GOP amendment tries to put lipstick on our budget pig

There’s no way to sugarcoat it: Things have been terrible for fiscal conservatives lately — even more than normal. The Congressional Budget Office’s (CBO) latest budget outlook, published Monday, showed what anyone not living in a cave could have expected: the re-emergence of indefinite, trillion-dollar deficits.

The report underscores how far we’ve fallen in just over seven years since the Budget Control Act, which guaranteed a floor vote on a Balanced Budget Amendment (BBA) and set in motion at least tiny steps toward spending restraint.

As Archie Bunker used to say, “Those were the days.”

{mosads}Not to fear, say congressional Republicans, fresh off a budget-busting deal that would make even President Obama blush. Their solution comes this Thursday with a vote on Rep. Bob Goodlatte’s (R-Va.) H. J. Res. 2, a slightly modified version of the BBA proposal that failed in 2011. 

Unfortunately, not all balanced budget amendments are created equal, and even if this one were to pass — and it most certainly won’t, given the two-thirds threshold needed — it leaves much to be desired. 

The basic mandate in the bill is that “total outlays … shall not exceed total receipts” in any fiscal year, unless three-fifths majorities in both houses authorize a specific excess of outlays — a requirement that, were it enforced, could end up nonsensically restrictive.

Luckily, perhaps, there is little chance it would be. Congress is supposed to obey this mandate simply out of fidelity to the Constitution, because the Goodlatte BBA isn’t self-enforcing.

In fact, it’s easy to imagine a scenario in which lawmakers would claim to uphold their oath by voting against government spending they dislike, while failing to create the majority consensus needed to enact an actual balanced budget into law.

That said, the bill does contain a few enforcement mechanisms, but they fall apart on closer scrutiny. There is a three-fifths requirement for raising the debt ceiling — but when Congress faced similar standoffs in the past, crises were resolved with voting majorities exceeding or nearly exceeding 60 percent.

The 2013 debt ceiling vote is particularly instructive and highlights another glaring defect in H. J. Res. 2. While the proposal requires a three-fifths vote for increasing the debt ceiling, it contains no such provision for waiving or suspending it.

In other words, those latter options are fair game with a simple majority. Lest you think this is an unlikely hypothetical, remember that suspensions have become the new normal, occurring in 2013, 2015 and, most recently, in 2017. 

The Goodlatte BBA also has the standard escape clauses for war and military conflicts, in which absolute majority approval in each chamber would allow for deficit spending during times of significant military engagement.

With our current level of military intervention abroad, it’s hard to imagine a time when Congress wouldn’t be able to utilize this loophole.

In short, if Congress were to invoke the three-fifths override or the national security waiver, the Goodlatte BBA ceases to be a balanced budget mandate and instead becomes just another debt ceiling-style fiscal “limit” that gets ignored over and over again.

But let’s assume for a minute that these scenarios aren’t an issue and that Congress decides to violate the BBA anyway. What then?

In theory, the courts could step in and order spending cuts or revenue increases, but the Supreme Court likely would prohibit these actions under the “political question” doctrine and related rules regarding justiciability. This leaves just one last enforcement option in the bill: presidential impoundment.

Historically, impoundment let presidents sequester funds in order to comply with constitutional imperatives — or just because they wanted to. But as usual, it’s not quite that simple. In the wake of Nixon’s overuse of the power in the 1970s, the 1974 Budget Act severely limited it by requiring congressional approval.

It’s in this context that using impoundment as a BBA enforcement mechanism presents complications. Because government outlays occur when the Treasury releases funds to liquidate federal obligations, outlays are an explicitly executive function, not a legislative one, like authorizing or appropriating funds.

Taken literally, Goodlatte’s requirement that “total outlays … not exceed total receipts” places no constraint on Congress’ power to appropriate, but rather prohibits the Treasury from releasing funds in excess of the “receipts” that it collects. 

Having sworn to “faithfully execute” any ratified BBA, a president could credibly claim that refusing to release excess outlays from the Treasury would be a proper means of faithful execution — perhaps the only means.

Since the amendment imposes no scheme of payment priorities, the president would have sole discretion over which funds to withhold in order to ensure that there is no excess of outlays over receipts. 

The net effect of the bill, then, is that it would create a virtually unlimited, albeit implied, impoundment power, flying in the face of the rules outlined in the 1974 Budget Act, and creating a tension that few in Congress have acknowledged.

In the end, the most direct way to stop deficit spending is just to end federal borrowing altogether by repealing the Borrowing Clause in Article I, Section 8. Of course, no one seriously proposes doing that, because the Constitution would become an economic straightjacket.

Instead, any reasonable balanced budget amendment should aim not to end federal borrowing entirely, but to deter such borrowing absent exigent circumstances.

The key to an effective BBA is language that enforces a balanced budget over time without mandating one. Many proposals exist for doing just this, complete with penalties when Congress doesn’t abide.

Unfortunately, the Goodlatte Amendment fails on this count, which makes it hard to view Thursday’s vote as anything more than window dressing for members who wish to obscure Congress’ actual spending record.

But if the vote spurs discussion of fiscal responsibility and debate on how to draft a BBA that actually works, then perhaps it’s an exercise worth having. 

Jonathan Bydlak is the founder and president of the Coalition to Reduce Spending, which advocates for lower federal spending, and the creator of SpendingTracker.org. Follow him on Twitter @jbydlak and @Reduce_Spending. Andy Hawks is an attorney in Alexandria, Virginia, and the author of “The Balanced Budget Veto: A New Mechanism to Limit Federal Spending.”