12.13.11

Statement Of Senator Patrick Leahy On A Proposed Balanced Budget Amendment To The Constitution Of The United States

All Senators swear an oath to “support and defend the Constitution of the United States.”  That is our duty and responsibility.  The pending amendments to the Constitution threaten the constitutional principles that have sustained our democracy for more than 200 years. 

In addressing the Nation’s debt and deficit, what is lacking are not phrases in our Constitution.  What is lacking is the seriousness within today’s Congress to act, and the willingness in Congress to cooperate in forgoing solutions that meet the real needs of our country and its people.  These are human failures, not the failure of our constitutional framework.  Nor are these failures insoluble or inherent.  We balanced the budget and even created budget surpluses less than two decades ago.

Now we are being asked to put the problem once again under the pillow for another day – this radical partisan proposal would be out of place in our national charter.

Never in our history have we amended the Constitution – the work of our Founders – to impose budgetary restrictions or to require supermajorities for passing legislation.  Yet now, every member on the other side of the aisle has joined to put forth a radical proposal to burden our Constitution with both of these kinds of strictures.  This Hatch-McConnell proposal is different in kind than any other amendment to the Constitution, and is not consistent with the design of our founding document.

It is a bad idea to write fiscal policy into our Nation’s most fundamental charter, and it is simply unnecessary.  We do not need a balanced budget amendment to balance the budget.  A vote for this amendment will do nothing to get our fiscal house in order.  Congress can work to continue our economic recovery.  We can pass the appropriate legislation that leads to a balanced Federal budget, just as we did in the early 1990s – having achieved that without the help of a single Republican vote.  With a growing economy, we were able to create significant budget surpluses and to pay down the debt, until those surpluses were squandered.  We have done it before and we can do it again.  We need only to work together to make the tough decisions – not to kick the can down the road and vote to bind future Congresses to a fiscal proposal that is fundamentally unsound and the consequences of which are not understood.

The Republican proposal in the Senate is significantly more radical than the version the House of Representatives rejected by a bipartisan vote last month.  In fact, the Hatch-McConnell constitutional amendment is the most extreme of all the pending proposals.  This proposal, by its terms, will neither balance the budget, nor pay down the Nation’s debt.  Instead, at a time of partisan brinksmanship that has led to the first-ever downgrading of our country’s credit rating this summer and when ideological gridlock is the Republicans’ operating principle, it would require supermajorities to pass legislation for the first time in our Nation’s history.  It would require a supermajority to raise the debt ceiling in times of economic crisis.  Did we learn nothing from the disaster we went through this past summer?  I hope and expect the Senate will reject this proposal.

Two weeks ago, the Judiciary Committee’s Subcommittee on the Constitution held a hearing to examine the Hatch-McConnell proposal.  I commend Senator Durbin, the chairman of the subcommittee, for doing so.  All of the witnesses, including those who were invited by the measure’s cosponsors, presented thoughtful critiques of this extreme proposal and voiced serious concerns about its wording.  Even Republican cosponsors discussed possible changes to the language in order to better achieve their goals.  This is not the proposal that Senator Hatch previously favored.  This is one of more than two dozen pending versions.  In fact, we were not told which of the many versions of the proposal would be pending until yesterday.  This proposal has not been considered by the Constitution Subcommittee or the Judiciary Committee.  The House of Representatives has already voted down a less extreme version of this proposal.  Yet here is the Senate of the United States, being forced to vote on some proposal for a constitutional amendment without doing the hard work that should accompany any amendment to Americans’ fundamental charter.  This is no way for the Senate to proceed on a proposed constitutional amendment. 

The Hatch-McConnell proposal contains many problematic provisions and it leaves many significant questions unanswered.  Section 10 of this proposal relies on estimates for outlays and receipts.  We know that economists’ estimates and recommendations do not always agree.  So what do these proposed constitutional provisions really mean?  We know that estimates are not static but ever changing.  What if during the course of a fiscal year, there was a natural disaster, a terrorist attack, or a shift in the economy?  What then?  What if estimates were recalculated or revised, as employment statistics are every month?  Would that make every penny expended by the Government over a revised estimate unconstitutional?  Would that mean we could not help disaster victims or could not respond to a terrorist attack?

Another provision would limit total outlays for each fiscal year to 18 percent—not 16, not 20, not 17.9—of the previous year’s Gross Domestic Product (GDP).  But who is to decide what the “GDP” was for a particular time period?  What is to be included and what is not?  How often do those estimates and artificial constructs get revised?  Since when do economic surveys and shifting estimates belong in the Constitution?  And what policy decision justifies the constitutional permanence of the number 18?  I note that not even the budget proposed this year by Representative Ryan and the House Republicans, with all its draconian cuts and the end of Medicare as we know it, would satisfy this arbitrary 18 percent of GDP limit.  None of the budgets proposed by or passed under President Reagan, not one, would have satisfied this proposal.  At the end of the Bush administration we survived the worst economic downturn since the Great Depression and are now in economic recovery.  This is not the time to enact such a measure which would take us in the wrong direction.  We cannot “cut” our way to a balanced budget without imposing great suffering.  It would tank the economy rather than aid our continuing recovery. 

Besides its arbitrary nature, limiting outlays to 18 percent of the previous year’s GDP would leave Congress unable to respond swiftly and effectively to economic downturns and natural disasters.  The Hatch-McConnell proposal would require a two-thirds supermajority to spend in excess of 18 percent of the previous year’s GDP for a specific purpose.  Filibusters and requirements for supermajorities have become routine to the detriment of the American people.  They have stymied congressional action on behalf of the American people.  This proposal would give a minority in Congress even more power to hold the country and our economy hostage.   Have we not seen what that can mean?  Have the lessons of the last year been lost on the Senate?

The Hatch-McConnell proposal would make permanent bad policy choices.  Section 4 is a transparent attempt to enshrine tax breaks for millionaires and wealthy corporations by requiring a two-thirds supermajority to impose any new tax or even to close existing tax loopholes.  We need a balanced approach to fix the deficit problem. And the wealthiest among us are those who least need a heavy hand on the scales in favor of their interests.     

Fighting two unfunded wars and insisting simultaneously on the Bush tax cuts for the wealthy are prime examples of how to squander surpluses and run up deficits and the national debt.  Working with President Clinton, Democrats in Congress voted for a balanced budget.  We did so without a single Republican vote.  Our strong economy in the Clinton years led to budget surpluses.  If we are serious about reducing deficits and paying down our debt, we need to get to work improving our economy, getting Americans back to work, and continuing to recover from the worst economic conditions since the Great Depression.

One of the most glaring problems with the Republican proposal is that it provides no clear enforcement mechanism or standards for enforcement.  Section 8 of the Hatch-McConnell proposal expressly prohibits courts from increasing revenues to enforce the amendment, but remains silent on judicial enforcement of the amendment by cutting spending.  This proposal assumes that our Federal courts are equipped to enforce this amendment but have its supporters really thought about what it means to relinquish Congress’s constitutional power of the purse to an unelected judiciary with no budget experience?  Do they really want judges deciding fiscal policy?  Do they want judges deciding whether to cut Social Security or raise taxes?  

I recently asked Justice Scalia at a hearing before the Senate Judiciary Committee whether the Federal judiciary was equipped to handle such a task.  He laughed – probably because he recognized the absurdity of having to take on such a task – and indicated that budget issues and determining the allocation of resources is not the judiciary’s proper role.  Of course, he is right, and the proponents of this effort to transform courts into budget-cutting bodies are wrong.  The Republican proposal does not even make clear who, if anyone, has standing to bring such challenges in court.  None of these questions has been adequately debated or considered.  Such a drastic change to the time-honored role of the judicial branch of our government should not be written into our Constitution presumptuously.  

In addition to all of these concerns, the American people need to understand what the real-world effects of such an amendment would be on their own daily lives.  The Senate Judiciary Committee received alarming testimony from the President-Elect of AARP warning of the damaging effects such a constitutional amendment would have on Social Security, Medicare, and Medicaid.  He testified that if such a constitutional provision were in place today, the average Social Security benefit would be cut by 27 percent.  Balancing the budget on the backs of hard-working, low-income and elderly Americans by drastically cutting their safety net is not the answer to our economic challenges. 

The notion of amending the Constitution to require a balanced budget is not new.  The Senate rejected balanced budget amendments in 1995, 1996, and 1997.  We proved after the Reagan and Bush administrations had tripled the national debt that we could through hard work and legislation, balance the budget.  That is what Congress did in the late 1990s.  We helped create hundreds of millions of dollars in surpluses that were paying down the national debt.  Those surpluses were squandered by tax cuts for the wealthy and two unfunded wars.  That is the cause of our budget imbalance.

We should not for the first time in American history amend the Constitution to set fiscal policy.  It is a bad idea.  It is even more irresponsible to consider doing so when we do not yet understand the full weight of the consequences and who will bear that burden. 

I have never seen the solemn duty of protecting the Constitution treated in such a cavalier manner as it is today.  I wish those who so often say they revere the Constitution would show it the respect it deserves rather than treating it like a blog entry.  Let us not be so vain as to think we know better than our Founders and better than the constitutional framework that has preserved our liberties for more than 200 years.  Partisan efforts like this may make good bumper-sticker politics, but they are bad solutions.

Our constitutional principles have served the test of time and deserve protection.  I stand with the Constitution today and I will oppose this ill-conceived proposal to amend it.

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