A BB-Brained Constitutional Amendment

March 25, 1994|By JAMES J. KILPATRICK

Now that the House and Senate have killed the ''B-B Amendment'' for this year, a brief post-mortem examination may be in order. The B-B Amendment, of course, is the proposed constitutional amendment to require a balanced federal budget. It died when neither house produced the required two-thirds majority. Good riddance to bad rubbish.

To put a blunt word to pointed use, this was a lousy amendment. One definition of ''lousy'' is ''miserably poor or inferior.'' The metaphorical meaning applies. After one has praised the good intentions of the sponsors, not a single kind word can be said for the companion House and Senate resolutions.

My principal objection to the amendment rested in the awesome power it would have vested in federal judges. As the ill-crafted Senate resolution went to roll-call vote, it provided no realistic means for enforcement of its ambiguous provisions. Into that vacuum of power, only the federal judiciary could have intruded.

The general provisions are well-known. Both resolutions begin with a flat statement that ''total outlays for any fiscal year shall not exceed receipts for that fiscal year.'' By a three-fifths vote in each house, that requirement could be waived. A cohesive minority of 40 percent plus one would thus be in control. The second section requires the same supermajority for an increase in the debt limit.

Section 3 directs the president to transmit an annual budget ''in which total outlays do not exceed total receipts.'' Section 4 requires a roll-call vote on any bill to increase revenues. Section 5 permits all provisions to be waived whenever the nation is engaged ''in military conflict which causes an imminent and serious military threat to national security.''

In Section 6, Congress is given power ''to enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts.'' Section 7 defines ''total receipts'' and ''total outlays.'' The final section fixes an effective date two years after ratification by the states.

Roughly half an hour before the Senate's debate ended on March 1, the resolution's sponsors accepted a clumsily worded amendment offered by John Danforth, R-Mo. Because the Danforth amendment purported to address the potential problem that concerns me, let me quote it:

''The power of any court to order relief pursuant to any case or controversy arising under this article shall not extend to ordering any remedies other than a declaratory judgment or such remedies as are specifically authorized in implementing legislation pursuant to this section.''

Mr. Danforth's pig in a poke was intended, the senator said, ''to ensure that courts do not exercise extreme equitable powers unless Congress specifically authorized them to do so.'' He intended to prevent federal judges from (1) ordering new taxes or (2) demanding cuts in specific programs.

It is almost unheard-of for Congress to exercise its authority to make ''exceptions and regulations'' governing the courts' jurisdiction over constitutional questions. The Supreme Court is not in business to make purely ''declaratory judgments.''

Senator Danforth's amendment was accepted with only 10 minutes' discussion. Sen. Paul Simon, D-Ill., chief sponsor of SJR 41, simply incorporated it into his original text. No roll call. No thoughtful examination. What a way to amend the Constitution!

For my own part, I doubt that Mr. Danforth's amendment would suffice to prevent courts from usurping Congress' power of the purse. In recent years federal judges have not hesitated to order states and localities to raise taxes in order to carry out judicial decrees. Judges have turned themselves into school superintendents, prison wardens and state legislatures. Who or what would restrain them in the matter of declaring ways to achieve a balanced budget? My own distrust is massive.

Set that aside. The B-B Amendment had no constitutional feel to it. If it were ever ratified, one of two courses would ensue: It would be taken seriously, or it would not be taken seriously.

The former course would demand unbearable new taxes and intolerable reductions in federal programs. The latter course would lead to fumdiddling the estimates of income and outgo.

In its report on SJR 41, the Senate Judiciary Committee sought to explain why the amendment is needed: Congress ''lacks the discipline'' and the ''resolve'' to impose a balanced budget.

True! Too true! But it is folly to suppose that a paper poultice could cure a weakness of the congressional spine.

James J. Kilpatrick is a syndicated columnist.

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