In a myview op-ed in the Christmas Eve Deseret News (posted online December 26, 2015), Kyle Maichle of the Heartland Institute defends the Article V constitutional amendment process, arguing that we have nothing to fear from it. Curiously, he omits the strongest argument for his position (or the DesNews editors took it out – not at all unlikely) and completely ignores the substantive problem with the present Article V drive (sometimes known as Con-Con).
For those coming in late, the Constitution of the United States provides for two methods for its amendment. Both of these are contained in Article V of the Constitution. The first method, and the only one that has ever been used, consists of passage of a proposed amendment by a two-thirds vote of the two houses of Congress, and the submission of such a proposal to the States for ratification. That ratification must be by three-fourths of the legislatures, or by special ratifying conventions in three-fourths of the States, as Congress shall specify. (As a historical note, all but one of the 27 amendments so far adopted have been by legislatures; only one, the 21st – repealing the 18th Amendment and thus Prohibition, was done by the kind of ratifying conventions used to ratify the original Constitution – which IMHO is the only method that should be used.)
Under the other method, so far never used, the legislatures of two-thirds of the States would petition Congress to convene a convention for the purpose of proposing one or more amendments to the Constitution. If such a convention were to propose an amendment, that amendment would be sent to the States for ratification by either the legislatures or conventions of three-fourths of the States. As of this writing, there are clearly 29 states with resolutions before Congress calling for an Article V Convention to consider an amendment to the Constitution requiring that the federal budget be balanced. Four other States passed such resolutions but have since done something to reverse that action; since 34 states are required to constrain Congress to act, proponents of a Convention are either two States or five States short, depending on the legality of rescission actions (a matter that is far from clear, as the debates over the Equal Rights Amendment ratifications of the 1970s show).
The general argument against an Article V Convention is that it could operate as the original 1787 convention in Philadelphia did. That convention, called to propose improvements to the Articles of Confederation, threw that document out in toto and produced an entirely different form of government. Opponents of the Con-Con argue that it could do the same thing, completely re-writing the Constitution, perhaps along the lines of Rexford Tugwell’s periodic proposals for constitutional reform, thus stripping us of our liberties and the States of their role in our federal system.
In his 24 December op-ed, Mr. Maichle cites three safeguards to reassure Con-Con opponents: (1) the State legislatures will appoint the delegates; (2) the governors will have the authority to remove any rogue delegates that slip by the legislatures; and (3) the Con-Con will be limited to one issue only – in this case a Balanced Budget Amendment – so there is no chance of a runaway convention. (For the record, I find these points laughably weak, starting with the fact that they all depend on “rules” to be proposed by the Assembly of State Legislatures, an organization with zero constitutional standing.)
Much more significant is the strongest safeguard of all, which Mr. Maichle completely ignores. That is that the results of any Con-Con would have to be submitted to the States for ratification. It is (to my mind) inconceivable that any amendment seriously impairing the rights of the States or the people could garner ratification by three-fourths of them.
To this point, I have dealt only with the procedural side of the question (and there is much more to be said on it, believe me). Now I would like to turn to the real danger of a Con-Con, or at least of this one. That is the substantive question of a Balanced Budget Amendment.
Let me state my case simply: a Balanced Budget Amendment would (a) not work and (b) be a disaster if it did work. To be clear, I am strongly in favor of smaller government, and were I king would slash federal spending by (at least) 80%. But the BBA would not do that.
First of all, unless the Amendment were hundreds of pages long, it would leave all the important questions to Congress. For example, what does “balanced” mean? I know when my personal budget is balanced (rarely), but I’m not a $3 trillion a year entity with hundreds of income streams and thousands of outgo gushes. My banker does not require that I balance my budget in the short run; otherwise I would not own my home. On April 14, the federal government might be half a trillion dollars in debt, but on April 15, as taxes are paid, its surplus might jump to a half a trillion dollars. Is that a balanced budget? Do we use a “cash” or “accrual” method of accounting? All these questions provide wiggle room to players who have an interest in an expanding federal establishment.
What does “budget” mean? Right now the federal government uses several different “budgets” for different purposes: the consolidated budget, the current accounts budget, the “budget authority” budget, the “outlays” budget. Congress adopts a “budget resolution,” the president submits a proposed budget to Congress.
The federal government has more than $100 trillion in unfunded liabilities. Are they to be counted on the debit side of the ledger? Congress is unlikely to adopt definitions that will recognize fiscal reality. It does not do so now, and nothing in the BBA would change that. There are literally thousands of definitions Congress could make that would determine whether the budget was “balanced” or not. Congress could simply pass a law that says the budget is “balanced” when Congress says it is. Who would have standing to challenge such a law in court? And would we want the Supreme Court to be making the final decision?
Most importantly – and I think a point not sufficiently appreciated by proponents of a BBA however adopted – there are two ways to balance a budget: (1) reduce expenditures; and (2) increase income (in this case taxes). Any guesses as to which Congress will choose under a BBA? A federal government spending $10 trillion a year but taking in $10.1 trillion in taxes will meet the requirements of a BBA. Is that the outcome that the advocates of the BBA envision? It is not, but it is the outcome they will get. The last thing we need is to give Congress a constitutional excuse to raise taxes.
One of the ironies of this debate is that most of the players opposing a Con-Con desire the same outcome as its advocates: a smaller government. The fears of the former are mostly ungrounded; the hopes of the latter are even less likely to be fulfilled.