a veto?
  Is there any serious doubt that the judicial branch has the ability 
to enforce a constitutional mandate even in the absence of implementing 
legislation?
  It is hornbook law that the Federal courts have the duty to enforce 
constitutional requirements.
  There is no implementing legislation for the first amendment, or the 
fourth amendment or the sixth amendment. The power of the courts to 
enforce the constitution arises from the constitution itself, as was 
held in Marbury versus Madison, very early in our country's history.
  As Assistant Attorney General and former Duke Law School Professor 
Walter Dellinger testified before the Senate Judiciary Committee last 
month,

       Section 6 of the Balanced Budget Amendment does give 
     Congress affirmative authority to legislate implementing 
     legislation. But unless that authority is deemed exclusive, 
     it does not oust the courts of jurisdiction to act without 
     any implementing legislation, just as the courts are able to 
     act under section 1 of the 14th Amendment.

  Mr. President, before I conclude, let me address one last argument, 
the political question argument, advanced by proponents of the 
amendment who belive that judicial intervention into the budget process 
is not likely to follow ratification of the amendment. The proponents 
argue that the courts are likely to use the political question doctrine 
to duck deeper involvement into budgetary decision making. The 
constitutional scholars, pointed out before the committee that the 
questions which are likely to arise under the balanced budget amendment 
simply do not meet the criteria established under Baker versus Carr 
(1962), which lays out the political question doctrine. Moreover, 
recent cases have suggested a narrowing of the political question 
doctrine.
  In light of the legislative history of this amendment and the 
presumption by both proponents and opponents that the courts will have 
some powers to hear cases involving its implementation, there is little 
likelihood that the political question doctrine will shield the 
amendment from judicial review.
  Mr. President, in the Federalist No. 78, Alexander Hamilton warned 
that ``there is no liberty, if the power of judging be not separated 
from the legislative and executive powers.''
  If the Johnston amendment is not adopted, we run the grave risk of 
creating precisely the kind of peril against which Hamilton warned: and 
the peril is allowing unelected judges to decide policy questions that 
have heretofore been dealt with by the legislative and executive 
branches of our Government.
  To embark in that direction is the height of foolishness.
  Those on the other side of this debate who call themselves 
conservatives ought to be among the first to cosponsor and applaud the 
amendment of the Senator from Louisiana.
  Why leave this important issue of whether unelected judges should 
have 
 [[Page S2710]] the authority to make economic decisions unresolved?
  Why would the Senate abdicate its responsibility? I have authored a 
lot of amendments here, Mr. President. I may have more. I care about 
them all--middle-class tax cut, tax expenditures, issues having to do 
with how this amendment is set up. I would happily drop all those 
amendments if we could just solve this fundamental problem and if we 
could just resolve, through the Johnston amendment, the question of 
whether we are going to turn over this Government to the unelected 
judges or whether we are going to maintain our right and our 
responsibility to uphold the Constitution and deal with budgetary 
matters.
  Mr. President, there is no question, of any amendment, this is the 
one that should be adopted.
  Mr. SANTORUM. Will the Senator from Wisconsin yield?
  The PRESIDING OFFICER. Will the Senator yield to the Senator from 
Pennsylvania? Who yields time?
  Mr. SANTORUM. Does the Senator have time left?
  The PRESIDING OFFICER. The Senator has 2 minutes left.
  Mr. SANTORUM. Will the Senator yield for a question?
  Mr. FEINGOLD. I yield for a question.
  Mr. SANTORUM. The question I have is, given everything the Senator 
says will happen--all these suits occurring, et cetera--is there not 
specific authority in section 6 of this amendment for Congress to pass 
implementing legislation wherein we can specifically limit the ability 
of taxpayers, Members of Congress and others to sue on this amendment? 
Is that not the ability of the Congress to do even prior to maybe even 
ratification by the States? Could we not have legislation moving 
through the process to do that?
  Mr. FEINGOLD. Surely there is a possibility we could try to pass that 
language and that would help. What I am suggesting here is, under the 
balanced budget amendment and under the inherent powers of the court to 
enforce the balanced budget amendment, that that may well be overridden 
by the power of the courts to take those suits and these folks would 
have standing.
  Mr. SANTORUM. I did not understand, what would be overridden by the 
courts, our implementing legislation?
  Mr. FEINGOLD. I am suggesting that simply barring those particular 
lawsuits, or attempting to, may not be consistent with the court's 
ruling of his inherent powers in this situation.
  Mr. SANTORUM. The Senator is suggesting the Congress cannot limit 
suits? That is not within our ability to redress to the courts----
  Mr. FEINGOLD. I am suggesting in the situation where the budget is 
not balanced, where there is a problem with the entire balanced budget 
amendment and the balancing of the budget, that the courts are going to 
have a certain amount of inherent power to enforce the amendment. I do 
not deny Congress certainly has some power.
  Mr. SANTORUM. Could we not limit them to simply declaratory judgment? 
Is the Senator saying the courts could go beyond that even though 
Congress limits them to simply declaratory judgment?
  Mr. FEINGOLD. Is that the Senator's intent?
  Mr. SANTORUM. If we did that in the implementing legislation, to 
limit them to declaratory judgment, is the Senator suggesting the 
courts can ignore that?
  Mr. FEINGOLD. I am suggesting it is possible that subsequently the 
U.S. Supreme Court could rule that the balanced budget amendment, that 
would derogate from the balanced budget amendment and take away the 
power of the people to have a balanced budget by taking away the right 
to enforce it. If you do not include in the constitutional amendment 
itself, if you do not specify in the Constitution that statutory 
provision cannot necessarily be interpreted by the U.S. Supreme Court 
to derogate to the balanced budget amendment. I am not convinced of 
that at all.
  Mr. SANTORUM. I can read to the Senator, if he would like, example 
after example--I would like to submit it for the Record--of where the 
Congress has specifically limited the powers of the courts dealing with 
these kinds of matters.
  Mr. FEINGOLD. That is under the current Constitution; this is under a 
new Constitution, one with a balanced budget amendment in it. The 
courts do not currently have a balanced budget amendment to deal with.
  What I am suggesting is, if you have a balanced budget amendment, and 
later on you decide that you want to have a statute, it is not certain 
that the court would rule that that limitation----
  Mr. SANTORUM. Does not----
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. SANTORUM addressed the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. FEINGOLD. It may be unconstitutional.
  Mr. SANTORUM. Mr. President, I would like to yield myself some time 
to address this issue.
  Section 6 of the constitutional amendment which we are discussing, 
the balanced budget amendment, specifically states that Congress has 
the ability to pass implementing legislation. In that legislation we 
can limit the authority of the courts----
  Mr. FEINGOLD. Will the Senator yield for a question?
  Mr. SANTORUM. To address this question.
  Mr. JOHNSTON. Will the Senator yield?
  Mr. SANTORUM. Even assuming the worst case, assuming that the sky 
will fall down----
  Mr. FEINGOLD. Will the Senator yield for a question?
  Mr. SANTORUM. We have the ability here in this Chamber and across the 
aisle to deal with this issue, and in fact I suspect that as we do pass 
implementing legislation, which I am sure we will, we will be back on 
this floor and I think that is the arena for this discussion as to what 
the appropriate remedies should be.
  Mr. FEINGOLD. Will the Senator yield for a question?
  Mr. SANTORUM. I will be happy to yield for a question.
  Mr. FEINGOLD. I would ask the Senator's reaction to the statement of 
Solicitor General Freed with regard to this issue where he said that if 
Congress attempted to pass legislation pursuant to section 6 to 
eliminate Federal court jurisdiction of questions arising in the 
balanced budget constitutional amendment, that limitation itself might 
very well be unconstitutional.
  That is my point. You may want to pass legislation afterwards. You 
may hope that the court will accept it. But there is no certainty 
whatsoever that the court will not say, I am sorry. This is merely a 
statute. And my question is, how does the Senator react to the 
question?
  Mr. SANTORUM. I disagree. It has been law in this country for as far 
as I know. The only situation where that could be a problem is if all 
due process, all other court access is denied. If we provide for some 
court access, which I am sure we will, if we provide for some court 
access, then I think it is very clear that they will not have other 
recourse--as long as we provide an avenue to the courts. We have the 
power to do that, to direct what avenue they take.
  If we say in the implementing legislation that there will be no 
access, I think the Senator might have a point. But I do not think we 
are going to do that. But I think that is a discussion for another day, 
not to insert in the Constitution in this amendment a complete 
prohibition of all court activity because I think that overreaches.
  Mr. JOHNSTON. Will the Senator yield?
  Mr. FEINGOLD. Will the Senator yield for a further question?
  Mr. SANTORUM. I will briefly yield and then I wish to respond to the 
Senator from Michigan.
  Mr. JOHNSTON. I think the Senator brings up an important and close 
point and that is whether the phrasing in section 6, where Congress 
shall enforce and implement the article, whether a denial of 
jurisdiction, a denial of all remedies would be considered to be 
enforcing and implementing. This same kind of language is in section 5 
of the 14th amendment. I am quite familiar with this because I had an 
amendment here which I passed twice in the Senate, invoked cloture 
twice on it, to 
 [[Page S2711]] limit busing under the 14th amendment, and the question 
was addressed by the then Attorney General as to whether that 
limitation was implementing the 14th amendment, and the decision of the 
Attorney General was not altogether satisfactory. Suffice it to say, 
there would be a real question as to whether that would be implementing 
and enforcing if you denied all jurisdiction. But it seems to me that 
is not the important----
  Mr. SANTORUM. If I can take my time back, I would agree with the 
Senator that I think we could run into problems if we denied every 
access to the courts. I am suggesting that I do not believe that will 
be the case. I think there will be some sort of relief provided for in 
the implementing legislation. And if we did not, I think we would have 
some sort of constitutional question. But I am saying that is an issue 
we should bring to the floor and discuss, but we should not do a 
complete ban on any kind of redress to the courts. I think it is unwise 
just from a policy perspective. But I think it does not have a place in 
the Constitution as far as I am concerned.
  Mr. JOHNSTON. If the Senator will yield just for one statement----
  Mr. SANTORUM. Yes.
  Mr. JOHNSTON. Which is that under my amendment we do not prohibit the 
Congress from acting. To the contrary, we say that the court shall have 
no jurisdiction except to the extent that Congress specifically acts. 
So we allow that. We contemplate it. We encourage it. And Congress 
ought to act. On that the Senator and I agree.
  The question is if Congress does not act, what is the inherent power 
of the Court? And we wish to make it clear that they have no inherent 
power except to the extent we give it to them.
  Mr. SANTORUM. All I would suggest is that implementing legislation 
certainly must follow. It is a certainty that it will follow this 
legislation, and I think we will provide, I know we will provide some 
remedies therein to provide for redress of this grievance with respect 
to the question that the Senator from Michigan brought up. It is a good 
question. The question is whether a citizen or someone would have 
standing to bring here.
  Standing is one issue. Whether they would be successful is another 
issue. Standing is the first hurdle that someone must pass.
  With respect to that question, there is a three-part test that is 
used, that has been used for quite some time, and number one, the 
citizen must show injury in fact. I think that is a very high hurdle, 
for one individual to show a personal injury due to the fact that we 
have an unbalanced budget, and in fact we have cases that are very 
clear on that: Frothingham versus Mellon, a very old Supreme Court case 
still in effect, a 1923 case, says that allegations that amount to 
generalized grievance are not justiciable.
  That to me is a pretty clear indication that you have a high burden 
upon just the first leg of this three-part test to cover.
  No. 2, you have to show that one particular piece of legislation 
caused the unbalancing. Well, which one caused the unbalancing? How do 
you go about attacking that one as the one that did it? I think that 
also raises a very difficult question.
  And finally--and we have talked about this briefly--whether it is a 
redressable grievance. What can the Court do to solve this problem? And 
you run into the political question doctrine and a whole lot of other 
things about whether the Court can reach over into article I and impose 
taxes under a balanced budget amendment. I think that is a very tall 
order, for the courts to say that they have that kind of power in that 
branch of the Government when it is very clear that article I says that 
Congress has the power to tax and to spend.
  Mr. LEVIN. Will the Senator allow a response to that?
  Mr. SANTORUM. I promised the Senator from Illinois I would yield him 
some time, so I will yield to the Senator from Illinois 5 minutes.
  The PRESIDING OFFICER. The Senator from Illinois.
  Mr. SIMON. I thank the Chair.
  Let me just make a few observations. First--and I do not question the 
sincerity of my colleague from Louisiana at all on this; I know he is 
sincere--some who attack this are going to attack it no matter what. 
One former Member of this body was attacking this because the courts 
were going to intervene, and then we adopted the Danforth amendment, 
and he attacked it because it was toothless and it was unenforceable. 
It is kind of a no-win situation for some of the opponents.
  Second, in terms of a precedent for what you are talking about, court 
intervention, the only real precedent is the Jenkins case in Missouri 
where you are dealing with individual rights and something that is not 
real clear. Here you are talking about an institutional situation where 
we can precisely measure what has happened. I think on balance the risk 
is very small. And I would quote from former Attorney General Barr.

       I see little risk that the amendment will become the basis 
     for judicial micro- management or superintendence of the 
     Federal budget process. Furthermore, to the extent such 
     judicial intrusion does arise, the amendment itself equips 
     Congress to correct the problem by statute. On balance, 
     moreover, whatever remote risk there may be that courts will 
     play an overly intrusive role in enforcing the amendment, 
     that risk is, in my opinion, vastly outweighed [vastly 
     outweighed] by the benefits of such an amendment.

  We clearly have the ability to determine who has standing. Now, 
obviously--and I heard my friend from Michigan, Senator Levin, quote 
Congressman Schaefer. I differ with Congressman Schaefer in terms of 
what our implementing legislation should be, and I think the majority 
in the House and Senate will.
  I think standing ought to be limited to, perhaps, 10 Senators, 30 
House Members, 3 Governors--something along that line--and limited 
solely to the Federal courts. I think we can pass something like that 
so there is not going to be, in any event, just a huge amount of 
litigation even if you try stretching your imagination.
  I point out, also, we can avoid all of this by building small 
surpluses, as Alan Greenspan, Fred Bergsten, and other economists have 
recommended that we do. If we do not have surpluses, if we have a 
situation, with a 60 percent vote, we can have a deficit. And it takes 
a 60 percent vote to add to the debt. These are very precise 
measurements. We are not talking about individual rights where there 
may be strong disagreements.
  I point out also, and my colleague from Colorado, Senator Brown, 
pointed this out in committee when we had the hearing, that States have 
somewhat similar provisions, 48 of the 50 States, in their State 
constitutions. There has been almost no litigation on this. So the 
history of States suggests this will not happen. Senator Brown 
mentioned in the history of Colorado's provision, there has been no 
litigation on this question.
  Does that mean the courts cannot ever get involved? The answer is, if 
we blatantly ignore the Constitution, then there is a narrow window for 
the courts to get involved. That window, I think, should remain open. I 
do not think we should close that window. I think it is unlikely that 
will ever be a problem. But who knows who will be in Congress 50 years 
from now? Some Congress may decide we just want to ignore the 
Constitution. I cannot imagine that, but it is possible.
  In that kind of case, the courts can intervene. But I think the 
history of State provisions, the provision that says the Congress shall 
enforce and implement this article by appropriate legislation, makes it 
very clear we are not going to have a massive amount of litigation.
  I thank my colleague for yielding the time.
  The PRESIDING OFFICER. The Senator from Michigan.
  Mr. LEVIN. Will the Senator from Louisiana yield me some additional 
time?
  The PRESIDING OFFICER. Does the Senator from Louisiana yield?
  Mr. JOHNSTON. Mr. President, who has the floor?
  The PRESIDING OFFICER. You have the floor.
  Mr. JOHNSTON. Mr. President, I have been speaking to my colleagues on 
the other side of the aisle, particularly Senators Brown and Gorton. I 
believe we have an agreement as to at least what we could agree to. If 
my colleagues on this side of the aisle would have no objection to this 
language, 
 [[Page S2712]] then I will propose to modify my amendment accordingly.
  The language is a combination of language originally proposed by 
Senator Gorton back in 1982, and with the Brown suggestion about 
section 2. It would read as follows. I am not asking at this point to 
modify the amendment, but I would like to discuss it before I do.

       The judicial power of the United States shall not extend to 
     any case or controversy arising under this article except for 
     section 2 hereof or as may be specifically authorized in 
     implementing legislation pursuant to this section.

  Section 2, my colleagues will recall, as Senator Brown talked about, 
provides that:

       The limit on the debt of the United States held by the 
     public shall not be increased, unless three-fifths of the 
     whole number of each House shall provide by law for such an 
     increase by a rollcall vote.

  As Senator Brown pointed out, that is a powerful way to enforce the 
amendment. That would be exempted from the--in other words, the court 
would have jurisdiction under section 2, but otherwise would not have 
jurisdiction--would not--the judicial power would not extend, except as 
specifically authorized by Congress.
  Mr. LEVIN. I wonder if the Senator from Louisiana will yield for a 
question, a clarification, on this?
  Mr. JOHNSTON. Yes, of course.
  Mr. LEVIN. As far as I am concerned, any clarification is an 
improvement because we now, as the Senator so eloquently pointed out, 
have an ambiguity which is unacceptable in a provision. Whether people 
favor the provision otherwise or oppose it otherwise, we ought to seek 
clarity in what we are doing.
  As I understand the language the Senator has just read, it would say 
that basically a court could enforce the section 2 limit on the debt. 
That limit on the debt held by the public would still have to be 
defined by Congress, since there is no existing statute that sets that 
debt held by the public, and that is confirmed by letter from the 
Attorney General which I put in the Record.
  Mr. JOHNSTON. I believe that is also in the committee report. They 
say the debt is a creature of legislation and would be subject to that 
definition by Congress.
  Mr. LEVIN. But my question of the Senator from Louisiana is this. Is 
the Senator saying that, in the event that the Congress did not adopt a 
limit on the debt of the United States held by the public--and there is 
no such statutory limit now, the statutory limit now is on the debt, 
not just the debt which is held by the public which is part of the 
national debt--if the Congress did not set such a limit as provided for 
in section 2, that this language that the Senator just read would 
authorize a court to legislate that limit?
  Mr. JOHNSTON. No. No. The court would have--the judicial power of the 
United States would extend to that case or controversy, however it 
arose and whatever remedies the court would feel were appropriate. We 
do not know what remedies those might be.
  Mr. GORTON. Will the Senator yield?
  Mr. LEVIN. I am wondering though, if I could clarify this question. 
Is it the intention of this language--and I think it is important that 
language be before this body for more than a few minutes so people can 
study it. This is a critical question. My good friend from Washington 
has been deeply involved in this question over many, many versions of 
the constitutional amendment and is really an expert on the subject. So 
I think this language should be before the body for more than a few 
minutes.
  My question, however, is: Is it intended that a court could order a 
specific limit on the debt ``held by the public,'' in the event that 
Congress did not adopt a statute defining such a publicly held----
  Mr. JOHNSTON. There is a limit on the debt now.
  Mr. LEVIN. That is the importance of the letter from the Attorney 
General. With the permission of my friend from Louisiana, I would like 
to read it. It is a short letter.

       Dear Senator Levin: This responds to your letter to the 
     Attorney General of February 14, 1995, concerning the 
     proposed Balanced Budget Amendment to the Constitution. In 
     that letter you asked whether legislation setting a ``limit 
     on the debt of the United States held by the public'' would 
     have to be passed before Section 2 would have any force. 
     Section 2 states that any increase in the limit on such debt 
     must be passed by a three-fifths rollcall vote of the whole 
     number of each House of Congress.
       We have consulted the Office of Management and Budget, 
     which has advised us that there is at present no statutory 
     limit on the ``debt of the United States held by the 
     public,'' the type of debt described in Section 2. Rather, 
     there is a limit on the ``public debt,'' which includes debt 
     held by the public and certain other debt, such as debt held 
     by the Social Security Trust Fund. Unless and until Congress 
     passes legislation establishing a limit on the type of debt 
     described in the amendment, the strictures against increasing 
     this debt limit would have no effect.

  I cannot say it any more clearly than the Attorney General of the 
United States. There is no statutory limit on the ``debt of the United 
States held by the public'' in current law. It would require a future 
Congress to establish such a new kind of debt limit, which would 
exclude debt held, for instance, by the Social Security Administration.
  My question, then, is whether or not it is the intention of the 
framers of this new language that a court could order a Congress, or 
adopt itself, language which would define ``debt of the United States 
held by the public,'' since there is no such debt in current law?
  Mr. GORTON. Will the Senator yield?
  Mr. JOHNSTON. This amendment has the judicial power of the United 
States to extend to that case or controversy. I can imagine the number 
of things the court could do. The court can do what they want to 
because they are omnipotent. They can say that the public debt, as 
presently set by limit, was meant to be the same thing as this. But 
from my standpoint, if the Senator from Colorado and the Senator from 
Washington would like to redefine that term in light of this letter, 
that would be suitable with me. But I would say that it is improbable 
that a court would be able itself to set a limit on the public debt.
  Mr. GORTON. Will the Senator yield?
  Mr. JOHNSTON. Yes, of course.
  Mr. GORTON. The answer the Senator from Louisiana has given to the 
Senator from Michigan is accurate insofar as it goes. But I think the 
more fundamental answer to the Senator from Michigan is that this 
particular part of the proposed revision does not change the basic 
balanced budget amendment with respect to section 2 at all. Right now 
the thrust of the argument of the question raised by the Senator from 
Michigan is just as valid in the present unamended form to the balanced 
budget amendment as it would be if this modification were passed. This 
Senator, as each of the Senators knows, was greatly disturbed by this 
particular question of judicial review 13 years ago, in 1982, and 
proposed an amendment to essentially cause these questions to be 
political questions at that time.
  This Senator is very sympathetic with the direction of the amendment 
Senator Johnston has put forward and would prefer that it be phrased 
slightly differently, but, nonetheless, I feel that I do not wish to 
expand the judicial power of the United States to writing budget for 
the United States. When I proposed that, without the exception for 
section 2, the Senator from Colorado and others expressed to me a deep 
concern about a form of violation of the Constitution that I think will 
never take place. Their comments were directed at our comments, which 
would simply defy the plain requirements of section 2 and pass a debt 
limit increase with 55 percent of the votes in the Senate or 55 percent 
of the votes in the House and just simply flat out ignore the 
Constitution. They wished to see to it that the courts would have 
jurisdiction to prevent that blatant violation of the Constitution. I 
do not believe that it is even remotely conceivable that would ever 
happen.
  The reason I sympathize with the general direction of what the 
Senator from Louisiana wants to do, what I fear is going to happen 
under this constitutional amendment is that Congress is going to pass a 
budget and the President is going to sign a budget, under the same 
circumstances which happens today, that is invalid according to the 
estimates by the CBO and the like and that someone or some group will 
have standing to go into court and say, ``No; the CBO estimates 
 [[Page S2713]] are wrong. We have to get the estimates,'' and that 
some court which desires to get into this business is going to say, 
``Yes, you are right. Your estimates are better than Congress,'' and 
order the rewriting of a budget. I do not believe anyone, I say to the 
Senator from Michigan, who was asked this question, believes we are 
going to get cases under section 2. But, in any event, we are not going 
to get any more cases under section 2 with this revised amendment than 
we will get without any amendment at all.
  Mr. LEVIN. Will the Senator from Washington yield? I thank him for 
his clarification. As I understand it, it would be his intention as one 
of the co-authors of this language, I gather, that the Senator from 
Louisiana has described, that the jurisdiction is referred to the 
court, pursuant to section 2, to enforce the 60-vote requirement in 
that amendment, not to define words that a legislature or Congress 
would ordinarily be required to define.
  Mr. GORTON. Clearly, any controversy arising under section 2 would in 
fact be justiciable under the modification of the draft working with 
the Senator from Colorado and the Senator from Louisiana. But the point 
is that it is true with the original balanced budget amendment, we are 
not changing that by proposing this. This modification, just as Senator 
Johnston's original amendment limits the jurisdiction of the courts of 
the United States, modifies it in this fashion. It does not do it quite 
as much because it does not limit it with respect to section 2. It just 
limits with respect to the other section, but nothing, in my view, 
given the Supreme Court, by this modification that is not there in the 
present form of the balanced budget amendment that we have been 
debating for 3 weeks.
  Mr. JOHNSTON. Will the Senator yield?
  Mr. GORTON. Technically the Senator from Louisiana has the floor.
  The PRESIDING OFFICER (Mr. Thomas). The Senator from Louisiana.
  Mr. JOHNSTON. I agree with the Senator from Washington. Moreover, 
there is a legislative limit today on the debt of the United States. So 
Congress must act, plus act every year to increase the debt. They may 
act to increase the debt as defined by statute now. But, if you can do 
that, chances are you will be able to do it to increase it pursuant to 
the terms of this constitutional amendment.
  Mr. GORTON. Yes. As I understand, that was in the letter from the 
Attorney General. I must say it sounds like chopped logic to me. We 
have a statute under the deficit now which uses words slightly 
different from those of section 2 in House Joint Resolution 1.
  Mr. LEVIN. It is slightly different. If the Senator will yield, the 
question is whether or not to include debt held by the Social Security 
Administration. That is not a slight difference.
  Mr. GORTON. I am convinced that the simplest of all implementing 
legislation for this kind of constitutional amendment, should it become 
part of the Constitution, will define the debt in a way which is 
totally consistent with section 2. So as a practical matter, I do not 
think such a case of controversy will ever arise.
  Mr. LEVIN. I wonder if I could ask the Senator from Louisiana this 
question, the same question, now that we have the letter from the 
Attorney General. It is the intent, as I understand it, that under the 
languages which you read that the court could enforce the requirement 
of 60 votes, and that is the principal purpose of the language.
  Mr. JOHNSTON. I do not mean to be evasive. I am just saying that the 
judicial power of the United States would extend to cases and 
controversies arising under section 2. The court can do what it thinks 
is proper, if it finds standing, if it finds there is a justiciable 
question and it extends to such powers as the court thinks are proper.
  Mr. GORTON. Will the Senator yield for just a moment?
  Mr. JOHNSTON. Yes.
  Mr. GORTON. Since what the Senator from Louisiana has read is in the 
handwriting of the Senator from Washington, the answer of the Senator 
from Washington to the Senator from Michigan is yes.
  Mr. JOHNSTON. Mr. President, I yield the floor.
  If no other Senator is seeking recognition, I suggest the absence of 
a quorum and ask unanimous consent that it be equally divided.
  Mr. THOMPSON. If the Senator will withhold, I will address a question 
to the Senator from Washington. It has to do with the purpose of this 
language which I have heard and have not had a chance to read. As I 
understand it, this would deprive the courts of jurisdiction except 
with regard to section 2.
  Mr. GORTON. The amendment that is before the body now, the amendment 
of the Senator from Louisiana, does not deprive the court of 
jurisdiction. The court has no jurisdiction at the present time on a 
constitutional amendment. It says, in essence, that the court will not 
have jurisdiction over cases arising out of the balanced budget 
amendment, except with respect to its enabling legislation. That is the 
proposal of the Senator from Louisiana.
  While this modification has some slight language differences from his 
original point, its only substantive change in the proposal before the 
body right now is to allow the court to deal with cases and 
controversies arising under section 2. The purpose of it, I may say--
since while I was the draftsman, I am not the person who thought it 
up--the purpose of it was to deal with the sincere concerns of the 
Senator from Colorado, Mr. Brown, that Congress, without such 
jurisdiction, literally could define the plain language of section 2 
and pass a debt limit increase by less than a 60-percent supermajority 
vote.
  As I have said, I cannot conceive of Members of Congress so blatantly 
violating their oaths of office under such circumstances. As a 
consequence, I was perfectly willing to go along with the Senator from 
Colorado because I do not think any such case or controversy will ever 
arise. But the purpose is to carve out from the general exemption--
which is Senator Johnston's amendment--section 2.
  Mr. THOMPSON. So while there is an exemption under the Senator's 
amendment with regard to enabling legislation, this exemption would 
apply to part of the language of the constitutional amendment.
  Mr. GORTON. Yes, plus enabling legislation.
  Mr. THOMPSON. Yes, and that is section 2. Does the Senator consider 
that if such amended language was agreed to, that might obviate the 
argument that the courts did not have jurisdiction with regard to 
section 2? In other words, as I heard the debate here a short time ago, 
I think very strong arguments were made with regard to the amendment 
itself, the totality of the amendment, that there were serious 
questions with regard to the justiciable issue regarding political 
questions and all of that, with regard to the amendment in totality, 
including section 2.
  I wonder whether or not, if such language were agreed to, this would 
be an open invitation to the courts that in fact we are inviting you to 
take on anything that could be a part of section 2 and might in fact go 
against the intent of the proponents of the amendment of the Senator 
from Louisiana?
  Mr. GORTON. I say to the Senator from Tennessee that he is a shrewd 
reader of legislative constitutional language, because I think in this 
case he is precisely correct. The paradox, in my opinion, this year, 
last year, and in 1982, when we debated this subject, is that those who 
have opposed adding this kind of judicial review section to a balanced 
budget amendment have made two totally inconsistent, opposite arguments 
against including such a section. One is that the courts would never 
take cases or controversies under this. They do not have any such 
jurisdiction, and they would not exercise any such jurisdiction. The 
other argument is that we certainly want the courts to enforce it if 
Congress violates these constitutional provisions.
  I did not understand those arguments in 1982; I did not understand 
them in 1986; I did not understand them last year; and I do not 
understand them now. I think those who oppose adding something like the 
Johnston amendment at least ought to pick one side of that argument or 
the other. If their sole reason for not wishing to add something like 
the Johnston amendment is that it is unnecessary because the courts 
will never, under any circumstances, deal with a case or controversy 
arising under the balanced 
 [[Page S2714]] budget amendment, then under those circumstances, we 
have actually created a cause of action by this particular modification 
with respect to section 2. I think that is the utter logical 
conclusion.
  My own view on the subject is that the fundamental argument is 
flawed. I am convinced that the courts would in fact exercise 
jurisdiction under cases or controversies arising under this entire 
amendment. There is no way in the world we can guarantee that the 
Supreme Court next year, much less 100 years from now, is not going to 
decide it wants to write a budget and override our estimate.
  My deep concern is not a case or controversy that is going to arise 
under section 2 as to whether we have invalidly increased the debt 
limit, or many other sections here; I believe that the history of the 
Federal courts of the United States clearly indicates that we will be 
faced very soon--maybe in the first budget that passes after this 
constitutional amendment becomes a part of the Constitution--with a 
Congress and a President who have passed what they consider to be a 
balanced budget, using Congressional Budget Office estimates of 
revenues, for example, and Joint Tax Committee estimates of receipts, 
and that some individual withstanding will sue and say the 
Congressional Budget Office estimates are off, they are phony, this is 
Congress' own creation, they have fixed the figures, and we think there 
is a much better estimate of expenditures and those expenditures are a 
lot higher than the Congressional Budget Office has said and we, 
therefore, order the Congress either to use our estimates, the 
estimates of the court, to rewrite the budget, or we will impose a 5-
percent surcharge on the income tax this year to bring it into balance.
  It is that kind of judicial activism, in my opinion, which has 
plagued the United States in many respects for the last 50 years, with 
courts running prisons and school systems and shelters for the homeless 
and the like, and acting in a legislative fashion. And for anybody, 
particularly somebody conservative, to state with assurance that the 
courts will not involve themselves in this field I just think is a 
faulty argument.
  If the argument, on the other hand, is the courts ought to be in this 
field, I can see someone arguing that they like judicial activism and 
want courts involved in this field. I just disagree with them. If I 
thought the courts were going to be in this field, I would not want 
anything to do with the balanced budget amendment, of which I am a 
cosponsor and a very, very strong supporter. Under those cases, they 
would probably rather have it in section 2 than not to have it at all. 
Personally, I would prefer we not have it at all. Personally, I also 
want to get something accomplished here, and I do not think this 
exception for section 2, in my view, is ever going to come up at all.
  Mr. JOHNSTON. Will the Senator yield?
  Mr. GORTON. The answer to the question of the Senator from Tennessee 
is that he is absolutely right. It settles that first argument with 
respect to section 2 and makes it invalid.
  The PRESIDING OFFICER. The Senator from Tennessee controls the time.
  Mr. JOHNSTON. Who has the time?
  The PRESIDING OFFICER. The Senator from Tennessee.
  Mr. JOHNSTON. Will the Senator yield?
  Mr. THOMPSON. Yes.
  Mr. JOHNSTON. I wonder if the Senator would not agree with me that 
section 2 involves, really, a yes or no proposition--that is, that the 
limit on the debt of the U.S. public shall not be increased except by a 
three-fifths vote. It is subject only really to a yes or no 
proposition. That is, you either had the three-fifths or you did not 
have it. It does not get into all the fiscal questions that might flow 
from that; rather, it is a yes or no proposition.
  So I wonder if the Senator from Washington does not agree that really 
about all the court could do on that is say, yes or no, you did or you 
did not, and if you did not, it is not valid and the President could 
not sign it anyway if it violates the Constitution.
  Mr. GORTON. That is certainly the thrust of what the Senator from 
Colorado was himself concerned with.
  Again, it is very important, as the Senator from Michigan said, when 
we deal with the Constitution that we be as clear as we possibly can in 
what we say. And it is certainly possible, in the absence of any 
statute on this subject, that a case or controversy could arise under 
other provisions in section 2. But, as I said, the first thing we will 
do will be to make the slight definitional changes that are necessary 
to use the phrase in this Constitution and the debt limit legislation 
which we have at the present time.
  So, as a practical matter, I think the only time the question would 
ever come up is the way the Senator from Louisiana states it.
  Mr. THOMPSON. Mr. President, I share the concern of both the Senator 
from Louisiana and the Senator from Washington concerning judicial 
activism. As the Senator from Washington puts it, on one hand, he is 
concerned about it, and, on the other, he is concerned about the notion 
that the courts should indeed be involved.
  I think there is probably a middle ground here that many people are 
struggling with. I think a very good case can be made for the 
proposition that, indeed, it is unlikely--I am talking about under the 
original amendment--that it is unlikely that the court would involve 
itself in the detailed budgeting process of the Congress of the United 
States.
  Now, can anybody say that will not happen with certainty? Absolutely 
not. We all know that it can happen. It is a possibility.
  The question is: What is the likelihood? It has never been done 
before. You look at what has happened on the State level. You look at 
what has happened on the Federal level.
  I remember the lawsuit against President Nixon back in 1974. The 
court dealt with a little different situation there, but they were 
dealing with the powers of the executive branch. If you read that case, 
you will see how reluctant the Supreme Court is to get into the 
operations of and put limitations on the power of the other branches of 
Government.
  That case came down requiring the President to give up his tapes, but 
in doing so really they raised the threshold very substantially as far 
as any future similar actions against a President. You had to have 
eyewitnesses in that case, eyewitnesses, in effect, saying the 
President was involved in criminal activity or very possibly could have 
been. So they decided against the President in that case. But by their 
language, they were struggling mightily with it and it had to be very 
fact specific and it had to be an egregious case by that language for 
them to step into the affairs of the President of the United States.
  I think in all probability that is the way it will be with Congress. 
My own guess is--and I assume that is all we can acknowledge, that is 
basically all we are doing here--my own guess is that, absent some 
egregious case that the Senator from Washington says he does not think 
will ever happen, and I agree, but absent some very egregious case 
where the Congress of the United States just blatantly and openly 
disregards the Constitution, I do not think the Supreme Court would 
involve itself, even the Supreme Court as we know it today, which too 
often gets into too many things, as we all know.
  I think many of us simply share the concern that if there is no 
enforcing mechanism at all, if there is no possibility, if we foreclose 
any possibility under any circumstances that the court cannot decide 
this, that a future Congress would use that and circumvent the intent 
of the balanced budget amendment.
  So it gets back to how badly do you think our fiscal crisis is; how 
badly do we need this balanced budget amendment? And I think pretty 
badly.
  We have heard the debate here for many, many days. We are headed down 
the wrong road at breakneck speed. We are bankrupting the next 
generation by any objective standard. By any bipartisan analysis that 
has been made of it, we are in serious, serious circumstances here and 
we are kind of fiddling around here while Rome is burning and missing 
the central point that we better keep in mind, and that is we better 
get our fiscal house in order.
  The balanced budget amendment, without being cluttered with a lot of 
controversial amendments designed 
 [[Page S2715]] primarily by some to kill it and not to improve the 
amendment so that they could support it, instead of doing that, we 
ought to refocus and pass the balanced budget amendment.
  I intend at this stage of the game to say, let us pass it without 
this amendment.
  I yield back the remainder of my time.
  The PRESIDING OFFICER. Who yields time?


                     Amendment No. 272, as Modified

  Mr. JOHNSTON. Mr. President, we have had this discussion.
  At this point, I wish to modify my amendment by inserting, in lieu of 
the present language, the following language, which I send to the desk.
  The PRESIDING OFFICER. The Senator has that right, and the amendment 
is so modified.
  The amendment, as modified, reads as follows:

       At the end of Section 6, add the following: ``The judicial 
     power of the United States shall not extend to any case or 
     controversy arising under this article except for section 2 
     hereof, or as may be specifically authorized in implementing 
     legislation pursuant to this section.''

  Mr. LEVIN. Will the Senator yield for two additional questions?
  Mr. JOHNSTON. Yes.
  Mr. LEVIN. One of the questions I think it would be valuable for us 
to perk a bit so that others, including members of the Judiciary 
Committee, could look at the language is a very important change--
again, whether you favor or oppose the amendment on other grounds, it 
is important that we clarify the amendment, and the Senator from 
Louisiana has done very, very important work in achieving this 
clarification. I would like to pursue it because there is still some 
ambiguity.
  I have two questions. One is the judicial power of the United States 
refers to Federal courts. State courts also implement the Constitution 
and enforce the Constitution. I am wondering whether or not it is the 
intention of this language that State as well as Federal courts would 
be prohibited from enforcing this provision except as specifically 
authorized in implementation legislation? Is that the intent of the 
authors of this language?
  Mr. JOHNSTON. It is not the intent of this language to give State 
courts the power. I do not believe they would have the power to order a 
tax increase or give a declaratory judgment or cut a Federal program. I 
believe that that judicial power adheres only in the United States.
  Mr. GORTON. Will the Senator yield?
  Mr. JOHNSTON. Yes.
  Mr. GORTON. I have to say to the Senator from Michigan, the 
Constitution of the United States, as it is presently formulated, or 
formulated here, makes no statements with respect to the jurisdiction 
of State courts. In a very real sense, State courts interpret the 
Constitution, but State courts cannot order the Congress of the United 
States to do anything. They have no such jurisdiction.
  So, just as is in the rest of the Constitution, the balanced budget 
amendment and the debt limit legislation are silent as to the 
jurisdiction of State courts, which is exactly what they are ought to 
be.
  Mr. LEVIN. As I understand it, however, it is the intent of the 
Senator from Louisiana that, to the extent that this gives any 
authority at all under section 2 or otherwise, that section 2 authority 
exclusively goes to the Federal courts.
  Mr. JOHNSTON. That is correct.
  Mr. GORTON. The phrase in the Constitution, of course, is the 
judicial power of the United States. That is the Federal Government.
  Mr. LEVIN. My question is, the language here as it authorizes section 
2 implementation refers only to Federal courts.
  Mr. GORTON. Yes.
  Mr. JOHNSTON. Yes.
  Mr. LEVIN. The other question relates to a question I have asked the 
sponsors of the legislation. I sent them a whole list of questions as 
to the enforcement provisions under section 6, because it raises a 
whole question as to whether or not there is an enforcement mechanism 
for this constitutional amendment or whether or not it is just a 
statement of intent and then has no teeth in it. But that is a 
different issue for a different argument.
  My question, though, is this.
  The PRESIDING OFFICER. The time is controlled by the Senator from 
Louisiana.
  Mr. JOHNSTON. Could we answer the questions on the other side's time, 
because I think we are about to run out?
  Mr. LEVIN. Will the Senator from Washington yield for this question?
  Mr. GORTON. Yes.
  The PRESIDING OFFICER. The Senator from Louisiana controls the time.
  Mr. JOHNSTON. Mr. President, I yield the floor.
  Mr. LEVIN. Mr. President, will the Senator from Washington----
  The PRESIDING OFFICER. The time is expired. Who yields time?
  Mr. LEVIN. Would the Senator from Washington ask for a minute or two 
of time in order to respond to the question of the Senator from 
Michigan?
  Mr. GORTON. The Senator does not have time.
  Mr. SANTORUM. Mr. President, I say to the Senator from Michigan, we 
have a limited amount of time remaining, and we have speakers that we 
have to accommodate.
  Mr. LEVIN. Mr. President, I ask unanimous consent that the questions 
which I forwarded to the Senators from Utah and Illinois, including 
section 17 be inserted in the Record and specifically any response to 
section 17 that is obtained today be inserted in the Record at this 
time.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                  Balanced Budget Amendment Questions

       1. What exactly is the definition of receipts? For example, 
     do receipts include the receipts from Postal Service stamp 
     sales and TVA power sales? Do they include Medicare premium 
     payments? Do they include the receipts of government 
     corporations and quasi-federal agencies which deposit money 
     in non-Treasury accounts? Who will make this determination?
       2. What exactly is the definition of outlays? For example, 
     do outlays include federal loans and federally-guaranteed 
     loans? Do they include spending by government corporations 
     and quasi-federal agencies which pay for their activities out 
     of user fees instead of out of Treasury accounts? Who will 
     make this determination?
       3. Will estimates or actual levels be used for receipts and 
     outlays? In an instance in which the OMB and the CBO disagree 
     with each other on what outlays or receipts are, how will the 
     dispute be resolved so that it can be determined whether or 
     not outlays exceed receipts?
       4. Who will determine whether a bill is `a bill to increase 
     revenues?' For example, what happens if OMB says the bill is 
     revenue neutral, and CBO says the bill will result in a net 
     increase in revenues? Whose estimate will prevail? How will 
     the dispute be resolved?
       5. At what point will it be determined that outlays will in 
     fact exceed receipts, triggering remedial action? August 1? 
     September 15? Who will make that determination--OMB or CBO?
       6. At whatever point it is determined that outlays do or 
     will exceed receipts, will automatic spending cuts or tax 
     increases be triggered? When would that happen, and who would 
     be responsible for making it happen? Will cuts affect all 
     programs equally across-the-board, or will certain programs 
     be exempt?
       7. Would it violate the language of the amendment if 
     Congress passes, with less than 60% of the votes, a budget 
     resolution that is not balanced?
       8. Would it violate the language of the amendment if 
     Congress passes, with less than 60% of the votes, a bill to 
     increase spending from some base level without off-setting 
     spending cuts or revenue increases? would it matter whether 
     this was the last appropriations bill of the year, and would 
     result total appropriations exceeding expected receipts? If 
     not, how will we ensure that Congress does not increase 
     spending without paying for it?
       9. Would it violate the language of the amendment if 
     Congress passes, with less than 60% of the votes, a bill to 
     cut taxes without off-setting spending cuts or revenue 
     increases? If not, how will we ensure that Congress does not 
     cut taxes without paying for it?
       10. What happens if Congress passes a budget resolution 
     which is in balance, and enacts appropriations bills on the 
     basis of that resolution, but part way through the year it 
     appears that outlays will exceed receipts? Would Congress be 
     required to vote separately on whether to authorize or 
     eliminate the excess, even though it voted for budget and 
     appropriation bills in the belief that the budget would be 
     balanced? What mechanism would be created to ensure that such 
     a bill would be considered?
       11. At what point during the fiscal year would Congress be 
     required to vote to authorize an excess of outlays or to 
     eliminate that excess? What would happen if Congress did not 
     approve either such measure?
       12. Would the amendment be enforced through sequestration 
     or impoundment? If so, when and how would that action take 
     place?
       [[Page S2716]] 13. What happens if Congress approves a 
     specific excess of outlays over receipts by the required 
     three-fifths vote of each House, but the projection turns out 
     to be wrong--the deficit is greater than expected. Would a 
     second vote be required to approve the revised estimate of 
     the deficit? Who determines the dollar amount of excess that 
     Congress will vote on in each case? Who determines that the 
     estimated excess was wrong? How often would such 
     determinations be made, and such votes be required? Who 
     determines when the votes must take place?
       14. The resolution requires that three-fifths of each House 
     vote to approve an excess ``by law''. Does this mean that the 
     President must sign a bill to approve an excess? What happens 
     if three-fifths of the Members of each House approve a 
     deficit, but the President vetoes the bill? On the other 
     hand, what happens if Congress passes a reconciliation bill 
     to balance the budget and the President vetoes it and there 
     are insufficient votes to override the veto? For example, 
     what if Congress votes to increase taxes to eliminate the 
     deficit and the President says he prefers spending cuts and 
     vetoes the bill. If there are insufficient votes to override 
     the veto, who has violated the Constitution--the Congress or 
     the President?
       15. Could Congress shift receipts or outlays from one year 
     to another to meet balanced budget requirements? For example, 
     could paydays for government employees be put off a few days 
     into the next fiscal year to achieve a balance between 
     receipts and outlays? What mechanisms will prevent this type 
     of abuse?
       16. Section 2 of the resolution provides that ``the limit 
     on the debt of the United States held by the public shall not 
     be increased'' without a three-fifths vote. What is the 
     current statutory ``limit on the debt of the United States 
     held by the public'', if any? If there is currently no such 
     limit, how will such a limit be established?
       17. What does the debt of the United States held by the 
     public include? Specifically, does it include the debt of 
     wholly-owned government corporations (like the Commodity 
     Credit Corporation and the Overseas Private Investment 
     Corporation)? Does it include the debt of mixed-ownership 
     government corporations (like Amtrak and the Federal Deposit 
     Insurance Corporation)? Does it include loans guaranteed by 
     the federal government, such as guaranteed student loans, 
     guaranteed agriculture and export loans, or Mexican loan 
     guarantees? If not, could additional government corporations 
     and quasi-governmental agencies be created to conduct federal 
     programs off-budget to evade the amendment? Could new 
     government guaranteed lending programs replace government 
     spending? How would this be prevented?
       18. May the President transmit a proposed budget which is 
     not in balance in addition to his balanced budget proposal? 
     May the President transmit a balanced budget, but recommends 
     against its adoption? Can he submit the balanced budget at 
     any time before the fiscal year begins?
       19. The Committee report states that the words ``bill to 
     increase revenue'' covers ``those measures whose intended and 
     anticipated effect will be to increase revenues to the 
     Federal Government.'' Does this mean net revenue? Over what 
     period of time would this be judged?
       Would the revenue provision apply to a bill that increases 
     revenues for three years and reduces revenues for the 
     following three years, with a net change of zero over the 
     six-year period? What happens if the amendment is repealed 
     after three years, because it would result in a deficit?
       Would a bill to increase the capital gains tax be exempt, 
     since many argue would have the effect of reducing revenue in 
     at least the early years after enactment?
       20. Does ``revenue'' include fees? How do we tell the 
     difference between a revenue measure increasing fees and a 
     spending measure decreasing outlays by requiring users to pay 
     for services provided to them instead of funding the services 
     out of tax revenues?
       What about a bill to raise the federal share of receipts 
     from concessions in our national parks?
       What if the bill simply required regular competition for 
     national park concessions? Would that be a bill to increase 
     revenue, since it would have the ``intended and anticipated 
     effect'' of increasing the federal share?
       21. Does revenue include tariffs? Would a trade measure 
     which authorizes use of retaliatory tariffs in certain cases 
     be considered a ``revenue measure'', since it would arguably 
     have the ``intended and anticipated effect'' of increasing 
     revenues? Who will make this determination?
       22. Does revenue include civil and criminal penalties? 
     Would a bill that establishes a new civil or criminal penalty 
     be considered a ``revenue'' measure? How about a bill that 
     indexes certain penalties for inflation? How about a measure 
     to toughen enforcement of criminal or civil penalties? Would 
     a bill to tighten enforcement of the tax laws or provide more 
     personnel to the IRS be covered, since it would have the 
     ``intended and anticipated effect'' of increasing revenues? 
     Who will decide what is covered by this provision?
       23. Would a statute that requires a new, lower measure for 
     inflation, be considered a bill to increase revenue, since by 
     slowing the adjustment of tax brackets it would have the 
     ``intended and anticipated effect'' of increasing taxes? 
     Would the elimination of a special, targeted tax break be 
     covered by this provision? Would it cover a bill authorizing 
     the sale of buildings or land?
       24. Sponsors of the amendment have said that the social 
     security trust funds will be protected in implementing 
     legislation and that the budget will not be balanced at the 
     expense of the States. How will this result be ensured?
       25. The term ``fiscal year'' is not defined in the 
     amendment. The report indicates that Congress has the power 
     to define the term ``fiscal year.'' Does this mean that 
     Congress could change the effective date of the amendment by 
     legislation, passed by majority vote, which changes the 
     statutory time at which a fiscal year begins and ends?

  Mr. SANTORUM. Mr. President, I wanted to make a comment about the 
practical effect that the amendment of the Senator from Louisiana will 
have on the process once the balanced budget amendment passes.
  I think this may be the serious constitutional infirmities that this 
amendment could have, and when I say ``constitutional infirmities,'' 
what I believe the Senator's amendment will do is, by denying access, 
by denying access to the courts in this constitutional amendment, in a 
sense what we are doing is modifying the fifth amendment due process 
clause. You are saying we have no redress to this act--none--until 
Congress acts.
  Now, I think the practical effect of that will be--and I think we are 
seeing within this body a lot of support for the courts keeping hands 
off, not reaching in--so what may happen, what I think there is high 
probability of happening, is we will leave that alone. We, in fact, 
will not implement. We will not provide. There is no requirement for 
Members to do so. There is no reason for the Senate now to provide 
access when, in fact, we have stated constitutionally they have no 
access.
  On the other side, if we do not have the Johnston amendment in place, 
it is incumbent upon Members to act because I think the Senator is 
right, we have left a big open question here. Now, it is our duty to 
define what avenues the court will have to address this constitutional 
amendment.
  I think what we have done here is take the Congress off the hook of 
having to come back, look at this question, debate it, find out 
specifically what areas we are going to deal with or provide for the 
citizenry, for Members of Congress, to address this issue in the 
courts.
  By this amendment we will, in fact, foreclose that discussion. I 
believe that discussion will not occur, or if it does occur, will not 
prevail, that we will feel most comfortable leaving the courts 
completely out of it. It has been passed in the constitutional 
amendment. There will be no reason for Members to come here because we 
have taken care of this issue.
  If we leave it open, the issue will arise again. And I believe the 
Senator is absolutely right. There is such a question here. We will be 
driven to provide specifically for that kind of redress in the court.
  I think not only do we have a limitation of the due process clause of 
the 5th amendment as a result of the amendment of the Senator from 
Louisiana, which I think is a red flag, No. 1. No. 2, we have in a 
sense decided this issue now maybe for a long period of time and 
eliminated any prospect of judicial review for this legislation.
  I do not think we are prepared to do that. I think we are prepared, 
at least what I hope most Members are prepared to do, is say, ``Let's 
leave this question open for us to go and then provide specific 
redresses in the implementing legislation to deal with this question. 
Let's be precise about it. Let's be limited about it but have a full 
and open discussion about it, not foreclose and slam the door for any 
possibilities of judicial overview,'' whatever limited amount it may 
be.
  Mr. JOHNSTON. Mr. President, will the Senator yield?
  Mr. SANTORUM. Very briefly.
  Mr. JOHNSTON. What appropriate role would the Senator think the 
courts ought to have?
  Mr. SANTORUM. Mr. President, I think that is a discussion that we 
need to have. I think that is a discussion that has to be talked about 
far beyond the few hours of debate we have here on the Senate floor. We 
need to look at whether we should limit it to declaratory judgment or 
whether we should grant injunctive relief. All those kind of avenues. 
Who should we give standing to move these suits forward. All of those 
discussions, the particulars, need 
 [[Page S2717]] to be dealt with in the implementing legislation.
  If we pass the amendment of the Senator from Louisiana, I do not 
believe we will get there. I do not believe we get there because we 
have already settled the issue and the courts do not have a role.
  Mr. JOHNSTON. We say the courts do have a role to the extent we 
specify.
  Mr. SANTORUM. But there is no incentive as a result of your amendment 
to specify. We have now kept them out of our affairs. There is no 
reason for Members to come back and give them access, where, if we did 
not pass the amendment, it would be a broad open question as to what 
extent they could get involved.
  It could be incumbent upon the Senate to protect our own viability as 
a body, for the Senate to specifically chart out where they would. I 
think any kind of implementing legislation--I think the Senator from 
Wisconsin was right on this. If we, through implementing legislation, 
said they have no access, I think we would have constitutional problems 
with that. We would have to provide some sort of limited access for 
suit. Your amendment does not do that.
  I think you run into very severe limitation on the due process 
clause. We are telling every citizen of this country that you cannot 
redress your Government through a constitutional amendment. I think 
that is a real problem. I think that is one of the reasons I would be 
opposed to it.
  The second is, I think it forecloses any future discussion on this 
matter. I would be happy at this point to yield the floor.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I understand the hullabaloo is about the 
modification of the amendment of the Senator from Louisiana applying 
only to section 2, because the claim is the budgetary language is 
different from the constitutional amendment language.
  To me, that is such a trivialization of the debate that it is not 
funny. If we have 67 people who will pass this amendment, we are 
certainly going to have 51 votes to change any budgetary language we 
have to in the implementing legislation.
  Why should we get into a big scholastic--and by ``scholastic,'' we 
will call it scholasticism -- how-many-angels-stand- on-head-of-a-pin 
argument in the debate over the constitutional amendment over that 
issue?
  Now, if Members of Congress believe that the issue of standing and 
the separation of powers and political question are not well defined by 
the courts and well defined by better than a century of law on this 
subject, then I can see where they might want to support the 
distinguished Senator from Louisiana and his amendment here.
  The law is so well defined and it is so clear in those areas. I think 
we made the case earlier in the day that it is clear that I do not need 
to repeat it again at this particular point. I am hoping all Senators 
will vote against this amendment. It is a mischievous amendment. It is 
offered to try to scuttle the balanced budget amendment, knowing that 
there can always be made some argument about any term in any balanced 
budget amendment or any amendment to the Constitution that others might 
agree or disagree on.
  What we are talking about here is an amendment passed by 300 Members 
of the House of Representatives, the two-thirds-plus vote, for the 
first time in history. In my opinion, we simply cannot amend it further 
because of that historic vote and the fact that it is a bipartisan 
consensus amendment by Democrats and Republicans that will work. These 
frightful occurrences are not going to occur and everybody knows it.
  The whole purpose of this amendment is, of course, to try to amend 
this constitutional amendment which puts Members through the whole 
process again. Now the original amendment of the distinguished Senator 
from Louisiana said, ``No court shall have the power to issue relief 
pursuant to any case or controversy arising out of this article except 
as may be specifically authorized in implementing legislation pursuant 
to this section.''
  The modification, as I understand it, would add on to section 6 the 
following:

       The judicial power of the United States shall not extend to 
     any case or controversy arising out of this article except 
     for section 2 hereof, or as may be specifically authorized in 
     implementing legislation pursuant to this section.

  We do not need to have litigation for section 2. We do not need to 
have litigation for any aspect of it. I think under the rules of law 
that have existed for well upward of a century, this is a false issue, 
and we should vote to table this particular amendment. I hope our 
Senators will do that.
  I yield the floor.
  Mr. JOHNSTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Mr. President, I am indebted to the distinguished 
Senator from Washington [Mr. Gorton] and the distinguished Senator from 
Colorado [Mr. Brown] for helping work out this modification which I 
think achieves very well the purposes that most Senators want to 
achieve on this floor, which is to ensure that the real biting 
enforcement and sanction of section 2 is preserved in this amendment so 
that, as the Senator from Colorado said, section 2 is the real guts of 
the enforcement and that remains here with the power of the court to 
enforce it.
  But other than that, Mr. President, this amendment will provide that 
the courts may not raise taxes and may not substitute their judgment 
for that of the U.S. Congress.
  It is to me an amazing circularity of logic that the opponents of the 
amendment as modified have. They say, on the one hand, this is 
absolutely clear, we know there is no standing to sue, we know there is 
no justiciable question; this is a political question which the courts 
cannot get into. But, on the other hand, there may be some cases where 
some people will need to go to court and enforce this. But, on the 
other hand, it is absolutely clear. But, on the other hand, if we pass 
this amendment, the Congress will never act because then it will be 
clear.
  Well, Mr. President, it either is clear or it is not clear, and we 
know what the real answer to that question is: It is intentionally 
ambiguous, and in that ambiguity, we have mischief, because while what 
Judge Bork says is thousands of cases matriculating up through the 
district courts and the courts of appeal of this country, while we are 
waiting for those to be decided, the capital markets of this country, 
the bond markets, the very fiscal essence of the country will be held 
in limbo while the court decides such arcane questions as whether this 
is a political question, whether there is standing to sue, or whether 
it is a justiciable issue.
  We have the power to decide that issue now, to make it clear and 
unambiguous, which is, the courts do not have authority, except to the 
extent we give them authority.
  Mr. President, we have between now and 2002--2002--to act to 
implement this article. Section 6 says:

       The Congress shall enforce and implement this article by 
     appropriate legislation.

  If this Senate and this Congress can pass a constitutional amendment 
by a two-thirds vote, by 67 votes, surely it could pass simple 
implementing legislation which requires only a simple majority. Why 
would Congress ignore section 6, ignore its duty when it takes only a 
majority vote, when we feel so strongly today that we are giving a two-
thirds vote to the constitutional amendment? It does not make sense, 
and it does not add up.
  If any Member believes, as I believe, that what the courts would 
really do if they took jurisdiction is order a tax increase and then 
maybe say, ``Congress, this will go into effect 60 days from now or 4 
months from now unless you act''--I think that is what they would do 
because that is the only thing they have expertise to do. They do not 
have the expertise to cut budgets, to decide between competing claims 
in a budget, but they sure do know how to order an income tax increase, 
because it takes no expertise. This amendment would prevent that; it 
would deprive the courts of the ability to meddle in this 
constitutional duty, which is properly the Congress', except to the 
extent that we authorize them to do so.
  Mr. President, it clears up an intentional ambiguity. It loses no 
votes. I believe this gets votes for this amendment, and it certainly 
makes a better 
 [[Page S2718]] amendment. I hope my colleagues will go along with it.
  I yield the floor.
  Mr. HATCH. Mr. President, I would be interested in whether it will 
get the vote of the distinguished Senator from Louisiana if this 
amendment passes.
  Mr. JOHNSTON. Mr. President, I can tell the Senator from Utah what my 
concern is about this amendment. There was a Treasury study which 
showed that my State was more heavily impacted than any other State. It 
made certain assumptions. It made the assumptions that defense would 
not be cut, as the contract calls for; that Social Security would not 
be cut, as everyone promised. It was a nationwide study, and it 
determined, as I recall, the cuts to Louisiana were something like $3 
to $4 billion.
  Mr. HATCH. May I ask the Senator to comment on his time?
  Mr. JOHNSTON. Until I know what makes up the cuts, I cannot vote for 
the amendment.
  Mr. HATCH. Mr. President, we have been through that argument already, 
and that is, we have never been able to tell where the cuts are up to 
now. Until we get this into the Constitution, we never will. That is 
why we have to get it in the Constitution.
  This is a bigger issue than any of our individual States. All of us 
are concerned about our States, all of us are concerned about what cuts 
or tax increases, but all of us need to be concerned about the future 
of this Nation, the future of our children and our grandchildren.
  We have a Federal Government that is running away from us; it is out 
of control. We can debate these things forever. But under the Johnston 
amendment, allowing suits under section 2 may allow the courts to relax 
the standing rules that they have. It would be the exact opposite of 
what everybody in this body would like to see happen. It would be an 
indication to them we want them to relax standing rules. Presently, 
courts will not allow standing to give relief that interferes with 
budgetary processes, and I do not know anybody who would rebut that 
statement.
  Ironically, the Johnston amendment may allow the very thing he fears. 
I frankly do not know why anybody would want to vote for it who 
understands the implications of it, but let me just summarize our 
position on this.
  Senator Johnston's amendment would deny all judicial review to 
enforce the balanced budget amendment, except for section 2 which may 
give an indication to the courts that they should relax the standing 
requirements which means even more litigation all over this society, 
more than ever before, and there would be no way you could stop it.
  I believe it is an overreaction to a problem that simply does not 
exist, and to apply what happens in States--and there have not been 
many suits in States--to apply that to this just is inapposite.
  The ghost that haunts opponents of the balanced budget amendment is 
that the judiciary will usurp Congress' power delegated to it by the 
Constitution over spending, borrowing, and taxing matters.
  Mr. JOHNSTON. Would----
  Mr. HATCH. I do not have enough time or I would yield.
  That horrible phantom will place the budgetary process under judicial 
receivership, through its equitable powers, cut spending programs, and 
even order the raising of taxes, they say. But the apparition is simply 
make believe; it is a bad dream. The courts simply do not have the 
authority to usurp Congress' role in the budgetary process.
  That unfounded phobia has its antidote in the time-honored precept of 
standing and the political question and separation of powers doctrines. 
As I said, these jurisprudential doctrines stand as impenetrable 
barriers to the courts commandeering of the democratic process.
  Besides, it is just wrong to think that Congress cannot and will not 
protect its institutional prerogatives. The framers of the Constitution 
designed a constitutional system whereby each branch of government 
would have the power to check the zeal of the other branches. In James 
Madison's words in the Federalist No. 51:

       [T]he great security against a gradual concentration of the 
     several powers in the same department, consists in giving to 
     those who administer each department, the necessary 
     constitutional means, and personal motives, to resist 
     encroachments of others. The provision for defence must in 
     this, as in all other cases, be made commensurate to the 
     danger of attack. Ambition must be made to counteract 
     ambition.

  Frankly, I find it utterly inconceivable, as a practical matter, that 
the chairmen of congressional Appropriations, Budget, and Finance 
Committees and subcommittees, and Congress as a whole, will stand idly 
by if some district court judge somewhere exceeds his or her authority 
and allows a case implicating this institution's budget and tax and 
spending prerogatives to proceed. Why, it defies belief that these 
Senators like Mark Hatfield, Robert Byrd, Pete Domenici, Jim Exon, and 
leaders like Robert Dole and Tom Daschle, and their counterparts in the 
other body, or any of us, would allow a court to tamper with 
congressional prerogatives. Congress would do what it would have to do 
and moot any such case which even hinted at success. Does anyone doubt 
this?
  Moreover, to resist the ambition of the courts, the framers gave to 
Congress in article III of the Constitution the authority to limit the 
jurisdiction of the courts and the type of remedies the courts may 
render. If Congress truly fears certain courts may decide to ignore law 
and precedent, Congress--if it finds it necessary--may, through 
implementing legislation pursuant to section 6 of House Joint 
Resolution 1, forbid courts the use of their injunctive powers 
altogether. Or, Congress could create an exclusive cause of action or 
tribunal with carefully limited powers, satisfactory to Congress, to 
deal with balanced budget complaints.
  But Congress should not, as the distinguished Senator from Louisiana 
proposes, cutoff all judicial review. I believe that House Joint 
Resolution 1 strikes the right balance in terms of judicial review. By 
remaining silent about judicial review in the amendment itself, its 
authors have refused to establish congressional sanction for the 
Federal courts to involve themselves in fundamental macroeconomic and 
budgetary questions. At the same time, this balanced budget amendment 
does not undermine the court's equally fundamental obligation, as first 
stated in Marbury v. Madison, 1 Cranch 137, 177 (1803), to ``say what 
the law is'' in those cases where standing exists and the separation of 
powers and political question doctrines do not bar the courts from 
proceeding. After all, while I am confident that courts will not be 
able to interfere with our budgetary prerogatives, I am frank to say I 
cannot predict every conceivable lawsuit which might arise under this 
amendment, and which does not implicate these budgetary prerogatives. A 
litigant, in such narrow circumstances, if he or she can demonstrate 
standing, ought to be able to have their case heard.


                          judicial enforcement

  Nonetheless, I must underscore that keeping open the courthouse door 
to a litigant who is not seeking to interfere with the spending and 
taxing powers of
 Congress, does not license the judiciary to interfere with budgetary 
decisions. Because this issue is of great importance to my colleagues, 
I would like at some length to address the concern of some that under 
the balanced budget amendment courts will become superlegislatures. 
Indeed, opponents march out a veritable judicial parade of horribles 
where courts strike down spending measures, put the budgetary process 
under judicial receivership, and like Charles I of England, raise taxes 
without the consent of the people's representatives. All of this is a 
  gross exaggeration. This parade has no permit.I whole-heartedly agree 
with former Attorney General William P. Barr who stated that if House 
Joint Resolution 1 is ratified there is ``little risk that the 
amendment will become the basis for judicial micromanagement or 
superintendence of the federal budget process. Furthermore, to the 
extent such judicial intrusion does arise, the amendment itself equips 
Congress to correct the problem by statute. On balance, moreover, 
whatever remote risk there may be that courts will play an overly 
intrusive role in enforcing the amendment, that risk is, in my opinion, 
vastly outweighed by the benefits of such an amendment.''
 [[Page S2719]] standing, separation of powers, and political questions

  There exists three basic constraints which prevent the courts from 
interfering in the budgetary process: First, limitations on Federal 
courts contained in article III of the Constitution, primarily the 
doctrine of standing, particularly as enunciated by the Supreme Court 
in Lujan v. Defenders of Wildlife, 112 S.Ct. 2130 (1992); Second, the 
deference courts owe to Congress under both the political question 
doctrine and section 6 of the amendment itself, which confers 
enforcement authority in Congress; third, the limits on judicial 
remedies which can be imposed on a coordinate branch of government--in 
this case, of course, the legislative branch. These are limitations on 
remedies that are self-imposed by courts and that, in appropriate 
circumstances, may be imposed on the courts by Congress. These 
limitations, such as the doctrine of separation of powers, prohibit 
courts from raising taxes, a power exclusively delegated to Congress by 
the Constitution and not altered by the balanced budget amendment. 
Consequently, contrary to the contention of opponents of the balanced 
budget amendment, separation of power concerns further the purpose of 
the amendment in that it assures that the burden to balance the budget 
falls squarely on the shoulders of Congress--which is consistent with 
the intent of the framers of the Constitution that all budgetary 
matters be placed in the hands of Congress.
  Concerning the doctrine of standing, it is beyond dispute that to 
succeed in any lawsuit, a litigant must first demonstrate standing to 
sue. To demonstrate article III standing, a litigant at a minimum must 
meet three requirements: First, injury in fact--that the litigant 
suffered some concrete and particularized injury; second, 
traceability--that the concrete injury was both caused by and is 
traceable to the unlawful conduct; and third, redressibility--that the 
relief sought will redress the alleged injury. This is the test 
enunciated by the Supreme Court in the fairly recent and seminal case 
of Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992). [See, 
e.g., Valley Forge Christian College v. Americans United for Separation 
of Church & State, Inc., 454 U.S. 464, 482-83 (1982).] In challenging 
measures enacted by Congress under a balanced budget regime, it would 
be an extremely difficult hurdle for a litigant to demonstrate the 
injury-in-fact requirement, that is, something more concrete than a 
generalized grievance and burden shared by all citizens and taxpayers. 
I want to emphasize that this is hardly a new concept. See Frothingham 
v. Mellon, 262 U.S. 447, 487 (1923). Furthermore, courts are not going 
to overrule this doctrine since standing has been held to be an Article 
III requirement. See Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 
26, 41 n.22 (1976).
  Even in the vastly improbable case where an injury in fact was 
established, a litigant would find it nearly impossible to establish 
the traceability and
 redressibility requirements of the article III standing test. 
Litigants would have a difficult time in showing that any alleged 
unlawful conduct--the unbalancing of the budget or the shattering of 
the debt ceiling--caused or is traceable to a particular spending 
measure that harmed them. After all, there will be hundreds and 
hundreds of Federal spending programs even after Federal spending is 
brought under control. Furthermore, because the Congress would have 
numerous options to achieve balanced budget compliance, there would be 
no legitimate basis for a court to nullify or modify a specific 
spending measure objected to by the litigant.

  As to the redressibility prong, this requirement would be difficult 
to meet simply because courts are wary of becoming involved in the 
budget process--which is legislative in nature--and separation of power 
concerns will prevent courts from specifying adjustments to any Federal 
program or expenditures. Thus, for this reason, Missouri v. Jenkins, 
495 U.S. 33 (1990), where the Supreme Court upheld a district court's 
power to order a local school district to levy taxes to support a 
desegregation plan, is inapposite because it is a 14th amendment case 
not involving, as the Court noted, ``an instance of one branch of the 
Federal Government invading the province of another.'' [Jenkins at 67.] 
Plainly put, the Jenkins case is not applicable to the balanced budget 
amendment because section 1 of the 14th amendment--from which the 
judiciary derives its power to rule against the States in equal 
protection claims--does not apply to the Federal Government and because 
the separation of powers doctrine prevents judicial encroachments on 
Congress' bailiwick. Courts simply will not have the authority to order 
Congress to raise taxes.
  Furthermore, the well-established political question and 
justiciability doctrines will mandate that courts give the greatest 
deference to congressional budgetary measures, particularly since 
section 6 of House Joint Resolution 1 explicitly confers on Congress 
the responsibility of enforcing the amendment, and the amendment allows 
Congress to ``rely on estimates of outlays and receipts.'' See Baker v. 
Carr, 369 U.S. 186, 217 (1962). Under these circumstances, it is 
extremely unlikely that a court would substitute its judgment for that 
of Congress.
  Moreover, despite the argument of some opponents of the balanced 
budget amendment, the taxpayer standing case, Flast v. Cohen, 392 U.S. 
83 (1968), is not applicable to enforcement of the balanced budget 
amendment. First, the Flast case has been limited by the Supreme Court 
to establishment clause cases. This has been made clear by the Supreme 
Court in Valley Forge Christian College, 454 U.S. at 480. Second, by 
its terms, Flast is limited to cases challenging legislation 
promulgated under Congress' constitutional tax and spend powers when 
the expenditure of the tax was made for an illicit purpose. Sections 1 
and 2 of House Joint Resolution 1, limit Congress' borrowing power and 
the amendment contains no restriction on the purposes of the 
expenditures. Finally, in subsequent cases, particularly the Lujan 
case, the Supreme Court has reaffirmed the need for a litigant to 
demonstrate particularized injury, thus casting doubt on the vitality 
of Flast. [See Lujan, 112 S. Ct. at 2136.]
  I also believe that there would be no so-called congressional 
standing for Members of Congress to commence actions under the balanced 
budget amendment. Although the Supreme Court has never addressed the 
question of congressional standing, the D.C. circuit has recognized 
congressional standing, but only in the following circumstances: First, 
the traditional standing tests of the Supreme Court are met, second, 
there must be a deprivation within the zone of interest protected by 
the Constitution or a statute--generally, the right to vote on a given 
issue or the protection of the efficacy of a vote, and third, 
substantial relief cannot be obtained from fellow legislators through 
the enactment, repeal, or amendment of a statute--the so-called 
equitable discretion doctrine. See Melcher v. Open Market Comm., 836 
F.2d 561 (D.C. Cir 1987); Riegle v. Federal Open Market Committee, 656 
F.2d 873 (D.C.
 Cir.), cert. denied, 454 U.S. 1082 (1981). Because Members of Congress 
would not be able to demonstrate that they were harmed in fact by any 
dilution or nullification of their vote--and because under the doctrine 
of equitable discretion, Members would not be able to show that 
substantial relief could not otherwise be obtained from fellow 
legislators through the enactment, repeal or amendment of a statute--it 
is hardly likely that Members of Congress would have standing to 
 challenge actions under the balanced budget amendment.the fourteenth 
              amendment and the balanced budget amendment

  Furthermore, some of my colleagues contend that because section 6 of 
House Joint Resolution 1, the section that mandates that Congress 
enforce the amendment through implementing legislation, is similar to 
section 5 of the 14th amendment, which permits Congress to enforce that 
amendment, courts will also be able to enforce the balanced budget 
amendment to the extent courts enforce the 14th amendment.
  This analogy is misleading. First, courts may only enforce an 
amendment when legislation or executive actions violate the amendment 
or when Congress creates a cause of action to enforce the amendment. An 
example of the latter is 42 U.S.C., section 1983, the 1871 Civil Rights 
Act that implements section 1 of the 14th amendment. Of 
 [[Page S2720]] course, Congress has not created, and need not create, 
an analogous cause of action under section 6 of the balanced budget 
amendment, so there is no direct judicial enforcement provision in 
existence similar to section 1983.
  Second, as to the judicial nullification of legislation or executive 
action that is allegedly inconsistent with a constitutional amendment, 
the case-or-controversy provision of article III requires that a 
litigant demonstrate standing. As I have stated at great length already 
during this debate, it is very improbable that a litigant could 
demonstrate standing under the balanced budget amendment--that the 
litigant could demonstrate a particularized injury, different from the 
generalized harm facing any citizen or taxpayer. Contrast this with 
cases under the 14th amendment where standing was found because a 
litigant could demonstrate a particular, individualized, and concrete 
harm, as in the one man, one vote case. See Reynolds v. Sims, 369 U.S. 
186 (1962).
  Third, in this circumstance, as I previously explained, under the 
separation of powers doctrine, courts will not entertain a suit where 
they cannot supply relief to the litigant. Lujan v. Defenders of 
Wildlife, 112 S.Ct. 2130 (1992). The Constitution under article I 
delegates to Congress taxing, spending, and borrowing powers. These are 
plenary powers that exclusively and historically have been recognized 
as belonging to Congress. The balanced budget amendment does not alter 
this. Courts, consequently, will be loathe to interfere with Congress' 
budgetary powers. It is simply an exaggeration to contend that courts 
will place the budgetary process under receivership or cut spending 
programs.
  Fourth, as I also explained, the political question doctrine will 
deter courts from enforcing the balanced budget amendment. Budgetary 
matters--such as where to cut programs or how to raise revenues--are
 prototypically a political matter best left to the political branches 
of government to resolve. Courts, under the political question 
doctrine, will leave these matters to Congress.


                 congress' power to restrain the courts

  Finally, it is simply wrong to assume that Congress would just sit by 
in the unlikely event that a court would commit some overreaching act. 
Believe me, Congress knows how to defend itself. Congress knows how to 
restrict the jurisdiction of courts or limit the scope of judicial 
remedies. But I do not think this necessary. Lower courts follow 
precedents, and the precepts of standing, separation of powers, and the 
political question doctrine, effectively limit the ability of courts to 
interfere in the budgetary process.
  Nevertheless, if necessary, a shield against judicial interference is 
section 6 of House Joint Resolution 1 itself. Under this section, 
Congress may adopt statutory remedies and mechanisms for any purported 
budgetary shortfall, such as sequestration, rescission, or the 
establishment of a contingency fund. Pursuant to section 6, it is clear 
that Congress, if it finds it necessary, could limit the type of 
remedies a court may grant or limit courts' jurisdiction in some other 
manner to proscribe judicial overreaching. This is nothing new. 
Congress has adopted such limitations in other circumstances pursuant 
to its article III authority. Here are a few: First, the Norris-
LaGuardia Act, [29 U.S.C. Sec. Sec. 101-115], where the courts were 
denied the use of injunctive powers to restrain labor disputes; Second, 
the Federal Tax Injunction Act, [28 U.S.C. sec. 2283], which contains a 
prohibition on Federal courts from enjoining state court proceedings; 
and third, the tax Injunction Act, [26 U.S.C. sec 7421(a)], where 
Federal courts were prohibited from enjoining the collection of taxes.
  In fact, Congress may also limit judicial review of particular 
special tribunals with limited authority to grant relief. For instance, 
the Supreme Court in Yakus v. United States, [319 U.S. 182 (1943)], 
upheld the constitutionality of a special emergency court of appeals 
vested with exclusive authority to determine the validity of claims 
under the World War II Emergency Price Control Act. In more recent 
times, the Supreme Court, in Dames & Moore v. Reagan, [453 U.S. 654 
(1981)], upheld the legality of the Iranian-United States Claims 
Tribunal as the exclusive forum to settle claims to Iranian assets.
  Beyond which, as I have mentioned earlier, in the virtually 
impossible scenario where these safeguards fail, Congress can take 
whatever action it must to moot any case in which a risk of judicial 
overreaching becomes real.
  Mr. President, I believe it is clear that the enforcement concerns 
about the balanced budget amendment do not amount to a hill of beans. 
The fear of the demon of judicial interference is exorcised by the 
reality of over a century of constitutional doctrines that prevent 
unelected courts from interfering with the power of the democratic 
branch of government and that bestow Congress with the means to protect 
its prerogatives.
  Mr. President, it is very clear. I do not think we should amend this 
amendment, certainly not with the language the distinguished Senator 
from Louisiana has brought forth here, which will lead us to more 
litigation than ever before in worse ways than ever before, and a 
reduction in the amount of Congress' power that currently exists, 
especially when we can easily change it in the implementing legislation 
without any problems.
  I suggest the absence of a quorum.
  Mr. JOHNSTON addressed the Chair.
  Mr. HATCH. I withhold.
  The PRESIDING OFFICER. The Senator from Louisiana.
  Mr. JOHNSTON. Mr. President, I yield myself 1 minute, just simply to 
reply to the argument that somehow this language would do away with the 
requirement for standing.
  Mr. President, all this language says is that the judicial power of 
the United States shall not extend to a case in controversy under this 
article except for section 2.
  Now, I invite a comparison with the present language of the 
Constitution which says:

       The judicial power shall extend to all cases, in law and 
     equity, arising under this Constitution, the laws of the 
     United States, and treaties made.

  Now, under the language of the Constitution which says the judicial 
power shall extend to cases, controversies, et cetera, the court has 
required standing. It is the same language that we have in this 
amendment. Whatever requirement the court will find for standing under 
this amendment is the same language that inheres under the 
Constitution. And so, Mr. President, there is no expansion of standing 
under section 2 under our amendment.
  Now, Mr. President, I would yield 2 minutes to the distinguished 
Senator from Washington.
  Mr. GORTON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Washington.
  Mr. GORTON. It seems to me the argument of my distinguished colleague 
from Utah comes down to a very simple set of inconsistent propositions. 
Proposition No. 1, courts are not going to get involved in enforcing 
this amendment. Proposition No. 2, we ought to have the courts involved 
in enforcing this amendment.
  I just simply do not believe that Members can have it both ways. If, 
in fact, courts are going to stay out by reason of standing or other 
various doctrines which are not themselves contained in the 
Constitution, then it certainly does no harm to see to it that that is 
the result.
  If, in fact, it is the proposition of the proponents of this 
constitutional amendment, some of the proponents because I am one of 
them, that courts should be involved, then it seems to me they are 
doing something in this field that almost without exception they 
deprecate in other fields. Judicial activism should not be invited into 
the process of writing budgets of the United States. That is a 
legislative and executive function.
  The reason for the amendment is that the Senator from Louisiana, 
together with this Senator, wants to make certain that this remains 
solely a function of Congress and of the executive branch of 
Government. And all Members who feel that the courts may very well be 
too active today in many social and political issues should vote in 
favor of the amendment.
  Mr. JOHNSTON. Mr. President, I yield 2 minutes to the Senator from 
Arkansas.
  The PRESIDING OFFICER. The Senator from Arkansas.
   [[Page S2721]] Mr. PRYOR. Mr. President, I thank the Chair and I 
thank the Senator from Louisiana for yielding 2 minutes to me.
  Mr. President, very quickly, I want to commend my friend from 
Louisiana, Senator Johnston, for offering this amendment this 
afternoon. I truly believe that this is one of the most important 
amendments and one of the most critical decisions that we will make 
during the debate on the proposed amendment to the Constitution of the 
United States to have and to require a balanced budget.
  Mr. President, I want to make two quick points. First, I think if the 
amendment of the Senator from Louisiana is defeated by this body this 
afternoon, two things are going to happen. I think the first thing is 
that this is going to be seen by the courts as an actual invitation to 
come forward and start implementing the balanced budget to the 
Constitution of the United States, assuming that two-thirds of the 
Senators agree and that three-fourths of the States support the 
balanced budget amendment.
  The second thing, Mr. President, I say in all due respect, that I 
think is going to happen, is that the courts will look at the defeat of 
the Johnston amendment that we are now considering and are about to 
vote on, as having established legislative intent--should we defeat 
this amendment. And I only assume that the courts would ultimately 
declare that the Senate had decided, through the process of 
establishing legislative intent, that the courts would be the proper 
implementing authority to implement the balanced budget clause of the 
Constitution of the United States; the balanced budget amendment of the 
Constitution of the United States.
  So I see two very bad things coming as a result, Mr. President.
  If I could have 1 additional minute, Mr. President?
  I thank my friend from Louisiana.
  The PRESIDING OFFICER. The Senator may proceed.
  Mr. PRYOR. I see two very bad things happening if we turn down the 
Johnston amendment. I think the Johnston amendment is sound. I think if 
you could take a poll of the country today and ask the people if they 
want the courts to implement a balanced budget amendment to the 
Constitution of the United States, if they want an unelected lifetime 
appointed Federal district judge from wherever to raise the taxes 
necessary to implement a balanced budget amendment to the Constitution, 
or in the Constitution, most people would say no. I say that if we fail 
to support, this afternoon, the very fine, clarifying amendment offered 
by the Senator from Louisiana, there could be a disastrous effect.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Who yields time?
  Mr. JOHNSTON. Mr. President, how much time remains on each side?
  The PRESIDING OFFICER. The Senator from Louisiana has 17 minutes. The 
Senator from Utah has 11\1/2\ minutes.
  Mr. JOHNSTON. Mr. President, I yield 4 minutes to the Senator from 
Michigan.
  The PRESIDING OFFICER. The Senator from Michigan has 4 minutes.
  Mr. LEVIN. Mr. President, I commend the Senator from Louisiana and 
the Senator from Washington. These are two Senators who have different 
positions on the underlying amendment but who have come in very strong 
agreement on the need to clarify an ambiguity. Whatever side of the 
issue we are on, the underlying issue, we cannot in good conscience 
essentially leave a critical ambiguity in the Constitution as to how it 
is going to be enforced and whether or not the courts are going to be 
able to enforce this document.
  The Senator from Utah, in whom I have a great deal of confidence and 
trust as a person of honor, says that it is very clear the courts 
cannot interfere with the budgetary process. And that is his intent. 
When he says it, as he has a number of times, I accept this as being 
his intent.
  The difficulty is the lead sponsor of this language in the House 
seems to have a very different intent. So we are caught in an 
ambiguity. The ambiguity is not just between law professors. The 
ambiguity is between the language of the sponsor of this amendment that 
is before us in the House and the lead sponsor in the Senate, on the 
very important questions of standing to sue and what a court can do.
  Representative Schaefer, in a formal answer for the Record--not a 
casual comment but a formal answer for the Record--he says the courts 
could invalidate individual appropriation or tax acts. I read this 
earlier this afternoon. I had it blown up so we could all see exactly 
what it is that he has said. ``The courts could make only a limited 
range of decisions on a limited number of issues.''
  What are they? ``They could invalidate an individual appropriation or 
tax act. They could rule as to whether a given act of Congress or 
action by the executive violated the requirements of this amendment.'' 
Perhaps he describes that as a limited range of decisions but surely 
that is a major intrusion in the budgetary processes of the U.S. 
Government.
  I wish the intention were clear. I wish it were clear for the sake of 
a constitutional amendment which may be adopted.
  For many other reasons I hope it will not be. I am one of those who 
opposes it for a number of reasons. But whatever side of the 
constitutional amendment issue we are on, it is incumbent on us to have 
language which is clear as to the heart of the matter, which is the 
enforcement of it. Over and over again we have stated the intention to 
balance the budget. The heart of the matter is can it be enforced and, 
if so, how will it be enforced? What is the mechanism to enforce it? 
The Johnston amendment clarifies the question of whether courts will 
take over legislative functions, such as individual appropriation acts 
or tax acts.
  This is not a casual comment by one person who is voting for the 
amendment in the other body. This is a formal statement for the 
Record--one of many, by the way, which differs from the sponsors here--
for instance on questions of standing. It is----
  Mr. JOHNSTON. Will the Senator yield at that point?
  Mr. LEVIN. I will be happy to yield.
  Mr. JOHNSTON. Does it not follow, if you have the power to invalidate 
a tax act, that you also have a power to order a tax?
  The PRESIDING OFFICER. The Senator's 4 minutes have expired.
  Mr. JOHNSTON. I yield 2 additional minutes.
  The PRESIDING OFFICER. The Senator may proceed for 2 additional 
minutes.
  Mr. LEVIN. I think that may well follow. But if you can invalidate an 
appropriation act or a tax act you are deep in the budgetary process.
  Representative Schaefer has said that a Member of Congress, 
``probably would have standing to file suit.'' That is a formal answer 
to a formal question, ``probably would have standing.''
  Mr. HATCH. Will the Senator yield?
  Mr. LEVIN. I will be happy to if I have time.
  Mr. HATCH. Just one sentence. Congressman Schaefer, as sincere as he 
was, is not a lawyer. His life's work has been in public relations. He 
was simply wrong. I do not see anybody--I do not know anybody who would 
argue that they can invalidate individual appropriations or tax acts. 
He may have been very sincere making that statement. He was simply 
wrong.
  Mr. LEVIN. I believe the Senator from Idaho put the exact same 
answers in the Record on this side, in the Congressional Record.
  This is not a casual answer in a colloquy during a debate. These are 
formal answers, the questions and answers for the Record by the chief 
sponsor of the constitutional amendment that we are voting on. This was 
not something he threw off on his way to a press conference. This is 
formal. I am reading the Congressional Record in the House, on page 
8754 here, and I am reading it precisely. It is--this is a long 
document of questions and answers for the Record.

       The courts could invalidate an individual appropriation or 
     tax act.

  On the question of standing, if we could get the other quote up here 
on the question of standing--this is what Representative Schaefer said.

       A Member of Congress or an appropriate administration 
     official probably would have standing to file suit.

  The Senator from Utah--and I take his word. I know--it is not his 
intent. 
 [[Page S2722]] When he looks me in the eye and he tells me what his 
intent is, no question, I accept it. I know him well. But it is very 
different from what Representative Schaefer, who is the prime sponsor 
of this amendment, is telling us.
  The PRESIDING OFFICER. The Senator's time has expired.
  Mr. LEVIN. May I have one minute? I am out of time. I do not know if 
the Senator from Utah wants to ask me a question.
  The PRESIDING OFFICER. Who seeks time?
  Mr. HATCH. If I could. I do not know Representative Schaefer very 
well. But I do know his experience in these matters is somewhat 
limited. The fact that somebody puts something in the Record, albeit as 
sponsor of the amendment--this amendment has been around a long time. 
He was cosponsor of it. That does not mean he, or anyone else, wrote 
it.
  But let us just talk in terms of what is really involved here.
  The contention, for instance, that the balanced budget amendment 
would allow Federal courts to offer the raising of taxes is absolutely 
without merit. It is based on a misunderstanding of the case of 
Missouri versus Jenkins, which was a 14th amendment case.
  In that case the Supreme Court in essence approved, by a 5-to-4 vote, 
a lower court remedial order directing State or county political 
subdivisions to raise taxes to support a court-ordered school 
desegregation order. The lower court had previously found that the 
school district had engaged in intentional segregation, in violation of 
the 14th amendment's equal protection clause.
  The concern that the balanced budget amendment would allow a Federal 
court to order Congress to raise taxes to reduce the deficit is plainly 
without merit. Why? Because Jenkins is a 14th amendment case. Under the 
14th amendment jurisprudence, Federal courts may perhaps issue this 
type of remedial relief to force the equal protection clause against 
the States, but certainly not against Congress, a coequal branch of 
Government. The 14th amendment, of course, does not apply to the 
Federal Government.
  No. 2, separation-of-powers concerns would prohibit the judiciary 
from interfering with the budgetary, taxing, borrowing, and spending 
powers that are exclusively delegated to Congress by the Constitution.
  And, three, Congress simply cannot be made a party-defendant. To 
order taxes to be raised, Congress would have to be named a defendant. 
Presumably, suits to enforce the balanced budget amendment would arise 
when an official or an agency of the executive branch seeks to enforce 
or administer a statute whose funding is in question in light of the 
amendment. In the case of Riegle versus Federal Open Market Committee, 
the court noted that ``when a plaintiff alleges injury by 
unconstitutional actions taken pursuant to a statute, his proper 
defendants are those acting under the law * * * and not the legislature 
which enacted the statute.''
  So, I respect Congressman Schaefer, but he just simply is wrong on 
those statements, and the law says he is wrong.
  Mr. President, let me just switch for a minute. I ask unanimous 
consent that Senator Biden be recognized to offer an amendment on 
capital budgeting following the disposition of Senator Johnston's 
amendment and Senator Byrd be recognized to offer an amendment 
following the disposition of Senator Biden's amendment. I also ask 
unanimous consent that there be a time limit on the Biden amendment 
prior to a motion to table as follows: 90 minutes under Senator Biden's 
control, 20 minutes under Senator Hatch's control; and, that at the 
conclusion or yielding of time, the majority leader or his designee be 
recognized to offer a motion to table the Biden amendment and that no 
other amendments be in order prior to the motion to table.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum and ask 
that it not be charged to either side.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  The legislative clerk proceeded to call the roll.
  Mr. JOHNSTON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. JOHNSTON. Mr. President, I yield to the distinguished Senator 
from Pennsylvania 5 minutes.
  How much time do I have left?
  The PRESIDING OFFICER. Eleven minutes 7 seconds.
  The Senator from Pennsylvania.
  Mr. SPECTER. Mr. President, I had asked the distinguished Senator 
from Louisiana to yield me time because the manager of the bill, the 
distinguished Senator from Utah, asked me if I could get time. I have 
not made up my mind yet on the matter, but I wanted to express my 
concerns about the pending issue's repealability and have some ideas 
from the manager as to where the issue stood.
  While this floor debate has been in process, the Judiciary Committee 
has been meeting in the Antitrust Subcommittee on the baseball issue. 
The pending amendment makes it plain that there will not be Federal 
court jurisdiction, that the judicial power of the United States shall 
not extend in any case or controversy arising under this article except 
section 2 here, which may be specifically authorized in implementing 
legislation pursuant to this section.
 But I inquire of the Senator from Louisiana what the exception for 
  section 2 refers to.Mr. JOHNSTON. Section 2 provides that the limit 
on the debt of the United States held by the public shall not be 
increased unless three-fifths of the whole number of each House shall 
provide for that.
  Mr. SPECTER. I thank my colleague. That is very limited exception. 
There is no jurisdiction. The issue of jurisdiction concerns me 
greatly. Earlier this year, I argued a case at the Supreme Court of the 
United States involving the Base Closure Commission. The issue was 
whether Federal courts had jurisdiction of the matter. I had the 
occasion to do very extensive research on the jurisdictional question. 
It is my view that there ought not to be jurisdiction in the Federal 
courts on the compliance with the constitutional amendment. This is a 
duty on the Congress.
  There is the possibility of extensive litigation, and we ought to 
make our position clear on that in one way or another.
  If I may have the attention of the Senator from Utah. I understand 
the concerns the Senator from Utah has in not wanting to have 
amendments added to the bill because that subjects the issue to 
conference, but the question I have of the managers of the measure is 
what is the import of the absence of this amendment? Will there be 
jurisdiction of the Federal courts, I first inquire of my colleague 
from Utah?
  Mr. HATCH. Well, first of all, it is not just the concern about going 
to conference, it is a concern about the House wanting to pass the 
balanced budget again with this amendment in it. We are not sure where 
everybody is there. Second, if we do go to conference, we are not sure 
we can hold on to it. Even so, third, the amendment now, as modified, 
says, ``The judicial power of the United States shall not extend to any 
case or controversy arising under this article except for section 2 
hereof.'' That has now been put into the amendment, which worries us.
  If section 2 is opened up for litigation, then the courts may take 
that as an implication that we will permit their lessening of the 
standing requirements and other requirements. So we think that makes it 
even worse and that would create even more litigation than the Senator 
is talking about.
  Last but not least, we are very concerned that if you cut off 
litigation rights for cases, which I personally cannot conceive of at 
this point, but as the distinguished Senator from Pennsylvania 
understands, with his experience in the law, there may be real rights 
that may have to be brought in the courts for particularized injuries 
to individuals. Those are the reasons.
  Mr. SPECTER. I ask my colleague from Utah, if the language exception 
as to section 2 were removed, would the amendment be agreeable?
  Mr. HATCH. No, it still would not be because of the other reasons. It 
still 
 [[Page S2723]] would not be agreeable because we believe it is a false 
issue.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. JOHNSTON. Does the Senator wish another minute?
  Mr. SPECTER. It depends on how long Senator Hatch's answer is.
  Mr. HATCH. It will be at least a minute. We do not believe that we 
have to fear the courts in this matter, because of the principle of 
standing, and the doctrines of justiciability, the political question 
and separation of powers.
  Mr. SPECTER. Well, if I may have 30 seconds more, is it the view of 
my colleague from Utah, the manager of the measure, that there would be 
no Federal jurisdiction, no jurisdiction in the Federal courts even 
without this amendment?
  Mr. HATCH. I am not sure I understand the question.
  Mr. SPECTER. Well, if this amendment is defeated, could the U.S. 
courts entertain jurisdiction in a suit that is brought challenging the 
following or compliance with the constitutional amendment for a 
balanced budget?
  Mr. HATCH. Only if the court is extremely activist and not willing to 
follow the law.
  Mr. SPECTER. Only if the court is----
  Mr. HATCH. There may be jurisdiction, but there will not be any 
standing. That is the difference. It would take a very activist judge, 
who I think would be slapped down very quickly.
  Mr. SPECTER. If you are going to rely on standing, the vagaries of 
that issue, or a defense that may be advanced to stop somebody from 
going into court, that is very perilous ground. I think it is advisable 
for this body to face the jurisdictional issue squarely. I think we 
ought to say whether or not we wish the Federal courts to have 
jurisdiction over compliance with the constitutional amendment for a 
balanced budget.
  The PRESIDING OFFICER. The time of the Senator has expired.
  Mr. JOHNSTON. Mr. President, the Senator from Pennsylvania, who has 
one of the best legal minds in this body, has put his finger directly 
on the question. It is not clear whether there would be standing, 
justiciability, or whether it would be a political question. But the 
majority of the opinions I have seen indicate that there would be such 
standing. The Harvard Law Review demonstrates, however, that taxpayers 
probably would have standing to challenge. Professor Tribe, Judge Bork, 
and on and on, Mr. President. The better view is that there probably is 
standing that the courts would interfere, but it is not clear and it 
ought to be cleared up. That is what this amendment does.
  Mr. President, how much time remains?
  The PRESIDING OFFICER (Mr. Craig). The Senator from Louisiana has 
4\1/2\ minutes. The Senator from Utah has 7\1/2\ minutes.
  Mr. HATCH. Can I ask the date of that law review article?
  Mr. JOHNSTON. Harvard Law Review, 1983.
  Mr. HATCH. That preceded the Lujan case. The law review articles 
precede that case and are not applicable.
  Mr. President, I suggest the absence of a quorum and ask that it not 
be charged to either side.
  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. JOHNSTON. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Jeffords). Without objection, it is so 
ordered.
  Mr. GRASSLEY. Mr. President, I oppose the Johnston amendment because 
it is unnecessary and based on false premises. Under the constitutional 
balanced budget amendment before us, the Congress will have the 
authority to enforce the balanced budget amendment. All issues 
regarding the implementation and enforcement of the amendment will be 
resolved through implementing legislation.
  A constitutional amendment necessarily is limited to general 
principles. It cannot spell out all issues that could arise under that 
amendment. Many constitutional amendments provide that Congress can 
enforce the provision through appropriate legislation. House Joint 
Resolution 1 follows in that tradition.
  I agree that any litigation that might be brought under this 
amendment should be resolved expeditiously. But the amendment offered 
by the Senator from Louisiana is not necessary to achieve that result. 
Congress can set the appropriate jurisdiction of the Federal courts. 
Congress can pass implementing legislation that provides for Federal 
court actions only. And it can provide for expedited review of lower 
court decisions and set forth the available relief.
  However, Congress cannot adopt the suggestion of the Senator from 
Louisiana that Congress could give the Supreme Court original 
jurisdiction to hear a case under the balanced budget amendment. The 
Supreme Court ruled in Marbury versus Madison that Congress cannot 
expand the original jurisdiction of the Supreme Court.
  Only litigants with standing to challenge governmental action under 
the amendment would be able to file a lawsuit under the requirements of 
article III. Some few individuals might have standing. Even these 
individuals, however, would not be able to require a judicial 
resolution of their cases if the Court concludes that the case raises a 
political question.
  Under the political question doctrine, courts will not decide cases 
raising issues that appropriately fall within the authority of the 
other two branches. For example, the Constitution guarantees a 
Republican form of government.
  But the courts have refused to issue decisions in cases raising that 
constitutional provision because its enforcement appropriately lies 
within the authority of the political branches. Similarly, courts have 
refused to intervene in challenges to the President's authority over 
foreign affairs.
  Many of the questions raised under this amendment would also be 
political ones that courts would not rule on.
  All the supporters of the balanced budget amendment are concerned 
with the idea of courts potentially making tax and spending decisions. 
We intend that courts not do that. And we will pass implementing 
legislation to address the process by which any litigation can be 
brought. There is no need to preclude judicial enforcement pending the 
enactment of that implementing legislation.
  Mr. CRAIG. Mr. President, I rise in opposition to the Johnston 
amendment.
  I am not a lawyer, but legal and constitutional experts I trust and 
respect have convinced me that the supposed problem with judicial 
review is, at best, no problem at all; and, at worst, it is a red 
herring that may give some Senators an excuse to vote no on the BBA.
  I start with Senator Hatch, an outstanding constitutional lawyer. If 
there were a risk of judicial intrusion into legislative matters, he 
would be the down here arguing for an amendment to restrict the power 
of the courts.
  I am convinced that there is no risk of improper court action. 
Otherwise, I would be the first Senator down here supporting a limit on 
judicial review.
  I am persuaded by the testimony of former Attorney General William 
Barr. To summarize what he said:
  There is a remote risk of judicial micromanagement; if judicial 
intrusion arose, Congress could correct it by statute;
  The remote, correctable risk was far outweighed by the need for, and 
the benefits of the balanced budget amendment;
  There would rarely--if ever--be standing to sue;
  The Constitution, the balanced budget amendment itself, and long-
established judicial and constitutional doctrines all require the 
courts to pay great deference to Congress' handling of legislative 
business, especially when Congress acts affirmatively to establish 
statutory processes to enforce and implement the amendment.
  Former Attorney General Griffin Bell, a Democrat from the Carter 
administration appeared before the Judiciary Committee this year to 
strongly endorse the balanced budget amendment.
  In a 1992 memo to Representative L.F. Payne on this subject, the 
Lincoln Legal Foundation said this:

       [[Page S2724]] (T)here is virtually no danger that the 
     constitutional balanced budget amendment . . . would cede the 
     power of the purse to a runaway judiciary. To the contrary, 
     it would eliminate certain authorities that courts currently 
     have to order the disbursement of federal funds without 
     appropriations.

  Last year, in testimony, attorney John C. Armor told the Judiciary 
Committee:
  The balanced budget amendment a suitable addition to the 
Constitution;
  Limited judicial review was appropriate;
  Congress is already empowered in the Constitution to limit judicial 
intrusion appropriately through statute.
  Finally, I refer to an excellent brief memo by the U.S. Chamber of 
Commerce that summarizes how judicial action will be limited 
appropriately.
  I am tired of opponents to the balanced budget amendment citing the 
Missouri v. Jenkins case.
  I agree that Missouri v. Jenkins was decided wrongly; but that case 
has nothing to do with the legal or constitutional considerations 
around this amendment.
  That was a case of Federal pre-emption. That was a case of the 
Federal courts enforcing Federal law on a local school district.
  Let us look at our Constitution:
  Article I says, ``All legislative powers herein granted shall be 
vested in a Congress of the United States * * *''
  Raising taxes is a legislative power.
  Writing budgets and setting priorities is a legislative power.
  Article III says: ``* * * the Supreme Court shall have appellate 
jurisdiction, both as to law and fact, with such exceptions, and under 
such regulations as the Congress shall make.''
  Let us look at the amendment itself:
  Section 6 says Congress will enforce and implemented the BBA;
  Section 6, by expressly allowing good faith reliance on reasonable 
estimates, allows Congress reasonable flexibility and reduces the 
likelihood of second-guessing by the courts;
  Section 2, by subjecting Congress to 3/5 votes on the limit on
   debt held by the public, makes the amendment essentially self-
enforcing and locates that self-enforcement squarely in Congress.

  No other amendment to the Constitution removes the courts from the 
process of enforcement.
  In fact, the very, very slight chance that some case may come before 
the courts is a good thing; it will motivate Congress to make sure we 
comply with the amendment and stay out of court. It will reassure 
American people that the same branches of Government that built up a 
$4.7 trillion debt, will at least have the legality of their actions 
subject to fair and impartial interpretation.
  At the same time, judicial involvement will be limited to, in the 
words of Marbury versus Madison, ``saying what the law is.'' They may 
strike down a piece of budget legislation--we may be told to go back 
and start over. They may rule whether an action by the President is or 
is not contrary to the amendment.
  It does not mean the courts can write a budget or raise taxes. But 
interpreting the law is the job of the courts. Congress can enact 
reasonable limitations on judicial review. All of which is appropriate, 
limited, and balanced.
  As Senator Brown has pointed out, the experience of the States with 
that flood of lawsuits has never materialized.
  Finally, as Senator Simon has said, if we balance the budget, if we 
run small surpluses, if we take care to vote on the issues the 
amendment says to vote on, we will never be hauled into court.
  I ask unanimous consent that the various documents that I have just 
referred to be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:
   Statement of William P. Barr, Senate Committee on the Judiciary, 
       Hearings on the Balanced Budget Amendment, January 5, 1995

       Mr. Chairman and distinguished members of the Committee: I 
     am honored to have been invited today to testify on the 
     Balanced Budget Amendment.
       You have asked me to discuss whether judicial enforcement 
     of the Amendment would result in undue interference by the 
     federal courts in the budget process.
       In my view, though it is always difficult to predict the 
     course of future constitutional law development, the courts' 
     role in enforcing the Balanced Budget Amendment will be quite 
     limited. I see little risk that the Amendment will become the 
     basis for judicial micromanagement or superintendence of the 
     federal budget process. Furthermore, to the extent such 
     judicial intrusion does arise, the Amendment itself equips 
     Congress to correct the problem by statute. On balance, 
     moreover, whatever remote risk there may be that courts will 
     play an overly intrusive role in enforcing the amendment, 
     that risk is, in my opinion, vastly outweighed by the 
     benefits of such an Amendment.
       I believe there are three basic constraints that will tend 
     to prevent the courts from becoming unduly involved in the 
     budgetary process: (1) the limitations on the power of 
     federal courts contained in Article III of the Constitution--
     primarily the requirement of standing; (2) the deference 
     courts would owe to Congress, both under existing 
     constitutional doctrines, and particularly under section 6 of 
     the amendment itself, which expressly confers enforcement 
     responsibility on Congress; and (3) the limits on judicial 
     remedies running against coordinate branches of government, 
     both that the courts have imposed upon themselves and that, 
     in appropriate circumstances, Congress may impose on the 
     courts.
       I will discuss each of these constraints in turn. Before I 
     do, however, let me note that my remarks will focus on 
     sections 1 and 2 of the Amendment. It is these provisions 
     that would create new limits on Congress' power to borrow and 
     to expend borrowed funds, and those new limits may 
     potentially give rise to new opportunities for courts to 
     intrude themselves into the budgetary process in ways they 
     currently cannot. Section 4 of the Amendment, in contrast, 
     presents no such new opportunity or risk for judicial 
     interference in the budgetary process. Section 4 merely adds 
     further procedural requirements for the passage of revenue 
     bills, and courts today already may entertain claims that 
     revenue bills (either taxes or user fees) do not comply with 
     clear constitutional procedures.


                       i. article iii limitations

       Article III of the Constitution confines the jurisdiction 
     of the federal courts to ``Cases'' or ``Controversies.'' As 
     an essential part of this case-or-controversy limitation, any 
     plaintiff who hopes to invoke the judicial power of the 
     federal courts must demonstrate sufficient ``standing.''
       Although the Court has not been completely consistent is 
     defining this doctrine, its fundamental principles remain 
     clear. At an irreducible minimum, a plaintiff must show three 
     things to satisfy the standing requirement: (1) ``injury in 
     fact''--that he personally has suffered some concrete and 
     particularized injury; (2) ``traceability''--that the 
     particularized injury was caused by, and is fairly traceable 
     to, the allegedly illegal conduct; and (3) 
     ``redressibility''--that the relief sought will likely 
     redress the plaintiff's injury. E.g., Lujan v. Defenders of 
     Wildlife, 112 S. Ct. 2130, 2136 (1992); Valley Forge 
     Christian College v. Americans United For Separation of 
     Church & State, Inc., 454 U.S. 464, 482-83 (1982); Simon v. 
     Eastern Kentucky Welfare Rights Organization, 426 U.S. 26, 
     38, 41 (1976).
       Basically, we can anticipate two kinds of court challenges 
     relating to sections 1 and 2 of the Balanced Budget 
     Amendment: (1) a claim that a particular budgetary action 
     (such as a spending or borrowing measure) violates the 
     Amendment or its implementing statutes by ``unbalancing'' the 
     budget or by exceeding the applicable debt limit, or (2) a 
     claim that one of the implementing mechanisms enacted by 
     Congress pursuant to section 6 of the Amendment is itself in 
     violation of section 1 or 2. In either case, I believe, few 
     plaintiffs would be able to establish the requisite standing 
     to invoke federal court review.
    
    
       The ``injury in fact'' requirement alone would be an 
     imposing hurdle. It is fundamental that, to establish 
     ``injury in fact,'' a plaintiff cannot rely on generalized 
     grievances and burdens shared by all citizens and taxpayers, 
     but rather must be able to show a particularized injury that 
     he has distinctively sustained. No private citizen or group 
     would have standing to obtain judicial enforcement of the 
     Amendment solely by virtue of their status as a citizen or 
     taxpayer. Their supposed injury--the burden of deficit 
     spending and increased debt--is shared by all taxpayers and 
     is precisely the kind of ``generalized grievance'' to which 
     the judicial power does not extend. As the Supreme Court 
     recently reiterated: ``As an ordinary matter, suits premised 
     on federal taxpayer status are not cognizable in the federal 
     courts because a taxpayer's `interest in the moneys of the 
     Treasury . . . is shared with millions of others, is 
     comparatively minute and indeterminable; and the effect upon 
     future taxation, or any payments out of the funds, so remote, 
     fluctuating and uncertain, that no basis is afforded for 
     [judicial intervention].''' Asarco, Inc. v. Kadish, 490 U.S. 
     605, 613 (1989) (quoting Frothingham v. Mellon, 262 U.S. 447, 
     487 (1923)).
       Moreover, even in the case where a plaintiff could 
     establish ``injury in fact''--by showing, for example, that a 
     specific budgetary action causes particularized and distinct 
     harm to him--it would still be difficult for that plaintiff 
     to satisfy the remaining two elements of Article III 
     standing--the traceability and redressibility requirements. 
     Given the myriad components of any budget, most plaintiffs 
     would be unable to show that the putatively illegal conduct--
     the 
      [[Page S2725]] unbalancing of the budget or the breaking of 
     the debt ceiling--was ``caused'' by, and hence is fairly 
     traceable to, the particular spending measure that has 
     allegedly harmed them. Moreover, a plaintiff would be hard 
     put to demonstrate redressibility because the political 
     branches would have numerous ways to achieve compliance with 
     the Amendment--other than by eliminating the specific measure 
     harming the plaintiff. There would thus be no legitimate 
     basis for a court to single out and strike down the specific 
     spending measure to which the plaintiff objects.
    
    
       I should for a moment address the case of Flast v. Cohen, 
     392 U.S. 83 (1968), where the Supreme Court, 27 years ago, 
     allowed a taxpayer to mount an Establishment Clause challenge 
     against federal aid to parochial schools. Flast is the only 
     instance where the Court has departed from its rigorous 
     restriction on taxpayer standing. Flast plainly has no 
     application to the present context and would not authorize 
     general taxpayer standing to seek judicial enforcement of the 
     Balanced Budget Amendment. First, the Court has never 
     identified any constitutional restriction on the powers of 
     Congress other than the Establishment Clause that might 
     support an exception to the general prohibition on taxpayer 
     standing. Moreover, by its terms, Flast is limited to cases 
     challenging congressional action taken under its tax-and-
     spending power (Art. I, Sec. 8, Cl. 1 of the Constitution) 
     when the expenditure of tax revenue is made for an illicit 
     purpose. In contrast, sections 1 and 2 of the Balanced Budget 
     Amendment limit Congress' borrowing power (a separate power, 
     enumerated in Art. I, Sec. 8, Cl. 2) and contains no 
     restriction on the purposes of congressional expenditures. 
     The Court has expressly declined to extend Flast beyond the 
     exercise of Congress' power under Art. I, Sec. 8, Cl. 1 to 
     other fiscal provisions. See, e.g., Valley Forge Christian 
     College, 454 U.S. at 480. And finally, in subsequent cases, 
     the Supreme Court has consistently reaffirmed to need for all 
     plaintiffs to demonstrate particularized injury, thus casting 
     doubt on the continued vitality of Flast. I cannot see the 
     Court resurrecting and extending Flast in the context of the 
     Balanced Budget Amendment.
       There remains the question whether, by virtue of their 
     office, Members of Congress can establish standing where a 
     private citizen could not. The Supreme Court has never 
     recognized congressional standing, and forceful arguments 
     have been advanced against it. See Barnes v. Kline, 759 F.2d 
     21, 41-51 (D.C. Cir. 1985) (Bork, J., dissenting), vacated as 
     moot sub nom. Burke v. Barnes, 479 U.S. 361 (1987). Those 
     lower courts that have allowed congressional standing have 
     limited it in ways that would greatly restrict its use in 
     efforts to enforce the Balanced Budget Amendment. First, 
     Members must demonstrate that they have suffered injury in 
     fact by dilution or nullification of their congressional 
     voting power. In addition, Members must still satisfy the 
     other requirements of Article III standing, including the 
     traceability and redressibility requirements. And finally, 
     under the doctrine of ``equitable discretion,'' recognized by 
     the D.C. Circuit, Members must show that substantial relief 
     could not otherwise be obtained from fellow legislators 
     through the enactment, repeal or amendment of a statute. See 
     Melcher v. Federal Open Market Comm., 836 F.2d 561, 563 (D.C. 
     Cir. 1987).
       Even if the legitimacy of congressional standing, in 
     principle, were ultimately accepted by the Supreme Court, I 
     would expect that doctrine would have narrow application in 
     the context of the Balanced Budget Amendment. Even if a 
     circumstance arose where a Member could meet the first two 
     requirements, it seems that, absent a serious and clear 
     abuse, the equitable discretion doctrine would militate 
     strongly against allowing congressional standing. This is not 
     like the Pocket Veto cases where the Executive has allegedly 
     ``nullified'' a Member's vote; here it is Congress itself 
     that is taking the challenged action. If the doctrine of 
     ``equitable discretion'' has any force, it should apply to 
     limit judicial actions by individual Members who wish to 
     challenge enforcement of the Congress' own budgetary 
     decisions, since the real grievance of the congressional 
     plaintiffs in such a case would be the failure to persuade 
     their fellow legislators of the correctness of their point of 
     view. See Moore v. United States House of Representatives, 
     733 F.2d 946, 956 (D.C. Cir. 1984), cert. denied, 469 U.S. 
     1106 (1985); Riegle v. Federal Open Market Comm., 656 F.2d 
     873, 881 (D.C. Cir.), cert. denied, 464 U.S. 1082 (1981).
    
    
       It is obvious from this discussion that I view Article 
     III's standing requirement as a principal safeguard against 
     undue judicial activism in this area. But I would be the last 
     to say that the standing doctrine is an ironclad shield 
     against judicial activism. The doctrine is malleable and it 
     has been manipulated by the courts in the past. There is a 
     clear trend, however, toward narrowing the parameters of 
     constitutional standing. See Lujan v. Defenders of Wildlife, 
     supra; Valley Forge Christian College, supra. Furthermore, we 
     can anticipate that the congressional budgetary process is 
     not likely to be a field where the courts would be eager to 
     stretch the doctrine. The federal budget and the public debt 
     limits do not typically implicate sensitive individual 
     rights, and thus there may be less temptation for courts to 
     apply the standing requirements more loosely. In addition, 
     courts are not expert at fathoming the ins and outs of 
     budgetary arcana, and there is no reason to think they would 
     be so inclined to enter that thicket as to manipulate 
     standing principles to do so. Nevertheless, the possibility 
     remains. One way to minimize the risk of such judicial 
     activism is for Congress to take care in the wording of any 
     particular statutes that are enacted in implementing the 
     Amendment so as not to give rise to colorable claims of 
     standing or private rights of action.
       Before moving on, I should also point out for the Committee 
     one area that I believe does hold some potential for mischief 
     and that Congress may wish to address. That is the area of 
     state court review. The constraints of Article III do not, of 
     course, apply to state courts, which are courts of general 
     jurisdiction. State courts are not bound by the ``case or 
     controversy'' requirement or the other justiciability 
     principles, even when deciding issues of federal law, 
     including the interpretation of the Federal Constitution. 
     Asarco, Inc., 490 U.S. at 617. Accordingly, it is possible 
     that a state court could entertain a challenge to a federal 
     statute under the Balanced Budget Amendment despite the fact 
     that the plaintiffs would not satisfy the requirements for 
     standing in federal court. Absent an applicable provision in 
     federal law for exclusive jurisdiction in the federal courts, 
     the state court in such a circumstance would have the 
     authority to render a binding legal judgment. Ibid. The only 
     avenue for federal review would be by certiorari to the 
     Supreme Court, which has held that it may exercise its 
     discretionary jurisdiction in such cases ``if the judgment of 
     the state court causes direct, specific, and concrete injury 
     to the parties who petition for * * * review, where the 
     requisites of a case or controversy are also met.'' Id. at 
     623-24.
       To avoid the possibility that a federal statute or the 
     federal budgetary process itself might be entangled in such a 
     state court challenge, I would suggest that Congress include 
     a provision for exclusive federal jurisdiction in any 
     implementing legislation enacted pursuant to section 6 of the 
     Amendment. Such a provision should be carefully worded so as 
     not to create inadvertently any implied right of judicial 
     review in federal court and so as not to affect any of the 
     otherwise applicable limitations on justiciability discussed 
     in this statement.


                         ii. judicial deference

       Let me now turn to the second factor that will constrain 
     judicial overreaching. In those cases where standing is 
     established and the court proceeds to review the merits of a 
     claim under the Balanced Budget Amendment, there is no reason 
     to believe that the court would readily second-guess 
     decisions made by the political branches. On the contrary, 
     following long-established doctrine, as well as the 
     Amendment's own explicit dictates, a reviewing court is 
     likely to accord the utmost deference to the choices made by 
     Congress in carrying out its responsibilities under the 
     Amendment.
       This judicial deference would be strongest in cases 
     challenging the implementing mechanisms adopted by Congress. 
     The Balanced Budget Amendment, in essence, mandates certain 
     results (balanced budgets and capped debt) and leaves it to 
     Congress to put in place mechanisms to achieve those results. 
     It is well-established that where the Constitution requires a 
     certain ``end,'' Congress will be given the widest latitude 
     in selecting ``means'' to achieve that end. Thus, for 
     example, the courts have accorded broad deference to Congress 
     in its selection of appropriate enforcement mechanisms under 
     section 5 of the Fourteenth Amendment. See Katzenbach v. 
     Morgan, 384 U.S. 641 (1966). And in the context of the 
     apportionment process, where the Constitution mandates in 
     fairly precise terms that Representatives shall be 
     apportioned among the several States ``according to their 
     respective Numbers'' (Art. I, Sec. 2, Cl. 3), the Supreme 
     Court has deferred to Congress' choice of the method for 
     apportionment, even though a State adversely affected could 
     demonstrate that another method might yield a more accurate 
     result. See U.S. Dep't of Commerce v. Montana, 112 S. Ct. 
     1415, 1429 (1992).
       The need for deference would be even more compelling in 
     cases under the Balanced Budget Amendment, since the language 
     of the Amendment explicitly confers on Congress, in mandatory 
     terms, the responsibility for implementing the Amendment and 
     specifically allows Congress in so doing to ``rely on 
     estimates of outlays and receipts'' (emphasis added). Unless 
     the implementing and enforcement provisions adopted by 
     Congress are plainly incompatible with the Amendment, it is 
     unlikely a court would substitute its judgment for choices 
     made by Congress.
       Even in challenges to specific budgetary actions--for 
     example, a claim that a particular spending measure threatens 
     to unbalanced the budget--the courts would tend to defer to 
     the judgments of the political branches, except where a 
     constitutional violation is clear. Not only do courts start 
     with the general presumption that Congress has acted 
     constitutionally, see Pension Benefit Guaranty Corp. v. R.A. 
     Gray & Co., 467 U.S. 717, 729 (1984), but that general rule 
     of deference is substantially reinforced by the Amendment's 
     explicit assignment of implementation responsibility to 
     Congress in section 6, including the express recognition that 
     Congress may rely on estimates--a process 
      [[Page S2726]] that inherently involves discretionary and 
     expert judgments. It is precisely when reviewing these kinds 
     of technical fiscal issues--matters uniquely within the 
     province and expertise of the political branches--where the 
     courts are most inclined to defer to the sound judgment of 
     the Congress and the Executive.
       In sum, then, even where the courts reach the merits of a 
     claim under the Balanced Budget Amendment, we are far more 
     likely to see deference to Congress than heavy-handed second-
     guessing by the courts. This is not to say that courts will 
     ignore clear instances of abuse; however, it is precisely in 
     such cases--in which the violations are not arguable but 
     palpable--where judicial intervention is most appropriate.


                  ii. limitations on judicial remedies

       For the reason outlined above, I am confident the courts 
     will entertain very few suits challenging congressional 
     actions under the Balanced Budget Amendment, and that, when 
     and if they do, the courts will be inclined to defer to the 
     judgments of Congress and the
      Executive in the budget area. Assuming, however, that a 
     court might entertain such a suit and might declare a 
     particular budgetary action unconstitutional as a 
     violation of the Amendment, there are still further 
     judicial constraints making it unlikely a court will order 
     intrusive remedies in such a case. As I see it, these 
     constraints fall into two categories: prudential 
     considerations that will limit a court's exercise of its 
     remedial powers and limitations created by section 6 of 
     the Amendment itself.
       First, courts are appropriately wary of becoming too deeply 
     involved in superintending decisions and processes that are 
     essentially legislative in character, and for that reason, 
     any court--most certainly the Supreme Court--will hesitate to 
     impose remedies that could embroil it in the supervision of 
     the budgetary process. Indeed, in the context of the Balanced 
     Budget Amendment, the choice of any specific remedy--for 
     example, an order specifying a particular adjustment of 
     expenditures to bring the federal budget back into compliance 
     with the Amendment--would invariably require the court to 
     displace Congress by making a policy decision that is 
     inherently legislative and therefore inappropriate for the 
     courts. I believe it far more likely that a court faced with 
     a violation of the Amendment would take the less intrusive 
     route of simply declaring the particular action at issue 
     unconstitutional and leaving it to Congress to choose the 
     appropriate remedy.
    
    
       There are plenty of cases in which the Supreme Court has 
     followed this route. For example, in Buckley v. Valeo, 424 
     U.S. 1 (1976), the Court declared the composition of the 
     Federal Election Commission unconstitutional as a violation 
     of the Appointments Clause, but stayed the Court's judgment 
     to ``afford Congress an opportunity to reconstitute the 
     Commission by law or to adopt other valid enforcement 
     mechanisms'' that would remedy the violation. Id. at 143. And 
     recently, in Harper v. Virginia Dept. of Taxation, 113 S. Ct. 
     2510 (1993), where the Court refused to order refund of the 
     amounts improperly collected and held instead that the 
     fashioning of an appropriate remedy was properly left to 
     state authorities. See id. 2519-20.
       Even in cases where there has been a proven violation of 
     the Fourteenth Amendment, the Court has required the same 
     respect for a legislature's ability to devise remedies 
     involving the exercise of the legislature's taxing authority. 
     In Missouri v. Jenkins, 495 U.S. 33 (1990), the Court 
     confirmed that ``the imposition of a tax increase by a 
     federal court,'' even as a remedy for racial segregation by a 
     state school district, must be ``an extraordinary event.'' 
     Id. at 51. ``In assuming for itself the fundamental and 
     delicate power of taxation,'' the Court held, ``the District 
     Court not only intruded on local authority but circumvented 
     it altogether. Before taking such a drastic step the District 
     Court was obliged to assure itself that no permissible 
     alternative would have accomplished the required task.'' 
     Ibid. According to the Court, ``the very complexity of the 
     problems of financing and managing a * * * public school 
     system suggests that * * * the legislature's efforts to 
     tackle the problems should be entitled to respect'' and that 
     ``local officials should at least have the opportunity to 
     devise their own solutions to these problems.'' Id. at 52 
     (internal quotation marks removed). The Court in Jenkins 
     upheld the district court's power to order a local school 
     district to levy its own taxes because such a levy was the 
     only means by which the school district could raise funds 
     adequate to comply with the court's desegration order. See 
     id. at 55-58. That could never be the case with any potential 
     violation of the Balanced Budget Amendment, which imposes a 
     cap on spending and the public debt, rather than an 
     obligation to raise revenues. There will always be a myriad 
     of policy choices available to Congress for avoiding 
     infringement of the budget cap.
       Jenkins is also readily distinguishable from the context of 
     the Balanced Budget Amendment on the ground that Jenkins did 
     not involve ``an instance of one branch of the Federal 
     Government invading the province of another,'' but instead 
     involved a court order ``that brings the weight of federal 
     authority upon a local government and a State.'' Id. at 67 
     (Kennedy, J., concurring in part and concurring in the 
     judgment). The distinction is critical because under Article 
     I, Section 1, ``[a]ll legislative Powers'' granted under the 
     Federal Constitution are vested in Congress, and the 
     enumeration of legislative powers begins by providing that 
     ``[t]he Congress shall have Power To lay and collect Taxes'' 
     (Art. I, Sec. 8, Cl. 1). Based on these provisions, the Court 
     has stated that ``[t]axation is a legislative function, and 
     Congress * * * is the sole organ for levying taxes.'' 
     National Cable Television Ass'n v. United States, 415 U.S.C. 
     336, 340 (1974). See Missouri v. Jenkins, 495 U.S. at 67 
     (Kennedy, J.).
       A second source of limitations on the courts' exercise of 
     their remedial powers is found in the Amendment itself. Under 
     section 6, which provides that ``[t]he Congress shall enforce 
     and implement this article by appropriate legislation,'' 
     Congress will have the authority to adopt remedies for any 
     purported violation of the Amendment. Congress, for example, 
     could provide for correcting a threatened budget imbalance or 
     overspending through sequestration, rescission or other 
     devices. In addition, section 6 logically gives Congress the 
     power to limit the types of remedies that might be ordered by 
     a court. This power is consistent with Article III's 
     delegation of authority to Congress to define and limit the 
     jurisdiction of the federal courts, and would allow Congress, 
     for example, to deny courts the ability to order injunctive 
     relief for violations of the Amendment. Congress has adopted 
     such limitations in other contexts. See, e.g., Norris-
     LaGuardia Act, 29 U.S.C. Sec. Sec. 101-115 (prohibiting 
     courts from entering injunctions in labor disputes); Federal 
     Anti-Injunction Act, 28 U.S.C. Sec. 2283 (prohibiting federal 
     courts from enjoining state court proceedings); Tax 
     Injunction Act, 26 U.S.C. Sec. 7421(a) (prohibiting suits to 
     restrain the assessment or collection of taxes).
       These powers given to Congress will compound the courts' 
     self-imposed prudential concerns, with the result that the 
     courts will be even more hesitant to order intrusive remedies 
     for ostensible violations of the Amendment. Courts regularly 
     defer to remedies that have been crafted by Congress. This 
     deference is shown even in cases involving the vindication of 
     individual rights. The Supreme Court, for example, has held 
     that Congress may adopt procedures limiting the remedies 
     available in so-called Bivens actions, which are actions 
     brought against federal officials for the violation of an 
     individual's constitutional rights. See Bush v. Lucas, 462 
     U.S. 367, 388-90 (1983). Similarly, in devising a judge-made 
     remedy for violations of the Fifth Amendment privilege 
     against self-incrimination in Miranda v. Arizona, 384 U.S. 
     436 (1966), the Court recognized that ``Congress and the 
     States are free to develop their own safeguards'' to redress 
     violations of the privilege and that such alternative 
     remedies woud be respected by the courts. See id. at 490. 
     Moreover, even if Congress does not exercise the authority 
     granted to it under section 6, the courts will undoubtedly be 
     aware of Congress' ability to limit the relief that courts 
     may grant, and this awareness in and of itself will likely 
     check any tendency on the part of the courts to develop their 
     own creative remedies for violation of the balanced budget 
     requirement.


                      IV. The Amendment's Efficacy

       Some have suggested that the federal courts' limited role 
     in enforcing the Balanced Budget Amendment makes the 
     Amendment a ``paper tiger.'' Their premise is that, unless 
     the courts are there to coerce compliance at every turn, the 
     political banches will flout their constitutional 
     responsibilities. These critics do not argue for a greater 
     role for the courts so much as they dismiss the Amendment as 
     a feckless exercise. In my view, this critique is mistaken: 
     it is based on a distorted view of the Constitution and 
     ignores the practical experience of over two centuries.
       First, of course, the point is not that the courts will 
     never be there; it is that we need not fear an avalanche of 
     litigation, with the courts regularly reviewing fiscal 
     decisions and effectively usurping the proper functions of 
     the political branches. Where the judicial power can properly 
     be invoked, it will most likely be reserved to address 
     serious and clearcut violations.
       More importantly, Members of Congress and Presidents seek 
     to conform their actions to constitutional norms, not because 
     of external threats of judicial coercion, but primarily 
     because of their own difelity to constitutional prinicples. 
     After all, it is not only judges who must take an oath of 
     allegiance to the Constitution. Just as the vast majority of 
     citizens obey the law because they wanted to--not because 
     they fear the police--so too those who serve in the political 
     branches feel constrained by constitutional requirements and 
     strive to obey them, whether backed by judicial sanction or 
     not. Congress, for example, has dutifully provided for a 
     census every ten years since the 1790s, as required by the 
     Constitution, without court order. Even in an area as 
     unreviewable and murky as the War Powers, the political 
     branches strive to comply with constitutional norms. And the 
     Senate has always administered responsibly its sole power to 
     try cases of impeachment, without allowing such trials to 
     degenerate into Kangaroo courts, even though the exercise of 
     that power is not subject to the check of judicial review. 
     See Nixon v. United States, 113 S. Ct. 732 (1993). As Judge 
     Williams put it in the Nixon case:
       ``If the Senate should ever be ready to abdicate its 
     responsibilities to schoolchildren, or, moved by Caligula's 
     appointment of his horse as senator, to an elephant from the 
     National Zoo, the republic will have sunk to 
      [[Page S2727]] depths from which no court could rescue it. 
     And if the senators try to ignore the clear requirement of a 
     two-thirds vote for conviction, they will have to contend 
     with public outrage that will ultimately impose its sanction 
     at the ballot box. Absent judicial review, the Senate takes 
     sole responsibility for its impeachment procedures as a full-
     fledged constitutional actor, just as the framers intended.'' 
     Nixon v. United States, 938 F.2d 239, 246 (D.C. Cir. 1991) 
     (footnote omitted), aff'd, 113 S. Ct. 732 (1993).
       For over 200 years, day after day, the business of 
     government has gone forward in prescribed channels, with 
     judicial enforcement the exception, not the rule. The 
     Balanced Budget Amendment will be effective without judges 
     hovering at Congress' elbow; the Congress will carry it out 
     and it will achieve its intended results.
       Finally, we can rest assured that the Amendment will be 
     policed through the most effective enforcement mechanism of 
     all--the watchfulness and wrath of the American people. After 
     all, the requirements of the Balanced Budget Amendment are 
     not like those of the Appointments Clause or the Emoluments, 
     Clause, which could be violated with virtually no political 
     fallout. Rather, they touch upon one of the core political 
     concerns of the people. Does anyone seriously maintain that 
     Congress could thumb its nose at a constitutional balanced 
     budget requirement with impunity? Or play fast-and-loose with 
     it and escape political retribution? It is precisely in areas 
     like this, where the political check is so potent, that we 
     can safely trust in its efficacy.
       Thank you, Mr. Chairman.
                                                                    ____

  Statement of Griffin B. Bell, Senate Judiciary Committee, Balanced 
         Budget Amendment to the Constitution, January 5, 1995

       The missing element in our constitutional system is the 
     absence of a provision requiring a balanced budget, provided 
     reasonable safeguards are in place to protect the national 
     defense and to assure the national interest in the event of a 
     depression.
       Almost all the states have a balanced budget requirement in 
     their respective State Constitutions. This is the safeguard 
     which assures State financing only for services which are 
     within the states' abilities to pay.
       The federal government completely controls the money 
     machine in the sense that it can borrow funds without limit. 
     There is no inherent self-discipline built into the system. 
     The only limit on federal spending is in the collective will 
     of the Congress and the President. The federal debt is now so 
     high that the country is, in effect, under normal rules, in 
     bankruptcy. But the federal government does not have to 
     declare bankruptcy. It can continue to borrow money to pay 
     the interest on the debt and to continue to borrow money over 
     and above the principal amount already owed. We long ago 
     began using Social Security taxes as a part of the general 
     fund to support this debt load, contrary to the belief of 
     most Americans that Social Security taxes were being put into 
     a trust fund for their future needs.
       Without a constitutional restraint, there is no hope 
     whatever of paying off the present debt, much less for 
     stopping the creation of additional debt. We should be 
     thankful for today's low interest rates, else we would have a 
     greater economic crisis on our hands.
       In the famous letters between Lord McCaulay of England and 
     Henry Stevens Randall, the first Jefferson biographer, and in 
     particularly the letter dated May 23, 1857, Lord McCaulay 
     expressed concerns about the lack of controls on the fisc.
       He said, and I quote: ``I seriously apprehend that you 
     will, in [a] season of adversity . . . do things which will 
     prevent prosperity from returning; that you will act like 
     people who [would], in a year of scarcity, devour all the 
     seed corn, and thus make the next year a year, not of 
     scarcity, but of absolute famine. There will be, I fear, 
     spoilation. The spoilation will increase the distress. The 
     distress will produce fresh spoilation. There is nothing to 
     stop you. Your Constitution is all sail and no anchor.''
       McCaulay was correct. Without a constitutional amendment 
     requiring a balanced budget, our Constitution truly is all 
     sail and no anchor. The lack of an anchor has placed our 
     country in the peril that it is now in because of our 
     monstrous and increasing debt and ever escalating 
     entitlements.
       I have never heard anyone suggest that we begin to pay off 
     our debt. It would not be out of reason to set the debt aside 
     and retire it on a sinking fund basis, just as is done with 
     state and municipal bonds at the present time. The debt could 
     be gradually reduced once the budget is balanced by including 
     a payment on the principal of the debt, thus reducing 
     interest payments which make up a large part of our federal 
     budget.
       In this way, we would pay the debt of our own generation, 
     rather than transferring it to our children and 
     grandchildren.
       The other example of lack of discipline on the part of our 
     law makers is the cost-of-living index and its impact on the 
     debt. The cost-of-living index is a self-fulfilling prophecy 
     for annual inflation, particularly when the cost-of-living 
     index seems to produce a figure which is always higher as to 
     most people than actual inflation. The Congress can revamp 
     the cost-of-living index to make it the same or less than the 
     actual rate of inflation. This alone would go a long way 
     toward bringing the budget in balance over a few years.
       There is something sinister about basing entitlements of 
     all kinds on an automatic cost-of-living index, particularly 
     when the index is higher than the actual inflation. This is a 
     giveaway scheme of the worst sort and exceeds any reasonable 
     basis of governing.
       Thus, a combination of a balanced budget amendment to our 
     Constitution, with savings on interest over time and with a 
     gradual reduction in debt principal, coupled with an 
     adjustment of the cost-of-living index will restore fiscal 
     sanity to our government.
       We must begin to speak in plain English when referring to 
     our debt. It will not do to speak of mere reductions in the 
     deficits as savings.
                                                                    ____



                                 The Lincoln Legal Foundation,

                                        Chicago, IL, June 5, 1992.
     Hon. L.F. Payne,
     House of Representatives,
     Washington, DC.
       Dear Mr. Payne: On behalf of the Lincoln Legal Foundation, 
     let me extend my thanks to you for providing this opportunity 
     to comment on the proposed Balanced Budget Amendment outlined 
     in H.J. Res. 290. We at the Foundation take pride in serving 
     as advocates for the broad public interest in defending 
     liberty, free enterprise, and the separation of powers. It is 
     in this capacity that we have undertaken our evaluation of 
     the proposed Amendment.
       We have confined our remarks to the prospects for judicial 
     enforcement of the Balanced Budget Amendment. Critics have 
     charged that the Amendment will unleash an avalanche of 
     litigation, thereby paving the way for the micro-management 
     of budgetary policy by the federal judiciary. As defenders of 
     the Madisonian system of checks and balances, we at the 
     Foundation take such charges seriously and have scrutinized 
     them in light of the relevant case law.
       We begin with a brief overview of standing doctrine and its 
     impact on the justiciability of the proposed Amendment. We 
     then consider the political question doctrine and the 
     barriers it creates to judicial review. We conclude with our 
     recommendations for refining and implementing the Amendment.


            i. standing under the balanced budget amendment

       Standing refers to a plaintiff's interest in the issue 
     being litigated. Generally speaking, in order to have 
     standing a plaintiff must have a direct, individualized 
     interest in the outcome of the controversy at hand. Persons 
     airing generalized grievances, common to the public at large, 
     invariably lack standing.
       Limitations on standing stem from two sources. Article III 
     Section II of the Constitution restricts the jurisdiction of 
     the federal judiciary to ``cases'' and ``controversies.'' As 
     a result, only plaintiffs with a personal stake in the 
     outcome of a particular case have standing to litigate. The 
     general prohibition against advisory opinions also can be 
     traced to Article III.
       In addition to Article III restrictions, federal courts 
     have outlined certain ``prudential'' restrictions on 
     standing, premised on non-constitutional policy judgments 
     regarding the proper role of the judiciary Unlike Article III 
     restrictions on standing, prudential restrictions may be 
     altered or overridden by Congress.
       Standing requirements under the proposed Balanced Budget 
     Amendment will vary according to the type of litigant. 
     Potential litigants fall into three categories: (1) Members 
     of Congress, (2) Aggrieved Persons (e.g. persons whose 
     government benefits are reduced or eliminated by operation of 
     the Amendment), and (3) Taxpayers.

                         A. Members of Congress

       The federal courts by and large have denied standing to 
     members of Congress to litigate issues relating to their role 
     as legislators.\1\ Only when an executive action has deprived 
     members of their constitutional right to vote on a 
     legislative matter has standing been granted.\2\
     Footnotes at end of letter.
       Accordingly, Members of Congress are unlikely to have 
     standing under the proposed Balanced Budget Amendment, unless 
     they can claim to have been disenfranchised in their 
     legislative capacity. Assuming that Congress does not ignore 
     the procedural requirements set forth in the Amendment, the 
     potential for such disenfranchisement seems remote.

                          B. Aggrieved persons

       Standing also seems doubtful for persons whose government 
     benefits or other payments from the Treasury are affected by 
     the Balanced Budget Amendment. In order to attain standing, 
     such persons must meet the following Article III 
     requirements: (1) They must have sustained an actual or 
     threatened injury; (2) Their injury must be traceable to the 
     governmental action in question; and (3) The federal courts 
     must be capable of redressing the injury.\3\
       Assuming a plaintiff could meet the first two requirements, 
     he still must show that the federal courts are capable of 
     dispensing a remedy. Judicial relief could take the form of 
     either a declaratory judgment or an injunction. A declaratory 
     judgment, stating that Congress has acted in an 
     unconstitutional manner, would do little to redress the 
     plaintiff's injury. On the other hand, injunctive relief 
     could pose a serious threat to the separation of powers.
       For example, an injunction ordering Congress to reinstate 
     funding for a particular program would substantially infringe 
     upon 
      [[Page S2728]] Congress's legislative authority. Similarly, 
     an injunction ordering all government agencies to reduce 
     their expenditures by a uniform percentage - would undermine 
     the independence of the Executive Branch. It is unlikely that 
     the present Supreme Court would uphold a remedy that so 
     blatantly exceeds the scope of judicial authority outlined in 
     Article III.

                              C. Taxpayers

       Taxpayers may have a better chance of attaining standing 
     under the proposed Balanced Budget Amendment. Traditionally, 
     the federal courts refused to recognize taxpayer standing. 
     However, in 1968 the Warren Court held in Flast v. Cohen that 
     a taxpayer plaintiff does have standing to challenge 
     Congress's taxing and spending decisions if the plaintiff can 
     establish a logical nexus between his status as a taxpayer 
     and his legal claim.\4\
       The logical nexus text consists of two distinct elements. 
     First, the plaintiff must demonstrate that the congressional 
     action in question was taken pursuant to the Taxing and 
     Spending Clause of Article I Section 8 of the Constitution. 
     Second, the plaintiff must show that the statute in question 
     violates a specific constitutional restraint on Congress's 
     taxing and spending power.\5\
       Taxpayers suing under the proposed Balanced Budget 
     Amendment probably could meet both prongs of the logical 
     nexus test.\6\ In order to satisfy the first prong, potential 
     litigants would have to tailor their complaint to challenge 
     the unconstitutional enactment of a law by Congress (e.g. an 
     appropriations bill), not the unconstitutional execution of a 
     law by the Executive. Litigants could satisfy the second 
     prong by demonstrating that the statute in question violates 
     the Balanced Budget Amendment, an express restriction on 
     Congress's taxing and spending power.
       Even if a taxpayer satisfies Flast's logical nexus test, 
     more recent opinions like Valley Forge suggest that the 
     Supreme Court also would expect taxpayer plaintiffs to 
     fulfill the Article III standing requirements. In other 
     words, in order to have standing, a taxpayer would have to 
     demonstrate that he has sustained an actual or threatened 
     injury traceable to a specific congressional action.
       In theory, a taxpayer could claim that excess spending in 
     violation of the Balanced Budget Amendment will harm him by 
     undermining the national economy or by increasing the 
     national debt. However, a majority of the Supreme Court 
     probably would find the connection between the excess 
     spending and the alleged injuries too tenuous to grant 
     standing. As a result, standing would be limited to taxpayers 
     with concrete injuries, stemming directly from the 
     congressional action in question.
         ii. the amendment and the political question doctrine

       Even if a litigant attained standing under the proposed 
     Balanced Budget Amendment, a federal court could refuse to 
     hear the case on the grounds that it raises a political 
     question. The leading case with respect to political 
     questions remains Baker v. Carr.\7\ In Baker, the Supreme 
     court held that the constitutionality of a state legislative 
     apportionment scheme did not raise a political question. In 
     doing so, the Court identified a number of contexts in which 
     political questions may arise.
       Foremost among these are situations in which the text of 
     the Constitution expressly commits the resolution of a 
     particular issue to a coordinate branch of government. The 
     Judicial Branch will refrain from adjudicating an issue in 
     such circumstances. However, this textual constraint would 
     not preclude judicial review of the proposed Balanced Budget 
     Amendment, since H.J. Res. 290 does not assign responsibility 
     for enforcing the Amendment to either the President or the 
     Congress.
       The Baker court also identified the following prudential 
     consideration in deciding whether to invoke the political 
     question doctrine as a bar to judicial review:\8\
       (A) Is there a lack of discernable or manageable judicial 
     standards for resolving the issue?
       (B) Can the court resolve the issue without making an 
     initial policy determination that falls outside the scope of 
     judicial authority?
       (C) Can the court resolve the issue without expressing a 
     lack of respect for the coordinate branches of government?
       (D) Will judicial intervention result in multifarious 
     pronouncements on the same issue from different branches of 
     government?
       Each of these considerations creates an impediment to 
     judicial review of the proposed Balanced Budget Amendment. In 
     particular, courts may find the fiscal subject matter of the 
     Amendment difficult to administer. For example, what happens 
     if ``estimated receipts'' fall short of projections halfway 
     through a fiscal year? On what data and accounting methods 
     would the courts be expected to rely? Given the lack of 
     concrete standards, apparently rudimentary determinations 
     (e.g. When do ``total outlays'' exceed ``estimated 
     receipts''?) may prove beyond the competence of the 
     judiciary.
       Moreover, the potential judicial remedies for violations of 
     the Amendment may undermine the separation of powers. As 
     discussed above, various forms of injunctive relief almost 
     certainly would infringe upon the prerogatives of Congress 
     and the Executive Branch. Given the Supreme Court's 
     structuralistic adherence to the separation of powers 
     doctrine in cases like I.N.S. v. Chadha\9\ and Bowsher v. 
     Synar,\10\ it is almost impossible to imagine a majority of 
     the justices on the present, or a future, Court jumping at 
     the opportunity to become embroiled in a partisan wrangle 
     over the size and scope of the federal budget. Instead, one 
     would expect the Court to make every effort to avoid such an 
     intrusion.


                            iii. conclusions

       The constraints imposed by standing requirements and the 
     political question doctrine by no means preclude judicial 
     review of the Balanced Budget Amendment. Nevertheless, they 
     do place substantial barriers to litigation. In light of 
     these impediments, the Foundation believes that the prospects 
     for a flood of new litigation and the specter of budgeting by 
     judicial fiat have been greatly exaggerated.
       The Amendment proposed in H.J. Res. 290 would clearly 
     invite judicial review of any spending or taxing legislation 
     purportedly enacted in violation of the formal requirements 
     (e.g. a supermajority for increasing the debt limit, a full 
     majority on recorded for a tax increase) set forth in the 
     text. This is no different from the status quo, for even now 
     we would expect a court to strike down an act that was 
     somehow enrolled on the statute books without having properly 
     cleared the requisite legislative process of votes, 
     presentment, and the like.
       What the Amendment would not do is to confer upon the 
     judiciary an authority to substitute its own judgment as to 
     the accuracy of the revenue estimates, the needfulness of 
     taxes, or the prudence of a debt limit. The courts would 
     merely police the formal aspects of the work of the political 
     branches: Did they enact a law devoted solely to an estimate 
     of receipts? Are all outlays held below that estimate? Were 
     measures passed by requisite majorities voting, when 
     required, on the record?
       Sections 2 and 4 of the proposed amendment clearly invite 
     only limited judicial scrutiny of this kind, and then only of 
     the process, and not of the substance, by which the political 
     branches have acted?
       Section 3 seems to be purely hortatory, and probably 
     provides no predicate at all for judicial action. Whatever 
     the political ramifications of a failure on the part of a 
     President to propose a balanced budget in any given year may 
     be, there appear to be no legal implications whatsoever. No 
     act of law-making depends in any constitutional sense upon 
     the President's compliance with this requirement, let alone 
     upon the substance that any such proposal may contain.\11\
       Section 1 is the crucial text, then, but even here the 
     boundaries of justiciability would be tightly limited. A 
     purported enactment might be struck down by the courts if it 
     provided for outlays of funds in excess of the level of 
     estimated receipts established for the year in the annual 
     estimates law, or if it called for such an excessive outlay 
     without having been passed on a roll-call vote by the 
     required super-majority, or if it attempted to avoid the 
     balanced budget limit applicable to the fiscal year of its 
     enactment by purporting to be within the limits of receipts 
     estimated for another year, past or future.
       But there is no basis in the text of Section 1 for a court 
     to pick and choose among congressional spending decisions on 
     any basis. That is, the proposed amendment would confer no 
     authority on the judiciary to choose which appropriations 
     would be satisfied from the Treasury and which would not, but 
     only to say that once outlays had reached the level 
     established in the estimates law then the officials of the 
     Treasury must cease disbursing any additional funds.
       Because Section 6 of the proposed amendment would define 
     ``total outlays'' to ``include all outlays of the United 
     States Government except for those for repayment of debt 
     principal,'' the amendment would abolish permanent indefinite 
     appropriations, revolving funds, and the funds, such as the 
     Judgment Fund, from which they are disbursed.\12\ This would 
     decisively prevent the courts from invading the Federal fisc 
     in the guise of damages awards against the United States 
     Government. Upon effectuation of this amendment, damages 
     awards against the Government in all cases (except for 
     repayment of debt principal) would have to be part of the 
     outlays voted each year by Congress, and the current 
     congressional practice of waiving the sovereign immunity of 
     the United States on a blanket basis in the adjudication of 
     various kinds of damages against the Government would have to 
     end.
       In short, it is our view that there is virtually no danger 
     that the constitutional balanced budget amendment 
     contemplated by H.J. Res. 290 would cede the power of the 
     purse to a runaway judiciary. To the contrary, it would 
     eliminate certain authorities that courts currently have to 
     order the disbursement of Federal funds without 
     appropriations. If ratified and made part of the 
     Constitution, the balanced budget amendment would return 
     responsibility and accountability for all Federal outlays 
     squarely to the Congress.
           Sincerely yours,
                                                 Joseph A. Morris,
                                President and General Counsel.\13\
                               Footnotes

     \1\Harrison v. Bush, 553 F.2d 19 (D.C. Cir. 1977) (standing 
     denied to a senator seeking declaratory and injunctive relief 
     against the CIA for its allegedly unlawful activities).
     \2\Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974) 
     (standing granted to a senator challenging the 
     constitutionality of the President's pocket veto).
     \3\See, e.g., Simon v. Eastern Kentucky Welfare Rights 
     Organization, 426 U.S. 26 (1976); and Allen v. Wright, 468 
     U.S. 737 (1984).
     [[Page S2729]] \4\Flast v. Cohen, 392 U.S. 83 (1968).
     \5\Valley Forge Christian College v. Citizens United for the 
     Separation of Church and State, 454 U.S. 464 (1982) (standing 
     denied because an executive agency's sale of surplus federal 
     land to a religious college was not an exercise of Congress's 
     taxing and spending power).
     \6\See Note, Article III Problems in Enforcing the Balanced 
     Budget Amendment, 83 Columbia L. Rev. 1064, 1079-80 (1982).
     \7\369 U.S. 186 (1962).
     \8\Baker v. Carr, 369 U.S. at 217.
     \9\462 U.S. 919 (1983) (legislative veto held 
     unconstitutional for violating the Bicameralism and 
     Presentment Clauses of Article I Section 7).
     \10\478 U.S. 714 (1986) (Gramm-Rudman Deficit Reduction Act 
     violated the separation of powers by placing responsibility 
     for executive decisions in the hands of an officer who is 
     subject to control and removal by Congress).
     \11\Section 3 would confer constitutional dignity upon a 
     practice that has evolved on an extraconstitutional basis in 
     this century, the submission of a Presidential budget each 
     year. The practical and political wisdom of the practice is 
     debatable, as is the wisdom of the contents of any particular 
     budget. But the practice, even with the constitutional 
     sanction that H.J. Res. 290 would give it, in no way 
     derogates from the responsibility of Congress to account for 
     the power of the purse or from the procedural rules adopted 
     by the Framers for safeguarding the separation of powers 
     respecting the fisc, such as the requirement that bills for 
     raising revenue originate in the House of Representatives. 
     The President would now have a constitutional duty to propose 
     an annual balanced budget, but his submission would be only a 
     proposal, and the existing groundrules of Articles I and II 
     would continue to define the procedures by which laws are 
     made and the separation of powers maintained.
     \11\It is our view that this would also abolish other 
     permanent indefinite appropriations arrangements and 
     revolving funds as they now stand, including those for the 
     Social Security, Medicare, and Civil Service Retirement 
     Systems. They all involve ``outlays'' within the 
     comprehensive meaning of Section 6, and so would all require 
     affirmative congressional action for each year's 
     disbursements. Congress could continue to provide that 
     outlays be made on formulaic bases (e.g., as ``formula 
     payments''), but they would be subject to the total annual 
     ceiling on outlays and mere qualification of an individual to 
     receive a payment would no longer automatically work to raise 
     the spending limit.
     \13\I would like to thank Charles H. Bjork, a third-year law 
     student at Northwestern University and a student intern at 
     The Lincoln Legal Foundation, for his invaluable assistance 
     in the preparation of this analysis.
                                                                    ____

Testimony of John C. Armor, Esq., Before the Constitution Subcommittee 
          of the Senate Judiciary Committee, February 16, 1994

       It is always a privilege to testify before a Committee of 
     Congress, but especially so today on this subject before this 
     Subcommittee. The reason is that after almost two decades of 
     effort, the Balanced Budget Amendment to the Constitution now 
     seems on the cusp of success before the Senate, and the BBA 
     is the focus of this hearing. I am not here today on behalf 
     of a client, but on my own.
       I am John Armor, a constitutional lawyer who practices 
     before the Supreme Court, a former Professor of Political 
     Science, and author of several books and many articles, 
     usually on political science or constitutional law. Most 
     germane to today's hearing, I have testified for 17\1/2\ 
     years now before committees of state legislatures, and 
     occasionally before Congressional Committees, on legal 
     aspects of the BBA.
       I will address three subjects, two of them briefly because 
     others will cover them in far more detail, and one at some 
     length, because others are unlikely to address it and it is 
     most important now as the Amendment seems close to passage. 
     The subjects are: the need for the BBA, the appropriateness 
     of constitutional provisions which are economic in nature, 
     and the problems and solutions on the questions of judicial 
     review under the BBA.


               The Need for the Balanced Budget Amendment

       All but one of the 50 states have some form of balanced 
     budget provisions in their laws. Forty-seven have provisions 
     in their constitutions; two have statutory provisions (ones 
     that they abide by, contrary to some statutory solutions 
     which Congress has tried, beginning in 1974); and one state, 
     Vermont, has no such provision. The exception proves the 
     rule; Vermont is not known as a hotbed of wild spending, 
     promoted by representatives of the tour bus and maple syrup 
     industries.
       In all the other states, the operation of their various 
     balanced budget provisions demonstrate anew the importance of 
     institutional restraints to guide legislative behavior. 
     Madison, Hamilton and Jay put the issue most succinctly in 
     The Federalist over 200 years ago in arguing for adoption of 
     the Constitution. At that time, only the House of 
     Representatives was popularly elected. Writing about the 
     House, they said it would, ``balance the willingness to spend 
     against the reluctance to tax.''
       There is a great deal of political and constitutional 
     wisdom in that short phrase, that Congress (no longer just 
     the House) should ``balance the willingness to spend against 
     the reluctance to tax.'' That is exactly what the balanced 
     budget amendments in the states accomplish for them. 
     Legislators are free to vote for whatever programs they 
     believe are in the interest of their constituents. But, at 
     the same time, they are obligated to impose the taxes to pay 
     for those programs.
       Therefore, state legislators every year, or every two years 
     in Kentucky, create two sets of priorities. First are 
     priorities among spending programs--those at the bottom of 
     the list will not be approved, even through in the abstract 
     they might seem to be good ideas. Second are priorities among 
     taxation plans. The ones which are the least desirable and 
     most likely to provoke strong opposition will not be 
     approved, even though in the abstract they could raise 
     substantial funds for worthwhile programs.
       In short, legislators become mindful of what the great 
     French Minister, Tallyrand, is credited with saying, ``The 
     art of taxation is like plucking a goose, the object is to 
     get the most feathers with the least amount of hissing.''
       This balancing act between what legislators might want to 
     spend, and what taxes they are willing to impose, all things 
     considered, is continuous in the states. The same balancing 
     act used to be carried out annually by Congress. For 150 
     years we operated under an unwritten constitutional standard. 
     Spending would not exceed taxes except during time of war or 
     during national emergencies amounting to what we now call 
     ``recessions'' or ``depressions.'' Once the emergency was 
     over, taxes would be used to pay down the public debt to 
     zero, or close to it.
       We abandoned this standard fifty years ago. The 
     ``willingness to spend'' was disconnected from the 
     ``reluctance to tax'' in a process that has accelerated in 
     recent years of massive deficit
      spending every year, not just during wars or emergencies. 
     There is no reason to blame any particular President or 
     Congress. With $4 trillion in known debt, and more than 
     that amount in unfunded, future commitments, there is 
     ample blame for all parties concerned. Ending that process 
     and restoring the connection between taxing and spending 
     is the central purpose of the BBA.
       A major argument advanced against the BBA is that there 
     will be attempts to avoid or evade its provisions, no matter 
     how carefully they are drafted. That is absolutely true. 
     History has shown dozens of examples at the state level where 
     creative bookkeeping has been used to bail out state 
     governments which are strapped for funds but find necessary 
     choices among spending on one side and taxation on the other, 
     politically impossible. Sometimes, judicial enforcement 
     applied at the state level.
       I urge you not to confuse the question of whether the BBA 
     will work perfectly, with the question of whether it will 
     work substantially. Consider the magnificent guarantees in 
     the First Amendment--freedom of religion, of speech, of the 
     press, and of political activity. Every one of those has been 
     repeatedly assaulted by various laws and ordinances at the 
     federal, state and local level, right from the beginnings of 
     the Republic. There were many individual failures. We once 
     had laws under which newspaper editors were jailed for 
     printing their opinions, until Jefferson became President. We 
     once had established churches supported directly by state 
     funds, until well into the 19th century.
       I could run a long list of occasional failures of the First 
     Amendment in all four of its areas of protection. The proper 
     question about the First Amendment is not whether many 
     interests, many times, on many issues, sought to violate it. 
     It is whether the nation is much the better because it has 
     the First Amendment. By analogy, this is also the proper 
     question to ask about the BBA. Will it provide benefits to 
     the nation for the foreseeable future? If you answer that 
     question yes, then you should support it.
       One last point. We have the example of another unwritten 
     constitutional provision that we lived by for 150 years. Once 
     it was broken, however, we wrote it into the Constitution. 
     George Washington was responsible for the fact that no limits 
     on Presidential terms were placed in the Constitution. But, 
     he was also the creator of the tradition that Presidents 
     voluntarily leave office after serving two terms. Once that 
     tradition was abrogated by FDR, we placed it in the 
     Constitution as the 22nd Amendment.
       The same can apply to the Balanced Budget Amendment. Now 
     that the tradition has been abrogated, it can be written into 
     the language of the Constitution.


       appropriateness of economic provisions in the constitution

       The claim has often been made that the Constitution is 
     intended for broad and lofty purposes, that provisions for 
     economic programs have no place in that document. This slogan 
     sounds like it might have merit; it has superficial appeal. 
     However, as soon as one delves into the Constitution, it is 
     clear the Framers included ``economic'' provisions, whenever 
     and wherever they considered them appropriate as a matter of 
     public policy.
       Article I, Section 2, chose to forbid taxes other than per 
     capita. We chose to reverse that decision by the 16th 
     Amendment which permitted income taxes. Article I, Section 8, 
     contains many ``economic'' clauses: the Commerce Clause, 
     gives Congress the power to regulate interstate commerce and 
     bars the states from taxing or regulating it. (This clause 
     created the first ``common market'' among sovereign entities 
     in the history of the world. It was magnificently 
     successful.) Clauses 1 and 4, provide the right to borrow 
     money and the regulation of the value of money, with a 
     prohibition against the states minting their own money. (Many 
     states were printing their own money, prior to the adoption 
     of the Constitution. Some just ran the presses and devalued 
     their currency exactly as
      Congress did with paper money during the American 
     Revolution, giving rise to the phrase, ``not worth a 
       Continental.'')Article VI, clause 1, is also economic, 
     providing that all debts contracted under the 
      [[Page S2730]] Confederation would remain ``valid against 
     the United States.'' Preserving the nation's reputation as 
     well as its financial stability were reasons for this clause, 
     which was hotly debated at the Philadelphia Convention of 
     1787.
       My favorite clause to demonstrate the point is the one 
     invented by Dr. Benjamin Franklin as a result of his 
     experiences in Europe, given to James Madison, and inserted 
     in the Constitution with almost no discussion. Franklin had 
     observed that inventions and books were freely copied in 
     Europe, thereby denying those who had created them both the 
     benefits of their labors and the incentives to create more. 
     To solve that problem, Franklin invented clause 7, to secure 
     ``for limited Times to Authors and Inventors exclusive Right 
     to their respective Writings and Discoveries.''
       There is no question that this is an ``economic'' 
     provision. Given the two century experience of the United 
     States leading the world in discoveries, inventions and 
     intellectual property, there is little doubt this clause in 
     the Constitution lies at the heart of the American economic 
     success story.
       So, I suggest that whenever anyone claims that economic 
     provisions do not belong in the Constitution, the reply 
     should be to cite these and other provisions and reject that 
     claim out of hand. The question is not whether economic 
     provisions belong in the Constitution; it is whether the 
     Balanced Budget Amendment is a wise policy at this time in 
     our history, to be written into the Constitution.


            judicial review of the balanced budget amendment

       The subject of judicial review of the BBA has hardly been 
     addressed in the continuing public debate over the BBA. When 
     there was little chance that the Amendment would be adopted 
     any time soon, there was little reason to discuss this 
     particular consequence. The situation having changed, it is 
     now time to address this in detail.
       Where the Constitution and applicable statutes are silent 
     about judicial review, it is left to the Supreme Court to 
     decide whether judicial review exists, and if so, what 
     remedies may the courts apply for any violations. Not only 
     can the Court set its own standards, it is also free to 
     reverse them. Witness Baker v. Carr, 369 US 186 (1962). Until 
     that case, the courts had refused to take up the ``political 
     questions'' of mal-apportioned state legislatures. In Baker, 
     it reversed itself, the consequence was 30 years and counting 
     of court orders that legislatures, city and county councils 
     reapportion themselves.
       You could bet either, or both, of these results, if you 
     remain silent on the subject of judicial review of the BBA.
       This discussion is based on five assumptions about the 
     results that this Committee, the whole Senate, and the whole 
     Congress may have in mind about judicial review of the BBA. 
     If any of my assumptions are incorrect, I trust I will 
     promptly stand corrected. The assumptions are:
       1. There should be judicial review of the Balanced Budget 
     Amendment.
       2. It should be brought about by a single set of 
     responsible parties.
       3. Enforcement should be extremely swift.
       4. Courts should not be involved in choosing between 
     different government programs in enforcing the Amendment. All 
     such policy judgments should be left to Congress.
       5. Courts should be prohibited from enforcing the BBA by 
     judicial imposition of new taxes.
       Under both Article III, Section I, and under the enabling 
     clause that has been added to the BBA. Congress has the power 
     by legislation to remove, create, or shape the Supreme 
     Court's jurisdiction for review of the BBA. This is a process 
     well known to this Subcommittee; its heritage
      traces back to the Judiciary Act of 1789. Only the original 
     jurisdiction of the Court as declared in Article III, 
     clause 2 is outside this statutory authority of Congress.
       So, you can pass a statute which states what the judicial 
     review of the BBA shall be, and what remedies can be applied. 
     By making those exclusive, you can rule out any other forms 
     of judicial review or remedies. The process of judicial 
     review of the BBA and remedies applied will then be exactly 
     what you say it should be--no more, no less.
       To assure only one case, brought by responsible parties, 
     you could provide that any six Senators, or any 25 
     Representatives, or any three Governors, could bring an 
     action in the Supreme Court if they felt that the BBA had 
     been violated, or was about to be violated if no budget was 
     passed by the first day of the new fiscal year. On the filing 
     of the case, all other Senators, Representatives and 
     Governors would be informed and would be welcome to join the 
     case on either side as they deemed fit.
       You do not want thousands of citizens represented by 
     thousands of tin horn lawyers, rushing into courts across the 
     nation to bring their disparate cases to enforce the BBA. By 
     this mechanism you can prevent that. The minimum numbers of 
     Senators, Representatives or Governors to bring the action 
     should be a significant number but a minority, similar to 
     provisions in the Rules of both Houses that protect the 
     interests of minorities, but not necessarily minorities of 
     one.
       Placing the case in the Supreme Court, plus providing that 
     the Court must hear the case in 30 days and issue its 
     decision not more than 15 days thereafter, would assure 
     expeditious consideration. The Court would be free, as it has 
     in many of the previous 200 original jurisdiction cases, to 
     appoint Special Masters for fact-finding purposes, with their 
     conclusions subject to challenge before the whole Court.
       In order to prevent either judicially-ordered taxes or 
     Court selection between competing programs and public 
     policies, the remedies from the Court could be restricted as 
     follows: (A) The Court could determine only that the budget 
     was, or was not, in balance, and (B) the exact dollar amount 
     of the projected year's income, assuming there is no 
     declaration of war, and Congress has not acted by the supra-
     majority to remove the budget from the scope of the 
     Amendment. (C) The Court could then order only an across-the-
     board cut in all programs without exception in the percentage 
     required. In other words, if the Court found that the budget 
     was out of balance by 3.4%, its only remedy would be to order 
     a 3.4% cut in all programs.
       This point is extremely important. Having spent 17 years 
     talking with Members of Congress and with members of state 
     legislators on the subject of the BBA, I believe there is an 
     overwhelming feeling that the Supreme Court should not be 
     involved in choosing between closing down an Air Force base 
     or cutting Aunt Tilly's social security check. That sort of 
     policy judgment should always be made by elected 
     representatives of the people in each level of government.
       Once the Court had ordered an across-the-board cut, 
     Congress would then have 20 days to act by statute to adjust 
     the cuts on a policy basis, making greater cuts in some 
     programs, less in others, by staying within the total dollar 
     amount declared by the Court. If Congress fails to act, or if 
     it acts but violates the Amendment a second time, then the 
     Court-ordered across-the-board cuts would be final for that 
     fiscal year.
       Congress should have one bite at the apple to make those 
     policy judgments between competing programs, after a 
     declaration of violation of the BBA. But, it should be only 
     one bite, otherwise, every budget could be wrapped up in 
     eternal litigation, every year.
       Lastly, what happens if Congress fails to pass a budget by 
     the first day of the fiscal year? Then the Court should have 
     the power to examine the taxes then in effect, and determine 
     the dollar amount that those taxes would raise in the coming 
     year. The amount would be the cap. All programs would be 
     presumed to continue at their current levels of funding 
     (exactly what Congress
      itself does in Continuing Resolutions). The Court would 
     determine whether that did, or did not, result in balance. 
     Again, Congress would have 20 days to make policy-based 
       adjustments.I am deliberately not trying to write or offer 
     precise language. You and your staff are far better able to 
     do that. However, approaches such as those outlined could 
     accomplish all the basic purposes that are covered in the 
     assumptions, stated above.
       One last point about when such statutory provisions should 
     be passed. Most of my time on this subject over the last 17 
     years has been spent with state legislators, both in hearings 
     and often in far-reaching, challenging conversations about 
     ramifications of the BBA. If you intend to establish by 
     statute the parameters of judicial review and remedies, you 
     should pass that statute at the same time you pass the BBA 
     and send it out for ratification.
       Some of the more far-sighted state legislators are engaging 
     in the same process you are, asking themselves what might the 
     Supreme Court do, or not do, to enforce the BBA. They are 
     especially concerned with two areas--judicially-imposed 
     taxes, and judicially-made choices between different policies 
     and programs. If you pass the statute now, or very soon after 
     you promulgate the BBA for ratification, you will satisfy 
     state legislators, first, that judicial review will occur, 
     and second, that judicial enforcement will not get into 
     either of these areas of grave concern.
       If you do not pass such a statute within a few months of 
     promulgating the Amendment, you will engender serious 
     concerns among the state legislators about whether you will 
     ultimately do that, and if so, what provisions you will 
     choose to include. Recalling that ratification requires the 
     approval of 38 state legislatures, or ratifying conventions 
     elected in 38 states under the other Article V method, you 
     will endanger the ratification of the BBA if you do not 
     provide review statute so state legislators can read it side 
     by side with the text of your BBA.
       There may be other aspects of enabling legislation that you 
     may want, but do not choose to address until and unless the 
     states ratify the Balanced Budget Amendment. Your own 
     considerations and reflections, together with the responses 
     of the states as they ratify, might be valuable in writing 
     that legislation. However, on judicial review itself, I 
     strongly urge you to consider, write and pass that 
     legislation as soon as possible, once you decide to pass the 
     BBA itself.


                               conclusion

       You have 200 years of history at the state and local level 
     about the importance of making the tough decisions about 
     taxing and spending, about ``balancing the willingness to 
     spend against the reluctance to tax.'' You also have 150 
     years of experience here in Congress on the same point. If 
     that satisfies you that the nation needs the BBA in the 
     Constitution, now is the time to act.
        [[Page S2731]] You should not be reluctant to act on the 
     grounds that this is an ``economic'' provision. The 
     Constitution has many other provisions intended to effect the 
     economy of the United States, ones which in the fullness of 
     world history have been proven to be basic in the 
     organization of any competent national economy. Consider the 
     fact that Dr. Franklin's invention of the Patents and 
     Trademark clause has become regional through NAFTA, and may 
     shortly become global through GATT. Economic provisions 
     belong in our Constitution, provided they are the right ones 
     for the nation at the right time in our history-whether the 
     year is 1787 or 1994.
       Lastly, you should be concerned with judicial enforcement 
     of the Balanced Budget Amendment. If it is correct to place 
     the Amendment in the Constitution, it is also correct to 
     guarantee both that if will be enforced, and to prevent forms 
     of enforcement that would undercut the essential purposes of 
     Congress, namely decisions on taxation and on competing 
     public policies. Fortunately, the Constitution gives Congress 
     the power to shape judicial enforcement to accomplish both 
     purposes.
       I welcome your questions on this complex subject with 
     complex ramifications.
                                                                    ____

          [From the U.S. Chamber of Commerce, Washington, DC]

           Balanced Budget Amendment: The Role of the Courts

       Some lawmakers and commentators have raised questions about 
     the enforcement of a Balanced Budget Amendment to the U.S. 
     Constitution. A primary concern is that Congressional efforts 
     to meet the balanced budget requirement would be challenged 
     in the courts, and the judiciary would be thrust into a non-
     judicial role of weighing policy demands, slashing programs 
     and increasing taxes.
       On the other hand, there is a legitimate and necessary role 
     for the courts in ensuring compliance with the amendment. 
     Congress could potentially circumvent balanced budget 
     requirements through unrealistic revenue estimates, emergency 
     designations, off-budget accounts, unfunded mandates, and 
     other gimmickry. Certainly, the track record of the 
     institution under the spending targets of Gramm-Rudman-
     Hollings and other statutory provisions is no cause for 
     optimism.
       It is our view that the need to proscribe judicial 
     policymaking can be reconciled with a constructive role for 
     the courts in maintaining the integrity of the balanced 
     budget requirement. Congress is expected to address technical 
     issues such as accounting standards, budget procedures and 
     judicial enforcement in followup implementing legislation. By 
     drawing on the existing legal principles of ``mootness,'' 
     ``standing'' and ``non- judiciability,'' implementing 
     legislation can define an appropriate role for the courts in 
     making the amendment work. The net effect can be to prevent 
     judicial assumption of legislative functions such as 
     selecting program cuts, while allowing the courts to police a 
     framework of accounting standards and budget procedures.


              Traditional Limits on Judicial Intervention

       In general, the courts have shown an unwillingness to 
     interject themselves into the fray of budgetary politics. The 
     New Jersey Superior Court observed that ``it is a rare case .  
     .  . in which the judiciary has any proper constitutional 
     role in making budget allocation decisions.''\1\ The 
     judiciary has remained clear of most budget controversies 
     through the principles of ``mootness'' and ``standing,'' as 
     well as the ``political question'' doctrine.
     \1\ Footnotes at end of article.
---------------------------------------------------------------------------
       A case is considered moot, and can be rejected by the 
     court, if the matter in controversy is no longer current. In 
     Bishop v. Governor, 281 Md. 521 (1977), taxpayers and 
     Maryland legislators claimed that the governor's proposed 
     budget violated the state's balanced budget law, because $95 
     million was contingent upon enactment of separate federal and 
     state legislation. The Maryland Court of Appeals dismissed 
     the case as moot because by that time the separate 
     legislation had been
      approved, and the relevant fiscal year had elapsed. Mootness 
     will be a factor in many potential challenges to 
     Congressional action under a federal Balanced Budget 
     Amendment, particularly those based on unplanned 
     expenditures or flawed revenue estimates which become 
     apparent near the end of the fiscal year.
       The doctrine of standing limits judicial access to parties 
     who can shoe a direct injury over and above that incurred by 
     the general public. The logic is that the grievances of the 
     public (or substantial segments thereof) are the proper 
     domain of the legislature.\2\ The U.S. Supreme Court has 
     generally held that status as a taxpayer does not confer 
     standing to a challenge federal actions\3\, and has barred 
     taxpayer challenges of budget and revenue policies in the 
     absence of special injuries to the plaintiffs.\4\ A state 
     cannot sue the federal government on behalf of its 
     citizens,\5\ and it is doubtful that Members of Congress have 
     standing to challenge federal actions in court.\6\
       The political question doctrine is a related principle that 
     the courts should remain out of such matters which the 
     Constitution has committed to another branch of government. 
     The U.S. Supreme Court has held that a ``political question'' 
     exists when a case would require ``nonjudicial 
     discretion.''\7\ This would be the case with many budgetary 
     controversies, such as the choice to cur particular programs, 
     which by their nature require ideological choices and the 
     balancing of competing needs. In theory, at least, Congress 
     brings to this task a ``full knowledge of political, social 
     and economic conditions...,'' as well as the legitimacy of 
     elected representation.\8\ The New Jersey Supreme Court 
     recognized this in a case where local governments challenged 
     funding decisions made by the governor and legislature, 
     holding that the allocation of state funds among competing 
     constituent groups was a political question, to be decided by 
     the legislature and not the judiciary.\9\ The Michigan 
     Supreme Court has likewise held that program cutting 
     decisions are a non-judicial function.\10\


                         a role for the courts

       The courts have asserted jurisdiction over politically 
     tinged controversies where they find ``discoverable and 
     manageable standards'' for resolving them. In Baker v. Carr, 
     the U.S. Supreme Court reasoned that objective criteria guide 
     judicial decisonmaking and limit the opportunity for 
     overreaching. In the balanced budget context, the 
     ``discoverable and manageable standards'' principle can help 
     demarcate lines between impermissible judicial policymaking, 
     and the needed enforcement of accounting rules and budget 
     procedures.
       In all likelihood, a strong framework of accounting 
     guidelines will emerge from implementing legislation. The 
     Senate Judiciary Committee has interpreted Section 6 of the 
     bill to impose ``a positive obligation on the part of 
     Congress to enact appropriate legislation'' regarding this 
     complex issue.\11\ Judiciary Committee staff on both the 
     House and Senate side have indicated their intention that 
     implementing legislation embrace stringent accounting 
     standards that will minimize the potential for litigation. 
     Should legitimate questions arise concerning the methods by 
     which Congress ``balances'' the budget, these standards will 
     also provide objective criteria which meet constitutional 
     standards for judicial intervention.
       The implementing package is also likely to establish 
     guidelines for judicial involvement defining what issues are 
     judiciable and which parties have standing to challenge 
     Congressional decisions. Where Congress has defined standing 
     within the relevant statue, the courts have generally 
     deferred to this request for judicial input, and entertained 
     suitable cases.\12\ This approach has the advantage of 
     defining appropriate controversies and plaintiffs more 
     precisely. In the Balanced Budget context, the right to raise 
     particular arguments could be delegated to specific public 
     officials. State budget officers, for example, could be given 
     standing to contest unfunded federal mandates.
       We are satisfied that such enforcement procedures, coupled 
     with budget process and accounting guidelines, will operate 
     against a backdrop of traditional legal principles to 
     rationally limit judicial action. The effect should be to 
     prevent judicial overreaching into legislative functions 
     while providing a check on Congressional attempts to evade 
     the requirements of the BBA through procedural and numerical 
     gimmickry.
                               footnotes

     1. Board of Education f. Kean, 457 A.2d 59 (N.J. 1982).
     2. Flast v. Cohen, 392 U.S. 83 (1968), (Harlan, J., 
     dissenting).
     3. Massachusetts v. Mellon, 262 U.S. 447 (1923). The courts 
     have allowed taxpayer claims that public funds were used to 
     support an unconstitutional purpose. The two important 
     decisions in this area are both establishment of religion 
     cases. Flast v. Cohen, 392 U.S. 83 (1968); Valley Forge 
     Christian College v. Americans United for Separation of 
     Church and State, 454 U.S. 464 (1982).
     4. United States v. Richardson, 418 U.S. 166 (1974) 
     (plaintiffs challenged a statute allowing the CIA to avoid 
     public reporting of its budget); Simon v. Eastern Kentucky 
     Welfare Rights Organization, 426 U.S. 26 (1976) (plaintiffs 
     challenged a Revenue Ruling granting favorable tax treatment 
     to certain hospitals as inconsistent with the Internal 
     Revenue Code).
     5. South Carolina v. Katzenbach, 383 U.S. 301 (1966).
     6. Goldwater v. Carter, 444 U.S. 996 (1979).
     7. Baker v. Carr, 369 U.S. 186 (1962).
     8. Id.
     9. Camden v. Byrne, 82 N.J. 133 (1980).
     10. Michigan Assn. of Countries v. Dept. of Management and 
     Budget, 418 Mich. 667 (1984).
     11. S. Rpt. 103-163, 103rd Congress, 1st Session (1993).
     12. Nowak, John E. et al, Constitutional Law, West Publishing 
     Co. (1983), p. 87. In Lujan v. Defenders of Wildlife, 112 
     Sup. Ct. 2130 (1992), the Court voided a citizen suit under 
     the Endangered Species Act, holding that Congress' power to 
     define standing by statute is limited by Article III of the 
     Constitution. The decision implied that citizen suit 
     provisions must be carefully articulated and supported by 
     clear legislative goals.

  Mr. LAUTENBERG. Mr. President, I am going to vote against the motion 
to table the Johnston amendment.
  Mr. President, in my view, courts should not be allowed to enforce 
the balanced budget amendment by raising taxes, cutting benefits, or 
otherwise involving themselves in Federal budgetary policy. We live in 
a democracy. And the power to tax and spend should be granted only to 
those who are accountable to the public.
  Our Nation was founded on the principle of no taxation without 
representation. It is not time to turn back now.
  Unfortunately, Mr. President, unless amended, the balanced budget 
amendment to the Constitution that is before us today threatens to give 
the courts unlimited power to raise taxes and cut 
 [[Page S2732]] spending when necessary to ensure a balanced budget. 
The Johnston amendment would ensure that this power could be exercised 
only if explicitly authorized by the Congress.
  Frankly, Mr. President, I do not even think that Congress should be 
allowed to give courts the power to increase taxes as a means of 
enforcing this constitutional amendment. Decisions about taxing and 
spending should be made by elected officials, and those officials 
should not be allowed to avoid accountability for those decisions by 
delegating that power to the judiciary.
  So, Mr. President, I seriously considered voting to table the 
Johnston amendment because it does not go far enough to limit judicial 
power, and I suspect that some of my colleagues will vote to table the 
Johnston amendment on that basis. However, I have decided to vote 
against the motion to table since, although the Johnston amendment does 
not go far enough, it at least would put some limits on the judiciary's 
taxing and spending powers under the proposed constitutional amendment.
  Mr. JOHNSTON. Mr. President, I believe I am prepared to summarize in 
1 minute and I will yield back the balance. Mr. President, I yield 
myself 1 minute.
  Mr. President, this amendment as worked out with the distinguished 
Senator from Washington [Mr. Gorton] and the distinguished Senator from 
Colorado [Mr. Brown] deprives the courts of judicial power to raise 
taxes, to cut budgets, to be involved in fiscal affairs of this 
Congress except to the extent that the Congress specifically authorizes 
that in authorizing legislation.
  It is the duty of Congress to implement and enforce this article by 
authorizing legislation. Section 6 so states, and there is also an 
exemption made for section 2. That is, the judicial power of the courts 
can extend to the enforcement of section 2 which in return requires 60 
votes to raise the debt of the United States.
  Mr. President, this is exactly what the sponsors of this 
constitutional amendment have said the amendment does. They have stated 
that the courts may not enforce this amendment. This makes it clear 
that the courts may not enforce the amendment except in the case of 
section 2 or unless the Congress specifically authorizes them to do so.
  Mr. President, it is unthinkable to have the kind of ambiguity in the 
Constitution of the United States that is inherent in this amendment 
unless the Johnston amendment is agreed to.
  I urge my colleagues to adopt this amendment.
  I believe we are ready to yield back the balance of our time.
  Mr. HATCH. Mr. President, I am prepared to yield back the balance of 
my time.
  The PRESIDING OFFICER. All time has expired.
  Mr. DOLE. Mr. President, I move to table the Johnston amendment, and 
I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
lay on the table the amendment (No. 272), as modified, of the Senator 
from Louisiana.
  The clerk will call the roll.
  The bill clerk called the roll.
  Mr. LOTT. I announce that the Senator from Kansas [Mrs. Kassebaum] is 
necessarily absent.
  The PRESIDING OFFICER (Mr. Thompson). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 52, nays 47, as follows:

                      [Rollcall Vote No. 71 Leg.]

                                YEAS--52

     Abraham
     Ashcroft
     Bennett
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Cohen
     Coverdell
     Craig
     D'Amato
     Dole
     Domenici
     Faircloth
     Frist
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Harkin
     Hatch
     Hatfield
     Heflin
     Helms
     Inhofe
     Kempthorne
     Kohl
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Moseley-Braun
     Murkowski
     Nickles
     Packwood
     Pressler
     Reid
     Robb
     Santorum
     Shelby
     Simon
     Simpson
     Smith
     Snowe
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--47

     Akaka
     Baucus
     Biden
     Bingaman
     Bond
     Boxer
     Bradley
     Breaux
     Brown
     Bryan
     Bumpers
     Byrd
     Conrad
     Daschle
     DeWine
     Dodd
     Dorgan
     Exon
     Feingold
     Feinstein
     Ford
     Glenn
     Gorton
     Hollings
     Hutchison
     Inouye
     Jeffords
     Johnston
     Kennedy
     Kerrey
     Kerry
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moynihan
     Murray
     Nunn
     Pell
     Pryor
     Rockefeller
     Roth
     Sarbanes
     Specter
     Stevens
     Wellstone

                             NOT VOTING--1

       
     Kassebaum
       
  So the motion to lay on the table the amendment (No. 272), as 
modified, was agreed to.
  Mr. DOLE. Mr. President, I move to reconsider the vote.
  Mr. HATCH. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arkansas.

                          ____________________