Congressional Record, Volume 141 Issue 31 (Thursday, February 16, 1995)

[Congressional Record Volume 141, Number 31 (Thursday, February 16, 1995)]
[Senate]
[Pages S2777-S2804]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

CALL OF THE ROLL

The PRESIDING OFFICER. By unanimous consent, the quorum call has been
waived.
[[Page S2778]] VOTE

The PRESIDING OFFICER. The question is, Is it the sense of the Senate
that debate on House Joint Resolution 1, the balanced budget amendment
to the Constitution, shall be brought to a close? The yeas and nays are
required.
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
who desire to vote?
The yeas and nays resulted--yeas 57, nays 42, as follows:

[Rollcall Vote No. 74 Leg.]

YEAS--57

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

NAYS--42

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

NOT VOTING--1

Kassebaum

The PRESIDING OFFICER. On this vote, the yeas are 57, the nays are
42. Three-fifths of the Senators duly chosen and sworn, not having
voted in the affirmative, the motion is rejected.
Under the previous order, the Senator from West Virginia is
recognized to offer an amendment.
Mr. BYRD. I thank the Chair. Mr. President, it is my understanding
that the Senator from Nevada [Mr. Bryan] wishes to speak for not to
exceed 7 minutes. I ask unanimous consent that I may yield to the
distinguished Senator for that purpose, not to exceed 7 minutes, and
that I retain my right to the floor.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from Nevada is recognized for 7 minutes.
Mr. BRYAN. I thank the Chair.
(The remarks of Mr. Bryan pertaining to the introduction of S. 429
are located in today's Record under Statements on Introduced Bills and
Joint Resolutions.)
The PRESIDING OFFICER (Mrs. Hutchison). The Senator from West
Virginia.
Mr. BYRD. Madam President, I thank the Chair.
May I take just a moment here to compliment the Republican Senators
who have been sitting in the chair from the very beginning of this
session. In the main, I think they have done very well. They have
presided over the Senate with dignity, except in a few cases when there
probably ought to be a little less talking up there at the desk because
the cameras are often focused right on that desk. State legislators,
professors, students, and the people at large expect this Senate to be
the premier deliberative body in the world. It is not a State
legislature. And I do not say that to cast any aspersions on State
legislatures. I have been a member of both houses many years ago in
West Virginia.
Generally speaking, the presiding officers have been alert and have
been paying attention to the debate, as they should.
Madam President, the original Constitution and the amendments
heretofore adopted serve two basic functions: One, they create a
structure of government and establish three departments thereof: the
Legislative, the Executive, and the Judicial, and they allocate the
powers of government among the three branches of the Federal Government
and between the two Houses of Congress.
The Constitution also prohibits the States from taking certain
actions, and all powers that are not delegated to the Congress by the
Constitution shall be reserved to the States or the people.
So this is a Constitutional system, with checks and balances and a
separation of powers, thus establishing an equilibrium between and
among the three departments--the Legislative, the Executive, and the
Judicial.
Two, the original Constitution and the amendments thereto, protect
the most fundamental individual rights, such as life, liberty, and
property; free speech; freedom of assembly; freedom of religion;
freedom of the press; and equal justice under law.
So the Framers wisely left the determination of fiscal policy to the
elected representatives of the people. Deciding when or whether to
balance the budget, and whether and when to risk a deficit, calls for a
judgment of policy, the kind of political judgment left by the Founding
Fathers to the majoritarian processes of representative democracy. The
Constitution and the amendments thereto do not undertake to resolve
questions of fiscal policy. And for 206 years, that Constitution has
not been amended to include fiscal policy.
Under the constitutional amendment that the Senate has been debating,
such a judgment of fiscal policy, and when or whether to apply
countercyclical measures would, to a considerable degree, be inhibited.
Section 3 of the amendment, for example, would fetter and hamstring the
President in the proper exercise of his powers.
Let me read section 3 of the proposed amendment to the Constitution.
I quote. This is section 3, from the constitutional amendment to
balance the budget.

Section 3. Prior to each fiscal year, the President shall
transmit to the Congress a proposed budget for the United
States Government for that fiscal year in which total outlays
do not exceed total receipts.

I think it is important that we recognize that this amendment to the
Constitution, by virtue of section 3, would, if adopted, hamper the
President. It would fetter the President. It would hamstring the
President in the proper exercise of his powers by requiring him to
submit a balanced budget even though he may consider a deficit to be
necessary as a countercyclical measure to combat a recession that may
be already underway. Countercyclical stabilizers are rendered even more
difficult in a period of economic decline by the requirement of a
supermajority vote to waive the section 1 mandate for a balanced budget
in every fiscal year. Such requirement for a supermajority can prove to
be a very troubling recipe for gridlock.
The amendment now being debated by the Senate provides that outlays
in any given year shall not exceed receipts; that Congress may
appropriate money in excess of anticipated revenues only by a three-
fifths vote of the full membership of both Houses, and not by lesser
majorities; that Congress may enact revenue increases only by majority
votes of the full membership of both Houses on rollcall votes, and not
by lesser majorities.
Let me state that again.
The constitutional amendment that is before the Senate requires that
Congress may enact revenue increases only by majority votes of the full
membership of both Houses--of both Houses--on rollcall votes.
In other words, in the Senate that would mean by no less than 51
votes and in the House that would mean no less than 218 votes.
The amendment also provides that Congress may raise the ceiling on
the national debt, but only by a three-fifths vote of the full
membership of both Houses, and not by lesser majorities.
Justice Oliver Wendell Holmes was right when he warned that the
Constitution ought not ``embody a particular economic theory.'' In
keeping with that wisdom, the Framers remitted Federal fiscal policy,
not to special supermajorities, but rather to the crucible of ordinary
majoritarian democratic politics. Article I, Section 8, Clause 1, gives
Congress the power to tax and spend for the common defense and general
welfare, and to borrow money on the credit of the United States--all
obviously by simple majorities.
[[Page S2779]] So basic is the majoritarian premise of Article I of
the United States Constitution that it is barely mentioned, except for
the statement in Article I, Section 5, Clause 1, that ``a majority of
each House shall constitute a quorum to do business.'' The
contemporaneous history supports the majoritarian premise, for the
Framers entertained, but rejected, the idea requiring that ordinary
legislation on any particular subject matter be passed by a
supermajority. For example, Alexander Hamilton, in the Federalist No.
22, warned:

To give a minority a negative upon the majority--

Which is always the case where more than a majority is requisite to a
decision--

is, in its tendency, to subject the sense of the greater
number to that of the lesser number. . . . The public
business must in some way or other go forward.

This is Hamilton speaking.

If a pertinacious minority can control the opinion of a
majority respecting the best mode of conducting it--

Meaning the public business.

the majority, in order that something may be done, must
conform to the views of the minority; and thus--

Says Hamilton.

the sense of the smaller number will overrule that of the
greater, and give a tone to the national proceedings. Hence,
tedious delays--continual negotiation and intrigue--
contemptible compromises of the public good. . . . For upon
some occasions, things will not admit of accommodation; and
then the measures of government must be injuriously suspended
or fatally defeated. It is often, by the impracticability of
obtaining the concurrence of the necessary number of votes--

This is Hamilton speaking. Let me begin again that sentence.

It is often, by the impracticability of obtaining the
concurrence of the necessary number of votes, kept in a state
of inaction. Its situation must always savour a weakness--
sometimes border upon anarchy.

That was Alexander Hamilton. Where are all these Senators who are
proponents of this amendment? It would not hurt them to hear the
Constitution read today, from the beginning to the end. I do not intend
to inflict that kind of punishment on them, but they certainly would do
well to read and to hear read those portions of the Constitution which
impact upon this constitutional amendment on the balanced budget.
Madison added his warning against supermajorities, in the Federalist
No. 58:

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. . .
. [But] . . . 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;

This is Madison speaking.

the power would be transferred to the minority. Were the
defensive privilege limited to particular cases, an
interested minority might take advantage of it to screen
themselves from equitable sacrifices to the general weal, or
in particular emergencies, to extort unreasonable
indulgences.

That is Madison.
That is James Madison. He referred to particular emergencies and the
supermajorities that are included in this nefarious constitutional
amendment to balance the budget to deal with ``particular
emergencies.'' I am using Madison's words--``particular emergencies.''.
Let me read again what Madison said.

Were the defensive privilege limited to particular cases,
an interested minority might take advantage of it to screen
themselves from equitable sacrifices to the general weal, or
in particular emergencies, to extort unreasonable
indulgences.

Where are the proponents of this amendment? Why do they not
interrogate James Madison? Why do they not hearken to his words and
Hamilton's words? No. They do not want to hear. As was said in Homer's
Iliad, ``Not if I had 10 tongues and 10 mouths, a voice that could not
tire, lung of brass in my bosom,'' would they hear me. They have eyes
that cannot see and ears that cannot hear, and minds that are unwilling
to comprehend the warnings of the Framers of the Constitution. Should
one conclude that they pretend to be wiser men than those who wrote the
Constitution?
Mr. President, the balanced budget amendment would reject the wisdom
both of Hamilton and Madison by adopting supermajority requirements
that would transfer power from majorities to minority factions. And
George Washington in his Farewell Address warned against parties and
factions. Sections 1 and 2 of the constitutional amendment to balance
the budget would require that deficit spending and increases in the
statutory debt limit be approved by three-fifths of the whole number of
each House. Section 4 would impose a minisupermajority requirement, in
that revenue increases must be authorized by a majority of the whole
number of each House. Meaning in the Senate, 51 votes would be required
to increase revenues, and in the House 218 votes would be required, 217
would not be enough, 218 votes would be required to pass legislation in
the House to increase revenues--rather than, as is usual, by a majority
of Members present and voting. Were the Framers wise? To ask the
question is to answer it. This minisupermajority that is required for
revenue increases flies in the face of Madison's warning against a
requirement of ``more than a majority of a quorum for a decision.''
Defenders of the balanced budget amendment often say, what is so bad
about supermajority requirements? After all, the Senate in its own
rules requires a supermajority for cloture on filibusters. So why is it
so bad to have in the Constitution a requirement of a supermajority?
The proponents also refer to the supermajorities that are mentioned in
the Constitution and the amendments thereto. But these existing
supermajority requirements furnish no precedent for those in the
balanced budget amendment, for they are fundamentally different in
kind.
Rules on parliamentary procedures that the Senate adopts for its own
governance are surely no model for an alteration of the Nation's
fundamental charter. Anybody who argues that point simply does not, and
has not stopped to think, knows very little about the Senate rules, and
very little, in all likelihood, about the Constitution. Such rules of
the Senate can be changed by the Senate acting itself alone, and are
not comparable to an amendment to the Constitution, which requires the
support of both Houses of Congress by a two-thirds vote and three-
fourths of the State legislatures for adoption.
Although the Constitution does impose some supermajority
requirements, it does so quite sparingly, and only for good reasons,
namely, to provide one branch a check upon another branch --for
example, treaty ratification and veto overrides. In the case of a
treaty approval, the legislative branch--one component thereof; namely,
the Senate--acts as a check upon the executive, in the ratification of
treaties that bind this Nation in its relations with other nations. It
is a check and balance. A supermajority is also required for a veto
override, and again provides a check and balance between the executive
and the legislative branch. One of the Framers stated that the one
reason for the veto itself was that the President, the Executive, could
provide protection for himself and his office, against the legislative
branch.
So he was given the veto. That is check and balance. Other
supermajorities in the original Constitution were to protect individual
rights. For example, in the case of the expulsion of a Member of the
Senate or of the House, a Member cannot be expelled by a simple
majority. It requires two-thirds of the Senate to expel a Senator, two-
thirds of the House to expel a House Member. These supermajorities are
provided for the protection of individual rights, the individual rights
of the Members of the two bodies, else a simple majority could expel
Members of the minority, get rid of them, send them home, expel them by
a simple majority. A supermajority is there for the protection of the
individual rights of the elected representatives of the people.

The same is the case with impeachment. Were there not a supermajority
required, then an impulsive and partisan majority in the Senate could
convict a President in an impeachment trial. That almost happened with
Andrew Johnson, as we all know. So that supermajority is required to
protect individual rights, the rights of a President, the rights of
other officers who
[[Page S2780]] may be impeached, the rights of Federal judges who may
be impeached. The supermajority required in article V is to insure that
the fundamental charter of this Republic not itself be too freely
amended.
Amending the Constitution is provided for, but the Framers wisely
established that amendments not be adopted and ratified too freely.
Thus, we have only seen 17 amendments added to the original
Constitution and Bill of Rights. They were wise men.
Then there are certain other supermajorities. Amendment XII of the
Constitution deals with the election of a Vice President by the Senate.
In the 14th amendment, a supermajority is required to waive the
disability upon individuals who, having previously taken the oath of
office to support the Constitution, later engage in rebellion against
the United States. It requires a supermajority in both Houses to lift
that disability from such individual. I am not against amending the
Constitution. Our forefathers provide for that situation, and I have
voted for five constitutional amendments to the Constitution.
Hence, there are nine supermajorities of one kind or another in the
original Constitution and the amendments thereto. I think it is very
unwise, however, to provide a constitutional amendment that requires a
supermajority in the enactment of a fiscal policy.
There is one other supermajority, and that is the supermajority
written into the original Constitution that dealt with the matter of a
quorum in the election of a President when such election is thrown into
the House of Representatives.
So there you have it. These are all structural concerns or, as I say,
they provide basic protections for individual rights. They are
structural concerns that deal with the structure of this form of
government as established by the original Framers--and the States and
people thereof, who ratified the Constitution--or they deal with rights
of individuals.
The supermajority requirements of this balanced budget amendment
embody no such structural concerns and no protections of individual
rights. Rather, the supermajority requirements to the balanced budget
amendment would for the first time in our constitutional history--the
first time in 206 years--inject a minority veto into the ordinary
processes of the determination of fiscal policy within the legislative
branch. The danger of supermajority requirements in this policymaking
context is that a minority of either House can hold the legislative
agenda hostage, blocking majority choices until the minority factions
obtain the policy concessions that they want. James Madison described
this very danger in Federalist No. 58, where he warned that
supermajority requirements permit the minority--permit the minority--to
``extort unreasonable indulgences'' from the majority. In the business
of budget balancing, permitting such minority vetoes might actually be
counterproductive if it fostered minority demands for expensive pet
programs as the price of deficit spending authorizations.
The rules laid down, therefore, are those of parliamentary procedure,
which may belong in the rules of the Senate and the House of
Representatives, but not in the Constitution.
To insert parliamentary rules into the Constitution cheapens--
cheapens--that basic charter and erodes the respect upon which its
vitality and usefulness depend.

There would be years in which three-fifths majorities of the full
membership of both Houses of Congress authorized spending in excess of
receipts, and there would be years in which expenditures outran
receipts because actual receipts fell short of honest and careful
estimates, or because actual expenditures exceeded the best and most
careful estimates. As these deficit years occur down the road, what
would be the reaction of the citizens who supported this amendment and
who were told that the amendment would produce a balanced budget each
year? The result surely would be disillusionment, cynicism, distrust of
those who govern, and loss of confidence in our basic, fundamental,
organic law: the Constitution of the United States.
The operation of the budget, appropriations, and revenue processes
are so highly complex that disputes are bound to arise. Forecasts with
regard to both receipts and outlays vary so widely that violations of
the requirement that outlays shall not exceed receipts in a given year
are bound--bound--to occur.
I have shown that. I have shown charts that demonstrate that fact
time and time again.
Old disputes about the separation of powers, reminiscent of the
impoundment controversy of the Nixon administration, would be reopened.
How many Senators here today were Members of this body when that
controversy occurred? Very few.
The powers of the executive vis-a-vis the legislative branch will, in
all likelihood, be substantially enlarged.
Who are the proponents of this balanced budget amendment? Are they
monarchists? Are they monarchists who want to see the power shifted to
the executive? Do they want an all-powerful, imperial President?
To rivet into the Constitution this amendment calling for a balanced
budget annually would be to Constitutionalize fiscal policy, and would
give rise to disputes cast in Constitutional terms, which must either
go unresolved or bring the courts into the determination of fiscal
policy. Few judges, if any, have expertise in such matters as fiscal
policy, budgets, and appropriations, and lack the experience to guide
their decisions. The courts would lack judicially manageable standards
to guide their decisions, and drawing the Judiciary into budgetary,
appropriations, revenue and other fiscal matters would mean an
intrusion--an intrusion--into an area that Congress and the President
have long regarded as their--their--exclusive domain. As a result, the
stage would be set to injure the prestige and authority of the courts,
as well as to impair the effectiveness of the Judiciary in preserving
the ancient framework of republican government and protecting the
Constitutional liberties of the nation's citizens. The people's faith
in both the Judiciary and the Constitution would be seriously damaged.
Hence, the implications of an amendment for the constitutional
structure of our Government and for the status of our Constitution as
partisan law would be very, very serious.
That is what this amendment is. It is a partisan amendment. It is a
political amendment supported by a political party. It is the
Republican Party as of today in the Senate and the House that is
pressing for this amendment. And they want to do it now, do it here--
``Do it now; do it here; we can't wait''--because they have it in their
so-called Contract With America. That so-called contract is supposed to
supplant the Constitution when it comes to this amendment.
Should the measure be enforced by the judiciary, it would produce an
unprecedented restructuring of the balance of power among the three
branches of Government. There are no two ways about it. It would
produce an unprecedented restructuring of the balance of power among
the three branches of Government.
To crucify the Constitution upon the cross of the so-called Contract
With America is of little consequence, provided you will give us the
Barabbas of temporary partisan and political gain!
That Constitution bears the stains of blood from thousands of men and
women throughout the history of this Nation--men and women who gave
their lives at Valley Forge, at Saratoga, at Yorktown, at Lexington,
and Concord.
Nathan Hale. Who is he? Never heard of him. Who was Nathan Hale?
Well, Nathan Hale was a young man, 21 years of age, who was a
schoolteacher.
He responded to General George Washington's request for a volunteer
to go behind the British lines and to bring back the drawings of
fortifications. Nathan Hale responded as that old patriarch did in
biblical times, ``Speak Lord, thy servant heareth.'' Nathan Hale
responded, knowing that that task was fraught with danger and might
cost him his life.
He went behind the British lines, disguised as a Dutch schoolmaster.
His mission was almost finished when, on the night before he was ready
to return to the American lines, he was discovered with notes and
letters on his person, and he was arrested. The next morning, on
September 22, 1776, he was
[[Page S2781]] brought before the gallows. He saw before him the
gallows. He saw to one side, the wooden coffin which would soon claim
his lifeless body. He requested a Bible. His request was refused.
The British officer, who was a major by the name of Cunningham said,
``Do you have anything to say?'' Nathan Hale replied, ``I regret that I
have only one life to lose for my country.'' The British officer
angrily commanded, ``String the rebel up,'' and Nathan Hale died. He
only had one life to give for his country.
Yet, there are some who are unwilling to give one vote for their
country--one vote. Not everybody sees this as I do, of course. I see it
through the context of many, many years of dedicated service to this
institution, having sworn 13 times to support and defend the
Constitution--13 times over a period of 48 years. Some of those who
support this amendment are undoubtedly--undoubtedly--sincere, and they
conscientiously believe that this is the only way to get deficits under
control.
But not all, I would say--and I attempt to be the judge of no man and
no woman, but I have talked with many Senators around here on this
matter, and some have expressed strange reasons for not supporting this
amendment. Some think that we ought to just wash our hands of it, let
it go to the States. ``The States will not ratify it,'' they say. Some
say if the States ratify it, the backlash will destroy the Republican
Party in time.
Madam President, we cannot say, ``Let this cup pass from me.'' Harry
Truman, even if he were in the White House today, could not say, ``The
buck stops here.'' This constitutional amendment does not stop on its
way to the President. It does not go to the President's desk. So where
does the buck stop? The buck stops here--right here in the Senate.
I hope that Senators will think again, those who may be guided by
political motives to vote for this amendment. I hope they will think
again. Nathan Hale gave one life, and thousands have given their lives
to sustain the freedoms that are guaranteed by the Constitution of the
United States. That Constitution, as I say, is stained with the blood
of thousands.
There is not one proponent of this amendment to the Constitution
against whom the blood of that Constitution will not cry out as loudly
as did the blood of Abel against Cain, if it is adopted. Not one!
There are those who say, ``Well, he is the chairman of the
Appropriations Committee. He is the chairman of the Appropriations
Committee. You would not expect him to do anything else. He is the
`king of pork.' No wonder he is against this amendment.''
Fie on such little men who think in such little terms, who have
themselves, in all likelihood, never taken an oath to support and
defend the Constitution of the United States. I have taken that oath,
and every other Member here--man and woman--has taken that oath.
Montesquieu said when it came to the oath, the Romans were the most
religious people on Earth. Marcus Atilius Regulus, a Roman consul,
captured by the Carthaginians in the year 258 B.C., was sent by the
Carthaginians with an embassy to Rome to plead the case of the
Carthaginians before the Roman Senate and to attempt, if possible, to
arrange for an exchange of prisoners, also, to endeavor to bring about
a truce on terms that would be favorable to the Carthaginians. Marcus
Atilius Regulus, however, when he spoke to the Roman Senate, advised
the Senate against entering into any such arrangement or agreement or
treaty with the Carthaginians, because such an arrangement would not be
beneficial to Rome.
Regulus said, ``I know that they will know what I have said here and
that I will pay with my life.'' The Roman Senate offered to protect
Regulus against his being returned to Carthage. But Regulus said, ``No,
I gave them my word. I swore an oath to them, which they made me do. I
swore an oath to them that I would return.'' And he said, ``I will keep
my oath, even when given to the enemy.''
Against the pleadings and the tears of his wife and children, Marcus
Atilius Regulus returned to Carthage, and he was tortured. He was
forced to lie on spikes in a specially-built enclosure from which he
could only see the Sun. The Carthaginians cut off his eyelids, and he
was forced to look at the Sun all day long. He soon perished!
He was a Roman who believed in keeping his oath. So we can understand
what Montesquieu meant when he said that when it comes to the oath, the
Romans are the most religious people in the world. I, too, am from a
generation that believed in keeping its oath, when sworn before God and
with one hand on the Bible.
Mr. President, if this constitutional amendment proves to be
unenforceable, it would create an equally troubling hazard; namely, by
inscribing an empty promise into the fundamental charter of our
Government, thus breeding cynicism both toward our Government and the
Constitution as well for the rule of law.
Before I diverted my thoughts to the Romans, I talked about what our
constitutional form of Government would suffer in the event that the
balanced budget amendment were to be ratified and enforced.
But now I say, on the other hand, if the amendment proved to be
unenforceable, it would create an equally troubling hazard; namely, by
inscribing an empty promise into the fundamental charter of our
Government, thus breeding cynicism both toward our Government and the
Constitution, as well as for the rule of law.
Keep in mind that not only would Federal judges--keep in mind that
not only would Federal judges--become involved in fiscal policy, but
State judges would also be required to make fundamental decisions about
taxing and spending. And these are issues, I say to my friend from
Georgia, these are issues that judges on both the State and Federal
levels lack the institutional capacity to decide in any remotely
satisfactory manner.
Some proponents of the amendment may be of the opinion that the
``political question'' doctrine or limitations on standing would
preclude litigation that would ensnare the judiciary in the thicket of
budgetary politics.
Some recent decisions of the Supreme Court, however, suggest that the
Court is prepared--is prepared--to resolve questions that might once
have been considered political. For example, in Missouri v. Jenkins,
1990, the Supreme Court upheld the power of a Federal district court to
order a local board of education to levy higher taxes to build magnate
schools in order to promote desegregation. And the Court even held open
as a last resort the possibility that the district court might itself
levy the taxes.
Now get that. ``Oh,'' they say, ``the courts won't enter that
political thicket.'' It is not so much that it is a thicket, it is
political. It is political. Judges are not elected by the people.
Judges are not out there rubbing shoulders and elbows with the American
people and hearing from them as to their advice on making law. But it
is otherwise with the elected representatives of the people, who daily
work and move in a political thicket.
It might not happen, but if the proposed amendment is adopted and
ratified, no one, no man, no man--it reminds me, may I say to my good
friend, one of the fine Senators who is on the ``Republican response
team''--and I love him, I think a lot of the senior Senator from New
Hampshire, I really do--but it reminds me of Odysseus.
Odysseus, Senators will recall from that great story, the
``Odyssey,'' written by Homer, who supposedly lived circa 800 years
before Christ, was blind, blind like Milton who wrote ``Paradise
Lost.'' Homer was blind. But he went around singing songs and poetry.
Perhaps Homer's words have come down to us through the centuries, the
early, early centuries, by repetition, by other men relating, speaking,
and conveying the thoughts and words of Homer.
But let us say it was ``written'' by Homer. I think that is fair
enough. The ``Odyssey.'' In the ``Odyssey,'' we will remember that
Odysseus found himself imprisoned in a cave by the Cyclops, the giant
with one eye in the middle of his forehead. He probably still had more
vision than some of the proponents of this amendment. In any event, the
Cyclopean giant asked Odysseus his name. Odysseus said, ``No Man.'' His
name was Noman. No-man.
Well, I will not proceed with the story, but let me just say that no
man, and no woman, no one should be very surprised to find a Federal
court made
[[Page S2782]] up of unelected judges, appointed for life, enjoining
expenditures selected by the court or requiring the levy of a tax.
People up in New Hampshire would not stand still for that, for
unelected judges levying a tax. We fought one war over taxation without
representation, and the people of New Hampshire know about that.
Even if taxpayers and Members of Congress were not granted standing,
the amendment could lead to litigation by recipients whose benefits,
mandated by law, were curtailed by the President through impoundment of
funds or a line-item veto, in reliance upon the amendment. The
President might well conclude that the Constitutional command that
``total outlays for any fiscal year shall not exceed total receipts''
must take precedence over mere statutes, including appropriation bills,
entitlement laws, and the Impoundment Act of 1974.
If a Presidential decision were made to order a reduction in pension
payments, or in social security payments, or in Medicare payments, or
in veterans compensation payments, the President could argue in defense
of his action that there was a conflict between the statutes requiring
these outlays and the Constitutional provision commanding that ``total
outlays shall not exceed total receipts,'' and that to execute the
spending statutes would result in the Constitution's being violated.
Assuming that a President concludes that his duty to comply with the
Constitutional amendment implicitly includes the impoundment power or
enhanced rescissions power or a line-item veto power necessary to
ensure that the budget is in fact balanced, the result would be an
inevitable shift of power from the Legislative Branch to the Executive
Branch. At the very heart of our Constitutional system of government is
the proposition that power over the raising of revenues and the
appropriation of funds rests with the people's elected representatives
in Congress. The shift to unrestrained Presidential impoundment and
line-item veto or rescissions authority would effectively take from
Congress the ``power over the purse'' and confer that power on the
President.
The placing of the power of the purse in the hands of the Legislative
Branch--and not in the hands of the Executive or Judicial Branches--was
a decision that was not lightly made by the Framers of the
Constitution. James Madison wrote in the 58th Federalist:

This power over the purse may, in fact, be regarded as the
most effectual weapon with which any Constitution can arm the
immediate representatives of the people, for obtaining a
redress of every grievance, and for carrying into effect
every just and salutary measure.

That was Madison. Let me state it again. James Madison wrote in the
58th Federalist:

So the Framers, Mr. President, explicity rejected the notion that
such a crucial power should rest either with the Executive or with the
Judiciary.
As I have already stated, the Courts lack not only the experience and
the resources, but also the close link to the general public needed for
responsible budgetary decisions. It would be a profound--a profound--
mistake for Congress to adopt an amendment to the Constitution that
could transfer such a vital Legislative power to an unelected
Judiciary.
The Framers were well acquainted with the history of England. They
were very familiar with the long and bloody struggle in which the
English people had wrested from tyrannical monarchs the power of the
purse and vested that power in the elected representatives of the
people in Parliament. The Framers, consequently, considered that the
appropriations of money were a bulwark against Executive usurpations,
and they, therefore, carefully wrote into the organic law the
provisions of Article I, Section 9, which guarantee that no monies
shall be drawn from the Treasury but in consequence of appropriations
made by the laws of Congress. It is hard to imagine that the
possibility of such a dramatic reform of the basic structure of our
government would be contemplated in this amendment, by the Members of
both Houses of Congress, all of whom have sworn an oath to support and
defend the Constitution of the United States.
On the other hand, if the amendment is to be only an empty promise
welded into the fundamental charter of our government, only to have
this new provision of the Constitution routinely violated, it would
inevitably make all other provisions of the Constitution seem far less
inviolable. Let us soberly reflect on that.
As Alexander Hamilton noted in Federalist No. 25:

Wise politicians will be cautious about fettering the
government with restrictions that cannot be observed, because
they know that every breach of the fundamental laws, though
dictated by necessity, impairs that sacred reverence which
ought to be maintained in the breast of rulers toward the
Constitution of a country, and forms a precedent for other
breaches where the same plea of necessity does not exist at
all, or is less urgent and palpable.

Mr. President, unless a Senator has a question of me, I am prepared
to yield to the Senator from Arkansas for not to exceed 15 minutes
without losing my right to the floor. I do not intend to hold the floor
all afternoon, but I do have some other things that I wish to say in
opposition to the amendment to balance the budget.
Do not forget, I support a balanced budget. I supported lowering the
deficits in the 1993 deficit reduction bill. So I support the goal of
achieving balanced budgets. But I do not support the prostitution and
rape of the Constitution of the United States by a Constitutional
amendment that will not achieve a balanced budget but will destroy the
very form of our government with its separation of powers and checks
and balances.
Mr. President, I ask unanimous consent that I may yield to the
Senator from Arkansas [Mr. Pryor], for not to exceed 15 minutes without
losing my right to the floor.
The PRESIDING OFFICER (Mr. Kempthorne). Is there objection? The Chair
hears none, and it is so ordered.
The Senator from Arkansas is recognized.
Mr. PRYOR. Mr. President, I thank the Chair, and I thank the
distinguished Senator from West Virginia for yielding this amount of
time to me.
The other afternoon I was down visiting on the steps, the steps in
the Senate where the pages sit. I gathered up four or five of the pages
who diligently serve us around here and perform many, many wonderful
duties for this institution and for us individually and collectively. I
gathered them up and I said:

Ladies and gentlemen, I want you to remember something.
When I speak, or when a lot of us speak in the Senate, maybe
from time to time you do not have to listen too carefully to
what some of us have to say. But remember that when Senator
Byrd of West Virginia speaks, you take time, and you listen,
and listen intently to what he has to say, because you will
learn something. You will learn something about this body,
you will learn something about this country, you will learn
something about the Constitution, and you will learn
something about what makes the Senate one of the unique
institutions in the world. I learn from the Senator
constantly.

I thank him not only for his message today but his continuing message
on this issue, relative to the balanced budget amendment.
When I was young and growing up in Camden, AR, I remember at birthday
parties we used to play a game. In fact, when I raised my sons, they
played the same game. Perhaps other Members of this body played a game
called pin the tail on the donkey. One of us would be blindfolded, and
we would be given the donkey's tail and someway or another we would try
to go up to the wall or the board and find the proper place to attach
the tail on the donkey. Sometimes, because we could not see it--we were
blindfolded--we would not even be near our destination, or near our
target.
In the last several weeks, relative to this debate--not only in this
Chamber but in the other body and on the talk shows, in the media, in
the public, wherever--somehow or another I am reminded of that game
once again, of pin the tail on the donkey.
I think there is a lot of blame being passed around--the Democrats
blame the Republicans, the Republicans blame the Democrats. We might
blame this Senator or that Congressman, we
[[Page S2783]] blame this act or this particular time or effort or law
or regulation as to why we got to this point and how we got to this
point at this time in our country's history.
We are in trouble. We are in deep trouble. And this morning I heard
the distinguished majority whip, Senator Lott, as he quoted a statement
that Senator Daschle had made 1 year ago in this debate on the
constitutional amendment. At that time, Senator Daschle voted for that
amendment, and Senator Daschle was quoted as giving the reasons why he
was supporting that amendment.
Mr. President, I invite the distinguished Republican whip to go back
to 1982, to go back to 1986, and he can find some statements of this
Senator from the State of Arkansas who at that time also not only spoke
on this floor but back in my home State, as to why at that moment in
our history, that window of opportunity, that I thought we had to
support a balanced budget amendment to the Constitution. I believed it
then. I believed it in 1982. I believed it in 1986.
Not long after those votes, I also voted for two extremely far-
reaching, extremely strict, you might say, proposals that would have
frozen spending across the board. In the early 1980's, I supported
those particular freezes.
But, Mr. President, something has happened since that period of time.
Something has happened to have dramatically and drastically changed the
economic and fiscal landscape of America. What has happened is very
simple, and I will use the analogy that after the mid-1980's we let the
horse get out of the barn.
The horse got out of the barn, and today, we are being asked for
support by our wonderful friends, like Senator Simon of Illinois, who
believes with all of his heart that this constitutional amendment is
the way to get this horse back in the barn.
Mr. President, I respect my friend from Illinois. I respect my friend
from New Hampshire. I respect my friend from Utah--in their belief that
a constitutional amendment, where we would balance the budget in the
next 7 years is the proper way to get the horse back in the barn. I
truly believe it is wrong to attempt to amend the Constitution to bring
the horse back in the barn. I think what we are doing, if I may use
this analogy, is we are attempting with a constitutional amendment to
lasso an elephant with a piece of thread. It cannot be done.
The trouble is not in the Constitution. This is not where the trouble
is. It is not in the Constitution that was passed in Philadelphia over
200 years ago. The trouble is in us. That is where the problem lies.
The problem is in me, Senator Pryor from Arkansas. In 1981, I voted
for then-President Ronald Reagan's proposal to increase spending and to
decrease taxes. There were 11 Members of the U.S. Senate who voted
against that package, and I wish I could say today I had been one of
those 11, or that I had made number 12. I was not. I bought on to the
idea: We have a new President, let us give him an opportunity to show
us what he can do. And I supported President Reagan's package.
In retrospect, I was wrong. So I would like to stand here today and
take blame. I will take the blame for making a mistake that helped
cause these massive deficits and this gargantuan, absolutely awesome
national debt.
So here we are, almost on the eve of voting whether or not we want to
refer to the States an amendment to cause, demand, and mandate a
balanced budget.
Last Friday morning, I happened to be in this body, fortunately
enough, as the Senate was opened with a prayer by Rev. Richard C.
Halverson, Jr. I thought the prayer was timely, and I thought it was
poignant. I would like to quote, if I might, Mr. President, from that
prayer of Dr. Halverson.

Once again, in the urgency of this hour, we beseech Thee
for divine assistance. We pray for a hedge of enlightened
restraint around this ``necessary fence'' of the Senate. For
through this body, regulations must pass that will either
strengthen or weaken our country.

Dr. Halverson's ``necessary fence,'' of course, is a reference to
James Madison who called the Senate, this body, this institution, ``a
necessary fence to protect the rights and property of its citizens
against an impetuous public.''
Mr. President, James Madison feared that the Congress from time to
time might act impetuously to please the public. Reverend Halverson
continued in his prayer last Friday morning, and once again I quote.

As pressures mount for instant solutions to complex
problems, grant those who hold this ``senatorial trust'' the
calm resolve to be not driven by public restlessness, nor
drifting in stubborn idleness, but drawn by Thy vision of
righteousness--which upholdeth the Nation.

That was an insightful prayer, Mr. President. I hope that Dr.
Halverson's prayer are the words that set the tone for this debate. The
public is restless. They are demanding instant solutions. They are
demanding action, and one instant answer is this very imperfect
balanced-budget amendment is before us today.
It is like a bottle of snake oil because it promises to solve all of
our budget problems. But what it delivers are loopholes and false
hopes. It gives politicians the easy and the temporary cover to go back
home and to say we have voted to balance the budget.
There are loopholes, Mr. President, throughout this proposal. And
their inclusion assures that false hopes will be created and this is
just what our country and just what Americans do not need right now.
Loophole No. 1. Right at the top of this balanced-budget amendment is
the three-fifths loophole. Section 1 says that three-fifths of the
House and three-fifths of the Senate can vote to completely waive the
balanced-budget requirement for a year. I believe the framers of the
Constitution placed provisions in the Constitution which they held
inviolate.
For example, in the first amendment of the Constitution, it does not
say that ``Congress shall make no laws respecting an establishment of
religion unless three-fifths of each House passes legislation
specifying otherwise.''
The 13th amendment, for example, does not provide that slavery or
involuntary servitude shall exist in the United States unless three-
fifths of each House passes legislation specifying otherwise.
Mr. President, the reason that the three-fifths requirement sounds
ridiculous is because it is ridiculous.
I do not believe that we should pass this amendment. I do not believe
we should pass it with or without this particular loophole. But if the
supporters of the balanced budget amendment think it is the panacea to
all of our problems, why create a three-fifths loophole? Why not, if we
are going to require a balanced budget? Why do we not require a
balanced budget, period?
This is the second loophole, Mr. President. That loophole is the
definitions game. Section 6 of the balanced budget amendment provides
that estimates of outlays and receipts may be used by Congress when
drafting legislation to enforce and implement the provisions of this
amendment. Nowhere in this amendment before this body today, and
nowhere in the Constitution, are the words ``outlays or receipts''
defined.
Why would the word ``outlays'' need to be defined? Because outlays
are the moneys that the Government spends. And without an airtight
definition of what constitutes spending we had better realize that
clever lawyers are going to find many ways to circumvent the intention
of this amendment, whatever it may be.
The same goes for the definition of ``receipts.''
Take the example of sales of Government assets. If someone were to
propose that we sell Mount Rushmore, would the money collected when we
sold Mount Rushmore represent a receipt under this amendment? It might
and it might not.
How about user fees? Will moneys collected from new user fees be
considered a receipt? They might. But they might not.
It is no wonder that Judge Bork has recently said that we had better
anticipate not only hundreds but perhaps thousands of lawsuits and
other forms of litigation in this particular area.
Mr. President, I wonder if the distinguished Senator will yield me
perhaps 5 additional minutes?
Mr. BYRD. Mr. President, I ask unanimous consent that I may yield an
additional 5 minutes to the distinguished Senator from Arkansas [Mr.
Pryor]
[[Page S2784]] under the same terms as heretofore agreed to.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. PRYOR. The Senator is very generous. I thank him.
Mr. President, what we are doing today is looking at a possibility of
adopting perhaps the greatest sea change in the relationship between
the judiciary, the executive branches of Government, and the
legislative branches of Government that we have ever concerned
ourselves with. The definitional games are going to be played
necessarily on what is or is not an outlay or what is or is not a
receipt. But the definition games will not be limited to just these
issues. And I can say, in my opinion, there are not going to be any
winners in this definitional game under these false promises.
Mr. President, there is a third loophole. There are many loopholes.
But No. 3 is, I think, one of the more serious--determining what an
estimate is.
Who makes those estimates? If one estimator's ``estimate'' comes out
one way, the budget may be in balance. If we use another estimator's
estimate, we will no doubt have different estimates and then be out of
balance. More lawsuits will ensue.
It sounds like estimators, not Congress, would control the measure of
our outlays and receipts, and ultimately, the decisions effecting our
lives.
The point is that estimates can differ, and they can differ
drastically. Estimates can be flat wrong. Human nature being what it
is, estimates can also be manipulated. In any case, do we really want
something as unreliable as economic estimates to become the
underpinning of the United States Constitution? I do not believe,
notwithstanding that the people of our country want us to balance the
budget, that they want to underpin the U.S. Constitution with something
this illusory.
The estimation game is one more loophole through which runaway
Government spending is going to continue. It will take the
decisionmaking process out of the hands of the people and the Congress,
and place it in the hands of the economists and the estimators who
seldom agree on anything.
The fourth loophole, Mr. President--Let us assume that all of our
numbers, estimates, statistics and forecasts are correct, and we are
struggling to meet the requirement of a balanced budget. Then what
Congress will do is probably start playing budget games.
Is there not one of us who has been here for any length of time who
has seen the game of putting certain functions of Government on budget
or off budget? Mr. President, I predict under this constitutional
amendment, if it were a part of our Federal Constitution, that we would
spend the majority of our time not balancing the budget, but figuring
out which Government programs were on budget and off budget, which
programs raise money, and which programs cost money. And we will have
many, many heated debates on what should and should not be included in
that budget.
The temptation to take deficit programs ``off budget'' is going to be
great. For example, today under section 13301 of the Budget Enforcement
Act, we forbid the use of Social Security trust fund surpluses to
offset the Federal deficit.
However, under this constitutional amendment, we are going to
apparently use Social Security surpluses for that purpose. Many, many
experts are predicting that in the year 2013, Social Security will
begin to run its own deficit. At that point, the temptation will be to
put Social Security off budget in order to meet the balanced budget
constitutional requirement.
Nothing in this amendment prevents this chicanery, and we all know it
will occur. Will this inspire confidence? No. Will it balance the
budget? No.
Mr. President, there are big questions about this amendment. I have
discussed just a few loopholes and gimmicks. This amendment to the
Constitution deserves as much time as necessary to clear the air.
I am almost out of time. But I want to simply state that I think this
has been a splendid debate. I think that we have not, in any way,
caused anyone to truly believe that we are attempting a filibuster on
this side of the aisle. We have had very few quorum calls. We have had,
in my opinion, a debate that is one that will go down in the record
books. I truly believe it is one of the better debates that the U.S.
Senate has ever engaged in.
Once again, Mr. President, I do not feel that our situation today
with regard to these awesome Federal deficits is the fault of the
Constitution. It is our fault and it is our obligation to cure those
problems by making the hard decisions, the tough decisions that all of
us know we have to make to balance the budget.
Mr. BYRD. I thank the distinguished Senator from Arkansas [Mr. Pryor]
for his lucid, incisive observations.
Mr. President, I yield to the distinguished Senator from New
Hampshire, [Mr. Smith] with the understanding that I do not lose my
right to the floor.
The PRESIDING OFFICER. The Senator from New Hampshire is recognized.
Mr. SMITH. Mr. President, I do appreciate the Senator yielding
briefly to me. In the spirit of friendly debate, I ask the Senator if
there was any significance to the fact that when I happened to come on
the floor to give relief to Senator Hatch, who has been out here many
hours during this debate, he mentioned Cyclops. I wondered whether
there was any significance to that fact that when he saw me on the
floor, immediately the debate went to Cyclops. I think he is a better
expert on history than I am, for sure, but the Cyclops had one eye, as
I remember. I suppose there is some relevance here, because it is going
to take more than one eye to stay focused on where this debate is going
and where this debt is going in this country.
I do not know if the Senator wishes to respond, but I did take notice
of that fact that immediately, Cyclops became the topic of discussion
when I came on the floor.
Mr. BYRD. If the Senator will indulge me briefly.
Mr. President, I will try to answer the Senator's question. Indeed,
the Senator's appearance did not have any part in my reference to the
Cyclopean giant. I just wish that, if I ever became involved in a
street brawl in this city, the distinguished Senator from New Hampshire
would be around close by. If I could have him and Senator Hollings
there to help me, I would feel like fighting rather than running. He is
a genuinely congenial Senator and I have enjoyed my service here with
him. We have often talked and discussed matters together. I value his
friendship and his advice and counsel. I do not always follow it, but I
certainly listen to what he has to say. I will say that I really was
pleased to see him come on the floor, because he is one of those
distinguished Members of the ``Republican response team,'' and he is a
very worthy one. He has been around here a while. I consider him as a
formidable and respectable protagonist of the constitutional amendment
to balance the budget.
I think that answers the question, except there is one further matter
he mentioned, the matter of having one eye. The giant in the story by
Homer had one eye, and the distinguished Senator referred to the
national debt, namely that an individual would need more than one eye
to see the national debt because it is so high.
I remember that during the early first administration of President
Reagan, I saw the President on television. He was very effective. He
had a chart and he pointed to that chart which had a line drawn to
represent the national debt at that time, in terms of $1,000 bills. He
said, if I recall, that if one had $1,000 bills stacked 4 inches high,
the stack of $1,000 bills would represent $1 million. Mr. Reagan
indicated by the chart that the stack of $1,000 bills necessary to
reach the then sum of the national debt, which at that time was just a
little under $1 trillion, would require a stack of $1,000 bills 63
miles high.
That was the last time Mr. Reagan ever appeared on television using
that chart, because when he left office at the conclusion of his second
administration, that stack of bills, using his chart, would by then
have reached about 237 or 240 miles into the stratosphere--because the
Nation had added to its debt almost an additional $3 trillion during
his 8 years in office. And then, of course, under the administration of
Mr. Bush, the debt continued to grow.
I thank the Senator for reminding me of that chart.
[[Page S2785]] Mr. SMITH. Will the Senator continue to yield to me?
Mr. BYRD. Yes.
Mr. SMITH. The Senator mentioned he might like to have me on his side
in a fight at some point. This is my fifth year in the Senate. It does
not come anywhere near the number of years the distinguished Senator
has served here, but I am hoping that someday before either one of our
terms is over in the Senate we might be on the same side on an issue,
as he is a very worthy adversary.
The Senator referred to a comment that I made a few days ago that
made the national press; that it was our goal to wear the Senator from
West Virginia out so we could get the balanced budget amendment to a
vote. And the Senator is a very worthy adversary, because we have not
been able to do that yet. Even though we have had a number of us out
here relieving one another, the Senator still stands on his feet and
still continues to debate, which is really the great thing about the
Senate.
Over behind my desk, there is the desk of Daniel Webster, one of the
greatest orators in the Senate. The Senator from West Virginia
certainly ranks up there in oratorical skills with those great Senators
of that time--Clay, Webster, Calhoun, and so many others.
But it does remind you that the time we spend here is very fleeting;
that we are only temporary stewards of this country.
But I think, in that perspective, if the Senator would continue to
yield just for a moment, it is important to realize the significance of
this debate. I think this is a debate of historical significance.
The Senator from West Virginia and the Senator from Arkansas
mentioned the fact that the debt went up significantly during the
Reagan years when Reagan was President. That is accurate.
However, during those years, there were a lot in the Senator's party
in Congress who certainly contributed to that. All of the Reagan
budgets, at least from when I was here from 1985 through 1988-89 during
the Reagan years, they were always dead on arrival and so predicted
before they got here. And then they were increased by the party in
power in the Congress. So the debt went up, true, while Reagan was
President, but whether or not it went up all because of Ronald Reagan I
think is something that I would take pretty sharp issue on with the
Senator.
Mr. BYRD. Will the Senator yield on that point?
Mr. SMITH. It is the time of the Senator from West Virginia.
Mr. BYRD. Number one, the Senator has stated that all of the Reagan
budgets were dead on arrival. I call the distinguished Senator's
attention to the fact that some of those budgets were subjected to a
vote in this body or the other body or both and the Republican Members
did not vote for those Reagan budgets. I believe I am correct in that.
If I am not, I will be glad for someone to correct me.
Second, the Senator is in error--I know this to be a fact--when he
indicated, as I thought I understood him to so indicate, that in the
case of all of Mr. Reagan's budgets the Congress increased those
budgets. That is not the case, if I understood the Senator correctly.
Mr. SARBANES. The Congress reduced them.
Mr. BYRD. The Congress reduced Mr. Reagan's budgets in some of those
years, in some of the Reagan years.
Going back to 1945, the accumulated requests of all the Presidents
exceeded the accumulated appropriations by the Congress--exceeded the
accumulated appropriations by the Congress--over that same period.
But precisely under Mr. Reagan, I say again, the Congress did not
exceed his budgets in every year. In fact, in some years Congress
appropriated less than the budget requests.
Mr. SARBANES. Will the leader yield?
Mr. SMITH. But the Senator knows, as an expert on the Constitution,
that the Congress of the United States controls the purse strings. The
President does not spend any money without the approval of Congress.
So I think, to be fair about it, it would be fair to say that
Congress is ultimately responsible, not the President, for increasing
the debt. The President's budget is purely advisory. We do not have to
agree to it. We can increase it, decrease it, ignore it, kill it, do
whatever we want to do with it. But the Congress appropriates the
money. The Congress authorizes the spending. And it is the spending
that drove the debt up over that period of years.
And I would accept that there is certainly enough blame to go around
between the two parties. But my point is, I think it is unfair to say
that Ronald Reagan alone was responsible for the debt that we have
today.
Mr. BYRD. As the Senator says, there is enough blame to go around.
But the President, Mr. Reagan, never once submitted a balanced budget
to the Congress.
Mr. SMITH. That is accurate. He should have, but he did not. The
Senator is right. And neither did the Congress.
Mr. BYRD. Pardon?
Mr. SMITH. Neither did the Congress.
Mr. BYRD. Well, President Carter did. President Carter once submitted
a balanced budget.
I sat right over here in room 211. I was then the majority leader of
the Senate. I sat over in room 211 on a weekend, brought my little
paper bag, with some coal miner's ``steaks''--slices of baloney--in
that little paper bag. We had the Secretary of the Treasury, the
Director of the Office of Management and Budget, and others. We had the
President's men in that room, and we sat through Saturday and Sunday--
and I believe Senator Sarbanes of Maryland, who is now on the floor,
was there at that time--and we hammered out a balanced budget.
But, the President also has a veto pen. And Mr. Reagan never once
vetoed any appropriation bill for that reason, in particular. He vetoed
some bills for other reasons.
Mr. SMITH. Will the Senator yield for just a brief response to that?
Mr. BYRD. Yes.
Mr. SMITH. That is true. But, as the Senator knows, the Congress
during those years rolled these huge continuing resolutions in to the
President with everything from Social Security to defense and every
little program that could possibly hurt anybody in America all rolled
into one, essentially saying, ``Well, Mr. President, if you veto this,
then we will shut the Government down and stop the Social Security
checks.''
So, as I say, I think the reason we are here today is because of the
irresponsibility, essentially, of the Congress, not any President, over
the years.
As we debate today right now on the floor of the Senate, $9,600 a
second the national debt increases. It increases $576,000 a minute,
$34,560,000 an hour, and $829 million a day--almost a $1-billion-a-day
increase as this debate continues.
Mr. BYRD. Senator, ``You cram these words into mine ears against the
stomach of my sense.''
The Senator spoke of the omnibus continuing resolution. I have a
little grandson who would say, ``Do you know what?''
Well, do you know what? On that continuing resolution that was so
heavy and that Mr. Reagan dropped on the table before a joint session
of the Congress, do you know what? He asked that those appropriations
be sent to him in one bill. I was here. I know. He asked that they be
given to him in one bill.
Any further questions?
Mr. SMITH. Well, you did not give him any choice.
(Mr. KYL assumed the chair.)
Mr. BYRD. Oh, yes. He asked for it.
Mr. SMITH. Not really. If Congress controls the purse strings, I say
to the Senator from West Virginia, and the national debt increased $3
trillion during those years, how can we blame the President? I mean,
whose responsibility is it?
Mr. BYRD. Well, there is enough to go around, but in the case of the
1993 budget deficit reduction package,
I would shift the blame in large measure, to those who did not support
that deficit reduction package.

They sat here in the Senate. They sat in the House. We had a 1993
deficit reduction package that reduced the deficit over a period of 5
years by $482 billion. Somewhere between $450 and $500 billion. Not one
Republican Senator
[[Page S2786]] voted for that deficit reduction package.
Actually, the deficits have been reduced more than that. They have
come down 3 consecutive years. Not one Republican Senator voted for
that package. Why?
Mr. SMITH. Mr. President, I would be happy to answer on behalf of the
Senator from New Hampshire. The Senator from New Hampshire voted
against that package for a number of reasons.
One, $250 billion in increased taxes on the American people was in
it. No. 2, the projections beyond the 5 years in that budget that the
Senator mentioned, the deficits go up. As we see from the follow-on
budget that the President has sent, we are looking at an annual average
increase of $200 billion a year. And the deficits will add $1.5
trillion more to the debt by the turn of the century. He did not take
the corrective action that was necessary to continue the downward
spiral.
True, deficits went down for over a 5-year projected period, largely
due to the tax increases, not a lot of spending cuts. When we look at
the outyears, the six, seventh, the eighth, they go like this, and
under the President's projections those deficits will be over $350
billion as we turn into the 21st century.
That is not making the corrective decisions that need to be made to
turn the country around, which is why we need the amendment. If
Congress had the discipline we would not be here. They do not have the
discipline. This chart proves it.
There are a number of attempts at balancing the budget of
congressional action over the years that were taken but they never got
the job done. One of the more recent ones is Gramm-Rudman-Hollings. Lot
of fanfare. What happened? We walked away from it because Congress did
not have the discipline to do it.
A comparison or analogy would be the Base Closing Commission.
Congress did not have the courage to close bases that we did not need,
so they created a commission. Some said we should create a commission
to balance the budget. The point is the amendment forces us. It is
unfortunate, I agree with the Senator. I wish we would not have to be
here saying we needed a balanced budget amendment to clutter the
Constitution to balance the Federal budget. We should do it. But we do
not do it, and we will not do it until we have the amendment.
That is why we have to have it. If we do not, I would say to the
Senator, our grandchildren are going to have a country that I cannot
imagine. I can imagine a press conference by a President in the future,
maybe not too many years, where he comes on television and says, ``My
fellow Americans, I have some very dismal news to share. We cannot meet
our fiscal obligations, and I will go to Mexico and Japan and China,
who knows where, and see if I cannot borrow some money to meet our
obligations.''
That is going to happen, I say to the Senator from West Virginia,
because he knows we have to meet obligations. We are going to get to
the point where we cannot. Interest is consuming us. Interest is now 16
percent of our budget. Sixteen percent of our budget, and defense is 16
percent of our budget. Interest is going this way and defense is going
this way.
I would say to the Senator, where do we stop it?
Mr. BYRD. Will the Senator allow me to answer the question?
Where do we stop? We have to, in order to stop it, we will have to
swallow some tough medicine. We have already seen the Republican
Senators turn tail and run when it came to tough medicine in the 1993
budget deficit reduction package.
Well, that was tough medicine. I assume, by what my friend has said,
it was tough medicine because it raised taxes. The Senator must come to
a conclusion at some point in time that this budget cannot be balanced
simply by cutting, cutting, cutting. Discretionary spending has been
cut to the bone.
There has to be at some point in time, a combination of cuts and tax
increases. There has to be.
I heard a Senator on the Republican side of the aisle the other day
say he would never, never vote for a tax increase. Well, he has the
right to take that position if that is the way he feels.
That kind of an attitude is never going to get this budget in
balance. The Senator talks about our children and grandchildren. I
suppose then, that rather than vote for a tax increase we should just
put this burden of debt over on our children and grandchildren. I have
children, I have grandchildren. Are we going to stand here and say to
them, ``You children, you future generations will have to raise taxes
because we do not have the guts to do it''?
We have been on a national credit card since 1981. I can remember
those good-feel messages that used to be issued during the Reagan years
from the oval office. Every morning. ``Good morning in America,
everything is fine.'' There really is a free lunch.
But we say we will not raise taxes. We have more than one tool by
which to bring budgets into balance. That effort must not be limited
simply to cutting programs. I have voted to cut spending programs. I
will vote further to cut spending programs. But we cannot put aside the
tool of revenue increases. The men who framed the Constitution provided
for revenues to be increased to pay the debts to provide for the common
defense and the general welfare.
But if we are going to take the position that the only thing we will
support is to cut, cut, cut, programs but we will not raise taxes, then
we are cheating our children and grandchildren.
I say we have to combine these tools if we really, really, really
mean business.
Mr. SMITH. Mr. President, would the Senator yield for one more point?
Mr. BYRD. Mr. President, let me first yield to Mr. Sarbanes. He has
been asking me to yield, and then I will be happy to yield to the
Senator.
Mr. SARBANES. Mr. President, I wanted to direct an inquiry to the
distinguished Senator from West Virginia with respect to the
supermajorities that are provided for in this amendment.
As the distinguished Senator has very ably pointed out, the Founding
Fathers rejected supermajorities. Both Hamilton and Madison are very
explicit in the Federalist Papers about the dangers of supermajorities
and the power we place in the hands of minorities.
The argument has been made here on the floor by proponents of this
amendment that they have certain waiver provisions in the amendment and
if we ever found ourselves in the difficult circumstance clearly a
waiver would be obtained and we would be able to address issues of
national importance.
The Senator earlier talked about the fiscal provisions, but I wanted
to direct his attention to another section, and that is the national
security section. I submit to my colleagues that this is very serious
business and it is time to stop playing games. The Senator from West
Virginia just pointed out one game. People are for the balanced budget
amendment but they will not vote for the deficit reduction package.
There is a tough deficit reduction package and they say, ``No, I cannot
vote for that but I am for amending the Constitution to require a
balanced budget.''
Let me leave that for a moment and let me talk about the national
security section which is section 5. I want Members to stop and think
about this very carefully because we obviously need to stop, look, and
listen before we place ourself into any framework that could
conceivably endanger the national security of our country.
The provision says that Congress may waive the provisions of this
article for any fiscal year in which a declaration of war is in effect.
We do not have many declarations of war. We can get involved in a
situation we have to deal with, but we do not have a declaration of
war. It then goes on to say:

The provisions of this article may be waived for 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 if so declared by a joint
resolution, adopted by a majority of the whole number of each
House, which becomes law.

In other words, if you are facing a threat, an imminent threat the
amendment may be waived. The amendment
[[Page S2787]] does not even address the situation in which we are not
yet engaged in military conflict.
I ask the distinguished Senator from New Hampshire, who is on the
floor, suppose we are not engaged in a military conflict, there is just
the danger of a military conflict breaking out which requires us to
take action involving the expenditure of moneys. Could you waive that
with a joint resolution? I ask the Senator from West Virginia.
Mr. BYRD. Mr. President, I ask unanimous consent that I may yield to
the distinguished Senator from Maryland for the purpose of his engaging
in a colloquy, if they so wish, with the Senator from New Hampshire,
without my losing the right to the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SARBANES. I ask the Senator. It says, if engaged in military
conflict, you may waive it. Suppose you are not engaged in military
conflict but you need to prepare for a possible engagement in military
conflict; you need to take actions which will cost money, which will
unbalance your budget, in order to deter the potential of a forthcoming
military conflict. Can you waive that under this provision?
Mr. SMITH. Would the Senator like me to respond to that?
Mr. SARBANES. Certainly.
Mr. SMITH. The Senator knows very well that this debate is simply an
attempt to divert attention from the real problem. You just mentioned a
moment ago the tough deficit reduction----
Mr. SARBANES. No, no, I yield to the Senator to respond to my
question. The question is on the national security issue. The question
is specifically addressed to section 5 of House Joint Resolution 1, and
it specifically goes to the question of whether you could have a waiver
where we were not engaged in military conflict but needed to take
action in order to address a potential military conflict.
Mr. SMITH. Well, since the Senator wants me to respond to certain
parameters rather than the parameters I prefer to respond, I say:
``Declaration of war is intended to be construed in the context of the
powers of the Congress to declare war under article I, section 8. The
committee intends that ordinary and prudent preparations for a war
perceived by Congress to be imminent would be funded fully within the
limitations imposed by the amendment, although the Congress could
establish higher level of spending or deficits for these or any other
purposes under section 1.''
Mr. SARBANES. I know the Senator from New Hampshire is reading the
report, but it does not really answer the question. The first provision
says that Congress may waive it for any fiscal year in which a
declaration of war is in effect. I am addressing a situation in which a
declaration of war is not in effect.
Mr. SMITH. I can read it----
Mr. SARBANES. I am addressing a situation in which we are not
actually engaged in military conflict, but we want to take actions to
forestall a military conflict. Can you waive it?
Mr. SMITH. Is that not ordinary and prudent preparations for war?
Yes, that is ordinary and prudent.
Mr. SARBANES. You can waive it?
Mr. SMITH. It did not say waive it. ``The committee intends that
ordinary and prudent preparations for a war perceived by Congress to be
imminent would be funded fully * * *'' There is nothing to waive.
Mr. SARBANES. Fully funded; in other words, you can violate the
requirements of the balanced budget amendment.
Mr. SMITH. Not at all. That is not what this says. The truth of the
matter is, there will not be any funds even to conduct war if we
continue along the lines that the Senator from Maryland would like to
go, which is literally to bankrupt the United States of America. We
will not have any money to spend on defense.
Mr. SARBANES. What does the Senator make of this waiver provision?
What is its intention to be in section 5?
Mr. SMITH. This is the time of the Senator from West Virginia. I am
not going to engage the Senator on the time of the Senator from West
Virginia.
Mr. SARBANES. I see. I regret the Senator does not want to respond.
If the Senator from West Virginia will continue to yield?
Mr. BYRD. Yes.
Mr. SARBANES. I regret the Senator from New Hampshire does not want
to address that question. Let me just point out to the Senate that when
you really get down to some of these hard questions, the proponents of
this amendment just slide off them and they say, ``Oh, well, we would
get a waiver.''
The waiver that is required here is declared by joint resolution
adopted by a majority of the whole number of each House and, as the
very able Senator from West Virginia has pointed out, this is contrary
to what the Constitution now requires.
What this waiver means is that you would have to have 51 votes in the
Senate and 218 votes in the House. I have heard the proponents stand on
the floor and say, ``Don't worry, no problem. If a situation arises,
clearly the Members will vote for the waiver and we will be able to
address it, we will get these votes, there is no problem.''
I just want to recount one story, because this is very serious
business, I suggest to the Members.
On August 12, 1941, the House of Representatives was confronted with
the issue of extending the time of service of those members of the
armed services who had been drafted the year before.
In the summer of 1940, the Congress had passed the Selective Training
and Service Act, and, under it, people called up were to serve for 1
year--the President could extend the period indefinitely if Congress
declared that the national interest is in peril.
On July 21, 1941, with the prospect of war increasing, President
Roosevelt acted. In a special message to Capitol Hill, he asked
Congress to declare a national emergency that would allow the Army to
extend the service of draftees. The President came to the Congress and
asked them to make this extension. Everyone is telling us that ``if we
had a national emergency, surely the Congress would act.'' The measure
regarding the draft for World War II passed the House of
Representatives by a vote of 203 to 202. It passed the Senate by a vote
of 45 to 30.
Now, just think of this. We are literally a few months away from the
outbreak of World War II. The President has said to the Congress,
``There is a national emergency. I ask you to extend the time of duty
of those who had been drafted the previous year for a 12-month period.
The storm clouds are on the horizon for all to see. We need to take
action.''
In many ways, it is comparable to envisioning a waiver situation for
national security under this amendment for which the proponents say,
``Oh, if there is a real problem, we'll get the waiver and we'll
address our national security situation.''
At that time, the vote in the Senate was 45 to 30; in the House of
Representatives, 203 to 202. Neither of those votes meets the
requirement of section 5 of this balanced budget amendment proposal.
Even though in both instances a majority of those voting on this draft
question voted to extend it, 45 to 30 in the Senate, 203 to 202 in the
House, with Speaker Rayburn going into the well of the House in order
to bring about that vote, neither of those votes is a majority of the
whole number of each House, which is what this amendment requires.

So I ask my friends, the proponents of this proposition, how have
they provided for the national security of the Nation? I am giving you
an absolute, specific demonstration of an instance in which anyone
looking back upon it would say clearly there was an important national
security question that needed to be addressed and yet the vote to
address it would not carry the day under the requirements of section 5
of this balanced budget amendment. The section states ``So declared by
a joint resolution adopted by a majority of the whole number of each
House,'' which means you have to have 218 votes in the House--it
carried in the House 203 to 202; it did not have 218 votes--and means
you would have had to have 49 votes in the Senate. It carried in the
Senate 45 to 30, but it did not have the necessary 49 votes in the
Senate. There were 48 states in the Union during World War II and 96
Senators; therefore, the whole number would be 49.
[[Page S2788]] Now, this is the absolute harm which supermajorities
can potentially do to the national security of our Nation.
Mr. SMITH. Will the Senator allow me to respond to that?
Mr. SARBANES. Sure.
Mr. SMITH. The point is, it is very clear in the language that I have
just indicated on the amendment as well as article I of the amendment.
The Senator is correct that it does take a three-fifths vote. Now, the
point is----
Mr. SARBANES. Will the Senator yield at that point? This requirement,
as I understand it, does not take a three-fifths vote.
Mr. BYRD. Right, it does not.
Mr. SARBANES. This requirement requires the supermajority in the
sense that it required that it be adopted by a majority of the whole
number of each House.
You see, this is very important, and I am glad we are having this
discussion because it is important to know exactly what this resolution
provides and how it would work in real-life situations. There is a
great tendency to just brush it all aside, and in fact I think this
exchange illustrates that because I am not now focusing on the three-
fifths requirement. That is a different issue.
Mr. SMITH. It is not a different issue.
Mr. SARBANES. I am focusing on the section 5 provision, and its
supermajority requirement of the majority of the whole number of each
House.
Mr. SMITH. But the Senator is focusing on that and ignoring article
I, which allows you to raise the debt if you need to raise the debt in
order to deficit spend, in order to deal with the emergency that the
Senator is talking about.
Mr. SARBANES. By a three-fifths vote.
Mr. SMITH. That is what the Senator chooses to ignore, because that
answers his question.
Mr. SARBANES. By a three-fifths vote.
Mr. SMITH. That is right.
Mr. SARBANES. That underscores my point even more. If the Senator's
answer to me is you can waive it on a three-fifths vote, then in
neither of these instances in the Senate or the House for the extension
of the draft did they come anywhere close to the three-fifths vote.
They did not have the three-fifths vote.
Mr. SMITH. It goes right back to the issue of priorities, which is
why we are dealing with a balanced budget amendment to begin with, I
say to the Senator from Maryland. Priorities are, if you are at war or
need to go to war to defend the national interest of the United States
of America, and you need a three-fifths vote to do it and you cannot
get it, you will cut spending somewhere else; you will take out some
pork or some wasteful spending that we never can get out of this
budget, which is the reason we are in this mess.
You set priorities. What is more important, the national security of
the United States or funding the Education Department or funding the
Commerce Department or HUD? You make decisions, just like everybody
else has to do in America.
That is the problem. The Senator has gone right to the heart of it.
That is exactly why we are here today, because of this mess, because of
the point the Senator makes. Nobody wants to set priorities anymore.
You set priorities. If I am a Senator and this happens, and the
President of the United States, whoever he or she may be, needs money,
needs forces, needs to protect the national security of the United
States or the troops in the field, I am going to cut somewhere; you bet
I am going to cut somewhere, and I am going to do it quickly if I
cannot get the three-fifths.
I say to the Senator, I think we would get the three-fifths because
the Senate and the House of Representatives, speaking on behalf of the
American people, with our Armed Forces in jeopardy, are certainly not
going to deny them the protection they need and the materials they need
to protect themselves in the field or the national security interests
of the United States.
It is a weak argument, and the Senator knows it. It is just a way to
obfuscate this issue, to deny those who are out here saying we need
this amendment. We do need it, and that is exactly why we do need it,
because nobody wants to set priorities. No priorities can be set here--
only in the household budgets, only in business, only in the cities of
America, only in the States but not in the Congress of the United
States. Oh, no; we have to spend more than we take in, year after year
after year after year, $18,500 per American. That is the share of the
national debt. It goes up, up, up, up.
The Senator talked about the guts to support the President's budget.
The President's budget did not resolve it. If it resolved it, why are
we looking at $200 billion more in annual deficits? How are you going
to defend America when we get $20 trillion in debt? Where do you draw
the line? Where do you draw the line?
The Senators talked about taxes. We can raise the tax rate, the
Senator from West Virginia said--36 percent, 50 percent, 70 percent,
100 percent? That is what is going on in Washington, DC, right now. The
taxes are so high they cannot pay them anymore. They are asking the
Federal Government to come in and take over the city.
Mr. SARBANES. Let me bring the Senator back to the very real-life
problem that I wish to discuss with him based on a very clear example
in history, because what the Senator has just done is what is
consistently done here. If we try to focus, in a tough-minded way, on a
particular problem they say, ``Oh, well, don't worry about it; somehow
or other it is going to be taken care of.''
Now, I want the Senator to come with me for just a moment or two and
to look at some history, and I want to read from this article that
appeared in the summer of 1991.

Fifty years ago last Monday, on August 12, 1941, House
Speaker Sam Rayburn saved the draft from legislative defeat
and kept the U.S. Army intact to fight a war that was only 4
months away.

The reason I am citing this story is because we are constantly told
that if we have an emergency situation, we will get this waiver. The
Senator from New Hampshire has just told me we are going to get a
three-fifths waiver. He left the section I was focusing on that
required a majority of the whole number, namely you had to actually
have 218 votes in the House or actually have 51 votes in the Senate,
and he has now gone to three-fifths of the whole number. So you have to
have 290 votes in the House and 60 votes in the Senate in order to
address the crisis. He says if we have a crisis, we obviously will
address it. I am going to point to a lesson in history in which I think
people would now agree we had a crisis that had to be addressed. We did
address it. But if we had been operating with these requirements,
either one of them, we would not have addressed it because we would not
have gotten the vote that was necessary to do it.
Let me read on from the article.

The margin of victory was a single vote. And the battle
could have been lost as easily as won except for Rayburn's
personality and leadership and mastery of parliamentary
procedure. If Rayburn had failed, the Army stood to lose
about two-thirds of its strength and three-fourths of the
officer corps. At issue was whether to extend the 12-month
service obligation of more than 600,000 draftees already in
the Army, thousands of others being inducted every day, and
the active-duty term of several thousand National Guardsmen
and Reservists who had been called up for 1 year. Without an
extension, the obligations of both the draftees and the
Guardsmen and Reservists would begin expiring in the fall.
The United States had adopted its first peacetime draft
during the previous summer after weeks of heated and
acrimonious debates in both congressional Chambers.

The article then goes on to point out:

Although the legislation limited the draftees' terms of
service to 12 months, it provided that the President could
extend the period indefinitely if Congress declared that the
national interest is imperiled.
On July 21, 1941, with the prospect of war increasing,
Roosevelt acted. In a Special Message to Capitol Hill, he
asked Congress to declare a national emergency that would
allow the Army to extend the service of draftees, guardsmen
and reservists for whatever period the legislators deemed
appropriate.
Despite the measure's unpopularity and strong lobbying by
isolationist forces, the Senate approved a joint resolution
on August 7, declaring the existence of a national emergency
and authorizing the President to extend the service of most
Army personnel by 18 months.

The vote was 45 to 30, I say to my good friend from New Hampshire; 45
to 30. That vote would not have qualified
[[Page S2789]] under the amendment that he is proposing. That vote was
inadequate. You needed 49 now you would need 51, if you did it by the
whole number, or 60 if you are doing the three-fifths. I am now quoting
the article.

In the House it was a different story. The Republican
leadership viewed opposition to draft extension as a
political opportunity too good to ignore. Others had their
own reasons for opposing the measure.

It then discusses what Rayburn went through, and of course the final
vote was 203 to 202. Mr. President, I say to the distinguished Senator
from New Hampshire, 203 votes is not enough under the provisions of the
proposal that he is now seeking to place in the Constitution of the
United States.
So, here we have a real situation. This is not hypothetical. This was
a critical issue. It was carried under the provisions of the Founding
Fathers, which the very distinguished Senator from West Virginia has
been expounding. Under the provisions of the Founding Fathers, the
Congress was able to make a decision. You had a majority in both Houses
for it, 45 to 30 in the Senate, 203 to 202 in the House of
Representatives. They addressed the situation. Under this proposal, we
would not have been able to address that crisis.
Mr. SMITH. If I might just respond to the Senator, his point is well
taken. However we have a situation where I think we are mixing apples
and oranges. The Senator is assuming--we did not have an amendment at
the time, we did not have a $5 trillion national debt in 1941. We did
not have a situation where the Members who were debating knew that they
would need a certain number of votes to get over the top to be able to
declare war. It is an entirely different situation. You cannot compare
1941 with 1995--you can, but I do not believe it is a fair comparison.
I think things were different then. The situation was different. The
debate was different. The issues were different. I think in this
particular case if the emergency was such, under the amendment--if the
emergency were such that we needed to do something in the area of
national security, it could be done either by a three-fifths vote of
both parties to deficit spend to take care of it--which is one option.
If they do not want to do that, then they have other options. But I
think to say 1941 when Roosevelt declared war is the same as it is
today is simply wrong.
The issue is, we can deficit spend. That is the first option. Or we
can cut spending somewhere else. And that is exactly what most
responsible people would do in the future, who are here on the floor of
the Senate or in the House, wherever the debate takes place--in both
places. They would make the responsible decision, surely, to protect
the national security of the United States. They would cut something if
they did not agree to go the three-fifths route to deficit spend to do
it. I think that is very well protected under the Constitution. It
makes complete sense. It is common sense. We are the representatives of
the American people. If we decide we cannot muster three-fifths votes
then I assume the American people do not feel it is a national security
problem for us.
If we still believe that they are wrong, we can then cut spending
somewhere else with a simple majority. I do not see what the Senator's
problem is.
Mr. SARBANES. Mr. President, I say to my colleague we are just being
given these kind of bland assurances. ``Surely this would happen. No
question this would be done. It is common sense that we would
respond.'' Yet I am giving you a real, live, historical example. There
was nothing hypothetical about it, nothing conjectural about it. It
happened at a critical time in American history. We were faced in the
Congress with a very fateful decision. We are talking literally months
before Pearl Harbor. Literally months. And the Congress was faced with
this difficult decision.
The Congress reacted, I think, appropriately. But by very narrow
margins. And neither of the margins in the Senate nor the House are
adequate to meet the requirements contained in your proposal, which
only dramatizes the point that the Senator from West Virginia has made
so effectively here this morning about the danger of going against the
Founding Fathers, against Madison and Hamilton, and writing in these
supermajority requirements.
The real danger to the Republic is that you will not be able to deal
with crisis situations when they emerge.
The Senator says, ``Oh, no, we will take care of those. Do not worry
about it. Do not worry about it. Surely we would respond.''
I am saying to the Senator: I am giving an example right out of
history where we, under his standards, would not have taken care of it.
Fortunately the standard was the one laid down by the founders, the one
that the Senator from West Virginia propounded here. In other words, we
decide things by majority. We were able to address the situation. But
with your provisions here that situation could not have been addressed.
It is clear on its face.
Mr. SMITH. Mr. President, if the Senator will yield for a response,
there are a couple of points here. First of all, the Senator is
assuming something he does not know to be the fact. In 1941 we did not
have a three-fifths situation. In 1941, I would assume that the
American people would have wanted us to support the President of the
United States, which we did, to go to war when we were attacked.
Mr. SARBANES. Will the Senator yield on that? Is the Senator telling
me that on a measure that passed the House 203 to 202, that if at the
time there had been a three-fifths requirement of the entire membership
of the House of Representatives--which would be 261 votes?
Mr. SMITH. I did not do the math. I will take the Senator's word for
it.
Mr. SARBANES. It is 261.
Mr. BYRD. Let me tell the Senator, 175 votes could defeat it; two-
fifths could defeat it.
Mr. SARBANES. It is 261. Are you telling me that a good number of the
202 who voted against it then would have voted for it, so you would
have had 261 votes? Where are you going to come up with these? You
barely got 203 votes. It almost lost. It passed by one vote. And now
you are telling me, ``They did not have the three-fifths requirements
then. If they had the three-fifths requirement somehow, miraculously
they would have gotten the other votes in order to do it when they
voted against it at the time?'' They almost beat it. They almost beat
it on a straight up or down vote: 203 to 202. And now you are telling
me, ``Well, they did not have the three-fifths requirements. If they
would have had the three-fifths requirement, namely that he had to get
261 votes then a big chunk of these 202 who voted against it then, to
prevent it from happening, would have switched over and voted for it?''
Is that what the Senator is telling me? I cannot believe it.
Mr. SMITH. The Senator did not listen to me very carefully. That is
not exactly what I said. What I said is there are two options. One,
those people, if they had the three-fifths provision, I think, would
have looked at it a lot differently, and they may have gotten more
votes.
Let us assume the Senator's position and say that did not happen. If
it did not happen and this amendment were, in 1941, part of the
Constitution, we then would have gone and spent money by taking money
from someplace else in the budget because we would have believed that
the national security interests of the United States should come first
ahead of subsidies to apples or whatever else.
Mr. SARBANES. How do you know they would have done that?
Mr. SMITH. Because it takes 51 percent to do it. That is why.
Mr. SARBANES. My dear friend.
Mr. SMITH. That is exactly why. It is the same numbers.
Mr. SARBANES. The Senator from New Hampshire is my dear friend. But
how can the Senator stand here and say, ``We easily would have gone
somewhere else and found the money'' when at the time, on the very
issue itself without that constraint, without that additional
complication in terms of getting support for the measure, without the
further complication of the dynamics of trying to achieve a majority
vote, when at the time they only passed it by one vote, 203 to 202?
That was the vote.
Mr. HATCH. Will the Senator yield?
Mr. SARBANES. Speaker Rayburn walked the Halls of the Congress. I am
now quoting this article.
[[Page S2790]] The vote was set for Monday, August 11. But
Rayburn put it off for one day out of respect for a
Republican Member who had died over the weekend.

I must say those were the days when there was a degree of civility
that prevailed in the workings of the Congress.

With the President out of town meeting secretly in New
Foundland with British Prime Minister Winston Churchill to
frame the Atlantic Charter, Rayburn spent the additional day
roaming the corridors of Capitol Hill trying to win over
recalcitrant Democrats and wavering Republicans. His lobbying
style was like the man himself, honest, direct and intensely
personal without a hint of intimidation. The debate went on
for 10 hours in the House. Finally at 8:05 p.m. the reading
clerk began calling the roll.

I reach back into history to try to bring you a real, live example.
Mr. HATCH. Will the Senator yield?
Mr. SARBANES. Certainly.
Mr. BYRD. Mr. President, I ask unanimous consent that I may yield for
such colloquy without losing my right to the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. HATCH. I apologize. I did not realize my distinguished friend
from West Virginia had the floor.
Let me just say this. That is what was created 203 to 202. There were
times when that could have happened. It was extraordinary. In the
Senate, there were only 96 Senators sitting at that time. The vote was
45 to 30. So there were 21 Senators that were missing. We could have
had a constitutional majority in this case.
Mr. SARBANES. How could you have had it? Those votes could not
qualify under your amendment. Is that correct? Neither of those votes
qualifies under your amendment.
Mr. HATCH. You could not with those two votes.
Mr. SARBANES. Either in the Senate or the House.
Mr. HATCH. The Senator was talking about Senators walked. They walked
there. There were 30 that walked in the House. There were 21 in the
Senate; 96 in the Senate; only 75 voted. So even under a minority vote,
people can walk, if they want to.
But the point is we have a constitutional majority in here for one
reason, and it has been accepted by both Democrats and Republicans in
the House and the Senate; and that is so that we would have tax-
limiting effect. I think it is going to be a tax-limiting effect. That
is the purpose of it.
Mr. SARBANES. If the Senator will yield, you have it in section 5 to
do a waiver for a military conflict you require a whole number of each
House.
Mr. HATCH. That is right.
Mr. SARBANES. The whole number.
Let me go back. There were only 48 States then. So there were 96
Senators.
Mr. HATCH. Right.
Mr. SARBANES. The whole number would be 49 in that circumstance. Is
that correct?
Mr. HATCH. That is right.
Mr. SARBANES. The vote in the Senate was 45 to 30. That does not
qualify. Correct?
Mr. HATCH. Right.
Mr. SARBANES. In the House, they had 218.
Mr. HATCH. 203 to 202.
Mr. SARBANES. 218.
Mr. HATCH. No. It was 203 to 202.
Mr. SARBANES. In any event, it will not qualify there either.
Mr. HATCH. It would have, had they not walked.
My point is the Senator is saying they might walk under this
constitutional majority. They walked then under a regular majority
vote.
Mr. SARBANES. That is right.
Mr. HATCH. But in both cases, had they not walked, you could have had
a constitutional majority. I think these votes are going to be
heightened votes, and nobody is going to miss them.
Mr. SARBANES. If I could say to my dear friend from Utah, the
Founders specifically discussed this. They debated whether the quorum
should be more than a majority of the body and they rejected the notion
that it should be more than a majority. They said then that you would
prevail on a measure by majority of those present and voting.
Mr. HATCH. That is right.
Mr. SARBANES. Assuming you had a quorum. You have escalated the
number, and you have done it in such a way as to negatively effect very
critical decisions, as I have indicated by the history of World War II.
A measure that was before the body that I would argue very strenuously
was needed to provide for the national security of our Nation would
have failed, not because a majority of those present and voting did not
support it--they did support it--but because you have introduced
supermajority requirements. And these votes would not have met your
supermajority requirements.
Mr. HATCH. Will the Senator from West Virginia yield once more to me?
Mr. BYRD. Mr. President, yes. I do.
Mr. HATCH. Keep in mind, I do not think that we can use votes in
1941. There was not a constitutional amendment in effect then. Keep in
mind, one of the other things our Founding Fathers did--they did it
very carefully--was to put article V into the Constitution which
provides for constitutional amendments, and for changes that are
needed. We are asserting that this change is needed because of the way
Congress has been profligate over the last 60 years.
But let us say the last 26 years during which time we have--could I
finish? Let me finish this one thought. The point is that one of the
most important aspects of the balanced budget amendment is that these
two votes, if they are taken every year, are going to be the votes
nobody is going to be able to miss. If you vote on increasing taxes,
there are going to have to be 100 Senators here because it is going to
be a vote that everybody in the country is going to pay attention to.
If you vote on increasing the deficit, there had better be 100 Senators
here. There are not going to be any walks. Anybody who walks is not
going to be there in the next Congress.
That is one thing this amendment will do.
Mr. SARBANES. Let us assume that. Let us assume in 1941 in the House
of Representatives that everyone who walked would have voted for the
measure. It is a big assumption. Let us assume that. Everyone who did
not vote would have voted for it.
Mr. HATCH. You would have had a constitutional majority----
Mr. SARBANES. No, you would not have had the three-fifths----
Mr. HATCH. Not to increase spending.
Mr. SARBANES. Which the Senator from New Hampshire was making
reference to.
Mr. HATCH. I said a constitutional majority for increasing taxes.
Mr. SARBANES. The point I want to get across to my colleague is that
there is the assumption that issues of national security will not be a
matter of controversy. In other words, he is saying clearly, if there
is a problem, we are going to get these supermajorities in order to do
what needs to be done. I am demonstrating that we had an instance in
which there was clearly a national security question and you are not
commanding the supermajority.
Mr. HATCH. The fact that you cannot command a supermajority is part
of what is going to happen here. What we are saying is, look.
I think a better illustration, if the Senator wants me to substitute
one for him, would be the vote last year on the tax package which the
President brought up here. It is an interesting constitutional question
that I know will intrigue my dear friend from West Virginia who has
spent a lifetime studying the Constitution--for whom I have a lot of
respect--in that area, among many others. That is, that vote last year
did not have one Republican. We have been excoriated by Members of the
other side of the floor as Republicans because we did not vote for that
tax increase, or the deficit reduction part of it either. We did not
because we did not want taxes to increase. And some stood up and said,
``We stood up and did something about the deficit.'' Well, I suspect
that is true. We just did not happen to agree. But now that vote was a
50-50 tie in the Senate.
I want the attention of my dear friend from West Virginia. It was a
50-50 tie. Had this constitutional amendment been in effect, would that
bill have become law today? Or would it have become law at that time?
We did not have a majority of the whole number of the U.S. Senate. It
took the Vice President to break the tie.
There are two ways of looking at that. One is that 50 of us could
have thwarted the tax increase. I think that would have been a terrific
thing to do,
[[Page S2791]] and that is what we tried to do. We lost because of the
fact that under the Constitution the Vice President could vote. But the
other point would be--
Mr. SARBANES. Will the Senator yield?
Mr. HATCH. Let me finish and I will be glad to. The other point--with
the delegation given to me from our colleague--is that, from your
standpoint, a simple majority was not allowed to win, and that this
would make it even more difficult because you would have to have 51
actual votes of the whole number here.
Mr. SARBANES. Is that your reading of section 4 of this balanced
budget amendment?
Mr. HATCH. Not necessarily. I am raising--
Mr. SARBANES. What is your interpretation? What does it mean? 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.''
Take the situation you just described. It is a 50-50 split. The Vice
President is entitled to cast his vote. Would this negate the vote-
casting power of the Vice President?
Mr. HATCH. No. He could cast his vote, but since you did not have 51
votes of the majority of the whole number, the tax bill would have gone
down to defeat.
Mr. SARBANES. That is your understanding of the meaning of that?
Mr. HATCH. That is my interpretation. I thought I would give you a
good illustration.
Mr. SARBANES. I wanted to have that on the record.
Mr. HATCH. We would not have had that highest tax increase in history
had this amendment been in effect.
Mr. SARBANES. That is right. You are saying if this amendment were
passed, the August vote would have been negated.
Mr. HATCH. That is my interpretation. It would have meant that we
would have had to have gotten that 51 votes to increase taxes, and we
probably would have been faced with having to reduce the deficit more.
Mr. BYRD. Mr. President, what it also means is that in a situation
such as the distinguished Senator from Maryland has raised--and he has
focused on a section which I am going to reach a little later, but he
has done it much better than I would have done it. What my Republican
friends are saying--and I hope I will have the attention of both of my
friends--what our friends here have just said is that in the event we
are in a situation which jeopardizes the national security----
Mr. HATCH. No, that is not what I said.
Mr. BYRD. Wait. That is, in essence, what you are saying. You have
not let me finish what I am going to say. How do you know what I am
going to say? Be a little patient.
Mr. HATCH. I will.
Mr. BYRD. What they are, in essence, saying is that you have to have
51 votes in the Senate--no matter how many take a walk; you have to
have 51 Senators, not including the Vice President, who would be
willing to stand up and vote for a resolution which authorizes the
Commander in Chief in a situation where there is a declaration of war
or----
Mr. HATCH. No, no----
Mr. BYRD. Just let me finish. This is one Senator who is not going to
be befuddled or frustrated by interruptions. I will be very happy to
yield to my friend when I have finished.
Let me start again. We will learn over a period of time that there
are some Senators who will just not be rushed.
``Congress may waive the provisions of this article for any fiscal
year in which a declaration of war is in effect.'' In the last 48
years, this country has fought three wars and engaged in several
military conflicts that were of a lesser nature. Not one time was there
a declaration of war. Not one time.

The provisions of this article may be waived for 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.

Therein lies a tale--many tales, as a matter of fact. First, there
has to be a resolution passed. There has to be a joint resolution
passed, even considering the fact that we might have a filibuster
conducted on such a resolution because the opposition could be very
strong in the Senate on that occasion There could be a filibuster. The
President could veto the resolution when it reaches him. How much time
do we have? My friend from New Hampshire--I believe, if I did not
misunderstand him--said in that kind of a situation, we would make
cuts, we would make cuts from other programs. We would adjust
priorities.
We do not have time to make cuts when the Nation is faced with a
military threat. We do not have time to search through various programs
and come up with cuts. And besides, the domestic discretionary programs
have already been pared to the bone. When the Nation is put in
jeopardy, there must be a resolution passed. It must be enacted into
law by the President's signature, and the Nation's security is in the
balance. We do not have time to make cuts. It takes time.
Secondly, in the event there is a 50-50 tie, under the Constitution
as it is written, the Vice President could cast a vote breaking the
tie. Under this section of the amendment, the Vice President,
representing the President and his administration, is not permitted to
cast a vote to break a tie, while the Nation's security is in the
balance. No, it has to be a Senator. The amendment says you have to
have 51 Senators.
Mr. President, this section 5, plays Russian roulette with the
national security of this country. You do not have the time to look at
some programs providing research on apples, or mushrooms, or whatever
it may be. You do not have time for that. And that is small chicken
feed, that is small; you are talking about pennies in comparison with
the billions of dollars that military threats to our security will
cost. It puts the Nation's security into a gamble.
Mr. President, does the distinguished Senator wish me to yield to him
again?
Mr. HATCH. I would appreciate it. I appreciate what the Senator is
saying. This amendment is not going to allow business
as usual. It is going to require a constitutional majority to increase
taxes, which is a tax-limiting approach. I suspect that that will be
more difficult to get than a three-fifths majority to increase the
debt. I really suspect that that is so.

The distinguished Senator from West Virginia--as he always is--was
very accurate in stating that section 5 says that during a declared
war, Congress can waive this provision. That only takes a majority
vote. However, if you get into a military conflict which causes an
imminent and serious military threat, then it will take a
constitutional majority.
I cannot imagine any Congress that would not grant a constitutional
majority under those circumstances. But be that as it may, if it does
not, then that will be the right of the Congress.
(Mr. GREGG assumed the chair.)
Mr. SARBANES. Will the Senator yield for a question?
Mr. HATCH. Yes, I will.
Mr. SARBANES. The people who are against it do not even have to show
up; is that correct?
Mr. HATCH. Yes.
Mr. SARBANES. Now the way the Constitution is written, if a matter is
put to a vote, let us say four or five Members are missing, they may be
ill, they may be in the hospital, they may be sick, they may have gone
to a family funeral, so they cannot be here. It is not unheard of. In
fact, it has happened on occasion. You take a vote amongst those that
are here. It passes 47 to 46, and that is that. Under your provision
you need 51 votes.
Mr. HATCH. Right.
Mr. SARBANES. Suppose you had a vote 50 to nothing, just to draw the
most extreme hypothetical, 50 are for, zero against. The rest are all
absent. That does not carry; is that correct?
Mr. HATCH. You would wait until the next day when you had 51. You can
come up with hypotheticals in every situation, but that does not change
reality. This body has increased the debt ceiling.
Mr. SARBANES. But the people that are against do not have to vote;
right?
Mr. HATCH. That is right.
Mr. SARBANES. They are not required to be here to make a difference.
Because the standard is not between
[[Page S2792]] those that are for and those that are against, you have
to get so many affirmative votes; is that correct?
Mr. HATCH. You could use the same logic. It does not---
Mr. SARBANES. Or it could be the three-fifths where you have ---
Mr. HATCH. You have to have 51 here to constitute a quorum, so it
would not have passed anyway. That could be under any hypothetical.
Mr. BYRD. No, no, no. You can have 51 here, which is a quorum, under
the constitutional amendment that presently obtains and 26 Senators
would be a majority.
Mr. SARBANES. If you had 51 present so you had a quorum and the vote
was say 48 to 3.
Mr. HATCH. Then you would not have the requisite number.
Mr. SARBANES. It would not pass; right?
Mr. HATCH. No.
Mr. SARBANES. You would have a quorum and you would not pass it.
The more you probe into this, the more of a Rube Goldberg contraption
it is.
Actually what happens is, the more we debate this section, the more
you come to understand and a appreciate the perceptions and the wisdom
of the drafters of the Constitution.
It is incredible that we are out here playing games with a document
that has withstood 206 years of scrutiny and was put together by a
group of men whom Gladstone, the great British Prime Minister, regarded
as the greatest assemblage of statesmen in the history of the world.
That was his comment about them in framing the Constitution of the
United States. Yet, we are playing games with it all throughout here.
You have a three-fifths of the whole number requirement, you have a
majority of the whole number requirement, you have a waiver
requirement. You are negating the tie-breaking vote given to the Vice
President of the United States, as I understand it, under another
provision of the Constitution.
Mr. HATCH. Not really.
Mr. SARBANES. The Senator told me on a vote of 50 to 50, in which the
Vice President sought to cast the tie-breaking vote, would not qualify
under your proposal.
Mr. HATCH. Only under that instance. In other instances it who
qualify.
Let me make this point. The game that is being played is business as
usual. We are running this country right into bankruptcy.
Mr. SARBANES. No, that is not the case.
Mr. HATCH. Let me finish.
Mr. SARBANES. No, I am going to reclaim my time. I am not going to
let the Senator----
Mr. HATCH. He yielded to me.
The PRESIDING OFFICER. Does the Senator from West Virginia yield the
floor?
Mr. BYRD. Let me get it perfectly clear. I yielded to both Senators
for a colloquy, with the understanding that I would not lose my right
to the floor, into which colloquy I presume I can intervene at any
point I wish.
Mr. HATCH. That is right.
If I could finish my remarks, I would be happy to allow the Senator
from Maryland to respond.
My problem is, you can find fault with almost anything. The reason we
brought this balanced budget amendment before us is because we have a
runaway train of Federal spending. We have a runaway train that is not
treating our taxpayers fairly. The answers always seem to be more
spending and more taxing.
This amendment is an amendment that does not require a balanced
budget, but it does require us to at least make priority choices.
If we are going to spend, then we are going to have to stand up and
vote to do so. You have to vote. We do not have to now. If we are going
to tax, then you have to stand up and vote to tax. We do not have to do
that right now. We can do it through voice votes.
I just want to add this to it: If you are going to tax more, by gosh,
I think you are going to find these two votes--a vote to increase
taxes, a vote to increase the deficit--from this point on, if this
balanced budget amendment passes both Houses and becomes ratified, you
are going to find that those two votes are going to have 100 Senators
every time, because nobody could fail to vote on them. And if they do,
they are in jeopardy of losing their seat. It is going to highlight the
importance of these votes around here. We will not have any more of
these 51 votes or 26 to 25. We have not had any of those as long as I
have been here.
The point is that when the Senator mentioned that in his
hypothetical, he said 50 votes. I am saying that would not have been
acceptable; 51, if you have 26 votes, yes.
Mr. SMITH. Will the Senator from West Virginia yield?
Mr. SARBANES. If I could just engage in this colloquy further.
The game that is being played, I say to my friend, is very clear
today because the other side has been very clear that they have drafted
this in a way that would have knocked out the deficit reduction package
of August 1993.
Now, I understand that the Senator was not for that. I was for it. I
disagree with him. The Senator portrays it as a tax increase on all the
American people. The fact of the matter is, it was a tax cut on the top
2 percent of the income, other than the gasoline tax. But the income
tax rates affected the top 2 percent.
Now, I understand the Senators on the other side have a very soft
spot for the top 2 percent, but it seemed to me reasonable to do this
and to try to address some of our Nation's problems.
In any event, the situation could have been reversed. You could have
been trying to push through a deficit reduction package that I opposed
for one reason or another.
The question is whether you are going to skew the Constitution in a
way that a majority is not going to be able to make decisions. The
Founding Fathers very carefully constructed this document and they are
very explicit, both Madison and Hamilton in the Federalist Papers, in
pointing out in the documents about a supermajority.
Let me just read what Madison said in Federalist 58. Because he is
the father of our Constitution and a man of great reason and fairness.
He would recognize the other arguments and try to deal with them
rationally, which is what we are trying very hard to do here today. Let
me just quote him.
This is Madison now, in the Federalist 58:

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

Now, I agree with Gladstone's evaluation of the Founding Fathers.
This amendment is fraught with peril. The more we go into it and the
more we develop it and the more we measure it against historical
experience, the more I find wrong with the amendment.
The Senator asserted earlier that surely three-fifths would vote to
raise the debt limit. I invite my colleague to go back through the
votes on raising debt limits in the past to spot the ones where three-
fifths did not. It is not so obvious.
In many of these issues it is a struggle to get the simple majority
to make the decision. These are controversial issues. They are
recognized as controversial. The August 1993 package was controversial.
You disagreed with it. I supported it. I think it has proven itself
out. I think all the subsequent history supports a decision to have
passed it.
Those decisions ought to be made by majority vote. That is what the
Founding Fathers intended. That is what I think we should stick with.
I yield the floor.
Mr. SMITH. Mr. President, will the Senator from West Virginia yield?
Mr. BYRD. Mr. President, I yield.
[[Page S2793]] Mr. SMITH. The Senator has been very generous for all
Members here on his time for which this Senator is grateful.
I would like to pick up on something that Senator Hatch said, and say
to the Senator from Maryland, the Senator has pointed out some points
which are well taken regarding this debate and this amendment. I would
also say to the Senator that Winston Churchill once said, ``Democracy
is not perfect, but it is the best thing going.''
The issue here is the Founding Fathers were not infallible. We are
not infallible. There are reasonable decisions that have to be made
from time to time. The Dred Scott decision in 1857 when a Supreme Court
said a slave was property and therefore could not sue in Federal court.
That came in under the Constitution. Is that right? No. But it
happened. So we are an infallible people.
So my point is, what Senator Hatch was alluding to, if we look at
what is happening we are talking about a situation where a national
emergency might emerge. The Senator is correct. He made some very good
points about what might happen if that national emergency were to come
about.
The other point is, if we are looking at where the debt is going and
how much of the debt is being consumed, how much of the budget is being
consumed by interest on the debt, and looking at where it is today, 16
percent roughly of that budget is interest on the debt and 16 percent
is national defense.
I would say to the Senator, with all due respect, if we did not stop
it, if we do not stop this runaway train of debt and deficit spending,
we are not going to have any money for national defense. We are not
going to have any money for any emergency under any situation because,
and the Senator knows, that the commission, which was a bipartisan
commission, on entitlements headed by Senator Bob Kerrey, Democrat, and
Senator Jack Danforth, Republican, said by the year 2013 at the latest,
this country will be spending 100 percent of its budget on interest on
the debt and entitlements. There is not going to be any money for
defense.
I would just say to the Senator if this is fallible, this amendment,
then tell me what the alternative is when we get to 2013 and we do not
have any money-- none, zero--to defend our national security or our
national interests.
Mr. SARBANES. Mr. President, I will tell the Senator. First of all,
it boggles the imagination that we are hearing this argument from
someone who voted against the 1993 deficit reduction package. All of
the situation that the Senator is talking about would be far worse had
the Senator prevailed on that vote.
There are tough decisions to be made. Everyone recognizes that.
Because they are tough to make it is very difficult to get a majority
for them. What the Senator is doing is escalating the standard from a
majority to a supermajority. So the Senator is making it even tougher
to make the tough decisions, not easier. The Senator is putting more
power into the hands of the minority to frustrate or to thwart the
effort.
Where I disagree with the Senator is, in his assumption, that all of
these waivers will be granted in a time of crisis. If we go back
through our history, it does not support the Senator. Historically,
when we come up against these situations they are often very divisive
and very controversial and action in the end is taken by a bare
majority. I went through at great length earlier the example of the
extension of the service requirement under the draft in 1940.
Clearly, that was important to the national security of the country.
I am quoting from that article:

In an effort to depoliticize the issue as much as possible,
Roosevelt and Secretary of War Henry Stimson designated Army
Chief of Staff George Marshall as the administration's point
man on the Hill. Marshall worked tirelessly but found
converts difficult to come by despite his tremendous prestige
on Capitol Hill. ``You put the case very well,'' one
Republican Congressman told him, ``but I will be damned if I
am going to go along with Mr. Roosevelt.''
The vote was set for Monday August 11, but Rayburn put it
off for one day out of respect for a Republican Member who
had died over the weekend. With the President out of town
meeting secretly in Newfoundland with British Prime Minister
Winston Churchill, to nail the Atlantic Charter, Rayburn
spent the additional day roaming the corridors of Capitol
Hill trying to win over recalcitrant Democrats and wavering
Republicans. His lobbying style was like the man himself,
honest, direct, and intensely personal without a hint of
intimidation.

Here is Rayburn himself, walking the corridors. Here is General
Marshall, one of the really great statesmen of American history, a man
for whom I have enormous respect and admiration, working--as they say
here ``Worked tirelessly but found converts difficult to come by
despite his tremendous prestige on Capitol Hill.'' When the vote came,
it was 203-202. That vote would not qualify under the provisions of
your balanced budget amendment proposition here.
We would not have been able to respond to this national crisis. The
Senator earlier said to me if they had known they needed a three-fifths
requirement they would have gotten more votes. I said to the Senator,
it defies belief that a sizable chunk of the 202 who voted against it
would switch over because they knew there was a three-fifths
requirement. They voted against it when there was a simple majority
requirement and the thing would have gone down, and it would have been
a disaster for the Nation had it happened.
All I am saying is that these tough decisions need to be made by
majority vote just as is provided for in the Constitution. The Founding
Fathers could foresee these things and that is why they provided it.
This is, as the distinguished Senator from West Virginia said, playing
Russian roulette with the national security of the United States.
Mr. SMITH. Mr. President, if I could have a last response, I promise
the Senator from West Virginia.
The Founding Fathers also provided for an amendment process to the
Constitution because they knew that it would need that flexibility,
because it could not predict the future nor foresee the future. The
Senator knows that. That is why we are here.
I also would respond to the Senator on the point of the budget
agreement of 1993. This debate is, essentially, a nonpartisan debate on
the issue of whether or not we need an amendment, constitutional
amendment, to balance the Federal budget. But the Senator introduced a
partisan matter on the issue of the budget agreement.
Just because this Senator and the remaining Republican Senators in
the Senate at the time did not agree with the Senator from Maryland
that the way to bring the deficit down was to increase taxes $250
billion, but rather bring spending down $250 billion to move the budget
deficit down, that does not make me opposed to bringing the deficit or
the debt down.
The truth of the matter is, those on this side who voted against that
wanted to cut spending, not raise taxes.
The second point is, which we have already gone into on the floor
many times before, not only during this debate, but the truth of the
matter is the correction that needed to be taken to reduce the debt was
not taken with that budget agreement, for the same reason it was not
taken with any of these other agreements that are on this chart from
1921 all the way up to Gramm-Rudman-Hollings and the budget agreement
of 1993. The truth of the matter is, Congress walks away from them.
The President of the United States, President Clinton, just submitted
a budget, the follow-on to this budget, which increases the national
debt by $1.6 trillion over the next 5 years. Since this agreement has
been passed, we have increased the national debt another one-half
trillion dollars. So where is the progress?
This Senator fails to understand where the progress is being made. I
hear about all these great agreements, we have had all these budget
agreements, we are bringing the debt down, bringing the deficit down.
We are not bringing it down. It is going up, up, up, up, and the reason
why is because we need this amendment because Congress will not do it
without it. That is absolutely evident.
The Senator talks about a national emergency. I do not know whether
he has a commission out there somewhere that defines a national
emergency or whether he has to read it in the newspaper that it is a
national emergency. If the Congress of the United States
[[Page S2794]] does not think it is a national emergency or the
President does not think it is, I do not know how you define a national
emergency.
So I assume, by definition, if the Congress does not vote to say it
is a national emergency and provide the funding to go to war, maybe
they do not think we should go to war. That is the prerogative of the
U.S. Congress. That is the prerogative. That is exactly what the
Founding Fathers meant that ``Congress shall have the power to declare
war.''
This argument that somehow we are going to defend the right of the
United States to protect itself by voting against the balanced budget
amendment is the most nonsensical thing I heard since I have been here.
By the time this debate is over, we are going to add tens of
billions, hundreds of billions of dollars to the national debt; $9,600
per second as we debate the debt goes up. Interest on the debt is now
going to pass defense. What we spend on defense and interest is going
this way, just like that, and defense is going this way. And by the
year 2013, by most admissions of a bipartisan commission, we will be
spending 100 percent on interest and 100 percent on entitlements.
Mrs. BOXER. Will the Senator yield?
Mr. SMITH. That is what is going to threaten the national security of
the United States of America, not a constitutional amendment to balance
the budget.
Mrs. BOXER. Will the Senator yield to me to ask a question?
The PRESIDING OFFICER. The Senator from West Virginia has the time.
Mrs. BOXER. If the Senator will yield for a short period of time.
Mr. BYRD. Mr. President, I ask that I may continue to yield with the
understanding that I not lose the floor for the purpose of a colloquy
to include now the distinguished Senator from California [Mrs. Boxer].
The PRESIDING OFFICER. Without objection, it is so ordered.
Mrs. BOXER. I thank you very much. I was not planning to participate,
but something the Senator said makes me want to, and that is during the
discussion with the Senator from Maryland on the vote on the deficit
reduction package, which the Senator from New Hampshire says is, in
fact, not working, every expert in the country says that the deficit
would have been $500 billion higher. But let us not even get into that
because what I want to ask the Senator are two basic questions.
First of all, the Senator said at that time he did not like the
package that the President sent over, the deficit reduction package,
because it contained some tax increases of which he did not approve. We
also know it contained a large tax cut for the working poor and far
many more people are affected in a positive way from that tax cut. But
let us put that aside.
The Senator said he would have preferred instead of raising taxes--
and he puts it at $250 billion--he would have cut spending $250
billion.
So my question is, did the Senator offer an amendment to cut $250
billion and show us how he was going to cut $250 billion from the
deficit? I do not recall it.
Mr. SMITH. If the Senator will allow me to respond, you know the
situation as well as I do with regard to the debate and the politics,
what was going on. The truth of the matter is, there were many
discussions on our side, many attempts to redirect that in committee.
The distinguished Senator from New Hampshire, who is in the chair, was
involved in a number of efforts in the Budget Committee to reprioritize
that whole budget, and the Senator from California knows that.
The truth of the matter is, the position of the President and the
majority in the Senate at the time, and in the House, was that the best
way to deal with the deficit was to raise taxes on the American people.
My point is, the best way to deal with the deficit would be to reduce
spending and to continue that spending on a downward trend.
Mrs. BOXER. So the answer to my----
Mr. SMITH. My final point. My only point is we did not do what we
needed to do to correct it. Even with the tax increase you did not
correct it. If you want to take the position, which I happen to
disagree with, that we can continue to raise taxes forever until we
balance the budget, you have a right to that position. But there is
only so much you can get.
Mrs. BOXER. My question to the Senator was, he said at the time he
would have preferred to cut spending $250 billion instead of raising
the taxes. The President's plan did raise taxes on the wealthy, and it
also cut taxes much more broadly on the working poor.
Mr. SARBANES. It also cut spending.
Mrs. BOXER. And it cut spending the other $250 billion. But the point
I want to make, in conclusion, and then I will yield back the time to
the good Senator and thank him once again for his leadership on this:
The Senator himself said he was working on some plans. I am sure he is.
I have never seen that plan.
I wrote to every single Republican who is in the leadership, heads
committees when this debate started. I said, ``Show me your plan. You
want this balanced budget to go into effect. I want to know if it is
going to hurt the people of California, the people I represent. I want
to know what is going to happen if there is a disaster or a war.''
You have a three-fifths super- majority built into this,
as the Senator from West Virginia and the Senator from Maryland have
stated. They do not agree with it. I do not agree with it. I think it
shows a mistrust for the people, that is what I think about
supermajorities. They show a mistrust for the people. They give too
much power to the minority, and I do not think that is what America is
all about.
But putting all that aside for this conversation, I have to stand up
and say to my friend from West Virginia that when Senators on that side
criticize those of us on this side for voting for deficit reduction,
which was the largest package in history and it is working, for them
not to show what their plan is and to hide behind this figleaf of a
balanced budget amendment, trying to tell the American people, because
of that, they are going to be the ones to balance the budget, I find it
very problematical. And I rose today to add my voice.
They did not vote for the right to know. They did not vote to exclude
Social Security. I think this is a dangerous, dangerous balanced budget
amendment.
By the way, I wanted to vote for a balanced budget amendment. I
wanted to vote for one over on the House side, I say to my friend from
West Virginia. He would not have agreed with me. I did, in fact, do
that because it was flexible, it took Social Security off the table, it
did not have a supermajority, and we tried to fix this amendment.
As the Senator from Maryland has stated so eloquently, the more you
look at this amendment--and that is why I appreciate the time we have
here in the Senate to do that--the worse it gets for the American
people and the people that I came here to fight for, the people of
California.
Mr. SMITH. May I ask the Senator one question?
Mrs. BOXER. Does the Senator continue to yield?
Mr. SMITH. One final question. Under your definition of
``exemption,'' if Social Security and other entitlements get to 100
percent of the budget, do you still support the exemption?
Mrs. BOXER. Let me say to----
Mr. SMITH. Answer yes or no.
Mrs. BOXER. I will answer it. I agree with the Republicans who have
said over and over again by vote, ``You're not going to touch Social
Security.''
Mr. SMITH. But when you exempt it----
Mrs. BOXER. The answer is I am not for touching Social Security
either, and because I believe that, I think it is a compact with the
people who paid into it.
Mr. SMITH. You are going to destroy it without the----
Mrs. BOXER. No.
Mr. SMITH. You certainly are.
Mr. SARBANES. If the Senator will yield, the Social Security System
is paying its way.
Mrs. BOXER. Exactly right.
Mr. SARBANES. The Social Security System is not only paying its way,
it is, in fact, running a surplus.
Mr. SMITH. And the Treasury is borrowing all the money to fund the
debt, and the Senator knows it.
Mr. SARBANES. That has nothing to do with the Social Security System.
It is terribly important for the American
[[Page S2795]] people to understand this because a game may well be
played with the Social Security trust fund, as was just indicated, in
effect, by my colleague from New Hampshire, if they do not understand.
The Social Security trust fund is more than paying for itself. People
receiving Social Security owe no apology on the deficit question,
because the trust fund currently is not only paying its way, it is
running surpluses, which in an accounting sense are used to offset the
size of the deficit.
Now, the other side would obviously want to use those, and many of us
feel that should not be done. In the 1980's, when the Social Security
trust fund ran into some difficulties, we took the measures of reducing
benefits and raising Social Security taxes in order to put the Social
Security trust fund back into a healthy position.
That is exactly what we did. This is an effort to raid the Social
Security trust fund. It is implicit in this balanced budget amendment,
and to some extent was made explicit the other day with the tabling of
the Reid amendment, which sought to make it very clear that it could
not be tapped or drawn on. It needs to be understood the Social
Security system is paying its way. We have other so-called entitlements
that are not, but the Social Security trust fund is more than paying
its way. That needs to be understood, and this assault on the Social
Security system needs to be repudiated.
Mrs. BOXER. I say to my friend--and I thank him for continuing to
yield--the reason I answered the question the way I did to my friend,
the good Senator from New Hampshire, is because the Republicans are
trying to have it both ways.
It is really extraordinary, and I am glad we have this chance,
because on the one hand they have passed motion after motion stating
that they will never touch Social Security or the benefits and it is
off the table and they are not going to look at it. On the other hand,
they vote against the Reid amendment, the Reid-Feinstein amendment,
which would have clearly taken Social Security out of this balanced
budget requirement.
So they are talking two ways. And what was so interesting right here
this afternoon just a few minutes ago is the good Senator from New
Hampshire says to me, Senator, are you saying that even if Social
Security and the other entitlements are 100 percent of the problem,
that you are not going to touch them?
Well, that is what they have been saying. They have been saying they
are not going to touch them. But if you listen very carefully, it is a
very clear threat to Social Security, as clear as the nose on your
face.
I say that this amendment is very dangerous. It is very dangerous to
the stability of this Nation because it is so inflexible, and my
Republican friends have voted almost unanimously--we came close on the
Johnston amendment on the Court issue, but basically they have walked
down the aisle with this rigid supermajority requirement amendment that
puts Social Security in jeopardy, it puts our States in jeopardy, and
it puts our people in jeopardy.
I wish to thank the Senator from West Virginia for his generosity in
yielding to me.
Mr. BYRD. I thank the distinguished Senator from California [Mrs.
Boxer].
Mr. President, when all is said and done, our friends on the other
side of the aisle have not answered the question put to them by Senator
Sarbanes. He brought up the language in Section 5 of the constitutional
amendment to balance the budget:

The Congress may waive the provisions of this article for
any fiscal year in which a declaration of war is in effect.
The provisions of this article may be waived for 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.

Of course, then the proponents of the amendment, not wishing to focus
on section 5 and the questions asked by the distinguished Senator from
Maryland related thereto, wish to talk about the seriousness of the
budget deficits and the seriousness of the debt, and so on.
We are all concerned about those deficits and the debt. There is no
disagreement as to the desired goal to reach a balanced budget and to
reduce the deficits and ultimately to begin paying the principal on the
debt and hopefully reducing the interest that is paid on that debt.
The proponents do not want to focus on this section 5. I will ask the
question: If the country ``is engaged in a military conflict,'' short
of a war that has been declared, ``engaged in a military conflict that
causes an imminent and serious military threat to national security and
is so declared by a joint resolution, adopted by a majority number of
the whole number of each House, which becomes law,'' does that language
mean that once the joint resolution referred to in that section is
adopted by a majority of the whole number of each House and becomes
law, and in the event that the military conflict which causes an
imminent and serious military threat to national security continues
over a period of another year or 2 years or subsequent years, does this
language mean that Congress will have to waive the provisions of this
article by way of a joint resolution in each and every subsequent
fiscal year in which that threat to the national security exists? Does
that mean we have to do it over and over again?
I am waiting on the Republican response team to respond. Does that
mean that we have to go through this obstacle course every year, every
subsequent year after that first year, or that first occasion in which
the joint resolution is adopted by a majority of the whole number of
each House? Do we have to do that over and over again?
Suppose the support for the Commander in Chief's position, suppose
the national support wavers?
Initially, people having been supportive, through their
representatives, of adopting the joint resolution are--suppose that
threat to the national security continues into a subsequent fiscal
year, and then again into another fiscal year? Does this language make
it incumbent upon the Congress to continue, with each new fiscal year,
to pass a joint resolution by a majority of the whole number of each
House? What does this mean?
The Commander in Chief and the military forces which he may have
committed as he did in Desert Storm, or as President Truman did in
Korea--suppose that initial support of the people lessens? What does
the Commander in Chief do? He is left out there hanging. He has men on
distant battlefields. He has ships plying the waves of the several
seas. He has planes transporting Marines and soldiers. He has an Air
Force out there that is flying in various areas of the world. What does
it mean? Do we have to pass another joint resolution in the next fiscal
year?
Suppose this emergent situation should arise in August, with the
close of the fiscal year imminent on September 30. There is not time to
pass a joint resolution and look for cuts in other areas of the budget,
to which my friends on the other side of the aisle have alluded. What
happens? The fiscal year is closed on September 30 and the total
outlays have exceeded the total receipts for that fiscal year. You have
men out there in the field facing danger. Their lives are on the line,
their lives are in jeopardy, and the security of this country is in
jeopardy. What are we going to do? Are we going to be entertained by a
wide-ranging debate in both Houses on a joint resolution every fiscal
year that that situation continues? And, in addition, we have to have a
majority of the whole number elected to each House for passage.
Mr. THOMAS. Will the Senator yield for a question?
Mr. BYRD. Yes, I yield.
Mr. THOMAS. Senator, I am not as familiar as you are with the
process, but it seems to me that now there has to be approval, there
has to be approval annually for the budget, there has to be approval
for the President's move in terms of military activities.
Mr. BYRD. There was not any approval in the case of his invasion of
Haiti. The invasion actually started.
Mr. THOMAS. There was in Desert Storm, as you will recall.
Mr. BYRD. Wait just a second. The invasion of Haiti started. The
President called it off--in midair, almost. I was not supportive of
that invasion.
Mr. THOMAS. Nor was I.
[[Page S2796]] I guess further I would say, I am not sure I am
confounded by the Congress each year approving this. I do not think
that is an unusual kind of thing. Do you not think the Congress
represents the people----
Mr. BYRD. When the Senator is around here long enough he may find
himself confounded. If we get into a situation where the Nation's
security is in the balance, we may all feel confounded by the necessity
of acting expeditiously, because we have the lives of men and women in
dire peril. And then, under this amendment, we are going to require a
majority of the Senators who are chosen and sworn to pass a resolution
in a situation like that--we are going to explain that away by talking
about the budget deficits?
Mr. THOMAS. I have a little more confidence in the Members of this
body than to ignore an issue of that kind. It just seems to me that the
evidence is that we need to do something different than we have been
doing. I constantly hear we cannot change things. But the record is, we
have to if we want different results.
Mr. BYRD. Senator, I am talking about section 5.
Mr. THOMAS. I understand.
Mr. BYRD. Let us stay with it. Let us not talk about, at the moment--
I will be glad to yield later to the Senator, if he wants to broaden
the discussion.
We are talking about section 5. As Napoleon said, there were men on
his council who were far more eloquent than he, but that he won every
argument simply by saying 2 plus 2 equals 4. It is pretty simple.
So I want to say to my friend, as Napoleon might have, he would say
let us stick with the question. Let us stick with section 5. That is
the question that has been raised this afternoon, in the main, on this
floor.
So, is the Senator telling me that we should run the risk of adopting
a joint resolution each fiscal year in which our national security is
in jeopardy? We should run the risk of adopting a joint resolution and
that he is willing to subject this country's security to the necessity
of a supermajority vote--a mini-supermajority vote, a majority of those
Senators chosen and sworn?
Mr. THOMAS. I have, I guess--and I do not suggest I know the
answers--but I have a good deal of confidence. What does it say? It
says, ``* * * this article may be waived for any fiscal year in which
the United States is engaged in military conflict which causes an
imminent and serious militarily threat * * *'' I have a hunch that most
of us, a supermajority of us, would respond to that.
Mr. BYRD. Is that the Senator's answer?
Mr. THOMAS. Yes, sir.
Mr. BYRD. Well, Mr. President, that is the kind of answer that the
proponents of this ill-advised constitutional amendment continue to
make. ``Well, I have confidence that the Congress would do thus and
so.'' Or ``The intent of the proponents of this constitutional
amendment is thus and so--the intent.'' Or ``That would never happen.''
Or ``I am sure that the Senate and House will rise to meet the needs of
providing--by providing supermajorities.''
Senators do not know that. Senators do not know what the intent of a
future Congress may be. Senators do not know with enough certitude to
give me confidence that Congress will act in a given situation that may
be years away, as it might act at this moment or in this year of Our
Lord 1995.
Mr. President, this is the typical response: ``I have confidence.''
That is it. ``I have confidence. I am willing to trust our
colleagues.'' Well, I am willing to trust colleagues also. I am willing
also to trust the good judgment of a majority of the representatives of
the people, if the people are adequately informed. I am willing to
trust the opinions of the American people if they are properly
informed. But we cannot cavalierly push away this sobering question nor
the serious questions that arise with respect to this Constitutional
amendment simply by saying, ``Well, I am sure it won't happen,'' or ``I
am willing to trust'' so and so and ``a future Congress'' and ``this is
not the intent.''
Read what the amendment says. That is what the court is going to go
by. It is going to first look at the four corners of the document.
Section 1:

Total outlays for any fiscal year shall not exceed total
receipts for that fiscal year.

Then in section 5:

The provisions of this article--

Meaning section 1.

may be waived for any fiscal year in which the United States
is engaged in military conflict which causes an imminent and
serious military threat to national security.

Who is going to determine what is an ``imminent and serious military
threat'' to the national security? Obviously, there are going to be
differences of opinion.
Mr. THOMAS. That is what I am suggesting; that is, that is the role
of Congress, and I think it is a legitimate role and one that is not
unusual, one that I have perceived has been done for a number of years.
Mr. BYRD. Absolutely. But for a number of years it has not been
required.
Mr. THOMAS. It should be required.
Mr. BYRD. For 206 years it has not been required that there be a
majority of the whole number in each House to pass a resolution.
Mr. THOMAS. Where does the President get the money, if the majority
of the Congress does not agree?
Mr. BYRD. Where does he get the money?
Mr. THOMAS. Yes.
Mr. BYRD. Let me ask the Senator. Suppose the President needs a new
tax. Suppose he needs to raise taxes to meet that serious military
conflict, that serious military threat to the United States. Suppose he
needs to increase taxes. Then what? Would the Senator be willing to
raise taxes?
Mr. THOMAS. The President does not raise taxes.
Mr. BYRD. That is not the question which I asked the Senator.
Mr. THOMAS. I think there is a system in which the President can
move. But the President then comes to the Congress for either a
declaration or for the money, or he, as he is doing now, comes for a
supplemental budget. The Congress has to be involved to make this
decision.
Mr. BYRD. Of course. This Senator has never said the Congress should
not be involved. This Senator is saying simply that the Congress ought
to continue to be involved under the present Constitution which has
provided very well for congressional actions to meet all emergencies
that have occurred throughout the 206-year history of this country.
Mr. THOMAS. I understand that.
Mr. BYRD. But now we are going to be in a very different situation if
this Constitution is going to be amended. And it will not be amended
for just a year or so; it will be changed from now until kingdom come,
unless the American people and Congress repeal this amendment once it
is in the Constitution. The Senator knows that. It is not easy once it
is in there. It is not like a statute which can be repealed by the same
Congress that enacted it in the first place.
I am asking the Senator. Suppose we get into a situation where this
Nation's security is in peril and more money is needed and the
necessity arises for an increase in taxes. Then what are my friends on
the other side going to do in that situation?
Mr. THOMAS. That is why this provision is there to waive.
Mr. BYRD. Yes. By what vote?
Mr. THOMAS. By a supermajority vote.
Mr. BYRD. Yes. That is just the question. Why subject this country's
security to the necessity of a supermajority vote when the Nation's
very life is in danger, the security of the American people are in
danger, the security of the troops in the field are in danger, and the
security of the planes in the air is in danger? Why subject a decision
at that critical moment to a supermajority? The Framers, in their
wisdom, did not do it. And we have fought a good many wars.
Mr. THOMAS. I understand. This is the basis of what we are talking
about. Of course, the Senator says leave it as it is. Others say we
need to change it. That is what it is, whether we change or whether we
do not. Many people think that there needs to be a change. Many people
think the performance is such that there needs to be a change. And I
respect greatly the Senator's wisdom and knowledge. But that is the
issue. And the Senator does not want it
[[Page S2797]] changed. I understand that. Others do. That is what it
is all about.
Mr. BYRD. It is about more than that. That is why we need to take the
time to probe and to explore these provisions that are in this
amendment to balance the budget. We are all in agreement, I say to the
Senator, with the goal of a balanced budget. We are all in agreement. I
am in agreement that we need to reduce the deficits. And I agree that
it is going to require some pain. I also am of the opinion that we do
not need to wait 7 years. We started in 1990. We took a great step
beyond that in 1993. We need to do more.
Why cannot we continue on that course of enacting multiyear budget
deficit reduction bills? Do you know why? Because of the pain, and part
of that pain may just have to be an increase in taxes. I do not like to
vote to increase taxes. I have been in political office 48 years, and I
know it is not easy to vote to increase taxes. It is always easy to cut
taxes. It was easy to cut taxes in 1981 when Mr. Reagan asked for a tax
cut in one package involving 3 successive years of cuts, 5 percent the
first year, 10 the next, and 10 the next. It does not take courage to
vote to cut taxes.
But in a situation--I keep getting back to this section 5. What is
the Senator's answer? Is he willing to put this Nation's security in
peril by requiring a supermajority consisting of a majority of the
Senators and House Members elected? The Framers did not think that was
wise. We had just come through the Revolutionary War. We had still
ahead of us the War of 1812. We had ahead of us the Mexican War of
1848, the Civil War, the war with Spain in 1898, the First World War,
the Second World War, Korea, Vietnam, and the Persian Gulf. In addition
to these, there were several military conflicts that were not wars,
of that magnitude, by any stretch of the imagination.

There was never, until this amendment comes along, any thought of
requiring a mini-supermajority to pass a resolution in a moment of dire
peril to deal with our Nations's security. We get nothing from the
proponents when we direct the question at them, ``Would you be willing
to raise the revenues to meet the needs in that moment of peril?''
``Would you be willing to raise taxes?''
Mr. LEVIN. Will the Senator yield for a question.
Mr. BYRD. Yes, shortly. What we get is what the Senator from Maryland
got a while ago when he tried to pin Senators down on the other side of
the aisle with his questions concerning section 5. Section 5 has not
been talked about much in the Senate. It needs to be talked about. What
we get are speciocities, irrelevancies, platitudes, well-wishes, and
expressions of good intent. We do not know what the ``intent'' of the
Senators who sit at these desks will be 2 years form now, 3 years from
now. Perhaps they will be the same Senators. How can we say what their
intent will be? We need to read the words of the amendment. They speak
for themselves when they say ``total outlays shall not exceed total
receipts in any fiscal year.'' That does not leave any wiggling room.
The proponents say, yes, it does, because you can waive that by a
three-fifths majority.
It is a dangerous amendment. Section 5--I would not want to risk the
lives of my grandsons on that kind of language, requiring 51 Senators
in this Chamber to pass such a resolution, denying the Vice President
of the United States his vote to break a tie, if there should be a tie.
This amendment would deny the Vice President of his vote that is
accorded him in the current Constitution----
Mr. LEVIN. Will the Senator yield?
Mr. BYRD. To vote to break a tie. I yield.
Mr. LEVIN. I understand that the Senator from Utah said that the Vice
President would be denied, in his opinion, a vote to break a 50-50 tie.
But he also said it was an ``open question.'' I do not think we ought
to have an open question in a constitutional amendment, because this is
a life and death matter.
Mr. BYRD. You have a constitutional crisis when you have this open
question.
Mr. LEVIN. It will, in fact, plunge this constitutional amendment
into the courts to interpret as to whether or not he Vice President can
break a tie. It should not be left open. It should be resolved in this
amendment as to whether or not the Vice President's vote counts to
break a 50-50 tie. I think it is irresponsible to write a
constitutional amendment knowing that that question is left open.
By the way, that is not some theoretical question. Last year's
deficit reduction bill, as it has been debated here this afternoon, was
a 51-50 vote, based on the Vice President's vote. So this is not some
theory that we are arguing here in a civics class. This is the reality
of the U.S. Senate, and life and death matters can be resolved on
whether or not the Vice President's vote counts to break a tie.
It was the opinion of the Senator from Utah, as I understand it,
stated earlier this afternoon, that the Vice President's vote would not
count in this provision. And yet, the chief sponsor of this language
that is in front of us, Representative Dan Schaefer of Colorado, says
the Vice President's vote would count. Yesterday, we had the same
problem. We had, on this side, the chief sponsor saying that there
would be no standing, do not worry about it. We had the chief sponsor
on the other side--this is the Schaefer-Stenholm substitute.
Representative Schaefer has said that there would be standing for
Members of Congress to sue. I had a big board up, and my friend from
Pennsylvania who is managing the bill now saw where we had the prime
sponsor of this language quoted in a very formal document, by the way.
These were not casual comments. These were questions and answers he
submitted for the Record, in the House Congressional Record, where he
made statements which were exactly contrary to what the opinion of the
Senator from Utah is--exactly contrary on critical issues on the role
of the court.
Representative Schaefer said, in a formal answer, that a court could
throw out an appropriations bill or a tax bill, as being
unconstitutional. But we were told by the Senator from Utah that it was
his opinion that a court could not involve itself in the budgetary
process.
My question of my friend from West Virginia is this--and I want to
read now into the Record the statement of Representative Schaefer on
the question of whether or not the Vice President's vote counts. It is
on page 758 of the Congressional Record of January 26. This is a formal
interpretation of section 4. And, again, this is a formal question and
answer presentation that was supplied for the Record by Representative
Schaefer:

This language is not intended to preclude the Vice
President in his or her constitutional capacity as President
of the Senate from casting a tie-breaking vote that would
produce a 51-50 result.

He goes on to say:

Nothing in section 4 of the substitute takes away the Vice
President's right to vote under such circumstances.

Mr. SARBANES. Will the Senator yield?
Mr. LEVIN. I do not have the floor, but----
Mr. BYRD. Mr. President, the courts are going to decide that. It does
not make any difference what my intent is or what the intent of the
House Member was who was addressing himself to that question, or what
he intent of any other Senator is. It is the court, and it will be a
constitutional crisis. Once we constitutionalize this fiscal policy by
writing this amendment into the Constitution, it is an open invitation
to the courts to come into this equation. There is nothing in this
amendment that prohibits or forbids the courts from intervening.
Mr. SARBANES. Will the Senator yield on that point?
Mr. BYRD. Yes.
Mr. SARBANES. I think the Senator from West Virginia is absolutely
correct. But what is going to draw the court in even more is the fact
that two principal sponsors of this measure give absolutely contrary
views as to the meaning of this clause, as the Senator from Michigan
has pointed out. One of the chief House sponsors says that under
section 4 the Vice President would have the tie-breaking vote. The
distinguished Senator from Utah, chairman of the Judiciary Committee
and the lead manager for this bill, very explicitly stated on the floor
of the Senate not too long ago that you would have to produce 51 votes
out of 100 in
[[Page S2798]] this body in order for section 4 to apply. A 50-50 vote
with the Vice President supposedly casting a tie-breaking vote would
not work. In effect, you have negated the tie-breaking vote of the Vice
President.
This is important in underscoring all of the pitfalls that are
contained in this provision. I am certain it will bring about what the
Senator from West Virginia has just stated, and that is the involvement
of the courts, because the legislative history on this is absolutely
contradictory on the part of its proponents.
Mr. LEVIN. I thank the Senator from Maryland. My point here is that
this is being left----
Mr. BYRD. I ask unanimous consent that I may continue to yield the
floor, retaining my rights to the floor, for colloquies. I do not
intend to hold the floor all afternoon. My feet are getting tired.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. I call attention to the fact that we have a fresh new
Member here from the Republican response team. They are sending them in
in relays.
Yes, I would be glad to yield.
Mr. LEVIN. The Senator has eloquently pointed out the reasons why we
should not require majorities, and on that there is a difference of
opinion. I happen to share the opinion of the Senator from West
Virginia for the reasons that he has given that we should not require a
supermajority.
But the issue that I raise, the Senator from Maryland has raised, and
the Senator from Utah has raised relates to that question. It is, what
is a supermajority and whether the Vice President's vote counts? And on
that one, I think 100 of us ought to agree.
Maybe there is a disagreement as to whether or not we should have a
supermajority--and there is a disagreement--but there should be no
disagreement, there ought to be absolute unanimity on a determination
that this constitutional amendment be clear on the question as to
whether or not the Vice President can break a tie and count towards the
51 votes. We should not leave that ambiguous.
This is not a matter where there is a difference of opinion as to
whether or not a supermajority is appropriate in order to raise
revenues or not. This is a question of writing a constitutional
amendment, knowing that a question, a critical question, is left open.
It should not be left open.
Because if it is, this constitutional crisis, which the Senator from
West Virginia and the Senator from Maryland talked about, is something
that we are inviting. And we should not only not invite it, we should
close the door on any such constitutional crisis by making that clear.
That will not resolve the question that the Senator from West
Virginia has raised as to whether or not it is desirable that there be
a requirement for a supermajority, and I happen to, again, share his
view on that. But, again, we should clarify the question.
I ask unanimous consent at this point, Mr. President, that the
statement of the prime sponsor of the joint resolution in front of us,
Representative Schaefer, that appears on page H758 of the Congressional
Record of January 26 of this year, be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:

This language is not intended to preclude the Vice
President, in his or her constitutional capacity as President
of the Senate, from casting a tie-breaking vote that would
produce a 51-50 result. This is consistent with Article I,
Section 3, Clause 4, which states: ``The Vice President of
the United States shall be President of the Senate, but shall
have no Vote, unless they be equally divided.'' Nothing in
Section 4 of the substitute takes away the Vice President's
right to vote under such circumstances.

Mr. LEVIN. Mr. President, I do not have the floor, but I think it
would be very desirable for the Senator from Pennsylvania to respond,
should the Senator from West Virginia so yield.
Mr. BYRD. Mr. President, of course, I would not want to shut out from
this electrifying moment in this very illuminating debate a Member of
the ``Republican response team.''
I ask unanimous consent that my previous request include the Senator
from Pennsylvania and any other Member of the response team.
The PRESIDING OFFICER. Without objection, it is so ordered.
The Senator from Pennsylvania.
Mr. SANTORUM. I thank the Senator and I thank the Chair.
I was going to refer you to the 12th amendment that uses the same
language that is used in section 5 and section 2, which refers to the
whole number of the Senate. In one case, it says the whole number or
two-thirds of the whole number of the Senators, the same language that
we use here only we say in each House.
If you have questions about the ability of the Vice President to cast
votes with respect to this, then I suspect you have questions as to
whether the Vice President can cast votes under the 12th amendment,
because it is word for word what is put in this document.
Mr. LEVIN. If the Senator will yield, I do not have a question about
it.
The Senator from Utah, who is the principal sponsor on that side,
said that the Vice President's vote would not count. Now that is coming
from a pretty authoritative source here.
Senator Hatch said--and I was not on the floor, but I understand that
he said--two things about this question. Number one, it is an open
question. That means what it says. It is an open question, presumably
left for the courts or left for somebody to decide. But then Senator
Hatch said--it was reported to me, and I was not on the floor; I
believe the Senators from West Virginia and Maryland were here--Senator
Hatch apparently then said that, in his opinion, in his opinion, the
Vice President's vote would not count toward the 51 votes. And I think
that is what the Senator from West Virginia reflected in his statement.
Mr. BYRD. Yes.
Mr. LEVIN. So it is not the Senator from Michigan who is raising the
question--I think we ought to button down the issue--it is the
principal sponsor of the amendment here in the Senate who has rendered
that opinion.
Mr. SARBANES. Will the Senator yield to me? Because the analogy--
Mr. BYRD. Before I yield, may I point out to the Member of the
response team who just, I believe, indicated that the supermajority in
amendment No. 12 would be a parallel to the situation which we have
been discussing--namely, as the Vice President's vote would be
involved--I point out to the junior Senator from Pennsylvania, who
perhaps has not read the 12th amendment lately, that that is what that
amendment is all about. There is no Vice President.
Mr. SANTORUM. Right.
Mr. BYRD. There is no Vice President to cast a vote under the 12th
Amendment. The reason for that amendment is to provide for the election
of a Vice President by the U.S. Senate when the Vice President's seat
is vacant.
Mr. SARBANES. If the Senator will yield, that was exactly the point I
was going to make.
The Senator from Pennsylvania got up and said, ``Well, if you want to
know what this language means here of the majority of the whole number,
just refer to amendment 12.''
Now, amendment 12 has to deal with picking the Vice President. There
is not a Vice President. And it says----
Mr. SANTORUM. Does that not make it obvious.
Mr. SARBANES. It says:

The Senate shall choose the Vice President; a quorum for
the purpose shall consist of two-thirds of the whole number
of Senators, and a majority of the whole number shall be
necessary to a choice.

But the choice is picking the Vice President. It does not answer the
question that the Vice President can cast the tie-breaking vote.
Mr. SANTORUM. If the Senator will yield, I think it makes that very
point. Obviously, the Vice President is not considered part of it
because there is no Vice President. So the whole number must mean that
it is the Members of the Senate, absent the Vice President. Otherwise,
this would make no sense. I mean, I think that is the reason I used it,
because it is apparent.
Mr. SARBANES. Once a Vice President has been chosen----
Mr. SANTORUM. The Vice President is a Member of the Senate.
Mr. SARBANES. Once the Vice President has been chosen----
Mr. BYRD. He is not a Member of the Senate. The Vice President is
never a Member of the Senate.
[[Page S2799]] Mr. SANTORUM. I rest my case.
Mr. SARBANES. We take a vote----
Mr. BYRD. That is not the case.
Mr. SARBANES. Once the Vice President is chosen and we take a vote, a
50-50 vote, can the Vice President break the tie?
Mr. LEVIN. Under this amendment.
Mr. SANTORUM. If we compare it to the language in the amendment it
parallels, my opinion would be no.
Mr. LEVIN. He cannot?
Mr. SANTORUM. Correct.
Mr. LEVIN. So you disagree with Congressman Schaefer?
Mr. SANTORUM. I do.
Mr. LEVIN. Then in that case, we have the prime sponsors in the
Senate and we have the prime sponsor in the House, whose name is on top
of this constitutional amendment--this is the Schaefer amendment--we
have the sponsors here and the sponsor there in total disagreement on
an absolutely fundamental question as to whether or not the Vice
President's vote can be counted to break a 50-50 tie. And that
determines the outcome of the whole deficit reduction package last
year.
That should not be an open question. Whatever side of this issue you
are on, whether or not you believe in supermajorities or you do not, we
should not leave an ambiguity that huge in the Constitution as to
whether or not the Vice President's vote counts. And I think it ought
to be clarified. It ought to be clarified one way or the other, but it
ought to be clarified because, otherwise, it is an invitation for a
constitutional crisis.
I yield the floor and I thank my friend.
Mr. BYRD. Mr. President, I have been unable to get a question
answered here, and perhaps the Senator from Pennsylvania can answer it.
My question being: If the threat to our national security should
continue into the next fiscal year, or the next calendar year after the
year in which the joint resolution referred to in this section is
adopted by a minimajority of a majority of all the Members of the
Senate and all the Members of the House chosen and sworn, if that
threat continues, and we are in a second fiscal year does such a joint
resolution have to be passed again by both Houses?
If not, do both Houses have to waive the requirements of section 1,
which requires a three-fifths majority? Does Congress have to continue
to waive for each fiscal year during which we have the military threat?
Does that mean that every new fiscal year in which the threat
continues, we have to have three-fifths to waive the requirements of
section 1? Or does it require that every fiscal year we pass another
joint resolution requiring a majority of the total membership of both
Houses as referred to in section 5? Or does it require that both
sections be waived?
Mr. President, I ask unanimous consent that I may propound a question
to the Senator, even though I hold the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. SANTORUM. Mr. President, section 5 reads: ``The Congress may
waive the provisions of this article for any fiscal year in which a
declaration of war is in effect.'' So it would seem very obvious to me
the Congress has the availability to raise it for the fiscal year or
any subsequent fiscal year in which the war is in effect.
That is pretty much what it says.
Mr. BYRD. I am glad we are going by what the amendment says for once.
Now, what do you think it says? What does the Senator think it says?
Mr. SANTORUM. I think that is what it says.
Mr. SARBANES. I ask the Senator, what does it mean? What is your
understanding of the meaning? Would you have to have a waiver for each
fiscal year?
Mr. SANTORUM. I am stupefied that the plain reading of this language
is not apparent to the Senator from Maryland. I think it is very
serious.
Mr. SARBANES. I have to say to the Senator from Pennsylvania perhaps
I am not as quick as he is to pick up the plain language. I thought the
question was a good question. The question, as I understood it is, must
you have a waiver in each fiscal year since?
Mr. SANTORUM. It says, ``The Congress may waive in any year.''
Mr. SARBANES. For any fiscal year in which the United States is
engaged.
So, we may waive it for that fiscal year.
Mr. SANTORUM. Or next fiscal year.
Mr. SARBANES. The next fiscal year comes along. Then what?
Mr. SANTORUM. It says we may waive for any fiscal year. It does not
say we have to waive for this fiscal year. We could pass--it says ``any
fiscal year.'' It could be for next fiscal year, the one afterward, as
long as the declaration of war is in effect, we can raise for any
fiscal year.
Mr. SARBANES. So you think it means any and all?
Mr. SANTORUM. As long as the declaration of war is continuing, I
assume that is what the Congress can do.
Mr. SARBANES. What about the next sentence?
Mr. BYRD. There are two different situations there.
Mr. SARBANES. What about the next sentence? Same interpretation.
Mr. SANTORUM. Obviously, in one case we have declaration of war. That
is, a declaration of war has a certain time limit, then the declaration
of war ceases.
In this case----
Mr. BYRD. Would the Senator say that again?
Mr. SANTORUM. The declaration of war at some point ends.
Mr. BYRD. What causes it to end? What terminates a war?
Mr. SANTORUM. A signing of a treaty to end the war.
Mr. BYRD. What terminates the declaration of war?
Mr. SANTORUM. I ask the Senator, since I was not around the last time
we declared war, I assume it would be some act of Congress to end the
declaration.
Mr. SARBANES. But it was the Senator that asserted that the
declaration of war would end. How does that happen?
Mr. SANTORUM. I just responded.
Mr. BYRD. The Senator was responding to a question. His response, I
do not understand.
Mr. SANTORUM. As long as a declaration is in effect, however long
that may be, that Congress can, under this provision, waive this
amendment.
Mr. BYRD. How long was the declaration of war in World War II in
effect?
Mr. SANTORUM. I yield to the Senator from West Virginia.
Mr. BYRD. I am asking a question. I want to be informed.
Mr. SANTORUM. I do not know the answer.
Mr. BYRD. The ready response team should have all the answers.
How long was the declaration of war in World War I in effect? The war
is over. Suppose declaration of war is still in effect. What happens in
a situation like this?
Mr. SANTORUM. I think it would be apparent that at some point the
Congress would rescind the declaration of war and then this article
would no longer be operative.
Mr. BYRD. Congress did not rescind all previous declarations of war.
Why does the Senator not help me find the answer to that question?
Mr. SANTORUM. I will do my best.
Mr. SARBANES. Would the Senator address the second question? Let us
move beyond the declaration of war. What is your understanding of the
second sentence? This is not a declaration of war in which the United
States is engaged in military conflict, so declared by a joint
resolution. Would we have to get a joint resolution the following year?
Mr. SANTORUM. My opinion on that is that the--according to the plain
reading of the constitutional amendment--Congress would have to, each
year, go through the process of exempting itself from this provision
because of that conflict.
Mr. SARBANES. How can the phrase ``for any fiscal year,'' which is
identically the same phrase in sentence 1 and sentence 2, be given
diametrically opposite definitions?
You just told me that the phrase ``for any fiscal year'' in sentence
1, linked to a declaration of war, means that it can be waived for not
only the current fiscal year but fiscal years beyond that.
Now the Senator tells me in sentence 2, ``waive for any fiscal year''
means only the fiscal year in which you find yourself and not
subsequent fiscal years.
Now, how can the Senator give that phrase an entirely different
interpretation?
[[Page S2800]] Mr. SANTORUM. Let me give you the committee report
which says: ``For any fiscal year, in effect, is intended in the first
sentence of this section to require a separate waiver of the provisions
of any amendment each year.''
Mr. SARBANES. For which sentence?
Mr. SANTORUM. For the first usage.
Mr. SARBANES. In section 5.
That is not what you told me a few minutes ago.
Is that right?
Mr. SANTORUM. That is correct.
Mr. SARBANES. Which is correct then, your answer or the committee
report?
Mr. SANTORUM. I refer to the committee report.
Mr. SARBANES. So, the answer you gave me earlier is not correct?
Mr. SANTORUM. According to the committee report, that is correct.
Mr. SARBANES. Well, what is your view? Is your view the committee's
report or is your view the answer which you gave yourself just a couple
minutes ago?
Mr. SANTORUM. My view is that the committee report, having had the
time to study it longer than I, is probably the accurate view.
Mr. BYRD. Was there a minority view on this particular question in
that report?
Mr. SANTORUM. Not that I am aware. I will have someone check.
Mr. BYRD. Let me ask the Senator.
Mr. SANTORUM. By the way, I would further read that the meaning in
the second sentence, the second use, is also the same, that in every
fiscal year the Congress would have to extend this waiver.
Mr. SARBANES. I say to the Senator that is certainly a consistent
reading of the meaning ``for any fiscal year.'' At least it is being
read the same way in the second sentence as it was read in the first
sentence according to the committee report.
Now, that is not the answer the Senator was giving us because he was
giving a completely opposite view of the meaning ``any fiscal year'' in
sentence 1 and in sentence 2. But it only underscores the problems with
this amendment.
The distinguished Senator from Pennsylvania came to manage the bill
during this time period. The Senator had--I assume now it has changed--
a perception of the meaning of this proposed amendment to the
Constitution which I am now told he is withdrawing.
Mr. SANTORUM. If the Senator will yield, that is why it is very
important to have committee reports and implementing legislation that
is called for in the article; that we have implementing legislation to
clear up these kinds of doubts that may exist with respect to specific
provisions of the act.
So I suggest to the Senator that a lot of this debate is useful. In
fact, it is illuminating. I find it to be such, not just on this point,
but on many others.
But what is important to note is the ability of this Senate to come
back, as it will, and implement this act and further specify the
meanings of how this constitutional amendment will be implemented.
Mr. SARBANES. I ask the Senator from Pennsylvania, do you think that
the implementing legislation could be used to clarify the discrepancy
in view that was outlined here earlier on the floor as to whether a
Vice President has the power to break a tie? Could that be clarified by
the implementing legislation?
Mr. SANTORUM. I guess I would defer to answer on that. I do not know
whether the implementing legislation would do that or not, to be
honest. I think that would be a matter of interpretation.
Mr. SARBANES. Let me just carry the question a step further. Do you
think that implementing legislation can rewrite provisions of a
constitutional amendment?
Mr. SANTORUM. Obviously not, but they certainly can clarify points of
a constitutional amendment. Obviously, constitutional amendments,
particularly of this nature, are not meant to stand on their own. There
has to be some legislation that is going to allow this to be complied
with.
Mr. BYRD. Will the Senator allow me on that point?
Mr. SARBANES. Certainly.
Mr. BYRD. Implementing legislation may be repealed in the very same
session--for that matter, in the very same month--in which the original
legislation was enacted. Does this mean then that we are going to trust
to the hands of shifting opinions in the country and in this body the
interpretation of the amendment if we are going to do it by
implementing legislation?
Does this mean that we are going to put at risk the Nation's security
by leaving this up to the implementing legislation, which can be
changed, as I say, by even the same Senators in a subsequent year? Are
we going to place the Nation's security at risk by falling back on the
language that talks about implementing legislation?
Mr. SARBANES. Will the Senator yield?
Mr. BYRD. Yes.
Mr. SARBANES. He is making an extremely important point. Suppose one
Congress comes along and passes implementing legislation saying that
the Vice President cannot cast a tie-breaking vote. Then a new Congress
comes in and they pass implementing legislation saying the Vice
President can cast a tie-breaking vote.
I say to the Senator from Pennsylvania, I do not see how this
particular provision can bounce back and forth with the implementing
legislation. I just do not understand how that could happen. It is
obvious that a court would have to come in to decide it if it is not
decided here, and we have directly conflicting views.
Let me just read you--I do not know whether the Senator is acquainted
with what Congressman Schaefer on the House side said about this.
Mr. SANTORUM. If the Senator will yield, again, I am a little bit
perplexed. I look at, for example, section 8 powers under article I
that are given to the Congress to borrow money, to regulate commerce.
Does it say how we regulate commerce or do we leave that to
implementing legislation? And if we do change that, does that mean we
somehow violate the Constitution, or is that somehow dangerous upon our
society? The Constitution, as the Senator will tell you, is a contract
of principles, not as to how to.
Mr. SARBANES. Will the Senator yield on that very point?
Mr. SANTORUM. We continually change how to.
Mr. SARBANES. That is absolutely wrong. That is absolutely wrong. The
Constitution is very specific in describing how, in terms of the
process, decisions will be made. It is not specific about the substance
of the decision to be made, but it is very specific about how we are to
do our business. The Framers were very careful about that. They spelled
out what would be a quorum, then a majority of the quorum could pass
the legislation. It is all laid out.
I want to give you a real-life situation. A bill is before this body.
It is a controversial, closely fought bill. We take a vote on it. The
vote is 50-50, and the Vice President is sitting in the chair.
Now, it is very clear under current procedure in that circumstance,
the Vice President can cast a tie-breaking vote. It does not have to be
50-50, it can be 48-48, whatever. And I have been in this body when
that has happened, not only on the 1993 deficit reduction bill, but on
other measures as well. I have seen the Vice President in the chair
casting a tie-breaking vote.
What is the outcome in that situation?
Let me read to you what Congressman Schaefer says the outcome would
be. This is the Republican lead sponsor on the House side:

This language is not intended to preclude the Vice
President in his or her constitutional capacity as President
of the Senate from casting a tie-breaking vote that will
produce a 51-to-50 result. This is consistent with article I,
section 3, clause 4 which states: ``The Vice President of the
United States shall be President of the Senate but shall have
no vote unless they be equally divided.'' Nothing in section
4 of the substitute takes away the Vice President's right to
vote under such circumstances.

The Senator, I take it, has told us that he disagrees with that; is
that correct? That is not his view of the meaning of article 4.
Mr. SANTORUM. It is apparent from the committee report that refers
to, as I did, the 12th amendment and refers to that being similar to
what the 12th amendment would be. That would be my answer.
Mr. BYRD. In the 12th amendment there is no Vice President----
[[Page S2801]] Mr. SANTORUM. It is obvious as to what----
Mr. BYRD. To cast any kind of vote, whether it is a deciding vote or
anything else. That is why we have the 12th amendment, to fill the
vacancy in the Vice Presidency.
Mr. SARBANES. What is the reference in the committee report to which
the Senator is referring?
Mr. SANTORUM. Page 15, about three-quarters of the way down, ``the
whole number of each House.''
Mr. SARBANES. That does not answer the question. That just makes a
statement.

The whole number of each House is intended to be consistent
with the phrase ``the whole number of Senators'' in the 12th
amendment to the Constitution * * *

But that does not answer my question, since the 12th amendment to the
Constitution was a situation in which there was no Vice President. It
addresses a situation in which you are choosing a Vice President, not
the situation after which the Vice President has been chosen. And once
the Vice President is chosen under article I, section 3, clause 4 of
the Constitution, he has a vote in an equally divided situation.
So what the Senator from Pennsylvania is doing is drawing an analogy
from a situation that governs circumstances in which a Vice President
has not been picked and you are picking a Vice President. It does not
then answer the question of the vote-casting power of the Vice
President once he has been chosen.
Mr. SANTORUM. If the Senator will yield, I think the Senator from
West Virginia, in fact, helped me answer this question when, if you
look at, again, what the committee report says, ``The whole number of
each House is intended to be consistent with the phrase `the whole
number of Senators * * *'''
The Vice President is not a Senator. I quote the Senator from West
Virginia, just a few minutes ago. So it would be obvious to any reader
that a whole number of Senators must be 51, assuming there are 100
Senators.
Mr. SARBANES. I just make this observation to my friend.
You must be desperate about the 1993 legislation to be so driven that
you want to deny the Vice President of the United States his tie-
breaking power to cast a vote which has been in the Constitution from
the very beginning.
Now, I know Members on the other side are unhappy about that
legislation, but it seems to me it is carrying your differences over
the substance of a piece of legislation much too far when you start
tinkering, really assaulting, the Constitution of the United States in
this fashion. We end up getting two completely differing
interpretations of the application of this provision as interpreted by
the lead House Republican sponsor of this measure and by the answers
that I am now receiving in the Chamber of the Senate.
Mr. BYRD. Mr. President, I ask unanimous consent that notwithstanding
the fact that I have the floor, I may propound a question to another
Senator without losing my right to the floor.
The PRESIDING OFFICER. Without objection, it is so ordered.
Mr. BYRD. Let me ask the distinguished Senator from Pennsylvania, in
a situation in which in a given fiscal year the United States is
engaged in military conflict which causes an imminent and serious
military threat to national security, and that threat continues into
the next fiscal year, is it section 1 that would have to be waived in
the subsequent fiscal year or years? Would section 1 have to be waived
in the subsequent fiscal year or years?
Mr. SANTORUM. I am not too sure--if the Senator is asking for an
answer, I am not too sure I understand what the question is. Is he
suggesting that the second year would be treated differently than the
first year of the conflict?
Mr. BYRD. Why would it not? It is a new fiscal year. And the
constitutional amendment on the balanced budget requires that the
outlays not exceed receipts in any fiscal year. So we are into a new
fiscal year. And yet the threat to the security of this country is
still in effect. What do we do? Do we have to waive section 1 again in
the new fiscal year?
Mr. SANTORUM. According to the committee report, a joint resolution
of Congress would be required in order to have this provision be
eligible to be waived, this amendment to be waived.
Mr. BYRD. The Senator is talking about two things there. The Senator
is talking about the joint resolution in section 5 that would have to
be enacted into law which would require a majority of the whole number
of Members in each House. But section 1 requires a vote, in order to be
waived, of three-fifths of the whole number of each House.
Mr. SANTORUM. And section 5 provides an exception to section 1.
Mr. BYRD. To section 1.
Mr. SANTORUM. In other words, section 1 binds us with the exception
of, as outlined in section 5, when we have a declaration of war or----
Mr. BYRD. But my question is, if that military threat continues into
a second fiscal year----
Mr. SANTORUM. We would be required then to pass a separate waiver of
this amendment.
Mr. BYRD. Congress would have to pass a joint resolution in each and
every fiscal year that ensued following the fiscal year of the first
joint resolution?
Suppose there is not a declaration of war in effect. The first
sentence of section 5 addresses the situation in which there is a
declaration of war. Now, I will read it:

Congress may waive the provisions of this article--

Meaning section 1----

for any fiscal year in which a declaration of war is in
effect.

Now, the country has fought three major wars and engaged in several
military conflicts during the past 48 years without declaring any war.
Suppose there is not a declaration of war in effect. Then let us see
what it says.

Provisions of this article may be waived for 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 joint resolution,
adopted by a majority of the whole number of each House,
which becomes law.

Now, I have two or three questions I wish to ask the Senator. I will
ask them singly or I will ask them en bloc.
One. Does this mean that in each subsequent fiscal year--let us
imagine that a military threat develops in August, which is only 2
months preceding the close of the fiscal year. A threat is imminent.
The Commander in Chief asks for a resolution, and Congress,
notwithstanding the rules providing for unlimited debate in the United
States Senate, quickly passes such a joint resolution for that fiscal
year.
Then let us imagine that the threat continues over into the next
fiscal year, January, February, March, April. Is another joint
resolution required by the Congress?
Third question. Suppose that the response of the Congress to the
President's request is favorable and the President launches his planes
and ships, his troops, and vast expenditures of money are entailed. The
fiscal year ends. The outlays exceed the receipts. The threat continues
throughout the next fiscal year. There is no declaration of war but
expenditures run into the billions of dollars--billions. What are we
going to do?
This amendment says outlays shall not exceed receipts in any fiscal
year. What are we going to do about the fact that the deficits rose
greatly in the previous fiscal year, the one in which the threat first
made itself clear and the deficit of the second year amounted to
billions of dollars? What are we going to do? And suppose that passions
within the Congress and in the country in the early-on support for the
war dwindled away and left the Commander in Chief out there with his
men in far-flung seas and lands, with their lives on the line. What do
we do? No war has been declared.
Do we require that in order to waive--in order to waive section 5
there must be a majority of the Members elected in both bodies to
waive. And you do not have that majority. What are you going to do? You
have already run in excess, many--$10 billion, $15--who knows what? It
cost billions, the Persian Gulf War, what do you do, Senator?
Mr. SANTORUM. I would answer the question----
Mr. BYRD. Are you going to raise taxes?
[[Page S2802]] Mr. SANTORUM. I would answer that question the same
as I would with any war. The Congress has the responsibility of funding
the war and appropriating the dollars. The President cannot continue to
execute a war if the Congress does not provide the funds to do so by a
majority vote. So we already have, already, an existing requirement
that Members of Congress vote by a majority to fund the war.
So I guess I do not see the complication. If we are going to go ahead
by a majority vote and fund the war through an appropriations process,
and we have the support to do that, why would we not continue very
consistently, almost an afterthought, to go ahead and waive this
provision of the Constitution, recognizing the imminent threat to our
national security?
Mr. BYRD. Except that a majority is not a majority is not a majority,
under this new amendment to the old Constitution. A majority under the
current Constitution is not a majority under this constitutional
amendment to balance the budget.
So the deficits have been increased, the debt has gone through the
stratosphere, and we have people overseas with their lives on the line.
What are we going to do?
You have an administration under the control of one party and the
leadership of the Congress under the control of the other. You are
putting our Nation's security in peril----
Mr. SANTORUM. Senator, what you are suggesting----
Mr. BYRD. Requiring a mini-supermajority for such a critical time.
Mr. SANTORUM. Is what the Senator is suggesting that this body or the
other body would pass appropriations bills to fund the conflict, our
participation in the conflict, and then not come back and waive the
requirement for a balanced budget to allow us to do that? Is that what
the Senator is suggesting?
Mr. BYRD. I am not suggesting it. The Senator----
Mr. SANTORUM. Same vote----
Mr. BYRD. The amendment the Senator is so avidly supporting requires
that in each fiscal year----
Mr. SANTORUM. As we do with appropriations----
Mr. BYRD. Outlays shall not exceed receipts.
Mr. SANTORUM. Except----
Mr. BYRD. Suppose that in order to make that work, we had to have a
tax to fund this threat--to protect us against the threat to the
security of the Nation. I have heard Senators on that side of the aisle
say they will not vote for a tax, ever. What about the deficits that
have already been run up in the previous fiscal years, for which a
majority of the Members chosen and sworn have voted to waive? Does that
mean we have to go back and put on a retroactive tax? How would the
Senator feel about that?
Mr. SANTORUM. How I would feel about it is, as you know, every year
we have to appropriate money for the Defense Department. Particularly
in time of war we would have to appropriate money through an
appropriation process; we would have to go through both sides, it would
have to be passed by a majority vote. In addition, we have put an
additional hurdle--yes, of this section--which requires a simple
majority, not a three-fifths or constitutional majority, but a majority
of the whole number of each House----
Mr. BYRD. That is not a simple majority.
Mr. SANTORUM. A majority of the whole number of each House.
Mr. BYRD. Which is not a simple majority.
Mr. SANTORUM. Which would be slightly higher, possibly slightly
higher burden in the House, and potentially higher, depending on
interpretation, vote here in the Senate. But certainly consistent with
the passage of the appropriations bill.
Mr. BYRD. Slightly higher, but it does not necessarily mean it would
be slightly easier.
Would the Senator recommend that in order to deal with the deficits
that had been built up as a result of the waiver of the article in
previous fiscal years--does he suggest there might have to be a
retroactive tax?
Mr. SANTORUM. There is nothing here in this constitutional amendment
that requires us to pay back deficits that have been incurred since the
enactment of this constitutional amendment, that have occurred as a
result of a waiver of this amendment. So there is no requirement in the
constitutional amendment to require the payment of existing debt.
Mr. BYRD. Oh, there is not? There is not?
The other day, the Senator from Pennsylvania stated with reference to
dealing with the deficit for a year that has ended, the Senator stated:
``We could, as has been done here, retroactively tax.'' I do not
believe the Senator would have made that statement without having given
it long and serious thought. So the question that naturally occurred to
me today, again, is would the Senator be willing, in that situation, to
vote for a retroactive tax? We are talking about a fiscal year or
fiscal years that have ended and the estimate for the deficits for that
year or those years have gone wrong by virtue of the sudden imminence
of a serious military threat to our national security.
Is the Senator willing--he would not be willing, I do not believe, to
vote for a package to reduce the deficits, such as the one we enacted
in 1993. But in a situation like this, in which the Nation's security
is imperiled, would he be willing to vote to increase taxes? I heard a
Republican Senator stand over there on the floor and say he would not
vote to increase a tax, ever.
I do not believe the Senator from Pennsylvania's feet are in such
concrete. But I am just wondering, in the light of what he said about a
retroactive tax the other day, whether or not he would suggest that, in
a situation like this? In order to go back and wipe out those deficits?
Mr. SANTORUM. Would I in fact vote for a retroactive tax? If we
needed to tax in order to meet the needs of war, I think we would have
broad bipartisan support, as we would--as we do now, with
appropriations bills.
Mr. BYRD. And he would vote for a retroactive tax?
Mr. SANTORUM. I do not know what the need would be for a retroactive
tax but if that is what would be required, I would certainly consider
it, if our country was at war. Certainly.
Mr. BYRD. How would the taxpayers of this country ever know how to
fill out an income tax form, if we are going to go back and enact
retroactive taxes? How are they going to know what the tax requirements
are when they fill out their income tax forms and whether they may have
to pay back taxes?
Mr. SANTORUM. That was our argument against the retroactive tax in
1993.
Mr. BYRD. But the other day--I am talking about the Senator's
statement the other day, when he suggested there might be a retroactive
tax.
SANTORUM. I said that is an option available to future Congress, if
necessary.
Mr. BYRD. And I am asking the Senator.
Mr. SANTORUM. I would not recommend that option.
Mr. BYRD. But you would be willing----
Mr. SANTORUM. In a time of war, Senator, I would be willing to do
things that otherwise I would not be willing to do at other times.
Mr. BYRD. What I am concerned about is in a time of serious military
threat to this country, under this amendment a majority of the Senators
and House Members elected and sworn would be required in order to waive
the requirements of this amendment, under such dire extremities, and
could not do so by a simple majority vote.
May I say, for the information of the Senate, I have an amendment
which is at the desk.
I would be willing to agree to a vote on that amendment on the day
that the Senate returns following this weekend--be willing to agree to
a vote on or in relation to the amendment. I say ``in relation''
because the amendments around here to this constitutional amendment do
not get up-or-down votes. Motions to table are made. There have been
several amendments offered and debated to this constitutional
amendment. There have been no up-or-down votes, and all of the
amendments succumbed to the motion to table. That certainly is within
the right of Senators to move to table.
I would be willing to offer my amendment, and it will be germane, if
cloture is invoked. I would be willing to offer that amendment today,
and agree to a time on it for debate and vote on or in
[[Page S2803]] relation to it, which includes the tabling motion, to
take place on next Wednesday. I have not offered the amendment yet. So
it cannot be tabled today. But I can offer it. So if the manager of the
bill would like to respond, I will yield.
Mr. HATCH. Mr. President, will my dear friend yield?
Mr. BYRD. Yes. I am happy to yield.
Mr. HATCH. As I understand it, the Senator from West Virginia is
willing to lay down his amendment as long as it is not tabled today,
and willing to have the vote on it at a time certain when we get back
on Wednesday.
Mr. BYRD. Yes.
Mr. HATCH. Can the Senator tell me what time the distinguished
Senator would desire? Could we keep it short?
Mr. BYRD. Let me modify my request. Let me offer this modification,
or possible modification. I believe a unanimous-consent order was
entered for the recognition of the Senator from West Virginia
immediately upon the disposition of the cloture vote today to call up
amendment No. 252, and that amendment would eliminate the three-fifths
supermajority contained in section 1.
I would like to have the privilege of calling up that amendment,
laying it down today, or calling up instead an amendment which is
equally germane, in the event cloture is invoked, to deal with section
5, which the Senators from Maryland and Michigan and I and other
Senators have been discussing this afternoon--with the understanding
that there would be no tabling motion offered today, and that the vote
on or in relation to that amendment, whichever of the two it is, would
not occur until next Wednesday.
There is a cloture vote, I believe, that will occur, possibly even
two of them, on that day. As I understand it, the majority leader laid
down two cloture motions last night--say 2 hours of debate, equally
divided. Of course, if cloture is invoked, we will operate under the
rule.
Mr. HATCH. Will the Senator be willing, if our side takes only 15
minutes, to reduce that time to an hour? He would almost have the same
amount of time as 2 hours equally divided. It would be 15 minutes less.
But I would be 45 minutes less.
Mr. BYRD. The Senator is most generous.
Mr. HATCH. I have tried. What I am trying to do with my dear
colleague is get moving on the amendment process, face whatever we have
to face on this amendment, and try to bring this matter to a close
sometime within the near future so that we can alleviate delays as much
as possible. We are willing. As the Senator from West Virginia can see,
we have been willing to take very little time on our side and allow
plenty of time on the opposite side of this issue as an accommodation
to try to move things along.
Mr. BYRD. Mr. President, accommodations do not matter to this
Senator----
Mr. HATCH. I understand that. It is just a request.
Mr. BYRD. --when it comes to amending the Constitution. There is
probably too much accommodation around here, in any event. But,
nevertheless, it is characteristic of the distinguished Senator to want
to accommodate.
What I was amused about was the offer to let the proponents of my
amendment have 1 hour of debate and the opponents have 15 minutes. That
is an indication to me that there is not much serious thought being
given to my amendment. It is going to suffer the same fate as have
other amendments around here--that they have been debated a little bit,
and a motion to table is then made. They are not accorded serious
debate.
Mr. HATCH. Will the Senator yield on that?
Mr. BYRD. I am not directing this at the Senator. I am simply saying
that it says something about the debate on this constitutional
amendment.
Mr. HATCH. Will the Senator yield?
Mr. BYRD. Yes.
Mr. HATCH. No, it does not, because the amendment the Senator is
going to call up we are fully cognizant of. We spent a lot of time
analyzing it. We believe we can answer it in a reasonable period of
time. I feel we can answer it in 15 minutes. If we cannot, I would be
happy to--but I think we can.
On the second amendment, I do not know what amendment that would be.
So we might have to grant some more time on that. But our problem is
not so much that we do not want to give enough time on this. We have
been giving hours and hours. We have given. It is now 14 days of Senate
floor time; long hours. I am not complaining. I am willing to be here
as long as the distinguished Senator wants to debate any of these
issues. But we have spent 14 days, which is 3 more than was spent on
any balanced budget amendment in history.
Like I say, I am willing to spend more, but it is to accommodate my
colleagues who are on the other side of this issue. So it is not a
matter of giving a short shrift. We believe some of the amendments in
the past have not deserved a lot of consideration from a constitutional
standpoint. And we felt as though we had full debate, even with the
limited amount of time we have allocated to ourselves, and we felt as
if we made the case enough. But so far, we have been successful in
tabling motions.
One last thing. Every amendment that has been brought forth has been
a significant amendment, in my eyes.
I have wondered why some were brought forth, perhaps, but I still
hope that they are substantively significant amendments. We cannot
constitutionally answer some of them in less time than it takes for
others. We are hopeful that on the amendment that we believe the
Senator will call up before the end of today we can shorten the time.
If the Senator wants 2 hours equally divided, I am not sure that the
majority leader would not grant him that. But I am trying to
accommodate the Senate and accommodate the opponents so they can bring
up their amendments and yet still make sure that the record is made
constitutionally on these important issues.
I add that the distinguished Senator from West Virginia always brings
up important, substantive issues that are important not only to himself
but to others as well, and they are certainly important to me. I admire
and appreciate his desire to at all times uphold the Constitution and
at all times do what is right, in his view, under the Constitution.
That is all we are trying to do here--to do what is right.
We have spent 14 days of full Senate floor time, and compared to
other balanced budget amendment debates, we have had far less
amendments. So we have given adequate time to these amendments, and we
have spent far more time than on prior amendments. But we cannot be
governed just by prior debates. I am happy to spend whatever time it
takes. I am sure the Senator understands the majority leader is asking
me to try to move it along as fast as I can.
Mr. BYRD. Let me say----
Mr. HATCH. I am trying to accommodate the Senator. I will have to ask
the majority leader. I felt like it was an attempt to accommodate by
giving the Senator most of the time, almost as much as he would get
with 2 hours equally divided, while we would try to make our
arguments--as feeble as they might be--in a shorter time.
Mr. SARBANES. Why could the Senator not--if the request was 2 hours
equally divided and the Senator's suggestion is that the Senator from
West Virginia have 1 hour and he have 15 minutes, why would the Senator
not agree to the 2 hours and not use all his time if it was not
necessary in the debate? I mean, give the Senator from West Virginia
time to debate at the time, and you might discover on that occasion
that you might need more than 15 minutes. You can always yield back
your time.
Mr. HATCH. This is not a demand. This is a suggestion. If the Senator
from West Virginia does not agree----
Mr. SARBANES. I was just seeing a way where you could get where you
want to go.
Mr. HATCH. Anything that will move the debate forward I am happy to
try to do. In any event, we will have to see what the majority leader
wants to do next Wednesday. We have that cloture vote, and I am not
sure when he is going to have that cloture vote; I am not aware. But we
will have to put in a quorum call and decide. I understand the
Senator's request, that he would like to bring up one of two
amendments----
Mr. BYRD. At this point.
[[Page S2804]] Mr. HATCH. Could the Senator inform us what the other
amendment is? I believe you said it is No. 252.
Mr. BYRD. I said it pertained to section 5. That has been discussed
all afternoon here.
Mr. HATCH. I thought you mentioned there might be two amendments and
you would make your choice between the two.
Mr. BYRD. I mentioned amendment No. 252 and an amendment No. 256.
Amendment No. 256 deals with section 5. I believe I have 7 or 8 or 9 or
10 amendments at the desk.
Mr. HATCH. You would choose whichever one you want, but there would
be no amendments to the amendment in order by either side?
Mr. BYRD. Well, if cloture is invoked, I suppose if I were able to
qualify, or if other Senators were able to qualify, they could have
second-degree amendments at the desk.
Mr. HATCH. Unless we agree to a time agreement with those terms. That
is what I am asking.
Mr. BYRD. I am not quarreling with the hour that I am to be given. I
have had a good bit of time this afternoon. But I think it is
indicative of the lack of interest on the part of the proponents in
seriously trying to improve the constitutional amendment that is before
the Senate when they say, well, we will take 15 minutes, you can have
your hour. I know what is going to happen; the amendment is going to be
tabled. That is certainly the right of the manager of the resolution,
or the leader, or any other Senator.
Mr. HATCH. Will the Senator yield?
Mr. BYRD. Yes.
Mr. HATCH. Surely, I do not believe the Senator is suggesting that I
am not taking his amendment seriously or that I have not taken any
amendment seriously, is he? I have taken them all extremely seriously.
This is the Constitution we are working on and nobody takes it more
seriously than the distinguished Senator from West Virginia, unless it
is the Senator from Utah. I would not claim to take it more seriously
than the Senator, but I do not think anybody takes it more seriously
than either of us. I will try to do my best to answer.
Mr. SARBANES. If the Senator will yield, can I be included in that
duo, to make it a trio of people who take the Constitution seriously?
Mr. HATCH. We just do not feel that people on the east coast--I am
kidding. Yes.
Mr. SARBANES. Let us make it a trio.
Mr. HATCH. Let us make it 100 of us. We are all serious. The fact of
the matter is let us see what we can do to get Senator Dole to resolve
this.
Will the Senator yield for a unanimous-consent request?
Mr. BYRD. Yes.

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