[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]




                              {time}  1530
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.

                              {time}  1545

  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.

                              {time}  1600

  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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