The Tax and Spend Spectator

A Balanced Budget Consensus

By From the December 2011 - January 2012 issue

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It is central to a free society that every man owns his own soul. Thus the First Amendment guarantees freedom of religion.

A free society must not live in fear of the state: hence the Second Amendment.

We do not trust democracy or the separation of powers to protect freedom of religion or of the press, or the right to keep and bear arms. In those cases, the Constitution was specifically amended to highlight the danger and protect us.

Then where in the U.S. Constitution, designed primarily to limit the power and scope of the federal government, is there a limit to the size and cost of the state?

Did everyone in Philadelphia just assume this was understood? Sort of the way they forgot to mention property rights--because everyone assumed they were assumed?

For at least 30 years now, conservatives have been working to enact a Balanced Budget Amendment (BBA) to the federal Constitution to prohibit or limit Congress's ability to borrow money.

In 1975, the National Taxpayers Union, founded by James Dale Davidson and William Bonner, despaired of two-thirds of the 435 congressmen and two-thirds of the 100 senators actually passing a BBA and sending it out to be ratified by the required three-fourths of the states. Instead, NTU began a drive to exercise the portion of Article V of the Constitution that allows two-thirds (34) of the state legislatures to call for a constitutional convention to propose an amendment that would then become part of the Constitution only when ratified by three-quarters (38) of the states. Such a maneuver has never been successful in the history of the U.S.

NTU reasoned that the problem was Congress's spending, so the states would use the Constitution's second method of amending itself to bypass Congress entirely.

It was a close run thing. Thirty-two states did eventually enact convention calls for the sole purpose of proposing a balanced budget amendment. Understandably, labor unions poured millions into the effort to derail the convention calls. Criticism also sprang from the right: Phyllis Schlafly and the John Birch Society feared a "runaway" convention that would rewrite the entire Constitution. The effort stalled, and over time many states rescinded their convention calls.

Then, in the 1980s, liberals hijacked the language of balanced budgets. Throughout the '50s, '60s, and '70s it had been conservatives who denounced "deficit spending." They had criticized government spending and viewed "deficit" as an intensifier. When Reagan's tax reductions were enacted, however, the left borrowed the language of the right and cloaked their support for restoring higher tax rates as "deficit reduction." Note the clever removal of the word "spending." And opposition to "deficits" became the bumper sticker argument against tax cuts and for tax hikes. "Deficit Hawks" has ever since been the preferred label for tax increasers, just as abortion advocates prefer to be called "pro-choice."

That soured the ardor for the balanced budget amendment, and it receded into the background until the 1994 Republican landslide put the BBA front and center. The promise to vote for a BBA was the first of 10 promises in the "Contract with America."

But the freshmen who swarmed into Washington well remembered the Democrats' misuse of the "deficit" issue to oppose tax reductions and push tax increases. They met with newly elected Speaker Gingrich and adamantly refused to vote for the BBA unless it included a two-thirds vote requirement in order to pass a tax increase bill. They felt that a simple or weak balanced budget amendment would strengthen the hand of those who would use deficit spending as a weapon to demand not spending restraint, but tax hikes.

In a 30-minute meeting, a deal was cut. The freshmen would hold their noses and vote for the weak balanced budget amendment without any limits on taxes--knowing that the Senate would never pass the amendment anyway--in return for the Speaker's commitment that every year the House would vote on a stand-alone constitutional amendment to require a two-thirds vote to raise taxes.

The deal was kept. The House voted 300–132 to send the BBA to the states for ratification. The Senate failed to pass it by just one vote. The House held votes on an amendment requiring a two-thirds supermajority vote to enact any tax hike on or about April 15 throughout Gingrich's speakership, and that commitment was also kept by his successor, Denny Hastert. That amendment garnered a majority of the House each year--but never two-thirds.

THE BBA was pushed to the fore once again this summer by the 87 freshmen Republican congressmen, many of whom demanded that a vote on a BBA be part of the debt-ceiling deal with President Obama. That vote for a BBA must take place before January 1, 2012.

But that agreement did not stipulate which BBA would be voted on in the House or Senate. If one body passes an amendment with the requisite two-thirds, then the other body must vote on the same wording. Otherwise, the House might vote on one amendment and the Senate a different one.

There is a growing agreement among conservatives that the best vehicle for both chambers is what is known as the "Senate consensus amendment" because every single Republican senator, from Maine to Alaska, has cosponsored this amendment. Now, anything with the words "Senate" and "consensus" in the title usually shouts, "lowest common denominator" and "not worth the candle." But the earth's axis has shifted. The Senate Republican "consensus" is the toughest of all the amendments being considered. It requires a three-fifths vote to borrow money, a two-thirds vote to increase taxes, limits total federal spending to 18 percent of GDP (we are now at 25 percent), and forbids the federal courts from using the amendment to force tax hikes to balance the budget.

The robust "consensus" amendment is sponsored by every single Republican in the Senate, with chief sponsors being Utah senators Mike Lee and Orrin Hatch and Kentucky senator Rand Paul. In the House the robust amendment is cosponsored by Illinois congressman Joe Walsh and Virginia's Robert Goodlatte.

The main alternative is the weak amendment that requires a BBA without any limit on spending or the taxing power of Congress. There are two other ideas that have great appeal but are not viewed as options this go-around. Michigan congressman Justin Amash's amendment limits federal spending to the average of the last three years' spending. California congressman Tom McClintock's amendment would simply forbid Congress from borrowing money.

For an amendment to win two-thirds of the House and Senate--if it is to pass this Congress--it must garner the votes of all 242 House Republicans and all 47 Republican senators, plus 48 Democratic congressmen and 20 Democratic senators. Neither amendment could possibly pass that test. But after the 2012 election and after the 2014 election the odds shift.

THE EMERGING consensus strategy is to put forward the robust amendment with spending and tax limitations already endorsed by 47 senators and now cosponsored by 133 House members. It would receive House Republican votes. Few Democrats could vote for such a strong amendment. All those voting against the "balanced budget" amendment because it limited spending and/or makes tax hikes too difficult would be targets for defeat in 2012. Democrats have 23 Senate seats up in 2012 and 20 up in 2014. Republicans could add to their 47 Senate votes all those they replaced in 2012 and all those they scare with scalps taken in 2012.

Ditto the House drive to get to the magic number of 290.

The key negotiation strategy is developing as follows: Republicans will refuse to change the robust language. They will offer to negotiate with any Democratic amendment that is brought to the table by 20 Senate Democratic cosponsors and 49 House Democratic cosponsors. No watering down the robust amendment in the hope of winning five or 10 or "many" Democrats.

Everyone remembers the game Democrats have played with the BBA in the past, allowing those up for reelection to vote yes, while those like Montana senator Max Baucus--who won election promising to vote for a BBA--vote no when not in cycle. (They play the same musical chairs game in defeating repeal of the death tax.)

Those Republicans who actually expect to pass the amendment this year argue for the watered-down version that would maximize Democratic votes. That, of course, would minimize the number of Democrats who could be defeated in 2012 using the BBA issue and collapse Democratic support in 2013 and beyond.

The drive for a Balanced Budget Amendment remains the quest for the Holy Grail for limited government advocates. But as the penultimate scene in Indiana Jones and the Last Crusade reminds us, there is all the difference in the world between grasping the correct Grail and grabbing the wrong one. 

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About the Author

Grover G. Norquist is the president of Americans for Tax Reform.