Proposing an Amendment to the Constitution Relative to Requiring a Balanced Budget--S.J. Res. 24--Continued

Floor Speech

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Mr. DURBIN. Mr. President, there are very few things on which Members of Congress agree, but one of the things that binds us and unites us is the common oath we take to uphold and defend this document. This document is not just another resolution, another law; it is the Constitution of the United States. For more than 220 years this document has guided our Nation and inspired other nations toward democracy. I think it is fitting that we swear an oath to uphold and defend it.

But I think we also have to look at this document not just with respect but with humility, humility because we know the words contained have managed to guide our Nation so successfully for so many decades and centuries. Those who are bold enough to suggest they would change the wording of this document have to expect to have hard questions asked as to whether it is appropriate and whether what they are setting out to do is consistent with this great document and the needs of our Nation.

I can recall when Senator Hatch chaired the Senate Judiciary Committee and I was a member. There was a day when they asked me, as a member of the Judiciary Committee, to give permission for three constitutional amendments to be considered in the same day. I objected, which was my right. I said to Chairman Hatch at the time: You can call two constitutional amendments on Thursday but, call me old-fashioned, I don't think we ought to amend the Constitution more than twice a day. The point I was trying to make was to suggest to my colleagues to at least have some humility and maybe even hesitancy to suggest they can change for the better the wording of this great Constitution.

It has been changed, there is no question about it. From the moment it was written until a few years later, Thomas Jefferson called for the Bill of Rights. Many say that was essential for the ratification of the Constitution. It included some basic rights that we now revere in this country. So the first package of amendments, the Bill of Rights, has become an integral part of the original document because they were adopted so quickly--added so quickly.

But in the 220 years since 1791, when the Bill of Rights was added--in the 220 years we have only amended this document 17 times and only for the most serious of matters. Consider what our amendments have done. They have ended the practice of slavery. They have established the principle of equal protection. They have assured the right of women in America to vote, among other things. They have provided for succession in case of Presidential disability, and they have addressed some of the most fundamental issues facing our Nation.

Now some Members of Congress believe we should enshrine in our Constitution their views of what the Federal budget should look like. They want to radically reshape our constitutional framework in order to relieve Congress of its political and moral responsibility to make tough choices about taxing and spending. They want to tie the hands of Congress on budget decisions and pass important decisions on to another branch of government, our Federal judiciary.

That is not what the Founding Fathers intended. The Constitution gives the power of the purse expressly to Congress. Fulfilling this constitutional duty carries some political risk, but we all signed up for that job. Members of Congress should not try to change the Constitution to avoid their duty to make tough and important decisions.

These days, some in Congress would rather take a red pen to the Constitution than to reconsider an anti-tax pledge they have made to a Washington lobbyist named Grover Norquist. Mr. President, 40 Republican Senators, all of whom are cosponsors of this amendment, have taken a pledge, a public oath to Grover Norquist when it comes to the issue of taxes. I believe my colleagues who are indentured politically to Grover Norquist need to get their priorities right. Our oath to support and defend the Constitution is much more important than any allegiance to any Washington lobbyist.

Congress has balanced the budget not just in my lifetime but in my term of service. We ran a budget surplus in fiscal years 1998 through 2001. There is nothing stopping us now from getting our fiscal house in order except a lack of political will. We simply do not need to go to the extreme of amending the Constitution to get this job done.

It is also clear a balanced budget amendment proposal has many unanswered questions and concerns and it is our responsibility to ask those questions. I held a hearing as chairman of the Constitution Subcommittee of the Judiciary, well attended by Members on both sides of the aisle, with witnesses telling us the pros and cons of a balanced budget amendment. That is the way the process should work. Now we come to the floor to consider two versions of a balanced budget amendment.

It is interesting, when the balanced budget amendment came before the House of Representatives, opposition to it was bipartisan. Even the Republican chairmen of the House Rules Committee and the House Budget Committee voted against the Republican version of the balanced budget amendment brought up in the House.

A few weeks ago, when we held this hearing, witnesses told us why we should have pause, if not reject, this notion of a balanced budget amendment. First, it would cause harm to the economy. I cannot say it any better than Senator Conrad did moments ago. Our budget in Washington is designed to not only serve the needs of the nation but to help our economy get on track and stay on track. In fact, when things go bad in our economy, as they have in the last several years, our budget steps in with countercyclical measures such as unemployment compensation to put our economy back on track. The balanced budget amendment before us today is going to make that more difficult to do.

The forecasting firm Macroeconomic Advisers told us what would have happened with this balanced budget amendment if it had been in place today. They said such an amendment would double the unemployment rate in America, cause the gross domestic product to shrink by 17 percent, and destroy millions of jobs. That is something my Republican colleagues will not acknowledge, and they should. If we cannot spend in times of recession, even when receipts are low, we fail to turn the recession around and of course we leave many unemployed Americans with no help when they desperately need it.

There is also a provision in the Hatch-McConnell balanced budget amendment that would increase the risk of default on our national debt by requiring a three-fifths vote in each House to raise the debt limit. I might tell my colleagues who follow this, only 3 of the last 11 debt ceiling increases passed both Chambers by a three-fifths vote; 3 of the last 11. If you enjoyed the debt limit standoff of a few months ago and the threat of not only closing down our Government but closing down our economy, you would enshrine it in the Constitution with the Republican balanced budget amendment.

It always strikes me as odd, if not hypocritical, that Members come to the floor and give speeches about how much they support a war effort, or spending for a given issue, and then when it comes time to raise the debt limit, which is part of the bargain, they are nowhere to be found. They want to be there for the press release saying, I am for the war, but when the debt limit needs to be increased to pay for the war they become fiscal conservatives and are nowhere to be found. I think there is some political hypocrisy in that.

Another concern no one has answered that I commend to my colleagues was exemplified by the testimony of Professor Alan Morrison of George Washington University Law School. He asked the basic question: Who is going to enforce this amendment? If in fact Congress does something in violation of the amendment, who can sue? And which court would consider it? It is a valid question because ultimately this will end up in the courts. The courts will have to make some rather unique decisions. What are the outlays and receipts of the United States? What was the gross domestic product? These are issues which many in the court may find challenging if not impossible to deal with on a timely basis. The longer it takes to resolve those issues the more uncertainty there will be about our Nation's economy and its economic future.

Do we want to put the courts in charge of budget decisions? Former Solicitor General and Judge Robert Bork said ``the result ..... would likely be hundreds, if not thousands, of lawsuits around the country, many of them on inconsistent theories and providing inconsistent results.''

Those who support the amendment look for stability and certainty. My guarantee is turning this over to the Federal courts will give you neither.

The nonpartisan Congressional Research Service looked at balanced budget amendment enforcement on August 3 and said:

The experience of State governments indicates that concern over judicial involvement in budgeting is realistic. In some States the judiciary has become involved with the operation of various aspects of budgeting to impose budget balancing remedies [like] requiring tax increases, limiting expenditures generally or preventing implementation of specific spending laws. The possibility that the Federal courts could invoke such remedies prompts concern about the potential such actions would have for causing a significant shift in the balance of power among the branches of the Federal Government.

Even former CBO Director Douglas Holtz-Eakin, who was called in by my Republican colleagues to testify at our hearing in support, conceded ``the question of enforcement remains a challenge that should be thoughtfully considered.''

I might add, parenthetically: No kidding. Enforcement of this is critical. How can the Senate consider passing a balanced budget amendment without answering first the question of enforcement? It would create tremendous uncertainty.

I would say the balanced budget amendment that has been sponsored by all the Senate Republicans raises particular concerns. Under this proposal, spending would be capped at 18 percent of gross domestic product each year, a level far below the Draconian budget suggested by Congressman Paul Ryan that would end Medicare as we know it.

The Senate Republican proposal enshrines the Republican philosophy in requiring a two-thirds vote in each House on any bill that increases taxes or revenue without any ability to waive that two-thirds requirement, even in time of war.

The effect of these reforms would devastate programs such as Medicare and Social Security while giving constitutional protection to tax expenditures currently enjoyed by corporations and the wealthy. This proposal is not sensible, it is not fair, it would not serve our country well.

In short, our hearing made it clear there has not been a balanced budget amendment proposed that would actually be enforceable and that would not cause great collateral damage to the economy.

I have served on several efforts, and continue to, in an effort to reduce spending, to find new revenue, and to balance our budget. I will tell you that it takes political will. This kind of approach, this idea that somehow we can pass a constitutional amendment and be done with our responsibility is not only shortsighted, I think it is counterproductive. I think it will make our situation worse instead of better. I thank Senator Mark Udall for his offering on his balanced budget amendment. It is a better approach, and while I don't support a balanced budget amendment, if I were to support any balanced budget amendment it would be the Udall amendment. But I don't believe amending the Constitution at this point in time is the right way to approach this. I do not believe either amendment achieves it without creating terrific uncertainty in our future about enforcement.

I urge my colleagues to oppose efforts to amend our Constitution. I urge them, instead, to show political courage and work hard right now in a bipartisan way to address our fiscal challenges. That is what the American people expect of us.

I yield the floor.

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