[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
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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
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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
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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
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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.
____________________