Legislatures will consider Balanced Budget Amendment in 2013 as states seek to limit Federal spending

After decades of evading tough decisions, the United States Congress (with the help of several Presidents) has run up a crushing $14 trillion debt.  As Americans contemplate what that means for our future, many are now looking to state legislatures to step in and take the lead in amending the Constitution to curb the Congress’ outrageous spending problem.

The Constitution provides for two methods of amendment.  The first is the only one that has been successfully utilized to date.  Under this familiar method, the amendment is initiated by the Congress, where it must gather a two-thirds majority in both Houses before being ratified by three-fourths of the states.

However, there is another method – one initiated by the states.  The relevant portion of Article V reads:

The Congress… on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which… shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

So, if two-thirds of the state legislatures apply for an amendments convention, the Congress must call such a convention.  The only discretion Congress has in the matter is to decide upon the method of ratification – whether three-fourths of the states shall ratify the amendments through their state legislatures, or through special state ratification conventions called for the purpose.

This provision for amendment was put into the Constitution because, as Alexander Hamilton put it in Federalist 85, “persons delegated to the administration of the national government will always be disinclined to yield up any portion of the authority of which they were once possessed.”  Hamilton was surely prophetic in this point, as the Congress has shown no particular inclination to yield its authority to borrow subsequent generations of Americans into crushing debt.

Two possible amendments have been proposed in the state legislatures to deal with Congress’ profligate spending.  One, known as the National Debt Relief Amendment, passed the Louisiana legislature in 2011 by overwhelming margins in both houses.  That measure would require that any hike in the federal debt ceiling by Congress would itself have to be ratified by a majority of the state legislatures.

But more well-known is the Balanced Budget Amendment, which has passed both the House and the Senate, but never during the same Congress.  This amendment would require Congress to pass a balanced budget each year.  According to the Republican Study Committee, 16 states have currently endorsed a convention to call for such an amendment.  Nineteen more states would need to join the call before Congress would convene an amendment convention.

Not every state’s resolution is identical, and some contain language making it easier or harder for Congress to increase taxes or raise spending levels. The purpose of the amendment convention would be to resolve these differences.  Is a declaration of war sufficient to lift the requirement that year?  Can the difference between taxes and spending be covered by Treasury bills?  Is borrowing from the Federal Reserve allowed to cover expenditures? These questions would have to be answered.

The chief fear raised by opponents of such an Article V convention is that these aren’t the only questions that would be debated by the delegates.  Some worry that at such an amendments convention delegates may run wild, going beyond the designated purpose of the convention to instead strip away the rights to self-defense or free speech, for example.

Although the Constitution is not explicit on the matter, Hamilton in Federalist 85 said that “every amendment to the Constitution… would be a single proposition, and might be brought forward singly.”  If that pronouncement is taken to be the Founders’ original intent for the amendment process, the states and Congress would be within their rights to narrowly restrict the topics of debate and amendment at the convention.  Louisiana and other states could even provide for criminal penalties for their delegates should they decide to stray from their instructions.

Even if such a restrictions were ignored by convention delegates and not enforced by the courts, there is still one ultimate check on a “runaway convention.”  Each and every amendment passed by a state-called convention would still have to be ratified by three-fourths of the states, as required by the Constitution.  These is simply no way around this requirement.  This final firewall would ensure that no amendment without broad national support would pass.

Louisiana was one of the leaders last year in passing the call for the National Debt Relief Amendment.  Next year the legislature will have the chance to continue to lead where Congress has not, by passing a call for a Balanced Budget Amendment convention as well.