Advocates of the balanced budget amendment, which the Senate debates this week, say we need a constitutional amendment to stop us before we spend again. But if the framers of the Constitution were around today, they would try to stop us before we amend again.
For the Constitution-our fundamental charter of government-was not meant to be amended lightly. As Chief Justice John Marshall once wrote, it was “intended to endure for ages to come.” It has been amended only 17 times in the two centuries since we adopted the Bill of Rights. None of those 17 amendments ever tinkered with our basic system of majority rule.
Indeed, most of the last 17 amendments were designed to improve majority rule-for example, by guaranteeing African-Americans, women and poor and young Americans the right to vote.
The proposed balanced budget amendment, by contrast, would be the first in our history to jettison majority rule in favor of rule by the few. Contrary to popular perception, the amendment would not prohibit deficit spending outright; rather, it would permit spending to exceed tax revenues, provided that three-fifths of the membership of each house approves. In short, if the balanced budget amendment passed, 40 percent of the Congress could hold the legislative agenda hostage.
Such a minority veto would be contrary to the framers’ plan. The first article of the Constitution gave the power of the purse to Congress to be wielded by simple majorities. The framers considered the idea of rule by super-majorities, but rejected it as anti-democratic. As James Madison put it, if “more than a majority” were required for ordinary legislative decisions, then “the fundamental principle of free government would be reversed.”
Defenders of the amendment like to point out that the Constitution already requires some super-majority votes. For example, it take two-thirds of the Senate to convict on impeachment or approve treaties, and two-thirds of each house to override a presidential veto. But the impeachment, treaty and veto override provisions are meant to prevent tyranny by protecting the executive branch from Congress. The three-fifths rule of the balanced budget amendment, by contrast, is designed to protect Congress from itself.
Far from maintaining our system of checks and balances, the proposed amendment would undermine it. It would invite presidential intrusion into the work of taxing and spending that the Constitution assigned to the legislative branch. What would happen, for example, if a sudden downturn in the economy led tax revenues to fall short of outlays Congress had already appropriated? A president could well read the amendment to require him to impound some funds-to order an embargo on Social Security payments, for example. Against the backdrop of such power, the president’s leverage for arm-twisting in Congress would be dangerously enhanced.
And if controversies arose over whether the budget was balanced enough, the federal courts and ultimately the Supreme Court would be drawn into the fray. Lawsuits could arise over whether budgetary estimates were accurate or whether expenditures should be enjoined.
Amendment supporters play down this threat of litigation, suggesting that courts will find ways to sit on their hands rather than assume the role of budget umpire. But the Supreme Court has suggested otherwise. In Flast vs. Cohen (1968), the court noted that taxpayers have a right to go to court to enforce any “specific constitutional limitation upon the exercise by Congress of the taxing and spending power conferred by Article I, Section 8.” The balanced budget amendment would certainly fit that bill.
While the amendment would invite presidential and judicial encroachment upon Congress from without, it would promote factional capture from within. Madison described super-majority rules as a recipe for the minority of the Congress to “extort unreasonable indulgences from the majority.”
This is just what happens now in the Senate when a filibuster occurs, for Senate rules require a three-fifths vote for cloture. The balanced budget amendment would impose such now-rare spectacles upon everyday business in both houses.
All this tinkering with the framers’ handiwork might make sense if it were necessary or likely to work, but it is neither. It is unnecessary because Congress and the president already have every tool they need to balance the budget if that is the soundest course. Amendment backers say there’s a “structural bias”: It’s too easy to impose debt on future generations who do not vote. But if there is any group that can be said to have virtual representation in the Congress, it is surely our own children and grandchildren. Ordinary democratic politics is fully capable of making sure that their voices are heard.
Finally, the amendment won’t work. Congress can manipulate the “estimates” on which a “balanced” budget is based. It can shift taxing and spending “off budget” to quasi-public entities and unfunded mandates to the states. And it can impose unsubsidized regulatory burdens on private entities, a form of invisible “taxation” to which the amendment would not apply. In short, the amendment is less likely to eliminate deficit spending than to drive it underground. It is hardly worth dismantling two centuries of constitutional history to achieve such meager results.
