Time for a Convention, and not of Parties, but States.

A rare post on the Lib.

For those that prefer reading, I apologize.  I am not sure why I went to the podcast route, and am rethinking just the one venue, as so few listen, and a few more at least, read the blog.  I am posting my paper for one of my classes  this past semester as it is very timely, and demonstrates the futility of the sane budgetary process in this nation.  Neither party cares about fiscal responsibility, all while a major newspaper of record reports a whistleblower who is leaving The Church of Jesus Christ of Latter Day Saints, and giving his opinion of what he thinks is wrong, in that the Church has stored up a fund for adverse times, and that they were illegally dodging taxes.  No doubt there will be an accounting of that, but what is more prudent, spending recklessly in times of plenty?  Or putting aside for times of trouble ahead?  Only you can make that call within yourself, but likely you know the answer. 

The only resolution to save what was once the Constitutional republic is an Article V convention.  This is because no one in DC really wants to address the issues that are problems today.  I am not afraid of it, and think it is over due.  We have to decide where we want to go, and what we want to do, and if we are honest, whether we want to remain as United States.  Here is a link to a site that has been working the issue for sometime.   https://conventionofstates.com/  In the mean time, here is the paper. 

            When the US Budget for Fiscal 2010 was passed into law and signed by President Obama on 3 April, 2009 (Amadeo, n.d.), Congress passed a real budget for the last time to date.  This is consistently one of the most problematic areas with Congress, and one of their few actual duties.    In Article 1 Section 8 of the US Constitution it describes the “Power to lay and collect taxes, duties, imposts and excises, to pay debts and provide for the common defense and general welfare of the United States.” (Madison, 1787).  This responsibility is their primary responsibility.

            Since Fiscal 2010, the government has been funded by a series of Continuing Resolutions (CRs), which are simply extensions to fund the government at present levels, rather than a formal annual budget.  This is not just a recently occurring event.  Since the budgetary process was reformed in 1976, Congress has only delivered 100% of the appropriations four times (Desilver, 2018).  The budgetary process needs to be reformed and streamlined.  Congress is held in very low esteem by the voters (Aldrich, Carson, Gomez, & Rohde, 2019).  This could very well be one of the reasons.

            By not actually budgeting money in and money out year to year, Congress is instead opting to just put it on the card.  This is very damaging in a number of ways, primarily in the skyrocketing debt, which at this writing stands at more than 23 trillion dollars (“U.S. National Debt Clock : Real Time,” n.d.).  It is also damaging in that agencies that need to make long term budget plans struggle to do so.  This author had firsthand experience with this as a federal manager dealing with airport operators in Idaho and trying to secure funds for long term projects.  Upgrades in infrastructure, hiring and so on are start and stop due to the erratic spending process.  Reforms needed in entitlement spending as well as Social Security and Medicare are not addressed, because the budget is not being formally mocked up annually.

            The Fiscal Year for the federal government runs from October 1 through September 30.  The President, through the Office of Management and Budget (OMB), presents a budget to Congress every year in February.  Incidentally, these proposals are usually declared dead on arrival.  Congress needs to have its budget resolution passed by April 15.  This rarely happens.  A budget resolution is not, however, appropriations, or spending.  Once the budget resolution is passed, the House of Representatives writes the appropriation bills and after they are passed are moved to the Senate.  Spending bills cannot originate in the Senate.  In the past, if the spending bills were not complete by September 30, the government shuts down.  Usually if the bills are close Congress will pass a CR to bridge the gap. 

            If one has watched School House Rock, the process is easy to understand.  The House passes a bill and sends it to the Senate.  The Senate debates and amends the bill so that it can pass, and the result is sent to a joint House and Senate Committee to iron out the differences.  The Committee’s work is then voted on in both the House and the Senate without debate.  Once a bill is passed it goes to the President for signature, or a veto. 

            The normal, or what used to pass as normal, budgeting process was that there would be a series of appropriation bills passed by the House and sent to the Senate.  These bills would be considered individually and passed and handled on their own.  Alternatively, what was done is what is called an omnibus bill, which is when many or all the appropriation bills are lumped together and passed as a single bill.  This makes it an all or nothing proposition, both for the Senate and the President.

            What is an omnibus bill?  In Tactical Maneuvering on Omnibus Bills in Congress, the author quotes Barbara Sinclair in defining an Omnibus bill as “legislation that addresses numerous and not necessarily related subjects, issues, and programs, and therefore is usually highly complex and long” (Krutz, 2001).  It is an assembly of pieces put together to limit debate, to force legislation through.  Rules are established to minimize amendments and is what many consider when they think of legislation crafted behind closed doors.  It is pieced together in such a way as to secure enough votes to get through either the House or on occasion the House and Senate.  There may be add-ons, and these bills are sized in a way that they are often not reviewed by the Congress or media before a vote is cast.

            But why have we not had a real budget passed since Fiscal 2010?  First, we need to understand that problems passing budgets is nothing new.  The problem in 2010 for Fiscal 2011, was that with the passage of the Affordable Care Act, which was signed in 2010 by President Obama, and passed by along strict party line votes, a revolution seemed to be occurring, and Senator Harry Reid (D-NV), the Senate Majority Leader, did not want to subject his membership to another party line vote with the election coming up.  So CRs which had previously been used to bridge the gap between September 30 and the budget completion, became the standard practice.

            When the Constitution was written, they did not foresee a time when budget battles over things that were not sovereign debt or military would be an issue.  Even a standing military was a cause for heated Congressional discussion.  Today the federal budget accounts for over 20% of the Gross Domestic Product (GDP) (“US Federal Spending for FY2019 was $4.45 trillion according to US Treasury.,” n.d.), or one out of every five dollars spent.  Most of this spending began in the mid twentieth century during the New Deal and expanded during the Great Society and lastly the Affordable Care Act. 

            A problem with this is that most of this spending is mandatory.  Mandatory spending includes Social Security, Medicare, Medicaid, unemployment compensation, and other entitlement programs and is governed by statute (Desilver, 2018).  In other words, Congress has very limited control, short of changing statutes, over this spending.  Besides mandatory spending, there is also servicing the debt. 

            This leaves Discretionary spending, which accounted for less than one third of federal spending in Fiscal 2017 according to the Pew Research Center (Desilver, 2018).  It is this one third of the budget where the battles occur every year.  Spending for the military, for Homeland Security, and so on.  The battles are usually not in the House, as with House rules a simple majority can pass a bill on to the Senate.  It is the Senate where the issues occur. 

            Before the 1970s, a filibuster was literally when a Senator would take to the floor of the Senate and would expound on whatever until there were sufficient votes, originally two thirds, lowered to three fifths in 1975 when the Democrats had a 61-vote majority in the Senate.  One thing that should be noted is the expansion of filibuster usage since is that change also included eliminating the need for a Senator to actually take to the floor to filibuster.  Now the Minority Leader just threatens it, and unless the Majority Leader has 60 votes to invoke cloture (ending the filibuster) that legislation is set aside, and the Senate moves on to something else.  The history lesson is necessary as bills that the minority do not like are filibustered, and as long as the minority leader has 41 members of the caucus united, that is the end of that.

            Republicans generally like to cut spending on entitlements, referred to as reform, and increase spending on military and homeland security.  Democrats generally like to do the opposite.  In the case of Senator Reid in 2010, he not only wanted to protect his majority, but was also protecting President Obama from having to sign or veto any kind of budget that would be unpopular leading up to the as yet distant 2012 election.  As a reminder, more than two thirds of the budget is really not up to Congress on how to spend it, it just needs to be authorized. 

            The process established by the Constitution, of the House appropriating the spending, forwarding the bills to the Senate, for mockup, conferencing and sending the result to the President does not function.  Too much has been added on, with obligations to future generations for not only the debt, but entitlements, for it to work.  The problem then becomes; how is this addressed while remaining within the Constitutional framework?

            An obvious answer, of using the Article V amendment process, either through the Congress, or by Convention is not going to happen anytime soon.  This process was purposely designed to build a consensus as it requires three fourths of the States to ratify whichever route is taken, and consensus is not where we are as a nation.  And to try to get back in line within the Constitution is impossible at this point.  So?

            With the House being able to pass through legislation by a simple majority vote, as well as being able to halt debate the same way, a major roadblock to change is the filibuster in the Senate.  While reviewing literature for this paper, I was researching how budgeting is done in Great Britain.  While their Parliament is different in several ways, it is bicameral like ours.

 

            It is divided into the House of Commons which is elected by the people and would be very similar to the House of Representatives in the United States, and the House of Lords, which differs from the Senate in that the Lords are lifetime appointments, either by landed titles or by the monarch.   Another difference is that the Commons selects the Prime Minister which is the de facto head of the government.  Members of the cabinet are members of parliament (MPs) and work with parliament to get legislation passed.  

            Bills start usually in Commons, but not exclusively, and once passed move to the other House.  Legislation does have to pass through both houses before becoming law, and the budget process is no exception.  They have a version of the filibuster, where the House of Lords can delay a bill by voting against it after it has passed out of the House of Commons for up to a year.  After that year, it can go directly to the monarch to be signed into law.  The one exception to this?  The budget.  If the Lords vote against the budget, The Parliament can send it directly to the monarch for signature (Knight, 2015).

            Obviously, we cannot adapt the parliamentary system here as it would require Constitutional Amendments to do so.  But there are several rules that could be proposed in both Houses to alleviate this problem.  Starting with the filibuster in the Senate.

            The filibuster is the tool of the minority to slow down or impede the majority from moving legislation.  Prior to the 1970s, a filibuster stopped all legislation in the Senate.  Filibusters were most famously, or infamously used to try to prevent Civil Rights legislation from being considered.  A filibuster lasted as long as a person could hold the floor speaking, or until the majority was able to successfully invoke cloture, gaining either 67 votes, or 60 votes after 1975.  Filibusters were few and far between prior to the change, as they did stop all processes in the Senate.  Changing the rules in the mid-1970s allowed for the use of the filibuster as a tool without the pain involved caused the use to expand exponentially.  A break in this impasse occurred in 2013 when Senator Reid allowed for a simple majority vote for cloture on Executive Branch and Judicial nominees (except Supreme Court).  In 2016, Senator Mitch McConnell (R-KY), the new Majority Leader, lifted the filibuster on Supreme Court nominees in the case of Neil Gorsuch, nominated by President Donald Trump.  Precedent has been set for removing this tool, but the next step of an outright elimination of the filibuster is not yet on the horizon.  Senator McConnell has said that “the 60 vote majority requirement ensures legislation passed by the chamber is a result of compromise and negotiation, not sheer majority whim.” (Chaitin, 2019).  The positive side is that there are many currently in the minority that are advocating for the elimination of this minority tool (Reid, 2019).

            Simplifying the budgeting process, particularly for the Mandatory budget items would be the ideal.  These items are obligations that have already been promised.  These are things that were not thought of at the time of the writing of the Constitution, as they obligate not only the current Congress, but future Congresses as well.  Whether or not rules could be established to separate these budget items is questionable but should be researched.  I could not locate any, which was not surprising.  Processing these items separately does not preclude Congress from taking up statutory change in the laws, but simply puts them on a fast track unless changes are proposed.

            Budgeting for the servicing the debt only comes up when there is an issue with the debt ceiling.  While it does happen every few years, it was at a crisis point in 2011, when a Republican controlled House attempted to rein in spending in exchange for raising the debt ceiling.  Otherwise payments are on autopilot.  Addressing the debt is an issue but should not be handled as part of a budget standoff.

            Discretionary spending as mentioned before makes up about one third of the budget, and if left alone would be the focus of the budget discussions.  Proper focus could be given to the various budgets including infrastructure, hiring as well as whether certain agencies or departments might even be necessary.  When running deficits that are routinely over one trillion dollars, it is necessary to determine what is being spent and what needs to be spent.  Part of the problem is baseline budgeting.  This process is where when a budget is drawn up, a certain percentage increase is automatically built into it (Clifton, 1996).  When politicians talk about cutting the budget, rarely do they do that.  They usually are talking about cutting the increase in the budget.  This process doesn’t normally allow for the thorough examination of an agency’s budget.

            What may be the biggest problem in the budgetary battle is not the filibuster, it is not the partisan differences on budget priorities.  It is something bigger than either of those.  It is the US Constitution.  There are several problems with the Constitution and the budgeting process, or rather the potential reform of it.  In the Negotiated Structure Constitution, Huq argues that James Madison referred to the system of the Constitution as a “system of conflict and  tension, rather than cooperation or mutually beneficial trades” (Huq, 2014).

            Up until the late 1890s the branches of the federal government, the states, and individuals understood their roles in relation to each other, and the courts upheld those roles.  This continued even in the early days of the New Deal when Congress had delegated its lawmaking authority to several agencies in the Executive Branch, finding this unconstitutional as late as 1935.  It was this time that the President, Franklin Delano Roosevelt, threatened to pack the court with enough progressive justices to override the majority that the court changed its view and allowed the balance to shift.  Since that time, Congress has ceded more of its authority to the Executive regarding the writing of laws, to this day essentially writing frameworks and allowing the appropriate agency to fill in the regulations.

            Attempts were also made to allow the Executive fiscal authority in the Line Item Veto.  The purpose of this was to allow a president, that was currently of the opposite party, to line out excess spending.  This the courts also found was extra-constitutional. 

            In the past, the fiscal battles were between the Executive and the Congress, or between the Congress and the States.  The atmosphere now has become so partisan that it is within each House that the battle rages, though as in the case of the Senate with Harry Reid as Majority Leader, he was a proxy for the Executive, in shutting down debate on budget matters.

            Where does that leave the budget process?  While the current environment renders it unlikely, bipartisanship could lead to reforms in processing spending differently based on whether it was considered mandatory.  The Senate could, with a rule change, end the filibuster, at least regarding budget items.  This would eliminate the excuse of delaying the budget.   The president could kick start the process by bringing leaders of both parties into the conversation when crafting the budget for the next fiscal year so that it isn’t declared dead on arrival in the House.  These are all things that could be done without interference from the Courts and are completely Constitutional.  They just require rule changes, which the Majority of each House can do.  They all require members of Congress to want to pass the budgets and to work together.

            To affect permanent change, as rule changes only impact that Congress, Constitutional Amendments are required.  As Congress is unlikely to cede its power by Amendment, the alternative is a Constitutional Convention, or an Article V convention.  Short of this remedy, and with the partisanship that exists to the depth that it exists today, reform and change is unlikely.

References

Aldrich, J. H., Carson, J. L., Gomez, B. T., & Rohde, D. W. (2019). Change and continuity in the 2016 elections. Thousand Oaks, CA: CQ Press.

Amadeo, K. (n.d.). FY 2010 U.S. Federal Budget and Spending. Retrieved November 26, 2019, from the balance website: https://www.thebalance.com/fy-2010-u-s-federal-budget-and-spending-3306312

Chaitin, D. (2019, August 22). Mitch McConnell warns Senate Democrats against abolishing legislative filibuster. Washington Examiner. Retrieved from https://www.washingtonexaminer.com/news/mitch-mcconnell-warns-senate-democrats-against-abolishing-legislative-filibuster

Clifton, J. A. (1996). Using multiyear baselines for fiscal policy analysis - ProQuest. BUsiness Economics, 31(2), 42. Retrieved from https://search-proquest-com.ezproxy.fhsu.edu/docview/199806831?accountid=27424&rfr_id=info%3Axri%2Fsid%3Aprimo

Desilver, D. (2018). Congress has long struggled to pass spending bills on time | Pew Research Center. Pew Research Center. Retrieved from https://www.pewresearch.org/fact-tank/2018/01/16/congress-has-long-struggled-to-pass-spending-bills-on-time/

Huq, A. Z. (2014). THE NEGOTIATED STRUCTURAL CONSTITUTION - ProQuest. Columbia Law Review, 114(7), 1595–1686. Retrieved from https://search-proquest-com.ezproxy.fhsu.edu/docview/1812228361?OpenUrlRefId=info:xri/sid:primo&accountid=27424

Knight, J. (2015). British politics for dummies. Wiley.

Krutz, G. S. (2001). Tactical Maneuvering on Omnibus Bills in Congress. American Journal of Political Science, 45(1), 210. https://doi.org/10.2307/2669368

Madison, J. (1787). US Constitution. United States Constitution. Philadelphia, PA.

Reid, H. (2019, August 12). Opinion | Harry Reid: The Filibuster Is Suffocating the Will of the American People - The New York Times. New York Times. Retrieved from https://www.nytimes.com/2019/08/12/opinion/harry-reid-filibuster.html

U.S. National Debt Clock : Real Time. (n.d.). Retrieved December 4, 2019, from https://usdebtclock.org/

US Federal Spending for FY2019 was $4.45 trillion according to US Treasury. (n.d.). Retrieved December 4, 2019, from https://www.usgovernmentspending.com/federal_spending_chart