[Congressional Record Volume 141, Number 31 (Thursday, February 16, 1995)]
[Senate]
[Pages S2806-S2808]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                             MAJORITY RULE

  Mr. PELL. Mr. President, I rise in support of the amendment offered 
by the distinguished and learned Senator from West Virginia [Mr. Byrd] 
to amend the proposed constitutional amendment to allow a majority, 
rather than a supermajority to determine when a deficit can be 
incurred.
  The concept of majority rule is so deeply embedded in our society and 
in almost every organized group proceeding--from fraternal and social 
groups to corporations large and small and government at the village, 
county, city, and State level--that many Americans might be very 
surprised to realize the extent to which the Congress of the United 
States is sometimes ruled by a minority, and could become more so in 
the future.
  We have before us the balanced budget amendment which contains not 
just one but two supermajority requirements--one requiring a three-
fifths vote of the entire membership of each House to permit outlays to 
exceed receipts and the other a three-fifths vote of the entire 
membership of each House to increase the public debt limit.
  And we may soon have before us a line-item veto proposal which would 
subject congressional disapproval of a rescission to a two-thirds 
supermajority veto override, as opposed to an alternative plan under 
would a simple majority could block a rescission.
  If approved, these supermajority requirements would join others 
already in place: the Senate cloture rule, the new rule of the House of 
Representatives on votes of that body to raise income taxes, and the 
statutory supermajority requirement for waiving points of order under 
the Balanced Budget and Emergency Deficit Control Act of 1985, better 
known as Gramm-Rudman-Hollings.
  Mr. President, these flirtations with supermajorities are leading us 
astray from the apparent intent of the wise men who wrote the 
Constitution two centuries ago. For them the principle of majority rule 
was so self-evident that they apparently saw no need to state it 
explicitly.
  Since the Constitution provides for supermajorities only in specific 
instances--such as overriding vetoes, Senate consent to treaties, 
Senate verdicts on impeachment, expulsion of Members, determination of 
Presidential disability and amending the Constitution itself--it seems 
clear that the Framers intended that all other business should be 
transacted by a majority.
  And since the Constitution gives the Vice President the power to 
break ties when the Senate is ``equally divided,'' Framers again 
evidenced a clear intent that business was to be transacted by a 
majority. We carry forward that intent in the structural organization 
of Congress itself, whereby the party that controls 50 percent plus one 
seat assumes control.
  The time may be coming when the only way to prevent further violence 
to the Framers intent will be to enshrine this most basic principle of 
governance--majority rule itself--as a constitutional provision.
  Mr. President, I offer these reflections today from the vantage point 
of 34 years service in this body. As I stated here a few days ago, I 
have cast 327 votes for cloture during those years, so I am no stranger 
to the impact and consequences of a supermajority requirement in the 
Senate.
  I would point out, in that regard, that cloture by majority rule 
would not cancel out rule XXII of the Senate--it would simply lower the 
margin for invoking cloture to the threshold envisioned by the Founding 
Fathers for the transaction of business. And we should make no mistake 
about the fact that the rules of proceedings now have such sweeping 
substantive effect that they do in fact constitute an important element 
in the business of the Senate.
  Mr. President, in the haste to fulfill the expectations and promises 
of this new Congress, many of which are of great merit, we must take 
special care to preserve basic principles of our democracy which may be 
brushed aside in the rush to reform. The principle of majority rule is 
the basic cornerstone of the edifice, whether it applies to rules of 
proceedings or the substance of legislation. It must be preserved and 
protected from all assaults. Perhaps the time is coming when it too 
should be enshrined in the Constitution.
  I ask unanimous consent that three articles entitled ``The Three-
Fifths Rule: A Dangerous Game'' by David Broder, ``Super-Majority 
Simple-Mindedness'' by Lloyd N. Cutler, and ``On Madison's Grave'' by 
Anthony Lewis, be printed in the Record.
  There being no objection, the articles are ordered to be printed in 
the Record, as follows:

                [From the New York Times, Jan. 30, 1995]

                           On Madison's Grave

                           (By Anthony Lewis)

       Boston.--``Miracle at Philadelphia,'' Catherine Drinker 
     Bowen called her book on the Constitutional Convention of 
     1787. And it was a political miracle. The delegates produced 
     a document that has ordered a huge country for 200 years, 
     balancing state and nation, government power and individual 
     rights.
       The Constitution has been amended 27 times. Some of the 
     changes have been profound: the Bill of Rights, the end of 
     slavery. But none has altered the fundamental structure, the 
     republican systems designed by James Madison and the others. 
     Until now.
       Now the House of Representatives has approved an amendment 
     that would make a revolutionary change in the Madisonian 
     system. It is call the Balanced Budget Amendment. A more 
     honest name would be the Minority Rule Amendment.
       The amendment does not prohibit unbalanced budgets. It 
     requires, rather, that a decision to spend more in any fiscal 
     year than anticipated receipts be made by a vote of three-
     fifths of the whole House and Senate. The same vote would be 
     required to increase the debt limit.
       [[Page S2807]] The result would be to transfer to 
     minorities effective control over many, perhaps most, 
     significant legislative decisions. For the impact would not 
     be limited to the overall budget resolution. Most legislation 
     that comes before Congress bears a price tag. If a bill would 
     unbalance a budget, a three-fifths vote would be required to 
     fund it.
       In short, a minority of just over 40 percent--175 of the 
     435 representatives, 41 of the 100 Senators--could block 
     action. It takes no great imagination to understand what is 
     likely to happen. Members of the blocking minority will have 
     enormous power to extract concessions for their votes: a 
     local pork project, a judgeship for a friend. * * *
       Just think about the debt-ceiling provision. Even with the 
     best of intentions to stay in balance, the Government may 
     find itself in deficit at any moment because tax receipts are 
     lagging. Then it will have to do
      some short-term borrowing or be unable to meet its 
     obligations. Instead of a routine vote for a temporary 
     increase in the debt ceiling, there will be a session of 
     painful bargaining for favors.
       The amendment is also a full-employment measure for 
     lawyers. Suppose the figures that produce a balanced budget 
     are suspect, or suppose the demand for balance is ignored. 
     How would the amendment be enforced? Sponsors say it would be 
     up to the courts. So this proposal, labeled conservative, 
     would turn intensely political issues over to judges!
       It is in fact a radical idea, one that would subvert 
     majority rule and turn the fiscal debates that are the 
     business of democratic legislatures into constitutional and 
     legal arguments. How did a conservative polity like ours ever 
     get near the point of taking such a step?
       The answer is plain. The enormous Federal budget deficits 
     that began in the Reagan years have frightened us--all of us, 
     conservative and liberal. We do not want our children and 
     grandchildren to have to pay for our profligacy. We are not 
     strong-minded enough to resist deficit temptation, so we are 
     going to bind ourselves as Ulysses did to resist the lure of 
     the Sirens.
       The binding would introduce dangerous economic rigidities 
     into our system. In times of recession government should run 
     a deficit, to stimulate the economy. But the amendment would 
     force spending cuts because of declining tax receipts, 
     digging us deeper into the recession.
       The rigidities of the amendment would also inflict pain on 
     millions of Americans. The target year for balancing the 
     budget, 2002, could not be met without savage cuts in middle-
     class entitlements such as Social Security and Medicare.
       ``It's a bad idea whose time has come,'' Senator Nancy L. 
     Kassebaum, Republican of Kansas, said. ``It's like 
     Prohibition; we may have to do it to get it our of our 
     system.''
       If someone as sensible as Nancy Kassebaum can succumb to 
     such counsels of despair, we have truly lost Madison's faith 
     in representative government. Madison knew that majorities 
     can go wrong; that is why he and his colleagues put so many 
     protections against tyranny in their Constitution. But they 
     also left government the flexibility to govern.
       Their design, the miracle that has sustained us for 200 
     years, is now at risk.
                                                                    ____

                    Super-Majority Simple-Mindedness

                          (By Lloyd N. Cutler)

       The Republican majority has proposed amending House Rule 
     XXI to require the affirmative vote of three-fifths of the 
     members present to pass a bill ``carrying a federal income 
     tax rate increase.'' If all 435 members show up, 261 votes 
     would be needed for passage. As Post columnist David Broder 
     and Rep. David Skaggs (D-Colo.) have already observed, such a 
     rule would be unconstitutional. Even if it were 
     constitutional, it would still be unworkable.
       It would be unworkable because tax bills usually contain 
     multiple provisions reducing some rates of tax, increasing 
     other rates and adjusting the base numbers--e.g., wages, 
     profits and capital gains less various credits, exemptions 
     and deductions--to which these rates are applied. Almost 
     every two-year Congress enacts major tax revision laws to 
     close loopholes, correct inequities, adjust rates, hold down 
     the budget deficit and manage the economy for noninflationary 
     growth.
       If the rules are changed to require a three-fifths 
     affirmative vote, it may not be practicable to pass any major 
     tax bill. Any such bill is bound to contain some provisions 
     that can be called tax rate increases. What about a tax bill 
     that reduces rates for incomes below, say, $200,000 and 
     raises rates for incomes above that figure? What about tax 
     bill provisions eliminating charitable or home mortgage 
     interest deductions, or reducing the allowed exemptions for 
     dependents or lengthening the required holding period for 
     long-term capital gains? Any one of these would have the same 
     effect on many taxpayers as an increase in income tax rates. 
     As a result, the proposed three-fifths requirement could well 
     apply to any major income tax revision bill that follows 
     adoption of the proposed rules change.
       Let us suppose that a stubborn minority of 175 members will 
     be mustered to prevent a three-fifths majority and thus 
     defeat any bill including some income tax increases. Let us 
     also suppose that a simple majority (218 if all 435 are 
     present) will vote against an amendment that eliminates any 
     such increase. There is still a budget deficit to contend 
     with, and 218 members may think that a broad reduction in 
     income tax rates should be at least partially offset by some 
     tax increases. In that event, no major tax bill could be 
     passed at all, and the government would be unable to make 
     needed changes in national fiscal policy.
       With the House floor debate on the proposal about to begin, 
     it may also be useful to spell out the main reasons why a 
     super-majority requirement for the vote on passage of a bill 
     is unconstitutional. In United States v. Ballin, decided a 
     century ago, the Supreme Court said that a simple majority 
     governs ``all parliamentary bodies,'' except when the basic 
     charter requires some form of super-majority, which our 
     Constitution does in five cases (plus two added by subsequent 
     amendments) and no others. The seven exceptions are: the 
     overriding of a presidential veto, the Senate's consent to a 
     treaty, the Senate's verdict on an impeachment, the expulsion 
     of a senator or congressman, an amendment of the 
     Constitution, the 14th Amendment vote on removing the 
     disqualification for office of participants in a rebellion 
     and the 25th Amendment vote on whether to allow a disabled 
     president to resume his office. All of these are special 
     cases, not involving the mere passage of a bill or resolution 
     for presentation to the president.
       Except in these cases, the Framers were against allowing a 
     minority of either house to block legislative action. That is 
     the reason why Article I, Section 5, states that ``a Majority 
     of each [house] shall constitute a quorum to do Business.'' 
     As James Madison explained, the Framers rejected a proposal 
     that a super-majority be required for a quorum because: ``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.'' (The Federalist 
     Papers, No. 58.)
       The vote of the House on whether to
        pass a bill is certainly the doing of ``Business.'' And 
     contrary to the Framers' intent, a super-majority 
     requirement would certainly give a minority the power to 
     rule over such business.
       Another constitutional provision confirms this 
     understanding of the Framers. Article I, Section 3, states 
     that the vice president shall be the president of the Senate, 
     ``but shall have no vote unless they be equally divided.'' 
     The Framers must have intended that in the Senate at least, a 
     simple majority was sufficient to pass a bill. The Federalist 
     Papers strongly support this view. According to Hamilton, the 
     vice president was given the tie-breaking vote in the Senate 
     ``to secure at all times the possibility of a definitive 
     resolution of that body.'' (Federalist No. 68.) There is no 
     logical reason why the Framers would have thought differently 
     about the House. And a ``definitive resolution'' of the House 
     could not be ``secured'' under the proposed three-fifths 
     rule.
       Proponents of a super-majority requirement will make two 
     points in rebuttal. One is to say that they are following a 
     precedent of Senate Rule XXII, which has long required super-
     majority votes to close debate and proceed to a vote on a 
     bill or an amendment of a Senate rule. As I have argued on a 
     previous occasion, Rule XXII itself is constitutionally 
     suspect. But even if Rule XXII passed constitutional muster, 
     that would not save the proposed House rule. It applies to 
     the up-or-down vote on a bill, while Senate Rule XXII, as its 
     defenders take pains to point out, applies only to a 
     procedural motion to close debate on a bill. Here is arch-
     defender George Will, writing on this page in April 1993:
       ``The Constitution provides only that, other than in the 
     five cases, a simple majority vote shall decide the 
     disposition by each house of business that has consequences 
     beyond each house, such as passing legislation or confirming 
     executive or judicial nominees.''
       Will Newt Gingrich flout George Will?
       The proponents' second point will be that the Gramm-Rudman-
     Hollings Act includes Senate and House rules changes that 
     require a super-majority to pass any bill that ``breaks'' a 
     budget law or resolution previously enacted. This provision 
     is also constitutionally suspect, but at least it lacks the 
     critical vice of making it impossible to enact any budget 
     resolution in the first place. This still requires only a 
     simple majority.
       The biggest question of all is why a majority party with 
     230 of the 435 seats would want to adopt a super-majority 
     rule requiring 261 votes to pass a tax bill. Such a rule 
     could prevent the Republicans from passing a major tax bill 
     favored by a simple majority it could readily muster, even 
     though it might be unable to muster a super-majority of 261. 
     One is tempted to conclude that the present majority party 
     does not expect to keep its majority for very long.
       The Republicans have also proposed an even more egregious 
     change in House Rule XXI, one that would prevent the House 
     from even considering any measure that would retroactively 
     increase tax rates, even if three-fifths of the members were 
     in favor. This would deprive the House, and therefore the 
     entire Congress, of its most fundamental express power under 
     the Constitution, the power to lay and collect revenues 
     including taxes on income. It would also have the effect of 
     overruling the numerous Supreme Court decisions upholding the 
     constitutionality of retroactive tax laws, subject only to a 
     due-process standard.
       [[Page S2808]] Both of these proposed rules changes are so 
     manifestly unconstitutional that they should not be adopted. 
     If the Republicans use their majority to adopt them anyway, 
     the courts would have ample reason to set them aside.
                                                                    ____

               [From The Washington Post, Dec. 18, 1994]

                The Three-Fifths Rule: A Dangerous Game

                          (By David S. Broder)

       Among many useful and well-designed reforms proposed by the 
     new Republican majority in the House, one suggested change 
     bespeaks neither confidence nor foresight. It is the proposal 
     that future income tax rate increases would require a three-
     fifths vote for passage.
       The purpose is plainly to make it harder for Congress to 
     boost taxes. Since revenue measures must originate in the 
     House of Representatives, the three-fifths, rule would hamper 
     future majorities in both the House and Senate from enacting 
     such measures.
       Some question the constitutional propriety of such a rule. 
     Rep. David Skaggs (D-Colo.) has circulated a letter to his 
     colleagues arguing that ``the principle of majority rule has 
     governed this nation for over two centuries and is 
     fundamental to our democracy.'' Skaggs asserts that the 
     three-fifths rule is unconstitutional. Bruce Ackerman, a 
     professor of law and political science at Yale, has expressed 
     the same view in a New York Times op-ed article. Common Cause 
     and congressional scholar Norman Ornstein also have taken up 
     that side of the argument.
       Others disagree, Rep. Jerry Solomon (R-N.Y.), who will be 
     the new chairman of the Rules Committee, argues that when the 
     Constitution says that ``each house [of Congress] may 
     determine the rules of its proceedings,'' the authority is 
     intentionally broad. Lawyers and experts inside congress and 
     out, to whom I put the question, say it would be difficult to 
     predict how the courts would regard such a rule--or even 
     whether they would accept jurisdiction if its 
     constitutionality were challenged.
       The experts I consulted agree that there is no precedent 
     for Congress requiring a supermajority for final action on 
     any measure, except where specified by the Constitution. The 
     Constitution says it takes a two-thirds majority to override 
     a presidential veto, ratify a treaty, remove an official from 
     office, expel a representative or senator or propose an 
     amendment to the Constitution.
       The other instances in which Congress itself has required 
     more than a majority for some action all involve procedural 
     matters. The House requires a two-thirds vote to suspend the 
     rules and pass a measure without delay; the Senate requires a 
     three-fifths vote to impose cloture or end debate. In the 
     last decade, budget resolutions have required a three-fifths 
     vote to override a point of order against any change that 
     would increase the deficit beyond the agreed-upon target for 
     the year. This is a procedural motion, but it clearly affects 
     the substance of economic policy decisions, and sponsors of 
     the new House rule claim it as a model for their proposal.
       But abandoning the principle of majority rule on final 
     passage of a bill is not something the House should do 
     lightly--or rest on a questionable precedent. If the three-
     fifths rule is intended as a safeguard against rash tax-
     raising by this incoming Congress, it seems unnecessary. 
     Republicans will have a 25-seat majority in January and they 
     have promised tax cuts, not increases. The president has 
     joined them and so has the leader of House Democrats, Rep. 
     Richard Gephardt (Mo.). So where is the threat?
       Fiddling with the rules always arouses suspicion. Two years 
     ago, when the majority Democrats changed the rules to allow 
     the delegates from the District of Columbia, American Samoa, 
     Guam and the Virgin Islands and the resident commissioner 
     from Puerto Rico (all Democrats) to vote on the House floor 
     on everything but final passage of bills, I said they were 
     tampering with the game. Such criticism forced the Democrats 
     to agree that there would be another vote--without the five 
     delegates--on any issue where their votes decided the 
     outcome. The federal courts upheld that version of their 
     rule, saying that the change the Democrats had made was 
     merely ``symbolic'' and essentially ``meaningless.''
       That cannot be said of the proposed three-fifths rule. It 
     is consequential--and unprincipled. The Republicans 
     themselves juggled the wording to create loopholes for 
     shifting other tax rates by simple majority.
       The precedent they will set is one they will come to 
     regret. If this Congress puts a rules roadblock around 
     changes in income rates, nothing will prevent future 
     Congresses with different majorities from erecting similar 
     barriers to protect labor laws, civil rights laws, 
     environmental laws--or whatever else the party in power wants 
     to put off-limits for political purposes.
       There is something fundamentally disquieting and even 
     dishonorable about the majority of the moment rewriting the 
     rules to allow a minority to control the House's 
     decisionmaking. You can easily imagine future campaigns in 
     which politicians will promise that if they gain power, they 
     will abolish majority rule on this issue or that--a whole new 
     venue for pandering to constituencies that can be mobilized 
     around a single issue.
       This is a dangerous game the Republicans are beginning. And 
     it raises questions about their values. Let them answer this 
     question: Why should it be harder for Congress to raise taxes 
     than declare war? Does this proud new Republican majority 
     wish to say on its first day in office: We value money more 
     than lives?

  Mr. PELL. I yield the floor.
  Mrs. MURRAY addressed the Chair.
  The PRESIDING OFFICER. By a previous order of the Senate, the Senator 
from Washington is recognized for 5 minutes.
  Mrs. MURRAY. Mr. President, I ask unanimous consent to speak as in 
morning business.
  The PRESIDING OFFICER. Without objection, it is so ordered.

                          ____________________