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WHAT A REAL SWORD OF DAMOCLES WOULD LOOK LIKE.

Why did the deficit reduction super-committee fail?

For the same reason that the “Byrd Amendments” mandating a balanced budget failed in 1978, 1980, and 1982.

For the same reason that the Gramm-Rudman-Hollings law  and its sequestration procedures failed in 1985, and 1987.

For the same reason that the various “Budget Enforcement Acts” with their deficit reduction targets failed in 1990, 1993, and 1997.

For the same reason that the perennial PAYGO rules have always failed.

For the same reason that the Public Debt Limit has always failed.

The reason: none of these statutory measures have ever imposed (or could impose) an enforceable penalty of sufficient severity to compel Congress to balance the budget.

The media metaphor for such a penalty is the “Sword of Damocles,” which for the super-committee was supposed to be the automatic sequestration cuts that were part of last summer’s debt ceiling deal (Public Law 112-25).  To the surprise of no one, these sequestration cuts are either a charade if Congress rescinds them before they take effect on January 2, 2013 or a joke even if President Obama follows through on his pledge to veto any rescission bills.

Still, the Sword of Damocles metaphor is apt when you consider what Damocles did after seeing the sword hanging above.   According to legend, Damocles (think Congress) was a pandering courtier in the court of Dionysius II of Syracuse, who praised Dionysius for his great wealth and good fortune.  Dionysius thereupon offered the throne to Damocles, who gladly accepted only to discover the sword pointed directly overhead and hanging by a single hair of horse tail.  Damocles quickly decided that Dionysius was not so fortunate after all and hopped off the throne.

As told by Cicero, the moral is that no one can be happy living in constant fear, which Dionysius took to be the lot of any great leader.  Congress no doubt concurs since it hops off the throne any time the sword (think actual budget cuts) is about to fall.  For Dionysius, however, the fear was constant and could only be escaped by abdicating the throne, which he refused to do, just as Congress refuses to restrain its spending, much less abdicate its power of the purse.  Congress though does not need to relinquish its spending power because the threat posed by the statutory “swords” listed above can always be removed by simply passing an overriding statute.

The only way Congress can be forced to live in constant fear of losing its spending power is by constitutional amendment, but any such amendment must contain a penalty – a true Sword of Damocles – that is genuinely feared.  This is why the Balanced Budget Amendment that just failed in the House deserved to fail: it contained no penalty that would actually restrain the fiscal profligacy of Congress.

Such penalties do exist and here are three possibilities: (1) a Balanced Budget Veto Amendment that gives item veto power to the President whenever a fiscal year ends with a deficit; (2) a Balanced Budget Rotation Amendment that prohibits Members of Congress from running for re-election after five straight years of deficits; and (3) a Balanced Budget Pay-Cut Amendment that reduces Congressional pay by the same percentage of federal borrowing in the preceding fiscal year.

A Balanced Budget Veto is the most apt penalty (since it would also hold the President accountable for failing to use the item veto), and it would probably be sufficient as a stand-alone penalty given Congress’s severe jealousy over the power of the purse.  Of course you will never see Congress adopt any of these measures precisely because Congress will never impose a genuine penalty on itself.

Under Article V of the Constitution, however, the states can impose this type of Sword of Damocles penalty on their own.  With the collapse of the super-committee (and a budget deal unlikely to occur in a presidential election year), the door is now wide open for the states to succeed where our national leaders have failed.

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

4 Responses to “WHAT A REAL SWORD OF DAMOCLES WOULD LOOK LIKE.”

  1. November 23, 2011 at 1:28 pm, Mark Guyer said:

    Thank you for your insightful ideas. Giving the President the authority and responsibility to balance the budget is the strongest of the three enforcement alternatives you suggest. However, that gives the President even more power than he has now. One of the little discussed structural problems with our federal government is that the President has vastly too much power now, in fact more power than most dictators. A nation of 300 million persons should not be so dependent in so many areas of life on the whims of what one man wants to do with our country. The states have no problem with constitutionally requiring a balanced budget and getting that result. If an enforcement provision is really needed, adding in language to require across the board cuts would be a better and more objective way to enforce budget balance. However, the court system can mandate that the Constitution be complied with and do so successfully, as shown by past precedent. What court orders are the Congress and the President ignoring?

    Reply

    • November 23, 2011 at 3:44 pm, awhawks said:

      Mark:

      I appreciate the comments. Several thoughts:

      1. The concern about increasing presidential power is a legitimate one, which is why I oppose a traditional line item veto that the President could use to increase spending (e.g. to compel votes for the Iraq War or ObamaCare). Such a strategy would not work with a Balanced Budget Veto since Congress would not support presidential initiatives that make it less likely to achieve a balanced budget and thereby rescind the veto power.

      2. States are forced to balance their budgets because they need favorable bond ratings to borrow money. Many states have some sort of balance budget requirement, but the real enforcement mechanism is the fear of losing their favorable bond ratings, although some states (e.g. Virginia) have a long tradition of balanced budgets, which creates a political culture that also constrains spending.

      3. Court mandates only work if you can get over the hurdles posed by the standing, justiciability, and political question doctrines, which I seriously doubt. One of the attractions of my three alternatives is that they would all be self-executing, requiring court intervention only if, say, there was an dispute over whether a fiscal year actually ended in a deficit, which is highly unlikely.

      Andy

      Anthony W. (Andy) Hawks Hawks Law Office 494 Bethany Loop Bethany Beach, DE 19930 (O) 302-539-9090 (C) 571-271-1324 hawks@rcn.com

      Reply

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