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Getting Control of Congress, Permanently
American Thinker ^ | January 07, 2010 | John Armor

Posted on 01/07/2010 9:27:47 AM PST by neverdem

We are now experiencing a disconnect between national political leaders and the citizenry. Public support for congressional actions is low and falling, as are the president's numbers. Public opposition to the health care bill, now passed in different forms in the House and Senate, is at 59% and rising.


In various ways, the people are strongly indicating that they think Congress is out of control and needs adult supervision. Particularly galling is the revelation that Senate leaders bought critical votes on the health care bill by dumping hundreds of millions in special benefits into states whose senators had withheld support -- until they got their bribe.

In answer to the public outcry, Senate Majority Leader Harry Reid shrugs and says that any senator who "does not seek as much as he can" for his own state isn't doing his job.

Perhaps it's time to look to the states, where more tools are available to rein in profligate legislators. If similar constitutional restraints were imposed on Congress, many if not all of the recent abuses would be prevented permanently.

With the way Congress is hemorrhaging the nation's money, we can't afford to wait until November to do something. Besides, whatever changes in policy occur in the midterm elections of 2010 may be temporary. As the Supreme Court has repeatedly written, each Congress is free to make its own decisions; no Congress can bind the actions of future Congresses. The only reforms that can permanently increase popular control of Congress are constitutional, not legislative.

Three controls that the people have placed in state constitutions do not exist at the federal level. These are balanced budget amendments, line item vetoes, and single-subject requirements.

Balanced budget requirements (BBA) exist in some form in all fifty states. There must be an escape clause in these requirements or the restriction would prevent all curative steps in an economic emergency. The late economist Milton Friedman suggested that a two-thirds vote of both Houses of Congress should be required to override the BBA proposed for the federal Constitution [i].

If the federal government had already had such a BBA, none of the current or proposed  emergency spending bills would have passed in their present form, with uncontrolled and unverifiable spending and trillion-dollar deficits for the next decade at least.

The second constitutional control common in the states but absent at the federal level is the line item veto. This exists in 43 states in various forms. When they work, they prevent legislatures from passing kitchen-sink legislation. The temptation to stuff bills is common at all levels of government. Some legislators try to attach special and unpopular spending provisions to a popular and must-pass bill to force a governor to accept the bad with the good. With a line-item veto, a governor can strike individual items from any bill.

If every president had the same line-item power that most governors have, each president would be responsible for any earmarks that remained in any bill [ii]. President Obama has decried special-interest earmarks, but he has not vetoed any bill over them. Presidents Reagan, Bush, and Clinton all sought line-item veto power. Congress passed a bill to create that power for President Clinton. Promptly after he used it, the Supreme Court struck it down, saying it must be established by amending the Constitution.

The third constitutional control common among the states but absent at the federal level is the single-subject requirement on all bills. This exists in 41 states  in various forms. It's another protection against kitchen-sink legislation when the issue is policy, not money.

Under single-subject, legislators cannot attach provisions on such hot-button issues as taxes, regulation, abortion, gun control, or welfare to highly favored bills on entirely different subjects. At the federal level, disfavored clauses are often added to bills with the intention of forcing adoption of the disfavored clause, or to create a poison pill to kill the overall bill.

All three of these provisions work more effectively if there is a tightly written constitutional control and a tendency of the highest courts in that jurisdiction to enforce them.

The remaining question: What are the chances that Congress, which has created the current problems, will pass by the required two-thirds vote three amendments which would curtail their current behavior? Given that the major legislation passed by Congress in 2009 has obtained a majority in both Houses, it would seem improbable to obtain a turnaround in both of them to two-thirds for reform in a single election.

On their face, all Amendments to the U.S. Constitution were proposed by a two-thirds vote of both Houses, and then ratified by three-fourths of the states, as stated in Article V. But that Article has an exception.

The exception was put in by the Framers in Philadelphia to deal with the possibility that the people might want a change that Congress opposed.

The 17th Amendment, which made U.S. senators elected by the people rather than chosen by the state legislatures, provides the critical example. In 1900, the Progressive Party controlled several states and was powerful nationally. One of the Progressives' tenets was that the U.S. Senate should be popularly elected. Before 1912, that idea succeeded repeatedly -- but only in the House, where the 17th Amendment passed ten times by a two-thirds vote. Ten times, however, the Senate defeated the Amendment without even a hearing [iii].

At the same time, the states began passing Calls for a Constitutional Convention, which is the alternate way to propose Amendments if Congress will not act. Article V provides that once two-thirds of the states demand a Convention, Congress must call one. Thirty-two states demanded that Congress either pass the 17th Amendment or call a Convention.

At that point, the Senate relented. It recognized that a Convention could write an Amendment that would put all non-elected senators out in the street and replace them immediately with elected ones. The sitting senators saved what they could from the impending 17th Amendment. They inserted the final clause, which says: "This amendment shall not be so construed as to affect the election or term of any senator chosen before it becomes valid as part of the Constitution."

The election route and the constitutional route are complementary, not alternative. Anyone who wants to reestablish control over the Congress should get active now for the midterm elections of 2010.

But they should also see to it that these three changes to the U.S. Constitution be submitted for consideration in all state legislatures, just like the call for the 17th Amendment was. Enough activity at the state level could send a powerful message to Washington.

John Armor practiced in the U.S. Supreme Court for 33 years. He also wrote a book on term limits and worked for decades on the Balanced Budget Amendment. This article was written for the American Civil Rights Union (www.theacru.org). Contact the author at John_Armor@aya.yale.edu.


[i] Author's note: I spent 25 years working on the BBA proposal, which included testifying before committees of 26 state legislatures as an expert witness on BBA and on Article V of the Constitution. I also spent a day two decades ago with Dr. Freidman discussing the precise language of the BBA.

[ii] See the testimony of Stephen Moore, Director of Fiscal Policy Studies for the CATO Institute, before the Subcommittee on the Constitution of the Senate Committee on the Judiciary on 24 January, 1995 at http://www.cato.org/testimony/ct-moor2.html.


[iii] For a detailed discussion of the Convention Call route to amending the Constitution, including the 17th Amendment, see the Heritage Foundation's review of Amending the Constitution by the Convention Method, an officially-adopted policy of the American Bar Association, at http://www.heritage.org/Research/PoliticalPhilosophy/bg637.cfm.


TOPICS: Constitution/Conservatism; Crime/Corruption; Editorial; Politics/Elections
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To: Congressman Billybob

Way to go John, American Thinker is a big outfit to get published!!!!!


21 posted on 01/07/2010 1:29:37 PM PST by CPT Clay (Pick up your weapon and follow me.)
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To: sig226

Bump


22 posted on 01/07/2010 1:31:53 PM PST by CPT Clay (Pick up your weapon and follow me.)
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To: Carry_Okie
I just don't buy that. Can you say that about Tom Coburn or James Inhofe?

They're the exception not the rule. With incumbents getting reelected at rates of ninety percent or better, do you really want more of the Bobby Byrd and John Murtha types. Twelve years in each house is plenty.

As opposed to the need for relying upon more experienced staffers we don't elect to explain how things work?

Let them stick to the Constitution. The less laws they make the better. They can start repealing stupid laws.

This is just not true. With term limits, it takes LESS money to buy a candidate, run him, and offer him a cushy job on the back side up front. It also increases the likelihood for a chain of complete unknowns running for office with little identifiable record by which to qualify their integrity under pressure.

That assumes they're all bought, and that they have no record as local and state politicians.

"As for shifting power to the legislative staff and the bureaucracy, that was needed before the computer when all these laws, regulations and rules were on paper. With computers and the internet, much of the staff and bureaucracy could be eliminated."

Please explain the basis for this claim.

Information technology greatly reduces the need for staff devoted to researching printed paper copies of anything, IMHO.

23 posted on 01/07/2010 1:54:12 PM PST by neverdem (Xin loi minh oi)
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To: CPT Clay; dalereed
Way to go John, American Thinker is a big outfit to get published!!!!!

IIRC, dalereed had unkind words for American Thinker. I forget the thread, but the admin mod removed them.

24 posted on 01/07/2010 1:58:53 PM PST by neverdem (Xin loi minh oi)
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To: neverdem
Sorry, but with the help of Government schools and the Media, the American people are too stupid. They don't know how to primary, don't care to learn the facts (hence Republicans believed McCain was anti-Amnesty 2 years ago), and punish bad Republicans by electing worse Democrats.
We have teh government we deserve.
25 posted on 01/07/2010 2:07:46 PM PST by rmlew (Democracy tends to ignore..., threats to its existence because it loathes doing what is needed)
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To: neverdem
That assumes they're all bought, and that they have no record as local and state politicians.

Actually, from what I've seen, California politicians are now more "bought" than ever, in part because they need a job after their terms. More importantly, very few have the faintest idea what they are doing. Yes, we got rid of Willie Brown, but we termed out the likes of McClintock, Richardson, Haynes, and Kopp (a Dem, but an honest man). In only one of those cases did the pol move up and he would have done so anyway.

Term limits have not worked in California; they made things worse. Willie Brown may have been a crook, but at least he was competent. This crew is not only crooked, but downright dangerous.

26 posted on 01/07/2010 3:09:33 PM PST by Carry_Okie (The Democrats were the Slave Party then; they are the Slave Party now.)
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To: okie01

Some kind of weird liberal logic going on there - segregating people by their skin color, so that they can have someone of their own race represent them.

In a true capitalist society, wouldn’t it be better to gerrymander people based on their economic status, then make it a law so that only people that live in the district are allowed to donate money to their candidate? This would keep outsiders from buying the election, so they would be more likely to have someone that truly represents them.


27 posted on 01/07/2010 4:22:24 PM PST by smokingfrog (Don't mess with the mocking bird! - http://tiny.cc/freepthis)
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To: Carry_Okie

There’s reason for you receiving no response?


28 posted on 01/08/2010 3:23:00 PM PST by Avoiding_Sulla (Yesterday's Left = today's status quo. Thus "CONSERVATIVE": a conflicted label for battling tyranny.)
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To: Congressman Billybob

proud of you. really. thanks for all you do for us.


29 posted on 01/08/2010 6:05:10 PM PST by bitt (You canÂ’t make a weak man strong by making a strong man weak (Abraham Lincoln))
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To: Congressman Billybob; neverdem

Do any states have BBAs currently in place?

How are they working? I live in IL and they gimmick it up to “balance” the budget breaking the laws legally.

What’s the experience base in the other 50 American laboratories called states?

How about the states with line item vetoes (43 per the article)? Are they in good shape? IL has the line item veto and it’s made little difference.

How does the single-subject requirement work in the 41 states that have it? IL judges use it to overturn legislation, some of it good. It locks out the minority party from attaching bills that would change things in IL for the better.

I do appreciate the ideas and FR seems to have an overabundance of ideas for fixing America.

But, to me our best move is to walk the people, the executives, the legislatures and the judges back to our existing Constitution as written.

I don’t see anything past the 15th Amendment that improved on the original.


30 posted on 01/09/2010 6:04:26 AM PST by 1010RD (First Do No Harm)
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To: 1010RD
As the article says, all fifty states have some form of the BBA, though some are more effective in how they are written, and enforced.

John / Billybob

31 posted on 01/09/2010 6:35:43 AM PST by Congressman Billybob (www.TheseAretheTimes.us)
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To: Congressman Billybob
some are more effective

What causes one BBA to be more effective in one state than in another?

Doesn't it net out to who the voters elect, not the Constitutional provisions? Isn't the real problem thieves electing theives?

I don't think tinkering with the Constitution will make a difference if voters continue to elect and accept socialists as their masters.

32 posted on 01/09/2010 6:24:26 PM PST by 1010RD (First Do No Harm)
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To: Congressman Billybob; PugetSoundSoldier
all fifty states have some form of the BBA, though some are more effective in how they are written, and enforced.

So the wild card, per normal, are the people themselves. If they tolerate thieves and liars they get theft and lies.

The solution is shrink government down. PSS has a great solution that even a child can grasp and that is politically feasible. The conservative movement needs to embrace it and then you'll have majorities forever.

33 posted on 01/16/2010 3:32:29 PM PST by 1010RD (First Do No Harm)
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