The Budget Won't Be Balanced By an Amendment

Impractical proposal leaves loopholes, allows for delay tactics

By , a former US Assistant Attorney General, is a past president of the DC bar.

FEW things could be more destructive of citizens' faith in our Constitution than the adoption of a high-profile amendment which, in addressing an issue of national importance, promises something which it cannot deliver and, in the process, promotes confusion and acrimony.

Yet the United States Congress may approve such a proposal - the Balanced Budget Amendment, which calls for federal outlays not to exceed receipts. Senate debate is scheduled to begin Feb. 22, and supporters are within striking distance of the necessary two-thirds majority. In the House of Representatives, pro-amendment sentiment is strong.

The Senate Judiciary Committee approved the amendment by a 15-13 margin, but its own Oct. 21, 1993, report lifts the veil on the inherent difficulties of enforcement.

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While the report endorses the balanced budget principle as the only alternative to national bankruptcy, it also approves, in the name of needed flexibility, methods of ostensible compliance which would undermine the principle.

In construing the amendment's call for ``appropriate'' implementing legislation, the Senate report stated in part: ``If an excess of outlays over receipts were to occur, Congress can require that any shortfall must be made up during the following fiscal year.''

This would allow Congress to roll over a deficit, presumably a small one at first, from one year to the next so long as it promised to make up the shortfall in the next year. Of course, that would invite the accumulation of shortfalls in later years.

Similarly, the committee stated that Congress could decide that a ``deficit caused by a temporary, self-correcting drop in receipts or increase in outlays during the fiscal year would not violate the article.''

But what is a ``temporary'' deficit to one individual may seem ``permanent'' to someone else. And who can say authoritatively whether a particular deficit will turn out to be ``self-correcting''?

``Very small'' deficits would also be permissible, but the Senate report provides no guidance for making that determination. These formulations will at best become springboards for new political disputes; at worst, vehicles for wholesale evasions.

The amendment would not prevent other blatant end runs around the balanced budget principle. Thus, to minimize the deficit, Congress could reduce federal outlays by converting some spending programs into ``loans'' or by forcing states to pay for activities now funded by the federal government.

The amendment calls for governmental reliance on reasonable, good-faith budget estimates, but there is nothing definitive about such estimates. They can vary widely. Conditions change, and final budget figures rarely correspond to earlier estimates. Trying to constitutionalize this process would be futile.

The proposal would strip Congress of traditional powers of the purse and create new conflicts between the branches of government. For one thing, while the proposal does not contain any enforcement mechanism, it would certainly encourage unilateral impoundments by presidents, actions which would assure new executive-legislative clashes.

The amendment would also transfer some budgetary powers to the courts - the precise extent of that shift to await the Supreme Court's determination. In 1992, more than 160 law professors opposed the amendment on the ground, among others, that it would entail an inappropriate entry by judges into political arenas. And if the courts were to become active in the budget field, they would be unable to meet the tight deadlines and technical demands that effective intervention would require, thereby generating new confusion.

Furthermore, the mere possibility of judicial review would encourage some members of other branches to procrastinate on deficit reductions in the hope that the courts would ultimately have to step in and take responsibility for the unpopular budget cuts or tax increases. There is a large opportunity for such stalling because, by its terms, the amendment cannot become effective before the 1999 fiscal year at the earliest.

The super-majority exception, whereby 60 percent of the members of each house could waive the balanced budget requirement, is more of a trap than an escape hatch. It would present the country with a lose-lose situation. If Congress made frequent use of the exception, popular disenchantment would explode. People would wonder what was the point of enacting the amendment in the first place.

The country would be equally dismayed if 41 percent of the legislators blocked counter-cyclical spending to ease a recession, even though 59 percent of their colleagues favored such spending.

Constitutional entrenchment of such blocking powers would enrage the citizens most harmed by that recession - particularly so since the proposed amendment, unlike the prevailing state practice, makes no distinction between operating expenditures and capital outlays.

In a time of spreading cynicism, respect for the Constitution remains an inspiring source of national strength. Let us not shatter that respect by adopting an amendment which, quite aside from its theoretical defects, is impractical, unworkable, and complicates the serious problem it purports to resolve.

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