By Anthony W. Hawks
One of the bones thrown to Republicans in the recent debt ceiling deal was the promise of a floor vote on some type of balanced budget amendment (BBA) prior to December 31, 2011. The first such vote is now likely to occur during the week of November 14, 2011.
What I learned at a hastily called meeting of the House Republican Study Committee on Capitol Hill several weeks ago (October 6, 2011) is that BBA supporters are nowhere close to reaching a consensus on what BBA language to bring up for a vote.
Although there have been House BBA hearings as recently as May 2011, the last serious floor action occurred in March 1997, when a consensus BBA proposal sponsored by Senator Orrin Hatch (R-UT) failed by a single vote 66-34. It has taken 14 years to get another floor vote, and now that it has arrived, BBA supporters are at a loss as to how best to proceed.
It is like the dog that chases the car and then, after 14 years, catches the car, only to realize that it had no plan once the car was finally caught.
When the BBA vote was promised this past summer, it was the baseball equivalent of a “player to be named later” because the statute that finally raised the debt ceiling (Public Law 112-25) required nothing more than a Congressional vote on a piece of paper with the title “Joint resolution proposing a balanced budget amendment to the Constitution of the United States.” The “player to be named later” would be the substantive content of whatever BBA is ultimately put forward for a vote.
From President Obama’s perspective, this showed supreme confidence that nothing the Republicans might propose would ever pass. Why else give the Republicans a blank slate to write any BBA they wanted? From the Republicans’ perspective, it signified something far more troubling: the demise of a consensus BBA that fiscal conservatives of both parties could rally around.
The consensus proposal from 1997 has been routinely re-introduced over the years, and its current incarnation can now be found in H.J. Res. 2, sponsored by Rep. Robert Goodlatte (R-VA). But Senator Hatch and Rep. Goodlatte are both having second thoughts because the old consensus bill did not try to limit spending, which Tea Party groups correctly understand is the central problem driving our deficits.
Consequently, Senator Hatch has sponsored two new versions of the old consensus proposal, S.J. Res. 3 and S.J. Res. 10, which include spending caps of 20% GDP and 18% GDP, respectively. Similarly, Rep. Goodlatte hedged his bets by simultaneously sponsoring a 20% GDP spending cap amendment (H.J. Res. 1) when he initially sponsored the old consensus proposal (H.J. Res. 2).
The divide over constitutional spending limits just scratches the surface in drafting a new consensus BBA. There are at least 18 proposals now vying for attention (depending on how you count proposals that impose spending limits without requiring a balanced budget) and here is a summary list of 10 issues yet to be resolved:
1. Should the BBA include a spending limit and, if so, how high?
2. Should the BBA include a general super-majority waiver provision, and if so, by what voting threshold (absolute majority, 3/5ths majority, or 2/3rds majority)?
3. Should the BBA include more specific limited waivers for declared wars, military conflicts, or economic emergencies? If so, should super-majorities be required and, again if so, by what threshold?
4. Should a super-majority be required for raising taxes, and if so, by what threshold?
5. Should a super-majority be required for raising the debt ceiling, and if so, by what threshold?
6. Should the President be required to submit a proposed balanced federal budget to Congress each year?
7. Should the President be given impoundment or other enforcement powers to assure budget balance in the absence of any Congressional waiver?
8. Should the federal courts be barred from enforcing the requirements of BBA, and if not, who should have standing to sue for enforcement?
9. Should the calculation of total outlays and revenues be prospective based on good faith estimates or retrospective based on actual reported figures?
10. What type of transition period should be allowed and for how long?
Members of Congress, their staff, and long-time supporters of a BBA are struggling with these issues right now, and there is no “right” answer; only a trade-off between making the proposal “stronger” and less likely to succeed, or “weaker” and more likely to attract support.
The fundamental problem is that you cannot mandate a balanced budget without allowing for waivers in emergency circumstances, and you cannot rely on Congress to invoke those waivers only in emergency circumstances. Conversely, if you could enforce a balanced budget (and I believe you can), then you would not need to mandate one. But of course no one with power on Capitol Hill truly wants a BBA that could be enforced by any power outside of Capitol Hill.
Given the current time constraints, my guess is that House and Senate sponsors will allow at least one spending limitation proposal to be brought up for a vote, but otherwise agree on a “weak” BBA consensus proposal that attracts bipartisan support — meaning an unenforceable BBA with no spending limits, but containing the usual waivers and low super-majority thresholds.
In the meantime, there is one BBA proposal that does stand out from the rest, both for its novelty and ingenuity. This is the “Business Cycle Balanced Budget Amendment” (H.J. Res. 81) being sponsored and promoted by a Tea Party favorite, Rep. Justin Amash (R-UT). Although I must ultimately conclude that it fails the critical test of enforceability, it shows why Congress needs to ferment new ideas and how the Tea Party movement is having a beneficial effect in this regard.
The Amash proposal therefore deserves extended comment, which I will furnish in the next post.
Copyright © 2011 Anthony W. Hawks. All rights reserved.