Why the Senate Pulled Back From Precipice : Balanced-budget amendment: Should legislature abdicate?

Senate Majority Leader Bob Dole backed away from a showdown earlier this week on a constitutional amendment requiring that the federal budget be balanced starting in the year 2002. Lacking one vote for approval, Dole, a key amendment supporter, chose delay over defeat. On Wednesday, with two North Dakota Democrats apparently holding the decisive votes, Dole said that a vote might be taken today.

The amendment has in any event already undergone a radical change. At the insistence of Sen. Sam Nunn (D-Ga.), it was revised Tuesday to include a drastic escape clause: “The judicial power of the United States shall not extend to any case or controversy arising under this article except as may be specifically authorized by legislation adopted pursuant to this section.” If the amendment is passed and then ratified by the states, Congress may now disregard it with impunity. No one may sue to force compliance.

Nunn is not soft on government spending. He is hard on the constitutional separation of powers. He believes--correctly, in our judgment--that a balanced-budget amendment with judicial teeth in it would shift fiscal control from Congress, where the framers of the Constitution placed it, to the judiciary. In 1990 a federal district court forced a Missouri school district to raise taxes to comply with a desegregation order; the decision, Missouri vs. Jenkins, was upheld by the Supreme Court. Under the balanced-budget amendment as originally drafted, the Supreme Court could order Congress to raise taxes.

“I will not be able to vote for (this amendment),” Nunn said, “unless we make it clear that the judiciary of this country is not going to tax and spend and we’re not going to change our form of government through the back door. . . .” Thanks to Nunn, Congress did indeed make clear what he wanted made clear. But at that point, the Republican cause represented by the original form of the amendment was essentially lost. Approval would now mean what Sen. Orrin G. Hatch (R-Utah) said it would mean last Friday when he was still determined to reject the change Nunn wanted: “If we’re going to emasculate the amendment by putting provisions in there that are loopholes, we might as well quit now. Why not lose straight up and let every American know who did it to us?”

Hatch was right: The balanced-budget amendment as now revised has unenforceability literally written into its text. Like the 1985 Gramm-Rudman Act, a statutory revision of the congressional budgetary process that mandated a balanced budget by 1990, its effect can only be psychological and temporary. Legally, Congress would be as free to ignore the amendment as it has been to ignore Gramm-Rudman. Ominously, however, the amendment would seem to create a new constitutional authority for the President to balance the budget by unilaterally impounding funds appropriated for projects he did not like.

Speculation? Yes, but timely, plausible and necessary speculation. Recognized Constitution scholars believe that the amendment even in its current form could seriously skew the traditional separation of powers. We argue again as we have argued before: The Constitution should not be amended in haste. The national debt, which shrank after World War II, grew again in the 1980s and early 1990s. It can and should shrink again. But we need not scrap a form of government that has served us well for 200 years just to recover from a decade of tax-and-borrow fiscal imprudence.