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When the Framers adopted Montesquieu’s separation of powers framework for the 1787 Constitution, the point was to divide political power between Congress and the President, not between opposing political parties.   From the beginning, however, there has been no escape from party conflict, whether the Federalist v. Anti-Federalist debates of the 18th Century or today’s divide between Democrats and Republicans.

Not surprisingly, a frequent lament among voters and commentators alike is the inability of our political leaders to cross party lines and reach compromise solutions.  But as Senator Robert Byrd (D-WV) often reminded us, this is precisely the type of political courage that supporters of the Balanced Budget Amendment wrongly believe we can legislate into the Constitution.

 If we truly want Congress to be less partisan and more willing to compromise, then we need to invoke the old saw that the enemy of my enemy is my friend.  For Congress the “enemy” should not be the other party, but rather a constitutional penalty that applies to the institution as a whole, so that both parties are affected equally and all Members of Congress are at similar risk.  If Democrats and Republicans both view such a penalty as the “enemy,” then each side has an incentive to become the other’s “friend.”

Bipartisanship of course is not a solution in itself.  For decades Congress and the President have frequently joined in a bipartisan effort to increase the scope, size, and cost of government.  Instead, what is needed is a bipartisan (or non-partisan) constitutional penalty for deficit spending.  What would such constitutional penalty look like?

The answer lies in recognizing what Members of Congress value most, regardless of party affiliation, namely: (1) political power; (2) tenure in office; and, to a lesser extent, (3) the compensation they receive as government employees.  A loss in any of these areas can be viewed as a penalty, so here are three concrete solutions, all of which admittedly require a constitutional amendment:

First : a novel type of item veto that shifts the power of the purse from Congress to the President, but only until Congress balances the budget – call it a Balanced Budget Veto Amendment;

Second: a requirement that Members of Congress leave office if they serve for five consecutive fiscal years of deficit spending – call it a Balanced Budget Rotation Amendment;

Third: an automatic reduction in the compensation of Congress by the same percentage by which each fiscal year is financed by deficits – call it a Balanced Budget Compensation Amendment.

A detailed discussion of these three proposals will have to await future blog postings.  For the present, I would just note that each of these penalties have the following elements in common:  (1) they would give all Members the same institutional stake in balancing the budget; (2) they would be nonpartisan in not favoring one political party over the other; (3) they would threaten sanctions severe enough (collectively, if not individually) to overcome each Member’s fear of political retribution from balancing the budget; and (4) they would be self-executing in that judicial enforcement would be rare and annual budgets would not become embroiled in perpetual litigation.

An institution-wide penalty is appropriate because no single Member of Congress can be held responsible for failing to balance the federal budget.  Moreover, Congress is a political institution so the penalty for failing to balance the budget should be political, not judicial, in nature.  Elections are political of course, but the very nature of elections must favor one party over the other and thus cannot provide the institution-wide pressure needed to overcome the pervasive political gridlock in Washington.

When it comes to deficit spending or the national debt, if you want political courage, then you must first legislate political fear.  Any serious effort to rein in the growth of government, much less impose actual cuts in spending (as opposed to phantom cuts in the growth of spending) must threaten a loss of political power or loss of political office or reduced compensation for all Members of Congress across both parties and the entire ideological spectrum.

Each of the three proposals described above legislates a different type of political fear, and they can stand alone as separate amendments.  Or they can be joined into a single omnibus amendment – let’s call this one the Fiscal Enforcement And Responsibility Amendment, or FEAR Amendment for short.

Copyright © 2011 Anthony W. Hawks. All rights reserved.

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