Constitutional questions about three-fifths rule may never get to court

January 05, 1995|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The newly enacted House rule making it harder to approve a tax increase is at the center of a high-energy constitutional debate -- but an actual court challenge may never materialize.

Unless high legal and procedural barriers to a constitutional challenge and to a final court decision can be overcome, it now appears, the so-called "three-fifths rule" that was passed last night by a 279-152 vote would stay in force in the House of Representatives.

Thus, even if one assumes that the rule would be struck down if put directly to a test, the House may never be confronted with a court ruling against the rule, leaving it intact as long as a majority wanted to follow it.

Under the "three-fifths rule" offered by the new Republican leaders of the House and approved on opening day of the 104th Congress yesterday, a simple majority of those voting in the House is not enough to pass an increase in federal income tax rates.

Instead, a 60 percent (three-fifths) vote of approval is required.

One of the chief sponsors of the rule was House Rules Committee Chairman Gerald B. Solomon, a Republican from New York.

He said the idea behind it is to "safeguard the economic freedom of the American people against an overly voracious government."

(No such rule exists in the Senate, but the House rule could affect the dealings between the two chambers over future tax legislation.)

The intensity of the debate among lawyers, academics, politicians, commentators and lobbying groups over the three-fifths rule's constitutionality has demonstrated the complexity of the questions surrounding it.

The key constitutional question is this: Does either house of Congress have any power to impose upon itself a rule that specific kinds of legislation may be passed only if they receive a "supermajority" approval (something more than half the votes plus one)?

But there are equally complex questions of how, if ever, a challenge could get into court and stay there long enough to produce a decision on constitutionality.

Some opponents of the proposed rule and some neutral analysts insist that the Constitution's wording and prior Supreme Court rulings make it clear that it is unconstitutional.

Among those making that argument lately have been influential Washington lawyer Lloyd N. Cutler, who served as White House counsel to Presidents Clinton and Carter, and Yale law professor Bruce Ackerman. That assessment, however, is sharply disputed supporters of the rule and by some other neutral observers.

Representative Solomon, for example, argues that the Constitution says nothing on the subject beyond leaving the House largely free to use its discretion about its rules of procedure.

Harvard law professor Laurence H. Tribe, who has expressed some concern about the impact of the rule on the House's freedom to act, nonetheless says that the constitutional questions have "not been definitively resolved" yet, and the answers are "not as easy as might appear at first."

The words of the Constitution itself are the basic source of disagreement over the three-fifths rule's validity.

One clause says each house of Congress "may determine the rules of its proceedings." Another says that "a majority of each [house] shall constitute a quorum to do business."

Still other clauses specify more than simple majorities to take specific actions: a two-thirds vote to override a presidential veto, for example.

Opponents of the three-fifths rule cite the majority quorum requirement as a clear indication that the Constitution means a simply majority is all that is needed to pass legislation.

The challengers also argue that the Constitution specifies the only issues subject to supermajority requirement, meaning that no others may be added.

Those who think the rule is constitutional rely on the Constitution's grant of rule-making power to each house and say the Constitution is silent on what the rules may say.

The Supreme Court remarked in an 1892 ruling that "the general rule of all parliamentary bodies is that, when a quorum is present, the act of a majority of the quorum is the act of the body."

That statement, however, is read entirely differently by the two sides in the debate over the three-fifths rule.

Opponents of the rule say that statement shows the court has embraced a simple majority as the norm.

Supporters of the rule counter that the court was dealing, in fact, only with the quorum issue, not with the specific question of a supermajority to pass a specific kind of law.

The courts, however, may never get around to deciding who is right about the constitutionality of a new supermajority rule.

It is not clear that the federal courts would recognize anybody's right to file a lawsuit challenging the House rule, since the courts have imposed strict limits on who may ask a court to referee disputes carried on within Congress.

A more significant barrier, though, is that the courts often have looked upon fights that go on inside Congress as political disputes, to be kept free from judicial interference.

So, even if someone were allowed into court to start a challenge, the case might be thrown out on the theory that only a "political question" was at stake.

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