[Congressional Record Volume 143, Number 23 (Thursday, February 27, 1997)]
[Senate]
[Pages S1698-S1726]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




             BALANCED BUDGET AMENDMENT TO THE CONSTITUTION

  The Senate continued with the consideration of the joint resolution.
  Mr. REED. Mr. President, I ask unanimous consent to speak for 20 
minutes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BIDEN. Mr. President, will the Senator from Rhode Island yield to 
me so that I may explain why I missed that last vote?
  Mr. REED. Yes.
  Mr. BIDEN. Mr. President, I thank the Republican leader as well as 
the Democratic leader for attempting to hold the vote long enough for 
me to get here. I voted before in the affirmative on the Graham 
amendment. We voted on it last year.
  I was one of the speakers at the International Chiefs of Police and 
Sheriffs Association discussing the juvenile justice bill. I thought I 
had left in plenty of time from a downtown hotel to get here. But, as 
Washingtonians will tell you, there is a good deal of road construction 
going on. I was caught behind the most polite cab driver in Washington. 
He stopped for everyone, which I was happy to see except for this day. 
Had I had the cab driver who runs over most people, I would have been 
up here. I should not say that. I will get letters about that. That was 
a joke, an attempted joke.
  But I want the Record to show that had I been here, I would have once 
again voted for the Graham amendment.
  I apologize if I inconvenienced the Senate in any way in attempting 
to hold it for me to get here.
  I thank my distinguished friend from Rhode Island for yielding.
  The PRESIDING OFFICER. The Senator from Rhode Island.
  Mr. REED. Mr. President, I am prepared to speak. I would be willing 
to defer if there are any other procedural announcements at this time.
  Mr. LOTT addressed the Chair.
  The PRESIDING OFFICER. The majority leader.


                      Unanimous-Consent Agreeement

  Mr. LOTT. I thank you, Mr. President. I thank the Senator from Rhode 
Island for yielding this time so that I may enter a unanimous-consent 
agreement which has been reached with regard to an amendment that 
Senator Hollings had intended to offer to the balanced budget amendment 
on campaign financing.
  I ask unanimous consent that the majority leader, after notification 
of the Democratic leader, may turn to the consideration of a Senate 
joint resolution, the modified text of which is Senate amendment No. 9 
filed yesterday to Senate Joint Resolution 1 regarding campaign 
financing.
  I further ask that no amendments or motions be in order during the 
pendency of the Hollings constitutional amendment, and following the 
conclusion of the debate, the joint resolution be read a third time and 
a vote occur on passage of the joint resolution, with the preceding 
occurring without any intervening action.
  Before the Chair puts this consent request to the body, it has been 
pointed out to me by Senator McCain that this consent is for a 
constitutional amendment regarding campaign spending limits. There are 
other campaign-related issues that may be pending in the Senate 
committees that do not amend the Constitution but are statutory 
language.
  So this is not to be in place of or in any way block other 
consideration, or to indicate that there will not be hearings and 
further consideration of this matter. But Senator Hollings agreed to 
this arrangement so that it would not be a part of or relate to the 
consideration of the constitutional amendment for a balanced budget. 
Senator McCain agreed that it be done this way. It has taken the 
cooperation of both of them and of all the Senators. This is an 
important issue which should be brought up freestanding with

[[Page S1699]]

a reasonable amount of time for discussion.
  I have indicated to Senator Hollings that, if it takes a couple of 
days or so, we will be prepared to do that. I think that is about what 
it would take, but if it takes 2 days and 2 hours, I do not know of 
anyone who would object to that. But it should be a very interesting 
debate.
  So I now make that request, Mr. President.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.
  Mr. LOTT. I thank the Senator from Rhode Island for yielding.
  The PRESIDING OFFICER. Under the previous order, the Senator from 
Rhode Island is recognized for 20 minutes.
  Mr. REED. Thank you, Mr. President.
  Mr. President, I rise in opposition to the amendment before us today.
  For many decades, Congress found it easier to debate a balanced 
budget amendment to the Constitution than to actually balance the 
budget.
  Support for the balanced budget amendment was a convenient badge of 
fiscal austerity at a time when many Members were voting for tax 
policies and spending proposals that saw our annual deficit and our 
cumulative national debt explode.
  After so many years, it is no wonder that the balanced budget 
amendment has become a talisman which its supporters clutch, suggesting 
that it has extraordinary powers to translate the difficult choices 
that this body must face into some type of simple constitutional 
formula which will miraculously erase the deficit.
  But, as the last few years have indicated, there is no magical 
constitutional language that will make the choices or the policies of 
budget balancing easier.
  Mr. President, in 1993, the Clinton administration began a process of 
deficit reduction which has helped to create a strong economy, cut the 
deficit by 63 percent, brought the deficit when measured as a 
percentage of the gross domestic product to its lowest level since 
1974, and given us the lowest deficit of any major industrialized 
nation.
  It took difficult choices, not constitutional gimmicks; choices that 
Republicans refused to support.
  Whether or not this amendment passes, and I hope it does not, we will 
still be confronted by these choices.
  However, if this amendment does pass, for the first time in our 
history we will either surrender our role in shaping the budget and the 
social and economic policies which it defines to the courts, or simply 
surrender any decision to an adamant minority which could invoke the 
provision to block necessary action.
  Mr. President, the amendment before us today is flawed in many ways. 
It is the wrong answer to a real problem. It is the wrong way to manage 
the economy. It disrupts our tradition of majority rule. It needlessly 
jeopardizes essential programs and it needlessly enhances the role of 
the courts in budgetary and tax policy. The balanced budget is the 
wrong way to manage the economy.
  Over 1,100 noted American economists, including 11 Nobel laureates, 
voiced their opposition to this balanced budget amendment on the 
grounds that it would hurt our economy and graft improper fiscal policy 
onto the Constitution. They said, ``It is unsound and unnecessary.'' 
They added, ``It mandates perverse actions in the face of recessions.'' 
They went on to say it ``would prevent Federal borrowing to finance 
expenditures for infrastructure, education, research and development, 
environmental protection, and other investment vital to the Nation's 
future well-being,'' and that it ``is not needed to balance the 
budget.'' They also ``condemn'' the amendment and suggest it could 
place our economy ``in an economic straitjacket.''
  One Nobel laureate, Prof. William Vickery, developed an analysis of 
15 issues with respect to balancing the budget, reducing the deficit 
and providing for economic growth, and in this analysis he has a 
compelling and noteworthy passage:

       If General Motors, AT&T, and individual households had been 
     required to balance their budgets in the manner being applied 
     to the federal government, there would be no corporate bonds, 
     no mortgages, no bank loans, and many fewer automobiles, 
     telephones and houses.

  But this balanced budget amendment suggests that the Government do 
exactly the opposite of what the most sophisticated private industries 
do, and I think that is a mistake.
  While the majority may find it appropriate and even desirable to 
insert economic formulas into the Constitution, I would urge caution. 
For example, we all believe and we will say time and time again that we 
should have a full employment economy and that every able bodied 
American work. However, if I were to introduce a full employment 
constitutional amendment, I predict that the very same supporters of 
this balanced budget amendment would rush to this floor and condemn 
that approach, invoking the terminology that we should not enshrine 
economic ideas or formulas into the Constitution of the United States. 
The same thing would happen if we talked about an anti-inflation 
amendment.
  The point, I think, should be very clear. It is our responsibility, 
together with other institutions, outside the scope of the Constitution 
to rationally ameliorate the surges and downswings of the economy. This 
is what we should do.
  Some people might try to say, well, no, look at the States. They 
provide for a balanced budget. That certainly misses the point. State 
governments do not manage national economies. They do not issue and 
support currencies. They do not deal in foreign trade. And most of 
them, if not all of them, with balanced budget requirements have the 
good sense to separate capital spending from operational spending. So 
that logic does not suffice to support this balanced budget amendment.
  I also suggest that economically we are not immune from the 
difficulties of the business cycle. We have been enjoying over the last 
several years good, substantial economic growth, but we know that in 
past periods our economy has faltered. If it does falter, this balanced 
budget amendment could be a straitjacket, confining and constraining us 
in our response to these economic recessions. When the economy shrinks, 
revenue shrinks, throwing off our revenue estimates, throwing off our 
whole plan to get to the balanced budget, and we will be hamstrung by 
this amendment's proposals in terms of what we can do to address a 
recession.
  For example, the CBO has talked about the impact of recession on the 
deficit. Their estimates indicate that a 1 percent drop in the gross 
domestic product would increase the deficit by $32 billion. A 1-percent 
increase in unemployment would add $61 billion to the deficit. These 
are staggering figures with which we would have to contend in the 
context of a very narrowly drawn balanced budget amendment.

  These are not just statistics. These are real people's lives. We have 
all lived long enough to have endured economic recessions and have seen 
the cost in human lives. We have to, as a Government, to such 
situations. We cannot, I think, plead, at that moment of need, we would 
like to help you, but the Constitution prevents us from doing sensible, 
appropriate things to put people back to work in this country.
  One of the aspects of the balanced budget amendment that would 
severely constrain our response to recessions is the fact that it would 
suppress the automatic stabilizers contained in our economic policy 
today, things like unemployment compensation and other entitlement 
programs which exist to meet the needs of people who have fallen on 
hard times during a recession.
  As the Congressional Research Service cautioned when it examined the 
economic impacts of this proposal:

       In sum, the balanced budget constitutional amendment could 
     require action to neutralize the automatic stabilizers in the 
     budget that expand outlays and reduce tax collections in 
     economic slowdowns and recessions. In this case, the budget 
     would no longer serve to moderate business cycles.

  And, under this amendment, we would lose a valuable tool in aiding 
the working men and women of America.
  There is more than just constitutionally historic interest involved 
in the question of this amendment's supermajority requirements because 
this amendment requires not a majority vote, in many cases, but much 
more than a majority vote. This provision holds the real potential for 
constraining effective action at the time we

[[Page S1700]]

need Government to move decisively and purposefully.
  For example, in times of economic crisis, there would be no automatic 
stabilizers if a small minority of Senators or Representatives 
objected. Different regions of the Nation experiencing economic 
hardship could find no comfort in Washington because they could not 
muster the number of Senators and Representatives to deal with their 
region's particular problems. Frankly, over the last several years, we 
have seen economic situations in which the country overall appears to 
be doing fine, but when you go to the Northeast, to California, or to 
other parts of the country, you find regional recessions that need the 
help of this Government. Regrettably, in that situation there may not 
be sufficient will or political support to do what we must do, which 
would be extremely detrimental to the citizens who live in these areas.
  There is another aspect of this supermajority that is built into this 
constitutional amendment which should cause us all great concern, and 
that is in order to raise the debt ceiling a vote of three-fifths would 
be required.
  We have just in the last Congress seen the difficulty of securing 
approval of a change in the debt ceiling with a simple majority 
requirement. If we would require a three-fifths vote, we really would 
be putting our Nation at severe risk.
  As Secretary Rubin has pointed out with respect to the issue of 
raising the debt ceiling and consequently avoiding default on 
Government debt:

       The possibility of default should never be on the table. 
     Our creditworthiness is an invaluable national asset that 
     should not be subject to question.
       Default on payment of our debt would undermine our 
     credibility with respect to meeting financial commitments, 
     and that, in turn, would have adverse effects for decades to 
     come, especially when our reputation is most important, that 
     is, when the national economy is not healthy. Moreover, a 
     failure to pay interest on our debt could raise the cost of 
     borrowing not only for the Government but for private 
     borrowers as well.

  This super majority provision would affect the Government's ability 
to deal rationally and prudently with the debt ceiling, and that is 
another reason, a very strong reason, why this proposed constitutional 
amendment is inappropriate.
  It is bad economics; 1,100 economists would condemn it, but it is 
also very poor budgeting. As Senator Byrd pointed out, the majority's 
proposal turns the Congress and the President into fortune tellers who 
must somehow predict and balance outlays and receipts exactly or find 
the supermajority needed to waive the amendment.  This appears to be an 
impossible task, because each year the CBO seems to revise its 
projected deficit and revenue totals on a regular basis. We should not 
delude ourselves into thinking we can accurately predict the future, 
and we should definitely not add this dubious proposition to the 
Constitution.

  In addition to the fact that this amendment's success is predicated 
on frail human predictions, there are other reasons to oppose this 
amendment. While the majority claims that States have managed to 
survive balanced budget amendment requirements, they fail to 
acknowledge, as I previously indicated, that States do so rationally by 
creating separate operating and capital budgets. I have supported a 
balanced budget amendment which recognizes this rational policy. But 
that proposal is not before us today and we are debating a proposal 
that does not recognize--in fact some scholars have indicated it would 
constitutionally preclude--the development of a capital budget by the 
Federal Government.
  Time and time again, the advocates of the amendment have rejected the 
idea of a capital budget for the Federal Government. I believe, in a 
sense, not only are we rejecting sound constitutional policy and sound 
administrative policy, but we are also undercutting this Nation's need 
to build up our capital infrastructure. So, this amendment, as 
proposed, is both bad economics and bad budgeting, and finally it is an 
abrupt departure from the constitutional balance that we have observed 
through the course of our history. It raises a number of fundamental 
questions about our Constitution, our tradition of majority rule, and 
the power of the judicial branch in the United States.
  One of the lessons I learned in law school was, where there is a 
wrong, particularly a constitutional wrong, there must be a remedy. Yet 
this constitutional amendment makes no mention of how it will be 
enforced and who has the legal standing to question those issues which 
arise under the constitutional amendment. This is an invitation to 
litigate rather than legislate on budgetary matters. If a future 
Congress finds it too difficult to take the painful steps needed to 
eliminate the deficit, then we may expect any number of possible 
claimants, from Governors upset about Medicaid payments to senior 
citizens upset about their Social Security checks, all of them urging 
the courts to step in and take action.
  Moreover, by placing the requirements that receipts and outlays be 
reconciled in the Constitution itself, the amendment effectively calls 
on the Supreme Court to ensure that this mandate is met. While the 
amendment may leave open the question of how the legislature reaches 
its positions and what items will be considered outlays and revenues, 
the Supreme Court will always have an obligation to uphold the 
Constitution. Once we declare constitutionally that revenues and 
outlays must be reconciled, the Court will have no inhibition, and, in 
fact an obligation, to step in and make this reconciliation if Congress 
fails.
  Likewise, under this amendment the President could be forced to 
impound funds, to cut off checks, to do many things because of a 
perceived constitutional mandate. I would think long and hard, and I 
urge my colleagues to think long and hard, whether or not we want to 
surrender what is traditionally the authority of the Congress over both 
the courts and the President to manage the public purse. These issues 
are all very difficult ones, raising profound questions of 
constitutional law.
  One other aspect of the proposal which is disturbing is the departure 
from a tradition in this country of majority rule. I have mentioned 
before the supermajorities which would be required to raise the debt 
limit and to do other things which today only require a majority vote 
of the Members of the House and the Senate. Indeed, the balanced budget 
amendment would create new supermajorities in many different areas. 
When the founders developed the Constitution, they recognized that only 
majority rule would work for a nation founded on the principles of 
liberty and opportunity. James Madison argued in Federalist 58 that if 
more than a majority were required for legislative decision, then:

       . . . in all cases where justice or the general good might 
     require new laws to be passed, or active measures to be 
     pursued, the fundamental principles of free government would 
     be reversed. It would be no longer the majority that would 
     rule: the power would be transferred to the minority.

  And, indeed, that is what this amendment would do inexorably.
  There is a final and significant issue which must be discussed with 
respect to this balanced budget amendment proposal. I believe it 
jeopardizes the integrity of the Social Security system and raises the 
specter of encroachments on the system, not to support seniors but to 
pay for the reckless spending of the 1980's.
  My State has the Nation's third highest percentage population of 
senior citizens. These are the men and women who fought in World War II 
and who made our country an economic power. Their sacrifices have made 
our Nation what it is today. They deserve our support and they rightly 
demand our assistance to maintain a dignified retirement.
  The hallmark of our commitment to these seniors has been the Social 
Security system. However, this amendment makes no provision to protect 
this essential program from the choices necessary to achieve a balanced 
budget. The amendment fails to recognize that Social Security is not 
just like every other program. It is directly funded through a 
dedicated payroll tax, and numerous acts of Congress have sought to 
protect it from improper manipulation or precipitous reductions in 
benefits. Yet the majority refuses to protect Social Security and, 
instead, wants to use the Social Security trust fund to mask the 
deficit.
  Mr. President, recently the Congressional Research Service produced a 
report regarding the impact of the balanced budget amendment on Social 
Security, which contained a shocking

[[Page S1701]]

revelation. The report found that the Social Security Administration, 
even though it has accumulated a very healthy surplus, would not be 
able to pay benefits in certain years, due to the amendment's 
requirements that total outlays for any fiscal year shall not exceed 
total receipts for that fiscal year. In other words, Social Security 
could only pay as much in benefits as it receives from payroll taxes in 
any given year, even if the trust fund was running a multibillion-
dollar surplus from previous years. This is a grave matter that 
deserves more analysis and could jeopardize the 1983 Social Security 
reform law as well as future reform efforts. But it would be a 
consequence of this balanced budget amendment if adopted today or in 
the future.
  Some would argue that no legislator would touch the Social Security 
system, but a constitutional imperative may provide a shield which 
would allow legislators to break that sacred commitment between 
ourselves and those seniors who have contributed so much to this 
country.
  I urge my colleagues to reject this balanced budget amendment. The 
Constitution establishes the durable rights and responsibilities which 
are the heritage of our past and the best guarantee of our future. We 
should not let the Constitution fall prey to a proposal that reflects 
transient economic policy at best, and would erode both majority rule 
and the principle that the people's representatives, not judges, must 
be responsible for the public purse.
  Mr. President, before I yield, I would like to thank Senator Feingold 
for his graciousness in delaying consideration of his amendment in 
order to permit me to go forward with my statement.
  I thank the Senator from Wisconsin and I yield my time.


                            Amendment No. 13

  The PRESIDING OFFICER. Under the previous order, the question recurs 
on the Feingold amendment No. 13. Debate on the amendment is limited to 
30 minutes equally divided in the usual form.
  Mr. FEINGOLD. Mr. President, under the unanimous-consent agreement I 
have two amendments at the desk and I believe it is in order for me to 
call up the first of the amendments, amendment No. 13.
  The PRESIDING OFFICER (Mr. Enzi). That is the pending question.
  The Senator has 15 minutes.
  Mr. FEINGOLD. Mr. President, I thank the Senator from Rhode Island 
for his kind remarks and for his excellent remarks in opposition to the 
balanced budget amendment. The amendment I am offering today to the 
balanced budget amendment will ensure that this Congress will meet its 
stated goal of reaching a balanced budget by the year 2002. Many people 
do not realize that as currently drafted, Senate Joint Resolution 1 may 
well forestall this goal of balancing the budget by the year 2002 well 
into the next century. I believe reaching a balanced budget by 2002 or 
earlier should be our highest priority. Thus, I am offering an 
amendment that will shorten the time for ratification of this 
amendment.
  As was noted on the floor by our colleague from North Dakota, Senator 
Dorgan, a few weeks ago, even if this amendment were somehow ratified 
at 2:10 today, tomorrow this Nation's deficit would be no smaller than 
it was when the amendment was adopted. The fact that this amendment in 
and of itself does nothing to reduce the deficit highlights one of my 
principal concerns with Senate Joint Resolution 1. That concern is that 
pursuing a constitutional amendment approach could, counter to what 
everyone suggests on this issue, actually delay action on the real work 
of achieving a balanced budget by providing what is, in effect, 
political cover for inaction while the States debate the question of 
ratification.
  Under the proposal before us, even if the Congress adopted the joint 
resolution this year, the implementation date, the date by which we 
would actually be required to balance the budget, is potentially well 
into the next decade. Conceivably, it could be as late as the year 
2006.
  That is right within the terms of the balanced budget amendment that 
is being offered. This is evident on the face of the amendment itself. 
Section 8 of the amendment offered in Senate Joint Resolution 1 
provides that the balanced budget amendment will take effect beginning 
with the fiscal year 2002, or within the second fiscal year beginning 
after its ratification, whichever is later. So there is no certainty at 
all with regard to the year 2002.
  The report accompanying Senate Joint Resolution 1 reiterates this 
uncertain timeframe. It states as follows:

       An amendment to the Constitution forces the Government to 
     live within its means. S.J. Res. 1 requires a balanced budget 
     by the year 2002, or 2 years after the amendment is ratified 
     by the States, whichever is latest.

  So, Mr. President, the proposal before us allows the States a full 7 
years to ratify this amendment. The practical effect of this is, 
assuming Congress approves Senate Joint Resolution 1 by June 1 of this 
year, the States then have 7 years, or until the year 2004, just to 
ratify the amendment. If they take the full 7 years, and I think they 
will take more time when they begin to consider the full implications 
of this approach, the amendment would then not become effective--in 
other words, binding on Congress--until 2 years later, in the year 
2006. In other words, the ratification period envisioned by Senate 
Joint Resolution 1 forestalls making the truly hard choices until as 
late as the year 2006, well, well beyond the current target of the year 
2002.
  In fact, the only way this amendment can be effective and binding by 
the year 2002 is if we pass it this year and the States then ratify it 
within only 3 years.
  Because I believe, as I know do most of my colleagues, that we should 
balance the budget no later than the year 2002, I am offering this 
amendment to shorten the time for ratification from the allowed 7 years 
under the current amendment to 3 years, thus keeping us on track to 
meet the 2002 goal.
  I want to be candid in stating that I disagree with many of my 
colleagues who believe that this amendment will be promptly ratified by 
the States. There is already talk that some of the States that might 
have ratified this proposed amendment in the past may be having some 
second thoughts. Maybe they have been listening to the debate on the 
floor, about some of the very serious flaws with the way this balanced 
budget amendment was drafted, that has been brought forward. In fact, 
the longer the States have to consider this amendment and its potential 
ramifications and uncertainties, they will be less and less inclined to 
adopt it.
  However, when I offered this amendment in the Judiciary Committee, 
the proponents of the balanced budget argued against it. The 
distinguished chairman of the Judiciary Committee, the senior Senator 
from Utah, Senator Hatch, stated that he was quite confident that if 
the timeframe were shortened, as I am proposing, that the underlying 
amendment ``would still be ratified by an overwhelming number of States 
and probably within that 3-year time.''
  That being the case, and the general agreement that the budget must 
be balanced no later than the year 2002, I was somewhat surprised to 
see my amendment defeated by the committee. If we are sincere about our 
efforts to achieve balance within 5 years, our actions on this 
amendment should reflect that goal, a goal that has been stated by the 
President and by the majority leader and by the Speaker of the other 
body.
  The argument has also been made we should not abandon the custom of 
allowing a full 7 years for ratification. However, the 7-year period 
for ratification has evolved as a matter of practice beginning with the 
18th amendment. On each successive occasion, except the 19th amendment, 
Congress has a set time for ratification, and they have set that time 
each time at 7 years. Doing so has been upheld as appropriate by the 
Supreme Court as an exercise of Congress' authority to adopt reasonable 
timeframes for ratification of amendments.

  There has, no doubt, been much debate over whether or not the time 
for ratification may be extended. There is nothing, Mr. President, 
nothing, except adherence to tradition, that precludes the adoption of 
a shorter period of ratification, of a period less than 7 years. I 
respectfully suggest that the context in which the debate over the 
balanced budget arises counsels that it would be entirely appropriate 
and reasonable to depart from the 7-year standard and

[[Page S1702]]

adopt, in this case, 3 years, as is proposed in my amendment.
  There can be little doubt that balancing the budget is perhaps the 
top priority of the Federal Government at this point. In fact, so 
important was the adoption of the 2002 target date that the Republican 
Party created and ran what was, in my opinion, a pretty effective TV ad 
that showed President Clinton saying that a balanced budget could be 
attained in 7 years, then 8 years and then 10 years. That was a pretty 
good ad. This ad was a dramatic portrayal of what many argued was a 
general unwillingness to commit to attaining balance by a specific 
date.
  I agreed with my Republican colleagues that we should set about the 
business of reaching balance by the year 2002, and that is why I think 
the amendment I am offering is appropriate and should be adopted. It 
assures that the target date of 2002 will not be pushed back until 
possibly as late as 2006. If, as the chairman of the Judiciary 
Committee suggested, the States adopt this Senate Joint Resolution 1 
very quickly, then we should make it effective no later than 2002. If 
however, the States, upon learning about the uncertain consequences to 
the American people of this proposal, reject it, Congress should not be 
allowed to sit on their hands for 7 years and let the gains of the past 
4 years of reducing the deficit languish or, even worse, be lost.
  I am sure that many proponents of this constitutional amendment will 
argue that even if the States take the full 7 years, there is nothing 
to stop the Congress from continuing to work hard to get the balance 
done by the 2002 date. I hope so. But I suggest that such an argument 
speaks not to my amendment, but to the more threshold question of why, 
if that is the case, do we have to amend the Constitution anyway? If 
the constitutional amendment is not going to require balance until the 
year 2006, what will force this body to do the job by the year 2002? 
Nothing. The heat will be off.
  President Clinton was clear when he said that all we need to balance 
the budget is our votes and his signature. I agree. We should make the 
tough choices sooner, not later. The report accompanying this measure 
argues that should this amendment be adopted and subsequently 
disregarded by a Congress and a President and are stalled at an impasse 
in budget negotiations, that that would constitute nothing less than a 
betrayal of public trust. In my opinion, if we allow this amendment to 
potentially delay balancing the budget or, in the interim, stray from 
the course charted over the last 4 years, that would also be, in my 
view, a betrayal of the public trust. We should remain always and in 
all respects committed to the 2002 target date.
  As I said before in the Judiciary Committee, this amendment is 
really, to put it in very simple terms, the fish-or-cut-bait amendment. 
You either support moving toward balance by the year 2002 or you don't. 
If this Nation is going to take the constitutional approach, we should 
set about doing so and not let possible delays over ratification 
provide an excuse, provide political cover for inaction and delay until 
as long as the year 2006.
  I do not question the sincerity of my colleagues in their desire to 
balance the budget. My amendment ensures that this will occur within 
the timeframe we have all agreed upon. Therefore, Mr. President, I am 
hopeful that all of us who support balancing the budget, whether we 
support this amendment or not, will embrace my amendment that will 
limit the ratification to 3 years and, therefore, Mr. President, keep 
us on track to balance by the year 2002, not the year 2006.
  I reserve the remainder of my time.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Utah.
  Mr. HATCH. I understand my colleague. I understand the amendment 
being offered by Senator Feingold would reduce the period for the 
States to ratify the balanced budget amendment from 7 to 3 years.
  I have to say, that I do not see the wisdom in departing from the 
longstanding 7-year standard that this resolution reflects. The 18th 
amendment, ratified in 1921, was the first constitutional amendment to 
contain a time limitation of any kind. Although there was heated debate 
at the time over Congress' authority to impose such a limitation on the 
States' ratification of the constitutional amendment, the Supreme Court 
subsequently upheld Congress' power to set a reasonable time limit on 
ratification in the case of Dillon versus Gloss back in 1921. As a 
result, we find 7-year time limitations within the actual text of the 
18th, 20th, 21st and 22d amendments.
  Since approval of the 23d amendment in 1961, Congress has continued 
to include a 7-year time limitation. But such limitation has been 
removed from the text of the amendment and incorporated instead in the 
joint resolution proposed in the amendment as we have done in Senate 
Joint Resolution 1.
  Now, just to verify the continued adherence to the convention of a 7-
year time limitation, I did a quick review of the 107 Constitutional 
amendments introduced in the last Congress. Indeed, of those 107 
resolutions, only 1 contained a time limitation that varied from the 
conventional 7-year limitation.
  I am quite confident, were we to adopt a shorter time limit, as my 
colleague proposes, the amendment would still be ratified by an 
overwhelming number of the States. But I fail to see the need in this 
case to alter what has been recognized as a reasonable time limitation 
on ratification since the early part of this century or to prejudice 
the consideration of the balanced budget amendment by reducing the time 
for consideration.
  Mr. President, I am not concerned about 3 years or 7 years. I am 
concerned about 28 years, these 28 years of unbalanced budgets. You 
know, the bottom line is, we can talk all we want to about 
technicalities like 3 or 7 years but it is the 28 years I am concerned 
about. Really, if you get serious about it, it is 58 of the last 66 
years during which we have had unbalanced budgets. It does not take a 
rocket scientist to realize this outfit just does not have the will to 
do what is right.
  So to get all caught up in whether it is 3 or 7 years, I do not think 
serves the best interests of this amendment. Let me just say the bottom 
line is this. Congress cannot and will not stop spending more than it 
earns without the force of a constitutional requirement to balance the 
budget.
  I have 28 unbalanced budgets here just to prove the point. We stacked 
them a little lower by doubling and tripling the smaller volumes, but 
it still is a pretty high stack. It is headed right to the ceiling if 
we do not get a balanced budget amendment. We have run deficits in 58 
of the last 66 years. And, Mr. President, that is plain fiscal 
irresponsibility.
  For these reasons, I urge my colleagues to reject distractions such 
as this amendment. I do not mean to demean the amendment of the 
distinguished Senator or my colleague who serves well on the Judiciary 
Committee, and with whom I have a very good, friendly and decent 
relationship, but it is a distraction in the sense that really the 7-
year period really ought to be maintained since it has been over all 
these years.
  So I urge my colleagues to reject this amendment and to find the 
courage to change the face of this Nation by voting for a 
constitutional amendment to balance the budget. This is a chance to do 
it. This is a chance to do something that will work. If we put the 
balanced budget requisite into the Constitution, I have no doubt that 
it will be a very relative few who would not observe it. But I believe 
the vast majority of Members of the Congress of the United States 
henceforth and forever would do everything in their power to live up to 
that constitutional requisite were we to put it in the Constitution.

  I have no doubt about it. I think the vast majority of people who 
serve here are very honorable people who keep their word and will do 
what is right. I really believe that if we put this in the 
Constitution, that vast majority will really make sure that this 
balanced budget amendment works. On the other hand, if we do not, my 
gosh, what hope do we have? I mean, I can just see where nobody could 
be seen above this stack 6 or 4 years from now.
  Frankly, I am absolutely solid in asserting, unless we have a 
balanced constitutional amendment, these stacks are just going to 
continue to grow ad infinitum, something that must be horrifying our 
Founding Fathers, many of whom are undoubtedly in Heaven, although 
there are a few I am sure who

[[Page S1703]]

had a rough time getting there. But the vast majority of them probably 
are there with our Father in Heaven saying, ``Let's do that which we 
failed to do when we had the chance, even though we thought about it.'' 
But they, when they were here, never thought for a minute we would have 
28 straight years of unbalanced budgets.
  So I suspect that the only way to solve this problem is to put some 
fiscal mechanism within the Constitution that makes sense. This 
amendment is that mechanism. It is a bipartisan amendment.
  I chatted with Charles Stenholm last night, our Democratic 
counterpart over in the House. I have to say he has done a tremendous 
job over the years doing his best to try to enact this amendment. It 
takes guts because he takes a lot of flak for it because people in his 
party in particular want to keep spending and taxing and claiming that 
they are doing a lot for people--they never say with their own money 
that could be better utilized by them and I think in a better way. So I 
want to praise him for the work he has done over there in the House, 
along with other Democrats and Republicans who have worked so hard 
through the years on this amendment.
  I want to praise everybody here who will vote for this amendment 
because it does--it does--hold hope for the future if we can pass this 
amendment and enshrine it in the Constitution where I think the vast 
majority of Members would honor it and do what is right. The spending 
games would be over.
  So I would hope that our colleagues will keep the language exactly 
the same. I do not know how it would affect other people who are 
currently willing to vote for the amendment, but we would like not to 
change it. In spite of the fact that my colleague is sincere and that 
this is a sincere amendment, I would hope that our colleagues will vote 
to table it.
  Mr. President, I am prepared to yield back the balance of my time. We 
could move to the Senator's next amendment, unless he wants to discuss 
it.
  Mr. FEINGOLD. How much time do I have remaining?
  The PRESIDING OFFICER. You have 3 minutes, 46 seconds.
  Mr. FEINGOLD. Mr. President, if I may, I would like to use that time. 
There were interesting remarks made by the chairman of the Judiciary 
Committee, my friend, Senator Hatch.
  I will reiterate, this is really the fish-or-cut-bait amendment. I 
always appreciate the eloquence of the Senator from Utah, but I notice 
a sort of different tone when he speaks about this amendment as opposed 
to the balanced budget amendment. There is sort of a lack of urgency to 
his tone about this. His tone suggests that whether we get this thing 
done by 2002 or 2006, the important thing is that we just have this 
balanced budget amendment on the books. That just does not seem to 
square with the rest of the comments I have heard from the Senator and 
most of the other supporters of the balanced budget amendment.
  There was no suggestion by the Senator from Utah that we could not 
limit this to 3 years. I appreciate his candor on that. That is 
something that is available to the Congress. It has not been done 
before, but when the limitation was put in the first place on the 7 
years on the 18th amendment, it was my understanding that was not done 
before. So there is no literal constraint on that.
  I was also struck, Mr. President, by the Senator from Utah's 
statement that we really had no reason here not to adhere to 
convention, there is no reason not to go to 3 years or we should stick 
with the traditional 7 years. This entire process of balancing the 
budget and having an amendment to the Constitution to do it could not 
be more contrary to the notion of adhering to convention. We have tried 
to use the Constitution of this country as a very limited and narrow 
document for 200 years but now we are going to do accounting through 
the Constitution. I suggest that that is a failure to adhere to 
convention.
  The Senator from Utah also tried to describe this amendment as sort 
of a technicality, saying that whether it is 2002 or 2006, that is not 
the issue. We just need it in the Constitution.
  Mr. President, it flies right in the face of his excellent 
description of that stack of documents in front of him. The Senator 
from Utah is one of the taller Members of this body, if I may say so. I 
do not think that is in dispute. I agree that if we keep going down 
this road that we will be unable to see the distinguished 
chairman, perhaps even by the year 2002, because of these books that 
are piling up. But if we wait not until the year 2002 but to the year 
2006, I think the former Senator from New Jersey may not be visible and 
we may have to get Senators who would be able to start in a starting 
line up in the NBA just to be able to be seen over these documents. The 
fact is, there is a difference between the year 2006 and the year 2002.

  All my amendment does, Mr. President, is guarantee that however this 
turns out, through a balanced budget amendment or through a bipartisan 
agreement to balance the budget by the year 2002, that is the date. 
Either way, it cannot be after that time. That is the effect of my 
amendment, Mr. President.
  I yield the floor.
  Mr. HATCH. Let me just say for the sake of this debate, if the 
Senator were willing to vote for the balanced budget amendment, I would 
accept his amendment because I think three-quarters of the States would 
ratify this amendment within the 3-year time period. I know he will not 
vote for this balanced budget amendment, and, frankly, it is better 
from a constitutional standpoint to give the States enough time to 
function. Some States do not even meet this year in their legislatures; 
others meet, but may not have time to consider this. It does take time 
to ratify a constitutional amendment, depending upon a lot of timing 
factors.
  So we prefer to have the 7-year period. But I will make that offer if 
the Senator will vote for the balanced budget amendment. I would 
encourage all my colleagues to vote for his amendment, but until he 
does, I think we have to reject this amendment unless he is willing to 
do so.
  The PRESIDING OFFICER. The Senator from Wisconsin has 36 seconds.
  Mr. FEINGOLD. Let me say I, of course, am very candid on this point, 
that I do not support the balanced budget amendment for a variety of 
reasons, but I do recognize that there are some very serious 
consequences for this country if we do pass it.
  My amendments today are relevant to the situation we would face if it 
does go through. I am sincere in my belief that if it does pass, the 
process is going to be slowed down here if it is not ratified quickly 
by the States. That is why I offer this amendment, because sometimes 
things happen that you are not happy about in the Congress and the 
President signs it, but you would like the negative effects to be 
limited.
  That is the spirit in which the amendment is offered.
  Mr. HATCH. Mr. President, I know my colleague is sincere. I have 
nothing but respect for him as he serves on the committee. I have a lot 
of regard for the distinguished Senator, and he knows it, and I know 
it.
  However long it takes, we need a balanced budget amendment, and I 
think this is drafted correctly. It has Democrat prints all over it and 
Republican prints all over it. It is the bipartisan amendment that has 
always been in play, and I think should always be in play.
  Frankly, I am hopeful we can pass it by next Tuesday. But however 
long it takes, we need it. If we do not do it, we will continue the 
status quo, and that is a stack of unbalanced budgets, which my friend 
and colleague admits will continue if we do not do something about it.
  Mr. President, I yield back the balance of time, and I understand 
these votes will be stacked.
  The PRESIDING OFFICER. The Senator is correct.
  Mr. HATCH. I ask unanimous consent to move to table, with the 
understanding it will be able to come up at a later time.
  The PRESIDING OFFICER. The Senator has that right. The motion to 
table has been made.
  Mr. HATCH. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.


                            Amendment No. 14

  The PRESIDING OFFICER. Under the previous order, the question recurs

[[Page S1704]]

on amendment No. 14, offered by the Senator from Wisconsin [Mr. 
Feingold]. Debate on the amendment is limited to 40 minutes, equally 
divided.
  The Chair recognizes the Senator from Wisconsin.
  Mr. FEINGOLD. Thank you, Mr. President. I thank the distinguished 
Senator from Utah, the chairman of the Judiciary Committee, for his 
kind remarks.
  I now would like to speak about an amendment that is also in the 
spirit of trying to make sure this balanced budget amendment works 
properly, in the event it goes through the Congress and is ratified by 
the States.
  Mr. President, regardless of our views on the balanced budget 
amendment, many of us would like us not only to balance the budget, but 
many of us would like us to establish a statutory balance that can act 
as a fiscal cushion against unexpected emergencies. In other words, we 
think we should never project a deficit, but that on occasion we may 
want to project something of a surplus to make sure there is money 
there in case there is an emergency or some other urgent spending 
priority that has to be dealt with, but only on a surplus basis.
  Now, Mr. President, this is not some idea I cooked up. This is what 
we do in Wisconsin. It is done in some form in most States. I think it 
would make good sense at the Federal level.
  Unfortunately, Mr. President, in its current form, the proposed 
balanced budget amendment discourages this fiscally responsible tool. 
In effect, it does not really allow a surplus. It certainly does not 
allow a surplus to be used if one arises, except by a three-fifths vote 
in each house, which is a very high standard. Because outlays cannot 
exceed receipts in any year under the balanced budget amendment, any 
surplus built up to address an unexpected need would be subject to the 
three-fifths threshold and all the potential mischief that a 
supermajority requirement employs.
  Mr. President, many of us in this body have concerns with the way we 
currently address emergencies and other unexpected needs as they arise. 
I have seen a lot of that just in the 4 years I have been here dealing 
with various disaster and emergency legislation. Under our present 
budget structure, we are forced to choose between adding to the deficit 
and scrambling to find spending cuts or tax increases to offset the 
unexpected need.
  I think, and we have certainly seen this in Wisconsin, a far more 
fiscally responsible approach would be to appropriate a dedicated 
emergency fund or require a positive ending balance on which we could 
draw as the need arises. By budgeting for an emergency in advance, this 
approach would avoid deficit funding, but it would also decouple the 
potentially desperate need for emergency assistance from the hurried 
approach of emergency offsets. So a surplus fund or statutory ending 
balance would also address some of the concerns that have been raised 
by Secretary Rubin and others who have spoken about the important role 
that automatic economic stabilizers play in the health of the economy.
  Our committee chairman has cited Fred Bergsten, a noted economist, 
during the committee's markup. This is what our distinguished chairman 
said in citing Mr. Bergsten: ``* * * a better way to go is to shoot for 
a yearly surplus and let that take care of truly automatic 
fluctuations, if there are any.''
  Mr. President, I agree with our chairman. I think balancing the 
budget and building up a reasonable surplus during good times to help 
cushion economic downturns is a better way to go. However, as I just 
noted, Mr. President, under the present draft, we could not establish 
and use such a surplus fund without violating the constitutional 
amendment mandate except through achieving a three-fifths majority in 
each house.
  Mr. President, you know that threshold presents serious problems, as 
many of our colleagues have noted during the course of this debate. The 
supermajority requirement empowers a minority to hold up a must-pass 
measure unless their fiscal or policy demands have been met. As some 
have noted, this perhaps mild form of extortion might even take the 
form of insisting on additional deficit spending, precisely the 
opposite direction intended by the supporters of the constitutional 
amendment. Remember, this balanced budget amendment does not guarantee 
that we have deficit spending, it just requires a supermajority to do 
so.
  Mr. President, if allowing a surplus fund might be fiscally prudent 
to handle the unexpected natural disaster or military conflict, I think 
this surplus opportunity becomes absolutely essential if we hope to 
fund the bulges in Social Security benefits that will occur when the 
baby boomers retire.
  In just a few years, we will begin to have to pay back the funds we 
have borrowed from the Social Security trust fund. Before that happens, 
Mr. President, we have to somehow rid ourselves of the addiction to 
those trust fund surpluses. That is how we have been masking how great 
our deficit is in the past, and we have to begin to balance the budget 
without those surpluses. That means, Mr. President, that the unified 
budget will have to be in surplus, but even then, if we build up a 
genuine surplus in unified budget to pay future retirees, the 
restrictions of the proposed balanced budget amendment will prevent us 
from using it unless we can muster a three-fifths vote of support in 
both bodies.
  Mr. President, right now, the Social Security trust fund is receiving 
more than it is paying out. Those surpluses will continue to build 
until the baby boomers retire, and we need to tap into those savings at 
that point to offset the bulge in Social Security beneficiaries.
  Mr. President, many have said this, but we have abused the Social 
Security surpluses by using them to mask part of our budget deficit. I 
don't single out one party or one branch of Government, because it has 
sort of been standard operating procedure for nearly 30 years. Mr. 
President, many of us want to stop that abuse and to work to get the 
budget off the Social Security surplus addiction so the funds are there 
for retirees as promised.
  Mr. President, again, the current balanced budget amendment draft 
will not let us do that. When the baby boomer retirees begin to collect 
Social Security and the surpluses turn negative, the balanced budget 
amendment does not permit us to draw upon any savings we can build up 
between now and then.
  Now, one approach is to explicitly exempt Social Security from the 
balanced budget amendment by putting the Social Security trust fund out 
of reach. We could then be sure that they will be available to draw 
down when needed.
  Some who oppose this approach argue that we can do so by statute. 
They note that nothing in the current draft would prevent us from 
taking Social Security off budget by law, as we do now, and achieve 
genuine balance outside of Social Security. Unfortunately, though, Mr. 
President, even if the rest of the budget is in true balance, the 
current version of the amendment still prevents the use of the trust 
fund savings to pay Social Security benefits, unless the rest of the 
budget is cut or taxes are increased.
  Mr. President, the current balanced budget draft requires cash flow 
to be balanced. It expressly prohibits the kind of buildup in 
anticipation of need that is the underpinning of the Social Security 
system itself. To put it in more simple terms, it is exactly like 
telling parents when the time comes to pay the cost of their child's 
education, they will not be able to use any of the savings they have 
built up, but will have to pay for the cost of their child's college 
education out of whatever their income is at that time--not one dime 
more. I can tell you, as a parent of four teenagers, that would be a 
very troubling prospect indeed.
  Mr. President, my amendment would allow us to use the savings we must 
build up in advance of the coming retirement bulge. Let me be clear 
about this. Although this is the way it is done in my home State of 
Wisconsin--by statute--my amendment does not require us to have a 
surplus. My amendment does not require us to fulfill our commitment to 
future retirees. Yes, Congress could still duck that commitment. But at 
least, Mr. President, if my amendment is adopted, Congress would be 
able to do the right thing by Social Security beneficiaries. Without 
it--if the Constitution is amended as it is currently drafted--Congress 
will have to find a dollar in

[[Page S1705]]

budget cuts or tax increases for every dollar Social Security outlays 
exceed receipts.
  Mr. President, despite all the rhetoric about how Social Security 
will do quite well in what I like to call the ``brave new world of the 
balanced budget amendment,'' who can doubt that Social Security 
benefits will quickly go on the chopping block, if we ever get to that 
eventuality?
  Mr. President, this is a fundamental inequity that is built into the 
proposed constitutional amendment. Programs like Social Security, which 
require a buildup of savings to work, have to muster a three-fifths 
majority from both bodies. But the defense budget, special interest 
spending done through the Tax Code, and corporate welfare, all get a 
free pass. They don't have to go through this.
  So, Mr. President, to conclude, even if my amendment is adopted, it 
will be difficult for Social Security to compete with these other 
powerful interests. But at least by allowing for a surplus, my 
amendment gives it a fighting chance.

  I reserve the balance of my time.
  Mr. KYL addressed the Chair.
  The PRESIDING OFFICER (Mr. Ashcroft). The Senator from Arizona [Mr. 
Kyl] is recognized.
  Mr. KYL. Mr. President, Senator Hatch was called away for a moment. I 
would like to present some of the remarks he would make in opposition 
to the amendment.
  Of course, nothing in Senate Joint Resolution 1 prevents us from 
running surpluses or saving those surpluses in a rainy day fund. But 
Senate Joint Resolution 1 does put a lock on savings to ensure that 
they are not spent frivolously.
  The proposal before us is based upon the argument that, under the 
balanced budget amendment, previously accumulated surpluses cannot be 
drawn upon in future years without a three-fifths vote. This is 
because, the argument goes, such funds would be spent as current 
outlays within the meaning of section 7, but would not count as current 
receipts and would therefore cause outlays to exceed receipts and 
trigger the three-fifths vote in section 1. Thus, this proposal seeks 
to prevent the use of previously accumulated surplus funds by a simple 
majority vote.
  While most of us are concerned with how to stop running deficits, 
this proposal exhibits concern about accumulated surpluses. Protecting 
accumulated surpluses with a three-fifths vote is not necessarily a 
flaw in the amendment, however. On the contrary, I see it as a 
strength. Requiring a supermajority to spend previously accumulated 
surpluses could help us ensure that they are not frittered away on 
enticing, but fundamentally unimportant, spending projects.
  Let us be realistic, Mr. President, we have had 28 straight years of 
deficits, and we have run deficits for 58 of the last 66 years. If we 
adopt the balanced budget amendment, we all believe that deficits will 
come to an end. I do not expect it will be easy to accumulate large 
surpluses, even under the balanced budget amendment. Proper planning 
and discipline can yield positive results. But I think it's important 
that we jealously guard the fruits of our budgetary labors and protect 
the surpluses we have managed to acquire, if any.
  This amendment seeks to make it easier to spend away any surpluses we 
manage to acquire. It seems to me that this is an ill-advised policy. 
We would be wiser to keep the surplus in the strongbox of subject it to 
a supermajority requirement to be certain that it is not whisked away 
in yet another Washington spending frenzy. Can we safely assume that 
the Congress would leave money sitting, unguarded, on the table?
  The supermajority requirement will help us ensure that when a real 
emergency arises, the surplus will be there to meet truly pressing and 
worthy needs. Both common sense and political reality dictate that 
there will be very little difficulty in getting the three-fifths 
necessary because, after all, who would vote against emergency aid when 
there would be no increase in the deficit?
  I do have a concern that allowing Congress the option of spending a 
portion of the national savings by simple legislative fiat might erode 
the effectiveness of the balanced budget amendment by relaxing the 
fiscal constraints on yearly spending. Congress might slip into a habit 
of spending accumulated surpluses with regularity and get used to 
spending beyond our annual income, just as we have gotten into the 
habit of borrowing under the current system. Then having wasted our 
savings, we would have much more work just to get back into annual 
balance habits.
  If we were fortunate enough to accumulate a sizable surplus, I expect 
we could stop patting ourselves on the back for simply not increasing 
the debt and actually start to repay some of the huge debt this country 
has run up. This is probably the best use of surpluses, particularly 
from a cash management perspective, and is what is contemplated as the 
normal use of surpluses under the balanced budget amendment.

  That is why Senate Joint Resolution 1 does not count repayment of 
debt principal as total outlays. As we pay down our debt, we will 
continue to free up capital, lower interest rates and our annual 
interest payments, and strengthen the economy, helping us avoid 
deficits and the need to draw on savings or to borrow. We would also be 
moving ourselves away from the debt ceiling and building a cushion of 
debt availability if we should have to borrow again.
  One final point, Mr. President. We have not balanced the budget in 
almost 30 years, as I have said before. It is perhaps a bit premature 
to start arguing about how we will spend surpluses. The first order of 
business is to pass the balanced budget amendment and get the deficit 
at least to zero. Then I submit that we can work on surpluses and true 
debt reduction.
  This is an interesting proposal, but it ought to be defeated.
  Mr. FEINGOLD. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 9 minutes 36 seconds.
  Mr. FEINGOLD. Thank you, Mr. President. I appreciate the comments of 
the Senator from Arizona. I enjoy serving with him on the Judiciary 
Committee. I appreciate his candor.
  Basically, those folks who advocate the constitutional amendment have 
said it all here. They have now said formally that if you want to get 
money from the Social Security trust fund surplus in the coming years, 
that in fact the only way to do it is by getting a 
supermajority, three-fifths of both the Senate and the other body.

  I hope the seniors of this country are listening and realize what we 
are talking about here. It is incredibly difficult to get three-fifths 
of either body on anything. It is hard enough to get over 50 votes on 
anything. And when you are talking about the competition with all the 
special interests that are represented in this community, even with a 
fully funded Social Security trust fund, requiring a three-fifths 
majority of both Houses to fully fund Social Security benefits from the 
trust fund has to be one of the greatest threats to Social Security 
that can be imagined.
  Let's be clear. I do not think anyone has successfully disputed the 
claim that this constitutional amendment allows the use of Social 
Security dollars to balance the budget. That has become very clear in 
this debate. What this new admission tells us is that if the Congress 
wants to do the right thing after we have a balanced budget amendment 
and wants to make sure that retirees and future retirees have the money 
saved for them over the years, they will not be able to do it through a 
majority vote. A minority in either House will be able to prevent every 
senior citizen in this country from getting the payments they deserve 
and that they paid into the system for. That is what this thing does.
  This isn't just about seniors. Yes, it is about my generation. It is 
about baby boomers. Perhaps that will be the first group that will be 
affected by this. But it is also about future generations who certainly 
hope, if they are required to pay into the Social Security system, that 
there would be a way for them to access their retirement benefits 
without having to persuade three-fifths of both Houses of Congress it 
is a good idea. You should not have to persuade three-fifths of the 
Congress that it is a good idea. That is your money. That is your 
retirement benefit.
  So, basically, our argument has been conceded here. I thank the 
Senator for his candor.

[[Page S1706]]

  Let me note that in States where they have a surplus fund, in most of 
those States they do not require a supermajority in order to access the 
surplus money. According to the National Conference of State 
Legislators, as of 1995, 45 States and Puerto Rico had created such 
funds but only about a quarter of them required a supermajority to use 
the fund.
  Further, let's remember that States are not faced with having to fund 
a program like Social Security that absolutely requires a substantial 
buildup of savings in advance. As drafted, the balanced budget 
amendment puts programs like Social Security at a tremendous 
disadvantage by requiring a three-fifths vote to use net savings. So 
why don't we learn from the experience of the States?
  The Presiding Officer was a distinguished Governor, and he and the 
other former Governors in this body know that it is very important 
sometimes to have a projected surplus for a rainy day. Apparently, the 
vast majority of the States have determined in their experience--which 
we don't have here in Washington--that you should not require a 
supermajority if you need to get at that money either for purposes of 
emergency, or here, in this case, for the very important purpose of 
paying retirement benefits to people who are promised those benefits 
for their retirement.
  Mr. President, I reserve the remainder of my time.
  Mr. KYL addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arizona.
  Mr. KYL. Mr. President, I appreciate the comments of the Senator from 
Wisconsin and will respond briefly to them.
  First of all, I think it is important to note that the Feingold 
amendment, as I understand it, does not just apply to any potential 
surplus in the Social Security trust fund but would apply to any 
surplus. I think that is a correct interpretation.
  I go back to the comments I made a moment ago to reiterate that it 
ought to be more difficult to spend the surplus, first of all, because 
we could easily get into the habit of saying, ``Well, we have a few 
dollars here in surplus. Let's quickly go out and spend it,'' and, 
second, because we are not going to eliminate the debt or even begin to 
repay the debt if we do not apply surpluses to the debt.

  But as to the argument that this would apply as well to the Social 
Security trust fund, I think several comments are in order to the 
extent, if that is true, that it is true. First of all, of course, one 
could always run a surplus in the rest of the budget as a unified 
budget to cover the cost that the Senator from Wisconsin is talking 
about. In any event, this three-fifths vote requirement, so-called 
supermajority, is necessary to protect the Social Security trust fund 
from being raided to ensure that it is used for its true purposes. We 
are running a surplus today. We ought not to make it easier for 
Congress to continue to raid that surplus and spend it on other things.
  If there is any criticism that I get--and I get plenty when I visit 
with seniors out in Arizona--it is the criticism of the Congress and 
the President raiding the Social Security trust fund. They ask, ``Why 
are you spending that on other Government things when it is intended to 
be spent on Social Security?'' And, of course, they are absolutely 
right. We should not be. We ought to make that as hard to do as 
possible. That is one of the reasons that we are supporting the 
balanced budget amendment because we recognize that if we do not 
balance the budget, if we do not begin to set priorities in other 
spending programs, the temptation is always there to continue to raid 
the Social Security trust fund.
  So, ironically, the whole purpose here, or at least a significant 
part of the purpose, of the balanced budget amendment is to protect the 
Social Security trust fund. We ought to make it harder to raid that 
trust fund.
  I suppose one could postulate the situation in which we are at a 
point when we have to draw upon the IOU's that are in the Social 
Security trust fund, even for Social Security purposes. And I do not 
think that there is anybody in the House or the Senate who would argue 
that, in that circumstance, it would be very difficult to get the 
three-fifths vote. I mean no politician, nobody here in Washington, DC, 
is going to say, ``No, we don't think we will fund Social Security this 
year.'' That is the one obligation that all of us take as kind of our 
first rule. And, obviously, no one would be able to face the folks back 
home if we didn't do that, and we should not. We have that obligation. 
We owe that obligation, and it would be done.
  We have provided a supermajority in here for other kinds of emergency 
situations, and we have said those are clearly situations in which, if 
it is necessary, you could get 60 votes in the Senate, and three-fifths 
in the House, as well.
  I daresay, if we ever got to that eventuality, even if this applied 
to that situation, it would not be difficult to get the 60 votes 
necessary.
  So it seems to me that, as I said before, we are really worried about 
something here that isn't going to happen. I would much rather focus 
our attention on getting the budget in balance than to worry about what 
is going to happen after we do that and we start to run surpluses. I 
think that will be a wonderful day, if we ever get there. I do not 
think we will have trouble figuring out how to spend the extra money, 
and I would rather make it difficult to spend it so we can make sure 
that at least part of that begins to go to pay our national debt.
  I would be happy to stop at this point, if the Senator from Wisconsin 
has any other thoughts to engage in this debate further.
  Mr. FEINGOLD. Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator from Wisconsin has 4 minutes and 
15 seconds.
  Mr. FEINGOLD. Thank you, Mr. President.
  Let me respond to the remarks of the Senator from Arizona. He 
referred to the belief that we should worry about spending, what he has 
referred to as the ``extra money'' when we get to the point of the 
surplus. I guess the main thrust of my remarks is that I wasn't talking 
really about extra money. I am sure that could happen. I will address 
an example of that in a moment.
  What we are talking about here is a formula against money which is 
otherwise known as the Social Security trust fund. Are we going to 
start thinking about whether we are going to honor the obligations to 
our retirees only at the point that we have a surplus? That is what it 
sounds like. We get to that point, and say, ``Oh, there is a bunch of 
money in here for Social Security. Let's see if we can get 60 votes of 
the Senate to hand that money out.''
  That strikes me as very different than a discussion of what we are 
going to do about extra money. What we are talking about here is 
whether we are going to basically pull the rug out from under people 
who paid into a system for the express purpose of providing for their 
retirement. There are really very few things that are more important to 
working people in this country.
  I do not think there has been a real response to my concern that the 
bar is being set higher for Social Security under this amendment than 
it is for other programs. That is because Social Security by its nature 
requires the buildup of a surplus in order to work. Such a program, in 
order to access those surplus funds, has to get three-fifths of both 
Houses, but other programs, the Defense Department, corporate welfare, 
and wasteful spending programs, need only obtain a simple majority as 
long as it is within the balance of the balanced budget amendment.
  This is very serious business. Let us finally just take the example 
of surplus funds that might be used for a different purpose. Let us say 
there is a surplus that builds up--and I think the folks on the other 
side of the aisle might be attracted to this--and Congress decides they 
expected and they would like to give the people in the country a tax 
cut. Maybe they decide it is not the Government's money; it is the 
people's money, and there is enough money in surplus to give everybody 
$500 of tax relief.
  Under this amendment as it is now drafted, that built up surplus 
could not be used to cut taxes unless you had 60 votes. And as strong 
as the Republican majority is in this body, you do not have 60 votes. 
You would need 60 votes to give the American people the benefits of 
that surplus in the form of a tax

[[Page S1707]]

cut. That does not strike me as similar to the arguments I have heard 
about the urgency of tax cuts in the past, and I do believe that would 
be the effect of the proposed balanced budget amendment if we do not 
adopt the amendment I have suggested to allow a surplus to be used for 
other purposes as long as a simple majority is achieved in both Houses.
  Mr. President, I reserve the remainder of my time.
  Mr. KYL. Mr. President, might I inquire of the Senator from 
Wisconsin, I am a little bit confused about the last point he made. 
Perhaps he could clarify this. Was the Senator from Wisconsin 
suggesting that if we might want to cut taxes because we have a surplus 
of funds unassociated with Social Security, it would require a 60-vote 
majority? Or was the Senator from Wisconsin assuming that the surplus 
that he described was the IOU's in the Social Security trust fund?
  Mr. FEINGOLD. This would relate, Mr. President, to the surplus that 
has been built up over several years.
  Mr. KYL. Would it be the surplus in the Social Security trust fund or 
just surpluses that would be accumulated over the years?
  Mr. FEINGOLD. Surpluses we have accumulated.
  Mr. KYL. In that event, Mr. President, I do not understand the 
argument of the Senator from Wisconsin, because we are not going to 
need 60 votes simply to reduce taxes. If we have a surplus, then the 
revenues that would be lost theoretically from a reduction in taxes 
would have to be offset. But there is no requirement in that case that 
there be a supermajority to cut taxes. The revenue that would result 
that would show up in subsequent years would be required to be taken 
into account in order to determine whether we had a balanced budget and 
whether we needed to reduce expenditures in subsequent years. But at 
the time that we would make the decision to cut taxes, there would not 
be a requirement for a 60-vote majority.
  To the other point that the Senator made, asking the question with 
regard to the Social Security trust fund, that I was somehow suggesting 
that we only honor our obligation when we have a surplus, I do not 
understand that either because, of course, that was not my point. That 
is not the fact.
  We have an obligation to our Social Security recipients, 
our retirees, that has to be satisfied regardless of whether the Social 
Security trust fund is in surplus or in deficit. That is a solemn 
commitment that we all understand and we are prepared to meet.

  Over the last several years, we have been building up a surplus 
theoretically, so we are in the situation now where there is a surplus. 
We are meeting the obligations. That is not at issue. We have to 
satisfy our obligations to our seniors. In the event that we begin to 
run a deficit, that obligation would have to be satisfied, as I 
described before. Nobody in this body or the other body is going to 
contend that somehow the balanced budget amendment is going to preclude 
us from doing that. It is an expenditure that is probably the first 
expenditure we will want to make around here. My guess is that there 
might be a bridge here or special subsidy there that might fall by the 
wayside, but Social Security payments are not going to fall by the 
wayside.
  In fact, again, unless we balance the budget, Social Security, along 
with everything else, is in jeopardy. Most of us, I think, would 
undoubtedly agree with the Senator from Wisconsin that Social Security 
is one of the very first obligations we are going to have to meet, and, 
therefore, it is probably not in jeopardy. I think we would all contend 
under no circumstances would we ever allow it to be in jeopardy. It is 
going to be other programs.
  But I would rather be in a position to say we can fund all the things 
that we would like to fund that are necessary to fund. If we do not get 
our budget in balance, we are not going to have that ability. There 
will come a time when there is not enough money to spend on key things 
like law enforcement and national defense and critical programs because 
our debt will have gotten so high that the interest payments on the 
debt are eating up the largest part of our budget.
  We have to get to the point where we are not running deficits 
anymore, our annual deficits are zero, but we can begin to pay down the 
national debt. That is why we need a balanced budget amendment to the 
Constitution.
  I think perhaps the best illustration of this is to look at the 
budget that the President presented to us just a couple of weeks ago. 
It is an amazing document because while the President purports to 
demonstrate that we can reach a balanced budget in 5 years, and 
therefore we do not need to pass the balanced budget amendment, his 
budget demonstrates precisely the opposite. It proves that you cannot 
get here from there unless you are required to do so by the 
Constitution. How so? Apart from the fact that the Congressional Budget 
Office says it is not in balance by somewhere between $50 and $70 
billion--leave that aside--the President proposes that most of the 
savings that would be required to get into balance are in the last 2 
years of the 5-year period--incidentally, after he is no longer 
President. Seventy-five percent of the savings would have to be made in 
the last 2 years, fully 47 percent in the last year--almost half of all 
the savings over a 5-year period.
  Now, what does that mean? Our budget deficit last year was $107.9 
billion. We are going to go up to something like, I don't know, $126 
billion this next year and $127 billion the year after that. We are 
supposed to be getting to zero.
  I had an old rancher friend tell me once if you are in a hole and you 
want to get out, the first thing you do is stop digging. This President 
would not stop digging until the very end and then magically, somehow 
or other, after he is long gone, we are going to ratchet up the courage 
to make all kinds of savings that we cannot decide to make in this year 
or the next year or the year after that. It is a little bit like the 
fellow who swears he is going to go on a diet; he has to lose 30 
pounds. So he says, all right, I am going to do it by July 4. I am 
going to lose 30 pounds. First, however, I am going to eat like heck 
and gain another 20 pounds. And then, by golly, on July 1 I am going to 
start losing and by July 4 it will all be gone.
  It is not going to happen. That is why you need the discipline of the 
balanced budget amendment to force us to set the priorities so that we 
can achieve a zero deficit within 5 years, stop the accumulation of 
additional debt, which requires us to pay more interest on the debt, 
which eats up moneys that could be spent on education, on the 
environment, on defense, on law enforcement, on any number of things--
on Social Security. As I said, I mean all of us around here will agree 
Social Security comes first. So we really do not have to worry about 
Social Security. But we ought to be worrying about all of these other 
things because many of them are important just like Social Security is. 
And there is not going to be enough money for them if we do not get 
this budget in balance. That will not happen, as the President's own 
budget illustrates very clearly, until we have the discipline of a 
mandatory requirement under the balanced budget amendment to the 
Constitution.
  So, again, I think this is where we really ought to be focusing right 
now. We can worry about how we are going to spend the surpluses if and 
when we ever get there. For now I would just be pleased to get to the 
point of zero. That is what is going to be required if we are going to 
be in balance, and that means we have to pass the balanced budget 
amendment.
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER (Mr. Enzi). The Chair recognizes the Senator 
from Wisconsin.
  Mr. FEINGOLD. How much time do I have remaining?
  The PRESIDING OFFICER. One minute two seconds.
  Mr. FEINGOLD. I thank the Chair.
  I think the discussion of both the issue of tax cuts and the Social 
Security benefits points up how serious it is to amend the Constitution 
in order to balance the budget. In effect, we are not going to be able 
to use a surplus that has been built up to give a tax cut. If we do not 
worry about it now and we only worry about it when there is a surplus, 
the problem is it is going to be in the Constitution. We are not going 
to be able to just fix it. We had one experience like that in this 
country in prohibition, and it took quite an effort to undo it.

[[Page S1708]]

  So, again, there appears to be a major uncertainty with regard to 
this. The important question is do we really want to be faced in the 
future years with a system set forth in the Constitution that gives us 
no flexibility, that requires a three-fifths majority of both Houses in 
order to simply access and use the Social Security trust funds?
  The other side is not denying that is what is happening. In fact, 
they say that is what should have to happen--and that is what our 
retirees of the future may face.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Arizona.
  Mr. KYL. Mr. President, I will take a couple of the minutes we have 
remaining here. Let me reiterate. We are talking about two things here. 
One, we are talking about accumulated surpluses that don't have 
anything to do with Social Security. The point I made on behalf of 
Chairman Hatch is, if we ever get to that wonderful point, I don't 
think we will have any trouble figuring out how to spend that money. In 
fact, a lot of us would like to make it a little harder to spend so we 
can begin applying it to deficit reduction. So I am not concerned if it 
requires us to get 60 votes here to do that.
  Folks watching, of course, may appreciate that it takes 60 votes to 
do most things here in the U.S. Senate because a 40-vote minority can 
always filibuster. In order to break that filibuster and actually bring 
something to a vote here you have to have 60 votes. This is about the 
only body that I know of where a Member cannot call the question and 
automatically get a vote. We cannot get a vote in this body unless 
there is unanimous consent or 60 Members agree. So there is a 60-vote 
requirement to do a lot of things around here. Again, I am not too 
worried about getting a 60-vote requirement to spend surplus money in 
the U.S. Treasury. I suspect that will be a pretty easy thing to do.
  As to the matter of Social Security, again I think all of us are 
united in our concern. I commend the Senator from Wisconsin for his 
concern about Social Security recipients, and I know Chairman Hatch and 
all the Members on this side have the same concern. Again, I am not at 
all concerned that Members here would somehow slight Social Security 
recipients. They are going to be the first obligation that we satisfy.
  But, as I said, there is not going to be enough money for any of 
these things if we don't get the budget in balance.
  Mr. President, at this point I yield any additional time I have.
  I move to table the Feingold amendment. Mr. President, I ask for the 
yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.


                            Amendment No. 10

  The PRESIDING OFFICER. Under the previous order, the question recurs 
on amendment No. 10, offered by the Senator from Massachusetts [Mr. 
Kennedy].
  Debate on the amendment is limited to 2 hours equally divided.
  The Chair recognizes the Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I hope, depending upon the interest of 
our colleagues, we might be able to address this issue in a more 
limited period of time and get back on schedule. But at this time, we 
will move to the time agreement and then try to respond to the leader's 
request that we move as expeditiously as we can to the conclusion of 
some of these amendments.
  Mr. President, I offer this amendment to guarantee exclusive 
congressional enforcement of the balanced budget constitutional 
amendment and to avoid the serious problem of judicial enforcement 
under the pending version of the amendment. The balanced budget 
amendment would overturn the basic principle of separation of powers by 
giving the courts and the President enforcement authority. We must take 
clear steps to avoid such a situation.
  The proponents of this amendment apparently believe the old adage 
that silence is golden. They say that because the amendment remains 
silent with regard to judicial review and Presidential impoundment 
power, the Congress has not sanctioned either form of enforcement. 
Unfortunately, numerous constitutional scholars disagree. During the 
last debate on this issue, 17 of our country's most well-respected 
scholars urged Congress to reject the proposed balanced budget 
amendment. Conservative and liberal constitutional experts shared the 
conviction that the proposed balanced budget amendment was a mistake, 
and they specifically stated that the amendment would inappropriately 
involve the judiciary in intractable questions of fiscal and budget 
policy.
  The proposal before us today raises those same concerns. The 
amendment I offer today addresses this problem by granting Congress 
exclusive authority to enforce the balanced budget constitutional 
amendment unless Congress authorizes otherwise in the implementing 
legislation. The courts could not become involved in the many complex 
budgetary questions that would be raised by taxpayers, Members of 
Congress, or other citizens without specific authorization from 
Congress.
  If the Senate does not adopt this amendment, Congress may not have 
another opportunity to narrow the Court's enforcement authority. I know 
that some balanced budget amendment proponents argue that the Congress 
can step in at a later date to address this problem. But constitutional 
scholars disagree. Cass Sunstein, a well respected constitutional 
scholar at the University of Chicago, said:

       It is by no means clear that Congress can forbid judicial 
     involvement by statute. Courts are quite reluctant to allow 
     Congress to preclude judicial review of constitutional 
     claims.

  This amendment also protects against Presidential impoundment power, 
which was soundly rejected in the 1970's. At that time President Nixon 
unilaterally impounded funds for programs he did not like.
  In 1974, we made those actions illegal, but unless we act again, the 
balanced budget constitutional amendment restores that authority to the 
President. The problem solved by this amendment is real.
  Proponents of the balanced budget constitutional amendment argue that 
there are few, if any, risks that the courts will micromanage the 
Federal budget. They say that article III of the Constitution is a bar 
to judicial intrusion. But if that is the case, why did 92 Members of 
the Senate support an amendment offered last year by Senator Nunn and 
Senator Conrad which limited judicial action unless specifically 
authorized by legislation?
  We all know that the risk of judicial intervention is very high, and 
article III does not afford protection. As Stuart Gerson, a former 
Justice Department official who testified before the Judiciary 
Committee in support of the balanced budget amendment, said:

       The ``case or controversy'' requirement of article III is 
     the greatest bulwark against undue judicial intervention in 
     budgetary matters, but it is not an impregnable barrier.

  The reality is that the balanced budget amendment is likely to 
produce numerous lawsuits in Federal and State courts.
  Neither article III doctrines, which are not applicable in State 
courts, nor practices of judicial deference will operate as automatic 
protections against the flood of litigation that could be brought by 
taxpayers and others. Such cases will force courts to act to analyze 
complicated economic questions and prescribe remedies.
  For example, can a State or Federal court enjoin Government spending 
if three-fifths of both Houses of Congress are unable to raise the debt 
limit?
  Could a court levy taxes to prevent an unauthorized deficit?
  Can a Member of Congress file suit because he or she disagrees about 
what constitutes a revenue increase and then argue that such an 
increase was not adopted by a constitutional majority?
  Could a criminal defendant file suit because he or she was charged 
under a law claimed to cost more to enforce than the Government can 
finance through expected proceeds?
  These questions and others regarding funding for Social Security, 
Medicare, education and the environment would rest in the hands of 
unelected judges and judicial intervention can easily disrupt Federal 
services that all Americans depend on. Citizens could find ``closed'' 
signs on Federal agencies, parks and museums because employees have 
been furloughed or hours opened

[[Page S1709]]

to the public have been cut back. Our Republican friends in Congress 
closed down the Government in 1995. Surely they don't want a repetition 
of that experience at the hands of judges.
  Supporters of this amendment may believe these risks are unlikely, 
but we all know that deficits and lawsuits are not rare, and we have an 
obligation to tell the American people what will happen if the balanced 
budget constitutional amendment is not obeyed.
  The amendment also grants a great deal of power to the President. 
What is the President required to do if it becomes clear that outlays 
will exceed receipts and Congress has not authorized the deficit?
  Secretary Rubin, former Reagan Solicitor General Charles Fried, and 
former Attorney General Nick Katzenbach agree that the President would 
have the obligation to impound funds. Testifying before the Senate 
Judiciary Committee in 1995, Solicitor General Walter Dellinger said 
that if the command for a balanced budget were about to be violated, he 
would advise the President that he not only had the right, but also the 
constitutional obligation, to step in and prevent the violation by 
impounding money before the budget became imbalanced.
  What does that mean to American families? It means that across-the-
board cuts or specific cuts will reduce or eliminate Federal programs 
and that projects in particular States will be subject to cuts. This 
authority makes the line-item veto look mild by comparison.

  We all know that many Republicans want to slash Federal funds for 
education or even eliminate the Department of Education entirely. If 
the balanced budget constitutional amendment is enacted, there is 
nothing to prevent a President from using the excuse to balance the 
budget to unilaterally deny funds for education or even close the 
Department.
  The balanced budget constitutional amendment unnecessarily places a 
huge question mark in the Constitution. The deficit is going down, the 
economy is improving, President Clinton has put us on the road to a 
balanced budget by the year 2002. We don't need these serious 
enforcement problems under the balanced budget amendment, and I urge my 
colleagues to avoid them by supporting this amendment.
  Mr. President, as I mentioned just a moment ago, the last time we 
debated this amendment it was the judgment of this body to accept the 
Nunn-Conrad amendment, which would have provided a limitation on 
Federal court enforcement. Similarly, the Congress before that accepted 
a Danforth amendment that was related to the authority of the 
judiciary. On both of those occasions, it was the judgment of the U.S. 
Senate that this was a real issue, with the real potential of resulting 
in the kinds of situations that I have outlined briefly this afternoon.
  This body either intends that we permit the courts to make judgments 
about different programs, that we permit unelected judges to make 
judgments about matters dealing with the budget and dealing with the 
expenditures of resources--judgments the Constitution authorizes 
Congress to make--or it doesn't. Courts are there to interpret the law; 
Congress to make budget and resource allocation decisions.
  With this balanced budget constitutional amendment, we are providing 
an open door for courts not just to interpret the law, but use their 
power to preempt the power of the Congress of the United States in 
allocating resources.
  We are also giving that additional power to the executive branch in 
terms of impoundment.
  If it is the decision of the majority that that is not the case, then 
this amendment should be acceptable. But I ask my colleagues to review 
with me the statements of a number of those who have supported the 
balanced budget amendment. Many of those proponents specifically say 
they believe the courts will have enforcement authority, and it is one 
of their reasons for supporting the balanced budget amendment. We can 
go back and review the report of the Judiciary Committee, which gets 
into some considerable detail on that.
  If we are seriously interested in protecting Congress' constitutional 
duty to make judgments regarding the budget, then we ought to support 
this amendment and make it very, very clear.
  Finally, for those who have said, ``We can address this issue at a 
later time with a statute,'' we cannot rely on that because such a 
statute may very well be unconstitutional.
  So, if we are serious about ultimately preserving Congress' authority 
to make judgments regarding resource allocation, we ought to accept 
this amendment.
  If there is another intention, then it will be rejected. But the 
American people ought to understand the vast enhancement of authority 
and responsibility that we are giving to the President of the United 
States and to the courts of this country. They ought to understand that 
the President and unelected judges will be making judgments about the 
budget and taxes, not Congress.
  That, I think, is an issue that should not be left to general 
statements or comments on the floor of the U.S. Senate. In the past, 
this body has been willing to define those powers, and we should not 
abdicate that responsibility today. I urge my colleagues to accept this 
amendment.
  Mr. President, I reserve the balance of my time.
  Mr. KYL addressed the Chair.
  The PRESIDING OFFICER. The Chair recognizes the Senator from Arizona.
  Mr. KYL. Mr. President, I would like to just raise one of the 
questions that rises under the Kennedy amendment, to ask the Senator 
from Massachusetts to respond to what I think is a real dilemma that is 
created. I presume it is an unintentional consequence, but it is the 
kind of thing that we have to be very careful of because, obviously, we 
are amending the Constitution here. We need to be very, very careful we 
do not do something wrong or something that would have a consequence 
that would be undesirable.
  The Senator from Massachusetts referred to the Nunn amendment from 
last year, which most Members of the Senate supported, and essentially 
compared his amendment to the Nunn amendment. There are a couple of 
subtle differences which makes a big difference between the Senator's 
amendment and the Nunn amendment.
  The Nunn amendment from last year provided that absent specific 
legislative authority, judicial review by the courts would not be 
possible, that is to say, ``The courts would not have jurisdiction for 
claims arising under the balanced budget amendment.'' And that was the 
language, ``for claims arising under the balanced budget amendment.'' 
The Senator's amendment, however, provides and adds specific 
legislation and authorizes judicial review: ``Congress shall have 
exclusive authority to enforce the provisions'' under the balanced 
budget amendment so that the courts would have no enforcement role.
  Let me repeat that in a moment here. Then I will provide a 
hypothetical which illustrates why that is not a good thing.
  The courts would have no enforcement role--that includes, of course, 
the right to protect a citizen who is acting under the Constitution in 
conformance with his constitutional rights and, therefore, would be 
denied the protection of the court. Could such a situation arise? Yes.
  The Kennedy amendment allows Congress unconstitutionally to raise 
taxes by use of a voice vote and no court can hold the tax 
unconstitutional. The balanced budget amendment requires raising taxes 
by rollcall vote. That, of course, means that we all have to cast our 
vote when our name is called. It is a written record, that each one go 
on record. And that is for a reason, of course. But if the Congress 
were to raise taxes by a voice vote, in violation of that 
constitutional amendment, citizens would be in a quandary of whether or 
not they could raise the question of the unconstitutionality of the 
imposition of a tax in defense when they are prosecuted for failure to 
pay the tax.
  The Nunn amendment did not have this draconian effect. Under the Nunn 
amendment, any taxpayer could raise as a defense the argument that the 
Congress passed an unconstitutional tax. The Kennedy amendment 
forecloses that debate by precluding court action by providing that the 
exclusive

[[Page S1710]]

enforcement is by the Congress. So Senator Kennedy's amendment would 
allow the Government effectively to imprison taxpayers for refusing to 
pay an unconstitutional tax.
  Of course, that is an unintended consequence of the Kennedy 
amendment, but it is a consequence. And it is one of the reasons why we 
should not adopt the Kennedy amendment.
  One of the reasons why it is so hard to amend the Constitution is 
that we want to be absolutely certain that everything we have done will 
withstand the scrutiny of time and the Constitution. That is why we 
have a lot of hearings and debates, and perhaps one of the reasons why 
an amendment which comes to the floor for the first time for debate has 
not had the kind of hearings that would illustrate the problems with 
the amendment. That is an important part of our process here.
  The Nunn amendment went through that process. It was thoroughly 
debated and was approved. The Kennedy amendment, by making a very 
slight change in the Nunn amendment, raises a very serious 
constitutional question, and it is one of the reasons why I would not 
be able to vote for the Kennedy amendment.

  I reserve the balance of my time, Mr. President.
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. I yield such time as the Senator might use.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Thank you, Mr. President.
  I rise today in support of the amendment by my colleague, the senior 
Senator from Massachusetts. I do so because it speaks directly to one 
of the most significant, yet still unanswered questions about this 
proposed amendment to the U.S. Constitution. The issue I want to speak 
about today goes to the very heart and structure of our democratic 
system of Government, that being the role the courts will play if this 
amendment is adopted.
  As has often been the case during this debate on the issue of 
judicial enforcement, we have rarely moved the dialog beyond 
generalities and hypotheticals to resolve with any finality what role 
if any the courts will play if the balanced budget amendment becomes a 
part of our Constitution.
  Unless the proposed amendment is modified to make clear that the 
judiciary shall not assume the responsibilities of managing the 
financial obligation and priorities of this Nation, it could well turn 
over to the courts decisionmaking authority on issues such as tax rates 
and spending priorities, decisions which I think we all agree should 
remain within the purview of the Congress and the executive branch.
  As the President has said, all it takes to balance the budget is our 
votes and his signature. Yet, this amendment potentially wrests from 
Congress our ability and, in my opinion, our responsibility to make the 
tough choices and lays them at the foot of the judiciary. We should 
make it clear that unelected judges will not assume the role which is 
better left to those who are elected by the voters.
  In raising my concern with the potential role of the judiciary 
enforcing the balanced budget amendment, I want to make it clear that I 
do not do so out of disrespect or disregard for the courts and their 
very significant role in our democracy. Nor do I rise to engage in the 
kind of assault on the integrity of the judiciary that has become all 
too commonplace in recent years when a contrary decision manifests 
itself into a full-scale assault on the judicial system of our Nation.
  Mr. President, our system of justice is by no means foolproof. Nor 
does it always reach popular results. It is, however, the best system 
that has been devised throughout history. And this is due in large 
measure to its independence, to the independence of the judiciary. The 
Federal judges are granted life tenure so that they may be free to 
interpret the law without fear of retribution during the next election 
cycle. The independence of the judiciary is as important to our 
democracy as any other element, and I do not rise to question that 
independence or to castigate members of the judiciary. Rather, I rise 
because the failure to address the role of the courts in this amendment 
strikes at the very heart of our system of government. Our system of 
checks and balances between our three branches has prevented any one 
branch from becoming too powerful.
  This body, the legislative branch, the branch closest to the people, 
was given the responsibility of making the laws and controlling the 
purse. The executive is charged with the primary responsibility for 
execution of the laws and the judiciary with interpretation and 
enforcement of them.
  The premise that the courts shall interpret and enforce the laws has 
been a fundamental notion throughout our constitutional history. 
Although noted in the accompanying views of both the proponents and 
opponents in the report on this amendment, the words of Chief Justice 
John Marshall, in Marbury versus Madison, are worth reiteration here.

       It is, emphatically, the province and duty of the judicial 
     department, to say what the law is.

  Mr. President, there could be little doubt that the courts of this 
Nation play a significant and vital role in our democracy. As was 
pointed out by my colleague in the Senate Committee on the Judiciary, 
Senator Torricelli, the difference between our Constitution and those 
of other countries is not necessarily in the rights that it assures, 
but that they will be enforced by an independent judiciary. It is this 
structure which has served us so well for so long.
  However, that structure is also based upon the assumption that the 
courts will not be given the responsibility for actions which are 
intended to and have historically been reserved for elected officials 
in both the executive and legislative branches. In the context of this 
amendment, that assumption simply cannot be made.
  If the balanced budget amendment is added to this Nation's charter, 
without clarifying and limiting the role of the courts and establishing 
fiscal priorities for our Nation, it will constitute nothing less than 
a radical restructuring of our democratic system of government. In 
fact, the history of this amendment illustrates the significance of 
this issue.
  On two previous occasions, in 1994 and 1995, the text of the balanced 
budget amendment was modified in respect to the role of the courts: 
Once to limit involvement to declaratory judgments and, most recently, 
to allow implementing legislation to define the role of the courts. 
Yet, despite these facts, proponents of this amendment, the one we are 
to vote on next week, now argue that the best approach to this 
significant threshold issue is simply silence. They are not open to the 
kinds of changes that were added in the last two attempts to pass this 
amendment to our Constitution.

  The committee report states that it is the belief of the proponents 
that:

       S.J. Res. 1 strikes the right balance in terms of judicial 
     review. By remaining silent about judicial review in the 
     amendment itself, its authors have refused to establish 
     congressional sanction for the Federal courts to involve 
     themselves in fundamental macroeconomic and budgetary 
     questions, while not undermining their equally fundamental 
     obligation to ``say what the law is . . .''

  Thus, Mr. President, it seems under a veil of silence the proponents 
are simply choosing not to address this issue.
  I also note that I do not believe that the courts of this Nation have 
historically waited for congressional sanction before addressing issues 
raised by the U.S. Constitution. In short, the committee report seems 
to be saying that Congress will not explicitly give the courts their 
approval to do something which, in fact, the courts may already do on 
their own--interpret and enforce the Constitution. To me, Mr. 
President, this approach is the kind of classic sidestepping of 
critical issues which has plagued this debate and that fosters public 
cynicism for this body and elected officials in general.
  In response to this concern, one can anticipate that proponents will 
argue that we should set aside such issues and just address them within 
implementing legislation. This has been standard throughout the 
debate--much as the balanced budget amendment allows us to forestall 
the tough votes needed to balance the budget, the distant promise of 
implementing legislation allows us to forestall answering the tough 
questions about this proposed amendment to the U.S. Constitution.
  Mr. President, if we are going to ask the American people to amend 
the Constitution in a manner as unprecedented

[[Page S1711]]

as this amendment, I believe they have a right to know exactly what the 
amendment will mean to them. They should have a chance to know that 
now, not after it has already been locked into the Constitution in a 
way that we cannot easily undo.
  The hollow promise that all of these issues may be resolved at some 
unspecified point in the distant future should not be the basis on 
which we choose to amend the U.S. Constitution. It is more than a bit 
ironic that many of the same Members of this Congress who support the 
balanced budget amendment on the ground that Congress lacks the 
discipline and responsibility to balance the budget ourselves, have 
little trouble asking the American people to trust that same Congress 
to somehow properly address the myriad of uncertainties created by this 
amendment through implementing legislation.
  Mr. President, if the 105th Congress is intent on adding a balanced 
budget amendment to the U.S. Constitution, then we better do it 
correctly. We should know what it means and we should address 
situations like judicial review now, not later.
  Furthermore, by placing the intent of the Congress into the 
amendment, the potential result of the Presidential veto of 
implementing legislation is avoided. There can be little doubt that the 
debate over implementing legislation will be a very protracted and 
difficult debate involving issues of separation of powers and 
enforcement, among others. What if the President vetoes implementing 
legislation and Congress cannot muster the two-thirds necessary to 
override?
  At this point, does anyone truly believe that the courts will simply 
sit idly by and wait for Congress and the President to reach an accord 
on implementing legislation? They must, Mr. President, have a duty to 
enforce constitutional requirements and the fact that Congress and the 
Executive cannot agree on legislation does not simply and suddenly 
negate that duty. While section 6 of the balanced budget amendment 
authorizes the Congress to create implementing legislation, that 
authority is not exclusive and does not preclude court action.
  Quite simply, Mr. President, as currently configured, this amendment 
does nothing to stop the courts from fulfilling their historic role of 
interpreting and enforcing the Constitution of this Nation.
  While the committee report seeks to silently advocate the position 
that the involvement of courts should be limited, many proponents of 
the amendment have argued for significant judicial involvement. The 
U.S. Chamber of Commerce testified that there is in fact a legitimate 
and necessary role for the courts in maintaining the integrity of the 
balanced budget requirement.
  This position is not ahistorical as the courts have historically 
played a legitimate role in maintaining the protections embodied in our 
Constitution. As Alan B. Morrison of Public Citizen testified before 
the Committee on the Judiciary:

       Does anyone believe that the First, Fourth, Fifth, Tenth or 
     Fourteenth Amendments, to mention a few, would be respected 
     by our governments if the Federal Judiciary were not there to 
     back up the words with court orders?

  The notion that the role of the courts would be limited because the 
amendment will not spawn litigation is simply unfounded. Constitutional 
scholars, from Robert Bork to Kathleen Sullivan have agreed that this 
amendment will force the issue before the courts in myriad lawsuits. 
Former Judge Bork argued that the potential for thousands of cases, 
with inconsistent results, would be before the courts.
  Thus, what the American people are faced with is this: An amendment 
which is intentionally silent on the role of the courts, the looming 
specter of thousands of lawsuits, and a Judiciary which has 
historically, and in my opinion properly, played a primary role in 
resolving constitutional conflicts. Given these factors, is there any 
question that in the absence of an express limitation the courts will 
become hopelessly immersed in the budgetary decisions which should be 
left up to Congress?
  When faced with such a scenario, proponents argue that the issue of 
standing will preclude court intervention, despite the fact that doing 
so suggests that the constitutional amendment is virtually inoperative 
because no one would be able to go into court and have it enforced. 
While some argue that only a handful of parties may have standing, and 
still others argue for a more broad interpretation, no one can argue or 
be sure who, in fact, will be heard by the courts. Further, the 
arguments on both sides of the issue must be viewed in the context of 
the amendment being added to the Constitution.
  For example, while the proponents argue that the amendment does not 
allow for Presidential impoundment, it is conceivable that the 
President, backed by the new amendment, could argue he or she not only 
has the power to impound appropriated funds but also a constitutionally 
mandated obligation to do so. If such action would occur, individuals 
whose retirement checks are withheld or Federal employees whose 
salaries have been reduced by executive fiat would surely have standing 
to sue. What about a suit brought by Members of Congress challenging 
the actions of the Executive?
  Testimony received from Stuart Gerson, former Acting Attorney General 
and proponent of the notion that judicial intervention will be narrow, 
who conceded some limited form of standing may exist and that judicial 
review is not fully foreclosed. What about the potential for taxpayers 
bringing lawsuits--potentially in the State courts?
  The simple and uncontroverted fact, Mr. President, is that we do not 
know the answers to these questions.
  In response, the proponents argue that the balanced budget amendment 
strikes the proper response by remaining silent. We can continue to 
have hypothetical debates ad infinitum, and we will never resolve, 
until the courts themselves do so, what will happen when these lawsuits 
are filed. Until such time, this is all speculation, speculation which 
provides an insufficient foundation in my view on which to amend the 
Constitution of the United States.
  Failure to address the issue in the context of this amendment will 
result in three unfortunate and unnecessary results: First, unelected 
judges, potentially both State and Federal, will be inserted into 
policymaking positions for which they have no experience. Second, such 
a result will constitute a radical and unwise transformation of 
responsibility of three branches of our democratic Government. Third, 
this shift in power could do incalculable damage to our system of 
justice itself. Not only would the practical, policy driven demands 
burden the courts, but the potential backlash for unpopular judiciary 
decisions would threaten to undermine the effectiveness of the courts 
and risk the independence of that important branch.
  One can only assume that a court forced to make a tough if 
constitutionally mandated budgetary decision would no doubt feel the 
sting not only of angry public sentiment, but also from Members of 
Congress, many of whom engage in this type of rhetoric even now. Mr. 
President, we should make the tough choices, not the courts.
  Finally, Mr. President, it is no secret that I oppose this amendment 
to the Constitution for a number of reasons, many of which I have had 
the chance to speak about today, and also because it is unnecessary to 
amend the Constitution in order to balance the budget. Many have argued 
this amendment will instill within the Congress the character necessary 
to balance the budget--I disagree. Character cannot be constitutionally 
mandated. It can only be revealed through accepting responsibility and 
making the tough choices and doing it now.
  The amendment before this body potentially forestalls the enactment 
of the balanced budget well into the next century. In doing so, it 
amends our fundamental charter, and it does so in a manner that creates 
more questions than it resolves. This is not the way to balance the 
budget, nor, in my opinion, is it the way to maintain the integrity of 
our great Constitution.
  While we may disagree on the utility of amending the Constitution, I 
hope we can at least strike agreement on the particular issue of 
judicial review. For the reasons I and others have outlined, it is the 
height of foolishness to leave something as important as this 
unresolved. For many of my colleagues who call themselves conservatives 
and

[[Page S1712]]

criticize what they believe to be judicial excess, explicitly 
foreclosing judicial intervention would seem to be a very simple, 
appropriate, and appealing solution to what is a legitimate and 
potentially catastrophic problem.
  Mr. President, before yielding the floor back to the senior Senator 
from Massachusetts, let me just say we should not leave important 
budgetary decisions in the uncertain hands of unelected judges. We 
should make them ourselves. We can ensure this result by clarifying the 
role of the courts in this amendment.
  I urge my colleagues to support the Kennedy amendment, and I yield 
the floor.
  Mr. HUTCHINSON addressed the Chair.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. HUTCHINSON. Mr. President, I yield myself such time as I may 
consume.
  I will respond briefly to my good friend, the Senator from Wisconsin, 
regarding the political will and courage for the Senate, House--the 
Congress--to simply balance the budget. We heard that in the State of 
the Union Address: ``Pass a balanced budget and the President will sign 
it.'' We have heard that referred to repeatedly from the other side of 
the aisle. I stand next to 28 years of budget books, over 50 volumes 
that I think bears mute evidence to the lack of political will and 
courage in Congress and the evidence that we simply won't do it without 
constitutional discipline.
  In 1986, my brother, who now serves in the House of Representatives, 
was running for this body, the U.S. Senate. The balanced budget 
amendment the previous year had been defeated in this body by one vote. 
So that was a very big political issue in the campaign that year. Over 
and over again it was said, ``We don't need the balanced budget 
amendment. We simply need the courage to do it.'' So now, 11 years 
later, with over $1 trillion in additional debt, we hear those same 
recycled arguments brought before the U.S. Senate again.
  I want to comment a bit on the contention that the balanced budget 
amendment is both unenforceable and that the courts will impermissibly 
interfere with the budget process, or that a President may simply just 
impound things to resolve a budget shortfall. I agree with Senator 
Hatch's long-held position that a balanced budget amendment to the 
Constitution ought to be silent as to judicial review. The long-
existing and well-recognized precepts of the standing separation of 
powers, as well as the political question doctrine, restrains courts 
from interfering with the budgetary process. After all, courts are 
loathe to intrude into areas that properly belong to other branches of 
Government. And the Constitution, in article I, solely delegates to 
Congress, not the courts, the power to raise taxes, borrow money, and 
increase or reduce spending programs.
  Courts simply do not have the authority to order Congress to raise 
taxes. Furthermore, courts will not grant standing to litigants who 
claim a generalized grievance similar to the complaints of all 
citizens, such as the raising of taxes, so as not to impose broad-based 
relief that interferes with congressional prerogatives.
  Federal courts simply do not have the authority to usurp Congress' 
role of the budgetary process. This is made clear by the time-honored 
precept of standing and the political question in separation-of-powers 
doctrines. These jurisprudential doctrines, together, stand as 
impenetrable barriers to the courts' commandeering of the democratic 
process.

  Additionally, I wish to respond to the impoundment argument. I want 
to emphasize that there is nothing in the balanced budget amendment 
that allows for impoundment. It is not the intent of the amendment to 
grant the President any impoundment authority. In fact, there is a 
ripeness problem to any attempted impoundment. Indeed, up to the end of 
the fiscal year, the President has nothing to impound because Congress, 
in the amendment, has the power to ameliorate any budget shortfalls or 
ratify or specify the amount of deficit spending that may occur in that 
fiscal year. Moreover, under section 6 of the amendment, Congress 
must--and I emphasize must--mandate exactly what type of enforcement 
mechanism it wants, whether it be sequestration, rescission, or the 
establishment of a contingency fund. The President, as Chief Executive, 
is dutybound to enforce a congressionally crafted scheme to the 
exclusion of impoundment. The position that section 6 implementing 
legislation would preclude Presidential impoundment was seconded by 
Attorney General Barr in 1995.
  Finally, let me address the rock and a hard place argument that 
opponents of the balanced budget always dredge up. That is, they 
contend, on the one hand, that there may be too much enforcement 
because of the courts, while, on the other hand, that the balanced 
budget amendment is unenforceable because no one can force the 
President and Congress to abide by the amendment's terms. Well, you 
can't have it both ways. The truth is that the President and Congress 
must abide by their oath of office to preserve, protect, and defend the 
Constitution. I seriously doubt that the basic terms of any 
constitutional provision will be flouted. Also, each branch will keep a 
close eye on the other, and the reality of political pressure and the 
electoral wrath of the American people will assure compliance. 
Remember, the budget must be in balance at the end of the fiscal year, 
and I expect that a budget agreement will be worked out well before 
that time. Instead, the contention against the balanced budget 
amendment actually argues in favor of a balanced budget amendment. It 
is clear that, without a constitutional hammer, the political process 
lacks the discipline to agree to the terms.
  Again, as we enter the final days of this debate on the balanced 
budget amendment, I think we need to step back on occasion from the 
very technical arguments and some of the very arcane amendments that 
have been proposed generally by those who oppose the underlying 
constitutional amendment and look at the reason we have come to this 
impasse, this situation. If, in fact, there are questions that cannot 
be answered about all of the consequences of a balanced budget 
amendment, and the one that is before this Senate, I believe, when you 
weigh those unanswered questions with the very clear evidence and the 
very clear and present danger to the future, the economic future, of 
the Republic that exists with massive debt and chronic deficits, that 
it is time we take whatever risk--and I think that risk would be 
minor--there might be in the passage of that constitutional amendment 
and submitting that to the States for ratification. We have a $5.3 
trillion national debt. We have heard the figures over and over--
$20,000 per every man, woman, and child in America. The average child 
reared today, if he or she lives an average lifespan, makes an average 
income, will spend over $200,000 of their income in Federal income 
taxes to pay their portion of the interest on this ever-growing 
national debt.
  Let us view this massive debt in another way. In 1960, after the 
first 140 years of the Republic, John D. Rockefeller, who at that time 
was the wealthiest man in America, could have singlehandedly paid off 
the national debt. In 1997, if we combine the wealth of our richest 
families--say, Bill Gates, Warren Buffet, or from my home State, the 
Walton family--and we combine all of their net worth, all of their 
family wealth, they, together, could not even pay the interest on this 
massive debt for a few short months. Such is the difference, and such 
is the massiveness of the debt that we have accumulated and that we are 
imparting to generations in the future.
  Viewed from another perspective, if you laid out the debt in silver 
dollars, one right after another, it would be 120 million miles long. 
The word ``trillion'' becomes meaningless, I think, to the average 
American, as we hear millions, billions and trillions. But the national 
debt--$5.3 trillion--in silver dollars would be 120 million miles long. 
That is from the Earth to the Sun and well beyond--millions of miles 
beyond.
  If you could wrap it around the Earth you would wrap it around the 
Earth 5,000 times. Adam Smith in ``Wealth of Nations,'' published in 
the very year we became a Republic, said, ``What is prudence in the 
conduct of a private family can scarcely be followed in that of a great 
kingdom.''
  I have heard opponents of the balanced budget amendment say, ``Well, 
families go into debt. Families routinely go into debt. Therefore, 
deficit

[[Page S1713]]

spending on the part of the National Government should not be anything 
that we should greatly worry about or be greatly concerned about.'' 
Yes. Families go into debt. They have a home mortgage. They have car 
loans. They have the college loan. But if they are to survive as a 
family economically the deficits must never be chronic. They should 
always be short-termed. They should always be temporary. The debt must 
be manageable. There must be a schedule to pay it off and pay it down, 
all of which contrasts vividly with the practice of this Congress over 
the last 60 years. For in the last 60 years we have not paid down one 
dime on the growing national debt. No family could survive the habitual 
mismanagement that has characterized Congress for the past 28 years.
  Opponents say, ``We don't need an amendment. We have the ability to 
balance the budget.'' I say that we don't have the ability. We have the 
authority but we obviously don't have the ability, as these 28 years of 
budget books testify.
  In 1963 the amount of the debt held by the public was $254 billion. 
In 1996, it was $3.87 trillion, 15 times greater than in 1963. But 
since 1963 the promises have not changed. Let me just give you a 
sample.
  President Kennedy in the State of the Union Address in 1963 said, 
``My program is the surest and soundest way of achieving in time a 
balanced budget.''
  Or, the budget message of 1964 from President Johnson, ``My budget 
cuts the deficit in half and carries us a giant step toward the 
achievement of a balanced budget.''
  Or, President Nixon in 1971 in his State of the Union Address, ``I 
shall recommend a balanced budget.''
  Or, President Ford in 1976, ``The combination of tax and spending 
changes I propose will set us on a course that not only will lead us to 
a balanced budget in 3 years but also improves the prospects for the 
economy to stay on a growth path that we can sustain.''
  Or, President Carter in his message to Congress accompanying the 
Economic Report of 1977, ``We have moved on the path necessary for 
achieving a balanced budget in the very near future.''
  Or, President Bush in 1992 in a speech to the Detroit Economic Club, 
``I will fight to reduce spending and spur growth so we can get this 
budget in balance.''
  And, President Clinton's address to the Nation in 1995, ``I present 
the American people a plan for a balanced Federal budget.''
  In fact, it is not balanced. Three-fourths of the cuts, savings, and 
spending occur after this President will leave office. And the 
Congressional Budget Office tells us that even with all of that it is 
still very much out of balance.
  But the opponents continue to mock the idea of amending the 
Constitution. The statutory solutions that Congress have proposed 
simply have failed over and over and over again. They have failed from 
the Gramm-Rudman-Hollings Act, and on and on. We found a way to 
circumvent or undermine and some way to continue our spending habit. 
And our opponents say, ``Well, we are treating the Constitution as if 
it were a rough draft; that we have a raft full of amendments, a 
pocketful of constitutional changes.'' Wrong. Our Founding Fathers I 
believe knew very, very well that changing circumstances in the life of 
our Nation would make it necessary to have a process for change and, 
therefore, they included an amendment process that is both deliberate 
and very, very difficult, as we are learning once again this year. But 
our Founding Fathers never envisioned that there would be a Congress, 
or a series of Congresses that would go 28 years without balancing its 
budget. Our Founding Fathers never envisioned that we would amass more 
than $5 trillion in public debt. But they left us a procedure whereby 
we can address even that kind of calamitous situation, a procedure of 
amending the Constitution.

  This isn't frivolous. This isn't like what we are about in attempting 
to amend the Constitution. It is as our Founding Fathers intended, a 
deliberate process by which we can address those circumstances that 
would threaten the very future of the Nation. And this massive debt 
does threaten.
  How much does the debt and the growth of the debt and the chronic 
deficits affect the average American? We have heard much talk about 
declining interest rates and how that will benefit the average American 
family. How things have changed. My mom and dad had only high school 
educations. They raised a family of six children. My father worked in a 
chicken plant, and my mother stayed at home. She didn't even go out and 
get a job. We lived in a nice home, a brick home. I thought we were 
poor. But we thought we were middle class. But all in all, we had a 
great quality of life. And I wonder how many times that could happen 
today? How many times today could you have parents without a college 
education with one spouse working and one spouse at home, and providing 
their children a college education? I say that, even as we look at the 
average middle-class family today, we see the erosion of our standard 
of living. And part of that is because the wealth of this Nation is 
consumed more and more by the massive spending of the Federal 
Government and the absorption of that wealth by paying interest on an 
evergrowing national debt.
  I yield the floor.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. Mr. President, how much time remains?
  The PRESIDING OFFICER. The Senator from Massachusetts has 26 minutes 
remaining, the Senator from Arkansas has 40 minutes remaining.
  Mr. KENNEDY. I yield 12 minutes to the Senator from Illinois.
  The PRESIDING OFFICER. The Senator from Illinois is recognized for 12 
minutes.
  Mr. DURBIN. I thank the Chair.
  (The remarks of Mr. Durbin and Mr. Kennedy pertaining to the 
introduction of legislation are located in today's Record under 
``Statements on Introduced Bills and Joint Resolutions.'')
  Mr. DURBIN. Mr. President, at this point I would like to address the 
amendment offered by Senator Kennedy to the balanced budget amendment.
  I would like for those who are listening to this debate to consider a 
possible and likely scenario at some point in our Nation's future. Let 
us assume the balanced budget amendment to the Constitution passes and 
is ratified by the States and takes effect. In 1 year we find that the 
budget for the coming year is out of balance. A group of 48 Senators 
proposes an across-the-board cut to balance the budget. Another group 
of 41 Senators favors deeper cuts in military spending to spare 
education and safety net programs. And then a group of 11 Senators 
comes forward and opposes those plans and says let us have significant 
cuts in the growth of Medicare. None of the groups will budge. The 
fiscal year begins with a budget that is clearly out of balance. The 
group of 11 Senators goes to court asking the courts to compel 
compliance with the balanced budget constitutional amendment 
requirements that outlays not exceed revenues for any fiscal year.
  One day you turn on the television, and you find the Supreme Court 
has listened to the briefs, has ordered Social Security, Medicare, 
highway funding, and medical research funding to be cut, and the Court 
has ordered an income tax increase of 1 percentage point for every 
group. The Court says the Constitution, as amended by the balanced 
budget amendment, clearly requires a balanced budget, and since 
Congress cannot act, the Court is required to step in.
  If this sounds farfetched, think of what has happened in our history 
in the last several decades where courts have said that Congress has 
failed to meet its constitutional obligation and that the courts will 
step in and order, for example, integration of school districts and the 
imposition of local property taxes to equalize educational opportunity 
which the courts have decided is not being offered and should be.
  The President, in my hypothetical, responds to this court order and 
says, I disagree with the Court requirement. I will assume the 
responsibility to balance the budget. The President says, I will 
impound funds. I will cut spending on certain programs so that the 
budget is in balance.
  If this sounds farfetched, I think those who have offered the 
amendment

[[Page S1714]]

have not considered the very real likelihood that it could occur. Our 
Constitution now gives Congress the primary authority to raise and 
spend Federal funds. James Madison wrote in ``The Federalist Papers,'' 
No. 48.

       The legislative department alone has access to the pockets 
     of the people.

  This proposed amendment would dramatically alter the balance of power 
in the Constitution, and this amendment is silent on the issue about 
whether or not the courts can interpret and enforce the balanced budget 
amendment. I daresay neither the courts nor the President will stand 
idly by if the budget is not in balance and this constitutional 
amendment is in place. In fact, most of the supporters of the balanced 
budget amendment readily concede this scenario.
  A representative of the U.S. Chamber of Commerce testified before my 
Judiciary Committee. He said:

       There is a legitimate and necessary role for the courts in 
     ensuring compliance with the amendment.

  Someone from the National Taxpayers Union said:

       We oppose denying judicial review authority and believe it 
     would be more difficult to enforce the provisions of this 
     resolution if Congress were to add such language to the 
     balanced budget amendment.

  The same basic testimony coming from the ultraconservative Family 
Research Counsel.
  It is not an unusual proposal of the Senator from Massachusetts that 
we specify the limits of power in interpreting the constitutional 
amendment and enforcing it. In fact, in 1994, Senator Danforth, a 
Republican, of Missouri, successfully modified the same amendment in 
the Chamber today including a proposal very similar to Senator 
Kennedy's. In 1995, the following year, Senator Nunn, a Democrat of 
Georgia, did the same. But the current version of this amendment 
contains neither of those provisions. I stand in support of Senator 
Kennedy's effort to once again include this sensible language.
  The constitutional amendment eliminates the fundamental distinction 
which exists between the legislative branch, the executive branch and 
judicial branch. It invites unelected judges to exercise budgetary 
powers with no opportunity for the people through the ballot box to 
affect those decisions.
  The President, of course, as I said, will not stand idly by either. 
He has a constitutional responsibility to preserve, protect, and defend 
the Constitution. Just as the courts are loathe to avoid their 
constitutional mandate, mark well my words: No President will avoid it 
either. If this Congress is gridlocked, at an impasse with the budget 
not in balance, a President will step in and the President will make 
his decision as to where the cuts will be made. And that decision may 
not be the will of the Congress.
  Legal scholars agree that what I have just described is not 
farfetched but likely to occur, and without Senator Kennedy's amendment 
it will occur. The President's powers of impoundment could include 
across-the-board cuts, specific programs abolished, and targeted 
expenditures intended for States or other agencies could be impounded. 
This has been acknowledged by those who have worked on budgetary 
matters in Washington for many years.
  The Kennedy amendment acknowledges the fundamental ambiguities 
inherent in the balanced budget amendment's silence regarding 
enforcement powers of the courts and Presidents. It recognizes that 
budgetary decisions should be made by the elected representatives of 
the people, not by the unelected judges or single executive. It avoids 
a fundamental shift in the allocation of power and authority among the 
Federal branches of Government and assures that Members of Congress 
will remain responsible for spending and for balancing the budget. It 
achieves these important goals by specifying that Congress shall have 
exclusive authority to enforce the balanced budget amendment unless 
specifically otherwise provided in implementing legislation.
  I am new to the Senate. This is the first time I have been engaged in 
this debate in the Senate. I find it incredible that the wisdom of this 
amendment was recognized in 1994, when offered by a Republican Senator 
from Missouri, and in 1995, when offered by a Democratic Senator from 
Georgia, and is not being included today as part of this amendment. The 
Senate today has an opportunity, through Senator Kennedy's initiative, 
to make a real difference and to correct this error, to make certain 
that it is clear we are not ceding a grant of power to either the 
executive branch or the judicial branch; we are accepting our 
responsibility to spell out with specificity the responsibility of 
Congress, the Senate and the House to balance the budget.
  At this point, I yield back the remainder of my time. I thank the 
Chair.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. How much time do I have?
  The PRESIDING OFFICER. The Senator from Massachusetts has 14 minutes 
remaining.
  Mr. KENNEDY. I yield myself 7 minutes, Mr. President.
  Mr. KENNEDY. Mr. President, as pointed out by the Senators from 
Illinois and Wisconsin, those who are opposing the amendment on the 
floor today and those who have opposed addressing this issue in the 
Judiciary Committee agree with what the principal sponsor, Senator 
Hatch, has said--he wants silence on this issue--silence on the issue.
  We have a great deal at risk by not accepting this amendment. So why 
not accept it. The amendment is quite clear in its objective--if we are 
going to be required to enforce the amendment, it ought to be the 
Congress who enforces it, not the President of the United States or the 
courts. They should not have the ability to raise or lower taxes or to 
cut various kinds of programs. That is what this issue is all about. 
That is why, as the Senator from Illinois has pointed out, it was 
addressed by Republicans and Democrats previously.
  All we are saying is we are not prepared to make that judgment here 
this afternoon. But we are presenting an amendment which will permit 
the Congress to make a judgment as to what those powers would be down 
the road, in the future. It is amazing to me to hear resistance to that 
argument.
  The idea that this is really a moot issue and moot question just 
defies testimony by those who are both supportive of the balanced 
budget amendment and those who are against the amendment. One of the 
most compelling cases was made by one of our leading constitutional 
authorities, Kathleen Sullivan, and supported by a broad range of 
different constitutional scholars, both conservative and Democrat 
alike. I will refer to some parts of the letter. I will include the 
whole letter in the Record.

       First, taxpayers might claim that their rights to a 
     balanced budget are violated, for example, by projections 
     that outlays will exceed receipts. True, taxpayers are 
     generally barred from suing the government for the redress of 
     generalized grievances. But the Supreme Court a quarter of a 
     century ago held that there is an exception to the general 
     bar on taxpayer standing when the taxpayer claims that a 
     government action ``exceeds specific constitutional 
     limitations imposed upon the exercise of the congressional 
     taxing and spending power.''
       Mr. Barr suggests that this exception may be limited to 
     Establishment Clause challenges, but there is nothing in the 
     principle stated in Flast that so confines it. If anything, 
     the proposed Balanced Budget Amendment more clearly limits 
     congressional taxing and spending power than does the 
     Establishment Clause.

                           *   *   *   *   *

       Second, members of Congress might well have standing to 
     claim that congressional actions have diluted the vote they 
     were entitled to exercise under the Amendment. For example, 
     suppose that the Congress declined to hold a three-fifths 
     vote required to approve deficit spending under section 1, or 
     a rollcall vote required to increase revenue under section 4. 
     This might occur, for example, because of a dispute over 
     whether outlays really exceeded receipts, or over whether 
     revenue was really being increased, because the meaning of 
     those terms might be controversial as a matter of fact. 
     Declining to implement the supermajority voting requirements 
     in such a context, however, might be plausibly claimed to 
     have diluted a Member's vote. This is arguably analagous to 
     other circumstances of vote dilution in which the lower 
     courts have held that Members of Congress have standing.
       Third, persons aggrieved by actions taken by the government 
     in claimed violation of the Amendment might well have 
     standing to challenge the violation.

  And it gives further examples of it.
  Mr. President, I ask unanimous consent the entire letter be printed 
in the Record.

[[Page S1715]]

  There being no objection, the letter was ordered to be printed in the 
Record, as follows:

                                          Stanford Law School,

                                  Stanford, CA, February 15, 1995.
     Senator Edward M. Kennedy,
     U.S. Senate,
     Washington, DC.
     Re: Proposed Balanced Budget Amendment.
       Dear Senator Kennedy: I have reviewed the statement of 
     William P. Barr before the Senate Committee on the Judiciary 
     on January 5, 1995, in which former Attorney General Barr 
     argued that ``the courts' role in enforcing the Balanced 
     Budget Amendment will be quite limited.'' While I have great 
     respect for Mr. Barr, and while I found his testimony to be 
     considered and thoughtful, I must respectfully state that I 
     disagree with him. I continue to believe that, as I testified 
     before the Senate Appropriations Committee on February 16, 
     1994 the Balanced Budget Amendment in its current draft form 
     is likely to produce numerous lawsuits in the federal and 
     state courts, and that neither Article III justiciability 
     doctrines nor practices of judicial deference will operate as 
     automatic dams against that flood tide of litigation.
       Let me begin with the doctrines of justiciability under 
     Article III of the Constitution. Mr. Barr argues that ``few 
     plaintiffs would be able to establish the requisite standing 
     to invoke federal court review.'' This is by no means clear. 
     There are at least three categories of litigants who might 
     well be able to establish standing to challenge violations of 
     the Amendment.
       First, taxpayers might claim that their rights to a 
     balanced budget are violated, for example, by projections 
     that outlays will exceed receipts. True, taxpayers are 
     generally barred from suing the government for the redress of 
     generalized grievances. But the Supreme Court a quarter of a 
     century ago held that there is an exception to the general 
     bar on taxpayer standing when the taxpayer claims that a 
     government action ``exceeds specific constitutional 
     limitations imposed upon the exercise of the congressional 
     taxing and spending power.'' Flast v. Cohen, 392 U.S. 83 
     (1968). Mr. Barr suggests that this exception may be limited 
     to Establishment Clause challenges, but there is nothing in 
     the principle stated in Flast that so confines it. If 
     anything, the proposed Balanced Budget Amendment more clearly 
     limits congressional taxing and spending power than does the 
     Establishment Clause. The Amendment is not confined, as Mr. 
     Barr suggests, merely to the power of Congress to borrow. 
     Thus taxpayers would have an entirely plausible argument for 
     standing under existing law.
       Second, members of Congress might well have standing to 
     claim that congressional actions have diluted the vote they 
     were entitled to exercise under the Amendment. For example, 
     suppose that the Congress declined to hold a three-fifths 
     vote required to approve deficit spending under section 1, or 
     a rollcall vote required to increase revenue under section 4. 
     This might occur, for example, because of a dispute over 
     whether outlays really exceeded receipts, or over whether 
     revenue was really being increased, because the meaning of 
     those terms might be controversial as a matter of fact. 
     Declining to implement the supermajority voting requirements 
     in such a context, however, might be plausibly claimed to 
     have diluted a Member's vote. This is arguably analogous to 
     other circumstances of vote dilution in which the lower 
     courts have held that Members of Congress have standing. See, 
     e.g., Vander Jagt v. O'Neill, 699 F.2d 1166, 1168-71 (D.C. 
     Cir. 1982), cert. denied, 464 U.S. 823 (1983).
       Third, persons aggrieved by actions taken by the government 
     in claimed violation of the Amendment might well have 
     standing to challenge the violation. For example, consider a 
     criminal defendant charged under a law claimed to cost more 
     to enforce than the government can finance through expected 
     receipts. Or suppose that the President, believing himself 
     bound by his Oath to support the Constitution, freezes 
     federal wages and salaries to stop the budget from going out 
     of balance. In that circumstance, a federal employee might 
     well challenge the President's action, which plainly causes 
     her pocketbook injury, as unauthorized by the Amendment, 
     which is silent on the question of executive enforcement.
       Each of these circumstances poses plausible claims of 
     injury in fact, and none of them poses insurmountable 
     problems of redressability. In most of them, in fact, simple 
     injunctions can be imagined that would redress the 
     plaintiffs' claims. Thus, contrary to Mr. Barr's prediction, 
     the doctrine of standing is by no means certain to preclude 
     federal judicial efforts at enforcement of the Amendment. And 
     further, as Mr. Barr concedes, federal standing doctrine 
     will do nothing to constrain litigation of the proposed 
     Amendment in state courts, which are not bound by Article 
     III requirements at all.
       Nor is the political question doctrine likely to eliminate 
     all such challenges from judicial review. True, the Supreme 
     Court has held that a question is nonjusticiable when there 
     is ``a textually demonstrable constitutional commitment of 
     the issue to a coordinate political department; or a lack of 
     judicially discoverable and manageable standards for 
     resolving it.'' Baker v. Carr, 369 U.S. 186 (1962). But the 
     proposed Amendment implicates neither of these kinds of 
     limitation. It does not reserve enforcement exclusively to 
     the discretion of the Congress, as, for example, the 
     Impeachment or Speech and Debate Clauses may be read to do. 
     And it presents no matters that lie beyond judicial 
     competence. Rather, here, as with apportionment, the question 
     whether deficit spending or revenue increases ``exceed 
     whatever authority has been committed, [would] itself [be] a 
     delicate exercise in constitutional interpretation,'' and 
     thus would fall well within the ordinary interpretive 
     responsibility of the courts. See Baker v. Carr, at 211.
       Let me turn now from doctrines of justiciability to 
     practices of judicial deference. Mr. Barr argues that, as a 
     prudential matter, ``a reviewing court is likely to accord 
     the utmost deference to the choices made by Congress in 
     carrying out its responsibilities under the Amendment,'' 
     especially in light of the enforcement clause in section 6. 
     This is by no means clear. The Reconstruction Congress 
     expected that enforcement of the Thirteenth, Fourteenth and 
     Fifteenth Amendments would be undertaken primarily by the 
     Congress, and reflected that expectation in the Enforcement 
     Clauses specifically included in those Amendments. But we 
     have seen time and time again in our history that judicial 
     review has played a pivotal role in the enforcement of those 
     Amendments nonetheless. The proposed Amendment, as did those 
     Amendments, gives Congress authority to legislate, but it 
     does not oust the courts, who need not defer to Congress in 
     these matters. Courts rightly have not hesitated to intervene 
     in civil rights cases, even though those cases involved grave 
     structural questions as well as questions of individual 
     rights.
       Finally, Mr. Barr argues that courts will, again as a 
     matter of prudence and practice rather than doctrine, 
     ``hesitate to impose remedies that could embroil [them] in 
     the supervision of the budget process.'' He is correct to 
     observe that a direct judicial order of a tax levy such as 
     that in Missouri v. Jenkins, 495 U.S. 33 (1990), is highly 
     exceptional. But even if that is so, courts could issue a 
     host of other kinds of injunctions to enforce against 
     conceivable violations of the proposed Balanced Budget 
     Amendment. For example, a court could restrain expenditures 
     or order them stayed pending correction of procedural 
     defaults, or a court could enjoin Congress simply to put the 
     budget into balance while leaving to Congress the policy 
     choices over the means by which to reach that end. Thus there 
     is little reason to expect that prudential considerations 
     will keep enforcement lawsuits out of court, or keep judicial 
     remedies from intruding into political choices.
       In sum, the draft Balanced Budget Amendment in its present 
     form has considerable potential to generate justiciable 
     lawsuits, which in turn would have considerable potential to 
     generate judicial remedies that would constrain political 
     choices. Thank you for considering these remarks in the 
     course of your current deliberations.
           Sincerely,
                                             Kathleen M. Sullivan.

  Mr. KENNEDY. Mr. President, this is a very well-thought-out analysis 
about the role of standing. It is very clear. And, I believe, to 
cavalierly dismiss the fact there would be standing for challenge by 
outside forces does not represent the vast majority of legal opinion, 
both from those who support the amendment and those who are opposed to 
it.
  Mr. President, I yield myself 4 more minutes.
  Furthermore, the President is obligated to faithfully execute the 
laws and defend the Constitution. That duty is not limited to the 
enforcement of acts of Congress. It includes obligations derived from 
the Constitution. Thus, if the President believed the balanced budget 
constitutional amendment was about to be violated, he would be duty 
bound to prevent the violation. After all, what happens when it becomes 
clear that outlays will exceed receipts for the fiscal year and 
Congress has not specifically authorized the deficit? Many, including 
Secretary Rubin, former Reagan administration Solicitor General Charles 
Fried, former Attorney General Nick Katzenbach, and Harvard Law School 
Prof. Laurence Tribe, believe the President would be obligated to take 
the dramatic step of impounding funds to comply with the Constitution. 
As then-Assistant Attorney General Walter Dellinger suggested in 1995: 
If it appears the requirement for a balanced budget was about to be 
violated, he would advise the President not only that he had the right 
but the obligation to step in and prevent the violation by impounding 
money before the budget became imbalanced.
  Those are basically the facts. There is every indication there would 
be standing, both by citizens and others who wanted to challenge this; 
that the President would be required, after taking the oath of office, 
to uphold the Constitution, to impound funds. I do not want to see the 
seizing of Social Security checks by the Congress, duly elected, but at 
least we are accountable to people. But to say we are going to leave 
that to the courts or to the 50

[[Page S1716]]

courts--50 courts, as was talked about previously by the Senator from 
Arizona--we are going to give that to the President of the United 
States, or to the courts--I find enormously troublesome.
  But, no, no, those who oppose this amendment say the amendment is 
going to be silent on this issue. I don't think it should be silent. I 
think the ultimate decision, in terms of budget cutting, should 
ultimately rest here, specifically in the Congress of the United States 
unless we are going to make a judgment that the courts should have some 
kind of a responsibility. That is all this amendment does.
  It comes back to who is going to implement this. I do not believe we 
should grant that authority to judges who are not accountable to the 
American people, or to a President of the United States who may impound 
funds, but it should rest here in the Congress of the United States. 
That is all this amendment does. Those who support it say we ought to 
be silent. We say, as other Congresses have said, that we ought to be 
able to make a conscious decision about the enforcement of this 
amendment. I do not want unelected judges and the President making that 
decision. I believe Congress should.
  I retain the remainder of my time.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. HUTCHINSON. Mr. President, I yield myself such time as I might 
consume.
  The PRESIDING OFFICER. The Senator is recognized.
  Mr. HUTCHINSON. Mr. President, I certainly agree--and Congress will, 
should we pass this amendment, and the States ratify this, and this 
become a part of the Constitution--Congress will, at long last, fulfill 
its constitutional oath of office and we will enforce a balanced 
budget. Congress has not done that. We have not done that because we 
lack a constitutional hammer, a constitutional discipline requiring us 
to do so.
  The courts will not be imposing taxes. The President will not be 
impounding. But Congress will be doing what will be, then, our 
constitutional obligation in balancing the books.
  Senator Kennedy's amendment is directed to the issue of judicial 
review. I believe it is in fact unnecessary. The relevant limitations 
on the powers of the courts, which are found in the doctrines such as 
ripeness, standing, and political question, effectively prevent Federal 
courts from raising Federal taxes or reallocating Federal budget 
priorities, which are the purview of Congress. Furthermore, as an 
additional safeguard pursuant to both article 3 of the Constitution and 
section 6 of the balanced budget amendment, Congress may limit the 
jurisdiction of courts and the remedies that courts may provide.
  No constitutional provision has ever contained a jurisdictional 
limitation on courts, as this amendment by Senator Kennedy would. 
Including this amendment in the balanced budget amendment might 
establish, I believe would establish, a troublesome precedent that 
courts might use to get involved in other areas of the Constitution 
that do not have such limitations.
  I believe that these amendments, one after another, are being 
proposed by those who would, of course, like to see a balanced budget 
amendment defeated. This is another scare tactic that is being thrown 
at the American people.
  We see that in the issue of impoundment that Senator Kennedy referred 
to. President Clinton recently said, ``The way I read the amendment, it 
would almost certainly require, after the budget is passed, if the 
economic estimates turn out to be wrong, the executive branch, the 
President, the Treasury Department to impound Social Security checks or 
turn it over to courts to decide what is to be done.''
  That, to my colleagues I say, is a blatant scare tactic to try to 
defeat a much-needed amendment to the Constitution.
  If Senator Kennedy's amendment on impoundment is addressed as he 
indicated, then it is, again, unnecessary. First, the President has, at 
most, only limited authority to impound funds. The Supreme Court held 
that in the case involving President Nixon.
  Since the balanced budget amendment does not even mention the 
impoundment authority of the President, there is very, very little 
support for the claim that the balanced budget amendment would give the 
President such abilities.
  Second, Congress has plenary enforcement authority and, therefore, 
can, through new legislation, prevent the President from impounding 
appropriated funds. The Constitution does not mention impoundment. The 
power of the President in this area is merely implied by the 
President's general Executive power. This is very important because the 
Supreme Court has held that Congress has the authority to limit the 
President's implied powers, so long as it does not prevent the 
President from discharging his specific duties.
  Third, even in the absence of new legislation, the Line-Item Veto Act 
already regulates this area, thereby indicating how the Congress has 
allocated power to the President. In that law, Congress established a 
specific procedure for the President to follow. By so doing, Congress 
has occupied the field, to borrow a term from the law of Federal 
preemption, thereby precluding the President from exercising a general 
Executive power, like impoundment, in a different manner.
  So, I say again, this amendment, though I have no doubt it is well 
intended and addresses what are perceived to be legitimate concerns, 
is, in fact, unnecessary, plays upon the fears of the American people, 
and should be rejected. While we carry on this somewhat detailed 
debate, during this hour in which I have been on the floor of the U.S. 
Senate, the national debt will increase another $29 million.
  It is time, it is far past time, as these 28 years of budget books 
bear testimony, for this Senate to pass a balanced budget amendment, 
send it to the States for quick ratification and to begin to put 
ourselves under the same discipline that most of our States exist under 
and that every family in this country exists under: A requirement that 
we live within our means.
  Mr. President, I yield the floor.
  Mr. CRAIG. Mr. President, the Kennedy amendment points to a problem 
that doesn't exist and then solves it with a loophole.
  Why are we debating the balanced budget amendment in the first place? 
Because past Congresses have built up a national debt of more than $5.3 
trillion, in an abuse of their power of the purse.
  So what does the Kennedy amendment prescribe? It says, let's put the 
fox in charge of the henhouse. It says Congress doesn't have to comply 
with this amendment unless it wants to. It says, if Congress says it is 
complying with this amendment, then no one else can question that.
  I do believe Members of Congress take their constitutional 
responsibilities seriously. I do believe that most Members really would 
prefer balanced budgets to running up another $5 trillion in debt. But 
I don't believe that every particle of every possibility of independent 
review should be removed from this amendment.
  We will win the war against debt, the war for our economic future the 
same way we won the cold war: Not by fighting, but by being strong 
enough to deter. We need to defeat the Kennedy amendment to keep the 
balanced budget amendment strong enough to deter future fiscal abuse.
  Senator Hatch has spoken eloquently about the legal precedents and 
judicial doctrines that demonstrate there will not be a problem with 
judicial activism under Senate Joint Resolution 1. I will only touch on 
the broadest of those.
  In our Constitution today, we have something called separation of 
powers among the three branches of government.
  It already gives Congress exclusive power of the purse, saying, ``No 
Money shall be drawn from the Treasury, but in Consequence of 
Appropriations made by Law. * * * '' Only the Congress can make law; 
only the Congress can decide how to spend money.
  It already gives Congress exclusive power to tax. It says, ``All 
bills to raise revenue shall originate in the House of Representatives. 
* * *''
  Only the Congress can tax, founded upon the Revolutionary War 
principle of ``No taxation without representation.''
  It already gives Congress the power to limit the jurisdiction of the 
Federal courts, in article III of the Constitution.

[[Page S1717]]

  It already gives Congress the power to limit, by law, what budgetary 
actions the President can take, as it did in the Impoundment Control 
and Budget Act of 1976, as it did in Gramm-Rudman-Hollings, and as it 
did in the Budget Enforcement Act of 1990.
  The balanced budget amendment does not in any way change the current 
balance of power among the three branches of Government. It does not 
grant the courts or the President any power they don't already have.
  To clarify the matter, the amendment already says, in section 6, 
``The Congress shall enforce and implement this article by appropriate 
legislation. * * *''
  But, in some very limited cases, the possibility of outside review 
should be left open. For example:
  Under our Constitution, the courts have already addressed the issue 
of whether a bill that originated in the Senate, and had the incidental 
effect of increasing revenues, should have originated in the House.
  Similarly, under Senate Joint Resolution 1, if the Congress passed a 
bill to increase taxes by voice vote, instead of a majority of the 
whole number on a rollcall vote, and claimed the bill would not raise 
taxes, it is fair and reasonable for the Supreme Court to say, no, that 
bill is unconstitutional, and it is struck down.
  Under Senate Joint Resolution 1, let's say some future Congress set 
up a shell game to get around the 3/5 vote on the debt limit. Perhaps 
they could set up a super Fannie Mae that borrows from the public, and 
then lends to the Treasury. It is fair and reasonable for the Supreme 
Court to say, no, that is an obvious attempt to subvert the 
Constitution, and it is struck down.
  In no case, under this amendment, would--or could--the courts rewrite 
the details of a budget or order a tax increase. They simply couldn't, 
period.
  But the courts could do what they do today:
  If a case is obvious, if a party has specific standing, if a 
controversy is justiciable, and if the political question doctrine does 
not apply--

       Then the Court could look at an act of Congress, or an 
     action of the Executive, and say, no, that violates the 
     Constitution. Stop. Do not pass ``Go''. Do not collect $200 
     billion. Start over again.

  In short, the rule has been, ought to be, that the Court can simply 
say what the law is, not make new law.
  Some may raise the specter of the Missouri versus Jenkins court case. 
But that case, however dubious on its own merits, has nothing in common 
with the arguments being raised here.
  In that case, a Federal court ordered a local school district to 
raise revenues to pay for a federally mandated desegregation plan.
  In other words, the Federal court was ordering someone else to comply 
with Federal law.
  That case had nothing to do with Congress, with Federal taxes or with 
constitutional separation of powers.
  Finally, the Kennedy amendment would only feed public cynicism.
  When the Senate adopted a less sweeping limitation on judicial review 
in the last Congress, the Nunn amendment, I heard from Idahoans who 
felt that that amendment had put the fox in charge of the henhouse.
  People will realize that the Kennedy amendment says, the same branch 
of government that has run up $5.3 trillion in debt should be the sole 
arbiter of what does, and what does not, comply with a rule against 
running up another $5 trillion.
  The Kennedy amendment is being offered by opponents of the balanced 
budget amendment, not to improve it, but in an attempt to kill it. The 
amendment should be defeated.
  The PRESIDING OFFICER. Who yields time?
  Mr. KENNEDY. Mr. President, I understand we have 4 minutes remaining. 
I yield 2 of those minutes to the Senator from North Dakota.
  The PRESIDING OFFICER. The Senator from North Dakota is recognized 
for 2 minutes.
  Mr. CONRAD. Mr. President, I thank the Senator from Massachusetts.
  I point out to my colleague on the other side of the aisle that if 
this balanced budget amendment passes, is implemented, he would have 
exactly the same problem as represented by that stack of budget 
documents sitting on his desk today, because the debt would continue to 
go up. We would not have a balanced budget at all, because this isn't a 
balanced budget amendment, unfortunately. This is an amendment that 
decides they are going to claim it's a balanced budget by looting every 
penny of Social Security surplus over the next 20 years and then claim 
balance.
  But on the question of the amendment before us, I think the amendment 
by the Senator from Massachusetts addresses one of the three principal 
concerns of the so-called balanced budget amendment which is before 
this Chamber. It goes to the question of the role of the courts.
  Mr. President, what a difference a Congress makes--what a difference. 
The last time we had this measure before the Senate, on a vote of 98 to 
2, we addressed the question of whether or not unelected judges would 
be left writing the budget of the United States; 98 to 2 the Senators 
decided we could not be silent, we could not be left with a 
circumstance in which right through those doors in the Supreme Court of 
the United States, we would have unelected judges sitting around a 
table writing the budget for the United States.
  I ask my colleagues, what do the Justices of the Supreme Court, as 
learned as they are, know about the defense of the United States or the 
budget for the defense of the United States? Nothing. They have had 
none of the detailed briefings, none of the hearings on the question of 
what the defense systems are that are critical to maintaining the 
security of the United States.

  The PRESIDING OFFICER. The time yielded to the Senator from North 
Dakota has expired.
  Mr. KENNEDY. I yield another 45 seconds.
  Mr. CONRAD. I will just conclude by saying those Justices, as learned 
as they are, know nothing about what the defense systems are that are 
needed to maintain the security of this Nation. They know nothing about 
agriculture programs which are critical to my State. They know nothing 
about the budget disciplines that are fundamental to the writing of a 
budget document that is critical to the future of this country.
  This amendment by the Senator from Massachusetts ought to be adopted. 
The same type of amendment was adopted overwhelmingly in the last 
Congress when people recognized it was central to the functioning of 
any balanced budget amendment.
  I thank the Chair and yield the floor.
  The PRESIDING OFFICER (Mr. Gorton). Who yields time? The Senator from 
Arkansas.
  Mr. HUTCHINSON. I yield myself 2 minutes.
  Mr. President, in response to my friend, I will simply say that the 
learned Justices may know little about budgeting, they may know little 
about national defense, they may know little about budget priorities, 
they may know little about exploding entitlements, but they have not 
been responsible, as we have been, for 28 successive years of deficits 
and the accumulation of $5.3 trillion in national debt. They have not 
been responsible for imposing upon my children and my grandchildren 
$20,000 of debt per person. They cannot be held accountable for our 
failings, and I emphasize once again, it will not be the Justices of 
the Supreme Court who will enforce this provision to the Constitution 
should it be ratified, and it will not be the President, through the 
impoundment process, that will enforce this; it will be Congress in 
obedience to and in fulfillment of their oath of office, an oath that 
requires us to protect and preserve and defend the Constitution of the 
United States, a Constitution that will, at that time, have enshrined 
within it a provision requiring us to balance our books. We will do the 
job. We will do it when we are required by the Constitution.
  Is it a shame we have to have that? I think it is. Is it unfortunate 
we have not had the courage, the political will to make the kind of 
tough decisions that would have allowed us to balance the budget and to 
have avoided our current situation? It is a shame. But the evidence is 
clear that short of an amendment to the Constitution, Congress will 
continue to allow spending to grow out of control, we will continue to 
have chronic deficits, and we will continue to amass enormous debts 
that threaten the economic stability

[[Page S1718]]

and the economic future of our country. That is why we need a balanced 
budget amendment. And in order to have that amendment, we need to 
reject Senator Kennedy's I think unnecessary and ill-conceived 
amendment to the underlying amendment to the Constitution.
  Mr. KENNEDY addressed the Chair.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, with all due respect to my friend and 
colleague, 92 Members of the U.S. Senate felt this was an issue that 
should be addressed in the last Congress, and a Republican, Senator 
Danforth, thought it should have been addressed in the Congress before 
that.
  Now, if the Senator wants to say that under no circumstances are the 
judges going to be involved and under no circumstances will the 
President have impoundment, then accept the amendment. But you cannot 
have it both ways.

  Other Congresses--the previous Congress and the one before it, under 
Republicans and Democrats--overwhelmingly understood this issue, as 
leading conservative constitutional authorities do, as the 128 
organizations that represent working families, children's 
organizations, those that have Social Security and senior citizens do.
  Mr. President, that is the issue. Who is going to make the ultimate 
judgment if this amendment is accepted? We believe it should be the 
Congress, not leave it to unelected judges to permit the President to 
impound it. That is the simple and fundamental issue. I hope the 
amendment is successful.
  The PRESIDING OFFICER. All time except for 8 seconds to the Senator 
from Massachusetts has expired and there are 33 minutes 19 seconds 
remaining for the Senator from Utah.
  Who yields time?
  Mr. HATCH. Mr. President, how much time is left for the Senator from 
Utah?
  The PRESIDING OFFICER. Thirty-three minutes nineteen seconds.
  Mr. HATCH. How much is left for the other side?
  The PRESIDING OFFICER. Eight seconds.
  Mr. HATCH. Eighty seconds?
  The PRESIDING OFFICER. Eight seconds.
  Mr. HATCH. That ought to be enough to make some fairly powerful 
statements, but I will be happy to give him some more time after I make 
a few remarks.
  Let me make a point that my good friend and colleague, Senator Kyl, 
made at the outset of this debate. Senator Kennedy's amendment would 
allow the Federal Government to imprison any taxpayer who declines to 
pay an unconstitutional tax. His amendment is materially different from 
Senator Nunn's amendment 2 years ago. So I am very concerned about it. 
Let me just compare the two.
  The Nunn amendment provided that absent specific legislation 
authorizing judicial review, the courts would not have jurisdiction for 
claims arising under the balanced budget amendment.
  The Kennedy amendment provides that absent specific legislation 
authorizing judicial review, Congress has exclusive enforcement 
authority under the balanced budget amendment. Thus the courts would 
have absolutely no enforcement role.
  The difference is this. I know my colleague is trying to do what is 
right here, but the difference is this. The Kennedy amendment allows 
Congress unconstitutionally to raise taxes by a simple voice vote and 
no court in this land could hold that tax unconstitutional. The Nunn 
amendment did not have that draconian affect.
  Under the Nunn amendment, any taxpayer could raise as a defense the 
argument that the Congress passed an unconstitutional tax. The Kennedy 
amendment forecloses that defense. I do not think we want to go that 
far, even though I think I know what the distinguished Senator is 
trying to do. The Kennedy amendment, Senator Kennedy's amendment, would 
allow the Government to imprison taxpayers for refusing to pay an 
unconstitutional tax.
  I do not think we want to go that far. At least I do not. So I have 
to rise in opposition to the amendment offered by my good friend and 
colleague from Massachusetts.

  Mr. President, in each year that the balanced budget amendment has 
been debated, I notice that various arguments are presented as scare 
tactics by the opponents of the amendment. The devil resurrected now in 
the Kennedy amendment is the fear that under the balanced budget 
amendment the courts will raise taxes or cut programs. Indeed, 
President Clinton even claimed that he could refuse to disburse Social 
Security checks to our retired senior citizens if the budget is not 
balanced by the end of any particular fiscal year.
  The balanced budget amendment does not produce any such evils. On the 
contrary, the balanced budget amendment strikes a delicate balance 
between the reviewability by the courts and limitation on the courts' 
ability to interfere with congressional budgetary authority. It has 
always been my position that we should not foreclose all judicial 
review. No. Some judicial review may be necessary and should be 
permitted.
  What we should foreclose is any action by the courts that would 
interfere with Congress' budgetary authority. Judicial review should be 
available for the egregious, but unlikely, cases where Congress flouts 
the express procedures dictated by Senate Joint Resolution 1, such as 
the requirement that each House of Congress vote for a tax increase 
only by rollcall vote, when in fact we provide for a constitutional 
majority or a majority of the whole number of both Houses in order to 
have a tax increase. Such review does not mean that the courts will be 
able to interfere with the budgetary process but does ensure that the 
Constitution is enforced and respected. Let me explain this balance in 
greater detail.
  There are several reasons why courts will not run the budget process 
if Senate Joint Resolution 1 becomes law. In part, that is because 
several well-settled constitutional principles ensure courts do not 
make the budget decisions that we must make. In part, that is because 
section 6 of Senate Joint Resolution 1 gives Congress the power to 
decide how the balanced budget amendment should be enforced. Let us 
start with the Constitution.
  No. 1. Standing. The standing doctrine limits who may bring a lawsuit 
in Federal court. At bottom, to do so a party must show that it has 
suffered an ``injury in fact.'' That term is a technical one in the 
law. It does not allow clients to simply claim he dislikes a law or 
merely that the law is unconstitutional. No. A plaintiff must prove 
three elements in order to establish standing or to show, as I have 
mentioned before, that that plaintiff has suffered ``injury in fact.''
  First, a plaintiff must prove that he has suffered, or likely will 
suffer, a concrete injury, not just a conjured up one or abstract one, 
but a concrete injury.
  Second, the plaintiff must show that the defendant has caused the 
specific injury that he has shown. In this case it would be the 
Government.
  And third, the plaintiff must show that the remedy he seeks will 
redress the specific injury that he has shown.
  It would be very difficult for a plaintiff to establish or any 
plaintiff to establish all three elements in a lawsuit brought 
challenging an action under Senate Joint Resolution 1 unless there was 
an actual violation of Senate Joint Resolution 1 such as I have 
mentioned--a refusal to follow the supermajority vote rule or a refusal 
to follow the actual vote rule. Dissatisfaction with Congress' policy 
judgment is not ``injury in fact.'' A plaintiff, therefore, cannot 
establish the ability to sue if all that a plaintiff can show is that 
Congress has not adequately funded or has been unduly generous in 
funding a particular program.
  A plaintiff cannot establish standing based merely on the claim that 
an act of Congress is unconstitutional.
  A plaintiff also cannot establish standing based simply on his or her 
status as a taxpayer.
  The Supreme Court long ago held that a plaintiff cannot establish 
standing based merely on his status as a taxpayer. The Court so ruled 
in the 1923 case of Frothingham versus Mellon. In 1982, the Supreme 
Court reaffirmed its Frothingham decision in the case of Valley Forge 
Christian College versus Americans United for Separation of Church & 
State.
  That is not all. Even if a party can prove he has suffered a 
judicially recognizable ``injury in fact,'' in all but

[[Page S1719]]

the most extraordinary cases that party still would not be able to 
establish standing to sue. The reason why is that a plaintiff still 
could not make out the remaining requirements to establish standing. In 
particular, a party would not be able to establish either the 
``causation'' or ``redressability'' elements. In a case brought under 
the balanced budget amendment, a plaintiff would not be able to show 
that a specific law caused his injury or that a specific law should be 
held invalid as the unconstitutionally necessary and appropriate 
remedy. After all, Congress appropriates money for numerous programs, 
so it would be impossible for a plaintiff to show, for example, that he 
is injured by any one specific program.
  Now, that is No. 1.
  No. 2 is justiciability and the political question doctrine.
  There are two other doctrines that are relevant here: Justiciability 
and the political question doctrine.
  Justiciability focuses not on the person who wishes to bring a 
lawsuit, but on the issue or claim that the plaintiff wishes to 
litigate. Not every claim is one that Federal courts are going to 
adjudicate, and claims that cannot be adjudicated are deemed 
``nonjusticiable.''
  In many ways, the political question doctrine is just the flipside of 
the justiciability doctrine. The reason is that a political question is 
an issue that the Constitution has given to someone other than the 
courts to decide.
  The political question doctrine is relevant here because of the 
origination clause in article I, section 7, clause 1, of the 
Constitution that provides that ``All Bills for raising revenue shall 
originate in the House of Representatives; but the Senate may propose 
or concur with Amendments as on other Bills.'' Because that clause 
gives to the House of Representatives specifically the exclusive power 
to decide whether to raise taxes, the courts cannot do so, even in a 
case that the courts otherwise may adjudicate.
  Because this is an important issue, let me just address it in some 
detail.
  I will refer to the judicial taxation issue of Missouri versus 
Jenkins. Can Federal courts order a tax increase? Some opponents of the 
balanced budget amendment have argued that the courts will use their 
remedial power to order that Congress raise taxes. In making that 
argument, some balanced budget amendment opponents rely on the Supreme 
Court's decision in Missouri versus Jenkins, a decision decided in 
1990. There the Supreme Court held that a Federal district court has 
the remedial authority to order a local school district to raise taxes 
in order to ensure that a court-ordered school desegregation plan is 
carried into effect. The Jenkins case, however, supplies no authority 
for a Federal court to order Congress to raise taxes.
  The short and simple answer is that the text of the Constitution 
treats the Federal Government and the States differently in that 
regard. The Supreme Court did not discuss the effect of the origination 
clause of the Constitution in the Jenkins case, and that clause is 
critical to any discussion of this issue. The origination clause of the 
Constitution provides that ``All bills for raising revenue shall 
originate in the House of Representatives, but the Senate may propose 
or concur with amendments, as on other bills.'' That provision is not a 
mere matter of etiquette. No, the Supreme Court has said that it is a 
substantive, judicially enforceable constitutional requirement. And we, 
in the Senate, are very diligent in making sure that we do not tread on 
the House's authority to do that. All of us understand that, and we are 
very, very concerned about observing it.
  In United States versus Munoz-Flores, in 1990, the Supreme Court 
ruled that the courts can enforce the requirements of the origination 
clause. In that case, the Supreme Court rejected the argument that 
issues arising under the origination clause pose what are known as 
``political questions,'' questions that are for the political branches, 
not the courts, to resolve.
  The upshot of the Munoz-Flores decision is twofold. First, all bills 
for raising revenue must originate in the House of Representatives, or 
else they are unconstitutional. Second, and more importantly, the House 
of Representatives has plenary authority for the ``origination of 
revenue bills.'' No entity created by the Constitution other than the 
House of Representatives can originate a revenue bill or order that a 
revenue bill originate in the House. That includes the Federal courts. 
Since the Supreme Court is created by the Constitution and since the 
lower Federal courts are authorized by the Constitution, neither the 
Supreme Court nor any lower Federal court has the power to order the 
House to raise taxes or, in any other way, to order Federal taxes 
raised.
  The same point can be made in another way. Under the political 
question doctrine, the Federal courts lack authority to adjudicate 
certain types of issues. The classic formulation of a ``political 
question'' case is set forth in Baker versus Carr in 1962. That 
formulation makes clear that a political question is an issue in part 
whose resolution is textually committed to a branch other than the 
courts. The issue whether taxes should be raised easily satisfies that 
standard, because the origination clause expressly vests that authority 
in the House of Representatives.
  At the end of the day, the question whether taxes should be raised is 
quintessentially a political question, because the Constitution 
expressly vests in the House of Representatives the authority over that 
issue. Since the resolution and political question is beyond the demand 
of the courts, no Federal court could order Federal taxes to be raised 
as a remedy in any case. Accordingly, the Supreme Court's decision in 
the Jenkins case is irrelevant in this contest.
  The principle that Federal courts cannot order taxes to be raised is 
consistent with the Framers of our Constitution. Let me quote from 
``The Federalist Papers'' to make my point. James Madison wrote in 
Federalist No. 48: ``The legislative department alone has access to the 
pockets of the people.'' Similarly, Alexander Hamilton wrote the 
following about the courts in Federalist No. 78: ``The Judiciary has no 
influence over the sword or the purse, no direction either of the 
strength or of the wealth of the society, and can take no active 
resolution whatever.''
  Those are important Founding Fathers' definable terms with regard to 
this particular issue. It is very important that we make this case, 
because there is a lot of misunderstanding on this constitutional 
issue.
  Now, No. 3, an additional safeguard against judicial activism lies in 
article III of the Constitution and section 6 of Senate Joint 
Resolution 1. Both provisions give Congress power to limit the 
jurisdiction of the courts and the remedies courts may provide. The 
Supreme Court has made clear on numerous occasions under article III 
that Congress can limit the jurisdiction and remedial powers of the 
Federal court. Under section 6 of the balanced budget amendment, 
Congress may adopt statutory remedies and mechanisms for any purported 
budgetary shortfall such as sequestration, rescission, or the 
establishment of a contingency fund.
  Pursuant to section 6, it is clear that Congress, if it finds it 
necessary, could limit the type of remedies a court may grant or limit 
a court's jurisdiction to prevent judicial overreaching. If the 
balanced budget amendment becomes law, and I hope it does, Congress 
will have the authority of both article III and section 6 of the 
balanced budget amendment in order to protect against unwarranted 
judicial action. Those two provisions help to ensure that Congress will 
retain the ultimate power to decide how Senate Joint Resolution 1 will 
be enforced and thereby prevents courts, whether Federal or State, from 
expanding their power beyond the limited role Congress assigns. These 
are issues that are important and have to be covered in the context of 
this debate.
  Some opponents have argued it would force the President to impound 
funds; that is, to withhold from spending already appropriated funds 
such as Social Security payments in order to balance the books. 
President Clinton has made that argument on several occasions recently. 
He made it in his State of the Union Address and he made in his 
Saturday radio broadcast. Shame on him, having taught constitutional 
law. I shall now explain that argument is a canard.
  Constitutional analysis, like all legal analysis, begins with the 
text of the

[[Page S1720]]

relevant law. Here we need to look to the text of Senate Joint 
Resolution 1. That part of the analysis is conclusive. Nothing in the 
text of Senate Joint Resolution 1 authorizes, or otherwise allows, for 
the impoundment of any appropriated funds. On the contrary, it imposes 
a duty on the President, the duty to transmit to Congress a proposed 
budget for each fiscal year in which total outlays do not exceed total 
receipts. The text of Senate Joint Resolution 1 is clear: It does not 
authorize the President to impound appropriated funds of any type.
  We should now move on to the intent of the drafters of Senate Joint 
Resolution 1. Here, too, the answer is compelling. Neither I nor anyone 
else who supports Senate Joint Resolution 1 in this Chamber construes 
the balanced budget amendment as granting the President any authority 
to impound funds. That should end the debate.
  Now, under section 6 of Senate Joint Resolution 1, Congress must 
mandate exactly what enforcement mechanism it wants, whether it be 
sequestration, rescission, the establishment of a contingency, or rainy 
day fund, or some other mechanism. The President must enforce whatever 
mechanism the Congress enacts so Congress has the power to prevent the 
President from impounding funds.
  Indeed, even if Congress took no preventive action in that regard, 
the President could not impound funds if Senate Joint Resolution 1 
became law. The reason why is that the Line Item Veto Act prevents the 
President from doing so. Let me explain why in three steps.
  First, unlike Gaul, all Presidential powers can be divided into two 
parts. Expressed powers such as the pardon power, or implied powers, 
which consist of every constitutional power that the President can 
invoke, that is not expressly granted to him. That is the complete 
universe of Presidential powers according to the Constitution. So any 
power to impound funds must fit into one of these two categories.
  Second, the Constitution grants the President the power to issue a 
pardon, but it does not grant him the power to impound funds. As a 
result, if the President has any impoundment power, that power can only 
come from the President's general executive power in article II, 
section 1, or in his duty in article II, section 3, to ``take care that 
the laws be faithfully executed.''
  Third, how the President's impoundment power is classified is 
important, because Congress has greater authority to regulate the 
President's implied powers than his expressed powers. Congress has only 
very limited authority to regulate the President's exercise of an 
express power such as the pardon power of article I, section 2, clause 
1. But Congress has greater room to regulate the President's general 
executive power. In fact, Congress may do so as long as Congress does 
not prevent the President from discharging his assigned 
responsibilities.

  Indeed, Congress already has regulated in the area of the President's 
implied powers by giving the President a line-item veto power. We gave 
the President such authority last Congress. As a result, even if 
Congress does nothing more to enforce the balanced budget amendment, 
Congress already has limited the President's ability to impound funds. 
Why is that so? Well, it is because Congress told the President that 
the only budget authority that he can exercise is the line-item veto 
power. The Congress gave the President that power, rather than the 
impoundment power, only last year, and that judgment by the Congress is 
naturally entitled to respect. By so granting the line-item veto power, 
Congress impliedly denied to the President the power claimed by 
President Clinton to impound funds. The one power implies that the 
other does not exist.
  Now, these are important issues, and I have to say they are issues 
that literally, I think, must be stated against the amendment of my 
friend from Massachusetts in this particular case.
  Mr. President, let me just end where I began. There are only two ways 
to assert constitutional claims. One, you can sue the Government; two, 
you can raise constitutional claims as a defense. Simply put, the 
Kennedy amendment would not allow the latter. You could not raise a 
constitutional defense. Imagine, the Leviathan IRS can prosecute an 
innocent taxpayer and the taxpayer can't tell the court that the IRS is 
acting unconstitutionally. Can you imagine that? We just could not put 
that in the Constitution. It would be awful. The Kennedy amendment does 
exactly that. This, alone, is a good reason to table Senator Kennedy's 
amendment.
  Taxpayers have rights, too and, frankly, the current amendment, 
Senate Joint Resolution 1, the balanced budget amendment, protects 
those rights, whereby, the amendment of the distinguished Senator from 
Massachusetts does not.
  Now, my friend from Massachusetts may not worry so much about some of 
the excessive powers of the IRS. I suspect he doesn't have too many 
worries there, compared to people who are scraping for a living every 
day of their lives. Be that as it may, that doesn't mean we should 
justifiably put this into the Constitution by amending the balanced 
budget amendment with this amendment.
  Mr. President, how much time do I have remaining?
  The PRESIDING OFFICER. The Senator has 10 minutes 35 seconds.
  Mr. LEAHY. How much time do the proponents of the amendment have?
  The PRESIDING OFFICER. They have 8 seconds.
  Mr. HATCH. Would the Senator like me to yield him some time?
  Mr. LEAHY. Yes. Would the Senator yield me 2 minutes?
  Mr. HATCH. I will yield the distinguished Senator 5 minutes.
  Mr. LEAHY. I thank the Senator for his customary courtesy. Mr. 
President, someday somebody will sit down and write scholarly articles 
about this debate. I commend my friend from Utah, who has spent more 
time on the floor, I believe, than any other Senator. As the amendments 
have come from this side, it has been easier for me, as the Democratic 
floor manager, to leave and allow those proposing them to speak. He has 
stayed here throughout.
  Mr. President, even though my friend from Utah and I have been on 
opposite sides on this issue, there have been extremely important 
arguments. Senators can disagree over the question of the three-fifths 
vote requirement, whether that changes our normal idea of how a 
legislative body should work, and on the issues of Social Security. 
Those arguments have been important. Capital budgets have been 
important. No matter how the final vote comes out--and I suspect it 
will be voted down--I think that the American public has had the 
opportunity to hear some aspects of a constitutional amendment debated 
that, as I have gone back and read various debates, have not come out 
previously with the same strength and clarity.
  We have hundreds and hundreds and hundreds of constitutional 
amendments proposed every decade. We have, however, amended the 
Constitution only 17 times since the Bill of Rights. We are the most 
powerful democracy history has ever known--in fact, the most powerful 
country. To be able to be powerful and to be a democracy is an 
interesting juggling act, especially in a country as diverse and as 
large as the United States. I think one of the reasons is our 
Constitution. We have kept it simple, short, and very clear.
  The genius of the Founders of this country is in our Constitution, in 
our Bill of Rights. But also the genius of it is that Congress, for 
over 200 years, has, for the most part, resisted the temptation to 
amend the Constitution. Now, we can, with courage, the men and women in 
this body and the other body, bring down deficits and balance the 
budget--with courage. We do not need a constitutional amendment to do 
it. I urge that we reject this constitutional amendment, having 
listened and considered the arguments made by both sides. Then we must 
settle down and dedicate ourselves as Members of the Senate, not as 
Republicans or Democrats, but as Members of the Senate, to get rid of 
unnecessary expenditures, to make sure that we have a tax code that is 
fair to all, to bring down the deficits and allow the world's largest 
and strongest economy to operate as it should.
  Mr. President, I yield the floor.
  Mr. KENNEDY. I yield back whatever time I have, Mr. President.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah is recognized.
  Mr. HATCH. Mr. President, is this vote set for a time certain?

[[Page S1721]]

  The PRESIDING OFFICER. No, it is not.
  Mr. HATCH. I yield the balance of my time.
  I move to table the amendment, reluctantly, and I ask for the yeas 
and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
table the Kennedy amendment.
  The clerk will call the roll.
  The legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 61, nays 39, as follows:

                      [Rollcall Vote No. 20 Leg.]

                                YEAS--61

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bryan
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Collins
     Coverdell
     Craig
     D'Amato
     DeWine
     Domenici
     Enzi
     Faircloth
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Johnson
     Kempthorne
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Robb
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith, Bob
     Smith, Gordon H.
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner
     Wyden

                                NAYS--39

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Breaux
     Bumpers
     Byrd
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Ford
     Glenn
     Hollings
     Inouye
     Kennedy
     Kerrey
     Kerry
     Kohl
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Reed
     Reid
     Rockefeller
     Sarbanes
     Torricelli
     Wellstone
  So the motion to lay on the table the amendment (No. 10) was agreed 
to.
  Mr. HATCH. Mr. President, I move to reconsider the vote.
  Mr. KENNEDY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.
  The PRESIDING OFFICER. The majority leader.
  Mr. LEAHY. Mr. President, the Senate is not in order.
  The PRESIDING OFFICER. The Senate will be in order. The majority 
leader.
  Mr. LOTT. Mr. President, I ask unanimous consent that the second and 
third vote in this voting sequence be reduced to 10 minutes in length.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. LOTT. I urge our colleagues stay close to the floor because 
otherwise we will go into overtime. We had a couple of Senators, two or 
three this year, who have missed votes because they got away from the 
general area. We don't like that to happen. You have to stay close when 
we have a 10-minute count.
  I yield the floor.


                            Amendment No. 13

  The PRESIDING OFFICER. There is now 1 minute equally divided on the 
motion to table the Feingold amendment, numbered 13. Who yields time?
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER. There is 1 minute of debate on this motion. 
That minute cannot start until the Senate is in order.
  The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, my amendment simply reduces from 7 to 3 
the number of years the States have to ratify the balanced budget 
amendment.
  Mr. BYRD. Mr. President, the Senate is not in order.
  The PRESIDING OFFICER. The Senate is not in order. Will the Senators 
to my left remove their conversations from the floor. Will the Senators 
in the aisle take their conversations elsewhere.
  The Senator from Wisconsin will start his 30 seconds over.
  Mr. FEINGOLD. Mr. President, my amendment simply reduces from 7 to 3 
the number of years that States have to ratify the balanced budget 
amendment, thereby ensuring that it will take effect no later than the 
year 2002. Under the current version of the balanced budget amendment, 
the balancing requirement could be delayed in its effectiveness until 
the year 2006.
  I like to call this the fish-or-cut-bait amendment. This will ensure, 
whether we go with a balanced budget amendment or whether we simply do 
our job now as we should, that we get the job done by the year 2002.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, as my friend has said, I move to table this 
amendment. It unnecessarily reduces the time for ratification from 7 
years to 3 years, even though that 7 years has been the proper form of 
ratification for many amendments since 1921.
  However long it takes, we need the balanced budget amendment and 
there is no reason to reduce the time for the consideration by the 
States. So I hope our colleagues will table this amendment.
  The PRESIDING OFFICER. All time has expired. The question is on the 
motion to table the Feingold amendment, amendment No. 13.
  The yeas and nays have been ordered.
  The clerk will call the roll.
  The bill clerk called the roll.
  The PRESIDING OFFICER (Mr. Abraham). Are there any other Senators in 
the Chamber who desire to vote?
  The result was announced--yeas 69, nays 31, as follows:

                      [Rollcall Vote No. 21 Leg.]

                                YEAS--69

     Abraham
     Allard
     Ashcroft
     Baucus
     Bennett
     Biden
     Bond
     Breaux
     Brownback
     Bryan
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Collins
     Coverdell
     Craig
     D'Amato
     DeWine
     Domenici
     Dorgan
     Enzi
     Faircloth
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hollings
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kempthorne
     Kohl
     Kyl
     Landrieu
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Moseley-Braun
     Murkowski
     Nickles
     Reid
     Robb
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith, Bob
     Smith, Gordon H.
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner
     Wyden

                                NAYS--31

     Akaka
     Bingaman
     Boxer
     Bumpers
     Byrd
     Cleland
     Conrad
     Daschle
     Dodd
     Durbin
     Feingold
     Feinstein
     Ford
     Glenn
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moynihan
     Murray
     Reed
     Rockefeller
     Sarbanes
     Torricelli
     Wellstone
  The motion to lay on the table the amendment (No. 13) was agreed to.
  Mr. HATCH. Mr. President, I move to reconsider the vote by which the 
motion to table was agreed to.
  Mr. LEAHY. I move to lay that motion on the table.
  The motion to lay on the table was agreed to.


                            Amendment No. 14

  The PRESIDING OFFICER. There is now 1 minute equally divided on the 
motion to table the Feingold amendment No. 14.
  Mr. FEINGOLD addressed the Chair.
  The PRESIDING OFFICER. The Senator from Wisconsin.
  Mr. FEINGOLD. Mr. President, my amendment allows Congress to 
establish a surplus fund, a tool used in many States, in a far more 
responsible way to address emergencies than simply deficit spending or 
scrambling for offsets.
  My amendment allows Congress to build up and use the savings needed 
to fund the bulge in Social Security benefits that will occur when the 
baby boomers retire. Without this amendment, there would be a three-
fifths vote required in each House in order to access the Social 
Security fund. This is terribly important to current and future 
retirees, and my amendment does not require Congress to do the right 
thing, but at least allows Congress to live up to its commitment to the 
Social Security beneficiary.
  Mr. LEAHY. Mr. President, the Senate is not in order.
  The PRESIDING OFFICER. The Senator from Utah has the floor. The 
Senate will please come to order so he may be heard.
  Mr. HATCH. I thank both my colleagues. Mr. President, I believe we

[[Page S1722]]

should reject this amendment. Senate Joint Resolution 1 will not only 
help us to stop borrowing, but will help us to protect any savings we 
may build up. So, I do not believe it is necessary to make it easier to 
spend our hard-earned savings.
  Senate Joint Resolution 1 gives us appropriate flexibility with the 
appropriate protections.
  Mr. President, have we moved to table this amendment yet?
  The PRESIDING OFFICER. The motion has been made.
  Mr. HATCH. Mr. President, I yield back the balance of my time. Are 
the yeas and nays ordered?
  The PRESIDING OFFICER. The question occurs on agreeing to the motion 
to lay on the table the Feingold amendment No. 14. The yeas and nays 
have been ordered. The clerk will call the roll.
  The assistant legislative clerk called the roll.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 60, nays 40, as follows:

                      [Rollcall Vote No. 22 Leg.]

                                YEAS--60

     Abraham
     Allard
     Ashcroft
     Bennett
     Bond
     Brownback
     Bryan
     Burns
     Byrd
     Campbell
     Chafee
     Coats
     Cochran
     Collins
     Coverdell
     Craig
     D'Amato
     DeWine
     Domenici
     Enzi
     Faircloth
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Hatch
     Helms
     Hutchinson
     Hutchison
     Inhofe
     Jeffords
     Kempthorne
     Kyl
     Landrieu
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Murkowski
     Nickles
     Robb
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith, Bob
     Smith, Gordon
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner

                                NAYS--40

     Akaka
     Baucus
     Biden
     Bingaman
     Boxer
     Breaux
     Bumpers
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Ford
     Glenn
     Harkin
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Kohl
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moseley-Braun
     Moynihan
     Murray
     Reed
     Reid
     Rockefeller
     Sarbanes
     Torricelli
     Wellstone
     Wyden
  The motion to lay on the table the amendment (No. 14) was agreed to.


                            Motion to Refer

  The PRESIDING OFFICER. Under the previous order, the question is on 
agreeing to the motion made by the Senator from Arkansas, [Mr. Bumpers] 
to refer the resolution to the Senate Budget Committee with 
instructions. Debate on the motion is limited to 2 hours equally 
divided in the usual form.
  Mr. BUMPERS. Mr. President, the Constitution of the United States was 
adopted in 1789. It will be 208 years old this coming summer. In that 
period of time, there have been more than 11,000 efforts to amend the 
Constitution. And to the eternal credit of this body and the American 
people, only 18 times out of the 11,000 efforts have we amended the 
Constitution. Of those 11,000 efforts, I consider the amendment pending 
before this body to be the most unworkable, unenforceable, totally 
political amendment ever to be foisted off on an unsuspecting public.
  I have never heard as many questions answered with ``I don't know.'' 
Who will enforce this amendment? ``I don't know.'' What will be the 
courts' role, if any, in enforcing this amendment? ``I don't know.'' 
And I am speaking for the authors of this amendment when I say, ``I 
don't know,'' because they don't know. Who has standing to sue? ``I 
don't know.''
  Who has standing to challenge the assumptions that we make that we 
have a balanced budget? ``I don't know.'' It reminds me of Abbott and 
Costello and ``Who's on First?'' And if we have a crisis--a crisis that 
is not yet a military conflict, but may become one, such as previous to 
World War II, such as previous to Desert Storm, the constitutional 
amendment says you have to have 60 votes to unbalance the budget, even 
though you are headed, almost certainly, toward war with another 
nation.
  There are no provisions in here to take care of a national emergency 
that is not yet a military conflict or a declared war. It has been said 
time and time again, but it bears repeating, that we have had 5 
declared wars in the history of this country and about 200 military 
conflicts.
  Can the courts raise taxes? ``I don't know.'' Can the courts demand a 
cut in spending? ``I don't know.'' If a court orders Congress to raise 
taxes or cut spending and we don't do it and can't get the 60 votes to 
do it, what happens then? ``I don't know.'' Can the Chief Justice of 
the Supreme Court go to the White House and say to the President, ``Mr. 
President, you are charged with executing and enforcing the laws of 
this Nation. We have ordered Congress to do a number of things in order 
to come into compliance with this constitutional amendment to balance 
the budget, and they have refused to do it. Now, do your duty, Mr. 
President, send the troops over that Hill and hold bayonets to the 
backs of the Members until they do it.'' Now, that is farfetched, of 
course. But how many times have I heard the lamentation on this floor 
about the courts being intrusive and intervening where they have no 
right to intervene?
  Yet, Mr. President, this is a popular amendment. It is popular in my 
State and across the country. But it is not as popular as it was 2 
years ago. It has gone from about 74 percent to 57 percent approval. If 
you ask about Social Security it only has a 27 percent approval rating. 
I don't like casting unpopular votes. I have cast my share of them.
  I think one of the reasons the polls have consistently showed this to 
be popular is twofold. First, when you ask people whether you favor a 
constitutional amendment to balance the budget, all they hear is 
``balance the budget,'' and everybody is for that. Perhaps, there is 
another group who, like most of us, revere the majesty of the words in 
the Constitution and they think because of our reverence for the 
Constitution throughout history, if you just put it in the 
Constitution, it will be self-fulfilling. It would never occur to them 
how sloppily crafted this constitutional amendment is. It would never 
occur to them that it isn't even constitutional language. It would 
never occur to them that nobody can tell you how it's going to work.
  This amendment makes a mockery of that great, revered document. Now, 
some people who find this to be very popular and highly desirable may 
take umbrage at some of the things I say. But I have voted against it 
every time I ever had a chance. But do you know something else? I think 
one of the things that has stood me in pretty good stead with the 
people of Arkansas is that I have always trusted them. When I voted for 
the Panama Canal treaties--and I can tell you, nothing even comes close 
to that as far as unpopular votes are concerned--I survived it, and it 
was a correct vote. Very few people in this body would reverse that 
vote.
  Put your trust in the people, vote against this constitutional 
amendment, and don't have any fear of going home and talking sense to 
your people. They understand it. Not one person on that side of the 
aisle is going to vote against this nonsense--not one. How I miss the 
towering courage of Mark Hatfield in this body.
  Let me tell you what the Bumpers-Feingold amendment does, Mr. 
President. It is simple, ingenious in its simplicity, and it does the 
same thing the constitutional amendment would do but it takes Social 
Security off budget. We commit the constitutional amendment, Senate 
Joint Resolution 1, to the Budget Committee, with instructions to come 
back here with amendments to the Budget Act almost identical to this 
amendment.
  Did you know, Mr. President, that you can't raise taxes and you can't 
raise spending, and you can't appropriate money until the budget 
resolution has passed this body? If you want to change the Budget Act, 
if you amend the Budget Act, do you know what you have to do? You have 
to get 60 votes. We passed that with 51 votes. Strangely enough, you 
can pass something with 51 votes that later requires 61 votes to undo. 
What does our amendment do? As I say, it refers Senate Joint Resolution 
1 to the Budget Committee and instructs them to amend the Budget Act 
with language almost identical to the constitutional amendment 
requiring that outlays shall not exceed receipts by 2002.
  The constitutional amendment says you may or may not enforce the 
amendment. I just got through covering that. The Bumpers/Feingold

[[Page S1723]]

amendment would prohibit Congress from passing a budget resolution if 
it isn't balanced. As I just said, there is a prohibition on the 
passage of appropriations bills and tax bills without 60 votes.
  The constitutional amendment says there is no requirement for action 
until 2002 at the earliest. Do you know what that means? The drafters 
of this amendment put a provision in there saying 2002. So we have 5 
free years. We don't have to do anything for 5 years. Those are 
freebies. Most people here will have left or will have been reelected 
in 5 years.
  Our amendment says you have to do it now. Face the music now, not 5 
years from now. Come up with a budget that puts us on a glidepath to a 
balanced budget by the year 2002. If the States have not ratified this 
constitutional amendment by the year 2002, you have maybe 2 more free 
years where you don't have to do anything.
  Our amendment says start now and balance the budget by the year 2002.
  Do you know what else it does? It leaves our precious Constitution 
intact. The best part of this is that it does not trivialize the 
Constitution. The mandate for a balanced budget is just as tough under 
this amendment as it is in the constitutional amendment.
  Mr. President, in 1993 every single Republican voted against a 
proposal to reduce the deficit dramatically. The Omnibus Budget 
Reconciliation bill of 1993 required the Vice President's vote because 
the vote was tied 50-50. And among the 50 who opposed it, every 
Republican and about 6 Democrats. At the time we voted the deficit for 
1996 was projected to be $290 billion. As a result of that bill, and 
the economic growth that came from the confidence that gave, the people 
of this country knew that we were serious about deficit reduction, 
instead of a $290 billion deficit it was $107 billion.
  Mr. President, what is going on now? The President submitted a budget 
to us which I am not very fond of. I do not like to say that. He is a 
good friend and has been for 20 years. But I would not have come with a 
single tax cut, not one. And I would have submitted a budget that took 
the deficit from $107 billion in 1996 to well under $100 billion in 
1997 to show the American people that we were on a glidepath to a 
balanced budget and we were not going to back off.
  The President's tax cuts are not nearly, though, as big as the 
Republicans. The Republican tax proposal will cost $193 billion. Think 
of that, $193 billion over the next 5 years. And $508 billion over the 
next 10 years.
  Do you know where they get $100 billion to offset that? Medicare. Do 
you think that I am going to go home and tell the people in my State 
that I voted to cut Medicare $100 billion so we could have a $193 
billion tax cut the next 5 years? I would need a saliva test to do 
that. I am not going to do it, and I am not going to vote for these tax 
cuts. It is the height of irresponsibility to come in here and talk 
about cutting taxes $193 billion taking $100 billion out of the hides 
of people on Medicare. They say, ``Oh. We are not going to raise the 
Medicare premiums.'' No. But if you think you can cut Medicare $100 
billion and not cut services to the elderly, go talk to the HMO's and 
tell them how they are going to make up for the $100 billion we are 
going to cut. They are going to cut services. That is how they are 
going to do it, while we have a capital gains tax that cost $33 billion 
over the next 5 years and $130 billion over the next 10 years. Where 
does it go?--67 percent of it to the richest 1 percent of the people in 
this country. ``Oh, yes. We are going to cut taxes and balance the 
budget.''
  Mr. President, it is so cynical to get a serious, somber look on 
one's face and talk about deficits and propose cutting taxes by such 
massive amounts. We tried that in 1981.

  Mr. President, I don't know how many books there are on that stack 
down there. I have been looking at that for the last week ever since we 
started debating this constitutional amendment. Do you know what I 
would recommend? I wish the distinguished floor manager would take that 
stack of books and weigh them, put them on a scale and weigh them. And 
then take the national debt of $5.2 trillion, and divide those books up 
according to how much deficit by poundage came under Ronald Reagan and 
George Bush administrations. That would make an interesting thing for 
the film companies to film. I promise you that when you take Ronald 
Reagan's and George Bush's deficit over the 12-year period that they 
served this country and you are going to get about 1 foot for all the 
Democrats and about 6 feet just for that 12-year period. Do you know 
why? Because we had the massive tax cut in 1981. And I say once again. 
I was one of the 11 Senators that said, ``You pass that and you are 
going to create deficits big enough to choke a mule.'' Eleven out of 
100 stood up and called that 1981 bill what it was, the most 
irresponsible thing we have ever done in the history of the U.S. 
Senate. You talk about mortgaging the future of our children. That is 
when we went from $1 trillion in debt that we had accumulated over 200 
years to $4 trillion in 12 years; a little over $4 trillion. Think of 
it. Talk about irresponsibility.
  So I have spent an inordinate amount of my time since I have been in 
the Senate trying to do sensible things to balance the budget. I keep 
getting run over by a Mack truck called ``tax cuts'' and ``spending 
increases,'' particularly in defense. You just do not get a somber look 
on your face while you are voting for the biggest spending increases of 
the year called tax cuts.
  Just yesterday the Center for Budget Priorities came out and strongly 
recommended that the U.S. Congress forget tax cuts until we balance the 
budget. There is all the time in the world to cut taxes. Republicans 
say, ``Well, that is a liberal organization.'' Warren Rudman, with whom 
we all served 12 years in the U.S. Senate, is no liberal. He heads up 
the Concord Coalition, and the Concord Coalition jumped on that study 
yesterday like a chicken after a June bug, and said, ``We agree with 
every word of it.'' All you have to have is a little common sense to 
agree with it. You have to understand. You can't cut taxes and balance 
the budget.
  I have only voted for one constitutional amendment during my tenure 
in the Senate. And sometimes that is unpopular back home. But do you 
know something else? I talk about trusting the people. Do you know what 
the people want more than anything else today? Like Coca-Cola says, 
they want ``The real thing.'' They want to know how you really feel. 
Stand up for what you believe. Harry Truman told me one time, ``Just 
tell them the truth.'' So that is what I did.
  There is not even anything in the constitutional amendment that would 
allow Congress to raise spending with less than 60 votes for a 
depression. I am a Depression child, one of the few left in the Senate. 
I am telling you we did not have anything. We did not have paved 
streets; we did not have gas; we did not have electricity; we did not 
have health care. As I said, we had a two-holer out back when most 
people just had a one-holer. We did not have anything.
  As I have said before in this Chamber, I had pneumonia twice before I 
was 6 years old and all my parents could do was pray. Today that hardly 
requires much more than a visit to the doctor's office. And people tell 
me how they hate Government. They do not hate antibiotics. They do not 
hate measles and mumps serums and vaccines.
  They do not hate the fact that we live a lot longer than we used to 
because we pour a lot of money into NIH to do medical research for us. 
They do not hate being able to go on an airplane anyplace in the United 
States in 4 hours. They do not mind driving down a highway with six 
lanes on it going 60 to 80 miles an hour. They do not hate REA that 
gave electricity to rural America. They do not hate the Department of 
Agriculture for water and sewer systems for rural people. And I could 
stand here for another hour listing things Government has done, and not 
a person in this body would vote to undo a single one, although they 
were highly controversial at the time. Don't you remember how doctors 
hated Medicare? I can remember how Social Security was a socialist 
program and TVA was a Communist-inspired program.
  Under the constitutional amendment if we face another depression--it 
is certainly not out of the realm of reason--you have to get 60 votes 
here to start putting people back to work like Franklin Roosevelt did. 
All of the rich people in the country said Franklin Roosevelt was the 
worst thing that

[[Page S1724]]

ever happened in this country because he was borrowing money to help 
people. Do you know what he said? ``It is an unfortunate human failing 
that a full pocketbook often groans more loudly than an empty 
stomach.''
  Hurricane Hugo, where we spent $5 billion in South Carolina alone; 
the earthquake in California, for which the cost is incalculable and 
will continue to be, it would take 60 votes--41 obstreperous, really 
fundamentally conservative people could say, no, we are not going to 
unbalance the budget because there are a bunch of people living and 
dying who should not have been living over a fault anyway.
  Mr. President, this amendment has the potential for creating more 
mischief, more chaos in this country than anything we have ever 
considered. And even though it looks as though my side has the 
necessary 34 votes to keep this thing from going into our precious 
Constitution, I want to keep talking about it until the American people 
understand what is at stake.
  Mr. FEINGOLD. Mr. President, I rise to support the amendment offered 
by the senior Senator from Arkansas [Mr. Bumpers].
  Over the years, Senator Bumpers has been the Senate's most consistent 
voice for deficit reduction, and I am pleased to join him in this 
effort.
  As has been described, this amendment provides a statutory 
alternative to the constitutional approach, and as such, it has 
significant advantages.
  First and foremost, the Bumpers alternative would require immediate 
action.
  As I have noted on several occasions, the lengthy and uncertain 
ratification process allows Congress to hide behind years and years of 
delay.
  The only enforcement mechanism explicitly provided in the proposed 
constitutional amendment, the supermajority voting requirements, would 
not kick in for years.
  If Congress acted today to pass the proposed constitutional 
amendment, slow ratification could delay enforcement for another 9 
years--until 2006.
  Even without delays in ratification--even if the States ratified the 
amendment tomorrow--the constitutional amendment would have no effect 
until 2002 at the very earliest.
  By contrast, this alternative would require action this year.
  We would face the supermajority thresholds as part of this year's 
budget resolution, every year before 2002 and thereafter.
  This approach makes good sense.
  It removes the excuse for inaction by implementing budget discipline 
right away.
  It also does so without the troubling potential for unintended 
consequences inherent in the proposed constitutional amendment.
  There have been lengthy debates over the precise powers the proposed 
constitutional language confers on the President and the courts.
  To any disinterested observer, these issues are clearly open to 
different interpretation, and at the very least there is doubt as to 
the precise role the courts and the President will have in the brave 
new world of the balanced budget amendment.
  The statutory approach contains none of these risks.
  There is no unintended domino effect on the constitutional powers of 
the executive and judicial branches.
  In this regard, I strongly urge my colleagues who support a 
constitutional approach to consider the statutory alternative as a 
prudent first step, and I invite them to consider the Line-Item Veto 
Act that we passed last session as a model.
  Wisely, Congress opted to pursue a statutory approach instead of a 
constitutional path in that case.
  Although I would have opposed changing our Constitution to provide 
line-item veto authority, I supported the statutory Line-Item Veto Act 
crafted here by my good friend the Senator from Arizona and others.
  Opting for a statutory approach allows Congress to evaluate the new 
line-item veto authority carefully and to offer refinements when 
appropriate.
  In fact, I am pleased to have established a line-item veto watchdog 
group for just this purpose, and look forward to taking an active role 
in watching the development of this new statutory authority.
  I have also offered legislation to strengthen the Line-Item Veto Act 
with regard to wasteful special interest spending in the tax code.
  As we know, changes to our Constitution are not so easily refined.
  As the supporters of prohibition discovered, we can only react to the 
unintended consequences of a constitutional amendment by amending the 
Constitution again.
  Of course, supporters of the constitutional amendment are unwilling 
to admit there may be unintended consequences, especially with regard 
to the role of the courts and the President.
  They generally remain silent about those issues.
  While they are unwilling to confer specific enforcement powers 
explicitly to the executive or judicial branches, they also refuse to 
acknowledge the implied presence of enforcement powers in the proposed 
constitutional amendment.
  The amendment offered by my good friend from Arkansas adopts the same 
supermajority threshold approach used in the proposed constitutional 
amendment; it would take effect right away, not 9 years from now; and, 
it avoids the monumental uncertainties inherent in any constitutional 
change.
  I congratulate my good friend Senator Bumpers for offering this 
sensible alternative, and I urge my colleagues to support it.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. BUMPERS. I yield the floor and retain the remainder of my time.
  Mr. HATCH addressed the Chair.
  The PRESIDING OFFICER. The Senator from Utah.
  Mr. HATCH. Mr. President, I do not intend to take much time on this 
amendment. My colleague deserves certainly some response.
  This motion would alter the constitutional amendment and make it into 
a statute. I do not know if we need to say anything more because we are 
debating a constitutional amendment.
  The distinguished Senator from Arkansas is very ingenious. He is a 
great friend of mine; I appreciate him, but this motion very simply 
says, ``We do not need a constitutional amendment to balance the 
budget.''
  Now, I insist that we do when you look at these 28 years of 
unbalanced budgets. I hate it when people come in here and say, ``Let's 
just do it.'' I have heard that throughout this debate. ``Let's just do 
it''--the very same people who basically have never done it the whole 
time they have been in the Senate. That is not quite true because 
Senator Byrd was here, I suspect Senator Kennedy was here and maybe 
some others. Frankly, many of these people, I have never heard them 
ask: Where is the money coming from to pay for these spending programs?
  This motion says we can guarantee the fiscal discipline necessary to 
make balanced budgets the rule rather than the exception simply by 
enacting statutory changes to the Budget Act.
  As I said, I do not doubt that my colleague believes this and that he 
is sincere in offering this motion, but I must say that the proponents 
of this motion are dead wrong.
  The problem with this motion is that it puts us back to square one, 
forcing us to rely, as we have done time and time again, on statutory 
fixes to ensure fiscal responsibility. We have been down this road 
before, Mr. President, and the result is right here in front of me--28 
unbalanced budgets in a row; 58 of the last 66 are unbalanced budgets. 
Just think about it. In the last 66 years, 58 years we have had an 
unbalanced budget. In every one of those years we have had people say, 
``Let's just do it. Let's do it statutorily.''
  Well, the time has come for a solution strong enough that it cannot 
be evaded for short-term gain. We need a constitutional requirement to 
balance the budget.
  The sad history of legislative attempts to balance the budget shows 
the need for a constitutional amendment requiring a balanced budget. 
Since 1978, we have adopted, as I have said many times on this floor, 
no fewer than five major statutory balanced budget mechanisms such as 
the distinguished Senator is putting forth here sincerely, none of 
which have worked. We have 28 straight years of unbalanced budgets. We 
have had statutory regimes for each of those 28 years, none of which 
has worked. Since 1978, we have adopted those five statutory regimes 
which

[[Page S1725]]

promised faithfully to bring about balanced budgets. Every one of those 
failed and they failed miserably. Time after time, statutory fixes have 
met with increased deficits. Here it is. It does not take any brains, 
you do not have to be a rocket scientist to realize we do not have the 
guts to do what is right under the status quo, without the balanced 
budget amendment.
  Some people do not think we even have the guts to pass a balanced 
budget amendment. Well, in fact, nearly 85 percent of our current 
national debt has accumulated while Congress has operated within 
statutory budget frameworks designed to assure balanced budgets. The 
fact is we can never solve these problems through the enactment of mere 
statutes because statutes do not purport to correct the structural bias 
in favor of deficit spending. Statutes are only able to deal with 
temporary crises.
  Let's take a look at just a few of those statutes.
  In 1978, my first year here in the U.S. Senate, we passed the Revenue 
Act of 1978, P.L. 95-600. Section 3 of that act was straightforward. It 
stated: ``As a matter of national policy * * * the Federal budget 
should be balanced in fiscal years 1982 and 1983.'' But, if you look 
carefully, Mr. President, you will find the Federal budgets for each of 
those years in this stack here in front of me. In 1982 we ran a budget 
deficit of $128 billion. In 1983, our deficit was even higher at $208 
billion. This while it was our national policy--as declared in statute 
enacted by Congress and agreed to by the President--that our budget 
should be balanced in each of those years.
  Now that is not to say that Congress was not serious about reaching 
balance. I was here and I can tell you that we were. In fact, later in 
that same year, 1978, we adopted an amendment offered by our former 
colleague Harry Byrd, Jr., from Virginia, which stated that 
``[b]eginning with fiscal year 1981, the total budget outlays of the 
Federal Government shall not exceed its receipts.'' Two years later, in 
1980, we modified the Byrd amendment to state that ``[t]he Congress 
reaffirms its commitment that beginning with fiscal year 1981, the 
total outlays of the Federal Government shall not exceed its 
receipts.'' You will notice that in reaffirming our commitment to a 
balanced budget we changed the language from saying that Congress 
``should'' balance the budget to say that Congress ``shall'' balance 
the budget in 1981. And yet, Mr. President, the Federal budget for 1981 
is also one of the 28 unbalanced budgets in this stack here in front of 
me.
  This again, is not to say that Congress' commitment to balancing the 
budget was in any way diminished. In 1982 we revised the Byrd amendment 
once again to say that ``Congress reaffirms its commitment that budget 
outlays of the United States Government for a fiscal year may be not 
more than the receipts of the Government for that year.'' And yet, Mr. 
President, the budget for every year since that commitment was enacted 
into statute is in this stack of unbalanced budgets.
  Perhaps the most well-known statute designed to ensure a balanced 
Federal budget was the Gramm-Rudman-Hollings Act of 1985. Many of my 
colleagues remember this act well. It was touted as the deficit 
reduction package to end all deficit reduction packages. I supported 
that legislation, and I held out great hope that it would actually 
bring us into balance for what then would have been the first time in 
22 years.
  Much like the motion before us, the Gramm-Rudman-Hollings Act amended 
the Budget Act to provide for a point of order in the House or Senate 
against any budget resolution that exceeded certain deficit reduction 
targets. These declining deficit targets were to put us on the so-
called glidepath to balance in fiscal year 1991. A point of order under 
this legislation could only be waived by a supermajority vote. The 
singular exception was for circumstances in which a declaration of war 
was in effect.
  That's pretty tough language, Mr. President. And it was backed up by 
an automatic sequestration mechanism to ensure that the deficit 
reduction targets were met. That's why so many of my colleagues and I 
supported the Gramm-Rudman-Hollings Act. And yet that law, Mr. 
President--the deficit reduction package to end all deficit reduction 
packages--was slowly amended, circumvented, and the requirement for a 
balanced budget finally eliminated altogether just one year prior to 
the year in which we were to achieve balance under the original act. As 
a result, we have now amassed an additional $1.3 trillion in debt since 
1991.
  Mr. President, the Bumpers motion offers no better promises than the 
Gramm-Rudman-Hollings Act. Ultimately, as experience has shown, no 
Congress can bind a succeeding Congress by simple statute. Any balanced 
budget statute can be repealed, in whole or in part, by the simple 
expedient of adopting a new statute. Statutory limitations remain 
effective only as long as no majority coalition forms to overcome such 
statutory constraints.
  Now I know my colleagues have argued that things are different now 
than they were under Gramm-Rudman-Hollings. They cite too the fact that 
we have experienced four consecutive years of deficit reduction and 
that Congress and the President agree that the budget must be balanced. 
But the American people have plenty of reasons to be skeptical of this 
argument.
  Under the budget the President has proposed, we will have deficits 
larger than last year's budget deficit until the year 2000. Only in the 
last 2 years of his budget do we see the dramatic cuts necessary to 
bring us into balance. In other words, a full 75 percent of the deficit 
reduction planned in President Clinton's budget comes in the 2 years 
after he leaves office. Is this the sort of glide path to a balanced 
budget that is envisioned by section 1 of the Bumpers motion?
  This to me, Mr. President, is not the sort of commitment to balancing 
the budget that would support the argument that we can rely on yet 
another statutory fix to bring about long-term fiscal restraint. The 
reliability of this commitment is only undercut by the Bumpers 
amendment, which would remove Social Security receipts and outlays from 
the balanced budget calculation--something the President himself has 
said cannot be done while still bringing the budget into balance in the 
year 2002, as is promised by the Bumpers amendment. The truth is that 
the Bumpers amendment promises only more of the same--year after year 
of machinations and evasion of responsibility to those of the future 
generations who must pay for our lack of budgetary discipline.
  Now, Mr. President, I do not wish to lay blame on Democrats or 
Republicans for the fiscal indiscretions of the past. The simple fact 
is that the problems in our current budget are not the fault of any 
political party, they are inherent in our political system. As our late 
colleague Paul Tsongas once said:

       [I]f you ask yourself why are these deficits always voted, 
     the answer is very simple; that is, there are a lot of votes 
     in deficit spending. . . . []The balanced-budget amendment is 
     simply a recognition of that human behavior. It is not so 
     much an indictment of the people who are here now as it is 
     simply a reflection this is how people act in a democracy. 
     They act to maximize their votes, and in this particular 
     case, the addiction to deficit spending takes them in a 
     particular direction.''

  The fact is that we can never solve these problems through the 
enactment of mere statutes because statutes do not purport to correct 
this structural bias in favor of deficit spending. Statutes are only 
intended to deal with a temporary crisis. The deficit spending bias is 
not a problem that has lasted, nor will last, only a short number of 
years. It is a long-term problem that is deeply ingrained in our budget 
process. It demands a permanent constitutional solution.
  Senate Joint Resolution 1 is such a solution. It is a balanced, 
carefully crafted measure that has been developed in a bicameral, 
bipartisan fashion. I hope my colleagues will join with me in opposing 
the maintenance of the status quo and that they will vote to table the 
Bumpers motion.
  Having said that, I do get just a little uptight about people coming 
in here and blaming everything on Reagan and Bush. Yesterday, I had a 
debate with the distinguished Senator from West Virginia who tried to 
blame all of these deficits on Ronald Reagan and George Bush because 
during their tenure the deficits went up, and blame them on the tax 
cuts.

[[Page S1726]]

  I put into the Record yesterday evidence that those tax cuts, those 
marginal tax rate reductions actually resulted in a 40-percent, 
approximately 40-percent, increase in revenues because they stimulated 
the economy for 8 years, they contributed more jobs, more opportunity; 
21 million jobs were created. They stimulated opportunity. They did a 
lot of things to get this country going again. But let me point out 
that during that whole time Reagan was in the Presidency, the Democrats 
controlled the House of Representatives. Tip O'Neil was in charge 
during the first part of that. And they kept spending.
  Now, I am not just blaming Democrats. There were liberal Republicans 
who helped them to do that as well. And there is no question that the 
increase in military spending did put pressures on the budget and that 
President Reagan was the one who did that. There is no question about 
that.

  But, on the other hand, if you think of the trillions of dollars that 
were saved because the Iron Curtain now has fallen and freedom has been 
restored to the East bloc countries, it probably was worth it.
  The blame should be on everybody. I don't think people should demagog 
this issue and stand up and say, ``It is Reagan and Bush who did this 
thing to us and created this $5.3 trillion debt.'' No, it is a 
continual, 58-out-of-66-year unbalanced spending process, during which 
time the Congress was controlled by liberals--let me put it that way, 
rather than Democrats and Republicans--liberals who spent us into 
bankruptcy. And during all of the Reagan years, the liberals did the 
same thing.
  Had we not continued to spend, those marginal tax cuts would have 
brought us out of the difficulties, except with the possible exception, 
at least as I view it, of the increases in the defense budget.
  The PRESIDING OFFICER. The Senator from Arkansas.
  Mr. BUMPERS. Mr. President, I will be very brief. A lot of people 
want to catch airplanes, and I do not want to discommode anybody. But 
let me close by saying the Senator from Utah has suggested that the 
constitutional amendment would be so much more effective than my 
amendment.
  But I ask the Senator from Utah, what provision in the constitutional 
amendment, Senate Joint Resolution 1, is more effective than mine? We 
cannot ignore the Budget Act; 60 votes is 60 votes, whether you are 
trying to get 60 votes to comply with the constitutional amendment or 
whether you are trying to get 60 votes to comply with the Budget Act, 
as my amendment will provide.
  Let me tell you what one of the differences is. Under my amendment, 
if you cannot get 60 votes, you shut the Government down and you wait 
for the people here to come to their senses and get the Government 
open, as we did the year before last. Under the constitutional 
amendment, if you cannot get the 60 votes, you shut the Government down 
and go down to the Supreme Court and wait for them to act. Not only is 
that time-consuming and outrageous, but you are also cutting the three 
branches of the Government of the United States to two.
  One of the reasons we have this big deficit, which everybody 
laments--let me say it once more--is because we talk one way and act 
another. We talk about how we are going to get the budget balanced, and 
how terrible it is that we cannot get our spending under control, and 
then we turn around and cut taxes by massive amounts. It is the worst 
form of snake oil I have ever seen in my life, yet we keep buying into 
it. We bought into it in 1981, and now we are getting ready to buy into 
it again.
  All I am saying is, under my amendment, you have everything you have 
under the constitutional amendment. It is just as tough to comply 
with--really, tougher--and we exclude Social Security.
  I guess everything is said that needs to be said, so I will close and 
let the Senator from Utah move to table my amendment.
  Mr. HATCH. Mr. President, how much time remains?
  The PRESIDING OFFICER (Mr. Bennett). The Senator from Utah has 47 
minutes, and the Senator from Arkansas has 29 minutes.
  Mr. HATCH. I am prepared to yield back my time.
  Mr. BUMPERS. I yield back the remainder of my time.
  The PRESIDING OFFICER. All time has been yielded back.
  Mr. HATCH. Mr. President, I move to table and ask for the yeas and 
nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There is a sufficient second.
  The yeas and nays were ordered.
  The PRESIDING OFFICER. The question is on agreeing to the motion to 
lay on the table the motion to refer. The yeas and nays have been 
ordered. The clerk will call the roll.
  The legislative clerk called the roll.
  Mr. NICKLES. I announce that the Senator from Oklahoma [Mr. Inhofe] 
is necessarily absent.
  The PRESIDING OFFICER. Are there any other Senators in the Chamber 
desiring to vote?
  The result was announced--yeas 65, nays 34, as follows:

                      [Rollcall Vote No. 23 Leg.]

                                YEAS--65

     Abraham
     Allard
     Ashcroft
     Baucus
     Bennett
     Biden
     Bingaman
     Bond
     Brownback
     Bryan
     Burns
     Campbell
     Chafee
     Coats
     Cochran
     Collins
     Coverdell
     Craig
     D'Amato
     DeWine
     Domenici
     Enzi
     Faircloth
     Frist
     Gorton
     Graham
     Gramm
     Grams
     Grassley
     Gregg
     Hagel
     Harkin
     Hatch
     Helms
     Hutchinson
     Hutchison
     Jeffords
     Kempthorne
     Kohl
     Kyl
     Lott
     Lugar
     Mack
     McCain
     McConnell
     Moseley-Braun
     Murkowski
     Nickles
     Reid
     Robb
     Roberts
     Roth
     Santorum
     Sessions
     Shelby
     Smith, Bob
     Smith, Gordon H.
     Snowe
     Specter
     Stevens
     Thomas
     Thompson
     Thurmond
     Warner
     Wyden

                                NAYS--34

     Akaka
     Boxer
     Breaux
     Bumpers
     Byrd
     Cleland
     Conrad
     Daschle
     Dodd
     Dorgan
     Durbin
     Feingold
     Feinstein
     Ford
     Glenn
     Hollings
     Inouye
     Johnson
     Kennedy
     Kerrey
     Kerry
     Landrieu
     Lautenberg
     Leahy
     Levin
     Lieberman
     Mikulski
     Moynihan
     Murray
     Reed
     Rockefeller
     Sarbanes
     Torricelli
     Wellstone

                             NOT VOTING--1

       
     Inhofe
       
  The motion to lay on the table the motion to refer was agreed to.


                   Amendments Nos. 9 And 18 Withdrawn

  Mr. BROWNBACK. Mr. President, I ask unanimous consent amendments No. 
9 and No. 18 be withdrawn.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The PRESIDING OFFICER. The majority leader.

                          ____________________