[Congressional Record Volume 142, Number 43 (Tuesday, March 26, 1996)]
[House]
[Pages H2858-H2864]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
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INADVISABILITY OF REQUIRING TWO-THIRDS MAJORITY TO PASS TAX LEGISLATION
The SPEAKER pro tempore. Under a previous order of the House, the
gentleman from Colorado [Mr. Skaggs] is recognized for 60 minutes as
the designee of the minority leader.
Mr. SKAGGS. Mr. Speaker, I appreciate having the opportunity to
address the House this afternoon. The topic of this special order is
the proposed amendment to the Constitution to require two-thirds
majorities in the House and the Senate to adopt any legislation
concerning increases in tax rates or tax base.
As the Speaker may be aware, the leadership of the majority party has
announced its intention to bring this
[[Page H2859]]
matter up for debate and vote in the House on April 15, the Monday that
the House is scheduled to return from 2 weeks of spring recess. In my
opinion, scheduling the debate on this matter at that time, preceded as
it will have been by no effective committee consideration or markup,
constitutes an act of relatively modest political theater but
relatively irresponsible constitutional legislation. But it is merely
the last chapter in an ongoing novel of regrettable proportions during
this, the 104th Congress, in which the majority party consistently has
seen fit to treat the Constitution as if it were really just a rough
draft.
Mr. Speaker, let me give my colleagues some idea of the recent
history of the consideration of amendments to the Constitution. In the
last 20 years preceding this, the 104th Congress, the House voted on
constitutional amendments a total of nine times in 20 years. The
average per Congress was one constitutional amendment, the maximum was
two, frequently there were none. This amendment that will be coming up
on April 15 will be the 4th time in this 104th Congress that the
leadership has brought forth an amendment to the Constitution, and thus
my characterization, I think appropriately, that this Congress is
really treating the Constitution of the United States as if it were
just a working document in draft form which we can toy with at our
whimsy.
Mr. Speaker, we have already had amendments debated and voted on in
the House concerning the flag of the United States, concerning term
limits, concerning a balanced budget, and now this two-thirds tax
proposal, and I think most Members are aware we will probably have even
a fifth proposed amendment to the Constitution offered up some time
later this year having to do with the first amendment's protection
against the establishment of religion and protecting the free exercise
thereof.
Mr. Speaker, this particular amendment that will be coming before us
a couple of weeks has not only serious, serious, and I believe
absolutely unworkable practical problems attached to it, but the
process by which it will come to the floor of the House for debate is
absolutely extraordinary. We would suppose, Mr. Speaker, that when we
undertake the most serious legislative responsibility that we can have
as Members of this great body, that is, considering an amendment to the
Constitution, that we would go to some pains to make sure that a
proposed amendment had been fully and carefully examined by those
institutions within the House structure that are designated as having
the expertise and the responsibility to conduct such an examination and
vet it. In our case, that is the House Judiciary Committee, and in
particular, the Subcommittee on Constitutional Law.
Unfortunately, in this instance, I presume because the chairmen of
both that subcommittee and full committee actually have very grave
reservations about this particular proposal and are disinclined to mark
it up and report it to the House, the leadership is co-opting them,
preempting that very, very important responsibility that the Judiciary
Committee has to really go over proposed amendments to the Constitution
as carefully as we possibly can to consider both the intended and
unintended consequences.
Mr. Speaker, we are giving the back of our hand, as it were, to that
normal order and process in the House for considering an amendment to
the Constitution and just bringing this to the floor in an essentially
unexamined and unreflected-upon state.
Interestingly, I think in part because of that cavalier approach to a
very, very serious responsibility, it has been reported that the
chairman of the House Ways and Means Committee, the tax-writing
committee of the Congress, has also very serious misgivings about this
proposal because of one of its many impractical consequences, namely if
we were to adopt this two-thirds vote requirement for any tax bills in
the Constitution, we would basically be embracing--for all practical
purposes--the current state of the tax law for an indefinite period of
time.
Mr. Speaker, if you look over recent history in enacting tax laws,
almost all of which, if they are at all comprehensive, involves some
increases as well as decreases and changes, very, very few will have be
seen to have been passed by the two-thirds majority of both the House
and the Senate that would be required under this proposed amendment to
the Constitution. Since the chairman of the House Ways and Means
Committee is reported to be a strong proponent of major tax reform, a
fan of one of many alternatives that have been offered up for wholesale
change in the Tax Code, he well realizes if this were in the
Constitution, or ability to make that kind of change would be greatly
constrained, if not made almost impossible.
One of the things that we, I think, should keep first in mind in
considering this is not just the failure of the leadership here to
follow regular order and process, as ought to apply to a proposal of
this seriousness, but the content of the proposal, as well. It follows
obviously that any time we require a super majority to enact
legislation, in this case tax legislation, the corollary of that is to
give a minority within the body, the House or the Senate, effective
control of the issue. That contradicts head on the fundamental
principle of majority rule that Madison identified during the debate in
the Constitutional Convention as the first principle of this democracy
of ours.
Now, it may seem a trivial observation to suggest that a super-
majority requirement necessarily cedes control of the issue to a
minority. Here in the House, that minority would represent something
just over one-third of the people of the country, certainly a
significant number. But under this constitutional amendment, effective
control of the tax-writing responsibilities of the Congress would be
given over to one-third plus 1 of the other body, the U.S. Senate, and
it surprised me.
Mr. Speaker, I sat down a few minutes ago and just calculated that
percentage of the population of the United States represented by the
one-third plus 1 of the Senate that comes from the smallest States in
the Union. Under this proposal, to give control over tax legislation to
one-third plus 1 of the Senate, that is the same thing as saying that
we would give power over this issue to less than 10 percent of the
people of this country, because 34 Senators represent, combined from
the smallest States, less than 10 percent of our entire population.
Now, it seems to me we should think long and hard about a proposal
that would have that kind of incredibly distorting effect on who is in
a position to determine the future course of this country in an area as
critical as tax legislation.
Mr. Speaker, I have several other points to make with regard to the
merits and the substance of this proposal, but I wanted at this time to
recognize and yield some time to the distinguished gentleman from
Virginia [Mr. Moran], who has been very active in this Congress and in
earlier Congresses in these areas having to do with the fundamental
constitutional arrangements of the Republic, and I yield at this time
such time as he may wish to consume.
Mr. MORAN. Mr. Speaker, I thank my distinguished colleague and good
friend from Colorado for yielding me time.
Mr. Speaker, this amendment that we are discussing, House Joint
Resolution 159, that would require a two-thirds vote to raise Federal
taxes, may seem to be a simple, reasonable idea, but it invites
dangerous consequences for our democracy that will weaken the power of
the Federal Government to respond to national problems. Since the
resolution includes any changes that would broaden the tax base, it
will also effectively block passage of any fundamental overhaul of our
entire tax system, be it the majority leader's call for a new flat tax
or the interest of the chairman of the Ways and Means Committee in the
national sales tax, or anything in between, including the most moderate
and responsible alterations. Finally, this resolution will prove
unworkable, as the House leadership has already discovered with its
celebrated--but now ignored--rule change requiring a three-fifths vote
on tax legislation.
This resolution, as my colleague from Colorado has explained,
violates the spirit of majority rule and will take us back to the
problems our Founding Fathers experienced under the Articles of
Confederation. Article 9 of the Articles of Confederation required the
vote of 9 of the 13 States to
[[Page H2860]]
ascertain the sums and expenses necessary for the States to raise
revenue. In 1787, at the Constitutional Convention, our Founding
Fathers recognized that this was an insurmountable defect and sought to
establish a national government that can impose and enforce laws and
collect revenues through a simple majority rule.
Mr. Speaker, my distinguished colleague has discussed the
constitutional aspects of this resolution, but I would like to focus on
how unworkable this resolution will prove to be based on our experience
with the much-celebrated change in the House rules that requires a
three-fifths vote for any tax increase. That was enacted on the first
day of Republican control of the House in January, 1995. As specified
in that modified clause 5(c) of rule 21 of our congressional code, the
House of Representatives' code, no bill, joint resolution, amendment,
or conference report carrying a Federal income tax rate increase shall
be considered as passed or agreed to unless so determined by a vote of
not less than three-fifths of the Members voting.
This rule was broken just as soon as we voted on the Contract With
America, introduced and approved by the Republican majority of the
Congress, but to approve it, we had to violate the rule. On April 5, I
came to this well and raised a point or order on a provision in the
Contract With America tax relief act that repealed section 1(h) of the
Internal Revenue Code affecting the maximum rate for long-term capital
gains. While the intent of the provision was to lower the capital gains
rate, it actually increased the tax rate on the sale of small business
stocks from 14 percent under current law to 19.8 percent.
At the time, the Speaker's chair ruled that this tax increase was not
subject to the three-fifths rule, but in a June 12 letter from House
Parliamentarian Charles Johnson, it appears that this ruling was made
in error and the original point of order should have in fact been
sustained. Since the Parliamentarian has confirmed my original
challenge, the House leadership has found it necessary to waive the
three-fifths vote requirement in at least two instances, the Balanced
Budget Act of 1995 and the Medicare Preservation Act, in order to pass
its legislative agenda and to raise taxes.
Mr. Speaker, neither measure received a three-fifths majority vote.
Neither of those pieces of legislation could have passed this body if
we had been good to the rule that was passed on the first day of the
session of this congressional term. Back in January, we passed a law
and we have had to ignore that law in order to pass the legislation
that was in the Contract With America.
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Under the original House version of the Balanced Budget Act, the
House leadership found it necessary to waive the three-fifths rule. The
Committee on Rules had to do that by a simple majority vote in order to
impose this tax increase, a 50-percent tax penalty on Medicare plus
medical savings accounts withdrawals for any purpose other than
Medicare and the part B income contingent premium. Also the repeal of
the 5-year income averaging rule on lump sum pension distributions, the
increase in the phaseout rate for the earned income tax credit, the new
rates that are applied to expatriates, and the new tax imposed on
gambling income of Indian tribes. All of these tax increases should
have triggered the three-fifths vote required for approval.
Now we want to increase this three-fifths vote to two-thirds? In
other words, increase the hypocrisy of this body to pass one law, and
then ignore it when we want to pass another? If the new majority has
problems honoring its pledge not to increase the tax rate and abide by
its own rules, they make even more problematic if we were to do a
proposed constitutional amendment as is proposed by this joint
resolution.
Under this expanded requirement, Congress could not have passed last
year's expansion of the health deduction for the self-employed. In that
legislation we closed some tax loopholes dealing with minority
broadcasting benefits to pay for the bill's revenue lost.
When you are in a pay-as-you-go basis, you have to increase taxes in
some are in order to reduce them in others. So when we eliminated the
tax loopholes, increasing taxes on minority broadcasters, again, that
violated the rule, because closing the loophole is also broadening the
tax base.
According to the material submitted into the Congressional Record by
Congressman Joe Barton on January 4, 1995, there have been five major
tax increases enacted into law since 1980. The Tax Equity and Fiscal
Responsibility Act of 1982, the House vote was 226 to 207; the Omnibus
Budget Reconciliation Act of 1987, the vote was 237 to 181; the Omnibus
Budget Reconciliation Act of 1989, the vote was 272 to 182; the Omnibus
Budget Reconciliation Act of 1990, the vote was 228 to 200; and Omnibus
Budget Reconciliation Act of 1993, that vote was only 218 to 216.
Only one of these measures, the Budget Reconciliation Act of 1989,
could have passed the House with a two-thirds margin. In reality, the
five measures that were brought up by Congressman Barton included both
tax increases and spending cuts. Had these measures not been passed
with bipartisan support and signed into law by President Reagan and
President Bush, the deficit would be far, far worse than it is today.
The one exception to deficit reduction that passed on a party line
vote, the Landmark Omnibus Budget Reconciliation Act of 1993, has been
credited with reducing the deficit 3 years in a row, and possibly an
unprecedented fourth year if current economic trends continue.
I find it a little ironic for all the objections the Republicans have
expressed for the tax increases, and the Clinton tax increase in
particular in 1993, they have yet to repeal a single one of those tax
increase in 1993. Not one of the so-called notorious 1993 tax increases
has been repealed in any measure sent by this Congress to the White
House.
What Representative Barton does not mention in the Congressional
Record is that Ronald Reagan would have encountered problems enacting
most of his agenda if there was a constitutional amendment requiring a
two-thirds vote.
Mr. Speaker, I have many other points I want to raise to buttress the
argument that this does not make any sense to propose a two-thirds
constitutional requirement, but at this point let me pass the baton on
to my colleague from Colorado for a while to further buttress our
argument.
Mr. SKAGGS. I would just like to engage the gentleman for a moment in
a further discussion of the short history that we have--I was going to
say enjoyed, but at least experienced under the so-called three-fifths
rule which was adopted at the start of this Congress as a rule of the
House governing the required majority; that is, three-fifths, whenever,
we are considering anything that is construed as having a tax increase.
Now, first the proponents said it would apply to any increase, and
then they said only to income tax increases, and then only to certain
types of income tax increases. My sense is that the correct
interpretation of this rule of the House remains the subject of a great
deal of debate and confusion and inquiry. The saving grace, if you
will, is that the majority has show that it is quite willing to waive
the application of that rule as a matter of course whenever it is
inconvenient to have to deal with the new rule that they adopted.
Mr. MORAN. I guess that is what they mean by regulatory flexibility.
Mr. SKAGGS. Well, whatever it may be, now we can waive a House rule,
as the gentleman pointed out, by simple majority vote when we bring a
matter to the full House for debate. But if we have got this in the
Constitution, what then?
Mr. MORAN. Well, you ask a very good question, Mr. Skaggs. I do not
know why we are here trying to save them from themselves, which is what
we are doing, but the reality is that virtually no tax reform measures
could have been enacted if we had not hypocritically ignored,
overruled, that three-fifths requirement. But as you say, if it is a
constitutional amendment, we do not have that flexibility. The
Committee on Rules just decides, well, this is an inconvenient law and
so
[[Page H2861]]
let us just ignore it. If it is part of the Constitution, it cannot be
ignored. That means that we could never again reform our Tax Code,
because to do so you have to raise revenue in order to cut it in other
places. So we would be putting ourselves into an untenable position.
Mr. SKAGGS. I think we need to expound on this point a little bit
more. Nobody here is interested in raising taxes per se. This is not
about taxes, it is about the Constitution of the United States and
having a workable system of government. The examples which you cited,
which I think it is important for us to be mindful of, have to do with
all manner of different reform proposals. Certainly any of the tax
simplification or tax reform proposals that this Congress has adopted
in the last 20 years or that are pending before us in various forms
now, have almost invariably involved some change in the tax base or
change in the rate in order to effect reductions or reforms somewhere
else, have they not?
Mr. MORAN. Not only have they this year, that is absolutely true, and
that is why the Committee on Rules acknowledged that when it waived the
three-fifths rule. So it would not apply to any of the tax legislation
that has come before us this year. But also if you look back, it
applied to all of President Reagan's and President Bush's proposals.
None of them would have been enacted if this constitutional amendment
were in effect.
So President Reagan could not have accomplished the 1981 tax cut, the
1986 tax cut, or any of the others in between. President Bush could not
have accomplished the 1990 tax cut. We never could have come close to
the reduction in deficit that we have experienced as a result of the
1993 Omnibus Budget Reconciliation Act. So it is hard to imagine where
we would be if this constitutional amendment had been put into place,
say, back in the 1970's or 1980's.
Mr. SKAGGS. Well, as I mentioned a few minutes ago, and it may be
worth just going through the list of those States whose Senators, if
they happen to decide to coalesce in opposition because small States
might be affected in some way or other, States that could effectively
block any future tax legislation if this were in the Constitution,
because if you add up the Senators from Vermont, Delaware, Montana,
Wyoming, North Dakota, South Dakota, Alaska, Rhode Island, New
Hampshire, Nevada, Maine, Hawaii, Idaho, Utah, Nebraska, New Mexico,
and West Virginia, that is more than one-third of the Senate,
represents about 9 percent of the population of the country, and that
group of Senators would be in a position to call the shots.
Now, I do not know whether that comports with the gentleman's sense
of adherence to the fundamental principles of this democratic, small
``r,'' republican, but it certainly offends mine.
Mr. MORAN. I agree it would offend mine, too. We would hasten to add
all of those States are very ably served by their Senators. Here we are
not talking about personalities, we are talking about the Constitution.
We are trying to go back to the original tenets of that Constitution.
They tried something that was not majority rule in the Articles of
Confederation. You needed 9 out of the 13 States to pass any revenue-
raising provision. They found it was unworkable. The country was not
functioning. So they had to go back and correct it and install majority
rule.
Now, when you think about it, as you so ably explain, 10 percent of
America's population could prevent any kind of tax increase. No matter
how needed it is to keep this Government functioning, whether we are in
a war, whether we are in a depression, whatever the situation, 10
percent of America's population can block any attempt to put our
country on a sound fiscal footing.
I think that is the most compelling argument, and then in addition to
the experience we have already had with the violation of the three-
fifths rule. But the other point that you so well made, Mr. Skaggs, is
that the Constitution is not a rough draft. The Constitution has served
this country very well for two centuries. To go mucking around with it
with a piece of legislation that we know is going to be violated the
first time that we have to act responsibly as a body, I cannot imagine
that we would have any cosponsors of such legislation, never mind a
long list of cosponsors.
So I would hope they would all reconsider, look at both recent and
long-term history of this country, check out our Constitution, give it
a little more respect, and recognize that this is not in the national
interest.
Mr. SKAGGS. I thank the gentleman for his comments. One of the things
that is most odd about this particular proposal, and I mentioned a few
minutes ago, is not just the substance and the, I think, unexamined
consequences of the substance, but the manner by which it is going to
be brought to the House on April 15.
We have been joined by our distinguished colleague from
Massachusetts, a member of the Committee on the Judiciary. I wonder if
he might enlighten us a bit more about what the process that has been
followed or not followed in this case looks like?
Mr. FRANK of Massachusetts. Well, I thank the gentleman from Colorado
for taking the initiative on this special order and for yielding to me.
But ``enlightenment'' is hardly the right word, because the Republican
leadership is determined that this will not be the product of an
enlightenment, but rather of the dark ages, because one of the things
they do not want is for anyone to really have a chance to think about
this proposal.
I am the senior minority member on the Subcommittee on the
Constitution of the Committee on the Judiciary. We had a hearing on
this a couple of weeks ago. The amendment was presented and the
sponsors of the amendment were there, and in the course of their
presentation they mentioned that this would be on the floor on April
15.
Now, I guess, showing my inability to adapt to the new majority, I
was a little puzzled, because, this was a week or so ago, no committee
vote was scheduled, no subcommittee vote was scheduled. Ordinarily with
legislation, we find that the process of first debating it in
subcommittee and making some changes, and then going to full committee
and making some changes, that is how you refine legislation. That is
how you answer questions. None of us in my experience is bright enough
to simply sit down and have a piece of legislation spring from our
forehead like, was it Athena from the forehead of Zeus, or whoever
sprang from whatever. Ordinarily you want some questions and
conversation. I was a little surprised that this bill was going to go
right from hearing to the floor of the House. I asked why, and I
realize what the answer is.
This legislation, this constitutional proposal, is so flawed, it does
not command a majority within the subcommittee in the Judiciary that
has jurisdiction, because there are significant, influential, respected
Republicans who do not want to vote for it. It does not have a majority
in the committee, so they plan to bypass the subcommittee and bypass
the committee and bring it to the floor.
But then a glitch developed, because as we discussed this, even at
the hearing, it became clear that, for instance, you could not under
this constitutional amendment raise a tariff. I know Pat Buchanan has
not been getting much respect from the Republicans, and as the poor
man's totals fall in the primaries they whack him again. But to pass a
constitutional amendment to make it virtually impossible to raise
tariffs, that seems to me one more indignity they would heap upon Mr.
Buchanan, but apparently that is what this amendment would do, because
under this amendment you could not raise tariffs. He talked about
raising tariffs. Indeed, we have legislatively ceded to the President
the right to raise tariffs, as we all know, in particular cases. You
can raise a tariff in the case of dumping. It is a countervailing
tariff. You might raise a tariff in a particular case by denying
somebody most-favored-nation treatment, et cetera.
Well, we cannot delegate to the President by more than we have
ourselves. If it takes us two-thirds to raise a tariff, it would
obviously take two-thirds to pass a bill that would delegate to the
President the right to raise a tariff. So our ability to defend
ourselves in trade by higher tariffs, that would also take two-thirds.
In addition, it was pointed out and conceded by the sponsors of the
amendment, that going to a flat tax would take two-thirds. So now they
are not
[[Page H2862]]
only going after Buchanan, they are going after Steve Forbes. This
amendment is the revenge of the congressional Republicans and their
upstart candidates.
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Because going to a flat tax means you increase the base. And the
language of the amendment clearly says, if you increase the tax base,
if you tax more items, if you take away an exemption for mortgage
interest, if you take away an exemption for charitable deductions, that
requires two-thirds. In fact, one of the sponsors, our former
colleague, the junior Senator from Arizona, said, well, do not pass
this constitutional amendment until we get to a flat tax. Another one
said, no, we do not agree with that. So there was a certain amount of
confusion about this.
This is the vehicle they are talking about taking right from this
intellectual chaos to the floor of the House. Then apparently another
noncommittee intervened because it is going to be a nonjudiciary bill.
But the chairman of the Committee on Ways and Means, who is a
thoughtful individual, the gentleman from Texas, apparently looked at
this and said, wait a minute, you cannot require us to take two-thirds
to go to a flat tax. He wants to go to a consumption tax. I think there
is a lot to be said for the approach of the gentleman from Texas, but
it would take two-thirds to do that. He says, you cannot do this to
tariffs.
So apparently we are now having a conference between the Committee on
Ways and Means and the Committee on the Judiciary except not with the
committees. We are going from a nonmarkup in the Committee on the
Judiciary to a nonmarkup in the Committee on Ways and Means, on as
significant a piece of legislation as we can have, an amendment to the
Constitution, something which has happened 27, 28 times in our 200-plus
years. That is being now privately discussed by some very able people,
but they are privately discussing it. It is a shambles of a way to
legislate.
It will come to the floor without any committee consideration, with
uncertainty. Does this affect the flat tax; does it affect the tariff?
What it shows is this is a search for a political gimmick. No one could
think we would seriously legislate in this way.
Let me add one other flaw that occurs to me on this. That is, the
amendment would, of course, allow you to reduce taxes by a majority,
but it would take two-thirds to raise them. But I think in effect this
would also make it harder for future Congresses to cut taxes. Because
if you are in a situation where you say, you know, things are looking
very good now, and we are in a sort of a surplus situation, we can
afford to cut taxes now because we can always raise them back again if
later on we need them, people will be reluctant to do that. Because if
it takes two-thirds to raise the taxes later on, then it may not be
prudent to reduce them temporarily.
The whole notion which we may reach of a temporary tax reduction, you
will have to say, wait a minute, if we temporarily reduce them, we will
need two-thirds to put them back up again. That seems to me to be a
grave error. This is not only substantially a grave mistake,
procedurally it is a complete and total botch.
Mr. SKAGGS. I appreciate the gentleman's insights into the way we
will be confronted with this on April 15, assuming the leadership
sticks to its intentions.
Mr. FRANK of Massachusetts. Sticking to their guns, they are very
good at that. They stuck to their assault weapons last Friday. So I
assume they will stick to their guns. They are very good at sticking to
their gun owners.
Mr. SKAGGS. The gentleman has served on the Committee on the
Judiciary how many terms?
Mr. FRANK of Massachusetts. This is my eighth term.
Mr. SKAGGS. Has there ever been a case before this Congress when the
Committee on the Judiciary completely failed to mark up a
constitutional amendment?
Mr. FRANK of Massachusetts. I do not remember one. I was told that
when the equal rights amendment came before us, I do remember it came
before us under a suspension of the rules. It was my impression that it
had gone through the committee. It had certainly gone through the
amendment previously.
I do not remember a constitutional amendment coming up that never
went through the committee. You have to say, in defense of the
Republican leadership, the bill to combat terrorism went through the
Judiciary Committee, but after it went through the committee because
the right wing in this Congress did not like it, it got totally changed
before it came to the floor anyway. Similarly with the immigration
bill, the Committee on the Judiciary voted out the immigration bill,
but some people in the right wing did not like it so they changed it
around. You people on judiciary, we are just being considerate. What is
the point of you wasting your time engaging in a model U.N. here,
having all these debates. We are going to do whatever we want on the
floor anyhow.
But we are going to suffer in this case because with regard to
tariffs, with regard to a flat tax, there are serious questions here.
Apparently these serious questions are going to be resolved not through
some open debate in committee with the press involved but through
private conversations between Members of the Committee on the
Judiciary, sponsors of the bill and members of the Committee on Ways
and Means, a totally undemocratic procedure.
Mr. SKAGGS. Let me ask either the gentleman from Massachusetts or
Virginia, one of the things that has been a regular topic of debate
around here the last few months has been questions of corporate
welfare, closing corporate tax loopholes. Will we be able to deal with
that kind of proposal?
Mr. FRANK of Massachusetts. The gentleman has a perfectly appropriate
question. Let me say, I do want to say to my friend from Colorado, it
just struck me, when he mentioned we are from Virginia and
Massachusetts, we represented the people who voted on the original
Constitution. Colorado was not around to get involved in the original
one, so the Republicans are being very generous by letting you in. But
I think the Philadelphia convention had a little better set of
procedures than the current group.
Any effort to close loopholes, any effort to diminish tax preferences
that wealthy people now have, any effort to say, for instance, that the
tax code encourages people to go overseas more than they should, the
effort we had earlier to close the tax loophole on people who want to
renounce their citizenship but retain their money, all of those would
require two-thirds. As hard as it has been to deal with any of that
loophole closing or excessive corporate luxury that we have done so
far, going from a majority to two-thirds would make it infinitely
harder.
Mr. SKAGGS. Does the gentleman from Virginia have thoughts on that
topic?
Mr. MORAN. Just to underscore the point that the gentleman from
Massachusetts [Mr. Frank] made, we have had so many proposals that
would have required an offset in the revenue code to do the right
thing. In most cases people recommend ways to reduce taxes because that
is what the public seems to prefer, obviously. But there have been
several other measures that have been suggested by the Republican
majority, such as phasing out much of the benefits of the earned income
tax credit.
That was about $32 billion, a major component of the tax reduction
and budget resolution proposal that the majority suggested. Yet that
never could have even been on the table because it in effect is an
income tax increase and in fact would have required a two-thirds vote,
which never would have passed.
Mr. Speaker, obviously the situation where people renounce their
citizenship so they can avoid taxes due, that would have amounted to
$3.6 billion. That would never be on the table because obviously that
is an income tax increase and obviously in conflict with this
legislation. But we can go through virtually every significant tax
proposal that has been made by both sides of this aisle and in some way
violates the two-thirds income tax increase restrictions. What the
measures that we mentioned earlier, the five major tax bills that have
been enacted since 1980, every single one of them but one--actually one
of them passed with two-thirds
[[Page H2863]]
of the vote, but none of the others would have passed--every single one
of them would have been in violation of this two-thirds requirement.
Mr. Speaker, I mentioned to Mr. Frank and Mr. Skaggs earlier,
sometimes we wonder why we need save them from themselves, but the
point of this is that we all have an obligation to protect the
Constitution.
We all have really an obligation to do some reading on the history of
the Constitution to understand that this very issue was debated at
length by the Founding Fathers when they realized that the requirement
to have 9 out of the 13 original States, at that time they were not all
States, they were commonwealths and the like, but to have 9 of the 13
States proved totally unworkable. The U.S. Government was not
functioning, and so they went back to majority rule. They had their
turn at that time to put in a constitutional provision making it more
difficult to raise taxes. They deliberately chose after extensive
debate not to do that. And for us now to treat the Constitution, as the
gentleman from Colorado [Mr. Skaggs] described as some kind of rough
working draft, I think does a great disservice to the American people
and to the future of this Nation.
Mr. Speaker, I know we have the most compelling arguments on our
side. I cannot imagine why they would bring up this kind of legislation
without debate. We are going to go on vacation for the next 2 weeks.
That is why the gentleman from Colorado is bringing this up because we
are not even going to have time to debate it. Yet they would bring it
up and attempt to pass a constitutional amendment creating a totally
unworkable situation.
Mr. SKAGGS. Mr. Speaker, I thank the gentleman for his participation.
Mr. FRANK of Massachusetts. Mr. Speaker, if the gentleman will
continue to yield, we ought to emphasize, he may have already done
this, when the gentleman from Virginia talks about the prior tax bills,
many of those tax bills were listed as tax reductions and in gross they
were. That is, several of them meant that the Government collected less
taxes when we were through than when we started. Despite the fact that
they were, several of them, listed as tax reductions, none of them
would have been allowed without a two-thirds vote because tax
reductions never in my experience are bills that only reduce. They
reduce overall, but they offset the reductions by increasing in some
areas.
Unless we believe that we have as equitable a Tax Code as we are ever
going to get and that the balance of taxes should never be changed,
then we should be against this amendment. This amendment means that any
effort to shift the balance, any effort to say that there are some
elements that are not doing a fair amount and there are others that
are, we would have to take two-thirds to deal with that.
Mr. Speaker, what it shows is also a fundamental understanding, I
believe, on the part of many in the majority that their ideological
agenda is unpopular with the American people. That is what is at stake
here. Increasingly we are being given proposals that limit what the
majority can do. If we are in fact confident that the majority is on
our side, then we do not try to limit them. But what we have are people
who have found out, I think, that, while the general public disagreed
with a lot of what the Government was doing, there is on the part of
the public an unwillingness to dismantle the Federal Government as much
as people on the other side think.
They were, as we know, surprised that, when they shut down the
Government as a deliberate tactic on several occasions earlier this
year, the public was upset. Many Republicans said nobody will care.
Well, they were wrong. The American people cared deeply about their
Government because their Government is doing things that on the whole
they have asked it to do. They understand, therefore, that they are not
going to win this increasingly on a majority situation. So what they
are trying to do is fix the game, require two-thirds so that on those
occasions when a majority disagrees with them and wants to do more in
health care and environmental protection and in law enforcement than
they want to do, they will not have to appeal to a majority. They will
have this minority veto that they can inflict. That is what is at
stake.
Mr. MORAN. Mr. Speaker, I would just like to make a point, too. When
we look at the historical record and what is forcing this issue, I
cannot really find anything other than purely appeasing those in our
economy who simply do not like to pay taxes and that some Members would
pander to and put their interests ahead of the national interest.
But the reality is that, if we look back at taxes as a percent of
gross domestic product, in 1981, during the Reagan administration, they
were 20.2 percent. In 1982, they were 19.8 percent, almost 20 percent,
but they have stayed under 20 percent now since for the last 26 years.
It is remarkable how consistent they have been.
Mr. Speaker, what needs to be done, it would seem to me, is to make
that level of tax revenue fair, to make it such that it will stimulate
our economy, to make it such that its priorities are representative of
the American people's priorities. But to take away our ability to make
those tough decisions, to exercise the judgment that we were elected to
make just does not seem to be in the national interest or the interest
of this body.
Mr. SKAGGS. Mr. Speaker, let me just say in concluding, I think there
are a couple of things we can be sure of or at least we ought to allow
to humble us. One is our inability to predict the future. Why in the
world we would want to deprive our successors in the body of their
ability to deal in the future with one of the most complicated and
nuanced subjects that we ever face around here, namely the tax code,
deprive them of their ability or make them basically the captive of 34
Senators and their inability to deal with that subject is beyond me.
In effect, we are saying to those that are going to come after us in
this Congress, we do not care what the particular circumstances may be
that you are going to face in 10 to 20 years. We simply do not trust
the majority of you to exercise your judgment to carry out the will of
the then-majority of American citizens. Our expectation is that you are
going to be incompetent to do that, that you have got to have two-
thirds.
{time} 1615
Mr. Speaker, that seems to me to be a very arrogant and presumptuous
act for us to take. It also, as the gentleman from Virginia has pointed
out, ignores our history, and one of the things that is for me most
profound about the honor of serving here is our job as carrying the
legacy of the brilliant people who drafted the Constitution and set up
our system of Government and who did so because the supermajority
requirements of the Articles of Confederation were wholly
dysfunctional. They recognized that, for this Republic to survive, the
fundamental principle of free Government absolutely had to be majority
rule and that to cede that responsibility to the minority was a
prescription for failure, which we ought to keep in mind as we deal
with this amendment.
The gentleman from Massachusetts.
Mr. FRANK of Massachusetts. Yes, I think that is exactly what is at
stake here, but I think we have to give it some specific content.
The current Republican majority in Congress won the 1994 election,
and they won it, they got more votes than we got. I think they won in
part because of dissatisfaction with what the Government was doing.
Many of them misunderstood that to mean opposition to the Government in
general. It is possible to be critical of waste and excess and
sloppiness and not believe the Government should get of the business.
And they have increasingly learned that now the public is far more
supportive of environmental policies than many of the Republicans, not
all, but many of the Republicans, understand. The public likes the
notion of the Federal Government helping with college educations,
helping with law enforcement, helping with medical care, and they have
a dilemma. They have the dilemma of having a very ideological agenda
which says, in the words of the majority leader, the Government is dumb
and the markets are smart, and at a time when people are not so sure
that the markets are fair, how do you prevent the public from having
the Government play a more active role than they want ideologically?
That is their dilemma because the public is getting away from them
and
[[Page H2864]]
not supporting these cutbacks, and it reminds me of my favorite
musical, the musical ``Fiorello,'' and when he wins, and he was not
supposed to win, the bosses are walking around very grumpily, and there
is one set of lines in the song where they say, ``How did we know the
people would go to the polls and elect a fanatic?'' And the other one
says, ``The people can do what they want to, but I got a feeling it
ain't democratic.''
Mr. Speaker, I think that is a dilemma that our friends have over
there. They are afraid that what the people want to do to them
``ain't'' democratic and, therefore, they are going to restrict the
ability of a majority of the American people, acting through their
legislators, to decide 5 years from now, 10 years from now, 20 years
from now that they would like the Government to play more of a role in
this or that area, or that they would like the tax code to be fairer.
They would like wealthier people to pay a higher percentage.
If we were to decide, for instance, that the Social Security payroll
tax, which is a very regressive tax, unfairly burdens a lot of working
people, and we want to alleviate that by changing the mix, we could not
do that. If we wanted to say that wealthy people ought to pay more of
their income toward the Social Security tax instead of having it cut
off, we would need two-thirds, and what we have are people who, I would
give them credit for perception, they understand that their very right-
wing, ideological agenda is increasingly unpopular with a lot of
people, and, therefore, while they still have something of a majority,
they are going to try and change the rules so that that majority will
not be able to work its will.
Mr. MORAN. Two words might be applicable here, and that is hypocrisy
and cynicism. Certainly it is the height of hypocrisy to pass a rule at
the beginning of a game, as we did on the very first legislative day of
this session of Congress back in January 1995, when we passed a rule
saying that three-fifths' vote would be required any time you raise
taxes, and then every time that we have had a tax bill, the Committee
on Rules has had to waive that exemption. Talk about hypocrisy; to get
credit for passing a law, and then every time that it would apply, to
waive it.
But then cynicism, and I think the term cynicism applies here because
we do not have that ability to waive it if it becomes a constitutional
amendment. But the Members on the other side have got to be thoughtful
enough to know that this would be unworkable if it became a
constitutional amendment. And so what is driving it?
Well, one would have to believe that it is a certain element of
cynicism, knowing perhaps that they are not likely to be in office when
it applies to subsequent Congresses or believing that better minds will
prevail, that the Senate will kill it or that the American people in
their State constitutional conventions will kill it, but somebody else
will do the responsible thing, allowing them to do the cynical thing to
get votes by voting for this constitutional amendment, believing and
hoping that it will never become law.
Mr. FRANK of Massachusetts. Mr. Speaker, that is very reassuring
because that gives us two chances to kill it: one with better minds;
and, two, with the Senate as apparently an alternative line of defense
there.
Mr. SKAGGS. Let me suggest that we take the words of James Madison as
a benediction to this particular discussion, and just quoting from the
last part of Federalist Paper No. 58, Madison on this very point wrote
as follows:
``It has been said,'' this is referring to the debates in the
Constitutional Convention about wanting more than a simple majority for
certain kinds of legislation, quote, ``it has been said that more than
a majority ought to have been required in particular cases for a
decision.'' That some advantages might have resulted from such a
precaution cannot be denied. It might have been an additional shield to
some particular interests and another obstacle, generally, to hasty and
partial measures. But these considerations are outweighed by the
inconveniences in the opposite scale. In all cases where justice or the
general good might require new laws to be passed or active measures to
be pushed, the fundamental principle of free government would be
reversed. It would no longer be the majority that would rule. The power
would be transferred to the minority.
I do not think we should do that.
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