Toothless Platitudes Won’t Solve Debt Crisis

I like Sen. Tom Coburn. In 2007, after the electorate threw out his party’s majority in the Senate, Coburn said: “I think [American voters were] wise to want change. The Republicans didn't do what they said they were going to do. They deserve the wrath of the voters." Refreshing. Coburn was and is a fearless opponent of congressional earmarks, bucking his own party members when they sought to benefit their state at the expense of the nation (Coburn was the Senator who blew the whistle on Alaska’s “Bridge to Nowhere”). According to a 2007 GQ article, Senator Coburn wants the American public to know “how it works in Washington, how the machine keeps itself running, and the favors get traded, and the deals get struck, and the bridges to nowhere are going up every day. He wants you to know that the United States Congress simply cannot stop itself—that both parties are in on the fix, backing each other and looking the other way, and that in the spirit of bipartisan waste, they manage to blow $500 billion more than they collect in taxes every single year.” Ahh, the “good old days” when the federal deficit was only $500 billion a year!

Given his reputation as a fiscal hawk, I was not surprised when Sen. Coburn became a member of the Bowles-Simpson Debt Reduction Commission, nor was I surprised when Sen. Coburn continued this effort by becoming a member of the “Gang of Six.” Given the pap that constitutes the Gang of Six proposal endorsed by the President yesterday, I see now why Coburn walked out of the Gang of Six weeks ago.

The Christian Science Monitor today reported on the elements of the Gang of Six proposal. Some of these elements are a bill that cuts $500 billion in discretionary spending over 10 years (remember that in 2007 Congress overspent its revenue by the same amount in one year), a congressional pay freeze (unlike many employees today, Congressmen have had pay raises the last few years), the sale of “unused federal property” (don’t expect top dollar in this real estate market!), and “new discretionary spending caps through 2015.”

“Spending caps” sounds good, but Congress already tried this years ago and it failed. In 1985, because of rising deficits Congress passed, and President Reagan signed, legislation sponsored by Sens. Gramm, Rudman, and Hollings. This legislation, popularly known as “Gramm-Rudman,” provided for automatic spending cuts of “non-exempt funds” if the budget failed to reach established targets. Not surprisingly, in five years Congress failed to pass a budget that met the established targets, and because Congress had exempted a big portion of the budget, Gramm-Rudman required a 32% reduction in defense spending. This was unacceptable, and therefore Congress scrapped Gramm-Rudman and enacted the current system which caps spending and requires Congress to identify and secure new revenues for new spending (the “pay-as-you-go” requirement). We have all seen how well this has worked over the past five years.

The GQ article on Sen. Coburn makes the point that “the members of the United States Congress will spend your money just because they can. That they'll do it even when they can't.”

President Reagan when discussing a nuclear arms treaty with the Soviet Union famously quipped: “Trust but verify.” He never made a similar comment about Congress, perhaps because he found Congress less trustworthy on budget matters.

The only way to save our public treasury and economic future for our children and grandchildren is to restrain our representatives. Just like the Founders restrained government from interfering with citizens’ religious convictions, free speech, freedom of assembly, warrantless intrusions into our homes, right to counsel during criminal proceedings and all the other elements of our Bill of Rights, we need a constitutional restraint from government overspending. We need the federal government to pay for its spending by raising revenue, suffering electoral consequences for either raising taxes or not spending enough money. Just like the states and our households, the federal government must balance its budget, and the only way to hold the government accountable is a constitutional amendment with a provision giving taxpayers the standing to sue if the federal government’s budget is not balanced.

Who Shuts Down the Government According to the Constitution?

Shutting down government, or at least stalling its progress, seems to be a rite of spring these days. Last year a Republican filibuster delayed passage of the health care reform bill in the U.S. Senate. This spring, the Democrats in the Wisconsin Senate and the Indiana House decided to shut down reform efforts in their states by taking their “spring break” in, of all places, Democratic-controlled Illinois (much to the delight of the Illinois hoteliers). Similarly, this spring there has also been much talk about a federal government shut down. In this discussion, however, I have seen little coverage on what the Constitution says about responsibility for a federal government shut down.

In the Constitution, there is a rather obscure provision known as the Origination Clause. This Clause, which is found in Article I, Section 7 of the Constitution, states simply that “[a]ll Bills for raising Revenue shall originate in the House of Representatives.” Although this Clause contains no express words of “shut down” or similar import, it does designate responsibility for supplying government with money, which of course allows it to operate. In conformity with this process, all recent Continuing Resolutions to fund government have originated in the House of Representatives.

Starting the process of funding government in the body closest to the will of the electorate was not an original idea for the Founders. England for many years prior to our nation’s founding required money bills to start in the House of Commons which makes eminently good sense – the representatives of those who pay the taxes should have the first say in what those taxes will be.

James Madison, our fourth President and the Father of the Constitution, noted the importance of the Origination Clause in The Federalist No. 58. He wrote: “The House of Representatives cannot only refuse, but they alone can propose, the supplies requisite for the support of government. They, in a word, hold the purse . . . [which] may, in fact, be regarded as the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people . . .” This powerful weapon, this power of the purse, lies in the hands of those public officials who must face the electorate every two years and therefore are most sensitive to the will of the people, the members of the House of Representatives.

The Origination Clause gives the House the power to start the process of taxing and spending, but this power is not exclusive. That is, in our system of checks and balances, bills to fund the government, like other legislation, must also be approved by the Senate and then signed by the President before they become law.

The House of Representatives fulfills its constitutional role to fund government if it passes a budget and then forwards it to the Senate for consideration. The Senate, of course, may not agree with the budget proposed by the House. Similarly, the President may disagree with the budget passed by the House and Senate and therefore veto it. If the Senate and President disagree with the House passed budget, however, it is they, and not the House, that is deciding to shut down government. The Senate and President would assure continuance of government by agreeing with the budget passed by the House.

Please recognize that this analysis of the Origination Clause does not favor either party. Currently the Republicans control the House as the result of the last election. They want to spend less money than the Democrats in the Senate and the President. If the House passes a bill cutting spending and the Senate and/or President refuses to accept it, it is the Democratic Senate or President Obama who is shutting down the government and not the Republican House. Please note, however, that when the voters return the House to Democratic control in the future and the Senate or the presidency is controlled by the Republicans, a budget passed by the House but refused by the Senate or President will also result in government shut-down but this time caused by the Republicans.

The Origination Clause gives responsibility for initiating and passing a budget to the body that can be thrown out of office every two years. The House Republicans are, just like their Democratic predecessors, responsible directly to the will of the electorate. They should respond to the public who voted them into office. They will fulfill their constitutional responsibility by passing a budget bill the House majority finds acceptable. If this bill is unacceptable to the Democratic controlled Senate and Executive Branch, they can refuse it and therefore cause the government to run out of funds. Such a shut down, of course, would be the fault of the Democrats and not the House Republicans.

Our Prosperity and Posterity

Life in post-Revolution America was rough and bears some semblance to today. The new nation was deeply in debt because of governmental spending, and foreign lenders refused to accept our paper money, insisting instead on gold. When debtors could not pay their loans, the banks started a wave of foreclosures in Massachusetts, took possession of farms and homes, and jailed debtors. Hundreds of people coalesced around Daniel Shays, a Revolutionary War veteran, who led his “army” in shutting down courts to stop foreclosures and then freeing imprisoned debtors. Neither the national or state government was willing or able to respond, so a group of Bostonians paid for an armed militia to go to western Massachusetts, reopen the courts, and defeat and arrest Shays and his army. Within a few months of this incident, the Constitutional Convention began in Philadelphia.

Shays’ Rebellion must have been on the mind of those gathered in Philadelphia during the summer of 1787, since the Preamble states that the Constitution’s purposes include “to insure domestic Tranquility,” and to “secure the Blessings of Liberty to ourselves and our Posterity . . .” These “Blessings of Liberty” included personal and economic freedom so Americans and their posterity could pursue “happiness” (the acquisition of property), which was identified as an “unalienable” right in the Declaration of Independence eleven years previously.

Regarding securing economic freedom for their posterity, the Founding Generation and their immediate successors unlike today paid off their national debt. Primarily because of the Revolutionary War, the national debt in 1791 stood at $75 million. This debt grew but by 1835, America was debt free. The Civil War caused the national debt to climb for the first time into the billions ($2.7 billion after the war), but this debt stayed rather stable until World War I pushed the national debt to $22 billion. The debt was paid down in the 1920s to $16 billion, until the social spending of the New Deal and World War II exploded the debt 1600% to an amount equal to the value of all goods and services produced in the U.S. in one year. With the rapid expansion of the economy after World War II, the percentage of debt to GDP fell while the debt increased primarily due to inflation. The debt passed $1 trillion in 1982, doubled to $2 trillion in 1986, and then added another trillion dollars in debt in 1990, 1992, 1996, 2002, 2004, 2006, 2007, and 2008. This raging appetite for debt continues. The Congressional Budget Office in March estimated that the current $10 trillion debt would double in ten years based on President Obama’s budget.

Although the Cold War, Vietnam and Iraq Wars, and other overseas ventures have consumed considerable resources, we have not had a world war for 60 years. Rather, our continuing huge budget deficits and resulting mountains of debt are attributable to expensive social programs passed largely by Democrats (who failed to raise taxes to cover the new expenses) and tax cuts passed largely by Republicans (who failed to cut spending). In other words, for the past 25 years our leaders have borrowed money so we could spend it on ourselves either for retirement benefits, prescription drugs, health care for the elderly, or simply more consumer spending – a continuing legacy of the “Me Generation.” The debt, and the burgeoning interest on the debt, we leave to our children and grandchildren.

By adding “…and our posterity” to the Constitution’s Preamble, the Founders placed upon themselves and all subsequent generations (certainly including us) a profound moral duty which we have sorely neglected. Such neglect is reason enough for the rise of future Daniel Shays. Whereas the Founders in gaining independence sacrificed their prosperity for their posterity, we have sacrificed our posterity for our prosperity.

Good Politics but Unlikely Bipartisanship

President Obama’s selection of Sonia Sotomayor as his first nominee to the Supreme Court certainly is good politics. Given Judge Sotomayor’s gender, ethnicity, and Roman Catholic background (she graduated in 1972 from Cardinal Spellman High School in the Bronx), the President tipped his hat to three important voting constituencies that favored him much more than John Kerry.

Good politics, however, does not necessarily ensure a good Supreme Court pick. Take President Eisenhower, for example. His first nomination (as Chief Justice) was a political rival for the 1952 Republican presidential nomination, and he later picked a New Jersey Catholic to curry the favor of northeast voters in the 1956 election. After Eisenhower left office, a reporter asked him whether he had made any mistakes as president. "Two," the former president replied. "They are both on the Supreme Court." Eisenhower’s selections of Earl Warren and William Brennan led to an unpopular explosion of criminal rights.

Other examples abound, including the selection of the “stealth nominee” whom Judge Sotomayor will replace if confirmed by the Senate. At the press conference announcing David Souter’s nomination, President George H.W. Bush said five times that the future Justice Souter was "committed to interpreting, not making the law." In promoting David Souter to conservatives, White House Chief of Staff John Sununu described his fellow New Hampshire citizen Souter as a “home run,” which conservatives foolishly interpreted as a “home run” for their team.

With this pick, it is unlikely that President Obama is repeating the mistakes of these Republican Presidents. First of all, the President is not politically indebted to Ms. Sotomayor, and although he seeks to curry favor with the fastest growing element of the electorate, he is not selecting a conservative Hispanic. Perhaps most importantly, the President has a very healthy majority of fellow Democrats in the Senate, and therefore does not have the problem usually confronted by Republican Presidents (while Republicans have enjoyed the White House for 36 of the past 57 years, they have controlled the Senate for only 14 of those years).

With confirmation assured, President Obama nevertheless will seek votes from Republican senators so he can claim bipartisan support similar to that achieved by President Clinton (the Senate approved Clinton’s choices of Ruth Bader Ginsburg and Stephen Breyer by votes of 96-3 and 87-9, respectively). Such bipartisan support is unlikely, however, since Republicans in the Senate cannot simply “roll over” like they did for Ginsburg and Breyer after the pitched confirmation battles for Chief Justice Roberts (confirmed 78-22) and Justice Alito (confirmed 58-42). Rest assured that the confirmation process, however, will not be as rancorous as that of Roberts and Alito, since the Republicans on the Judiciary Committee have no one comparable to Sen. Charles Schumer.

Republican Senators seeking cover for voting for Sotomayor should not look to the fact that the first President Bush nominated her to the federal bench. First of all, historically the selection of federal district court judges has been the prerogative of the U.S. Senators from the state where the vacancy exists. The White House and the Department of Justice’s Office of Legal Policy review the recommendations, of course, but given the nature of the work (the overwhelming majority of the 338,000 criminal and civil cases filed in 2008 are routine in nature) and the fact that few of these cases (less than 200, and some of these are appeals of State Supreme Court decisions) actually go to the Supreme Court, great deference is given to the recommendation of the Senators.

Moreover, any stamp of approval by the first Bush administration for Judge Sotomayor is particularly dubious because of the “New York Rule.” In New York (as well as other states that follow this practice), the two U.S. Senators divide their judicial selections with the U.S. Senator of the same party as the occupant of the White House getting three judicial picks and the Senator of the opposing party getting the fourth pick. The two U.S. Senators from New York during the first Bush administration were Republican Al D’Amato and Democrat Daniel Patrick Moynihan. Given Judge Sotomayor’s politics, she was most likely the pick of Senator Moynihan rather than Senator D’Amato, and the administration of George H.W. Bush merely complied with this recommendation.

Given the depleted ranks of Republican senators and their natures (which white Republican male senator from the South or West will want the role of being harsh to a Hispanic female?), the confirmation of Judge Sotomayor will not replicate the battles for Robert Bork and Clarence Thomas. Another reason for concluding that Sotomayor is a good political choice for President Obama.

More Courts Imposing Their Values

With the Iowa Supreme Court overturning a state law banning homosexual marriage and the California Supreme Court pondering the same, it could be a tough month for democracy in America. The Iowa court earlier this month declared unconstitutional a statute similar to the Defense of Marriage Act passed by the U.S. Congress and the legislatures of 18 other states. These Defense of Marriage Acts expressed the values of the popularly elected legislators and governors of these 18 states. The California Supreme Court is considering action even more egregious, this being overturning a constitutional amendment adopted directly by a majority of California voters in the last election. This California referendum, similar to the constitutional amendments banning same sex marriage passed by the citizens of 29 different states, expresses directly the values of the voters.

The decision by the Iowa Supreme Court is not, of course, the first time a court has thwarted the will of the people. Courts in California are rather notorious for this, having ruled unconstitutional two popular referenda declaring illegal aliens ineligible for public services (Proposition 187) and seeking term limits on congressmen (Proposition 227), and also ruling unconstitutional California’s Defense of Marriage Act (a ruling that led to the constitutional amendment which the court is now considering). This thwarting of the will of the people is not limited to California. The U.S. Supreme Court in 1996 threw out a Colorado constitutional amendment approved by a majority of Colorado voters that prohibited any preferential treatment for homosexuals.

Each time a court overturns a referendum or statute expressing the values of the people or their elected representatives, confidence in the judiciary and the rule of law diminishes. The U.S. Supreme Court itself recognized this inevitable outcome of judicial action in one of the most closely watched cases of our generation, Planned Parenthood v. Casey. In Casey,the Court reconsidered its 1973 decision of Roe v. Wade but this time, unlike previous abortion cases, the pro-lifers appeared to have the edge. Since 1973, the avowedly pro-life President Reagan had nominated three justices to the Supreme Court (Justices Scalia, Kennedy, and O’Connor), and the professed pro-life President George H.W. Bush had added two more (Justices Thomas and Souter). With the pro-life Chief Justice William Rehnquist solidly in favor of overturning Roe, it appeared likely that the regulation of abortion would return back to the states for consideration of what, if any, protection the people’s representatives would give to unborn babies (prior to Roe v. Wade, some states gave little protection and some states extensive protection).

The Court in Casey affirmed a woman’s right within limits to abort her baby. The important aspect of Casey for purposes of this article, however, is the reasoning provided by the three Republican appointees (Kennedy, Souter and O’Connor) who commanded the decision in this case. They wrote that in spite of the continued controversy and annual January marches on Washington, generations of women had come to expect the right to abort. More fundamentally, the three Justices noted that the root of the U.S. Supreme Court’s power resides “in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.” A large part of this legitimacy is based “on the very concept of the rule of law underlying our own Constitution [which] requires such continuity over time . . .”

Justice Scalia in his dissent directly addressed the legitimacy of the Court and the rule of law. He noted first of all that longevity of a ruling like Roe does not ensure its continued vitality and correctness – the “separate but equal” principles of Plessy v. Fergusoncontinued for three generations of blacks and whites before being overturned in Brown v. Board of Education. More importantly, Justice Scalia addressed the Court’s disregard of the expressed will of the people. He wrote: “As long as this Court thought (and the people thought) that we justices were doing essentially lawyers’ work up here – reading text and discerning our society’s traditional understanding of that text – the public pretty much left us alone. . . . But if in reality . . . our pronouncement of constitutional law rests primarily on value judgments, then a free and intelligent people’s attitude towards us can be expected to be (ought to be) quite different. The people know that their value judgments are quite as good as those taught in any law school – maybe better. . . . Value judgments, after all, should be voted on, not dictated . . .”

Yesterday’s Tea Parties demonstrate that ordinary people in America are frustrated because the will of the elite (a category that certainly includes the judiciary) seems to trump the will of the electorate. Iowa is certainly no exception to this perception. The more the courts flaunt the will and values of the people, the more the American people will question the legitimacy of the judiciary. At some point the people will simply reject the will of the rogue judiciary, leading to first sporadic and then more generalized break-down of the rule of law, which would have devastating consequences to the functioning of our society.

The courts can still forestall this by heeding the wisdom of Justice Scalia, who recognized that the values of five Supreme Court Justices must not trump the values of millions of American voters. Unless the judiciary wakes up, soon the American public will join the refrain of President Andrew Jackson, who said: “[Supreme Court Chief Justice] John Marshall has made his decision, now let him enforce it.”