Balanced Budget Measure Still a ‘Bad Idea,’ Professor Tells Senate Panel

by Jeremy Leaming

A proposed constitutional amendment to mandate a balanced budget has already failed in the House, but senators must also vote on a version before the end of the year as required by the debt-ceiling deal reached in the summer.

Beginning to consider a balanced budget measure, the Senate Judiciary’s Subcommittee on the Constitution, Civil Rights and Human Rights, earlier this week, heard from detractors and supporters of the idea that has been embraced by a slew of states and mulled in Congress for more than a decade. A measure similar to the one the House defeated last month was rejected by Congress in 1995.

Alan B. Morrison, an associate dean of George Washington University Law School for Public Interest and Public Service Law, and a distinguished law professor, told the Subcommittee the balanced budget amendment was a “bad idea,” and urged the Senate to “vote it down and get back to the real work of controlling our deficits.”

Morrison, who helped found Public Citizen Litigation, where he was involved in separation of powers cases, many of which reached the Supreme Court, said, in part, that the proposed amendments would likely shove courts into deciding budgetary matters.

He told senators that “thrusting the courts into budget battles is to me, and I believe to most others who have given the matter any serious thought, a terrible idea. At the very least, it is very strong medicine. But if that is what the sponsors think is needed, they should have the courage to say so. On the other hand, if the cure of judicial review is seen as worse than the ills of an unbalanced budget, Congress should make that clear in the amendment itself. If that option is taken, then the amendment will probably end up being little more than empty rhetoric, to be followed when it is convenient, and ignored when it is not. Meanwhile, serious efforts to bring our spending more in line with our revenues will be put on the back burner while Congress relies on the hope that the balanced budget amendment will do its job.”

Morrison’s entire testimony is available here. Video of the hearing is available on the Subcommittee’s website.

In November, shortly before the House’s consideration of the balanced budget measure, ACS released an Issue Briefby Neil Kinkopf detailing a string of shortcomings of a balanced budget amendment. Kinkopf, a law professor at Georgia State University, wrote, “If the courts were to play their usual role as constitutional interpreter and enforcer with respect to the balanced budget amendment, however, it would threaten not merely to alter but to eviscerate the fundamental character of the judiciary. Our judiciary is able to perform its function because it is independent of politics, and because the public trusts that independence. This character stems from the Constitution’s specific design. Federal judges do not depend on politics to maintain office and do not participate in the political functions of government.”

Also before the House took up the balanced budget amendment, Bruce Bartlett, who worked in both the Reagan and George H.W. Bush administrations, slammed the measure, writing “the idea of mandating a balanced budget through the Constitution is dreadful. And the proposal that Republican leaders plan to bring up is, frankly, nuts.”