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Amend America is the national clearinghouse for news and information on efforts to call an Article V convention through an online community of political leaders, legal scholars, and involved citizens who support constitutional reform outside the halls of Congress.

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  • “ … we must realize the Theories of the Wisest Writers …. this could be done only by Conventions of Representatives chosen by the people in the several Colonies, in the most exact proportions.”

    —John Adams (June 2, 1775)

  • “… whenever any Form of Government becomes destructive of these Ends [Life, Liberty, and the Pursuit of Happiness], it is the Right of the People to alter or to abolish it, and to institute new Government ....”

    — Declaration of Independence (July 4, 1776)

  • “Let a Convention then, be tried. If it succeeds in the first instance, it can be repeated as other defects force themselves on the public attention, and as the public mind becomes prepared for further remedies.”

    — James Madison (March 19, 1786)

  • “The plan now to be formed will certainly be defective …. Amendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and Constitutional way than to trust to chance and violence. It would be improper to require the consent of the Natl. Legislature, because they may abuse their power, and refuse their consent on that very account.”

    — George Mason (June 11, 1787)

  • “Col. Mason thought the [proposed] plan of amending the Constitution exceptionable & dangerous. As the proposing of amendments … depend[s], in the first immediately, and in the second, ultimately, on Congress, no amendments of the proper kind would ever be obtained by the people, if the Government should ever become oppressive, as he verily believed would be the case.”

    — George Mason (September 15, 1787)

  • “Mr. Madison did not see why Congress would not be as much bound to propose amendments applied for by two thirds of the States as to call a Convention on like application. ”

    — James Madison (September 15, 1787)

  • “The … best supporters the Constitution … do not contend that it is free from imperfections; but they found them unavoidable … if evil is likely to arise … the remedy must come hereafter; … I think the People … can … decide … on the amendments which are necessary …. I do not think we are more inspired, have more wisdom, or possess more virtue, than those who will come after us.”

    — George Washington (November 10, 1787)

  • “[Article V], moreover, equally enables the general and State governments to originate the amendment of errors, as they may be pointed out by the experience on one side, or on the other.”

    — James Madison (January 1788)

  • “The words of … [Article V] are peremptory. The Congress ‘shall call a convention.’ Nothing in this particular is left to the discretion of that body…. We may safely rely on the disposition of the State legislatures to erect barriers against the encroachments of the national authority.”

    — Alexander Hamilton (August 1788)

  • “It will not have escaped you, however, that the question concerning a General Convention, does not depend on the discretion of Congress. If two-thirds of the States make application, Congress cannot refuse to call one ....”

    — James Madison (January 13, 1789)

  • “Our new Constitution is now established, and has an appearance that promises permanency; but in this world nothing can be said to be certain, except death and taxes.”

    — Benjamin Franklin (November 13, 1789)

  • “The legislatures of the States have a right … to originate amendments to the Constitution, by a concurrence of two thirds of the whole number, in applications to Congress for the purpose.”

    — James Madison (December 1799)

  • “Lastly, the fifth article provides the mode by which future amendments to the Constitution may be proposed, discussed, and carried into effect … the … second [mode] … secures to the states an influence in case Congress should neglect to recommend such amendments, …. [but it] will probably never be resorted to, unless the federal government should betray symptoms of corruption ….”

    — St. George Tucker (May 1803)

  • “But the Chief Justice [John Marshall] says, ‘there must be an ultimate arbiter somewhere.’ True, there must; but does that prove it is either party? The ultimate arbiter [of the Constitution] is the people of the Union, assembled by their deputies in convention, at the call of Congress, or of two-thirds of the States….

    — Thomas Jefferson (June 12, 1823)

  • “That in case of an experienced inadequacy of … [the Constitution’s] provisions, an ulterior resort is provided in amendments attainable by an intervention of the States, which may better adapt the Constitution for the purposes of its creation.”

    — James Madison (May 1830)

  • “Should the provisions of the Constitution … be found not to secure the Govt. & rights of the States agst. usurpations & abuses on the part of the U.S., the final resort within the purview of the Constnt. lies in an amendment of the Constn. according to a process applicable by the States.”

    — James Madison (August 28, 1830)

  • While I make no recommendation of amendments, I fully recognize the rightful authority of the people over the whole subject, to be exercised in either of the modes prescribed in the [Constitution] itself; …. I will venture to add that to me the convention mode seems preferable ….

    — Abraham Lincoln (March 4, 1861)

  • “The people of the State of New York … do enact as follows: SECTION 1. The Legislature of the State of New York applies to the Congress of the United States of America to call a national constitutional convention to repeal Article XVIII of the Constitution of the United States of America, and no other article of the Constitution….”

    — Franklin D. Roosevelt (1931)

  • “Through their state legislatures and without regard to the federal government, the people can demand and participate in constitutional conventions in which they can, through their own action, adopt such amendments as will reverse any trends they see as fatal to true representative government.”

    — Dwight D. Eisenhower (May 26, 1963)

  • “I will also support the resolution now pending before the legislature calling upon Congress to propose a constitutional amendment to balance the federal budget or to convene a constitutional convention to achieve this goal.”

    — Gov. Edmund (Jerry) Brown, Jr. (January 8, 1979)

  • “Instead of displaying utter confusion and an inability to do anything about the [convention] calls from the states, Congress could simply decide that they constitute a call for a constitutional convention on the broad issue of fiscal responsibility and control at the federal level ….”

    — Antonin Scalia (May 23, 1979)

  • “Those who wring their hands over the prospects of a[n Article V] convention run the risk of exposing their elitism, implying that the average citizen cannot be trusted.”

    — Attorney General Griffin Bell (April 14, 1984)

  • “It has now become obvious that … Congress will not act to impose a limit on its own spending. I therefore believe that further action by the States … in petitioning Congress to call for a constitutional convention for the sole purpose of writing a balanced budget amendment will go far towards convincing Congress ….”

    — Ronald Reagan (March 16, 1987)

  • “This reluctance by Congress has inspired a number of Americans to try [for]… a constitutional convention … [to] propose a balanced budget amendment, and then send it on to the state legislatures for approval…. If the Congress continues to balk … I think the drive for a constitutional convention will pick up steam.”

    — Ronald Reagan (May 23, 1987)

  • “I will again ask Congress to submit a balanced budget amendment to the States. And if the Congress will not act, I’ll have no choice but to take my case directly to the States [through an Article V convention].”

    — Ronald Reagan (July 3, 1987)

  • “If the Congress continues to oppose the wishes of the people by avoiding a vote on our balanced budget amendment, the call for a constitutional convention is only two states away from approval, and, one way or another, the will of the people always prevails.”

    — Ronald Reagan (August 12, 1987)

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Making Amends

an Article V blog by Andy Hawks

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.

THE BALANCED BUDGET AMENDMENT, REPUBLICAN TAXES, AND FUNDING SMALLER GOVERNMENT

November 18, 2011

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The House of Representatives began floor debate yesterday on the Balanced Budget Amendment (BBA), which ended in an unsurprising 261-165 defeat  this afternoon.  (290 votes were needed for the two-thirds vote required by Article V.)

As predicted here, the Republican leadership chose the path of least resistance by backing the most traditional BBA proposal H.J. Res. 2.  Where I guessed wrong was in thinking that a vote would be allowed on an alternative proposal that contained a spending cap like H.J. Res. 1, which was the actual version reported by the House Judiciary Committee this summer (H. Rep. 112-117) and which was amended to include an 18% of GDP spending limit.

With two exceptions (one ministerial, one substantive), H.J. Res. 2 is identical to the versions that were voted on and nearly passed in 1994 (S.J. Res. 41), 1995 (H.J. Res. 1), and 1997 (S.J. Res. 1).  The ministerial difference in H.J. Res. 2 was simply the change in the effective date (following ratification) that must be updated with each new Congress.  The substantive change involved a new limitation to the military conflict waiver provision in Section 5 and reflects the only attempt by the House leadership to correct a flaw in H.J. Res. 2.  (NOTE:  To avoid confusion, the reader should be aware that the version of H.J. Res. 2 found on the THOMAS and GPO websites has not been updated to include these two changes.  To read the correct version, you have to go to the Congressional Record here.)

Whereas the original H.J. Res. 2 allowed an absolute majority of each chamber to waive the BBA outright “for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security,” the revised version requires the waiver to “identify and be limited to the specific excess or increase for that fiscal year made necessary by the identified military conflict.” This change is important because it makes clear that an enactment like the post-9/11 “Authorization for Use of Military Force” Resolution (Public Law 107-40) would be insufficient to trigger the waiver in Section 5.

Despite this one improvement, multiple technical and substantive flaws remain in H.J. Res. 2, not least of which is that it neither requires nor enforces a balanced federal budget.  I have previously discussed most of these flaws here, but today I want to focus on the tax provision found in Section 4 of H.J. Res. 2, which reads as follows: “No bill to increase revenue shall become law unless approved by a majority of the whole number of each House by a rollcall vote.”

Similar tax provisions began showing up in BBA proposals during the 100th Congress (1987-1988), but it become a permanent part of the bipartisan consensus BBA in 1994 with S.J. Res. 41.  The reason is understandable: if deficit spending requires a super-majority vote, and increasing revenue does not, then there is a built-in bias towards increasing revenue, which Congress would doubtless attempt to achieve through higher taxes.

Tougher BBA proposals corrected this imbalance with a three-fifths or two-thirds voting requirement to increase revenue, but H.J. Res. 2 does not.  Rather it requires an absolute majority of each chamber, which is better than a simple majority of those present and voting, but still leaves an imbalance in place since three-fifths remains the super-majority requirement for deficit spending.

Procedural issues aside, the real objection to Section 4 is the meaning of “No bill to increase revenue,” which is not addressed at all by the supporters of H.J. Res. 2.  Presumably this phrase was intended to mean actual tax legislation, but virtually any bill aimed at economic growth could be construed as a bill to increase revenue, and the last thing we need is a super-majority requirement to enact pro-growth legislation.

Let’s assume though that it only applies to bills that are specifically designed to raise tax revenue in some direct fashion.  This would surely encompass the creation of new types of taxes, as well as increases in current tax rates, but it would also apply to any repeal of a special interest tax loophole.  This in turn means that efforts to increase economic growth through simplification of the tax code could be stymied by Section 4, unless the reform included the repeal of other taxes and/or an accompanying decrease in the tax rates.

But now the constitutional issue of whether a super-majority vote is required for a particular bill turns on the arcane issue of how the proposed legislation is “scored” and the accuracy of the estimates of the tax revenue being raised.  Such estimates are notoriously inaccurate and malleable, particularly when you are trying to determine projected revenues over a long time period.  Moreover, how do you answer questions like: (1) Whose estimates would be used?  (2) Could the majority in each House pick and choose among alternative estimates, and if so, what if different parties controlled each House?  (3) How many years into the future must be estimated when permanent legislation is being proposed? (4) How do you factor in the possibility that current tax legislation might expire in the meantime?

The House leadership could and should have fixed this provision by changing the phrase “No bill to increase revenue …” to “No bill to create any new type of tax or increase rates in any current tax …”, but it failed to so and now the issue is unlikely to be raised again in Congress for years to come.

Still, these issues are all very timely, not just because the BBA came up for a House vote today, but also because of the gridlock now being experienced by the congressional “super-committee” tasked with proposing at least $1.2 trillion in deficit reduction by Thanksgiving.  Just last week, one of the “super-committee” members, Senator Pat Toomey (R-PA) made a serious tax reform proposal designed to raise $340 billion in revenue above the current baseline over ten years, while cutting the top personal income tax rate from 35% to 28% and achieving tax simplification that would also certainly promote economic growth.  (Senate Toomey after all is the former president of the Club for Growth).

As I read H.J. Res. 2, the Toomey proposal would clearly fall within the scope of Section 4, which of course would make it harder to pass.  True, an “absolute majority” is only slightly more stringent that a simple majority, but keep in mind that anti-tax conservatives like Grover Norquist have been pushing for a two-thirds voting threshold to raise revenue, which would certainly doom the Toomey proposal even if it began to attract bipartisan support.

The irony here is that, while the Toomey proposal has been attacked by 72 House dissident members, it has also been endorsed by Speaker Boehner, who of course is promoting H.J. Res. 2 – apparently without realizing that his version of the BBA would make it more difficult to pass anything resembling the Toomey proposal.  To make matters worse, some variation of the Toomey proposal is needed to achieve another top priority sought by Republicans (including the 72 dissidents), namely an extension of the Bush tax cuts.

Opponents of higher taxes can reasonably differ over whether the Toomey proposal is, on balance, a good deal for fiscal conservatives, but it should at least be on the table for discussion.  This may not be possible if there is widespread fear among Republicans that Toomey has violated  the American for Tax Reform (ATR) “Taxpayer Protection Pledge”.  This raises the enduring issue of what, if any, trade-off is compelling enough to justify breaking the Tax Pledge.  Senator Toomey obviously believes that $340 billion in higher tax revenue (over 10 years no less) is a favorable exchange for cutting tax rates, closing anti-growth loopholes, and eliminating the Bush tax cuts as the Democrats’ strongest bargaining chip.

Indeed, it is the pending expiration of the Bush tax cuts that is making enforcement of the Tax Pledge problematic for ATR.  The first part of the pledge requires opposition to “any and all efforts to increase the marginal income tax rates for individuals and/or businesses.” But no “efforts” by Democrats are needed to make the Bush tax cuts expire, so that there is nothing to “oppose” under the Tax Pledge.  To be sure, a refusal to support legislation that extends the Bush tax cuts would violate the purpose and spirit of the Tax Pledge, but strictly speaking it would not violate its literal language.

The inability of the Tax Pledge to accommodate the Toomey proposal and clearly address the expiration of temporary tax cuts may account for the growing split and confusion among Republicans over tax policy in the continuing battle over federal deficits.  The Tax Pledge has been very successful in creating an anti-tax brand for the GOP, but Republicans should now be asking themselves whether the Tax Pledge is an obstacle to advocating smaller government itself.

In this regard, I am sympathetic to the Toomey proposal, but would go one step further.  The Toomey proposal apparently remains fluid and is not tied to a specific amount of spending cuts, but suppose it was contingent on, say, on $340 billion in spending cuts from the current FY 2011 baseline of $3.8 trillion.  This would not only reduce the deficit, but actually result in a smaller government.  It is one thing to oppose tax hikes aimed at financing bigger government, but quite another to oppose tax increases that fund smaller government.  The ATR Tax Pledge quite properly prohibits the former, but if it also prohibits the latter, then it is counter-productive and needs to be revised, as I previously suggested here.

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Question?