Senate Republicans are again set to mount a fight for a balanced-budget amendment (BBA). Senate minority leader Mitch McConnell (R., Ky.) and whip John Cornyn (R., Texas) hope to unveil a bill today, and the indication is that their caucus is behind them, along with most Republicans in the House. The amendment would cap federal spending at 18 percent of GDP and require supermajorities for tax hikes and new borrowing.
While each of these ends may be desirable on its own, and they may even be desirable together, a constitutional amendment is a dubious means of achieving them, and our brief against such an amendment hasn’t changed. It is highly unlikely that a BBA could pass, and if it somehow did, it is highly unlikely that it would work.
There are not 67 votes in the U.S. Senate for such a proposal. And worse, the fact that there are not 67 votes frees politically vulnerable red-state Democrats — a score of them, potentially — to support the amendment to burnish their fiscal-conservative credentials while knowing it will not move forward. Even if there were a two-thirds majority in the Senate (and the House, for that matter), the amendment probably would not be ratified: It is highly doubtful that there are 38 states prepared to support an amendment that would severely constrain the federal government’s ability to subsidize them.
Passage of a BBA is not just implausible; it also would be unwise. Like the doomed 18th Amendment, it would enshrine partisan policy priorities in the founding document of the republic, which was meant to structure the democratic process, not rig its outcome in advance.
It would invite a hyperactive judicial intervention in the budget-making process that would throw the separation of powers completely out of balance. Previous BBA proposals explicitly banned courts from raising taxes to balance the budget but did not otherwise limit judicial enforcement. This means the judiciary might well attempt to set specific levels for every category of spending or otherwise shape budget priorities in an effort to enforce the Constitution. Such a perversion of republican government would raise the stakes of inter-branch hostility and distrust to unprecedented levels.
And Congress would have strong incentives to evade the spirit of such a law. If you think the official scoring of budget proposals is torturously politicized now, wait until constitutionality is at stake. Be prepared for a radical reimagining of just what phrases such as “gross domestic product” and “taxes” mean. And though the amendment includes provisions for exception — waiving spending limits in the case of a declared war, for instance — they are all but certain to prove unequal to reality and subject to abuse (think wars of fiscal choice).
Moreover, the amendment’s very strictness in pushing for conservative priorities in 2013 could make it harder to realize conservative priorities in the future. Tax rates are lower today than they were in 1980, but could Reagan have slashed Carter-era rates under a constitutional regime that demanded such tight coordination between revenue and spending and erected massive hurdles to their decoupling?
There is no constitutional shortcut to the arduous task of reining in spending. Conservative politicians have levers to move the budget in the right direction. They can pass leaner appropriations bills; pass ordinary legislation to reform the budget process; and enact bills to restructure entitlement programs. These methods may not always work, especially with the Democrats in charge of the Senate and the White House. But they are workable. A BBA wouldn’t be. If the country had the will to tackle entitlements, the amendment would be unneeded; and the amendment cannot supply that will. That is the thorny problem the amenders are trying to wish away.