[Congressional Record Volume 141, Number 59 (Thursday, March 30, 1995)]
[Extensions of Remarks]
[Pages E739-E740]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


                   ``TO AMEND'' MEANS ``TO IMPROVE''

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                           HON. PATSY T. MINK

                               of hawaii

                    in the house of representatives

                        Thursday, March 30, 1995
  Mrs. MINK of Hawaii. Mr. Speaker, my law school classmate, Prof. 
George Anastaplo, writes an interesting piece on the balanced budget 
amendment and on term limits, the latter of which comes to the floor 
this week. I submit his paper:
                   ``To Amend'' Means ``To Improve''

                         (By George Anastaplo)

       The considerable talk we hear these days of a balanced-
     budget amendment and of a legislative term-limitation 
     amendment poses challenges to constitutional scholars 
     respectful of the integrity of the Constitution. Both 
     amendments would probably be troublesome if ratified: the 
     first (an exercise in constitutional frivolity) because it is 
     not likely to work; the second because it is likely to work, 
     thereby crippling the Government of the United States. It 
     does not help matters that the principal balanced-budget 
     proposal currently before the Congress contains language that 
     invites confusion and litigation, language that is singularly 
     unfelicitous for permanent enshrinement in the Constitution.
       Those who recognize how a balanced-budget amendment could 
     readily be circumvented by both legislatures and executives 
     suggest other ways of accomplishing such an amendment's 
     purposes. One response is that a limitation be placed upon 
     the amount of taxation that is permitted annually. But 
     circumvention is likely there also, as may be seen in how 
     State governments have had to work their way around such 
     limitations. In fact, no mechanical rule or formula can take 
     the place in such matters of political judgment on the part 
     of both the people and their government, if there is to be 
     sound guidance of the economy in varying circumstances. Such 
     guidance depends upon sensible assessments not only of the 
     causes and consequences of deficits but also of the costs, 
     consequences, and desirability of balancing the national 
     budget at any particular time. Here, as elsewhere, myths and 
     misinformation have to be reckoned with. Many of these 
     questions about economic and fiscal policies are better 
     addressed directly and preferably by legislatures as 
     circumstances change. A curious aspect of the balanced-budget 
     situation today is that two-thirds of each House of Congress 
     would vote for an amendment that might some day require a 
     balanced budget, while at the same time one-half of each 
     House could vote for a balanced budget during this session of 
     Congress.
       Those who recognize that term limitations for legislators 
     can truly be crippling look to other remedies to deal with 
     what they conceive to be the underlying problems. One set of 
     remedies has to do with changes that could reduce the 
     advantages of incumbency, including severe limitations upon 
     political contributions and campaign expenditures. (A 
     reconsideration by the United States Supreme Court of its 
     unfortunate First Amendment rulings with respect to
      these matters should be encouraged.) Most of these remedies, 
     too, are more appropriate for legislation than for 
     constitutional amendments, especially since experiments 
     and revisions are apt to be needed.
       It is often said that those who hold legislative offices 
     today are virtually impossible to defeat. But this is not, as 
     many seem to believe, because incumbents are immune from 
     [[Page E740]] public scrutiny and control. On the contrary, 
     incumbents these days tend to be very sensitive, perhaps 
     unduly so, to the opinions of their constituents. Indicative 
     of what has long been happening is the fact that incumbents 
     do say quite different things on the issues of the day, 
     depending on precisely where they are from and what 
     electorate they rely upon. Public opinion polling makes it 
     easier for each incumbent to tailor his words and deeds to 
     the opinions and immediate desires of his constituents. Would 
     Members of Congress who know they can be there for only a few 
     more years once they ``learn the ropes'' be inclined to 
     devote themselves to their demanding duties, unconcerned 
     about preparing the way for their subsequent career?
       It is likely, in any event, that most if not all of the 
     constitutional amending being agitated these days (including 
     the line-item veto) would be much better dealt with through 
     legislation that can be readily adjusted and, if need be, 
     improved or even repealed as circumstances change.
     

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