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28 Editorial, The Balanced Budget Boomerang, N.Y. Times, Feb. 27, 1979 at A16, col. 1-3; States' Push for Balanced Budget Presents Dilemma for Congress, N.Y. Times, Jan. 29, 1979 at A15, col. 2-3. As much as 75% of federal expenditures are "uncontrollable under existing law,” that is, they are required by prior legislative or executive action to pay for entitlement programs (e.g., social security, unemployment insurance, welfare), certain defense allocations, debt service and other items. CRS Report at $2446, S2449-50. These expenditures make discretionary social service programs and federal assistance to states and local governments particularly attractive targets.

26 Address of Sen. Edmund S. Muskie to National Press Club (Washington, D.C.), Feb. 13, 1979; 125 Cong. Rec. S1032 (daily ed. Feb. 5, 1979) (remarks of Sen. R. Byrd).

27 CRS Report at $2450; 125 Cong. Rec. S1032 (daily ed. Feb. 5, 1979) (remarks of Sen. R. Byrd); Silk, A Budget Amendment Could Be the Wrong Easy Answer. N.Y. Times, Mar. 11, 1979 $4, at 4, col. 1-3.

28 CRS Report at S2447; Memorandum fro J. Scheu and L. Shuster to Sen. Muskie, Mar. 1, 1979 printed at 125 Cong. Rec. S2443-45 (daily ed. Mar. 8, 1979).

29 The original Friedman proposal would attempt to avoid such confrontations by limiting standing only to members of Congress suing in Washington and by limiting the courts' authority to decide how to reduce expenditures. 125 Cong. Rec. S975 (daily ed. Feb. 1, 1979). See n. 12, supra.

30 Memorandum from Prof. L. Tribe to T. Kraft (Assistant to the Pres.), Jan. 17, 1979 at 3-5 (hereinafter cited as Tribe Memorandum).

31 Tribe Memorandum at 6.

32 Congressional Budget Act of 1974, Pub. L. No. 93-344, 88 Stat. 297 (1974); Weaver, Congress and Its Fiscal Role, N.Y. Times, Apr. 14, 1979, at 7, col. 3-4.

33 Indeed, a statute enacted last year (Pub. L. No. 95-435, 92 Stat. 1053, § 7, 31 U.S.C. & 27) provides that “[b]eginning with fiscal year 1981, the total budget outlays of the Federal Government shall not exceed its receipts." See Senate Panel Votes Plan to Balance Budget in 1981, N.Y. Times, Apr. 11, 1979, at A17, col. 1-3; Budget Battle Opens in House Committee, N.Y. Times, Apr. 3, 1979, at D2, col. 5-6; CRS Report at S2447.

34 Lochner v. New York, 198 U.S. 45, 75 (1905) (dissenting opinion).

35 Two other sections of the Fourteenth Amendment treat specific problems created by the aftermath of the Civil War. Section 3 disqualifies former Confederate officials from public office, and section 4 affirms the validity of the Union's War debt and invalidates the Confederacy's debt. In addition to this reference in section 4 of the 14th Amendment, the public debt is mentioned only two other times in the Constitution: Art. I, Sec. 8 (“The Congress shall have Power ... to pay the Debts ... of the United States”) and Art. VI (“All Debts contracted and Engagements entered into" prior to the adoption of the Constitution shall be valid).

36 The Federalist No. 43 (J. Madison) at 278 (Mentor Books ed. 1961).

37 Cf., Reasons for the Repeal of the Eighteenth Amendment, Address of Joseph H. Choate, Jr. before the N.Y. Civic Forum, Jan. 17, 1930: "Our Constitution is a frame of government. It creates Legislative, Executive and Judicial authorities, and distributes powers among them. Its fundamental and unchangeable theory is that it creates a government of delegated power only, and is based on the representative system. As concerns legislation-rules of conduct-it comprises certain definite and limited grants of power to Congress to enact such rules, but does not-except for Prohibitionprescribe any rule whatever.” 38 Tribe Memorandum at 3-4. Rovere, Affairs of States, THE NEW YORKER, Mar. 19, 1979, at 136, 138 (An amendment full of definitions "would come close to introducing algebraic formulas into a document that can at present be read at a sitting and understood ... by any reasonably literate citizen. In contrast to it, the Constitution of the State of New York is so long and has been so often amended that it is difficult even for purists to recall what is in it and what is not.")

39 The only use of a three-fourths vote in the Constitution is the number of states necessary to ratify an amendment to the Constitution pursuant to Article V.

40 In addition, section 3 of the Fourteenth Amendment provided that a twothirds vote of Congress was necessary to grant exemptions from the prohibition against holding public office imposed upon former Confederate officials.

41 Editorial, The New, New Federalism, Wall St. J., Jan. 10, 1979 at 22, col. 1. 42 The Federalist No. 34 (A. Hamilton) at 207 (Mentor Books ed. 1961).

PROPOSED CONSTITUTIONAL AMENDMENT

TO BALANCE THE FEDERAL BUDGET

THURSDAY, OCTOBER 11, 1979

U.S. SENATE,
SUBCOMMITTEE ON THE CONSTITUTION
OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met at 9:45 a.m., in room 1202, Dirksen Senate Office Building, Hon. Birch Bayh (chairman of the subcommittee) presiding.

Present: Senators Bayh, Thurmond, and Hatch. Staff Present: Kevin O. Faley, chief counsel and executive director; Mary K. Jolly, staff director and counsel; Linda Rogers-Kingsbury, chief clerk and deputy staff director; Christie F. Johnson, assistant clerk; John Miner, counsel to Senator Kennedy; Steve Markman, minority counsel; Tom Perry, minority chief counsel; Dennis Shedd, counsel to Senator Thurmond; Chip Wood, counsel to Senator Simpson.

Senator Hatch (presiding). We will start our Subcommittee on the Constitution hearings this morning. We have Hon. David Pryor, our fellow colleague, a U.S. Senator from Arkansas, who will be our first witness. We are very happy to welcome you to our subcommittee, Senator Pryor. We know you will have some very interesting things to say about this subject.

TESTIMONY OF HON. DAVID PRYOR, A U.S. SENATOR, FROM THE

STATE OF ARKANSAS

Senator PRYOR. Senator Hatch, I deeply appreciate having the opportunity to testify this morning. As you know, we have worked together on several occasions in the past on possible language to consider placing before the Congress relative to a balanced budget amendment. At this time, I guess I am safe in saying there is no one bit of language, nor is there one specific proposal, behind which everyone has coalesced. So it is a pleasure to discuss for just a moment, Mr. Chairman, the particular language that I wish to respectfully propose.

Mr. Chairman, in view of the time and because of the illustrious witnesses that will follow this morning, I would like to simply summarize my remarks, if that is permissible.

First, Mr. Chairman, there has been a great deal of rhetoric in the past several years relative to a balanced budget amendment to the Federal Constitution. Many people say that it is basically a relic of the past, that it is something that will not work, that it is a part of

a

right-wing philosophy that is ripping this country. Mr. Chairman, I don't believe this to be the truth. I believe an amendment placed in the Constitution to force and bring about a balanced budget for this country represents the best in commonsense. I think that it is a process that the people of this country want very badly at this particular moment in our Nation's history.

I am the first to realize that such an amendment and such a process in itself is not simple. I know that the Senate and I know this subcommittee, because it is charged with this responsibility, should ask a lot of questions about any proposition we recommend to the Congress and to the various State legislatures of this country.

But in my view, Mr. Chairman, the need for an amendment to require a balanced Federal budget is clear. We have to set a clear, unequivocal limit which will be recognized as more than wishful thinking. In the past, with no such constitutional mandate, it has been all too easy to see the justification in funding programs even though the funds may not be there to pay for them. Ås Members of Congress would admit, it is exceedingly difficult to make cuts in programs which will affect those programs important to the constituencies in our own States and congressional districts. We simply find it very hard to say “No” to good people who have deserving projects and causes.

Recently, a group of people from my own State of Arkansas, Mr. Chairman, came to see me in our Washington office. After several minutes of visiting they got out their shopping list and talked about this list of projects they wanted brought back home to their district. The grand total of their requests came to a sum well over $6 million. As they were leaving the office, the parting comment was, "Senator, there is one more item on our list. We want you to do all you can to balance the budget and cut down on Federal spending.”

There is one dilemma, Mr. Chairman, and that is people have come to depend on Federal programs. Yet, they recognize the need to cut our Nation's spending in order to balance the budget and slow inflation. We must admit we lack the needed discipline.

I am the first to say we have made gigantic steps through the establishment of our respective budget committees in the House and Senate. I think we are definitely on the right track. We are beginning to see for the first time—and al] of us knew it would take some time the fruits of these labors coming to pass.

But I believe, Mr. Chairman, we must add what I call an outside restraining force to the system, and that outside restraining force is a people's amendment. It would be a constitutional amendment to establish national priorities and put a cap on spending. I think we must start saying "No," and I believe a constitutional amendment will insure this. I believe that only a constitutional amendment will bring this about. It will eliminate, to some degree, interest group pressure and force members of the legislative and executive branches of Government to make very hard and sometimes, yes, unpopular decisions.

Mr. Chairman, I would also like to take this opportunity to make it very clear that while I wholeheartedly support a constitutional amendment which would require a balanced budget, I do not agree with those who desire to hold a constitutional convention to address this question. At this point, no one can predict what type of tempest we would be stirring up if a constitutional convention would be called. We would be, in effect, opening up a Pandora's box. There are serious constitutional questions of whether or not the subject matter could be restricted to the single issue of an amendment for balancing the budget. Conceivably, any other single issue could be brought up for consideration-abortion, school prayer, busing. There are also no procedures that have been established for the operation of such a convention or even the selection of delegates to that convention. The constitutional convention process, I think, promises only uncertainty, confusion, and certain controversy.

I believe that the Congress should accept the responsibility of proposing an amendment to balance the Federal budget to the various State legislatures for their consideration. To this end, I have suggested the following simple and uncluttered wording, and Í quote my proposition to you at this time:

The U.S. Government shall not expend in any fiscal year more money than revenues collected unless approved by a two-thirds vcte of the Members of each House of the Congress.

There is nothing complex about this amendment. You simply don't spend what you don't have. You pay as you go. In my opinion, there is no need for complicated formulas tying spending to a percentage of the gross national product being placed into the body of our Constitution.

The two-thirds provision of my proposed amendment will allow the Congress the authority to suspend the amendment in a time of national emergency. Despite the fractious reputation the Congress has gained, it has proven that in time of national crisis it can pull together in the best interests of the Nation.

I know that critics of a balanced budget proposal say that such an amendment would hamstring the Congress. My response is—and I have been a Member of not only the House of Representatives, but also the executive branch as Governor-I certainly hope it will hamstring the Congress. The failure of the executive and legislative branches in the past to bring inflationary spending under control in this past decade indicates to me that perhaps the Congress, from time to time, does need to be hamstrung, and, in fact, I think rather quickly.

Mr. Chairman, I know that many groups and organizations oppose this concept. I know that many Members of Congress might oppose it. But the people, however, strongly support it, and I think we should act. If we don't act there is a very good chance that additional States are going to join the number that have petitioned Congress for a constitutional convention. It is time that the Congress acted on this very critical proposal.

Mr. Chairman, I appreciate this opportunity to appear before this committee this morning.

Senator Hatch. Thank you, Senator; we are very grateful for your taking time out of your busy schedule to be with us.

Senator Bayh is here, the chairman of the committee. Do you want to question first?

Senator Bayh (presiding). Go ahead.

Senator Hatch. You have had the experience, Senator Pryor, of not only being a Senator and a Member of Congress, but also in the execu

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