January 7, 2010
Getting Control of Congress, PermanentlyBy John Armor
We are now experiencing a disconnect between national political leaders and the citizenry. Public support for congressional actions is low and falling, as are the president's numbers. Public opposition to the health care bill, now passed in different forms in the House and Senate, is at 59% and rising.
In various ways, the people are strongly indicating that they think Congress is out of control and needs adult supervision. Particularly galling is the revelation that Senate leaders bought critical votes on the health care bill by dumping hundreds of millions in special benefits into states whose senators had withheld support -- until they got their bribe.
In answer to the public outcry, Senate Majority Leader Harry Reid shrugs and says that any senator who "does not seek as much as he can" for his own state isn't doing his job.
Perhaps it's time to look to the states, where more tools are available to rein in profligate legislators. If similar constitutional restraints were imposed on Congress, many if not all of the recent abuses would be prevented permanently.
With the way Congress is hemorrhaging the nation's money, we can't afford to wait until November to do something. Besides, whatever changes in policy occur in the midterm elections of 2010 may be temporary. As the Supreme Court has repeatedly written, each Congress is free to make its own decisions; no Congress can bind the actions of future Congresses. The only reforms that can permanently increase popular control of Congress are constitutional, not legislative.
Three controls that the people have placed in state constitutions do not exist at the federal level. These are balanced budget amendments, line item vetoes, and single-subject requirements.
Balanced budget requirements (BBA) exist in some form in all fifty states. There must be an escape clause in these requirements or the restriction would prevent all curative steps in an economic emergency. The late economist Milton Friedman suggested that a two-thirds vote of both Houses of Congress should be required to override the BBA proposed for the federal Constitution [i].
If the federal government had already had such a BBA, none of the current or proposed emergency spending bills would have passed in their present form, with uncontrolled and unverifiable spending and trillion-dollar deficits for the next decade at least.
The second constitutional control common in the states but absent at the federal level is the line item veto. This exists in 43 states in various forms. When they work, they prevent legislatures from passing kitchen-sink legislation. The temptation to stuff bills is common at all levels of government. Some legislators try to attach special and unpopular spending provisions to a popular and must-pass bill to force a governor to accept the bad with the good. With a line-item veto, a governor can strike individual items from any bill.
If every president had the same line-item power that most governors have, each president would be responsible for any earmarks that remained in any bill [ii]. President Obama has decried special-interest earmarks, but he has not vetoed any bill over them. Presidents Reagan, Bush, and Clinton all sought line-item veto power. Congress passed a bill to create that power for President Clinton. Promptly after he used it, the Supreme Court struck it down, saying it must be established by amending the Constitution.
The third constitutional control common among the states but absent at the federal level is the single-subject requirement on all bills. This exists in 41 states in various forms. It's another protection against kitchen-sink legislation when the issue is policy, not money.
Under single-subject, legislators cannot attach provisions on such hot-button issues as taxes, regulation, abortion, gun control, or welfare to highly favored bills on entirely different subjects. At the federal level, disfavored clauses are often added to bills with the intention of forcing adoption of the disfavored clause, or to create a poison pill to kill the overall bill.
All three of these provisions work more effectively if there is a tightly written constitutional control and a tendency of the highest courts in that jurisdiction to enforce them.
The remaining question: What are the chances that Congress, which has created the current problems, will pass by the required two-thirds vote three amendments which would curtail their current behavior? Given that the major legislation passed by Congress in 2009 has obtained a majority in both Houses, it would seem improbable to obtain a turnaround in both of them to two-thirds for reform in a single election.
On their face, all Amendments to the U.S. Constitution were proposed by a two-thirds vote of both Houses, and then ratified by three-fourths of the states, as stated in Article V. But that Article has an exception.
The exception was put in by the Framers in Philadelphia to deal with the possibility that the people might want a change that Congress opposed.
The 17th Amendment, which made U.S. senators elected by the people rather than chosen by the state legislatures, provides the critical example. In 1900, the Progressive Party controlled several states and was powerful nationally. One of the Progressives' tenets was that the U.S. Senate should be popularly elected. Before 1912, that idea succeeded repeatedly -- but only in the House, where the 17th Amendment passed ten times by a two-thirds vote. Ten times, however, the Senate defeated the Amendment without even a hearing [iii].
At the same time, the states began passing Calls for a Constitutional Convention, which is the alternate way to propose Amendments if Congress will not act. Article V provides that once two-thirds of the states demand a Convention, Congress must call one. Thirty-two states demanded that Congress either pass the 17th Amendment or call a Convention.
At that point, the Senate relented. It recognized that a Convention could write an Amendment that would put all non-elected senators out in the street and replace them immediately with elected ones. The sitting senators saved what they could from the impending 17th Amendment. They inserted the final clause, which says: "This amendment shall not be so construed as to affect the election or term of any senator chosen before it becomes valid as part of the Constitution."
The election route and the constitutional route are complementary, not alternative. Anyone who wants to reestablish control over the Congress should get active now for the midterm elections of 2010.
But they should also see to it that these three changes to the U.S. Constitution be submitted for consideration in all state legislatures, just like the call for the 17th Amendment was. Enough activity at the state level could send a powerful message to Washington.
John Armor practiced in the U.S. Supreme Court for 33 years. He also wrote a book on term limits and worked for decades on the Balanced Budget Amendment. This article was written for the American Civil Rights Union (www.theacru.org). Contact the author at John_Armor@aya.yale.edu.
[i] Author's note: I spent 25 years working on the BBA proposal, which included testifying before committees of 26 state legislatures as an expert witness on BBA and on Article V of the Constitution. I also spent a day two decades ago with Dr. Freidman discussing the precise language of the BBA.
[ii] See the testimony of Stephen Moore, Director of Fiscal Policy Studies for the CATO Institute, before the Subcommittee on the Constitution of the Senate Committee on the Judiciary on 24 January, 1995 at http://www.cato.org/testimony/ct-moor2.html.
[iii] For a detailed discussion of the Convention Call route to amending the Constitution, including the 17th Amendment, see the Heritage Foundation's review of Amending the Constitution by the Convention Method, an officially-adopted policy of the American Bar Association, at http://www.heritage.org/Research/PoliticalPhilosophy/bg637.cfm.