[Congressional Record Volume 141, Number 37 (Tuesday, February 28, 1995)]
[Senate]
[Pages S3231-S3263]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                  RECOGNITION OF THE DEMOCRATIC LEADER

  The PRESIDENT pro tempore. The distinguished Democratic leader is 
recognized.
  Mr. DASCHLE. Mr. President, I yield 10 minutes to the distinguished 
Senator from North Dakota [Mr. Conrad].
  (Mr. KYL assumed the chair.)
  Mr. CONRAD. I thank the Chair and I thank the minority leader. Mr. 
President, today is an important day in the life of our Nation. Today 
we consider a balanced budget amendment to the Constitution of the 
United States. We do not lightly consider amendments to the 
Constitution because that document has served as the framework that has 
made this the greatest Nation in human history.
  Mr. President, we are here because this Nation faces a debt threat. I 
have brought with me several charts to try to illustrate the challenge 
that we face. This first chart shows what has happened to the gross 
debt in our country from 1940 to 1999. One can see that back in 1940 
the debt of the country exploded during World War II, and then 
     [[Page S3232]] we went into a long period in which the gross 
     debt of the country came down steadily, until 1979. At that 
     time, gross debt, once again, exploded. We saw the gross debt 
     of the country down about 30 percent, and it has gone up 70 
     percent, not as high as it was during the Second World War, 
     nonetheless a real concern because the growth of the debt 
     puts enormous pressure on the financial markets, puts 
     pressure on interest rates, and has an adverse effect on our 
     total economy.
  Mr. President, I think this chart tells a very important story. This 
is the work of the entitlements commission that just concluded their 
work. On this chart, the green line shows the revenue of the United 
States back from 1970, forecasted up through 2030. One can see that the 
revenue has consistently run at just under 20 percent of our gross 
domestic product. We are right in this change today. One can see that 
the difference between the green line and these bars is the deficit, 
and we have worked the deficit down in this period to about 2.5 percent 
of gross domestic product.
  Mr. President, look at what happens if we do not change course. Let 
me just say the entitlements commission did not take the worst case 
scenario. They assumed no recessions, no wars, no catastrophes, no 
natural disasters. Look at how the deficit explodes by the year 2030. 
By the year 2012 alone, we will use every penny of Federal revenue just 
on entitlements and interest on the debt.
  Mr. President, we must address the debt threat without question. That 
takes us to the next chart. Some have said, ``Well, Senator Conrad, if 
you feel so strongly about the need to attack the deficits, why have 
you not signed up to the constitutional amendment'' that is before us 
today? Very simply, Mr. President, I have several concerns. As I 
indicated earlier, we do not amend the Constitution of the United 
States lightly. That is the organic law of our country. It is the 
document that has stood the test of time, and we must take that measure 
against any proposed constitutional amendment.
  Mr. President, there are three items that especially concern me. 
First is the possibility of looting the Social Security trust fund in 
order to balance the operating budget. That really raises the question 
that I have on this chart: What budget is being balanced? I think it is 
very important to know what budget is being balanced. To answer that 
question, we need to go to the language of the amendment itself.
  In section 7, it says:

       Total receipts shall include all receipts of the U.S. 
     Government except those derived from borrowing. Total outlays 
     shall include all outlays of the U.S. Government except for 
     those for repayment of debt principal.

  Mr. President, what that means, very simply, is that everything is 
going in the pot. This is a little teapot that shows the pot of Federal 
spending that we have created. It shows what goes in on the revenue 
side--individual income taxes, social insurance taxes, corporate income 
taxes, and other taxes. It shows the spending that comes out the spigot 
of Federal spending, the spigot of the pot of Federal spending. You can 
see Social Security comes out of the spending spigot--interest on the 
debt, defense, Medicare, and Medicaid. They are the big items. In fact, 
Social Security, interest, defense, and Medicare make up 78 percent of 
Federal spending.
  Mr. President, the problem with that part of this constitutional 
amendment is that it assumes Social Security is in the pot, and Social 
Security is not contributing to the deficit; Social Security is in 
surplus. Social Security, in fact, is going to run a surplus over the 7 
years necessary to balance the budget, under this provision, by $636 
billion. So the amendment that is before us today assumes that we will 
be looting the Social Security trust fund surpluses of the $636 billion 
in order to balance the operating budget.
  Mr. President, I do not consider that balancing the budget. That is, 
frankly, Washington talk for balancing a budget. If a head of any 
company in this country told the investors that he was balancing the 
budget and that a central part of balancing was to take the employees' 
trust funds, that person would be on the way to a Federal facility--and 
it would not be the U.S. Congress; that person would be on their way to 
jail. So this is a concern that I think must be addressed.
  The second concern that I have--and it is a concern shared by 
others--is the role of the courts, because once you put in the 
Constitution of the United States an amendment, you have 
constitutionalized the issue. I brought with me a quote from Walter 
Dellinger who testified last year at the hearings on the question of a 
balanced budget, and he said:

       If we have an amendment that for the first time 
     constitutionalizes the taxing and spending process and 
     creates a constitutional mandate which the courts are sworn 
     on oath to uphold, there is simply no way that we can rule 
     out the possibility that tax increases or spending cuts would 
     be ordered by the judiciary. And I think we would all agree 
     that that is a profound change in our constitutional system.

  Mr. President, I hope people focus on this question. Would we really 
want unelected judges to be able to order tax increases in this 
country? I think not. That would be taxation without representation. 
Judges are not elected. Judges are not chosen to make these decisions. 
That is part of the genius of our Constitution: a separation of powers, 
with Congress, the elected representatives, making the financial 
decisions for the people of America.
  Mr. President, it is not just Mr. Dellinger's view. Former Senator 
Danforth, who was among our most respected colleagues, a Republican 
Senator from Missouri, said last year when he offered an amendment--an 
amendment, by the way, which was accepted--to deal with the issue of 
clarifying the role of the courts said:

       The implications of this judicial encroachment are 
     staggering when applied to the proposed balanced budget 
     amendment. As Professor Tribe testified before the Committee 
     on the Budget: ``What remedy could a federal court then 
     decree? [if the budget is not balanced under this amendment] 
     The court in the United States in Missouri vs. Jenkins a 
     couple of years ago held that judges may have the power to 
     mandate higher taxes if needed to force the government to 
     comply with the Constitution.''

  Senator Danforth went on to say:

       I find it troublesome, but it is the law. Talk about 
     taxation without representation, unelected judges mandating 
     higher taxes.

  Mr. President, we ought to listen to the wisdom of former Senator 
Danforth. He was one of the most respected Members of this Chamber. He 
was dead right on this question.
  Mr. President, there is a third issue that I want to raise today that 
is of concern and I think must be addressed if we are to pass a 
balanced budget amendment.
  Mr. President, the third issue that I raise is the question of an 
economic emergency. Mr. President, we know that today the right policy 
is to cut spending and reduce the deficits and balance the budget. 
Sixty years ago that was precisely the wrong policy. In the Depression, 
raising taxes and cutting spending only made the Depression deeper and 
longer lasting.
  Mr. President, Robert Solow, of MIT, a Nobel laureate in economics, 
said:

       The balanced budget amendment would force perverse actions 
     by Congress, easily turning a small recession into a big one 
     and a big one into a disaster. Monetary policy can solve the 
     small problems, but not the big ones.

  Mr. President, if we are to have a constitutional amendment, I 
believe we must have special provision for an economic emergency.
  I end on this note, a quote from Henry Aaron, the director of 
economic studies at the Brookings Institution. Dr. Aaron, in testimony 
last year said:

       One does not need to be a primitive Keynesian to believe 
     that a requirement forcing tax increases or spending cuts 
     during an economic slowdown could be catastrophic.

  Catastrophic, Mr. President--

     Yet the need to mobilize a three-fifths majority, not just in 
     the Senate but in the House of Representatives as well, 
     heightens the possibility that such policies would result 
     because of incapacity to mobilize the necessary supermajority 
     in both Houses.

  Mr. President, some have assured Members ``Don't worry. If we are in 
an economic emergency, you will be able to get 60 votes.'' Mr. 
President, I went back to the time leading into World War II when the 
economy of this country was in deep trouble, when we faced an enormous 
external threat. I found an interesting thing. When we needed $1 
billion to start to rebuild the Navy of this country, that passed by 
only 58 votes. When we needed to start to have a draft to prepare for 
war, that passed by only 56 votes.
  [[Page S3233]] Mr. President, I think it is very clear that we cannot 
take the assurance that in an emergency we would be able to muster the 
60 votes.
  Mr. President, let me just conclude by saying I believe deeply that 
we must address the debt threat hanging over this country. We must cut 
spending. We must reduce the deficit. We must balance the budget in 
preparation for the time when the baby boom generation starts to 
retire, the Social Security expenses and Medicare and all the rest 
start to explode.
  Mr. President, we are talking about amending the Constitution of the 
United States. We should only do it if we are absolutely convinced we 
are properly crafting such an amendment. The three concerns that I have 
raised must be addressed if this amendment is to secure my vote.
  We should not loot the Social Security trust fund because that is not 
balancing the budget. That is a paper sham. That is wrong. We should 
not leave the role of the courts vague and ambiguous. No unelected 
judges should be writing the budget for the United States, raising 
taxes, cutting spending. That would subvert the genius of the 
Constitution. Third, I believe we must have provision for an economic 
emergency so that we do not put our great Nation at risk at a time of 
economic weakness and vulnerability.
  Mr. President, I thank the Chair. I yield the floor. I look very much 
forward to what the day will bring. I hope that we are able to come 
together and craft an amendment that will stand the test of time.
  Mr. STEVENS. Mr. President, how much time am I allowed?
  The PRESIDING OFFICER. The Senator controls 73 minutes 20 seconds.
  Mr. STEVENS. Will the Chair notify me when I have used 12 minutes?
  The PRESIDING OFFICER. Yes, sir.
  Mr. STEVENS. Mr. President, my support of a balanced budget amendment 
goes back to the 95th Congress.
  In the last Congress, I did not perceive the willingness of Congress 
to consider all expenditures in order to achieve a balanced budget and 
did not support this amendment at that time.
  Now, it is my belief that the changes in Congress and in the attitude 
of the country as a whole have brought a new commitment to consider all 
Federal expenditures, including entitlements. There is no question that 
the passage of this amendment is important to the Nation as a whole. 
That is particularly true to small States such as Alaska, and other 
States in the West.
  We believe Congress must operate under fiscal restraint, restraint 
that is missing from the Federal budget process at this time. I am 
informed that next September the current Federal debt limit of $4.9 
trillion will be reached. Congress may have to vote to increase that 
Federal debt limit above $5 trillion or face the prospect of shutting 
down the Federal Government and defaulting upon our obligations.
  Default is an unthinkable option for a Nation like the United States. 
But I do not believe that I could in good conscience vote to increase 
the debt limit unless this Nation adopts a plan to balance the budget 
and end unnecessary deficit spending.
  Based upon President Clinton's 1996 budget, 16 percent of the total 
Federal budget for this next fiscal year will be required to pay 
interest on that $4.9 trillion dollar national debt. The President's 
budget also requests and projects 16 percent of the total Federal 
budget to go to support of our national defense, 15 percent to grants 
to States and localities, and 5 percent to go to the operation of 
Federal agencies.
  In my judgment, interest payments are competing now with the national 
defense. Our national defense is the second largest expenditure of 
Federal funds, second only to the direct benefit payments to 
individuals. This national debt is a real threat. Left unchecked, 
increased interest payments will endanger every Federal program.
  In the past, and particularly last year, I expressed concern that 
entitlement programs would not be included in any efforts to balance 
the budget and that the necessary cuts would come from the remaining 36 
percent of the budget. I was concerned that discretionary spending 
would bear all of the cuts.
  It was my expressed fear that small States, like Alaska, would be 
severely and unfairly impacted by those cuts in discretionary spending. 
Cuts of the magnitude required to balance the budget taken solely from 
discretionary spending would impose a great burden upon us because of 
the necessity to have Federal programs--the Coast Guard, the FBI, the 
FAA, and so many other agencies of the Federal Government that provide 
the safety net for our people--in a State as large and diverse as mine.
  After giving this issue serious consideration and having discussed 
the matter seriously with many of my colleagues, I have come to the 
conclusion that it is now the intent of Congress that spending cuts 
would be fairly applied to all expenditures.
  Mr. President, we keep track of the calls and letters we receive in 
my Washington and Alaska offices, and the majority of Alaskans support 
a balanced budget amendment. They support it by a margin of 6 to 1, as 
reflected by the calls and letters that have come to my office 
endorsing or opposing the Amendment.
  The Kerry-Danforth Commission, the Bipartisan Commission on 
Entitlement Reform, identified as one of its five broad principles the 
issue of balancing entitlement commitments with the funds available to 
meet those promises. If current entitlement policies are left 
unchanged, entitlement spending and interest on the national debt would 
consume almost all Federal revenues in the year 2010. By the year 2030, 
projected Federal revenues will not cover entitlement payments.
  I do not support exempting any specific type of spending in the 
balanced budget amendment, per se, but I do believe Congress must find 
a way to balance the budget without reducing Social Security payments. 
On February 10, our distinguished majority leader, Senator Dole, 
offered a measure on the Senate floor which calls on the Senate Budget 
Committee to report to the Senate a plan to protect Social Security 
while allowing Congress to balance the budget. I supported that 
amendment.
  According to our Joint Economic Committee, Congress could balance the 
budget while Government spending increases 2 percent per year without 
touching Social Security or Medicare and allowing Medicaid to grow at 
the rate of 5 percent per year. There are some who question that plan, 
but that is the result of the report by the Joint Economic Committee.
  It is time for the Federal, State, and local legislative and 
executive leaders to work together to find a way or to find ways to cut 
the fat out of Government without removing its heart. Spending 
decisions will be more difficult as interest on the national debt 
consumes a larger portion of Federal revenues.
  It is my judgment that the Congress and the States must act now to 
ratify this balanced budget amendment to the Constitution. There is 
still time for Federal, State, and local governments to work together, 
as I suggested, to decide how to provide the necessary government 
services for our people. Our country cannot afford to wait any longer. 
We must get our fiscal house in order, and we can begin that process 
today.
  I want to urge the Senate, particularly my colleagues who have not 
taken a position on this amendment, to support it. I shall support this 
amendment. I do so in order that, consistent with our Constitution, it 
may be submitted to the 50 States for ratification and we may begin 
this process. It will be a long and arduous process, Mr. President, but 
I think the time to commence is now.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. EXON. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. EXON. Mr. President, I ask that I be yielded approximately 8 
minutes from the time reserved for Senator Hatch, the Senator from 
Utah.
  The PRESIDING OFFICER. Does the Senator yield time?
  Mr. STEVENS. I am pleased to yield to the Senator from Nebraska that 
amount of time.
  [[Page S3234]] Mr. EXON. Mr. President, I thank my friend from 
Alaska.
  The constitutional amendment to balance the budget should be viewed 
as an important step in the right direction, but rejected as a certain 
cure-all assuring future sound national fiscal policy. The primary 
benefit, if passed in Congress and ratified by three-fourths of the 
States, is the considerable ``discipline''--and I emphasize the word 
``discipline''--that it would provide to correct our current course. We 
veered dangerously off course in the 1980's when we ballooned annual 
deficits from manageable levels, under $100 billion by increasing it 
threefold or more. And from 1980 to the present we have skyrocketed the 
national debt, the culmination of those yearly deficits, fivefold, to 
$5 trillion, and it is going higher.
  In fiscal year 1996, annual interest on that debt to nontrust fund or 
public debt costs taxpayers $260 billion, which alarmingly is the 
fastest growing part of our Federal budget. Of that $260 billion in 
interest costs about a fourth or $65 billion goes to foreign investors. 
Talk about foreign aid give-aways.
  The $65 billion in interest the taxpayers will pay is shipped 
directly overseas, with no strings attached, and it is going up each 
and every year. It is astonishing, Mr. President, when we compare the 
$20 billion that we provide annually for foreign aid, a category that 
we hear so much about, which is actually going down every year, compare 
that, if you will, with the $65 billion in taxpayers' money that is 
going overseas without any strings attached whatsoever.
  The facts are that we are giving $45 billion more to foreigners in 
interest than in aid. If there were no other sound reasons--and there 
are many--the concerns just stated would be reason enough to employ the 
discipline that the balanced budget amendment will bring.
  I salute the many good and reasoned arguments made by opponents in 
opposition to the amendment. Indeed, there are good reasons not to vote 
for it. I am not satisfied in total with the amendment and I believe it 
should have been amended in the Senate.
  The trouble seems to be that the constitutional amendment before us 
has been Newtonized. Such a description, therefore, makes it infallible 
and unamendable. It is a believe-exactly-as-we-do-or perish philosophy 
that is dangerous.
  It is required that Republicans and the Democrats alike simply roll 
over and play dead for the good of the new order.
  Mr. President, this is a very important day in the history of the 
U.S. Senate. Today, at the Republican caucus, the decision will be made 
as to whether or not a reasonable compromise will be accepted. That is 
the last real chance for success.
  Notwithstanding what will be reported Tuesday evening--today--this 
amendment will not be approved--I emphasize, will not be approved--
unless it is on a bipartisan basis. We can garner the minimum 67 votes 
to pass it--and the numbers I have indicate that it should be 52 
Republicans and 15 Democrats--if we accept some version of the 
Danforth-Johnston-Nunn, et al., amendment. That concept is to keep the 
courts out of budgeting and agree to address some of the Social 
Security trust fund concerns that have been expressed on the floor most 
recently by my colleague from North Dakota a few moments ago. If we do 
not do that, it will not, and, in such an event, the responsibility for 
failure will rest on our inability to compromise just a little bit.
  We can still pass this constitutional amendment if there is just a 
little give and a little concern. Despite the many seemingly 
unsurmountable hurdles, I am encouraged that, after a series of 
discussions of last Friday, yesterday and this morning, we may well be 
close to resolving enough of the more contentious issues to see success 
today. But I am not sure.
  The key vote, Mr. President, on whether or not we can pass a 
constitutional amendment will come today on the Nunn amendment 
regarding concerns about court involvement. If that fails, I predict we 
will not garner the 67 votes for the balanced budget amendment. In that 
case, the final vote will just be an exercise to establish how many 
votes short of the required 67 that the constitutional amendment 
requires.
  Mr. President, I think we are about some very, very serious business. 
I have previously said on many occasions why I support the 
constitutional amendment to balance the budget, with some reservations.
  At this time, I appeal for reason and I appeal somehow to give and 
take a little bit, to compromise on one or two very important issues. 
If that happens and it is approved in the Republican caucus today, we 
can go on to success with the balanced budget amendment. If not, we 
will live to regret it, in the view of this Senator.
  Mr. President, I yield the floor and yield back the remainder of any 
time that I had reserved on my original request.
  Mr. HATCH. Mr. President, I suggest the absence of a quorum, with the 
time divided equally.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. HATCH. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. HATCH. I understand the distinguished Senator from Texas would 
like some time. How much time would the Senator like, 10 minutes?
  Mr. GRAMM. What about 15?
  Mr. HATCH. We are pressed for time. I yield 10 minutes to the 
distinguished Senator from Texas.
  The PRESIDING OFFICER. The Senator from Texas is recognized for 10 
minutes.
  Mr. GRAMM. Mr. President, I thank our distinguished colleague from 
Utah for yielding me time.
  Mr. President, today we have an opportunity to change the course of 
American history. I guess each of us in our own way came into public 
life because we wanted to make historic decisions. I think it is fair 
to say that every Member of the Senate initially ran for office because 
he or she wanted to make a difference in the lives of the people in 
their State and across this country. We have an opportunity today in 
one vote to rewrite the history of the United States of America. That 
one vote is adopting a balanced budget amendment to the Constitution of 
the United States of America.
  I would like to talk today about what happens if we do not pass a 
balanced budget amendment to the Constitution, and to also talk about 
what happens if we do, not in abstract terms but in concrete terms that 
have to do with the well-being of the forgotten people in America who 
do the work, pay the taxes, pull the wagon, and who ought to be the 
focal point of this debate, but unfortunately are not.
  Then I wish to touch very briefly on some of the arguments that are 
being made against the amendment. First of all, I think we have to 
understand that Government spending means Government taxing. In 1950, 
the average American family with two children sent $1 out of every $50 
it earned to Washington, DC. Today, that same family is sending $1 out 
of every $4 it earns to Washington, DC, and in 20 years, if we do not 
create a single new Federal program, if we simply pay for the 
Government that is already on the books, that family is going to be 
sending $1 out of every $3 it earns to Washington, DC.
  It seems to me we have come to the moment of truth where either we 
are going to stay on this 40-year spending spree and squander the 
future of our children or we are going to the spending so as to save 
the American dream. That is the choice we make today.
  Since 1950, the Federal Government's budget has grown 2\1/2\ times as 
fast as the family budget. Since 1950, the Government has spent money 
at a rate 2\1/2\ times as fast as the institution in America which 
created the income that the Government spent, the American family.
  Now, what difference has it made over the last 40 years that 
Government spending has grown 2\1/2\ times as fast as family spending? 
Let me give you a startling statistic. If the ability of the family to 
spend the money it earned had grown as fast as the ability of 
Government to spend the money the family earned, families in America 
today 
[[Page S3235]] would be spending not $45,000 per family of four but 
would be spending $120,000 per family.
  Conversely, if Government spending had grown only as rapidly as 
spending by the family, the Federal Government would be roughly one-
third the size it is today.
  When you think about the American dream, when you think about the 
kind of America you want for your children and grandchildren, which 
pictures fits your view of America's future: Families with incomes 
three times as large as they are today and the Government a third the 
size it is today, or the reverse?
  It seems to me that the priority of the family's budget over the 
Federal budget is the definition of what we are talking about. The 
debate here is not a debate about how much money is going to be spent 
on education and housing and nutrition and all of the other things that 
we are all for. The debate is about who is going to do the spending. 
For many of our colleagues on the left, many of the Democratic Members 
of the Senate, the President of the United States, Bill Clinton, their 
vision for America's future is that they want Government to do the 
spending. Our vision for America's future is that we want the family to 
do the spending. We know the Government; we know the family; we know 
the difference; and we know something else. We are betting the future 
of America on the decision we make today. We want to bet the future of 
America on the family and not on the Government.
  Now, in looking at these mind-numbing figures, since they are so big, 
we tend to forget that they really mean something. Let me give you some 
figures. If we adopt and enforce the budget proposed by Bill Clinton, 
that will mean that in 10 years we are going to be spending $412 
billion simply paying interest on the public debt. That is more money 
than Jimmy Carter's budget for the whole Government of the United 
States in 1977. That was not that long ago.
  Let me give you another figure that gives you an idea of the 
magnitude of the choice we make today. If we do nothing, if we stay 
with the status quo that Bill Clinton would have us adopt, the interest 
cost on the public debt in a decade is going to rise by $177 billion.
  Now, nobody knows what $1 billion is except Ross Perot, but let me 
convert that into English. If we stop the deficit spending, if we did 
not borrow all that money, we could give every family in America a 
$13,000 tax deduction for the money we are going to squander paying 
interest on debt simply because this Congress has been incapable of 
saying no to any special interest group with a letterhead that has 
asked for our money.
  Now, I wish to address very briefly some of the arguments that are 
made against the amendment. One argument, which many of us heard this 
weekend on television, is that deficit spending is a powerful medicine 
that can cure recessions, that can cure depressions, and if we lost the 
ability to use this medicine we might forever be pushed into a great 
recession and a great depression.
  Mr. President, deficit spending is a drug to which we have become 
addicted. We have engaged in deficit expenditures in expansions, in 
contractions, in recessions, in inflations, and if deficit spending 
ever had any curative power, that curative power has long ago been 
lost.
  We debate today whether to end this addiction to deficit spending. We 
debate today whether or not to force the Government to do what every 
family and every business in America has to do, and that is say no.
  Finally, let me try to set this in perspective. Balancing the Federal 
budget is not going to be easy. It is going to mean hard choices. It is 
certainly not going to be easy for Members of Congress. But we cannot 
forget the benefits to be derived for the future of America in terms of 
opportunity and growth, and we must not forget what this means in terms 
of freedom. We should not get so caught up in the dollars and cents of 
the deficit and the budget debate that we forget that what is being 
squandered here is not just our money, it is our freedom. Government 
has grown so big, so powerful, so expensive, so distant, so hostile 
that this is a process that has to be reversed and we have it within 
our power today to do it. We all stand here on the floor of the Senate 
and wring our hands about the deficit. To balance the Federal budget 
means we have to freeze Government spending at its current level for 3 
years.
  How many businesses in America have made tougher choices than that 
just to keep their doors open in the last year? How many families in 
America have had to make tougher choices than that when a job was lost 
or when a parent died? The difference is that families and businesses 
in America live in the real world where you have to say no, where bad 
things happen, where you have to make adjustments, where you have to 
change.
  Change is a fact of life everywhere except in Washington, DC, in 
America. Our Government has not lived in the real world for 40 years. 
We have it within our power today to change that. We have it within our 
power to pull our Government into the real world with our people, and 
in doing so enrich the lives of millions of Americans who want the kind 
of opportunity that has been routine in the American experience.
  If we can adopt the balanced budget amendment to the Constitution 
today, we will change the course of the history of our Nation. And I am 
prayerfully hopeful that when our colleagues cast this vote they will 
realize we are shooting with real bullets and we are determining the 
future of the greatest country that the world has ever known.
  The PRESIDING OFFICER. The distinguished minority leader.
  Mr. DASCHLE. Mr. President, I yield 5 minutes to the distinguished 
Senator from Minnesota.
  The PRESIDING OFFICER. The Senator from Minnesota is recognized.
  Mr. WELLSTONE. Mr. President, I do want to point out for the record 
on the floor of the U.S. Senate, as I listened to my colleague from 
Texas speak about special interests, that I introduced an amendment 
several weeks ago, with Senator Feingold from Wisconsin, which said 
that when we go forward with deficit reduction and continue on this 
path of deficit reduction and reach the goal of balancing the budget, 
we should consider $425 billion--that is in any given year--of tax 
expenditures, many of which are loopholes and deductions and sometimes 
outright giveaways to the largest corporations and financial 
institutions in America. That amendment was voted down on the floor of 
the U.S. Senate.
  So it is interesting how children are a special interest, somehow 
with a negative connotation. Older Americans are a special interest, 
somehow with a negative connotation. Students who are trying to afford 
higher education are a special interest, sometimes with a negative 
connotation. But, on the other hand, subsidies for oil companies, the 
subsidies for coal companies, subsidies for pharmaceutical companies--
they are not special interests at all. I think that has something to do 
with who are the heavy hitters, who has the representation, who does 
the lobbying, who has the power, who is well represented and who is 
left out.
  I have been very involved in this debate and today there is just time 
for a few concluding remarks or reflections. At the very beginning of 
this 104th Congress I came to the floor with an amendment from my State 
of Minnesota. This amendment essentially said, based upon a resolution 
passed by my State legislature and signed by Governor Carlson, which 
urged that before we send a balanced budget amendment to the States, if 
it is passed, we ought to do an analysis for States of the impact on 
our States and of the people back in Minnesota and across the country. 
That was voted down. Similar amendments were also voted down.
  There are other amendments that were very important to this effort to 
improve this constitutional amendment to balance the budget--very 
important. There was an amendment to make sure that there would not be 
a raid on the Social Security trust funds. That was voted down. There 
was an amendment, as I mentioned, that Senator Feingold and I 
introduced, that urged that we at least consider some of the tax 
subsidies and giveaways to the largest corporations of America, the 
wealthiest people, as part of what we do in deficit reduction. Let us 
not just cut nutrition programs for children or Medicare. That was 
voted down. There 
[[Page S3236]] was an amendment introduced on the floor of the U.S. 
Senate that said--and it makes good, rigorous economic sense--let us 
separate capital budgets from operating budgets. If we are going to 
make a comparison to family budgets, then let's really look closely at 
the similarities and differences. Sheila and I have never cash flowed 
the homes we've bought. We did not cash flow education for our 
children, higher education. And we did not cash flow cars. Those were 
investments in the future. We certainly have done a good job of 
balancing our budget every month, if that means keeping up with our 
payments. The same thing is true of most of the State legislatures in 
this country. So the point was to make some separation.
  There was an important amendment that said in times of recession let 
us not have those recessions become depressions. This is rigorous 
economic analysis. I say this as someone with an interest and a 
background in political economy. That was voted down. We do have to be 
concerned about the economics and the economic management of our 
Nation.
  There were other amendments as well. I had a sense of the Senate 
amendment that we would not do anything to increase hunger or 
homelessness among children. That was voted down.
  I have to say, I am acutely aware of what is politically popular at 
the moment. This constitutional amendment to balance the budget is 
politically popular at the moment. It is politically popular in the 
abstract. But people do not yet know what the specifics are. There has 
not been any truth in budgeting with this. I do not believe people have 
yet had a chance to look at all of the consequences of it.
  So my position remains the same position. I was sent to the U.S. 
Senate from Minnesota to listen closely to people. I was sent to the 
U.S. Senate from Minnesota to stay close to people. But I also said to 
people in Minnesota that I would always vote my conscience. I would 
always vote what I believed was right for my Nation. I would always 
vote what I believed was right for the people I represented--even if it 
was a difficult political vote, even if it was politically unpopular at 
the moment, even if I was subject to attack ads and other criticism for 
my vote.
  I will not back down from that. I will continue to go by that code. 
And it is my honest view, it is my profound sense that this 
constitutional amendment to balance the budget is a very serious 
mistake for a Nation that I love and for a State that I love.
  And therefore for all the reasons I have outlined during this debate 
over the last month, I will vote no.
  (Disturbance in the visitors' galleries.)
  The PRESIDING OFFICER. The gallery will please withhold any display.
  Thank you.
  Mrs. FEINSTEIN addressed the Chair.
  The PRESIDING OFFICER. The Senator from California.
  Mrs. FEINSTEIN. Mr. President, I yield myself 10 minutes.
  The PRESIDING OFFICER (Mr. DeWine). The Senator is recognized for 10 
minutes.


                           Amendment No. 274

  Mrs. FEINSTEIN. Mr. President, I ask unanimous consent my amendment 
be the pending business.
  The PRESIDING OFFICER. Is there objection? Without objection, it is 
so ordered.
  Mrs. FEINSTEIN. Mr. President, I rise today in support of a 
substitute amendment to House Joint Resolution 1, the balanced budget 
constitutional amendment.
  I support a balanced budget amendment to the Constitution, and I 
would like to see this body pass such an amendment. However, as I have 
previously stated, I do not believe that the House-passed amendment, 
the amendment being considered by the Senate, is the right amendment 
for this country.
  With Senators Ford, Hollings, McCain, Mikulski, Kohl, Harkin, 
Daschle, Dorgan, Reid, and Graham of Florida, I, therefore, offer my 
colleagues--both Republican and Democratic--a substitute.
  The substitute I am offering today is a balanced budget amendment to 
the Constitution that will permanently exempt Social Security from the 
calculations. It will protect this fund, holding in trust the money 
deducted from American workers' paychecks every week until they are 
ready to use them in retirement.
  The amendment does not alter any other aspect of House Joint 
Resolution 1--not a single item. It merely exempts Social Security--it 
is an honest balanced budget amendment--a balanced budget amendment 
which can pass.
  Unfortunately, this body has steadfastly refused to make any changes 
to the original balanced budget amendment submitted to the Senate 
despite hours of good debate--especially on the establishment of 
capital budgeting procedures, with which I agree, the removal of Social 
Security from the budget, and attempts by both Senators Johnston and 
Nunn to clarify the areas of legal redress under this amendment. The 
leadership has merely posed the same amendment which the House passed 
and asked that we rubberstamp it here in the Senate. I find this 
approach both unacceptable and puzzling.
  This Senate has been involved in 1 month of detailed and incisive 
debate of this subject. Virtually all amendments have been defeated. No 
matter how salient or cogent points raised have been, they have been 
rejected. Apparently, the only acceptable amendment is the one 
presented. No changes can be made no matter how correct or compelling 
the criticism.
  Now, while I believe a balanced budget is the correct policy decision 
for this country--I do not believe we must pass any amendment just 
because a few have ordained this to be the amendment. It is our duty in 
the Senate to weigh all legislative matters carefully. Amending the 
Constitution is a serious historical task which demands the thought and 
wisdom of all of us here in the Senate. I was elected by the people of 
California to represent their interests in the Senate. I was not 
elected to genuflect to a measure simply because it was passed by the 
House of Representatives.
  At this point in our history, we should not be altering the 
legislative process. This body should not be simply a rubberstamp to a 
measure ramrodded through the other House. We should be examining all 
pieces of legislation independently from the House. This deliberation 
includes altering and amending legislation to fit the needs of 
Americans as we see them--I believe that the balanced budget amendment 
being offered by Republicans does not best serve as a correct 
methodology for balancing the budget.
  Mr. President, I have stated previously my reasons for strongly 
supporting a constitutional balanced budget amendment. In the year that 
I was born, the Federal debt amounted to less than $25 billion. In the 
year my daughter was born, the Federal debt was about $225 billion--10 
times greater. My granddaughter Eileen was born 2 years ago. At the 
time of her birth, the Federal debt was more than 150 times greater 
than it was when I was born--nearly $4 trillion.
  In the last 35 years, the Federal Government has balanced its budget 
exactly twice. Once in 1960, a surplus of $300 million and again in 
1969, a surplus of $3.2 billion.
  Yet, in the last quarter of a century, the Federal Government has run 
up more than $4 trillion in debt without once balancing the budget. 
During this time, this Nation has experienced war and peace and 
economic booms and recessions. Never did this Government balanced the 
Federal budget, let alone run a surplus.
  One fact is inescapable--spending in this country has grown out of 
control, and we have let the Federal debt grow at a rate that is 
unacceptable. That is why I am a strong supporter of a constitutional 
balanced budget amendment. We do not have another generation to allow 
this problem to fester. The time for action is now. But equally 
important to the need for a solution is its workability in the future.
  There are four important arguments for protecting Social Security:
  First, this amendment would place Social Security off-budget, thereby 
enshrining into the Constitution congressional action and guaranteeing 
the integrity of the system.
  Between its creation in 1935 and 1969, Social Security had always 
been off-budget. In an attempt to cover the 
[[Page S3237]] costs of the Vietnam war and later to mask growing 
deficits, Social Security was put on-budget. This was a misuse of the 
Social Security trust fund. In the 1990 Budget Enforcement Act, 
Congress put an end to this practice by declaring Social Security funds 
off-budget. The amendment in the Senate to exclude Social Security from 
budget calculations was passed in the 101st Congress by a vote of 98-2. 
Every Member today who served in the 101st Congress voted to place 
Social Security off-budget.
  Second, Social Security is not like other Government programs and 
should not be treated like other Government programs.
  Social Security is a publicly administered, compulsory, contributory 
retirement system. Through the Federal Insurance Contributions Act, 
known as FICA, workers are required to contribute 6.2 percent of their 
salaries to Social Security. Every worker does this. Employers are 
required to match that amount. Every employer does this. This combined 
12.4-percent contribution funds the Social Security system. It is not 
meant to fund Interior, or Agriculture, or Defense, or HUD, or welfare, 
or anything else. By law these funds are required to be held by the 
Federal Government in trust. They are not the Federal Government's 
funds, but contributions that workers pay in and expect to get back.
  Over 58 percent of working Americans pay more in FICA taxes, if you 
include the employers' share, than they pay in Federal income taxes. 
This is not a small amount, and it is not adjusted by salary.
  Third, Social Security does not contribute to the Federal deficit. In 
fact, the Social Security trust fund surpluses are masking the true 
size of the deficit today. In 1995, Social Security will take in $69 
billion more than it will pay out in benefits. By 2001, Social Security 
will be running surpluses of more than $100 billion a year. By the time 
this amendment goes in place, in 2002, the surplus in the Social 
Security System will be $705 billion.
  Fourth, the failure to save Social Security surpluses could undermine 
the system's viability.
  In the late 1970's and 1980's, Congress changed the way the Social 
Security System was financed. Recognizing the large demand on the 
system that would be created by the retirement of the baby boomer 
generation early next century, the Social Security System was changed 
from a pay-as-you-go system to a system that would accumulate large 
surpluses now to prepare for the vast increase in the number of 
retirees later.
  The amendment being offered by the Republicans permits the collected 
funds to be used to finance the deficit. That means beginning in 2019, 
when Social Security is supposed to begin drawing down its accumulated 
surpluses to pay for the benefits of the vast numbers of retiring baby 
boomers, there will be no money saved to distribute.
  Congress will be forced to either raise taxes, cut Social Security 
benefits, or further cut other spending programs to meet the 
obligations workers are paying for now. In short, the American workers 
will have to pay twice for the retirement of the baby boomers because 
we will not be saving what they contribute now.
  The only way to save the Social Security surpluses to pay for future 
retirements is to balance the budget exclusive of these revenues, and 
that is what this amendment would do.
  The impact of this, of course, would be that the Federal Government 
would run a unified budget surplus--a balanced Federal budget and a 
surplus in the Social Security trust fund. In this way, we would cut 
the Federal debt and save Social Security funds, not just watch the 
debt keep growing. The alternative balanced budget amendment being 
offered today will do just that.
  On February 17, the Times Mirror released its latest public interest 
poll. I think every Senator here should be aware of the results. When 
asked what should be given a higher priority in 1995, cutting taxes or 
taking steps to reduce the budget deficit, 55 percent want to reduce 
the deficit while 37 percent want to cut taxes for the middle class. 
Now, this supports the argument which we all are making for the 
balanced budget amendment. The American public wants to reduce the 
deficit; balancing the budget is the best way to do just that.
  But this question is only one part of the story. When asked if it was 
more important to reduce the budget or keep Social Security and 
Medicare benefits as they are, the respondents favored keeping Social 
Security benefits as they are by a 70 to 24 percent margin. Let me say 
that again, 70 percent of the American public favors protecting Social 
Security while only 24 percent want to reduce the deficit at the 
expense of Social Security. This amendment we are offering will satisfy 
both of these desires.
  Just last week, on February 23, I received a letter from the AARP 
supporting the protection of Social Security. Let me quote some of it:

       The Association believes that a specific exemption for 
     Social Security is required because anything less is 
     inadequate and nonbinding. Without an exemption the program 
     is at risk in several ways. First, benefits could be cut to 
     reach the balanced budget goal even though money from such 
     unwarranted reductions would remain in the Social Security 
     trust funds. This would have the affect of further masking 
     the deficit at the expense of Social Security beneficiaries. 
     Just as important the benefit promise to today's workers will 
     be jeopardized because the annual reserve will continue to be 
     used to hide the extent of the Federal deficit.

  The letter concludes by stating:

       During the most recent election, candidates and the 
     leadership of both political parties pledged to protect 
     Social Security. The American people have grown angry and 
     wary of promises from Washington. To tell the American public 
     that Social Security is protected--and then fail to address 
     the issue directly--will only lead to an increase in the 
     cynicism that is currently prevalent throughout the Nation.

  Mr. President, I ask unanimous consent to have printed in the Record 
a copy of this letter, along with a letter I received on February 1 
from the National Committee to Preserve Social Security and Medicare 
supporting this amendment to protect the Social Security.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                           American Association of


                                               Retired Persons

                                Washington, DC, February 23, 1995.
     Hon. Dianne Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: The American Association of Retired 
     Persons (AARP) appreciates your efforts to protect Social 
     Security from the proposed constitutional amendment to 
     require a balanced budget. Many members of Congress speak 
     about the importance of this program and the need to maintain 
     it for current and future beneficiaries. However, since 
     previous attempts to specifically shield Social Security from 
     the balanced budget amendment have been defeated, your 
     substitute represents the last opportunity to truly protect 
     this vital program before the amendment would be sent to the 
     states.
       While AARP continues to believe that a requirement for a 
     balanced budget federal budget does not belong in the 
     Constitution, we believe that exempting Social Security is 
     warranted for the following reasons:
       Social Security is a self sustaining program that is 
     financed by employer and employee contributions that are 
     credited to the Social Security trust funds in order to pay 
     benefits and run the program,
       Social Security does not contribute one penny to the 
     federal deficit. It currently has over $400 billion in 
     reserve--an amount that is expected to increase by $70 
     billion this year alone; and
       Raiding the trust funds would weaken our benefit promise to 
     today's worker, as well as undermine their confidence in our 
     nation's most important protection program.
       The Association believes that a specific exemption for 
     Social Security is required because anything less is 
     inadequate and nonbinding. Without an exemption the program 
     is at risk in several ways. First, benefits could be cut to 
     reach the balanced budget goal even though the money from 
     such unwarranted reductions would remain in the Social 
     Security trust funds. This would have the affect of further 
     masking the deficit at the expense of Social Security 
     beneficiaries. Just as important, the benefit promise to 
     today's workers will be jeopardized because the annual 
     reserve will continue to be used to hide the extent of the 
     federal deficit. In addition, Section 2 of the proposed 
     amendment treats the Social Security trust funds' government 
     bonds differently than the rest of the debt held by the 
     public. This differentiation could lead to further attempts 
     to use the Social Security trust funds as a cash cow.
       During the most recent election, candidates and the 
     leadership of both political parties pledged to protect 
     Social Security. The American people have grown angry and 
     wary of promises from Washington. To tell the American public 
     that Social Security is protected--and then fail to address 
     the issue 
     [[Page S3238]] directly--will only lead to an increase in the 
     cynicism that is currently prevalent throughout the nation.
           Sincerely,
                                                  Horace B. Deets.
     Executive Director.
                                                                    ____

         National Committee to


                        Preserve Social Security and Medicare,

                                  Washington, DC, January 9, 1995.
     Hon. Dianne Feinstein,
     U.S. Senate,
     Washington, DC.
       Dear Senator Feinstein: On behalf of the nearly six million 
     members and supporters of the National Committee to Preserve 
     Social Security and Medicare, I offer our strong support for 
     your amendment to remove Social Security trust funds from 
     budget and deficit calculations under the pending balanced 
     budget constitutional amendment, S.J. Res. 1.
       The National Committee agrees that the future economic 
     growth of this nation will be enhanced if the budget of the 
     United States is brought into balance. However, we strongly 
     disagree that balancing the budget requires putting Social 
     Security at risk by including it in the budget.
       Balancing the budget requires reasoned decision making and 
     the courage to face up to hard choices. It also requires 
     recognizing the source of the problem. And that, by 
     definition, excludes Social Security. The Social Security 
     program is self-supporting and does not contribute one penny 
     to the deficit. To the contrary, it produces a substantial 
     surplus which Congress has been using to conceal the true 
     size of the deficit. Including Social Security in this 
     balanced budget constitutional amendment makes this budgetary 
     charade much worse by writing it into the Constitution.
       Amending the Constitution of the United States to 
     legitimize this practice amounts to a breach of trust with 
     the American people. Social Security today is exactly what it 
     was established to be almost sixty years ago--a publicly 
     administered, compulsory, contributory retirement program. 
     Treating Social Security as just one more federal expenditure 
     alters the very character of the program in a way that will 
     ultimately undermine the program's great success.
       Seniors support a balanced budget, but will strongly object 
     to a Constitutional amendment which includes Social Security 
     trust funds in budget and deficit calculations. On behalf of 
     our members, I offer our sincere thanks for your efforts to 
     protect Social Security.
           Sincerely,
                                                Martha A. McSteen,
                                                        President.

  Mrs. FEINSTEIN. I will not rehash the arguments lodged against this 
alternative balanced budget amendment at this point except to restate 
two important points:
  First, the opponents of this amendment have repeatedly stated that we 
should not place a statute in the Constitution. They fear that Congress 
will have to amend the Constitution every time they enact enabling 
legislation.
  This statement is pure hogwash--history has proven that 
constitutional amendments are inevitably defined by enabling 
legislation. During my statement on February 9, I displayed 20 volumes 
of the United States Code Annotated related to the 14th amendment. Are 
the supporters of this argument saying that they are opposed to all 
this legislation because it does not belong in the Constitution?--I 
think not.
  They also believe that the Social Security trust funds can be 
protected through this same enabling legislation. At this time, I will 
reintroduce to the Record a letter from the American Law Division of 
the Congressional Research Service. Just to remind my colleagues, let 
me read the reply I received to an inquiry about the ability to protect 
Social Security in implementing legislation. The letter reads,

       If the proposed amendment was ratified, then Congress would 
     appear to be without the authority to exclude the Social 
     Security trust funds from the calculation of total receipts 
     and outlays under section 1 of the balanced budget amendment.

  I ask unanimous consent that the letter be printed in the Record.
  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                   Congressional Research Service,


                                      The Library of Congress,

                                 Washington, DC, February 6, 1995.
     To: Senator Diane Feinstein
     Attention: Mark Kadesh
     From: American Law Division
     Subject: Whether the Social Security Trust Funds Can Be 
         Excluded from the Calculations Required by the Proposed 
         Balanced Budget Amendment.
       This is to respond to your request to evaluate whether 
     Congress could by statute or resolution provide that certain 
     outlays or receipts would not be included within the term 
     ``total outlays and receipts'' as used in the proposed 
     Balance Budget Amendment. Specifically, you requested an 
     analysis as to whether the Federal Old-Age and Survivors 
     Insurance Trust Fund and the Federal Disability Insurance 
     Trust Fund could be exempted from the calculation necessary 
     to determine compliance with the constitutional amendment 
     proposed in H.J. Res. 1, which provides that total 
     expenditures will not exceed total outlays.\1\
       Section 1 of H.J. Res. 1, as placed on the Senate Calendar, 
     provides that total outlays for any fiscal year will not 
     exceed total receipts for that fiscal year, unless authorized 
     by three-fifths of the whole number of each House of 
     Congress. The resolution also states that total receipts 
     shall include all receipts of the United States Government 
     except those derived from borrowing, and that total outlays 
     shall include all outlays of the United States Government 
     except for those used for repayment of debt principal. These 
     requirements can be waived during periods of war or serious 
     threats to national security.
       Under the proposed language, it would appear that the 
     receipts received by the United States which go to the 
     Federal Old-Age and Survivors Insurance Trust Fund and the 
     Federal Disability Insurance Trust Fund would be included in 
     the calculations of total receipts, and that payments from 
     those funds would similarly be considered in the calculation 
     of total outlays. This is confirmed by the House Report 
     issued with H.J. Res. 1.\2\ Thus, if the proposed amendment 
     was ratified, then Congress would appear to be without the 
     authority to exclude the Social Security Trust Funds from the 
     calculations of total receipts and outlays under section 1 of 
     the amendment.\3\

                                            Kenneth R. Thomas,

                                             Legislative Attorney,
                                            American Law Division.


                               footnotes

     \1\H.J. Res. 16, 104th Congress, 1st Sess. (January 27, 1995) 
     provides the following proposed constitutional amendment--
     Section 1. Total outlays for any fiscal year shall not exceed 
     total receipts for that fiscal year, unless three-fifths of 
     the whole number of each House of Congress shall provide by 
     law for a specific excess of outlays over receipts by a 
     rollcall vote.
     Section 2. The limit on the debt of the United States held by 
     the public shall not be increased, unless three-fifths of the 
     whole number of each House shall provide by law for such an 
     increase by a rollcall vote.
     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.
     Section 4. No bill to increase revenue shall become law 
     unless approved by a majority of the whole number of each 
     House by a rollcall vote.
     Section 5. 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.
     Section 6. The Congress shall enforce and implement this 
     article by appropriate legislation, which may rely on 
     estimates of outlays and receipts.
     Section 7. Total receipts shall include all receipts of the 
     United States Government except those derived from borrowing. 
     Total outlays shall include all outlays of the United States 
     Government except for those for repayment of debt principal.
     Section 8. This article shall take effect beginning with 
     fiscal year 2002 or with the second fiscal year beginning 
     after its ratification, whichever is later.
     \2\House Rept. 104-3, 104th Congress, 1st Session states the 
     following: ``The Committee concluded that exempting Social 
     Security from computations of receipts and outlays would not 
     be helpful to Social Security beneficiaries. Although Social 
     Security accounts are running a surplus at this time, the 
     situation is expected to change in the future with a Social 
     Security related deficit developing. If we exclude Social 
     Security from balanced budget computations, Congress will not 
     have to make adjustments elsewhere in the budget to 
     compensate for this projected deficit. . . .'' (Id. at 11.)
     it should also be noted that an amendment by Representative 
     Frank to exempt the Federal Old-Age and Survivors Insurance 
     Trust Fund and the Federal Disability Insurance Trust Fund 
     from total receipts and total outlays was defeated in 
     committee by a 16-19 rollcall vote. Id. at 14. A similar 
     amendment by Representative Conyers was defeated in the 
     House, 141 Cong. Rec. H741 (daily ed. January 23, 1995), as 
     was an amendment by Representative Wise. Id. at H731.
     \3\Although the Congress is given the authority to implement 
     this article by appropriate legislation, there is no 
     indication that the Congress would have the authority to pass 
     legislation which conflicts with the provisions of the 
     amendment.

  Mrs. FEINSTEIN. Second, I recognize that the exclusion of Social 
Security will make it harder to balance the budget. Taking Social 
Security off budget will require about $3 trillion more in spending 
cuts by the year 2017. However, the alternative of leaving Social 
Security on budget allows Social Security funds to be stolen to avoid 
spending cuts. When the baby-boomer generation begins to retire, there 
will not be any funds available for them to collect.
  In order to address this valid concern, I believe a capital budget 
should be established to assure continued Federal investments in major 
public physical assets. Instituting a capital budget would more than 
offset the effects of moving Social Security from the budget. However, 
I was not permitted to offer this alternative. I was hoping that we 
would have been able to vote on this alternative. However, the Senate 
was denied that opportunity by an 
[[Page S3239]] objection from the other side of the aisle. It is rather 
ironic--we are considering amending our Constitution--the great 
protector of free speech--and my speech was stifled, squashed, and 
censored.
  In conclusion, I do not believe that the working men and women of 
this country are well served if we take the FICA tax moneys that they 
believe will be available for their retirements and use them to balance 
the budget. That is wrong. It is dishonest. It masks the debt. It 
betrays people. And it jeopardizes the retirements of future 
generations. I will not break the trust of the American people.
  I urge my fellow Senators to vote for this honest balanced budget 
amendment. I want to see a balanced budget amendment pass this Senate.
  This amendment can pass--there are enough Senators in this body who 
support a balanced budget amendment to pass this version.
  However, if Senators wish to gamble in an attempt to gather enough 
votes for House Joint Resolution 1, they can.
  I, for one, do not wish to take that risk.
  I will vote for this honest balanced budget amendment.
  Mr. FORD. Mr. President, time is short and I have only a few minutes 
to speak on behalf of the Feinstein substitute balanced budget 
amendment, so I'll keep my remarks to the point. As I have said before, 
the public trusts Congress to keep the Nation's finances in order. 
Nowhere is that agreement and that trust more evident or more important 
than in the governing of the Social Security trust fund. For that 
reason, I have had a great deal of concern about voting for the version 
of the balanced budget amendment that is before the Senate and it is 
that concern which led me to cosponsor with my colleague from 
California, a substitute amendment exempting Social Security from the 
equation.
  The fact is that surpluses in trust funds are being used to hide the 
true debt of our Nation. As I mentioned on the floor last Friday, the 
highway and airport improvement trust funds are being used to hide 
debt. There are billions of dollars in these funds that are expressly 
raised and set aside for the specific purposes of repairing and 
building either highways or airports. What are they being used for? 
I'll tell you, they are being used to hide the actual level of the 
shortfall that we have around here between what comes in and what goes 
out.
  The biggest example of this trickery is in Social Security. The other 
trust funds amount to a few billion dollars apiece, an amount that 
pales by comparison to the Social Security fund. From 1994 through the 
year 2002, the date that the amendment would likely take effect, an 
additional $706 billion in creative accounting and budgetary illusions 
will be used to mask the true size of our Nation's red ink. Well, I 
want to believe that all of us in this body know that these budgetary 
manipulations are not good for the country and should be stopped. Those 
that support the Feinstein substitute amendment will actually be doing 
something about that.
  Senator Feinstein's amendment respects the contract our Nation made 
with its people long ago. It reinforces the Social Security pact, makes 
it stronger, safer, and more secure. By exempting Social Security with 
the substitute amendment, it secures and fortifies its position as a 
separate trust fund. Social Security did not cause the deficit, and 
under our amendment, it will not be used to hide the deficit. Our 
amendment demands honest budgeting to get us to a balanced budget.
  I have heard some argue that this amendment would shield any program 
Congress wanted to protect under the guise of Social Security. This 
simply is not true. We would require the same mechanisms to change the 
structure of Social Security as we do today, a 60-vote supermajority to 
waive the Budget Act.
  Passage of the much-needed balanced budget amendment could be 
guaranteed if we're only willing to tell the American people that we 
will not misplace their trust. Working Americans pay into the Social 
Security system for the purpose of providing a nest egg in their older 
years. Perhaps it will give them the freedom and dignity to live 
independent lives so that they will not be a burden to their children. 
In any case, these taxes are paid to the Federal Government for 
retirement--not for Government operating expenses.
  Mr. President, I will yield the floor shortly so that other Senators 
may speak, but I must add one more thought. Why is it that we have two 
separate and distinct Houses of Congress? As I always remembered from 
my history lessons, the Senate and the House are co-equal bodies. If 
that is the case--and I don't think I will find anyone in the Chamber 
who will disagree with me--if that is the case, then why are we being 
asked to be a rubberstamp for the House? Certainly most things in life 
are not perfect. The Feinstein substitute is not perfect either, but 
surely my colleagues must agree that it is better than the present 
language of the balanced budget amendment. Each body is supposed to 
review the others' actions and try to improve upon them. Surely if 
given a chance, the other body will pass the Feinstein amendment 
language. Why don't we give them a chance? Are we afraid of improving 
this measure? If not, there is no excuse for what has been going on 
here.
  Mr. HATCH. Mr. President, this debate is unnecessary. We have already 
debated and voted on the substance of this amendment. This amendment is 
a substitute balanced budget amendment incorporating the Reid Social 
Security amendment, which has already been rejected by the Senate.
  This issue was debated in committee and it was rejected. Then it was 
brought to the Senate floor, with only a minor alteration in the 
language, where it was debated and rejected again. Now, we are 
encouraging the same amendment for the third time. I also note Mr. 
President, that the distinguished Senator from California voted for the 
balanced budget amendment last year without a similar amendment on 
Social Security. Why?
  We have heard complaints from the opponents of the balanced budget 
amendment that things are moving too fast, that we need to take more 
time, even though we have spent a full month of floor time on this 
constitutional amendment. Well, if all we are going to do is rehash the 
same arguments--and indeed the same amendments--over and over, it is 
time to vote.
  Every minute of every day that we spend debating the balanced budget 
amendment, the debt increases more and more. Over $829 million every 
day. It is right here on my debt tracker chart. And people in 
Washington cannot understand why the American people are so upset at 
their Government it is because we do things like this--have repeated 
debates using the same old arguments on the same amendments we have 
already disposed of, while the country runs up hundreds of millions of 
dollars of debt every day. Business as usual has got to end.
  Mr. President, there is only one reason that I can think of for this 
amendment to be brought to the floor again. The vote
 on this amendment could be used by some Senators who have promised 
their constituents that they would vote in favor of a balanced budget 
amendment the political cover to vote against the Balanced budget 
amendment. In other words, they can claim that they kept their promise 
to vote for a balanced budget amendment by voting for something of that 
name which has no chance of passing, and then not voting for the one 
that does. We know this alternative has no chance because we have 
already had a vote on the modification embodied in this alternative it 
was rejected.

  Mr. President, such a cover vote was offered last year to help defeat 
the balanced budget amendment. Like last year's cover alternative, this 
substitute amendment is simply a sham, a cover vote to allow Members to 
say to their constituents--the vast majority of whom want a balanced 
budget amendment--that they supported a balanced budget amendment, but 
one which would obviously fail. Remember that last year, proponents of 
the real balanced budget amendment were not alone in this assessment. 
The New York Times agreed. As Adam Clymer wrote in the Times last year.

       The substitute version was intended to serve as a political 
     fig leaf that would allow some Senators to vote for the 
     measure and them, after its near-certain defeat, vote against 
     the original version and still tell 
     [[Page S3240]] constituents they had supported a balanced 
     budget amendment.--Option May Doom Budget Amendment (for Now) 
     The New York Times, Friday, February 25, 1994, page A14.

  More interesting, and more damning, is the fact that one of the key 
administration opponents of the balanced budget amendment suggested 
days before the introduction of last year's cover amendment that such 
tactics would be necessary to beat the real amendment. On February 18 
of last year, Leon Panetta, President Clinton's then Director of the 
Office of
 Management and Budget, now his Chief of Staff, and a longtime foe of a 
balanced budget amendment, has this to say:

       If you allow people to say, ``Are you for or against a 
     balanced budget,'' you'll lose it.

  He explained that--

       There are going to be some members who are going to have to 
     have an alternative proposal that they can vote for in order 
     to give them cover to come out against the [original] 
     proposal.

  Describing the process of developing sufficient cover for Members, 
Mr. Panetta further explained that--

       You're basically counting votes and you're basically saying 
     to members, ``What do you need?'' To the extent that a member 
     says, ``I need a constitutional amendment'' * * * you 
     probably have to design an alternative amendment to the 
     Constitution that would in some way protect them.

  Well, Mr. President, here they go again. Given the fact that this is 
the only complete substitute alternative balanced budget amendment, and 
given that the only change from the real balanced budget amendment is 
the addition of Social Security language already debated at length and 
rejected, the purpose of this amendment can be no other than a cover 
vote. Well, Mr. President, the American people will not be fooled by 
this. They want a real balanced budget amendment, and they want it 
passed now.
  Let me repeat for the record, that I believe this amendment would not 
help Social Security recipients. In fact this amendment would create an 
incentive to call as much of the budget Social Security as a clever 
Congress could get away with. This would gut the balanced budget 
amendment, destroy Social Security, and keep us on the path to economic 
ruin. The real threat to Social Security is our mounting debt. If we 
can get that under control with the help of a real balanced budget 
amendment, only then will Social Security and any other Government 
program be safe, and only then will our Nation's economic future be 
brighter, rather than darker, for all our generations.
  Mr. President, I urge my colleagues to table this alternative to the 
real balanced budget amendment.
  Mr. President, I move to table the amendment.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  Mr. NUNN addressed the Chair.
  The PRESIDING OFFICER. The Senator from Georgia.


                    Amendment No. 300, as Modified.

  Mr. NUNN. Mr. President, I ask unanimous consent that my amendment 
No. 300 be modified by the amendment I now send to the desk.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  The amendment (No. 300), as modified, is as follows:

       On page 3, line 3, after the period insert: ``The judicial 
     power of the United States shall not extend to any case or 
     controversy arising under this Article except as may be 
     specifically authorized by legislation adopted pursuant to 
     this section.''

  Mr. DASCHLE. I yield 5 minutes to the distinguished Senator from New 
York.
  Mr. MOYNIHAN. Mr. President, at the outset of this very important 
day, I rise to speak not to the particulars of our budget and our 
budget problems, but to the risk which we take with the entire economy 
by the measure proposed before us; a measure that would place in the 
Constitution a set of propositions that are essentially contrary to 
everything we have learned about the management of a modern industrial 
economy in this extraordinary half century since the enactment of the 
Employment Act of 1946.
  I will take the liberty of reading to the Senate a statement issued 
by the Jerome Levy Economics Institute of Bard College at Annandale-on-
Hudson, NY, written by some of the finest economists gathered together 
in any site in the country today. It was placed as an advertisement in 
the Washington Post, a rare and unprecedented event for the persons 
involved, but a measure of their sense of urgency. It is headed, sir, 
``An Invitation to Disaster.'' It reads:

       The balanced budget amendment would destroy the ability of 
     the United States government to prevent economic depressions, 
     to respond to natural disasters, to protect the savings of 
     tens of millions of working Americans, and, over time, to 
     enable the economy to grow.
       The ability of the federal government to pump money into an 
     ailing economy has time and again in the postwar era limited 
     the depth and duration of a recession and prevented a 
     depression. During the 1957-58 recession, the Eisenhower 
     administration deliberately increased the deficit.

  And from that moment on, sir--and I can say I came to Washington as 
an Assistant Secretary of Labor, policy planning and research, which 
was on the periphery but still very much involved, and took a place in 
the economic response of the Kennedy administration to the recession of 
1961, which followed that of the Eisenhower administration that was 
followed on in the next decade by that of the Nixon administration. We 
have gone, sir, 50 years with only one recession that brought us to a 
significant negative economic growth, which was a 2.2-percent drop in 
1982--50 years. It was the great crisis of capitalism which shook the 
world, shook our country, because we could not manage the business 
cycle, and have yielded to understanding, to discourse, to evidence. It 
was a bipartisan, immensely successful experience to save everything we 
hold most valuable about a free-enterprise, private-market economy.
  We put this in jeopardy. It is an invitation to disaster. The New 
York Newsday, in an editorial this morning, speaks of an ``Unbalanced 
Idea'' and refers to the chart that I have several times shown on the 
floor of the huge swings, boom and bust, starting from the 1890's, the 
panic of 1893, leading up to the postwar period of almost unbroken--the 
business cycle is moderate and the growth is continuous. That chart, 
says Newsday, ``tells it all.'' In part, it reads:

       Since World War II, this country has enjoyed 50 years of 
     economic stability unmatched in modern U.S. history. 
     Recessions have been shorter and shallower, periods of growth 
     markedly longer than during the half century before the war.
       That's largely because government spending has expanded, 
     which works to fill in some of the gaps when recessions hit * 
     * *.

  We have automatic anticyclical measures. It says in this provision 
that we can anticipate and we can vote with a supermajority to raise 
the debt ceilings and such like. No. Mr. President, recessions in our 
country have not occurred until the dating committee of the National 
Bureau of Economic Research announced that they happened. In the 
meantime, the automatic adjustments have been responding long before 
anybody is aware of an economic decline.
  Mr. President, we know this. President after President has understood 
it. The time has come to say we understand it as well and reject the 
amendment.
  Mr. President, I ask unanimous consent that at the conclusion of 
these remarks, we have printed in the Record the statement of the 
Jerome Levy Economics Institute; the statement of the New York Newsday, 
an ``Unbalanced Idea''; and above all, the lead editorial in today's 
Washington Post, sir, which says it all. It is entitled, ``The Urgency 
of Political Courage.''
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

               [From the Washington Post, Feb. 27, 1995]

                       An Invitation to Disaster

       The Balanced Budget Amendment would destroy the ability of 
     the United States government to prevent economic depressions, 
     to respond to natural disasters, to protect the savings of 
     tens of millions of working Americans, and, over time, to 
     enable the economy to grow.
       The ability of the federal government to pump money into an 
     ailing economy has time and again in the postwar era limited 
     the depth and duration of a recession and prevented a 
     depression. During the 1957-58 
     [[Page S3241]] recession, the Eisenhower administration 
     deliberately increased the deficit. That strategy brought a 
     rapid end to the decline. During every recession thereafter, 
     either by design or through circumstance, a deficit was 
     crucial in containing and ending the decline. For example, 
     tax reductions adopted in 1981 were not planned as a counter-
     recession tactic, but the enacted cut that took effect in 
     1982 was the key to the recovery that began in that year.
       Floods in the Midwest, hurricanes in the Southeast, and 
     earthquakes in California during recent years prompted the 
     federal government to spend hundreds of millions to relieve 
     suffering and limit damage. Scientists who study natural 
     phenomena warn against worse disasters. The balanced budget 
     amendment would keep the federal government from dealing with 
     such calamities.
       Occasional man made disasters have occurred throughout the 
     history of capitalism--for example, the savings and loan 
     debacle of the 1980s. Had the federal government not been 
     able to provide the money to validate the deposits of 
     millions of ordinary citizens, their losses and runs on 
     saving and commercial banking institutions would have 
     recreated 1932. To assume that financial crises will never 
     recur is unrealistic.
       The balanced budget amendment ignores the nature of our 
     monetary system. The Federal Reserve and the commercial banks 
     issue money against their holdings of federal debt. Under a 
     balanced budget amendment, the debt will not increase. 
     Eventually the system will not be able to create the money 
     the economy needs in order to grow.--The Jerome Levy 
     Economics Institute.
                                                                    ____

               [From the New York Newsday, Feb. 28, 1995]

               Unbalanced Idea--A Risky Budget Amendment

       The chart that New York's Sen. Daniel Patrick Moynihan 
     showed the Senate a couple of weeks ago tells it all: Since 
     World War II, this country has enjoyed 50 years of economic 
     stability unmatched in modern U.S. history. Recessions have 
     been shorter and shallower, periods of growth markedly longer 
     than during the half-century before the war.
       That's largely because government spending has expanded, 
     which works to fill in some of the gaps when recessions hit 
     and private spending contracts. That counterbalance effect 
     will be far harder to achieve if the nation adopts the 
     balanced-budget amendment the U.S. Senate is scheduled to 
     vote on today.
       So the senators should turn it down. That's too bad, in a 
     way. The federal government has run up its debt to 
     frightening levels during the last 20 years because of its 
     now-routine reliance on deficits--spending more than it takes 
     in--in the bountiful years as well as the bad ones. That 
     should be stopped. But despite President Bill Clinton's 
     effort to change that in his first budget, annual deficits 
     will start growing again in a couple of years.
       Some formal discipline, such as a constitutional amendment, 
     might give presidents and legislators the cover they need to 
     cut popular spending programs and raise unpopular taxes. ``We 
     have to; it's in the Constitution,'' they could say. But the 
     trouble is that the amendment the Senate votes on today, 
     essentially unchanged from the version passed by the House 
     last month, goes too far the other way. It includes no 
     mechanism to allow deficit spending during recessions--when 
     deficits help to keep economic downturns from getting worse.
       There is only an allowance for Congress to waive the 
     balance requirement by a supermajority vote. Winning such a 
     waiver would be far from a certainty, and a minority of 
     lawmakers in either house could block it.
       A realistic mechanism to counter recessions probably could 
     be devised. It's regrettable the Republican leadership took 
     the easier path--the ``just say no to deficits'' approach--
     instead of a responsible one. As a result, it's the Senate 
     that should just say no, today, to an ill-conceived balanced-
     budget amendment.
                                                                    ____

               [From the Washington Post, Feb. 28, 1995]

                    The Urgency of Political Courage

       It is hard to decide which would be worse: if the balanced 
     budget amendment that the Senate is voting on today 
     functioned as its sponsors intend, thereby locking the 
     country into what would often be an ill-advised economic 
     policy; or if Congress found a way to duck the command, 
     thereby trivializing the Constitution and creating a 
     permanent monument to political timidity.
       Take the second possibility. The Constitution of the United 
     States is remarkable because no country in the world has 
     taken its written Constitution so seriously. It is a concise 
     Constitution, and it has not been amended lightly. Other 
     countries have acted as if their constitutions were merely 
     pieces of legislation to be changed at will, but not the 
     United States.
       The balanced budget amendment marks the intrusion of the 
     worst kind of legislative politics onto our constitutional 
     tradition. For about a decade and a half, for mostly 
     political reasons, Congress has not found the fortitude to 
     come even close to balancing the budget. Instead of doing 
     what it should and voting the spending cuts and taxes to 
     narrow the deficit, Congress wants to dodge the hard choices 
     by changing the Constitution. But as Sen. Daniel P. Moynihan 
     argued on ``Meet the Press'' this Sunday: ``My proposition is 
     that you avoid trying to pretend a machine will do this for 
     you. ... You have to do it yourself.'' With or without the 
     amendment, only Congress will get the budget balanced. And 
     who is to say that the amendment, which becomes effective 
     only in 2002, won't delay Congress from making the hard 
     decisions until it is against the wall of its mandate, give 
     it yet another excuse? ``Gosh, we passed the balanced budget 
     amendment,'' the unfailingly inventive members will be 
     inclined to say, ``and it goes into effect in just a few 
     years. Isn't that enough? What do you want us to do? Balance 
     the budget?''
       Sen. Sam Nunn, whose vote could prove decisive, has argued 
     forcefully that this amendment could lead to the judiciary's 
     making decisions on spending cuts and tax increases that 
     ought only be made by the legislative branch. Last night, 
     Sen. Byron Dorgan, another whose vote had been in doubt, 
     voiced a similar reservation. Supporters of the amendment are 
     now trying to win their votes by arguing that legislation 
     could be passed to protect against judicial supremacy. But 
     surely
      Mr. Nunn's first instinct was right: No legislation can 
     supersede the Constitution. If the amendment itself does 
     not protect against judicial interference, there is no 
     guarantee as to how a court will act. And if, on the other 
     hand, there is no enforcement mechanism for the amendment, 
     then why pass it in the first place? It becomes an utterly 
     empty symbol, which is exactly what the United States 
     Constitution has never been and never should be.
       As bad as this prospect is, and effective balanced budget 
     amendment might be even worse. By requiring three-fifths 
     votes to pass unbalanced budgets, it would enshrine minority 
     rule. And while deficits in periods of prosperity make little 
     sense, modest deficits during economic downturns have been 
     powerful engines for bringing the economy back to prosperity. 
     This amendment, if it worked as planned, would shackle 
     government to economic policies that are plainly foolish. 
     Since government revenues drop during recessions and since 
     payments for benefits such as food stamps and unemployment 
     compension increase, the amendment would require Congress by 
     constitutional mandate to pursue exactly the policies that 
     would only further economic distress; to raise taxes, to cut 
     spending, or do both.
       Moreover, as Mr. Moynihan and others have pointed out, the 
     amendment could one day lead to the devastation of the 
     banking system. This might happen because a balanced budget 
     amendment could stall or stop the government from meeting its 
     obligations to protect the depositors of banks that failed 
     during an economic downturn. Mr. Moynihan is not exaggerating 
     when he says that ``everything we have learned about managing 
     our economy since the Great Depression is at risk.''
       Voting against this amendment should be easy. It has been 
     said that were today's vote secret, the amendment would 
     certainly fail. But the political pressures on the undecided 
     senators--Mr. Nunn, Mr. Dorgan, John Breaux, Kent Conrad and 
     Wendell Ford--are immense and largely in the amendment's 
     favor. These senators have an opportunity only rarely given 
     public figures; to display genuine courage on an issue of 
     enormous historical significance. They should seize their 
     moment and vote this amendment down.

  Mr. MOYNIHAN. I thank the Chair and I yield the floor.
  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arkansas is recognized.
  Mr. BUMPERS. Mr. President, I yield myself 10 minutes of the 
democratic leader's time. I request that the Chair notify me when I 
have used 8 of the 10 minutes.
  Mr. President, I have just been looking at the modification that 
apparently the majority party has agreed to in order to accommodate 
Senator Nunn's concerns about the court's role in enforcing this 
amendment.
  I do not want the courts involved, but I do not want to tinker with 
our sacred organic law, either. Because when you take the courts out, 
what you have are the same people charged with the responsibility of 
enforcing this amendment that are now in charge. The only difference is 
you have the requirements of a supermajority of 60 votes.
  The Nunn proposal apparently says that the courts may not involve 
themselves in this matter unless we grant them that authority in the 
future. I can tell you now, I am not ever going to grant them the 
authority to meddle in this. That makes another portion of the 
Constitution, of which James Madison was proudest, a eunuch, because 
then you torpedo the separate branches of Government.
  My amendment, which we are going to vote on this afternoon, is more 
powerful in getting the budget balanced than is this constitutional 
amendment. If you take the courts out, the only thing you have left is 
a 60-vote majority required to unbalance the budget. My amendment does 
that by amending the Budget Act and saying you may not change--you may 
not change--the 
[[Page S3242]]  requirement that every budget resolution, starting this 
year--not in the year 2002, this year--must provide for a deficit 
smaller than the preceding year and a balanced budget in the year 2002.
  This constitutional amendment does not require this body to do one 
blessed thing until the year 2002. We may do it, but there is not 
anything in this thing that requires it. My amendment would require it 
now, not in 2002, not after the Republicans have spent another $471 
billion. That is what the contract calls for between now and 2002, $471 
billion in additional tax cuts and defense spending, and then--and 
then--we will start talking about balancing the budget. It is the 
biggest scam ever perpetrated on an unsuspecting nation.
  There has to be some ambivalence on the other side among some people 
about whether they really want this or not. If they do not get it, it 
will be the No. 1 issue in the 1996 election. ``He voted against a 
constitutional amendment to balance the budget.'' And to the ordinary 
American citizen that is tantamount to voting against a balanced 
budget. Is that not a tragedy, that we have not been able to separate 
the two during this debate?
  I yield to nobody in this body in my efforts to get spending under 
control for 20 years, but I am not willing to tinker with, literally 
trivialize, the sacred organic law of this Nation that makes us the 
oldest living democracy, living under the oldest living document, for 
political purposes.
  So if they lose, they have it all going their way in 1996. ``He voted 
against a budget resolution.'' And the reason I think they are 
ambivalent is because, if they win, then they have to say to the 
American people sometime between now and the year 2002, ``We 
overpromised. It cannot be done.''
  Do you think $1.5 trillion can be cut from the budget between now and 
2002? Why, of course, it is ridiculous. The question answers itself.
  My amendment is tougher than the constitutional amendment, as I say, 
because it puts us on a glidepath now. It starts balancing the budget 
now, not in the year 2002.
  Let me ask my colleagues who are still perhaps undecided: If you vote 
to take the courts out, what do you have? You have a constitutional 
amendment that nobody but the U.S. Congress can enforce. It is wholly 
unenforceable unless we have the spine to do it.
  That is what this amendment is all about. It is an admission to the 
American people that we cannot be trusted to trust them with the truth. 
And it is an admission that we cannot bring the budget into balance. 
And if you take the courts out of this, that is what you have.
  One Senator told me the reason he was voting for it was because he 
wanted the courts to enforce it. And I am wondering now how that 
Senator is going to vote, now that there is going to be a provision in 
the amendment saying they cannot enforce it.
  And if you put the courts in or if you do nothing, there is a chance 
that the courts would take jurisdiction, and then you have unmitigated 
chaos.
  Do you know what the litmus test is going to be in 1996 and 1998 and 
the year 2000? It will not be, ``If you elect me, I will vote for a 
balanced budget amendment. I will vote for a line-item veto. I will 
vote for term limits. I will vote for prayer in school. You tell me 
whatever has a majority of popular opinion. Count me in, I will vote 
for it.''
  The PRESIDING OFFICER. The Chair advises the Senator he has used 8 
minutes.
  Mr. BUMPERS. I thank the Chair.
  Everybody will be campaigning with one additional provision-- ``I 
will never vote and be one of the 60 votes to unbalance the budget.''
  So what do you have? You have a depression, you have a hurricane, you 
have an earthquake, you have floods, you have an S&L bailout, the banks 
fail, and we sit here trying to muster 60 votes and everybody says, 
``No, I promised my people in the last campaign that I would never be 
one of the people who would vote to unbalance the budget.'' A 
depression, so be it. Precisely what Herbert Hoover said, precisely the 
reason we had 25 percent unemployment in 1933.
  I talked to one of my law school classmates yesterday who is a couple 
years older than I. We both remember the Depression. He said to me, 
``Do you know what this country needs? A good depression.''
  They have forgotten why all these laws are in effect--FDIC, FSLIC, 
the Securities and Exchange Commission. They are there because we put 
them in during the Depression to protect people.
  Mr. President, the distinguished floor manager from Utah was quoted 
in the press this morning as saying, ``I pity''--I pity--``anybody in 
this body who votes no.''
  Mr. President, I pity an unsuspecting nation if we vote yes.
  I yield the floor.
  Mr. LEAHY. Mr. President, I share the anger, frustration, and 
impatience of those who want to reduce our deficit. But a 
constitutional amendment simply is not the way to achieve that goal.
  The Senate debate on this constitutional amendment and the amendments 
offered to improve it, which were all tabled by the majority, have 
reinforced my conclusion that the balanced budget amendment is a bad 
idea whose time has not come.
  I have 10 reasons why I believe adoption of this proposed 28th 
amendment to the U.S. Constitution would be a grave mistake.


               it does not reduce the debt or the deficit

  First, the proposed constitutional amendment will not cut a single 
penny from the Federal budget or deficit this year, next year, or any 
year. It is a copout.
  There are only two responsible ways to reduce our budget deficit: cut 
spending or raise taxes. Focusing our attention on this proposed 
amendment only delays us from making progress on those choices.


                     proponents' debt tracker chart

  I have noted the daily ritual of proponents of this amendment using 
their debt tracker chart. That practice is as deceptive as the 
constitutional amendment that we are debating: It misleads the American 
people by suggesting that this debate is responsible for billions of 
dollars of increased national debt.
  But if this resolution had been passed on the first day of debate, 
the national debt would have risen just as fast and just as high. The 
debt tracker has nothing to do with the debate on this resolution. But 
it is symbolic of the lack of substance of the arguments of the 
proponents of this so-called balanced budget amendment.
  Further, the debt tracker is indicative, not of delay by opponents of 
this constitutional amendment, but delay in starting the difficult 
process of cutting the deficit. It is the proponents of the amendment 
that are fiddling while the debt is growing.
  It makes more sense to cast votes that will cut the deficit now and 
not wait until the next century. Of course, this year there is 
additional irony in that the Republican Party has assumed majority 
status in both the House and Senate. As such, it can pass any budget it 
wants. That only requires a majority vote.
  If they want to balance the budget, eliminate the deficit, pay off 
the debt. They can do all that by a simple majority vote in both 
Houses. They do not need a constitutional amendment to do any of this; 
they can do it right now.
  Our Republican colleagues have been preparing for their leadership 
role since November 9. In over 3 months, they have proposed no budget 
resolution, proposed no balanced budget, proposed no budget moving 
toward balance, indeed, proposed no budget at all. Instead, they choose 
to distract and delay through the use of this proposed constitutional 
amendment.
  It is only with resolve and hard work that we make progress. Neither 
is evident in this effort. This is politics pure and simple and no one 
should play politics with the Constitution.


          it will shift burdens to state and local governments

  Second, the proposed amendment contains no protection against the 
Federal Government seeking to balance its budget by shifting burdens to 
the States. This is the ultimate budget gimmick--pass the buck to the 
States.
  That is not the way to cut the Federal deficit--shifting burdens to 
State and local government and requiring them to raise the revenues 
necessary to take up the slack. Working people cannot afford tax 
increases any more easily because they are imposed by State and local 
authorities.
   [[Page S3243]] Unless we carefully balance the budget, this 
amendment could pass the buck to the States. Studies make dire 
predictions if we resort to across-the-board spending cuts--the easiest 
way to avoid the painful choices needed to balance the budget.
  In response to a request from Governor Dean of Vermont, the Treasury 
Department recently studied what could happen to State and local taxes 
under the balanced budget amendment.
  Assuming that Social Security and Defense cuts were off the table, as 
the Republican leadership has promised, the Treasury analysis predicts 
cuts in Federal grants of over $200 million to Vermont in 2002.
  Treasury predicts Vermont would lose $89 million per year in Medicaid 
funding. Treasury predicts Vermont would lose $37 million per year in 
highway trust fund grants. Treasury predicts Vermont would lose $13 
million per year in welfare funding. And Treasury predicts Vermont 
would lose $68 million in other Federal funding.
  To try to offset these losses, Vermont would have to raise State 
taxes by 17.4 percent.
  The Treasury Department forecast higher State taxes not only for 
Vermont, but for the other 49 States as well. Louisiana would have to 
raise State taxes by 27.8 percent to make up for lost Federal funds. 
Rhode Island would have to raise State taxes by 21.4 percent to make up 
for lost Federal funds. South Dakota would have to raise State taxes by 
24.7 percent to make up for lost Federal funds. West Virginia would 
have to raise State taxes by 20.6 percent to make up for lost Federal 
funds. Mississippi would have to raise State taxes by 20.8 percent to 
make up for lost Federal funds, and so on. If we try to balance the 
Federal budget by scaling back essential services, we will just as 
surely be shifting these costs and burdens on State and local 
governments. I know that the people of Vermont are not going to let 
their neighbors go hungry or without medical care.
  And I expect people elsewhere will not either. As much as our 
churches, synagogues, charities, communities, and volunteers will 
contribute, a large share of the costs will fall to State and local 
governments.
  I believe that before we are called upon to consider this 
constitutional amendment, we need to know what its impact is likely to 
be. Certainly before any State is called upon to consider ratification 
of such a constitutional amendment, it should be advised of the likely 
effects on its budget.
  In spite of the majority leader's assurance more than 2 weeks ago 
that Republicans would provide as much detail as possible in the course 
of this debate about how they intend to balance the budget, we have 
heard none. Their secret plan remains secret. Let us get some answers 
and know where we are headed.
                    it will hurt children's programs

  Third, simple arithmetic indicates that sharp cuts will be proposed 
in programs for our Nation's children. Supporters of this amendment 
have promised not to cut Social Security and not to cut defense, 
although they do propose that we cut taxes. What is left?
  Programs like school lunches, education, childhood immunization. 
Under the proposed amendment, programs like these will face likely cuts 
of 30 percent or more.
  The Children's Defense Fund has predicted that across-the-board 
spending cuts from the balanced budget amendment would unfairly balance 
the budget on the backs of children.
  Under the balanced budget amendment in 2002, the Children's Defense 
Fund fears that in Vermont alone: 4,850 babies, preschoolers, and 
pregnant women would lose infant formula under the WIC Program; 7,600 
children would lose food stamps; 13,900 children would lose subsidized 
school lunches; 13,750 children would lose Medicaid health coverage, 
and 2,500 children in child care and Head Start would lose Child and 
Adult Care Food Program meals.
  More than 7 million children nationwide may be thrown out of these 
Federal programs.
  Let us remember that these programs for children are investments in 
our future. Study after study shows that healthy, educated children 
grow up to become productive citizens.
  Take for example the WIC Program, which provides nutrition and health 
care for pregnant women, infants, and children. The GAO indicates that 
in the long haul, a dollar spent on WIC saves $3.50 in health care 
costs. Let us not be pennywise in our deliberations. There will be a 
bill to pay later for unwise, shortsighted cuts, and that bill will be 
left to the next generation.
  I do not want to saddle our children and grandchildren with Federal 
debt, but neither do I want to leave them a legacy of malnutrition, 
poor education, and inadequate health care. Children are our most 
vulnerable population and our most valuable resources for the future.


                   it will encourage budget gimmickry

  Fourth, this proposed constitutional amendment would invite the worst 
kind of cynical evasion and budget gimmickry. The experience of States 
with balanced budget requirements only bears this out.
  Many States with a balanced budget requirement achieve compliance 
only with what the former controller of New York State calls ``dubious 
practices and financial gimmicks.''
  These gimmicks include shifting expenditure to off-budget accounts, 
postponing payments to localities and school district suppliers, 
delaying refunds to taxpayers, deferring contributions to pension 
funds, and selling State assets. The proposed balanced budget amendment 
does not prohibit the Federal Government from using these same and 
other ``dubious practices and gimmicks.''
  With Congress facing a constitutional mandate, the overwhelming 
temptation will be to exaggerate estimates of economic growth and tax 
receipts, underestimate spending and engage in all kinds of accounting 
tricks, as was done before the honest budgeting effort of 1993.
  Passing a constitutional directive that will inevitably encourage 
evasion, will invite public cynicism and scorn not only toward 
Congress, but toward the Constitution itself.
  Let us not debase our national charter in a misguided, political 
attempt to curry favor with the American people by this declaration 
against budget deficits. Let us not make the mistake of other countries 
and turn our Constitution into a series of hollow promises.


                      it is loaded with loopholes

  Fifth, the loopholes in House Joint Resolution 1 already abound. One 
need only consult the language of the proposed amendment and the 
majority report for the first sets of exceptions and creative 
interpretations that will allow Congress to reduce the deficit only so 
far as Members choose to cast responsible votes. The distinguished 
senior Sentor from West Virginia and others have pointed out additional 
problems, as well.
  The Senate Judiciary Committee report says that Congress will have 
``flexibility'' in deciding what is off-budget for purposes of the 
constitutional amendment.
  Proponents expressly exempt in that report the Tennessee Valley 
Authority as ``[a]mong the Federal programs that would not be 
covered.'' What other exemptions are contemplated or will be granted?
  It may mean one thing this year and another the next. It can be 
shifted around the calendar as Congress deems appropriate. Watch out 
for the shifting of fiscal years in order to juggle accounts when 
elections are approaching.
  As the senior Senator from West Virginia so ably explained, this 
proposed amendment gives Congress leeway to rely on estimates to 
measure the budget and to ignore very small or negligible deficits. But 
what is small, what is negligible? With an apology to Everett Dirksen: 
``A billion here, a billion there, after a while it does not add up.''
  I commend Senator Feingold for offering an amendment to strike the 
exemption for the Tennessee Valley Authority from the Judiciary 
Committee report. I voted for it. Unfortunately, my colleagues 
overwhelmingly voted to keep this loophole.
  This proposed constitutional amendment uses the seemingly 
straightforward term ``fiscal year.'' But, according to the Senate 
report, this time period can mean whatever a majority in Congress wants 
it to mean.
  The biggest loophole, of course, is using the Social Security trust 
fund to make the true deficit. I commend Senator Reid and Senator 
Feinstein for 
[[Page S3244]] their amendment to exclude Social Security from the 
balanced budget amendment. Unfortunately, it was tabled by the 
majority.
  Social Security is the true contract with America. And we owe it to 
our senior citizens to make sure we do not balance the budget with 
their lifetime contributions.
  Social Security does not add a penny to our deficit. In fact, the 
Social Security trust fund runs annual surpluses that are now used to 
offset the deficit. In 1995, the Social Security trust fund is 
estimated to run a $69 billion surplus, and by 2002 the Social Security 
trust fund will run annual surpluses totaling $636 billion.
  We should not raid the annual surpluses in the Social Security trust 
fund to balance the budget.


                        it may harm the economy

  Sixth, this proposed constitutional amendment could be economically 
ruinous. During recessions, deficits rise because tax receipts go down 
and various Government payments, like unemployment insurance go up. By 
contrast, the amendment would demand that taxes be raised and spending 
be cut during a recession or depression.
  Last week, the Treasury Department issued a report that concluded the 
balanced budget amendment would have worsened the recession of 1990-92. 
The Treasury Department found that:

       A balanced budget amendment would force the Government to 
     raise taxes and cut spending in recessions--at just the 
     moment that raising taxes and cutting spending will do the 
     most harm to the economy, and aggravate the recession.

  In Vermont, had this amendment been in effect, Treasury predicted 
that between 1,300 to 3,800 more Vermonters would have lost their jobs 
during the 1990-92 recession.
  A study completed last year by the Wharton Econometrics Forecasting 
Associates concluded that a balanced budget amendment would devastate 
the economies of our States. The study found that such a constitutional 
amendment would cause severe job losses and drastic cuts in personal 
income in 2003.
  For Vermont, the study predicted a loss of personal income of $1.2 
billion, an average of 5.4 percent for each Vermonter, and 3,900 lost 
jobs, resulting in a 0.5 percent rise in Vermont's unemployment rate. 
The study predicted dire job loss and devastating economic consequences 
for every other State.
  Economic policy must be flexible enough to deal with a changing and 
increasingly global economy. Yet, the requirements of this proposal 
will tie Congress' hands to address national problems that may 
necessitate deficit spending.
  Senator Boxer and I offered an amendment that would have permitted 
Congress to waive the balanced budget supermajority requirement to 
provide Federal aid in response to a natural disaster as declared by 
the President.
  The Boxer-Leahy amendment would have given future Congresses needed 
flexibility to respond to the needs of natural disaster victims under a 
balanced budget amendment. But once again, the majority voted in lock 
step to table this amendment.
  We should not hamstring the legislative power expressly authorized in 
article I, section 8, of the Constitution. Let us not undo that which 
our Founders wisely provided--flexibility.
  Let us not limit choices and accountability. Instead, let us exercise 
our constitutional responsibilities in the best interests of the 
American people.


                   it invites constitutional clashes

  Seventh, this proposed constitutional amendment risks seriously 
undercutting the protection of our constitutional separation of powers.
  No one has yet convincingly explained how the proposed amendment will 
work and what roles the President and the courts are to play in its 
implementation and enforcement. Constitutionalizing economic policy 
would inevitably throw the Nation's fiscal policy into the courts, the 
last place issues of taxing and spending should be decided.
  The effect of the proposed amendment could be to toss important 
issues of spending priorities and funding levels to the President or to 
thousands of lawyers, hundreds of lawsuits and dozens of Federal and 
State courts. If approved, the amendment could let Congress off the 
hook by kicking massive responsibility for how tax dollars are spent to 
unelected judges and the President.
  Indeed, the Nunn amendment, as modified this morning, arguably makes 
things worse. It seeks to strip the Federal courts, including the U.S. 
Supreme Court of judicial power in connection with cases arising under 
this constitutional provision. The result of the Nunn amendment is that 
State courts are left to interpret and apply the constitutional 
provision and that any conflicts that arise in that interpretation and 
implementation by the courts of the 50 States cannot be considered or 
resolved by the U.S. Supreme Court.
  I do not believe that this is what Senator Nunn  intended, but that 
is the result of the language he has offered. This shows the difficulty 
and danger of seeking to draft constitutional language overnight with 
careful consideration and the input of constitutional experts.
  I applaud Senator Johnston for his foresight in offering an amendment 
to preclude judicial review of this amendment unless Congress 
specifically provides for such review in the implementing legislation. 
The Johnston amendment would have dried up one of the many murky swamps 
surrounding this constitutional amendment. But in their zest to keep 
the Senate version of this constitutional amendment identical to the 
House version, the majority tabled the Johnston amendment.
  Instead of creating future constitutional crises, let us do the job 
we were elected to do. Let us make the tough choices, cast the 
difficult votes and make progress toward a balanced budget.


          it erodes the fundamental principle of majority rule

  Eighth, this proposed constitutional amendment undermines the 
fundamental principle of majority rule by imposing a three-fifths 
supermajority vote to adopt certain budgets.
  Our Founders rejected such supermajority voting requirements on 
matters within Congress' purview. Alexander Hamilton described 
supermajority requirements as a ``poison.''
  As one of my home state newspapers, the Rutland Herald, recently 
noted, James Madison condemned supermajority requirements in Federalist 
Paper No. 58.
  Madison warned that:

       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.

  Such supermajority requirements reflect a basic distrust not just of 
Congress, but of the electorate itself. I reject that notion.
  I am prepared to keep faith with and in the American people.


                it will result in distressing surprises

  Ninth, there is much truth to the axiom that the devil is in the 
details.
  The proposed constitutional amendment uses such general terms that 
even its sponsors and proponents concede that implementing legislation 
will be necessary to clarify how it will work.
  What will this implementing legislation say?
  We will not find out until we see this implementing legislation what 
programs will be off-budget, what role the courts and the President 
will have in enforcing the amendment, and how much of a deficit may be 
financed and carried over to the next year. And who knows what other 
core matters will be added to implementing legislation.
  I do not think that Congress should be asked to amend the 
Constitution by signing what amounts to a blank check. Nor should any 
State be asked to ratify a pig in a poke.
  That is why I voted for Senator Daschle's amendment that would have 
required Congress to tell the American people the details of how we 
intend to balance the budget by 2002. The distinguished minority 
leader's right-to-know amendment was the right thing to do. 
Unfortunately, this amendment was just the first of many to be tabled 
by the majority.
  In the interests of fair disclosure, Congress should first determine 
the substance of any implementing legislation, as it did in connection 
with the 18th amendment, the other attempt to 
[[Page S3245]]  draft a substantive behavioral policy in to the 
Constitution.


                  it is not constitutionally necessary

  Tenth, this amendment does not meet the requirements of article V of 
the Constitution for proposal to the States--it is not constitutionally 
necessary.
  Instead of a sloganeering amendment, what we need is the wisdom to 
ask what programs we must cut and how much we need to raise revenues, 
and the courage to explain to the American people that there is no 
procedural gimmick that can cut the deficit or the debt.
  Let us not proceed with a view to short-run popularity, but with 
vision of our responsibilities to our constituents and the Nation in 
accordance with our cherished Constitution.
  We should quit playing politics with the Constitution. This is folly. 
There is nothing wrong with the Constitution.
  Let us get on with the real business of reducing the deficit and 
balancing the budget.
  Mr. BRADLEY. Mr. President, today's vote on the balanced budget 
amendment is not a vote on how we should reduce our Nation's crippling 
deficit. It's not a vote about the substance of serious deficit 
reduction. After this vote, not a single program will have been cut and 
not a single dollar will have been saved. Instead, this is simply a 
vote on a procedure that will enshrine in our Nation's most sacred 
document both bad constitutional policy and bad economic policy that 
will make it more difficult to counter recessions. It is more likely 
that banks will fail and more certain that disasters will go unabated.
  We all agree on the need to cut the deficit. However, the debate over 
the balanced budget amendment is not about which programs to cut, how 
to stop the unchecked growth of entitlement spending, or what our tax 
policy should be. Instead, this debate is about procedural fixes. It is 
about finding ways to continue ducking the tough choices that need to 
be made, all the while appearing to be concerned about the deficit. If 
a decade of procedural fixes to the deficit has shown us anything, it 
has shown us that such fixes are no substitute for leadership.
  Unfortunately, Mr. President, the amendment we will vote on today is 
simply a substitute for solid, courageous leadership. Before taking 
this route, we would do well to remind ourselves why we were elected. 
Under our Constitution, it is the Congress that is vested with the 
power to make all laws, and it is our obligations as Senators to make 
decisions about these laws and live with the implications of these 
decisions. No one. No President. No Senator has placed the cuts 
necessary for a balanced budget before the American people. We vote on 
the amendment without knowing what it means for citizens who work every 
day.
  The irony of this proposed amendment is that nothing in the 
Constitution stands in the way of a balanced budget. The plain truth is 
that the Senate already has the power to reduce the deficit. Cutting 
the deficit requires leadership now and no amendment to the 
Constitution will cut the deficit if we lack such leadership. In fact, 
we can have a balanced budget whenever enough Members of Congress are 
ready to vote for one. If we agree that deficits should be reduced, 
then we should take the responsibility for making the necessary 
decisions and live with the consequences.
  Mr. President, this amendment does nothing to reduce the deficit. It 
simply allows Congress to postpone action until at least 2002, and even 
then it will not require Congress to balance the budget. Instead, it 
will lead to more gimmicks such as off-balance-sheet budgeting, 
inflated revenue estimates, redefining such terms as CPI, and raids on 
the Government trust funds to mask the size of the deficit. Throughout 
this debate, I have supported efforts to protect Social Security and 
prevent Congress from relying on budgetary gimmicks. Each of these 
efforts has been defeated by the supporters of this balanced budget 
amendment.
  No one disputes that we need to reduce the deficit substantially. The 
massive Federal deficit continues to sap our economic strength by 
raising interest rates and passing an enormous tax burden onto our 
children and grandchildren. Throughout my tenure in the Senate, I have 
introduced legislation to cut wasteful Government spending. I have 
offered proposals to cut wasteful spending in appropriations bills for 
defense spending, for agricultural spending, for Interior Department 
spending, and for HUD spending, among others. I have also offered 
legislation to close many of the tax loopholes that increase the 
Federal deficit by billions of dollars each year. In addition, in 1993, 
I voted for the largest deficit reduction act in our Nation's history. 
That act, which cut the deficit by over $500 billion, passed without a 
single Republican vote in its favor.
  I am also concerned that the balanced budget amendment will serve to 
exacerbate recessions. Currently, Federal spending helps to reduce the 
harm caused by recessions. As the economy slows down, more people 
qualify for unemployment compensation and other Federal assistance 
programs. In addition, as people earn less as a result of the 
recession, they pay less in taxes. While these changes in spending and 
taxes temporarily increase the deficit, they also serve to reduce the 
damage done by recessions to the American economy and families. The 
balanced budget amendment would require the Federal Government to raise 
taxes and cut spending at precisely the same time that such policies 
will cause the most harm. Have we learned nothing from economic lessons 
of the 20th century?
  According to a recent report by the Treasury Department, if this 
amendment had been in place during the 1990-92 recession, an additional 
1.5 million Americans would have lost their jobs as the unemployment 
rate rose to 9.4 percent, the highest level since the enactment of the 
Employment Act of 1946. In New Jersey, we would have seen the 
unemployment rate reach 11.8 percent, as an additional 34,000 to 
103,000 New Jerseyans lost their jobs. Without the support provided by 
Federal assistance programs, many of these families might have found 
themselves destitute.
  Mr. President, not only would the balanced budget amendment that we 
are voting on today aggravate recessions and harm American families, it 
makes no distinction between current operating expenses and long-term 
capital investments. Every family understands the difference between 
credit card debt and mortgage debt. While we need to balance our 
budget, we should not do so in a way that would prevent us from making 
those investments that will be necessary for our children to compete in 
the world economy.
  Despite a balanced budget requirement, New Jersey, along with almost 
all other States, allows the State government to borrow to finance 
long-term capital projects, such as highways, schools, and water 
treatment facilities. Although families are required to balance
 their budgets, they also borrow to buy homes. The balanced budget 
amendment would prevent the Federal Government from borrowing to 
finance long-term projects over their useful lives. As a result, we 
will be far less likely to make these necessary investments in our 
Nation's infrastructure, especially when confronted with the day-to-day 
demands of competing interests. In order to address this risk, Senator 
Biden and I offered an amendment to the balanced budget amendment that 
would have allowed the Federal Government to borrow to invest in long-
term capital projects just as families, businesses, and States do.

  Mr. President, in addition to the damage that this balanced budget 
amendment will cause our economy, I am concerned that the amendment 
will significantly damage our democratic form of government. The 
Constitution is primarily a charter of basic rights, not a prescription 
for economic policy. Unfortunately, while enshrining economic policy in 
the Constitution, this amendment would allow minority rule and 
potentially shift tremendous power to unelected judges--both violations 
of the basic tenets of a representative democracy.
  Of the 26 amendments to the Constitution, all but 2 have been drafted 
to protect the fundamental rights of American citizens or correct flaws 
in the original structure of the Constitution. The only two exceptions 
are the amendments which were passed to establish prohibition and then 
to repeal it.
  Prohibition--established by the 18th amendment and repealed by the 
21st 
[[Page S3246]] amendment--was a scar on the face of our Constitution. 
Its proponents screamed, ``Keep us from drinking'' only to find there 
was not the will equal to the words.
  Mr. President, I find a parallel between the prohibition amendment 
and the balanced budget amendment. Proponents of this amendment scream, 
``Keep us from spending.'' Here also, there must be the will to equate 
the words.
  Without that will, the amendment will make little difference. If our 
experience with Gramm-Rudman and the budget agreement has shown 
anything, it has shown the ability of Congress to get around rules 
meant to limit deficits. If we are unwilling to make unpopular votes, 
the amendment will result in placing more programs off-budget, 
mandating more expenditures by the States, and playing more tricks with 
revenue and expenditure estimates. We have seen these types of gimmicks 
before.
  In 1981, in their official estimates, the Republicans promised the 
Nation that they could cut taxes, increase defense spending, and 
balance the budget--all by 1984. By relying on false estimates to pass 
their legislative programs, the Republicans unleashed a tidal wave of 
red ink. In the almost 200 years leading up to 1980, our Nation amassed 
a Federal debt of roughly $750 billion. Over the next 12 years, this 
debt quintupled to approximately $4.5 trillion.
  Ironically, it is these same empty promises that have led to our 
current budgetary problems. In 1994, total Federal revenue exceeded all 
programmatic spending combined.
 The deficits that we suffer from today are due solely to the cost of 
paying interest on the debt that was run up during the 1980's. If we 
did not have to pay these interest charges, we would have a balanced 
budget today.

  In addition, Mr. President, even with the proposed changes suggested 
by Senator Nunn, this amendment holds the potential to significantly 
expand the rule of the courts. Over 200 years ago, the Framers were 
wise enough to exclude judges from making economic policy decisions. 
Depending on unspecified enabling legislation, this amendment would 
allow judges to make unilateral tax and spending decisions. In fact, 
legal scholars as diverse as Judge Robert Bork and Harvard Prof. 
Lawrence Tribe have opposed the amendment because of the danger posed 
by the expansion of the role of the courts. The change proposed by 
Senator Nunn does not eliminate this danger.
  Furthermore, this amendment will enshrine in the Constitution not a 
balanced budget amendment, but rather the principle of minority rule. 
With this amendment, just more than 40 percent of either House will be 
able to hold the entire Government hostage to their demands. Over 200 
years ago, in The Federalist Papers No. 22, Alexander Hamilton warned 
against the danger of granting a congressional minority a veto power 
over government activities. We would be wise to heed this warning.
  Mr. President, I am painfully aware of the effects which the Federal 
Government's uncontrolled spending is having on this generation and on 
future generations. The longer we wait to address the issue, the more 
enormous the problem is going to be. Balancing the budget will be 
bitter medicine for the entire country. I believe the time has come for 
this bitter medicine. But, Mr. President, I also believe that it is 
fundamentally unfair to ask the American people to take this medicine 
without their full knowledge and consent. Every citizen has a right to 
know what the likely effects of the budget cuts will be before their 
elected representatives are asked to vote on it.
  The bottom line is that we have to decide just what it is that we owe 
to our children. By running deficits, we have been acting as if we owe 
no obligation at all to the future. Traditionally, Americans have 
thought otherwise. We have seen ourselves as part of a progression of 
Americans, linked to each other across time. We have agreed with Edmund 
Burke, who saw society as a ``partnership not only between those who 
are living, but between those who are dead, and those who are to be 
born.'' Otherwise, ``The whole chain and continuity of the commonwealth 
would be broken. No one generation could link with the other.''
  Instead of postponing action with gimmicks such as the balanced 
budget amendment and Contract With America, let's get onto the job of 
fashioning real deficit reduction. One of the great tasks for this 
Congress should be to define--in terms of specific policies and 
spending priorities--what such a partnership across time should mean. 
The first step should be to stop arguing about process and start 
debating substance.
  Mr. President, in the coming weeks, I will propose a package of 
spending cuts that will substantially reduce the Federal deficit and 
place us on a path toward a balanced budget. If the American people are 
to be prepared for the sacrifices necessary to put us back on a track 
toward long-term growth, their elected leaders must be candid in their 
description of the problem and forthcoming in their discussion of 
possible solutions. We must also begin this debate now--not at some 
point in the distant future. Unfortunately, the balanced budget 
amendment before us today simply postpones this debate, while doing 
nothing to actually reduce the deficit. We should defeat it and lead 
with serious action.
             amendment no. 300, nunn amendment, as modified

  Mr. LEAHY. Mr. President, a few hours ago, our distinguished 
colleague from Georgia came to the floor and modified his amendment 
seeking to prohibit judicial review of matters that may arise under the 
so-called balanced budget amendment to the Constitution. In the brief 
opportunity I have to examine the language of his modification, I 
discern a number of serious problems with this amendment.
  The first and most obvious point is that this amendment and the 
language it would add to our fundamental charter, the U.S. 
Constitution, is being considered without adequate study or debate. The 
language has not been the subject of hearings, testimony, examination, 
comment by constitutional experts, or comment by the Department of 
Justice. Nor is there any opportunity provided to obtain adequate 
study. This language was sprung on the Senate this morning without any 
opportunity for Senate debate before the scheduled votes on this 
amendment or the other pending amendments or the constitutional 
amendment, itself. This is not the way to go about considering 
constitutional language. The value of the month of debate in which we 
did engage is likely to be lost in this last-minute maneuvering. That, 
too, is a shame.
  Second, the language of the amendment does not do that which its 
sponsor apparently intends. It does not remove the likelihood of 
judicial review of matters arising under this constitutional language. 
To the contrary, it is expressly limited to denying our Federal courts 
authority to decide cases. Thus, it leaves the courts of the 50 States 
free to determine what this constitutional amendment means and whether 
it is properly implemented.
  It was a proponent of the constitutional amendment, the former 
Republican Attorney General, William P. Barr, who emphasized at the 
Judiciary Committee hearing back on January 5, 1995, a problem with the 
drafting of the constitutional amendment that ``holds some potential 
for mischief.'' That problem, according to Mr. Barr was the possibility 
that ``a State court could entertain a challenge to a Federal statute 
under the balanced budget amendment * * * [T]he State court in such a 
circumstance would have the authority to render a binding legal 
judgment.''
  Mr. Barr went on to suggest that:

       To avoid the possibility that a Federal statute or the 
     Federal budgetary process itself might be entangled in such a 
     State court challenge . . . Congress include a provision for 
     exclusive federal jurisdiction in any implementing 
     legislation enacted pursuant to section 6 of the amendment. 
     Such a provision should be carefully worded so as not to 
     create inadvertently any implied right of judicial review in 
     federal court and so as not to affect any of the otherwise 
     applicable limitations on justiciability.. . .

  The Nunn amendment, as just modified this morning, would do the 
opposite of that which former Attorney General Barr recommended. 
Instead of restricting judicial review to the Federal courts, the Nunn 
amendment prohibits Federal court involvement by the prohibition 
against the extension of the ``judicial power of the United 
[[Page S3247]] States'' to cases and controversies arising under the 
constitutional amendment.
  That serves to funnel court challenges to the myriad State courts. 
Ironically, Mr. Barr was worried that the State courts are not bound by 
the same justiciability doctrines, like standing and the political 
question doctrine, that act to restrain Federal courts from intervening 
in matters in which they are not competent and in which judicial 
determination is inappropriate. Through the Nunn amendment we will, in 
fact, be left with an even less perfect world in which the various 
State courts may choose to intervene in budgetary matters and in which 
the U.S. Supreme Court is literally powerless to stop them or even to 
resolve the conflict among their rulings and competing injunctions of 
spending and taxation.
  Senator Nunn has been quite right to argue, as he has forcefully and 
repeatedly, that we should not leave these important matters to the 
vagaries of implementing legislation. Unfortunately, that is the 
circumstance in which we are left by the Nunn amendment as modified. I 
have little doubt that Congress will reinstate the authority of the 
U.S. Supreme Court in the wake of the implicit authorization of State 
courts left by the Nunn amendment. It is inconceivable that Congress 
would tolerate a situation where supreme courts of different States 
could interpret important provisions of the U.S. Constitution 
differently or in conflict.
  My main point here is that those who believe that by adopting the 
Nunn amendment they have cut off judicial review are mistaken.
  There are other problems with the language of the amendment that we 
are not able to explore before being required to vote on it or the 
constitutional amendment to which it is being attached. Whether once 
the Nunn language is adopted in the Constitution, it is even possible 
in mere implementing legislation to curtail the sole avenue to judicial 
review that we retain through the State courts by way of this amendment 
is a complex constitutional problem. Whether we can effectively strip 
the Supreme Court of authority to construe the Constitution of the 
United States is a much mooted legal question. Whether this amendment 
language can be interpreted to be consistent with the absolute language 
of article III and our 200-year history of respecting the Supreme Court 
and judicial power is another question that will require serious 
reflection that our circumstances in the Senate Chamber today do not 
allow.
  Finally, I cannot support the Nunn amendment for additional reasons. 
One of the enduring guarantees of our Constitution is that its 
provision will be respected and will be enforced. To strip the Federal 
courts of the power to enforce a constitutional right is wrong in my 
view. Too many other countries around the world have embarked on such a 
path with too little result for us to follow. Rather our Constitution 
is one of positive rights that can and should be enforceable. If we 
start by seeking to limit Federal judicial power to protect rights 
under this amendment to the Constitution, what will it mean? What 
rights will we next ask the American people to cede? When will we be 
asked to sacrifice court protection of our first amendment guarantees 
or of the rights to equal protection or due process? This is not the 
way. We need only ask the people of Eastern Europe and elsewhere whose 
constitutions were filled with empty promises. I will not vote to 
degrade and deface our Constitution in this way.
  Mr. SHELBY. Mr. President, Webster's dictionary defines the term 
``red herring'' as ``something that distracts attention from the real 
issue. [From the practice of drawing a red herring across a trail to 
confuse hunting dogs].''
  The reason I share this definition is because most all of the 
arguments we have heard over the past 4 weeks in objection to the 
balanced budget amendment amounts to little more than red herrings. The 
objections are simply distractions from the real issue.
  The real issue is that Federal spending is out of control and unless 
we pass a constitutional amendment to control spending, our children 
and grandchildren will never know the America we take for granted. The 
United States has a current national debt of over $4.75 trillion and 
according to President Clinton's new budget, will be $6.7 trillion in 
the year 2000. I have said it before and I will say it again Mr. 
President, debtors are never free, they are only subject to dominion of 
their creditors. That is the real issue.
  Over the past couple of weeks, we have heard no less then six red 
herrings that are repeated time and again. I would like to take a 
moment to go through them one at a time and explain why they are just 
distractions from the real issue.
  Red herring No. 1: The balanced budget amendment would raid Social 
Security and put the burden of balancing the budget on the elderly.
  The fact is that there is no Social Security trust fund. The surplus 
to which many speak is actually in the form of IOU.'s. The purpose of 
the balanced budget amendment is to ensure the solvency of the United 
States so we can protect the living standards of Americans and pay our 
creditors. If we experience a currency problem like Mexico, we will not 
be able to pay our creditors much less Social Security recipients. If 
you truly care about the elderly and clearly understand the issue at 
hand, I see no other option but to support the balanced budget 
amendment.
  Why do the opponents view the Reid and Feinstein amendments as litmus 
tests to whether we support Social Security? They contest the only 
reason one would not support these amendments is because one wants to 
raid the trust fund. Some of the opponents even say we should be more 
honest with the American people and what we have in mind for Social 
Security. Besides the fact there is no trust fund, this charge is 
completely false and an effort to demagog the issue at hand. To imply 
proponents of the balanced budget amendment favor cutting Social 
Security is incorrect, wrong, and at odds with the consistent 
demonstrated record of advocacy Congress has toward seniors. We should 
not balance the budget on the backs of Social Security recipients. In 
fact, I believe we should help seniors by repealing the earnings limits 
for Social Security recipients. However, proponents of the balanced 
budget amendment believe the solvency of the whole country will do far 
more to protect the standard of living of every American than making an 
ineffective attempt to ensure one particular interest group is 
protected. Which, by the way, those amendments would not do.
  Primarily, these amendments would not protect anyone because Congress 
could, and in my opinion would, reclassify programs such as 
supplemental security income and Medicaid as Social Security. This 
would allow Congress to avoid balancing the budget by using FICA taxes 
to pay these benefits. In addition, Congress could redefine terms in 
the Social Security Act such as the term ``recipient.'' We define who 
the recipients of Social Security are and as such could change the 
definition to include any special interest group.
  Red herring No. 2: The balanced budget amendment is not enforceable. 
The amendment would curtail the authority of and respect for the 
Constitution.
  Section 2 of the amendment requires a three-fifths vote to increase 
the debt ceiling. If you consider that insignificant, I ask why do we 
vote every year to increase the debt limit? Why does the President 
submit his budget by the first Monday in February every year? Neither 
of these procedures are identified in the Constitution. Indeed, these 
budget procedures are based on statute. As U.S. Senators, we are 
obligated to abide by the law. If one suggests that Members will 
arbitrarily disregard the Constitution, then I content you are 
completely off base and your lack of confidence in the institution 
undermines our role as a legislative body in a participatory democracy.
  Red herring No. 3: The people have the right to know how this is 
going to affect them. Proponents of the balanced budget amendment 
should map out the way they will achieve a balanced budget within 7 
years.
  It is true the people need to know what their legislature is doing 
and how its decisions affect them. For the most part, I think they have 
the general idea. However, as former Nobel Laureate of Economics James 
Buchanan has so eloquently stated, ``This argument reflects a failure 
to understand what a 
[[Page S3248]] choice of a constitutional constraint is all about and 
conflates within-rule choices and choices of rules themselves.''
  We have debated year after year and day after day ways to cut 
spending. We have also debated year after year and day and day whether 
or not we should increase taxes. Unfortunately we have been unable to 
achieve significant deficit reduction within the framework we have. The 
choices we have made as a collective
 body have placed us deeper in debt. As a result, we are sincerely 
trying to rectify the problem by changing the framework in which we 
operate. The idea that we are trying to pull the wool over someone's 
eyes is false and seemingly disingenuous.

  Furthermore, I would like to know where right to know advocates were 
when Congress passed the Endangered Species Act and the wetlands 
legislation? Wouldn't one assume the people would like to have known 
ahead of time that a puddle that stands for more then 2 weeks of the 
year would be considered a wetland and that their property rights 
thereof would be foregone? I think they would. Do you think the 
American people would like to have known the inflationary impact of the 
1993 Tax Act before it was passed? I'm sure they would have. The point 
is that there is no way to tell an individual that the balanced budget 
amendment will reduce their Government subsidy by exactly $342.34 or 
that a particular service will be taken from the States and therefore 
State taxes will be increased by exactly $43.25 You can see how absurd 
that request really is. The point is the citizens of the United States 
know all too well the problems of Federal spending. They want to see us 
pass a balanced budget amendment to stop the fiscal hemorrhaging from 
the Nation's Capital. The opponents are correct in that the people have 
a right, but the right they have is for the Federal Government to stop 
spending this country into bankruptcy.
  Red herring No. 4: The balanced budget amendment will have dire 
consequences on the elderly and the children.
  On the one hand the opponents claim a balanced budget amendment will 
lead to draconian cuts in very critical programs. According to them 
every old person, young person, and poor person will be cut off from a 
dignified standard of living.
  Red herring No. 2 claims that the balanced budget amendment is not 
enforceable. No amendment will be able to force the President and 
Congress to balance the budget. Who is going to sue them they ask. 
Well, which is it? Are we going to experience draconian cuts or aren't 
we? The arguments against the balanced budget amendment are faulty 
according to their own logic.
  Since the logic is inconsistent, opponents will try to paint a 
dreadful picture to the American people, hoping this will elevate 
opposition to the balanced budget amendment. Well, I have a frightening 
picture I would like to share with the American people.
  Imagine, one day 30 years in the future, your children are now 
retired and living comfortably. They have worked all their lives, spent 
frugally and saved religiously. One day, they wake up and find the 
value of the dollar has crashed in financial markets. The Federal 
Reserve cannot stop the falling dollar and in response, the Treasury 
prints money. Suddenly, your children's assets are worth half of what 
they were a day before. Inflation is rampant and we are reduced to a 
Third World country. Everything your children have worked for has been 
taken from them because Members of the generations represented in this 
Chamber did not think that addressing the debt was important. Instead, 
Members chose the immediate gratification of consumption.
  The opposition to the balanced budget amendment provides significant 
insight as to why many people do not understand the virtues of 
capitalism. The idea of capitalism means that one chooses to forego 
current consumption and save in order to accumulate capital. In other 
words, deny consumption now for bigger and better things later. To 
gather capital--which by the way, increases productivity and therefore 
living standards--we must deny ourselves immediate gratification. In 
order to pass the America we know on to our children, we must deny 
ourselves immediate gratification and pay the bills we have incurred.
  Red hearing No. 5: The balanced budget amendment is just some popular 
idea we are voting for brought about by the Contract With America. We 
need time to think about a balanced budget amendment.
  The fact of the matter is that the balanced budget amendment is not a 
new idea at all. Thomas Jefferson is well known for saying, ``If I 
could add one amendment to the Constitution, it would be to prohibit 
the Federal Government from borrowing funds * * * We should consider 
ourselves unauthorized to saddle posterity with our debts and morally 
bound to pay them ourselves.''
  In 1936, Representative Harold Kuntson of Minnesota proposed the 
first constitutional amendment to balance the budget. Since then, a 
number of balanced budget amendments have been proposed. We have held 
hearings as far back as 1979 and even passed a balanced budget 
amendment in 1982. Indeed, the issue has come up several times since 
then. Several of the Senators opposing the balanced budget amendment 
have been around for many of those debates.
  The balanced budget amendment is not a new idea that has not been 
justly considered. We know the issue all too well. The balanced budget 
amendment is an idea whose time has come.
  Red herring No. 6: Federal accounting does not allow for capital 
budgeting. Federal accounting would throw chills down the spine of any 
business executive.
  Trying to confront the arguments against the balanced budget 
amendment is like following a bouncing ball. When they are defending 
Social Security, the books are fine, they are in surplus. However, when 
we discuss the tremendous deficits and debt of the United States, the 
Federal accounting is somehow inept.
  Once again, there is an inconsistency in the opponents reasoning. If 
you maintain the argument that Federal accounting is flawed, then one 
must take another look at the books of the Social Security trust fund. 
There is no fund. There is no surplus. According to accounting rules 
used by business executives, liabilities exceed assets. By definition, 
that is not a surplus.
  In addition, I hear analogies being made to the American family in 
that they enter into substantial debt when they purchase a house. They 
have to pay mortgage payments monthly, but they are not worse off. 
Indeed, most would say they are better off. This is true, but lets take 
that analogy one step further as it applies to our national debt. The 
difference is that homeowners do not buy a house this year, and another 
house the next year and another the year after that. A homeowner pays 
down the principal. As a Government, we never get to this point because 
we have to borrow just to pay the interest. It is a perpetual problem 
that feeds on itself.
  The arguments I have just mentioned are the objections opponents make 
to the balanced budget amendment. I call them red herrings because I 
believe such arguments are just distractions from the real issue. The 
term again comes from the practice of drawing a red herring across a 
trail to confuse hunting dogs.
  Mr. President, the trail of debt now tops $4.75 trillion. The red 
herrings of a balanced budget amendment will not convince anyone on 
Wall Street or Main Street. Mr. President, the hunting dogs are not 
confused. The time has come for a balanced budget amendment to the 
Constitution of the United States of America.
  Mr. CAMPBELL. Mr. President, I rise today to speak in favor the 
balanced budget amendment to the Constitution.
  When we began this debate, I spoke on the floor in favor of this 
constitutional amendment as a means to ensure a strong economy and 
protect our children from rising interest payments and the debt.
  There is no doubt that passage of this amendment will raise our 
Nation's savings rate and standard of living.
  Today, I speak in favor of the amendment because I believe the 
American people and the States have the right to make the decision to 
either approve or reject the balanced budget amendment.
  It's often repeated on this floor that the American people want this 
constitutional amendment. Most surveys show that about 80 percent of 
Americans favor it. Likewise, Governors and 
[[Page S3249]] State legislators are calling for its adoption.
  Realizing that the American people want this, and that a general 
feeling of frustration and distrust exists among voters, we should hand 
it to States and ask, ``Do you really want a balanced budget or not?''
  We should bring the debate closer to the people, to the States. 
States have a profound interest in this legislation because their 
budgets will be affected. Of the 50 States, 44 rely on the Federal 
Government for at least one-fifth of their budgets. Alabama relies on 
Federal funds for 58 percent of its budget, and Mississippi relies on 
Federal funds for 41 percent of its budget.
  If elected officials in the States are worried that the sky will fall 
under a balanced budget, as so many have predicted, they can vote 
against the Amendment in the State legislatures.
  On the other hand, if the States think a balanced budget is necessary 
to ensure a strong economy and protect our children from rising 
interest payments and the debt, they can vote for the amendment in the 
State legislatures.
  Opponents claim a constitutional amendment is bad policy, and that 
the voters are not ready for the necessary spending cuts. If that is 
true, let the American people and the State legislatures reject it.
  A recent editorial in the Durango Herald, a newspaper that actually 
opposes the constitutional amendment, yet realizes the need to get our 
fiscal house in order, says, ``Since it's clear this thing is not going 
to just wander off and die, let's get on with it'' and approve it so 
the States can decide.
  The point is that this debate will not end until it is won or lost. 
This debate will not end until the States have the opportunity to 
either approve or reject the balanced budget amendment. In other words, 
to quote the Durango Herald, ``Let's get on with it.''
  I ask unanimous consent that this article from the Durango Herald be 
printed in the Record. Thank you.
  There being no objection, the article was ordered to be printed in 
the Record, as follows:

               [From the Durango Journal, Jan. 15, 1995]

 Pass It and Move On: Let the States Kill the Balanced Budget Amendment

       Amending the Constitution of the United States to require a 
     balanced budget is a terrible idea--and one Congress should 
     approve. Since it's clear this thing is not going to just 
     wander off and die, let's get on with it. Give everyone in 
     Congress the opportunity to posture and pose and send the 
     proposed amendment to the states for ratification. Closer to 
     the people, and the problems, cooler heads will drive a stake 
     through its heart.
       With good reason, the states fear Washington would balance 
     its budget at their expense. And, they have no desire to have 
     federal budgets decided by the courts. Both of those are 
     likely consequences of a balanced budget amendment.
       Of course there are other reasons to oppose such an 
     amendment. For starters, it would be an abdication of one of 
     Congress' fundamental responsibilities. Moreover, it wouldn't 
     work. It's not even certain it would be good if it did.
       Writing in The Wall Street Journal, economist Robert Eisner 
     points out one of the fallacies behind a balanced budget 
     amendment is that deficit spending is inherently bad. One 
     common argument compares the deficit with an individual's 
     finances: ``I balance my checkbook. Why can't the government 
     balance its?'' Eisner says that's wrong on a couple of 
     points.
       Both the government's revenue and its expenditures are tied 
     to the economy in ways that are out of its immediate control. 
     Eisner figures that if unemployment were to go back up to 
     where it was in June of 1992 the deficit would increase by 
     more than $110 billion. What gets cut when that happens? And, 
     if Congress could make that kind of call why do we need a 
     balanced budget amendment?
       A better point is that the checkbook analogy neglects 
     another side of spending. Deficit spending is borrowing, 
     something responsible individuals and businesses do all the 
     time.
       So do states. Although they may have balanced budgets 
     mandated by their constitutions, most also have separate 
     capital budgets financed by borrowing. In checkbook terms, 
     they don't consider themselves overdrawn because they have a 
     mortgage.
       Eisner points out that if the deficit grows at the same 
     rate as national income, the ratio of debt to gross domestic 
     product will stay constant. Like someone who always trades in 
     the car before it's paid off, we'll always be in debt, but 
     never in trouble. Excess debt is crippling, but would our 
     lives be better off if we were compelled to pay for houses, 
     cars and appliances out of pocket?
       What's needed is not a balanced budget, but some 
     responsibility, some agreement as to what's important and a 
     sense of proportion. No amendment will provide that. By 
     sending the balanced budget amendment to the states for 
     execution, maybe we can be rid of it for good.

  Mr. McCONNELL. Mr. President, I rise today to join the chorus of 
support for a balanced budget amendment to the Constitution. This 
action is long overdue. For the last quarter-century the Federal 
Government has failed to pass a single balanced budget. Rhetoric, desk-
pounding, and campaign promises notwithstanding Congress has time and 
time again come up short. The fact is, willpower hasn't done it and 
term limits won't do it. We must be boxed in by a constitutional 
mandate.
  To say the least, Congress' fiscal irresponsibility has frustrated 
the American people. The last election was a collective scream for 
change. Voters did not just send new members to Congress last November, 
but a clear message as well: cut the waste and balance the books.
  The public clamor for term limits is largely attributable to the 
Federal budget fiasco. Ironically, term limits would not work to 
instill courage or fiscal disciple but a balanced budget amendment may 
serve to limit terms as Members are constrained from using the Treasury 
to buy votes.
  Unfortunately, the President has not heeded the message of last 
November, or did not hear it, and sent a budget that embodies more of 
the same. Between 1994 and the year 2000, President Clinton proposes 
that we add another $2.5 trillion to the gross national debt. I fail to 
see how it gets us close to a balanced budget--must be some new math of 
the 1990's.
  Since coming to the Senate 10 years ago, I have listened to those who 
oppose a balanced budget tell the American people that all we need is 
courage. Year after year, Congress runs up billions on the public 
credit card that is to be paid for by future generations. What right do 
we have to ask our children and grandchildren to pay for excesses 
today?
  Thomas Jefferson, a strong proponent of a balanced budget amendment, 
felt very strongly about this. He stated:

       The question whether one generation has the right to bind 
     another by the deficit it imposes is a question of such 
     consequence as to place it among the fundamental principles 
     of government. We should consider ourselves unauthorized to 
     saddle posterity with our debts, and morally bound to pay 
     them ourselves.

  That was the questions our Founding Fathers wrestled with when 
drafting the Constitution. It is the same question we contemplate as we 
cast our votes to amend this living document. Is it our place to ask 
others to pay for our lack of discipline? I think not.
  A balanced budget amendment will serve as a bulwark to ensure that 
spending not exceed outlays. It purposely excludes any reference to 
specific programs--such a detailed blueprint has no place in the 
Constitution. Within this confine Congress can reprioritize spending to 
meet the most urgent needs and eliminate those programs that are 
duplicative or outmoded. Among other things, we will need to redefine 
terminology used in Washington. Only in Washington bureaucratese does a 
cut mean an increase in spending smaller than the increase the year 
before.
  Congress would have 7 years to meet the objective of a balanced 
budget in the year 2002. This will be an evolutionary process in an 
effort to accurately reflect ongoing economic and political changes. In 
testimony before the Senate Budget Committee, on February 7, Secretary 
Rubin echoed these sentiments regarding the difficulty to predict 
economic situations 7 years from now. It would not be possible to 
precisely lay out budget priorities for the next 7 years.
  Mr. President, to ensure we don't continue to resort to higher taxes 
instead of cutting spending to balance the budget, I urge my colleagues 
to support the three-fifths vote requirement to raise taxes. The record 
is clear, Congress has been remarkably resourceful in raising taxes. 
And each time taxes went up it was accompanied by increased spending. 
Clearly, the deficit is not a result of taxing too little, but spending 
too much.
  Mr. President, let's take a look where we are now. Presently, the 
Federal debt is $4.7 trillion. If every man, woman, and child were to 
pay an equal 
[[Page S3250]] share, they would owe about $18,000. Under the Clinton 
proposal, their Federal share would jump to $26,000 by the year 2000.
  Probably one of the most astounding facts is that interest on the 
debt has become the second largest budget item. It amounts to 5\1/2\ 
times more than is spent on education, job training, and employment 
programs combined. On top of that, this budget function is the only 
item truly off-limits. The only way we can reduce it is to balance the 
budget. In the meantime it remains a very substantial charge to 
taxpayers. The Congressional Budget Office predicts that if interest 
rates are even 1 percent higher than predicted, interest costs would 
rise by $50 billion in 2000. This is on top of the $310 billion in net 
annual payments expected that year.
  The cumulative impact of this irresponsible behavior is staggering. 
Deficit spending crowds out savings and investment. Over the last 14 
years, savings has declined from its highest point to record lows. 
Billions are diverted annually from private investment to cover 
government excess, and this has a direct impact on job creation.
  Balanced budget opponents are trying to scare people with Social 
Security nightmare scenarios. The fact is, Congress continues to 
abdicate its fiscal responsibility, it will surely jeopardize future 
commitments to retirees. Only by putting our fiscal house in order now, 
can we continue to honor retirement obligations. Already actuarial 
models show the rapid depletion of the trust funds as baby-boomers 
begin to retire. Unless Congress takes swift action, there will be no 
resources available to support these people.
  Opponents of the balanced budget would like seniors to believe that a 
balanced budget amendment will devastate the trust funds. I would be 
interested in knowing how many of my colleagues who have engaged in 
this rhetoric also supported the President's tax increase on seniors 
that diverted billions from Social Security to the General Treasury? 
This should be a clear indication of the threat posed to the trust fund 
under an unbalanced budget. I am as committed to Social Security as 
anyone and will work to ensure this commitment can be honored, a 
promise which must entail balancing the budget.
  Some in this body seeking to undermine the balanced budget by 
attaching a Social Security exemption. This exemption is a hoax fraught 
with loopholes and questions. This exemption would create an off-budget 
blackhole where more and more programs are sent to be exempt from the 
constraints of a balanced budget. If this prediction comes true, 
seniors will be sharing their special exemption with a multitude of 
other programs. This will threaten the reserves and defeat the purpose 
of a balanced budget. As the old saying goes, ``give them an inch and 
they'll take a mile.''
  No amount of gimmickry will protect future generations like a 
balanced budget will. Only by relieving them of our burdens, can we 
ensure that they can realize a higher standard of living. This is 
something every generation has been afforded until now. I urge my 
colleagues to support the balanced budget amendment to the 
Constitution.
  Wouldn't it be nice if our children could owe a debt of gratitude, 
and not just a debt?
  Mr. KEMPTHORNE. Mr. President, if this Senate has the courage to 
finally approve the balanced budget amendment, I predict that my State 
of Idaho will proudly be the first State to ratify the amendment.
  Idaho eagerly waits the opportunity to do what is right. Idaho will 
not waste 40 years ratifying this amendment, it will not waste 40 weeks 
or even 40 days to approve this amendment. Idaho may well act within 40 
hours to ratify this amendment. And for the simple reason Idaho knows 
what Congress is just now figuring out--our future as a nation, and the 
future of our children demand that Congress stops spending the Nation 
recklessly into debt.
  This past Monday evening I was in Montpelier, ID--population 2,520--
for a Lincoln Day meeting. What impressed me was the number of young 
folks who came.
  Those young folks, Mr. President, were there because they are 
concerned about their own future. They see our generation mortgaging 
away their future. This debate is about bringing us some fiscal sanity 
so that these young people will have a future, and not one that is 
mortgaged away.
  Idahoans, like most Americans, have lived under a State balanced 
budget requirement for years. Has it forced tough decisions? Certainly. 
Has it prevented Idaho from doing some things the people may have 
wanted to do? Undoubtedly. But has it worked? Yes.
  The people of my home State have shown they can and will live within 
a limited budget, on both a personal and governmental level. It is an 
example Congress would do well to follow.
  The truth is Congress soon will once again raise the debt limit, this 
time to more than $5 trillion--a staggering, incomprehensible amount of 
debt, a debt we pass on as our selfish legacy to future generations. It 
is sad to say, but all signs indicate this deficit spending will 
continue unless we make it against the law.
  It has been 26 years since the last balanced budget was approved by 
Congress. 26 years. Mr. President, I was preparing to graduate from 
high school and enter the real world 26 years ago. But for more than a 
quarter of a century, Congress has failed to operate in the real world. 
Congress' world has been one of illusions where, when the money runs 
out, it is like that Doritos Corn Chip ad where Jay Leno boasts, 
``We'll make more.'' In Congress, we fire up the printing presses, make 
more, and add a few extra zeroes to the national debt.
  As many of my colleagues are aware, I had the privilege of serving as 
the mayor of Boise, ID, before coming to the U.S. Senate.
  As chief executive officer for a municipality, I had the 
responsibility to make sure the city's budget was balanced. I did not 
have other options. I could not spend the city into the red. I had to 
prioritize. I would have loved to put more police officers on the 
street. We had vacant parcels of land which had been waiting years for 
grass, ball fields, and playground equipment. It would have been 
fantastic to expand more bus routes, build a new firehouse, and 
purchase a new bookmobile.
  Those were all desirable propositions. But we did what was realistic, 
and we lived within our means.
  And do you know what? We kept our river clean. Our crime rates went 
down. We built some great parks. We modernized our fire fighting 
equipment. We were voted one of the most livable cities in America--``A 
great place to raise a family''--said one national magazine.
  We were able to do that because our mandate from Boiseans was clear: 
Learn to do more with less. And, I would add, Mr. President, that we 
did all this and either held the line or decreased the property tax 
levy the final 2 years I was in office.
  We need to get used to the fact that the American people want the 
Federal Government to cut up its credit cards, prioritize the real 
needs, ignore the wants list, learn to do more with less, and balance 
its budget.
  I mention credit cards, and I am sure this has never happened to any 
of my colleagues, but I had a bit of an embarrassing experience while I 
was back in Idaho this past weekend.
  I pulled out a credit card and gave it to a hotel clerk. She ran it 
through the machine to print out a receipt for me to sign. But instead 
of handing me a receipt, she politely handed me my card back and said, 
``I'm sorry Mr. Kempthorne, but your card expired at the end of 
January.''
  It became painfully clear to me at that moment, that Congress' credit 
card has also expired. And the American people aren't going to issue a 
new card because Congress has run its limit up to a point where we no 
longer have a favorable credit rating.
  When that happens, the solution is obvious. You cut up the credit 
cards and start to pay off the debt.
  The call for fiscal responsibility is nothing new, it has been 
sounding for years. Just over a decade ago, the American people heard 
these words:

       We must act not to protect future generations from 
     government's desire to spend its citizens' money and tax them 
     into servitude when the bills come due. Let us make it 
     unconstitutional for the Federal Government to spend more 
     money than the Federal Government takes in.

   [[Page S3251]] This sage advice came from President Ronald Reagan on 
the event of his second inauguration. His words were true then, and 
they are even more so now. Since he made that call for a balanced 
budget amendment to the Constitution, we have had 10 more years of 
unbalanced budgets, 10 more years of deficits, 10 more years of telling 
our children and grandchildren that they will have to discover a way to 
do what we did not have the courage to do.
  We have been inching closer to passing a balanced budget amendment. 
One reason for this is the tireless efforts of Idaho's senior Senator, 
Larry Craig, who has spent 13 years working to see his dream of 
congressional approval of a balanced budget come true.
  His partners in this effort--Senators Hatch and Simon--have left no 
stone unturned in the effort to get this amendment passed.
  These Senators know better than anyone else here that the Senate has 
approved this amendment in the past, only to have it fail in the House. 
Now, the House has approved a balanced budget amendment, and the eyes 
of the Nation--particularly the eyes of those young people I met in 
rural Idaho this past weekend--are watching and waiting for us to do 
what is right.
  This vote is real this time.
  This vote counts.
  Let us finally stop talking and do what is right: Pass House Joint 
Resolution 1, the constitutional amendment to balance the budget. Idaho 
and the rest of the Nation is watching, and waiting, and is ready to 
act.
  Mr. HEFLIN. Mr. President, I again come to the floor as an original 
cosponsor of the resolution calling for a balanced budget amendment to 
the U.S. Constitution. I do so with the firm belief that this measure, 
and the amendment it would help establish, is the very best hope we 
have now or in the near future of finally getting a handle on our 
massive budget debt and yearly deficits.
  Just as we did in the summer of 1993 by passing the largest deficit-
reduction legislation in history, we again stand at a unique place and 
time in history with regard to addressing our most pressing structural 
economic problems. The American public, through countless opinion 
surveys, consistently ranks deficit reduction as one of its paramount 
concerns. What we did in August 1993 was the right thing to do, and we 
are seeing benefits from that legislation. Deficits are coming down for 
the 3d year in a row. But as we know all too well, that is nowhere near 
enough. The temptation to spend is still a mighty one to resist for 
Congress, regardless of who is in control.
  I believe in the inherent good sense of the American people, and I 
believe that good sense has opened millions of eyes and even hearts to 
the fact that America has been victimized by more than a dozen years of 
borrow-and-spend Federal fiscal policies that have run up a horrendous 
$4 trillion national debt. The public is saying, ``enough is enough. 
This irresponsibility must stop.'' There is a sense of urgency for 
protecting the future of our children and grandchildren. The question 
is whether we will act further with an even more bold step to not only 
reduce the deficit, but to eventually wipe it out completely. If we 
don't seize this opportunity--the best chance we've ever had to pass 
the balanced budget amendment--we might not get another opportunity any 
time soon. We must act to complete what the House has started.
  Unfortunately, our viable alternatives are few. We must finally begin 
to service and reduce our debt or our Nation will face the miserable 
consequences of bankruptcy.
  We are deeply and sincerely committed to doing something about 
deficit reduction. The American people, by all accounts, are prepared 
to do their part. This is one of the few times in my more than 16 years 
in the Senate that I have seen such an array of forces converged in an 
attempt to address this pervasive problem. Indeed, it is rare that we 
ever have a committed public and majority of Congress aligned on any 
economic issue, much less one that strikes at the very soul of our free 
republic. But we need more than just a simple majority. We must get 67 
votes to ratify what the House has already passed overwhelmingly.
  The bottom line is this: We have the momentum to take bold and 
decisive action to begin reducing it. It is an opportunity to build on 
what we started 2 years ago. I am fearful that if we do not act this 
time and finally send this amendment to the States for ratification, we 
will lose that momentum, perhaps never to regain it.
  And so, we can continue to wring our hands and play the blame game, 
or we can act. There is plenty of blame to go around, in both branches 
of Government and both parties, for how we came to this point. But the 
time has come for the blame to end and for us, as a body, to accept 
responsibility.
  Winston Churchill once said, ``If we open a quarrel between the past 
and the present, we shall find we have lost the future.'' We can argue 
forever about what might have been done in the past to avoid the debt 
we face. We do not have the luxury of replaying the past, but we do 
have the present. And the quarreling of the present will only impact 
our future security. Let us heed Churchill's warning and cast a vote 
for the future.
  I implore all of my colleagues to stop the blame game and wringing of 
hands and vote for a new beginning with this resolution calling for a 
balanced budget amendment to the Constitution. Let us give it to the 
States, where it will be fully debated, analyzed, and voted on. This is 
as it should be, because amending the Constitution is gravely serious 
business. This is why the process is so difficult. But the States 
should have the opportunity to decide this issue. Support this historic 
effort at debt reduction by stepping up to the plate and accepting 
responsibility. It is what we have been elected to do. The economic 
future of our Nation depends on us fulfilling that responsibility.


                     amendment no. 300, as modified

  Mr. GORTON. Mr. President, the Nunn amendment fills the last gap in a 
vitally needed balanced budget amendment. It makes clear that the 
responsibility for abiding by its solemn requirements rests in the 
Congress and the President. The prospect of judicial intervention into 
fiscal estimates, and taxing and spending decisions, made exclusively 
by the elected representatives of the people for more than 2 hundred 
years, is appalling. The people of the United States must retain their 
control over those whose decisions so affect their lives and their 
pocketbooks.
  Under the Nunn amendment, of course, Congress may grant this power of 
judicial review with such limitations as it deems appropriate. But the 
power can be withdrawn, and that makes all the difference. Such a power 
is highly unlikely to be misused.
  The balanced budget amendment, House Joint Resolution 1, is the key 
to our commitment to change, to a new course of action to deal with 
deficits that choke our economy and unjustly burden our children and 
grandchildren. It is a revolt against the status quo and the promise of 
a new way. It is a rejection of the old and discredited way of doing 
business, and the promise of a brighter future.
  With the Nunn amendment, the balanced budget amendment is the most 
important initiative of this Congress. It must be approved.
                           amendment no. 291

  Mr. HATFIELD. Mr. President, on February 15, 1995, this body 
considered an amendment by Senator Feingold, the effect of which would 
have been to nullify Judiciary Committee report language pertaining to 
the impact of the balanced budget constitutional amendment on the legal 
status of the Tennessee Valley Authority.
  I opposed the motion to table the Feingold amendment because I 
believe the Judiciary Committee report language related to TVA goes 
beyond the plain meaning of the language of the balanced budget 
constitutional amendment.
  Section 7 of the Senate Judiciary Committee's Report No. 104-5 
indicates that total receipts under section 5 of the proposed 
constitutional amendment are intended to include all moneys received by 
the Treasury either directly or indirectly, except for the proceeds of 
Federal borrowing. The report states that ``total outlays'' under 
section 5 of the proposed constitutional amendment are intended to 
include all disbursements from the Treasury, either directly or 
indirectly through Federal or quasi-Federal agencies created by the 
Congress, whether they are 
[[Page S3252]] on budget or off budget, with the exception of that 
total outlays do not include the repayment of debt principal. In the 
case of TVA or the Bonneville Power Administration, this means that 
their borrowing would not count as a receipt and their debt principal 
repayment would not count as an outlay. This is correct and entirely 
consistent with existing budget law.
  It is the following statement in the Senate Judiciary Committee 
report language that is troubling to me: ``Among the Federal programs 
that would not be covered by Senate Joint Resolution 1 is the electric 
power program of the Tennessee Valley Authority.'' The text of the 
proposed constitutional amendment is clear: There are to be no 
exemptions to the amendment unless the Congress would later waive the 
provisions of the article under the Declaration of War provision in 
section 4. The above TVA report language attempts to go beyond the 
stated language in the proposed constitutional amendment. I do not 
believe this report language can overcome the plain meaning of the text 
of the proposed constitutional amendment.
  Congress has recognized that the power programs of TVA, BPA, and the 
other power marketing administrations are unique and that ratepayer 
revenues should not be traded off against taxpayer appropriations. 
Under our current budget rules, the TVA and BPA power programs are on 
budget, direct spending authority programs. These programs possess 
borrowing authority which is subject neither to sequestration nor 
reduction. This sequestration protection has been provided
 because the funds that would be reduced are derived from electric 
ratepayers and not taxpayers and such reduction would not reduce the 
Federal district.

  We should not return to the time when the Congress was involved in 
detailed power system decision making for the TVA and the BPA. These 
programs must remain direct spending and exempt from sequestration and 
budget reduction. Reduction of the expenditure of ratepayer revenues 
would not help reduce the Federal deficit. At the same time, the 
proposed constitutional amendment as currently written clearly applies 
to TVA and BPA. The Senate Judiciary report language cannot overcome 
the clear language of the proposed constitutional amendment.
  The Senate tabled the Feingold amendment on a vote of 63 to 33. I 
voted against tabling because of my belief that the TVA report language 
would have no effect because it exceeds the language of the 
constitutional amendment. It is my view that the tabling of this 
amendment did the disservice of reinforcing the TVA report language and 
further complicating the ability of courts or this body to clearly 
understand the legislative intent behind this part of the balanced 
budget amendment.
  Senator Feingold has now offered another amendment to force the issue 
of whether this report language overcomes the plain meaning of the 
balanced budget amendment. The point is made in a counterintuitive way 
by seeking to exempt TVA in the legislative language, rather than the 
report language, of the balanced budget amendment.
  Because I oppose exempting TVA from the balanced budget amendment, 
just as I would oppose exempting BPA, I will vote to table the Feingold 
amendment. Regardless of the outcome of this vote, I continue to 
believe that, to the extent it is inconsistent with the text of the 
balanced budget amendment, the underlying report language related to 
TVA should be without effect.
  I yield the floor.
              the balanced budget constitutional amendment

  Mr. ROTH. Mr. President, today I rise as a proud cosponsor of the 
constitutional balanced budget amendment, and I urge its adoption.
  The time has come to put an end to out of control Federal spending 
that has taken money from the private sector--the very sector that 
creates jobs and economic opportunity for all Americans.
  The President's recent budget proposals for next year offer clear 
evidence for the lack of political will to make the hard choices when 
it comes to cutting Government spending. I strongly disagree with 
President Clinton's decision not to fight for further deficit reduction 
this year.
  The American people are crying out for a smaller, more efficient 
government. They are concerned about the trends that for too long has 
put the interests of big Government before the interests of our job-
creating private sector. They are irritated by the double-standard that 
exists between how our families are required to balance their 
checkbooks and how Government is allowed to continue spending despite 
its deficit accounts.
  It is clear, Mr. President. The time has come to heed the will of the 
people. It is our duty, not only to heed their will, but to act in 
their best interest. And this amendment is in their best interest.
  The President's budget maintains deficits of $200 billion over the 
next 5 years, and the deficits go up from there. His budget does not 
take seriously the need for spending restraint--restraint that would 
put us on a path toward a balanced budget by the year 2002.
  In fact, Bill Clinton proposes spending over $1.5 trillion in fiscal 
year 1995 to over $1.9 trillion in the year 2000. In other words, the 
only path that the President proposes is one that leads to higher 
Government spending and ever increasing deficits.
  Mr. President, my decision to co-sponsor this legislation was not 
made lightly. The U.S. Constitution is our Nation's most sacred 
document. Dozens of countries have modeled their constitutions around 
the principles espoused in ours. Many of the emerging democracies 
around the world recognize the profound simplicity and timelessness 
contained in that hallowed document.
  Any amendments to the Constitution should be made with care, and with 
careful consideration of the intended outcome.
  I believe the outcome of a balanced budget for our Nation is one of 
the most important steps we can take to ensure the economic 
opportunities for prosperity for our children and for our children's 
children.
  As a Nation--and as individuals--we are morally bound to pass 
opportunity and security to the next generation. This is what a 
balanced budget amendment will help us do. As Thomas Paine has written, 
no government or group of people has the right to shackle seceding 
generations with its obligations. A balanced budget amendment will help 
us prevent the shackling of future generations.
  As chairman of the Senate Governmental Affairs Committee I have 
outlined a plan to reduce the Federal bureaucracy, eliminate out-dated 
and wasteful Government programs, and to strengthen Government's 
ability to better serve the taxpayers.
  In January I kicked off a series of hearings on Government Reform: 
Building a Structure for the 21st Century. It is my belief that as we 
move into the 21st Century, so should our Government. Innovative 
technologies should allow us to cut out many layers of management 
bureaucracy, and reduce Federal employment. Programmatic changes should 
also occur.
  Just this week I released a report that I asked the GAO to examine 
the current structure of the Federal Government. The GAO examined all 
budget and Government functions and missions. They did not conduct in 
depth analysis, but simply illustrated the complex web and conflicting 
missions under which agencies are currently operating.
  The GAO report confirms that our Federal behemoth must be reformed to 
meet the needs of all taxpayers for the 21st century. I am convinced 
that it is through a smaller, smarter government we will be able to 
serve Americans into the next century.
  Deficit spending cannot continue. We can no longer allow waste, 
inefficiency, and overbearing Government to consume the potential of 
America's future. I am committed to spending restraint as we move to 
balance the budget by the year 2002. And I ask my colleagues--and all 
Americans--to support our efforts.
         this is the vote that counts; do we trust the people?

  Mr. CRAIG. Mr. President, we are now down to final passage of House 
Joint Resolution 1, the BBA.
  [[Page S3253]] No matter how any Senator voted on any amendment 
earlier, your constituents will understand:
  Vote no, and you kill any form of BBA, here and now.
  Vote yes, and you continue one of the great debates of our age.
  This vote is really about engaging the American people in the most 
important public debate about the appropriate role of the Federal 
Government since the Bill of Rights was sent to the States by the First 
Congress.
  Do we trust the people with that debate?
  Do we trust the 80 percent of the people who demand this amendment?
  Do we trust the American people who voted for change last November?
  This Senator trusts the people.


                fundamental rights, limits on government

  A constitution--
  Protects the basic rights of the people;
  Outlines the fundamental responsibilities of the Government and broad 
principles of governance;
  Sets forth just the essential procedures to do these things.
  House Joint Resolution 1 fits squarely within that constitutional 
tradition:
  The American people have a right to be protected from the burdens of 
an intolerable public debt.
  The Framers thought that the limited and enumerated powers of 
government, a gold standard, and a moral imperative would make an 
explicit balanced budget requirement redundant.
  For 150 years, they were right. But times have changed.
  We are having this debate today because the American people are 
demanding that Congress change, as well.


                         the debt is the threat

  Even as we speak, we are adding to the Federal debt: $829,440,000 a 
day; $34,560,000 an hour; $576,000 a minute; and $9,600 a second.
  Americans are paying now, with a sluggish economy. Under current 
trends, our children will pay even more dearly.
  For each year with a $200 billion deficit, a child born today will 
pay $5,000 in additional taxes over his or her lifetime.
  Last year, the President's budget projected that future generations 
face a lifetime net tax rate of 82 percent in order to pay the bills 
left by this generation.
  Total Federal debt is now $4.8 trillion--$18,500 for every many, 
woman, and child in America.
  Gross interest on that debt is $300 billion--the second largest item 
of Federal spending;
  Growing interest payments threaten to squeeze out every other budget 
and economic priority--including Social Security.
             the bba is the best hope for economic security

  A 1992 GAO report shows gains in standard of living of between 7 
percent and 36 percent in 2020 resulting from balanced Federal budgets.
  According to the economic forecasting firm DRI/McGraw-Hill:
  Balancing the budget can create 2.5 million new jobs by 2002.
  Lower interest rates from balancing the budget could increase 
nonresidential investment 4 percent to 5 percent by 2002.
  Balancing the budget could produce an additional $1,000 in per-
household GDP in 2002, in today's dollars.
  We can balance the budget by simply holding the growth of spending to 
3 percent a year until 2002.
  Spending would still grow from $1.53 trillion this year to $1.88 
trillion in 2002--a $350 billion increase in 2002 alone.
  CBO and the Treasury Department say a balanced budget saves $64 to 
$74 billion in 2002, in interest costs. DRI says lower interest rates 
and economic growth would save even more.


                               conclusion

  It's been suggested that we don't need a BBA--we already have the 
power to balance the budget.
  We also have the power to protect freedom of speech and religion, 
protect property rights, and ensure equal protection under the law.
  That didn't stop previous Congresses from including those protections 
in the Constitution.
  Today, it is clear from bitter experience that the American people 
need one additional protection, from a profligate, borrow-and-spent 
government.
  This is not a short-term problem; the Federal Government has run 
deficits for: 57 of the last 63 years; 34 of the last 35 years; the 
last 26 years in a row.
  Washington, Franklin, Madison, and others learned from experience and 
determined that certain protections were inadequate unless provided for 
in the Constitution.
  We should do the same.
  Jefferson said:

       I am not an advocate for frequent changes in laws and 
     constitutions. But laws and institutions must go hand in hand 
     with the progress of the human mind. * * * We might as well 
     require a man to wear still the coat which fitted him when a 
     boy as civilized society to remain ever under the regimen of 
     their barbarous ancestors.

  If you want to ignore the lessons of the last 35 years of excessive 
debt, vote no on this amendment.
  If you are willing to leave our children a stagnant or declining 
standard of living, vote no on this amendment.
  If you want to continue the failed status quo, vote no on this 
amendment.
  If you agree with Jefferson that, ``as new discoveries are made, new 
truths discovered, * * * institutions must advance also,'' then vote 
yes on the balanced budget amendment.
  If you trust the American people, and understand their demand that 
government change its ways, then vote yes on the balanced budget 
amendment.
  If you want today to be the first day of new hope and opportunity for 
our Nation, our economy, and our children, then vote yes on the 
balanced budget amendment.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, how much time do we have remaining on both 
sides?
  The PRESIDING OFFICER. The Senator from Utah has 42 minutes 40 
seconds.
  Mr. HATCH. And the other side?
  The PRESIDING OFFICER. The minority leader has 20 minutes 9 seconds.
  Mr. HATCH. Mr. President, I am just going to finish the last day with 
this balanced budget debt tracker that we have been keeping track of 
throughout this whole debate.
  As you can see, we started 30 days ago and we have gone steadily 
uphill from this baseline of $4.8 trillion.
  We are now, in this 30th day, almost $25 billion more in debt. I do 
not care what anybody says, that is a tremendous problem to this 
country. In other words, while we have been debating this matter, 
almost every day we have gone $1 billion deeper in debt.
  Now, we can scream and shout all we want. We can talk about how 
important it is to do the right thing around here. For 36 years we have 
failed to balance the budget except once--one time in 36 years. The 
people who are fighting this want to continue business as usual, the 
old way of doing things, forgetting about our children and the 
grandchildren and the future of this country while we just continue to 
go up ad infinitum.
  And the President's own budget this year made it very clear that he 
has no serious intent to do anything about bringing deficit spending 
down, because for the next 12 years his budget averages, there will be 
at least $190 billion-plus deficits each of those next 12 years. That 
is, in the next 12 years, trillions of dollars in debt.
  For the first time in history, the House of Representatives has 
passed a balanced budget amendment. Many people think that was a 
miracle after watching the House for all these years. I, myself, feel 
that it was a stunning occasion, as one who has brought the balanced 
budget amendment to the floor of either House for the first time in 
history in 1982, then 1986, and then last year again. We won in 1982. 
We had 69 votes. We lost in 1986 by one vote. We lost last year by four 
votes. Now we have picked up three people who voted against it last 
year, Senator Biden, Senator Baucus, and Senator Harkin, who have 
committed to vote for this. We have lost a few who voted for it last 
year.
  It is coming right down to one vote, one way or the other. This is 
the last chance, it seems to me, for Members to strike out and do 
something that is right for our country, for our children, for our 
grandchildren, and for their future.
  [[Page S3254]] I hear a lot of talk about automatic stabilizers. Let 
me say, the only automatic stabilizer I know is an attempt to live 
within our means. All the automatic stabilizers in the world will not 
work if we do not get spending under control. We are wrecking the 
future of our children and our grandchildren. This is the day. This is 
the day. We will pass this amendment or we will not pass this 
amendment. It is coming down to one solitary vote.
  One thing is crystal clear. That is, we need to move toward a 
balanced budget. During the debate, both sides have cited lots of 
numbers and figures. One such figure is the $4.8 trillion represented 
by the red line on the balanced budget amendment debt tracker.
  But how does one communicate the implications of our staggering debt 
in trillions of dollars? In 1975, before the recent borrowing spree, 
the Federal debt amounted to $2,500 per individual in this country, 
man, woman, and child, and the annual interest charges were roughly 
$250 per taxpayer.
  At the present, the Federal debt amounts to $18,500 for every man, 
woman, and child in America with annual interest rates exceeding $2,575 
per taxpayer. That is what we owe.
  That is at today's interest rates, which could go much higher. Thanks 
to Congress, every American is endowed not only with life or liberty 
but with over $18,500 in individual owed debt. I wonder how long 
liberty will last if we keep going the way we are going.
  The Congressional Budget Office predicts under the current law if we 
continue business as usual, which is what is being argued for here on 
the floor today by the other side--sincerely, I might add. I do not 
find fault with people who differ from us, except I think it is time to 
wake up. The Congressional Budget Office predicts under current law in 
1999 total firm debt will be $6.4 trillion. That is under the 
President's current budget package. It will go from $4.8 trillion, that 
bottom red line, to $6.4 trillion. That means $23,700 per person with 
annual interest cost projected to be over $3,500 per taxpayer. The last 
figures would mean a tenfold increase in per capita debt and a nearly 
fourteenfold increase in annual interest charges per taxpayer since 
1975.
  This breakdown may give a bigger picture of the actual magnitude of 
the debt. It still does not describe human implications. Its human 
implications are that our children are shackled with an insurmountable 
burden as a result of our profligacy. How could you conclude otherwise? 
According to the National Taxpayers Union, a child born today will have 
to pay over $100,000 in extra taxes over the course of his or her 
lifetime in order just to pay the interest on the debt which 
accumulates in just their first 18 years of life; $100,000 more in 
taxes for every kid born today, in the first 18 years of life, the way 
things are going.
  Further, the National Taxpayers Union has calculated that for every 
$200 billion deficit the Government runs up--and we will do it every 
year now for 12 years, according to the President's budget--the average 
child born today will have to pay an additional $5,000 in taxes just to 
cover the interest charges. That is $5,000 for every $200 billion in 
deficit spending that will occur every year now for the next 12 years.
  Think about that. That is $60,000 over the next 12 years that that 
child will have to pay--extra taxes on top of the $100,000 that they 
have to pay in the first 18 years of their lives. Over time the 
disproportionate burdens imposed on today's children and their children 
can include some combination of the following: Increased taxes, reduced 
public welfare benefits, reduced public pensions, reduced expenditures 
on infrastructure and other public investments, and diminished capital 
formation, job creation, productivity enhancement, real wage growth in 
the private economy, and higher interest rates, higher inflation, 
increased indebtedness, and economic dependence on foreign creditors, 
increased risk of default on the Federal debt.
  This sociopathic economic policy has continued under President 
Clinton's latest budget proposal, as I have said. In complete surrender 
to deficit spending, the President's budget runs deficits of around 
$200 billion for each of the next 5 years--actually, 12 years. That is 
$1 trillion right there in the next 5 years added to the debt and 
another $25,000 in tax for today's children. Under recent projections 
of the Congressional Budget Office, we will continue to have deficits 
of about 3 percent of GDP for the next 10 years, increasing as we go 
into the future.
  In a 1992 report, the GAO found that this scenario, which it called 
the ``muddling through option,'' would not be sufficient to avoid the 
severe economic consequences of deficit spending. Among the conclusions 
that GAO reached are the following:
  No. 1:

       If we continue on the current ``muddling through option,'' 
     by the year 2005 the amount of deficit reduction that will be 
     required to limit the deficit to 3 percent of GDP will 
     increase exponentially. By the year 2020, it will require $1/
     2 trillion of additional deficit reduction every year just to 
     maintain a deficit path of 3 percent of GDP.

  No. 2:

       The muddling through path requires one to make harder and 
     harder decisions just to stay in place, partly just to offset 
     the growing interest rates that compound with the deficit. To 
     select this path is to fend off the disaster of inaction, but 
     it would lock the Nation into many years of unpleasant and 
     relatively unproductive deficit debates rather than debates 
     about what Government ought to do and should be doing. It is 
     death by 1,000 cuts.

  No. 3:

       While the implications for the economy of the muddling 
     through approach are less devastating than the no action 
     scenario, they still imply an economy that grows only slowly 
     with ominous implications for the ability to sustain both the 
     commitments made to the retiring baby boomers and a 
     satisfactory standard of living for the working-age 
     population in 2020 and beyond.

  It sounds like shock therapy. The shocking thing about this forecast 
is that President Clinton's much ballyhooed deficit reduction only 
keeps us in this muddling through approach. President Clinton's one-
time fix of record-setting tax hikes does not set us off in the 
direction of responsible Government nor does it move us off the path to 
long-term fiscal disaster.
  It just sets the stage for ever-increasing tax hikes and growing 
debt. I think that the President's latest proposal is best described by 
a famous American who said:

       Look at the President. He started in with the idea of a 
     balanced budget, and said that was what he would hold out 
     for. But look at the thing now. Poor President, he tried but 
     couldn't do it by persuasion and he can't do it by law. So he 
     may just have to give up and say, ``Boys, I've tried, but I 
     guess it's back to the old ways of an unbalanced budget.''

  The amazing thing about that statement is that it was made over 60 
years ago by Will Rogers. You see, Mr. President, budget deficits are 
not new. They are not cyclical. They are not short-term. Budget 
deficits are an institutional, structural problem which must be dealt 
with in a long-term, insoluble rule. We need a constitutional amendment 
to balance the budget.
  The debate is going to end pretty soon. We will all have to vote. I 
just want to point out to my colleagues how expensive our debate has 
been. It has been 30 days since we started. We are now in the 30th day, 
and just in those 30 days we have put us $35 billion further in debt. 
If you stop and think about it, that is over $95 for every man, woman 
and child in America, just in these 30 days.
  I hope the American people have been enjoying the debate. It has cost 
each of them $95 in national debt. One of my staffers told me that much 
would buy him groceries for 2 weeks. I am sure most people watching 
this debate would prefer to have the $95 to spend on something other 
than this debate. Certainly they could have found better entertainment 
for their money than this debate. Any way you cut it, this has been an 
expensive debate. And if the people watching prefer things change, they 
should call their Senators today and tell them you want them to vote 
for change, to vote for a balanced budget amendment. I promise the call 
will be less than the $95 this debate has cost you.
  Now that I have reviewed what will happen without a balanced budget 
amendment, I would like to tell you some of the gains we will enjoy if 
we do adopt it.
  DRI/McGraw-Hill, one of the country's leading nonpartisan economic 
analysis firms, has analyzed the economic impact of the balanced budget 
amendment and has concluded that it will result in a significant 
improvement for our Nation's citizens. Their 
[[Page S3255]] study suggests that the balanced budget amendment would 
greatly brighten the future for Americans of all generations. Among the 
good news following adoption of a balanced budget amendment are these 
highlights:
  As Government spending is reduced, resources will be freed up for 
private investment and interest rates will drop. Both of these factors 
will make it easier for businesses to expand, resulting in the creation 
of 2.5 million new jobs by the year 2002.
  Further, fueled by the drop in interest rates, private investment 
will rise and real nonresidential investment could grow by 4 to 5 
percent by the year 2002.
  Last, by the end of the 10-year forecast, real GDP is projected to be 
up $170 billion from what it would be without the balanced budget 
amendment. That is about $1,000 per household in the United States.
  The balanced budget amendment also serves to protect the civil rights 
of generations of young Americans. As we spend the money of generations 
not yet old enough to vote, we commit one of the most infamous offenses 
against liberty in the history of our country: No taxation without 
representation. Just as the 15th and 19th amendments stand as great 
defenders of our democracy and the right to vote, so, too, does the 
balanced budget amendment. It will prevent Congress from spending our 
children's future wages and preserve their future for them to shape 
their own destiny as all Americans have sought to do.
  Mr. President, we have a clear choice between two visions of the 
future of our children and grandchildren. We can choose to continue 
down the path to oppressive Government and increased taxes, stagnant 
wages, fiscal chaos and economic servitude, or we can choose decreased 
Government burdens, a robust economy, and political freedom. So I think 
it is time for the Senate to pass House Joint Resolution 1 to end 
business as usual and leave a legacy to future generations we can be 
proud of, a legacy of responsible Government and greater personal and 
economic freedom.
  Mr. BUMPERS addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. BUMPERS. Mr. President, I yield myself 1 minute of the minority 
leader's time.
  I have been looking at this chart now for 30 days. It is a beautiful 
chart, very impressive, all these microfigures, $4.6 trillion and so 
on.
  We should remember one thing, between 1981 and 1992, the national 
debt tripled in 12 years--tripled. I am not going to go through the 
rest of it because you have heard it too many times. In 1993, we 
proposed to cut the deficit by $600 billion. I say ``we,'' the 
Democrats proposed to cut the deficit by $600 billion in 5 years and we 
did it without one single Republican vote--50 Democrats plus the Vice 
President. That is the reason the deficit was down $100 billion less 
last year than anticipated.
  If you want to be honest, add one-third to the top of each one of 
those green bars. Add one-third to the top of each one of those green 
bars and that is what it would have been if the Republicans had had 
their way in August 1993.
  I yield 5 minutes to my distinguished colleague from Connecticut on 
behalf of the minority leader.
  Mr. LIEBERMAN. Mr. President, I thank my friend and colleague from 
Arkansas.
  Mr. President, let me say first that this has been a remarkable 
debate, a serious, thoughtful and important debate as befits the 
subject. I must say personally that the result of it has been my own 
increased respect for my colleagues and pride in service in this 
institution. As this debate ends, I wanted to rise briefly to explain 
why I will vote against the balanced budget amendment.
  Our national books obviously are out of balance, and that should 
worry every American because it directly affects every American. We 
spend too much of our wealth each year on interest payments on the 
debt, money that could otherwise remain with taxpayers for them to save 
or invest.
  Because of the deficit, we jeopardize our capacity to fund vital 
programs that we need to enhance our security and our futures. We 
burden our children and their children with a debt that they must pay 
for obligations that we have incurred but not paid for. This is wrong 
and must be stopped.
  That is why I introduced a deficit reduction program during the last 
session of Congress which would have cut more than $150 billion from 
our projected debt. That is why I joined with a bipartisan group of 
colleagues, including Senators Kerrey and Brown, Robb, Gregg, and 
Graham in introducing another deficit reduction package that would have 
cut $91 billion from the deficit. That is why I will work with that 
same group this year to enact further spending cuts. And that is why I 
will support a line-item veto as a reasonable test of whether greater 
Presidential authority will be used responsibly to prune unnecessary 
spending from our Nation's budget.
  But, Mr. President, I will not support this balanced budget amendment 
because it freezes forever in our Constitution the response to a fiscal 
problem--that is budget deficits--that has been a serious problem for 
only a small part of our history, and it does so in a way that will 
alter the fundamental allocation of power in the Constitution from 
elected officials, the President and Congress to unelected judges who 
will inevitably end up interpreting and enforcing taxing and spending.
  Mr. President, we should have more respect for the wisdom of those 
who founded and formed our democracy, if not for our personal capacity 
to govern responsibly than as expressed in this amendment.
  I will also vote against this amendment because it takes our 
Government's responsibility to protect the American people and puts it 
in a straitjacket that will weaken the Government and make it 
difficult, if not impossible, for us to respond to serious military, 
economic or law enforcement threats to our Nation.
  Reducing the deficit is and must be accepted as a very important 
national goal and responsibility. But it is not our only national goal 
and responsibility. Passing this amendment will effectively make 
everything else the Federal Government may need to do subservient to 
balancing the budget, and that, in my opinion, is not a prescription 
for good and strong Government.
  In a given year, the elected leaders of the American people may 
decide that they need to spend more to protect our security or our 
health or our jobs than the balanced budget amendment will allow. They 
should be free to do that, subject to the will of the people as 
expressed at the next election.
  Our aim should be to continue to reduce the deficit each year, both 
in absolute dollars and as a percentage of our gross domestic product, 
as we have in the last 2 fiscal years and as we in Congress must for 
the next fiscal year, even though, sadly, the Administration has not 
sent us a budget that will do so.
  Mr. President, the best way to eliminate the deficit is not by 
forcing into the Constitution our promise to do so. The best way is the 
hard way--by doing so, by continuing the difficult work of reducing the 
size of the Federal Government and cutting its costs until we return to 
a balanced budget.
  Today, Mr. President, I renew my personal commitment to that work, as 
I cast my vote against this amendment.
  I thank the Chair and yield the floor.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. I yield 5 minutes to the distinguished Senator from 
Georgia.
  Mr. NUNN. I thank my friend from Utah.
  Mr. President, as I noted last Thursday, adoption of the balanced 
budget amendment to me is very important, but I also noted that without 
a limitation on judicial review, a limitation which was accepted during 
our 1994 debate when offered by Senator Danforth of Missouri, we could 
radically alter the balance of powers among the three branches of 
Government that is fundamental to our democracy.
  Former Federal Judge Robert Bork, who served as Solicitor General 
during the Reagan administration, has stated that a restriction on 
judicial intervention is ``essential if Congress is not to risk ceding 
some of its most important powers to the Federal judiciary.''
   [[Page S3256]] As Judge Bork has said, without some restriction on 
judicial review, the result--

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

  Former Attorney General Nicholas Katzenback has noted:

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

  Mr. President, the Framers of the Constitution placed the 
constitutional taxing and spending powers in the two elected policy 
making branches of Government, not in unelected life-tenure members of 
the Federal bench, because our Founding Fathers knew well the dangers 
of taxation without representation. The single-most important 
motivating force in the American Revolution was the opposition of the 
American people to taxation without representation. They would have 
found it inconceivable that the power to tax might be vested in the 
unelected, lifetime-tenure members of the judicial branch.
  Mr. President, I have listened with care to the arguments on the 
issue offered by my good friend and superb floor leader on this 
amendment, Senator Hatch, the chairman of the Judiciary Committee. I 
have also conferred at length on this subject with Senator Simon, an 
individual I respect immensely, as well as Senator Craig, who has done 
a superb job on this. All are highly respected in their views and 
knowledge of the Constitution and in this amendment. Senator Hatch, in 
particular, has provided detailed arguments in the Judiciary Committee 
report, on the Senate floor, and in personal discussions with me in 
support of the proposition that an amendment is not needed to address 
the issue of judicial intervention. His arguments are carefully 
researched and well written.
  If my amendment does not pass, if this constitutional amendment does 
pass, if this matter is adjudicated before the Supreme Court, I would 
want the Senator from Utah to make those arguments before the Supreme 
Court because I do not think anyone would be more effective. I just do 
not happen to agree with the arguments because I think, in spite of his 
arguments, there is considerable risk left that the courts would decide 
otherwise.
  The issue before us, however, is not whether we would personally 
agree with Senator Hatch's views on how a court should resolve a case. 
I agree with those views. We are not in the process of filing an amicus 
brief with the Supreme Court. We are writing words that will become the 
text of the Constitution of the United States. We are engaged--and I 
think we all ought to think about this very, very heavily--in the same 
awesome task that was undertaken by the Framers in Philadelphia during 
the Constitutional Convention, and the States will be making those same 
decisions if this amendment is passed and sent to them.
  The issue before us is whether we have taken reasonable and prudent 
action in drafting the balanced budget amendment to ensure that it does 
not result in judicial management of the taxing and spending process. 
In my judgment, we will not have done so unless we adopt an amendment 
on judicial review similar to the Danforth amendment we agreed to last 
year and the Johnston amendment, which was defeated last week by 47 to 
51.
  My concerns are based upon three considerations.
  First, the legislative history of the balanced budget amendment is, 
at best, ambiguous and, at worst, literally invites judicial 
intervention into the taxing and spending process.
  Second, despite my high regard for the legal views of the Senator 
from Utah, I am constrained to note that there are other highly 
respected legal scholars who come to a different conclusion about the 
prospects of judicial intervention.
  We cannot ignore respectable legal arguments based upon the hope that 
the arguments set forth in the Judiciary Committee report against the 
Court becoming unduly involved will prevail before the Supreme Court.
  Finally, if we believe that judicial intervention is inappropriate, 
except as specifically provided by specific legislation, the only 
constitutionally certain means for eliminating the judicial role is to 
authorize the limitations in the text of the Constitution.
        the legislative history of the balanced budget amendment

  Mr. President, the legislative history of the balanced budget 
amendment contains a substantial amount of material indicating that 
Congress has contemplated a role for the courts:
  The discussion in the report of the Judiciary Committee, on page 9, 
expressly declines to state that the amendment precludes judicial 
review. Instead, the report states:

       By remaining silent about judicial review in the amendment 
     itself, its authors have refused to establish congressional 
     sanction for the Federal courts to involve themselves in 
     fundamental macroeconomic and budgetary questions, while not 
     undermining their equally fundamental obligation to ``say 
     what the law is.''

  Mr. President, there is a vast difference between actually 
prohibiting judicial review as opposed to merely ``refus[ing] to 
establish congressional sanction'' for judicial review. An activist 
court, faced with a lawsuit based upon the balanced budget amendment, 
will have no trouble pointing out that Congress consciously decided not 
to prohibit judicial review.
  The express actions of the Senate on this issue underscore the 
potential for such a ruling. Last year, the Senate adopted the Danforth 
amendment expressly restricting judicial review. This year, the Senate 
rejected a similar amendment offered by Senator Johnston. While the 
defeat of an amendment does not necessarily provide conclusive 
legislative intent of a desire to achieve the opposite result, it 
constitutes powerful evidence of intent when the issue is separation of 
powers and the Congress specifically rejects a proposal to frame the 
constitutional amendment in a manner that would protect the 
prerogatives of the legislative branch.
  The intent to provide for judicial review is highlighted by the 
remarks of Senator Hatch, floor manager of the amendment, during the 
debate on the Johnston amendment. During the debate on February 15, he 
made a number of statements reflecting an understanding that the courts 
could be involved in budget decisions, including the following:

       [I]f the Senator writes the courts out of * * * this 
     balanced budget amendment, he will be writing people out that 
     we cannot foresee at this time--I do not know--who may have 
     some legitimate, particularized injury to themselves that 
     will enable them to have standing and a right to sue.
       We do not want to take away anybody's rights that may 
     develop sometime in the future.
       Now we have people in both bodies who want the courts 
     involved * * *. Can we satisfy those who do not want the 
     courts involved in this to the exclusion of those who do?
       I might add that some do like the courts involved in some 
     of these areas.
       Congress should not, as the distinguished Senator from 
     Louisiana proposes, cut off all judicial review * * *. A 
     litigant in such a narrow circumstance, if he or she can 
     demonstrate standing, ought to be heard.

  Similar statements were made by Senators Brown, Thompson, Santorum, 
and Craig.
  The legislative history in the House is even more of a problem. As 
Senator Levin noted on February 15, Representative Schaefer, a lead 
sponsor of the House amendment, has said:

       A member of Congress or an appropriate administration 
     official probably would have standing to file suit 
     challenging legislation that subverted the amendment.
       The courts * * * could invalidate an individual 
     appropriation or tax Act. They could rule as to whether a 
     given Act of Congress or action by the Executive violated the 
     requirements of this amendment.

  Representative Schaefer's statements echoed those set forth in a 
document prepared by an ad hoc group known as the Congressional Leaders 
United for a Balanced Budget Amendment, which was included in the 
Record last year by Senator Craig on March 1, 1994. The statements by a 
lead sponsor in the House represent a wide open invitation for the 
unelected, life-tenured members of the judicial branch to make 
fundamental policy decisions on budgetary matters.
  [[Page S3257]] Mr. President, I have the highest respect for the 
judiciary. As a general matter, the judiciary has treated questions 
involving the power to tax and spend as political questions that should 
not be addressed by the judicial branch. There will be a fundamental 
difference, however, when the balanced budget amendment becomes part of 
the Constitution, the fundamental law of the land.
  Our constituents view the balanced budget amendment as a
   means to address taxation and spending decisions over which they 
feel less and less control. They would be sorely disappointed, if not 
outraged, if the result of the amendment is to transfer the power to 
tax and spend from elected officials to unelected, life-tenure judges.


        contrasting views on the issue of judicial intervention

  The Judiciary Committee report, which reflects the committee's and 
Senator Hatch's thoughtful legal views, sets forth three basic 
arguments in support of the proposition that an amendment to the 
balanced budget amendment is not necessary to restrict judicial review:

       (1) limitations on Federal courts contained in article III 
     of the Constitution, primarily the doctrine of ``standing''; 
     (2) the deference courts owe to Congress under both the 
     ``political question'' doctrine and section 6 of the 
     amendment itself, which confers enforcement authority on 
     Congress; and (3) the limits on judicial remedies to be 
     imposed on a coordinate branch of government--limitations on 
     remedies that are self-imposed by courts and that, in 
     appropriate circumstances, may be imposed on the courts by 
     Congress.

  There are other views, however, from individuals who have served at 
the highest levels in the Justice Department in both Republican and 
Democratic administrations, as well as from distinguished legal 
scholars.
  President Reagan's Solicitor General, Prof. Charles Fried of Harvard 
Law School, has testified that:

       [M]ost constitutional scholars agree that recent Supreme 
     Court jurisprudence would favor allowing a fair range of 
     issues relating to the implementation of the amendment in the 
     form now before you to become the subject of litigation and 
     court determination.

  Professor Fried also observed that:

       [T]he amendment would surely precipitate us into subtle and 
     intricate legal questions, and the litigation that would 
     ensue would be gruesome, intrusive, and not at all edifying.

  Professor Fried cautioned against reliance on the political question 
doctrine to limit judicial review under a balanced budget amendment:

       I cannot be confident that the courts would treat as a 
     political question a demand by a taxpayer or by a member of 
     Congress that further spending * * * should be enjoined * * * 
     I cannot be confident that the courts would stay out of this.

  The current Assistant Attorney General for Legal Counsel, Walter 
Dellinger, who previously served as a professor law at Duke, testified 
last month that:

       [T]his amendment, once part of the Constitution, may be 
     read to authorize, or even mandate, judicial involvement in 
     the budgeting process. When confronted with litigants 
     claiming to have been harmed by the government's failure to 
     comply with the amendment, or by impoundment undertaken by 
     the President to enforce the amendment, courts may well feel 
     compelled to intervene. * * *.
       The proposal appears to contemplate a significant expansion 
     of judicial authority: state and federal judges may be 
     required to make fundamental decisions about taxing and 
     spending in order to enforce the amendment. These are 
     decisions that judges lack the institutional capacity to make 
     in any remotely satisfactory manner.

  Mr. Dellinger specifically addressed the possibility that the courts 
could mandate increases in Federal taxes:

       [The amendment] fails to state whether federal courts would 
     or would not be empowered to order tax increases in order to 
     bring about compliance. In Missouri v. Jenkins, [495 U.S. 33 
     (1990)] the Supreme Court held that a federal district court 
     could mandate that a state increase taxes in order to fund a 
     desegregation program * * *. Once the outcome of the 
     budgeting process has been specified in a constitutional 
     amendment, a plaintiff with standing might successfully argue 
     that he or she had a right to have a court issue whatever 
     relief is necessary to remedy the constitutional violation. 
     The failure of the amendment to preclude such powers might 
     even be thought to suggest, in light of Jenkins that the 
     possibility deliberately was left open.

  Mr. President, I recognize, as Senator Hatch has argued, that Jenkins 
arose under the 14th amendment, which guarantees due process and equal 
protection, and not under a balanced budget amendment. The problem, 
however, is that the Supreme Court in Jenkins authorized a lower 
Federal court to mandate the imposition of taxes by a State, even 
though the imposition of taxes by the Judiciary was not contemplated by 
the Framers of the 14th amendment of the congressional legislation 
implementing the 14th amendment.
  Justice Kennedy, concurring in the result in Jenkins, rejected the 
majority's conclusion that a court could order a State to raise taxes, 
citing the very concerns that motivate my amendment:

       Our Federal Judiciary, by design, is not representative or 
     responsible to the people in a political sense; it is 
     independent. * * * It is not surprising that imposition of 
     taxes by an authority so insulated from public communication 
     or control can lead to deep feelings of frustration, 
     powerlessness, and anger on the part of taxpaying citizens. 
     495 U.S. at 69.

  Those are the very concerns that should compel us to ensure that the 
Federal Judiciary does not assert similar powers to mandate the 
issuance of Federal taxes.
  Mr. Dellinger outlined other types of suits that could arise:

       [I]t is possible that courts would hold that either 
     taxpayers or Members of Congress would have standing to 
     adjudicate various aspects of the budget process under a 
     balanced budget amendment. 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 in reliance upon the 
     amendment, in the event that he determines that he is 
     compelled to enforce the amendment by impounding funds. In 
     addition, a criminal defendant, prosecuted or sentenced under 
     an omnibus crime bill that improved tax enforcement or 
     authorized fines or forfeitures, could argue that the bill 
     ``increased revenues'' within the meaning of Section 4. 
     Surely such a defendant would have standing to challenge the 
     failure of the Congress to enact the entire bill--not just 
     the revenue-raising provisions by the constitutionally 
     required means [under the Balanced Budget Amendment] of a 
     majority rollcall vote of the whole number of each House of 
     Congress. Budget bills that include enforcement provisions 
     could prove similarly vulnerable.

  Prof. Cass Sunstein, a well-known constitutional expert and the Karl 
N. Llewellyn Distinguished Service Professor of Jurisprudence at the 
University of Chicago Law School, sent me a letter yesterday commenting 
on this debate. I ask unanimous consent that the letter be included in 
the Record at the conclusion of my remarks.
  Professor Sunstein, who makes it clear that he is not an opponent of 
the balanced budget amendment, argues forcefully for an constitutional 
provision restricting judicial review. He observes that:

       Senator Hatch's arguments are of course reasonable, and it 
     is to be hoped that courts would follow those arguments; but 
     courts could find a sufficient basis in the text of the 
     proposed amendment and in precedent to engage in judicial 
     management under the amendment.

  In his letter, Professor Sunstein notes:
       There is a legitimate risk that the balanced budget 
     amendment would produce a significant increase in judicial 
     power. If it comes to fruition, this risk could compromise 
     the democratic goals of the amendment.

  Prof. Kathleen Sullivan of Stanford University Law School also wrote 
to me yesterday commenting on the need for an amendment restricting 
judicial review. According to Professor Sullivan:

       There are at least three categories of litigants who might 
     well be able to establish standing the challenge violations 
     of the Amendment. First, taxpayers might claim that their 
     rights to a balanced budget are violated, for example, by 
     projections that outlays will exceed receipts. * * * Second, 
     members of Congress might well have standing to claim that 
     congressional actions have diluted the vote they were 
     entitled to exercise under the amendment. * * * Third, 
     persons aggrieved by actions taken by the government in 
     claimed violation of the amendment might well have standing 
     to challenge the violation.
       Each of these claims poses plausible claims of injury in 
     fact, and none of them poses insurmountable problems of 
     redressability. In most of them, in fact, simple injunctions 
     can be imagined that would redress the plaintiffs' claims.

  I ask unanimous consent that a copy of Professor Sullivan's February 
27, 1995, letter to me be included in the Record at the conclusion of 
my remarks.
[[Page S3258]] statutory limitations on judicial review must be ground 
                          in the constitution

  Mr. President, there have been suggestions that my amendment is not 
necessary because a constitutional amendment is not needed to enable 
Congress by statute to restrict judicial intervention in the future. If 
my judicial review amendment is not passed and the constitutional 
amendment is ratified, I hope that my colleague and friend Senator 
Hatch will take the lead in making these arguments. I would hope that 
his arguments would prevail, but I do not believe that we should take 
the enormous risk that the courts would not agree.
  In the first place, until we determine that there is a majority in 
favor of such a proposition, there is no guarantee that such 
limitations would be placed in the implementing legislation. I would 
like to believe that a conservative institution would not find it 
difficult to preclude judicial management of the budget process. I had 
much greater faith in the belief until the Johnston amendment was 
defeated February 15. Reviewing that debate, and the various statements 
by leading Members about the potential for judicial review, I do not 
believe it is responsible for us to postpone that decision.
  Second, I am not certain that there will be a majority in favor of 
any specific proposition. Some favor a complete ban on judicial relief. 
Some favor declaratory judgments. Others appear to favor standing for 
Members of Congress. Still others believe that the rights of 
individuals or groups should be subject to vindication. Again, let's 
vote now and uphold the longstanding conservative principle that judges 
shouldn't be involved in taxing and spending decisions.
  Third, I am not persuaded by the argument that section 6 of the 
amendment, which states that ``Congress shall enforce and implement 
this article by appropriate legislation,'' precludes judicial review. 
Section 6 is not a grant of exclusive power--it does not state that 
``only Congress'' shall enforce the legislation. In light of the 
legislative history that I have discussed earlier, there is no basis 
for concluding that section 6 was intended to exclude the Judiciary 
from enforcing the act. As Professor Sullivan noted in her February 27 
letter to me:

       The proposed Amendment, as did [the 13th, 14th, and 15th] 
     Amendments gives Congress authority to legislate, but it does 
     not oust the courts, who need not defer to Congress in these 
     matters.

  Fourth, although I agree that the courts have sustained certain 
statutory limitations on judicial review of statutory and common law 
rights, there is no case in which the Supreme Court has held that 
Congress could cut off all avenues of judicial review of a 
constitutional issue. As noted in the highly respected analysis of the 
Constitution prepared by the Congressional Research Service:

       [T]hat Congress may through the exercise of its powers 
     vitiate and overturn constitutional decisions and restrain 
     the exercise of constitutional rights is an assertion often 
     made but not sustained by any decision of the Court.

  In Webster v. Doe, 486 U.S. 592 (1988), for example, the Supreme 
Court emphasized that a ```serious constitutional question' * * * would 
arise if a federal statute were construed to deny any judicial forum 
for a colorable constitutional claim.''
  Charles Fried, Solicitor General in President Reagan's 
administration, has stated:

       [S]ection 6, as it is written, does not allow Congress to 
     so limit jurisdiction, and it seems to me that if Congress 
     tried to limit jurisdiction in this way without an express 
     authorization, which there is not in this bill, that 
     limitation itself might well be unconstitutional

  Professor Sunstein, in his February 27 letter to me, expressed 
similar concerns:

       If your proposed change, or some version of it, is not 
     added, it is by no means clear that Congress can forbid 
     judicial involvement by statute. Courts are quite reluctant 
     to allow Congress to preclude judicial review of 
     constitutional claims. . . . Courts would be especially 
     reluctant, perhaps, to preclude judicial review of an 
     amendment specifically designed to limit Congress' power to 
     provide for budget deficits. One could easily imagine a 
     judicial decision invalidating implementing legislation that 
     denies a judicial role, on the theory that the balanced 
     budget guarantee--without your amendment--is best understood 
     to contemplate a firm judicial check on congressional 
     activity.


                     the responsibility of congress
  Mr. President, the report of the Judiciary Committee indicates there 
is little likelihood of judicial involvement in the taxing and spending 
process under the budget amendment, and they cite the history of this 
country in that regard. The difference is that now, if this amendment 
is in the Constitution, it will be a different Constitution than has 
framed the history of our country.
  Mr. President, others including leading constitutional authorities 
from both the Republican and Democratic Parties believe there is a 
reasonable likelihood the amendment could transform the courts into the 
forum for managing the budgetary process.
  To me, the risk is too high. In the face of conflicting legal views 
by respected authorities, it is our responsibility to act. If we 
believe, as I do, that we should not risk subjecting the budget process 
to judicial management, then we should adopt my amendment.
  I have modified that amendment now. The amendment very simply --and I 
am not quoting it, but the very simple essence of the amendment is that 
the judicial power of the United States shall not extend to any case or 
controversy arising under this article except as may be specifically 
authorized by legislation adopted pursuant to this section.
  In other words, Mr. President, the Congress will decide the 
jurisdiction of the courts. The courts will not decide it on the basis 
of constitutional interpretation. We can change the implementing 
statute if it does not work. We can mold it later. We can mold the 
statute after we have decided what the enforcement mechanism here is 
because those two things have to be considered together.
  So it is my hope that this amendment, which is now modified, will be 
accepted by the managers of this bill and it will be accepted by my 
colleagues. If it is, then I plan to support this overall 
constitutional amendment because I think it is enormously important 
that we have a mandate to the Congress of the United States to get this 
budget and our fiscal house in order. Nothing else has worked. This is 
the last resort.
  I wish we had not reached this point. I wish we had been able to use 
our normal political process, because I do not like amending the 
Constitution of the United States. However, I do believe it is the last 
resort.
  Mr. President, I am concerned about other areas that my colleagues 
are concerned about. I am concerned about Social Security. I am 
concerned about economic emergency. But my bottom line has been and is 
today that it is my fervent hope this judicial article, this judicial 
amendment will be put into this constitutional amendment so there is no 
doubt about the intent of Congress and the authority of Congress in 
managing the taxing and spending of this great country.
  There being no objection, the letters were ordered to be printed in 
the Record, as follows:

                             University of Chicago Law School,

                                   Chicago, IL, February 27, 1995.
     Hon. Sam Nunn,
     U.S. Congress, Washington, DC.
       Dear Senator Nunn: As a teacher of constitutional law, I am 
     writing to endorse your remarks about the balanced budget 
     amendment on the Senate floor on Thursday. There is a 
     legitimate risk that the balanced budget amendment would 
     produce a significant increase in judicial power. If it comes 
     to fruition, this risk would compromise the democratic goals 
     of the amendment.
       It is certainly not clear that current political question 
     and standing doctrines would bar judicial involvement under 
     the proposed amendment. Issues involving spending and 
     taxation do not necessarily involve political questions, and 
     the balanced budget amendment, unaccompanied by a change of 
     the sort you propose, would increase the risk that political 
     questions would become legal questions. The political 
     question doctrine is extremely narrow in the aftermath of 
     Baker v. Carr, 369 US 186 (1962), and it is certainly 
     possible that a court would find, in the amendment, 
     ``judicial administrable standards'' for the grant or 
     injunctive relief. Under existing law, no one can rule out 
     the possibility that the political question doctrine would be 
     held inapplicable to the balanced budget amendment. Cf. 
     Michael v. Anderson, 14 F3d 623 (DC Cir 1994).
       Taxpayers and citizens as such would probably lack standing 
     to enforce the amendment, but as you stated, it is certainly 
     possible to think of potential litigants with direct 
     financial interests at stake who would 
     [[Page S3259]] claim that, if the amendment were not 
     followed, and if the budget was not balanced, they would 
     suffer from an ``injury in fact'' sufficient to trigger 
     judicial review under Lujan v. Defenders of Wildlife, 112 S. 
     Ct. 2130 (1992). At the very least, it can be said that 
     costly and time-consuming debates about justiciability would 
     ensue, and we cannot reasonably rule out, in advance, the 
     prospect of undemocratic and unprecedented judicial 
     involvement in the budgetary process.
       In this light your proposal--limiting the judicial role--
     seems to me to make a great deal of sense. You are certainly 
     correct to say that the legislative history of the balanced 
     budget would not rule out judicial management. The 
     legislative history of a constitutional amendment is 
     relevant, but it does not resolve the question of 
     constitutional meaning. Senator Hatch's arguments about 
     likely judicial deference are of course reasonable, and it is 
     to be hoped that courts would follow those arguments; but 
     courts could find a sufficient basis in the text of the 
     proposed amendment and in precedent to engage in judicial 
     management under the amendment.
       If your proposed change, or some version of it, is not 
     added, it is by no means clear that Congress can forbid 
     judicial involvement by statute. Courts are quite reluctant 
     to allow Congress to preclude judicial review of 
     constitutional claims. See Webster v. Doe, 486 US 592 (1988), 
     allowing review of employment decisions by the Central 
     Intelligence Agency in the face of a claim that a discharge 
     of a homosexual employee was unconstitutional. Webster shows 
     that even in highly sensitive areas, judges will be likely to 
     allow review, in part because serious constitutional issues 
     would be raised by an effort to insulate constitutional 
     claims from judicial scrutiny.
       Courts would be especially reluctant, perhaps, to allow 
     Congress to preclude judicial review of an amendment 
     specifically designed to limit Congress' power to provide for 
     budget deficits. One could easily imagine a judicial decision 
     invalidating implementing legislation that denies a judicial 
     role on the theory that the balanced budget guarantee--
     without your amendment--is best understood to contemplate a 
     firm judicial check on congressional activity. I add that you 
     are entirely correct in your reading of Missouri v. Jenkins, 
     495 US 33 (1990), which is not limited to fourteenth 
     amendment cases, and which refers to ``a long and venerable 
     line of cases in which this Court held that federal courts 
     could issue the write of mandamus to compel local 
     governmental bodies to levy taxes adequate to satisfy their 
     debt obligations.'' Id. at 55. (While it is unlikely that 
     courts would specifically order Congress to raise taxes under 
     the proposed amendment, I share your concern about the issue, 
     and think it would be best to avoid any reasonable risk that 
     they might do so.)
       I should add that I have not opposed the balanced budget 
     amendment as such, and that I am writing as a teacher of 
     constitutional law who is concerned that any amendment to 
     this effect ought not to increase the power of the federal 
     courts over an area in which they do not belong. Your 
     proposed change--expecially the suggestion to the effect that 
     ``the judicial power of the United States shall not extend'' 
     to enforcement of the amendment except as authorized by 
     statute--seems to me an admirable effort to deal with this 
     problem. If some such revision is not included, there is a 
     legitimate risk that the proposed amendment would transfer 
     considerable power over budgetary matters from Congress to 
     the Supreme Court or to lower federal courts. I very much 
     hope that steps will be taken to ensure that this does not 
     happen.
           Sincerely,
     Cass R. Sunstein.
                                                                    ____

                                          Stanford Law School,

                                                February 24, 1995.
     Re proposed balanced budget amendment.
     Senator Sam Nunn,
     U.S. Senate, Washington, DC.
       Dear Senator Nunn: I have had the opportunity to review 
     your comments yesterday in the floor debate regarding the 
     role of the courts in cases that might arise under the 
     proposed Balanced Budget Amendment to the Constitution. My 
     views on the subject are very similar to your own, and I have 
     taken the liberty of sending you the following thoughts, 
     which were prompted by the testimony of former Attorney 
     General William P. Barr before the Senate Committee on the 
     Judiciary on January 5, 1995.
       In that testimony, Mr. Barr argued that ``the courts' role 
     in enforcing the Balanced Budget Amendment will be quite 
     limited.'' While I have great respect for Mr. Barr, and while 
     I found his testimony to be considered and thoughtful, I must 
     respectfully state that I disagree with him. I continue to 
     believe that, as I testified before the Senate Appropriations 
     Committee on February 16, 1994, the Balanced Budget Amendment 
     in its current draft form is likely to produce numerous 
     lawsuits in the federal and state courts, and that neither 
     Article III justiciability doctrines nor practices of 
     judicial deference will operate as automatic dams against 
     that flood tide of litigation.
       Let me begin with the doctrines of justiciability under 
     Article III of the Constitution. Mr. Barr argues that `'few 
     plaintiffs would be able to establish the requisite standing 
     to invoke federal court review.'' This is by no means clear. 
     There are at least three categories of litigants who might 
     well be able to establish standing to challenge violations of 
     the Amendment.
       First, taxpayers might claim that their rights to a 
     balanced budget are violated, for example, by projections
      that outlays will exceed receipts. True, taxpayers are 
     generally barred from suing the government for the redress 
     of generalized grievances. But the Supreme Court a quarter 
     of a century ago held that there is an exception to the 
     general bar on taxpayer standing when the taxpayer claims 
     that a government action ``exceeds specific constitutional 
     limitations imposed upon the exercise of the congressional 
     taxing and spending power.'' Flast v. Cohen, 392 U.S. 83 
     (1968). Mr. Barr suggests that this exception may be 
     limited to Establishment Clause challenges, but there is 
     nothing in the principle stated in Flast that so confines 
     it. If anything, the proposed Balanced Budget Amendment 
     more clearly limits congressional taxing and spending 
     power than does the Establishment Clause. The Amendment is 
     not confined, as Mr. Barr suggests, merely to the power of 
     Congress to borrow. Thus taxpayers would have an entirely 
     plausible argument for standing under existing law.
       Second, members of Congress might well have standing to 
     claim that congressional actions have diluted the vote they 
     were entitled to exercise under the Amendment. For example, 
     suppose that the Congress declined to hold a three-fifths 
     vote required to approve deficit spending under section 1, or 
     a rollcall vote required to increase revenue under section 4. 
     This might occur, for example, because of a dispute over 
     whether outlays really exceeded receipts, or over whether 
     revenue was really being increased, because the meaning of 
     those terms might be controversial as a matter of fact. 
     Declining to implement the supermajority voting requirements 
     in such a context, however, might be plausibly claimed to 
     have diluted a Member's vote. This is arguably analogous to 
     other circumstances of vote dilution in which the lower 
     courts have held that Members of Congress have standing. See, 
     e.g., Vander Jact v. O'Neill, 699 F.2d 1166, 1168-71 (D.C. 
     Cir. 1982), cert. denied, 464 U.S. 823 (1983).
       Third, persons aggrieved by actions taken by the government 
     in claimed violation of the Amendment might well have 
     standing to challenge the violation. For example, consider a 
     criminal defendant charged under a law claimed to cost more 
     to enforce than the government can finance through expected 
     receipts. Or suppose that the President, believing himself 
     bound by his Oath to support the Constitution, freezes 
     federal wages and salaries to stop the budget from going out 
     of balance. In that circumstance, a federal employee might 
     well challenge the President's action, which plainly causes 
     her pocketbook injury, as unauthorized by the Amendment, 
     which is silent on the question of executive enforcement.
       Each of these circumstances poses plausible claims of 
     injury in fact, and none of them poses insurmountable 
     problems
      of redressability. In most of them, in fact, simple 
     injunctions can be imagined that would redress the 
     plaintiffs' claims. Thus, contrary to Mr. Barr's 
     prediction, the doctrine of standing is by no means 
     certain to preclude federal judicial efforts at 
     enforcement of the Amendment. And further, as Mr. Barr 
     concedes, federal standing doctrine will do nothing to 
     constrain litigation of the proposed Amendment in state 
     courts, which are not bound by Article III requirements at 
     all.
       Nor is the political question doctrine likely to eliminate 
     all such challenges from judicial review. True, the Supreme 
     Court has held that a question is nonjusticiable when there 
     is ``a textually demonstrable constitutional commitment of 
     the issue to a coordinate political department; or a lack of 
     judicially discoverable and manageable standards for 
     resolving it.'' Baker v. Carr, 369 U.S. 186 (1962). But the 
     proposed Amendment implicates neither of these kinds of 
     limitation. It does not reserve enforcement exclusively to 
     the discretion of the Congress, as, for example, the 
     Impeachment or Speech and Debate Clauses may be read to do. 
     And it presents no matters that lie beyond judicial 
     competence. Rather, here, as with apportionment, the question 
     whether deficit spending or revenue increases ``exceed 
     whatever authority has been committed, [would] itself [be] a 
     delicate exercise in constitutional interpretation,'' and 
     thus would well within the ordinary interpretive 
     responsibility of the courts. See Baker v. Carr, at 211.
       Let me turn now from doctrines of justifiability to 
     practices of judicial deference. Mr. Barr argues that, as a 
     prudential matter, ``a reviewing court is likely to accord 
     the utmost deference to the choices made by Congress in 
     carrying out its responsibilities under the Amendment,'' 
     especially in light of the enforcement clause in section 6. 
     This is by no means clear. The Reconstruction Congress 
     expected that enforcement of the Thirteenth, Fourteenth and 
     Fifteenth Amendments would be undertaken primarily by the 
     Congress, and reflected that expectation in the Enforcement 
     Clauses specifically included in those Amendments. But we 
     have seen time and time again in our history that judicial 
     review has played a pivotal role in the enforcement of those 
     Amendments nonetheless. The proposed Amendment, as did those 
     Amendments, gives Congress authority to legislate, but it 
     does not oust the courts, who need not defer to Congress in 
     these matters. Courts rightly have not hesitated to intervene 
     in civil rights cases, even though 
     [[Page S3260]] those cases involved grave structural 
     questions as well as questions of individual rights.
       Finally, Mr. Barr argues that courts will, again as a 
     matter of prudence and practice rather than doctrine, 
     ``hesitate to impose remedies that could embroil [them] in 
     the supervision of the budget process.'' He is correct to 
     observe that a direct judicial order of a tax levy such as 
     that in Missouri v. Jenkins, 495 U.S. 33 (1990), is highly 
     exceptional. But even if that is so, courts could issue a 
     host of other kinds of injunctions to enforce against 
     conceivable violations of the proposed Balanced Budget 
     Amendment. For example, a court could restrain expenditures 
     or order them stayed pending correction of procedural 
     defaults, or a court could enjoin Congress simply to put the 
     budget into balance while leaving to Congress the policy 
     choices over the means by which to reach that end. Thus, 
     there is little reason to expect that prudential 
     considerations will keep enforcement lawsuits out of court, 
     or keep judicial remedies from intruding into political 
     choices.
       In sum, the draft Balanced Budget Amendment in its present 
     from has considerable potential to generate justiciable 
     lawsuits, which in turn would have considerable potential to 
     generate judicial remedies that would constrain political 
     choices. Thank you for considering these remarks in the 
     course of your current deliberations.
           Sincerely,
                                             Kathleen M. Sullivan.

  Mr. HATCH. Mr. President, I appreciate the very kind remarks of the 
Senator from Georgia. With the Senator's permission, I would like to 
place in the Record, a copy of the written comments on the issue of 
judicial review and the balanced budget amendment that I prepared for 
his review. Mr. President, I so ask unanimous consent.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

             Balanced Budget Amendment and Judicial Review


                        i. preliminary comments

       The balanced budget amendment (``BBA'' or the 
     ``amendment''), H.J. Res. 1, creates a constitutional 
     procedure, a mechanism if you like, that requires Congress to 
     adopt, or at a minimum, at least to move toward a balanced 
     budget.
       For instance, section 1 of H.J. Res. 1 requires that total 
     outlays of the United States not exceed receipts unless 
     three-fifths of the whole number of both Houses waives the 
     requirement. Section 2 prohibits the raising of the debt 
     ceiling unless three-fifths of the whole number of both 
     Houses of Congress waives the requirement; and section 4 
     requires that there be no revenue increases unless approved 
     by a majority of the whole number of each House of Congress 
     (51 Senate; 218 House). Consequently, the BBA does not create 
     a ``right'' to a balanced budget, much as the First Amendment 
     recognizes a right to free speech. What it does do is 
     establish a procedure which restricts Congress' budgetary 
     authority by creating a strong presumption in favor of a 
     balanced budget which can be overcome by a three-fifths vote 
     of each Chamber of Commerce.
       This is amply shown by section 6 of the BBA, which provides 
     that ``Congress shall enforce and implement this article by 
     appropriate legislation, which may rely on estimates of 
     outlays and receipts.'' Thus, there is no absolute 
     requirement that Congress balance the budget to the penny. 
     Congress may rely on estimates and is mandated to implement 
     and enforce the amendment through some statutory scheme such 
     as establishing, for example, a contingency or ``rainy day'' 
     fund, providing for automatic sequestration, or delegating to 
     the President limited rescissionary authority. This is a 
     strong indication that the Congress, and not the courts or 
     the President, is the branch that is authorized to enforce 
     the amendment.
       The import of all of this is that the judiciary will be 
     loathe to interfere in economic and budgetary matters, in 
     what is a quintessential ``political question.'' These are 
     matters committed to Congress by Article I of the 
     Constitution and the BBA does not disturb that allocation of 
     powers. Courts have no ascertainable standards to determine 
     exactly what the budget numbers ought to be, whether the 
     budgetary figures are ``good faith'' estimates, or which 
     spending program ought to be cut. In other words, there are 
     no ``justiciable'' standards for the courts to provide broad 
     based relief that interferes with the budgetary process. 
     Whether one talks in terms of standing, justiciability, 
     separation of powers, or the political question doctrine, 
     courts
      will not be authorized to interfere with Congress' Article I 
     powers--which, after all, are exclusively delegated by the 
     Constitution to the legislative branch.
       Furthermore, section 6 of the amendment, as well as Article 
     III of the Constitution, provide authority to Congress to 
     limit the jurisdiction of the courts. In this way, the 
     equitable powers of the courts may be restricted in such a 
     way that shields Congress' Article I spending, taxing, and 
     borrowing powers.
       Below are detailed responses to your concerns over 
     particular judicial review and presidential impoundment 
     issues arising out of the enforcement of H.J. Res. 1.


                              ii. standing
       You have stated that it is not difficult to contemplate 
     scenarios where standing to sue under the BBA could occur. 
     For instance, in your February 23, 1995, floor statement 
     contained in the Congressional Record, you cite Assistant 
     Attorney General Dellinger's example that a criminal 
     defendant would have standing to challenge a forfeiture if a 
     new forfeiture provision, which would raise revenue, was 
     passed by a voice vote instead of a rollcall vote as required 
     by the BBA.\1\ I respectfully disagree.
     \1\Footnotes at end of article.
---------------------------------------------------------------------------
       I believe that the Dellinger example is faulty: criminal 
     sanctions and fines are simply not commonly understood to be 
     revenue or tax measures and as such would not be subject to 
     the BBA. The basic point I want to make, however, is not that 
     a court cannot ever find standing, but that standing would be 
     highly improbable and that the courts, in an improbable cause 
     where standing is found, could not provide relief that 
     interferes with the budgetary process due to other 
     jurisprudential doctrines such as justiciability and the 
     political question doctrine.
       As you know, as a preliminary obstacle, a litigant must 
     demonstrate a standing to sue.\2\ The sometimes arcane nature 
     of the standing doctrine has enabled courts to avoid 
     difficult and contentious decisions on the merits.\3\ At a 
     minimum, however, the Court traditionally has taken the 
     position that Article III standing requires allegation of a 
     ``personal stake'' in the outcome of a controversy sufficient 
     to guarantee concrete (as opposed to speculative) 
     adverseness.\4\ Although application of the standing doctrine 
     still divides the Court, all Justices would agree that to 
     establish ``personal stake'' in the outcome of a case 
     challenging the BBA, a litigant must show some actual or 
     threatened concrete injury and that the injury is likely to 
     be redressed if a court grants relief.\5\ In suits involving 
     the BBA, litigants seeking to meet the above general standing 
     requirements fall into three categories: citizens, taxpayers, 
     and Members of Congress.

                            A. Citizen suits

       The most important recent Supreme Court pronouncement on 
     the standing doctrine is contained in Lujan v. Defenders of 
     Wildlife.\6\ There, in an opinion by Justice Scalia, the 
     Court in reviewing its own precedents made clear that 
     standing has three
      elements: (1) the litigant must have suffered an ``injury in 
     fact'' which is concrete, particularized, actual and 
     imminent and not hypothetical,\7\ (2) there must be a 
     casual connection between the injury and conduct 
     complained of, e.g., the injury must result from actions 
     of the complained party and not a third party,\8\ and (3) 
     it must be likely, as opposed to speculative, and the 
     injury must be ``redressable'' by a favorable court 
     decision.\9\
       Turning to the three-part test, it is doubtful that a 
     citizen or citizen associations could demonstrate the 
     ``injury in fact'' prong of the standing test because it is 
     well settled that a mere interest in the constitutionality of 
     a law or executive action is noncognizable.\10\ Moreover, it 
     is doubtful that a litigant could demonstrate that the 
     challenged law was the one that ``unbalanced'' the 
     budget:\11\ in a sense, every spending program could be said 
     to do so. And it is beyond cavil that a congressional 
     reduction of a spending program, or eliminating it 
     altogether, is not considered a constitutional harm and thus 
     not actionable.\12\
       As to the third prong, ``redressability'', this prong 
     subsumes justiciability and the political question doctrine 
     and will be discussed in greater detail below. Suffice it to 
     say that except in highly unlikely circumstances, it is 
     nearly certain that a judicial remedy which interferes with 
     congressional control over the budgetary process or Congress' 
     Article I powers would violate the separation of powers 
     doctrine.

                          B. Taxpayer standing

       In Flast v. Cohen,\13\ the Court announced a liberalized 
     standing test for taxpayers. Under this ``double nexus'' 
     test, taxpayer standing requires that the taxpayer-plaintiff: 
     (1) challenge the unconstitutionality of the law under the 
     Taxing and Spending Clause of the Constitution, and (2) 
     demonstrate that the challenged enactment exceeds specific 
     limitations contained in the Constitution. Professor Tribe 
     has testified that some taxpayers' suits to enforce the BBA 
     would satisfy this test because the proposed amendment would 
     be a specific constitutional limitation on congressional 
     taxing and spending power. There are three counters to this 
     argument: (1) recent Court decisions appear to have severely 
     limited the Flast doctrine;\14\ indeed, the Court seems to 
     limit Flast to Establishment Clause situations,\15\ (2) 
     implementing legislation would be enacted not for some 
     illicit purpose that violates some specific provision of the 
     Constitution, but to effectuate a balanced budget, and (3) 
     the Flast test is not a substitute for the Lujan test, 
     meeting the Flast test only establishes the ``harmed in 
     fact'' first prong of Lujan\16\ and, as explained below, it 
     is doubtful that Lujan's ``redressability'' prong can be met 
     by taxpayer-plaintiffs. This conclusion is supported by the 
     Lujan decision itself, whereby taxpayer standing cases are 
     discussed in context of concrete harm.

                       C. Congressional standing

       The final possible route to standing in cases challenging 
     the BBA, congressional standing, also seems to have little 
     chance
      of 
     [[Page S3261]] success. It must be pointed out that the 
     Supreme Court has never addressed the question of 
     congressional standing and that the Circuit courts are 
     divided on this issue.\17\ However, the D.C. Circuit 
     recognizes congressional standing in the following limited 
     circumstances:\18\ (1) the traditional standing tests of the 
     Supreme Court are met, (2) there must be a deprivation within 
     the ``zone of interest'' protected by the Constitution or a 
     statute (generally, the right to vote on a given issue or the 
     protection of the efficacy of a vote),\19\ and (3) 
     substantial relief cannot be obtained from fellow legislators 
     through the enactment, repeal or amendment of a statute 
     (``equitable discretion'' doctrine). Although there is an 
     argument to be made that in certain limited and far-fetched 
     circumstances (e.g., where Congress ignores the three-fifths 
     vote requirement to raise the debt limitation) the voting 
     rights of legislators are nullified and therefore there would 
     be standing, the court could equally invoke the equitable 
     discretion doctrine to dismiss the action because the Member 
     of Congress could obtain relief by appealing to his other 
     colleagues for a vote for reconsideration of the issue.
       In other circumstances challenging the enforcement of 
     spending measures, Members of Congress would be subject to 
     the same exacting standards as citizens.


        iii. justiciability and the political question doctrine

       Faced with a case challenging appropriations that allegedly 
     cause outlays to exceed total receipts, federal courts 
     historically would inquire first whether the litigant had 
     standing and would then evaluate the content of the claim 
     pursuant to the political question doctrine.\20\ Although it 
     is uncertain whether the doctrine rests upon prudence,\21\ or 
     inheres in the Constitution,\22\ the doctrine is generally 
     understood as ``essentially a function of the separation of 
     powers.''\23\
       The Court in Baker v. Carr,\24\ set out a lengthy test to 
     determine when courts should dismiss an action on political 
     question grounds. Since Baker, the Court has narrowed the 
     political question doctrine to two elements: (1) whether 
     there is a demonstrable commitment of the issue to a 
     coordinate political department, and (2) whether there is a 
     lack of judicially discoverable and manageable standards for 
     resolving the issue (``justiciability'').\25\ Essentially 
     identical to the ``redressability'' issue discussed above, 
     analysis of the first prong reveals significant separation of 
     powers concerns. Any significant relief (outside of a 
     congressional standing suit for declaratory judgment) would 
     require placing the budget process under judicial 
     receivership (e.g., injunctive relief setting a pro-rata 
     budget cut or the nullification of any measure after outlays 
     exceed receipts). This relief interferes with congressional 
     Article I powers. In other words, federal courts may not 
     exercise Congress' spending and taxing authority, such 
     authority being exclusively delegated to Congress, a 
     coordinate branch of the federal government, by the 
     Constitution. Concerning the justiciability prong, budgetary, 
     spending, and tax policies are quintessential areas of 
     governance where there is a lack of judicially discoverable 
     and manageable standards.\26\ Certainly,
      there are no available standards for courts to determine 
     which spending programs to cut or to declare unlawful.
       There is another related justifiability issue: whether the 
     granting of equitable or declaratory relief so interferes 
     with the congressional budget process that courts should 
     abstain from granting such relief as a matter of 
     prudence.\27\ This is another theory by which courts can be 
     constrained from interfering with congressional spending and 
     taxing powers under the BBA.
       Finally, there is an issue whether courts could simply 
     grant declaratory relief\27\ adjudicating an executive action 
     or legislative act unconstitutional and leaving remedial 
     action to the political branches. Outside of the bizarre,\29\ 
     courts generally will not grant declaratory relief to avoid 
     the political question doctrine or where injunctive relief is 
     not available.\30\


                 iv. the concern over judicial taxation

       I know that you are concerned that the Supreme Court's 5-4 
     holding in Missouri v. Jenkins\31\ is an invitation for 
     courts to raise taxes in the event that there is an 
     imbalanced budget. In this case, the Supreme Court in essence 
     upheld a lower court remedy ordering state or county 
     political subdivisions to raise taxes to support a court 
     ordered school desegregation order. Intentional segregation, 
     in violation of the Fourteenth Amendment's Equal Protection 
     Clause, had been found by the lower court in a prior case 
     against the school district.
       The fear is that the BBA would allow a federal court to 
     order Congress to raise taxes to reduce a budget deficit. 
     This is virtually impossible. First, Jenkins is a Fourteenth 
     Amendment case. Under Fourteenth Amendment jurisprudence, 
     federal courts may\32\ perhaps issue this type of remedial 
     relief against the States, but not against Congress--a 
     coequal branch of government. The Fourteenth Amendment, of 
     course, does not apply to the federal government. Second, 
     separation of powers concerns, as well as the political 
     question doctrine, argue against courts arrogating to 
     themselves congressional power by imposing taxes. This was 
     implicitly recognized by the Jenkins Court which stated that 
     the situation before the Court was not one in which it was 
     asked to order a co-equal branch of government--Congress--to 
     raise taxes. Indeed, the Court in Jenkins noted that the case 
     before them was a Fourteenth Amendment case involving state 
     action and not ``an instance of one branch of the Federal 
     Government invading the province of another.''\33\ Third, 
     Congress cannot be a party-defendant. To order taxes to be 
     raised, Congress must be a named defendant. Presumably, suits 
     to enforce the BBA would arise when an official or agency of 
     the executive branch seeks to enforce or administer a statute 
     whose funding is in question in light of the BBA.\34\ 
     Consequently, there is no real ``analogy'' that a court can 
     make between the Jenkins case--
      which involved state action under the Fourteenth Amendment--
and a situation involving the enforcing of a federal statute 
implementing the BBA.


             V. Statutory Protection of Congressional Power

       I think it just wrong that Congress cannot and will not 
     protect its institutional prerogatives. The Framers of the 
     Constitution designed a constitutional system whereby each 
     branch of government would have the power to check the zeal 
     of the other branches. In James Madison's words in The 
     Federalist No. 51:
       ``[T]he great security against a gradual concentration of 
     the several powers in the same department, consists in giving 
     to those who administer each department, the necessary 
     constitutional means, and personal motives, to resist 
     encroachments of others. The provision for defense must in 
     this, as in all other cases, be made commensurate to the 
     danger of attack. Ambition must be made to counteract 
     ambition.''
       Under the enforcement mechanism of the BBA,\35\ the 
     Congress could limit the type of equitable relief granted by 
     federal courts and thereby limit court intrusiveness into the 
     budget process and Congress' exercise of its Article I 
     powers. It is well established that this authority may also 
     arise out of Article III's delegation to Congress to define 
     and limit the jurisdiction of lower federal courts.\36\ 
     Congress may not, however, use its authority to limit or 
     define jurisdiction in a manner that violates specific 
     provisions of the Constitution or denies any relief what-so-
     ever.\37\ Congress may also limit judicial review to 
     particular special tribunals with limited authority to grant 
     relief.\38\
       Use of Congress' authority under section 6 of the Amendment 
     or Article III of the Constitution to limit the remedies a 
     court may provide, does not mean in any way, as you suggested 
     in your floor speech, a ``cut off all avenues of judicial 
     review of a constitutional issue.'' This I have readily 
     conceded above is beyond congressional power. What it does 
     mean is that Congress may protect its Article I prerogatives 
     by limiting--not eliminating--the scope of remedies that 
     courts may render.


                      VI. Presidential Impoundment

       A good deal of the ``standing'' examples you provided in 
     your floor statement are really concerns over presidential 
     impoundment.\39\ I want to initially say that there is 
     nothing in H.J. Res. 1 that authorizes or otherwise allows 
     for impoundment. Nor is it the intent of the amendment to 
     grant the President any impoundment authority under H.J. Res. 
     1. Indeed, H.J. Res. 1 imposes one new duty, and 
     corresponding authority, on the President: to transmit to 
     Congress a proposed budget for each fiscal year in which 
     total outlays do not exceed total receipts.\40\
       In fact, there is a ``ripeness'' problem to any attempted 
     impoundment: up to the end of the fiscal year the President 
     has no plausible basis to impound funds because Congress 
     under the amendment has the power to ameliorate any budget 
     shortfalls or ratify or specify the amount of deficit 
     spending that may occur in that fiscal year.
       Moreover, under section 6 of the amendment, Congress must--
     and I emphasize ``must''--mandate exactly what type of 
     enforcement mechanism it wants, whether it be sequestration, 
     rescission, or the establishment of a contingency fund. The 
     President, as Chief Executive, is duty bound to enforce a 
     particular requisite congressional scheme to the exclusion of 
     impoundment. That the President must enforce a mandatory 
     congressional budgetary measure has been the established law 
     since the nineteenth century case of Kendall v. United States 
     ex rel. Stokes, 37 U.S. (1 Pet.) 54 (1838).\41\ The Kendall 
     case was given new vitality in the 1970s, when lower federal 
     courts, as a matter of statutory construction, rejected 
     attempts by President Nixon to impound funds where Congress 
     did not give the President discretion to withhold 
     funding.\42\
       The position that section 6 implementing legislation would 
     preclude presidential impoundment was seconded by Attorney
      General Barr at the recent Judiciary Committee hearing on 
     the balanced budget amendment. Testifying that the 
     impoundment issue was in reality incomprehensible, General 
     Barr concluded that ``the whip hand is in Congress' hand, 
     so to speak; under Section 6 [the] Congress can provide 
     the enforcement mechanism that the courts will defer to 
     and that the President will be bound by.''
       [[Page S3262]] What we have here then, is an argument based 
     on a ``mere possibility'' or fear of impoundment. I strongly 
     believe that the President is not given any new authority 
     under the BBA to impound funds, and that the mandatory 
     enforcement implementing legislation would preclude any real 
     impoundment possibilities. This was all but conceded by 
     Assistant Attorney General Dellinger in his testimony on the 
     BBA before my Committee. I also want to emphasize that 
     because section 6 of the amendment allows Congress to rely on 
     estimates, the fact that there might be some budgetary 
     shortfall in a given fiscal year's budget does not 
     necessarily render that budget out of compliance with the 
     BBA.


                          vii. other concerns

       Finally, I want to address two additional concerns that you 
     have expressed in your floor statement. First, I have to 
     disagree with your statement that state balanced budget 
     litigation is widespread. In fact, there are very few 
     reported cases. We also have to take note that state balanced 
     budget amendments are very different than H.J. Res. 1, in 
     that there is usually a distinction made between state 
     capital and operating budgets which sometimes results in 
     litigation over the meaning of ``state debt'' and ``capital 
     expenditure.'' Also, many state courts do not have standing 
     or justiciability requirements as barriers to bringing a 
     lawsuit.\43\
       Finally, concerning the statements of noted experts, such 
     as Judge Bork, that there could indeed be judicial 
     enforcement of the BBA. My response is that Judge Bork--who 
     is a very close friend--and whose contentions are contained 
     in a letter of January, 1994, has greatly exaggerated fears 
     of judicial activism in a BBA context. In fact, he admits 
     that there would probably be no standing to bring a challenge 
     to actions taken under the amendment. The substance of his 
     argument is ``what if'' courts took jurisdiction; what would 
     stop them from interfering in the budgetary process. He did 
     not consider at all in his letter, however, the well-accepted 
     precept that implementing legislation could curtail the 
     excesses of judicial activism.
                               footnotes

     \1\The other ``standing'' examples you provide for in your 
     February 23 floor statement implicate presidential 
     impoundment and will be addressed below.
     \2\An issue prior to standing is identification of the proper 
     party defendant. The appropriate defendant in a case 
     involving the BBA is the person acting unconstitutionally 
     under the law, almost always an executive branch official, 
     since that branch is charged with the administration of the 
     law. See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163-66 
     (1803); Reigle v. Federal Open Mkt. Comm., 656 F.2d 873, 879 
     n.6 (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981). Another 
     issue is ``ripeness.'' Because under the BBA Congress may 
     correct any budgetary shortfalls right up to the end of the 
     fiscal year, potential plaintiffs are prevented from 
     litigating until that time--another daunting hurdle litigants 
     face in challenging congressional measures implementing the 
     BBA.
     \3\See, e.g., Valley Forge Christian College v. Americans 
     United, Inc., 454 U.S. 465, 475 (1982) (``We need not mince 
     words when we say that the concept of `Art. III standing' has 
     not been defined with complete consistency . . . by this 
     Court. . . .'').
     \4\E.g., Baker v. Carr, 369 U.S. 186, 204 (1962).
     \5\It also is now clear that standing is an Article III 
     requirement that can not be waived by Congress or the courts. 
     See Valley Forge, 454 U.S. at 488 n.24; Simon v. Eastern Ky. 
     Welfare Rights Org., 426 U.S. 26, 41 n.22 (1976).
     \6\112 S.Ct. 2130 (1992). Lujan involved legal challenges to 
     regulations promulgated under the Endangered Species Act of 
     1973. Conservation and environmental groups argued that 
     standing inhered in anyone alleging an interest in studying 
     or seeing endangered animals anywhere on earth and anyone 
     with a professional interest in such animals. Suffice it to 
     say that the Court held that there was no showing of ``injury 
     in fact''.
     \7\Citing, Warth v. Seldin, 422 U.S. 490, 508 (1975) and Los 
     Angeles v. Lyons, 461 U.S. 95, 102 (1983).
     \8\Quoting, Simon, 426 U.S. 26, 41-42.
     \9\Quoting, Simon, 426 U.S. at 38, 43.
     \10\E.g., Frothingham v. Mellon, 262 U.S. 447 (1923) 
     (allegations that amount to a ``generalized grievance'' are 
     not judicially cognizable.
     \11\This too would therefore be a nonjusticiable 
     ``generalized grievance''. See Id.
     \12\Government is not under a duty to provide benefits, and, 
     thus, Congress may cut or eliminate any program consistent 
     with the protection of equal protection or individual rights. 
     Overton v. John Knox Retirement Tower, Inc., 720 F.Supp. 934, 
     937 (M.D. Ala. 1989).
     \13\392 U.S. 83 (1968).
     \14\The test has suffered through application. The Court 
     subsequently required detailed particularized pleading 
     challenging specific spending measures promulgated under 
     Article I, Section 8's Spending and Taxing Clause. These 
     measures must violate specific provisions of the 
     Constitution, See, e.g., Schlesinger v. Reservists Comm. to 
     Stop the War, 418 U.S. 208 (1974); United States v. 
     Richardson, 418 U.S. 166 (1974). Litigants have not been 
     successful in recent times applying the Flast test.
     \15\See Valley Forge, 454 U.S. 464 (1982). Indeed, in Flast, 
     Justices Stewart and Fortas perceived the nexus test as 
     simply a means of limiting federal taxpayer's suits to 
     Establishment Clause challenges. Flast, 392 U.S. at 114-15.
     \16\In Valley Forge, 454 U.S. at 471-82, the Court implicitly 
     views the Flast test as a measure of a taxpayer's 
     constitutionally required actual injury.
     \17\Compare Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977) 
     (congressman seeking declaratory and injunctive relief 
     against C.I.A. for allegedly illegal activities lacks 
     concrete injury requisite for standing), with Harrington v. 
     Schlesinger, 528 F.2d 455 (4th Cir. 1975) (same facts, 
     opposite result).
     \18\Reigle v. Federal Open Market Committee, 656 F.2d 873 
     (D.C. Cir.), cert. denied, 454 U.S. 1082 (1981).
     \19\See Coleman v. Miller, 307 U.S. 433 (1939) (state 
     senators denied the efficacy of their votes when Lieut. 
     Governor by statute was allowed to break tie vote by casting 
     ballot); Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974) 
     (challenging illegal use of Presidential pocket veto).
     \20\The Lujan ``redressability'' prong of its standing test 
     essentially merges the justiciability and the political 
     question doctrine. Accord Valley Forge, 454 U.S. 464 (1982) 
     (where the Court makes clear that separation of powers 
     consequences play a vital role in the standing calculus).
     \21\See Bickel, The Supreme Court, 1969 Term--Foreword: The 
     Passive virtues, 75 Harv. L. Rev. 40, 46 (1961).
     \22\See Wechsler, Toward Neutral Principles of Constitutional 
     Law, 73 Harv. L. Rev. 1,9 (1959).
     \23\Baker v. Carr, 369 U.S. 186, 217 (1962).
     \24\Id.
     \25\See, e.g., Nixon v. United States, 113 S.Ct. 732 (1993).
     \26\While the BBA does, indeed, contain some ``process'' 
     standards (e.g., the requirement of a three-fifths vote in 
     each chamber to increase the debt ceiling), it is doubtful 
     that standing could be found to enforce even such standards.
     \27\See Henkin, Is There a Political Question Doctrine?, 85 
     Yale L. J. 597 (1976) (where Professor Henkin argues that the 
     political question doctrine boils down to the discretionary 
     equitable power of courts not to dispense relief). See 
     Colegrove v. Green, 328 U.S. 549 (1946) (courts have duty to 
     avoid constitutional issues where resolution will clash with 
     the political branches of government).
     \28\Declaratory relief is available under the Federal 
     Declaratory Judgment Act, 28 U.S.C. sections 2201-2202.
     \29\Where, for instance, both Chambers of Congress ignore the 
     constitutional majority provision to raise taxes, presents 
     the measure to the President, and the President refuses to 
     veto the subsequent unlawful measure. The aggrieved taxpayer 
     who sees his pay check decrease could probably receive 
     declaratory relief.
     \30\See Colgrove v. Green, 328 U.S. at 552 (where Justice 
     Frankfurter opines that declaratory relief should not be 
     granted in situations where injunctions are inappropriate).
     \31\495 U.S. 33 (1990).
     \32\This power was hotly contested by the dissenters in 
     Jenkins and may not command a majority today.
     \33\495 U.S. at 67.
     \34\See Reigle, 656 F.2d at 879 n.6 (``When a plaintiff 
     alleges injury by unconstitutional action taken pursuant to a 
     statute, his proper defendants are those acting under the law 
     . . . and not the legislature which enacted the statute,'' 
     citing, Marbury v. Madison, 5. U.S. (1 Cranch) 137, 175-80, 
     (1803)). Illustrative of this point is Powell v. McCormack, 
     395 U.S. 486 (1969), where Congressman Adam Clayton Powell 
     was ``excluded'' by the House from taking his seat. Powell 
     sued the enforcement official--Speaker McCormack, under whose 
     jurisdiction the Sergeant-at-Arms was--and not the House of 
     Congress as a whole. In contrast, Members of Congress have 
     absolute immunity to suit for actions taken on the floor of 
     the Chamber when acting in a legislative capacity, such as 
     voting for or against a measure. See U.S. Const. art. I, sec. 
     6 (``Speech or Debate Clause'').
     \35\Section 6 of H.J. Res. 1 mandates that Congress 
     promulgate enforcement legislation.
     \36\E.G., the Norris-LaGuardia Act, 29 U.S.C. sections 101-
     115 (denial of court use of injunctions in labor disputes); 
     the Federal Anti-Injunction Statute, 28 U.S.C. section 2283 
     (prohibition on enjoining state court proceedings); the Anti-
     Injunction Provisions of the Internal Revenue Code, Int. Rev. 
     Code section 7421(a) (prohibition on enjoining the collection 
     of taxes).
     \37\E.g., United States v. Bitty, 298 U.S. 393 (1908); Lauf 
     v. E.G. Shinner & Co., 303 U.S. (1938). Furthermore, the BBA 
     does not create an individual ``right'' akin to the First 
     Amendment's Free Speech Clause. As stated above, there is no 
     right to a balanced budget much as the Twenty-first Amendment 
     repealing prohibition creates no right to drink alcohol; the 
     BBA is simply a procedural limitation on Congress' taxing, 
     spending, and borrowing powers which creates a presumption in 
     favor of a balanced budget that may be overcome by a three-
     fifths vote of the whole number of each House.
     \38\E.G., the Emergency Price Control Act, which established 
     a special Emergency Court of Appeals vested with exclusive 
     authority to determine the validity of claims under that Act. 
     The Court in Yakus v. United States, 319 U.S. 182 (1943), 
     upheld the constitutionality of this limited judicial 
     enforcement mechanism. Accord Dames & Moore v. Regan, 453 
     U.S. 654 (1981) (upholding constitutionality of executive 
     order, promulgated pursuant to congressional delegation of 
     power, establishing Iranian-United States Claims Tribunal as 
     exclusive forum to settle claims to Iranian assets).
     \39\For example, you quote Walter Dellinger's example where a 
     social security beneficiary would have standing to challenge 
     a presidential order reducing benefits. The other Dellinger 
     example given is a similar one, with welfare payments being 
     substituted for social security payments, A twist is added, 
     wherein a state would have standing to sue if a President 
     does not impound funds. I, in all respect, believe these 
     examples to be gross exaggerations of the law. First, a 
     President must faithfully execute the law pursuant to his 
     oath of office, and, therefore, must enforce these social 
     spending programs. Second, neither a state nor an individual 
     would have standing to challenge a spending program, as 
     explained above. How are they individually harmed by the 
     enforcement of the programs? Finally, and ironically, if the 
     first example challenging impoundment somehow prevailed in 
     litigation, it would be a vindication of congressional 
     prerogatives over the budget.
     \40\H.J. Res. 1, sec. 3.
     \41\In Kendall, Congress had passed a private act ordering 
     the Postmaster General to pay Kendall for services rendered. 
     The Supreme Court rejected the argument that Kendall could 
     not sue in mandamus because the Postmaster General was 
     subject only to the orders of the President and not to the 
     directives of Congress. The Court held that the President 
     must enforce any mandated--as opposed to discretionary--
     congressional spending measure pursuant to his duty to 
     faithfully execute the law pursuant to Article II, section 3 
     of the Constitution.
     \42\E.g., State Highway Commission v. Volpe, 479F.2d 1099 
     (8th Cir. 1973).
     \43\These factors were recognized by Asst. Attorney General 
     Dellinger to me in a letter dated January 9, 1995, This 
     letter also corrected a misstatement made to Senator Brown 
     whereby Mr. Dellinger had erroneously contended that there 
     was an avalanche of state litigation over their balanced 
     budget requirements. Mr. Dellinger in the letter now admits 
     that: 
     [[Page S3263]] ``Senator Brown is correct that there has not 
     been a significant amount of litigation in the states 
     interpreting their balanced budget provisions, and that this 
     is a factor that weighs against the argument that there would 
     be an avalanche of litigation under a federal balanced budget 
     amendment.''

  Mr. HATCH. I yield 5 minutes to the distinguished Senator from 
Louisiana.
  Mr. BREAUX. I thank the Senator for yielding his time.
  Mr. President, my colleagues, amendments to the Constitution cannot 
be passed by the Congress alone. It is a partnership arrangement. The 
process must also include ratification by the various States. Three-
fourths of the States, 38 States, must also join with the Congress in 
ratifying any proposed amendment to the Constitution before it comes 
part of the Constitution.
  In order for me to justify not even voting to send this proposal to 
my State of Louisiana and the various other States for them to debate 
and to vote on this measure, I must be convinced that on its face this 
amendment is such bad public policy that it must die here in 
Washington. Is this amendment perfect? No, it certainly is not. Its 
faults are many and they raise serious concerns in a number of areas.
  No. 1, can unelected Federal judges who are appointed for life raise 
taxes and cut programs to enforce this measure? The Nunn and Johnston 
amendments address this particular question. I understand that there 
are those this morning who are willing to correct it with the adoption 
of the Nunn amendment which would go a long ways to correcting this 
very serious problem. The question of how can the States cast an 
intelligent vote on ratification without having the right to know in 
advance, for instance what will happen to them if it is ratified, is a 
very serious concern that needs further debate and consideration. Are 
programs, such as those that have trust funds as a means of funding 
programs, like the Social Security Program, in danger of being cut 
under this amendment? There needs to be further discussion and further 
debate on that particular issue.
  The answers to these questions are not clear and more debate, not 
less, must occur. It is an issue that has generated a great deal of 
justified emotion. National polls and polls of my State of Louisiana 
indicate that approximately 75 percent of American people support a 
balanced budget amendment. But the polls also indicate, at the same 
time, that they do not support the balanced budget amendment if it 
means that there will be cuts in Social Security, or there will be cuts 
in Medicare, or there are likely to be cuts in some other favorite 
program of our constituents.
  I voted for a balanced budget amendment to the Constitution in the 
past as I believe the long-term debt of our Nation is a critical 
problem that, so far, we have been giving to our children and to our 
grandchildren. We have made good efforts on reducing the deficits, as 
we have in 1993 in adopting President Clinton's deficit reduction plan 
which cut the deficit by $500 billion over 5 years. I might add we made 
that very difficult decision without a single Republican vote. But more 
needs to be done, and if this amendment passes there will be many more 
and difficult decisions to make. It will not be easy.
  I cannot vote to kill this effort today, here in Washington. Our 
States must be involved. They should have the right to bring this 
measure up in our State legislatures, debate it, and then have the 
right and indeed the obligation to vote on it. For me to vote no here 
in Washington is to say to my State of Louisiana, and the other States, 
that I know so much more than you on this particular issue that I now 
vote no so that you cannot vote at all. I will not do that. So today I 
will vote yes on the balanced budget amendment and send it to the 
States for ratification and consideration.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Utah.

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