Supermajority Rules as a Constitutional Solution

Abstract

INTRODUCTION The primary purpose of a constitution is to establish a government that operates in the public interest. Unfortunately, in fiscal matters, the United States Constitution has become progressively less effective in realizing this goal. One problem is that the federal government appears to have lost the ability to limit its spending. Since the early part of the twentieth century, federal expenditures have grown consistently in both good and bad economic times and under both Republican and Democratic leadership, with domestic federal spending now consuming over seventeen times the percentage of national income than it did in 1910.(1) A second problem is that the goals of federal spending have changed radically. In the last several decades, expenditures on public interest goods--goods that the public desires but the market cannot supply adequately--are being crowded out by spending on private interest goods--goods that merely transfer resources from one group to another.(2) The federal government thus spends ever more money and is ever less focused on promoting the public interest in its spending decisions. Under current law, these changes in the size and composition of federal spending are destined to continue. The Social Security and Medicare programs are likely to expand dramatically in the next several decades as baby boomers retire.(3) At that time, government spending will balloon to unprecedented levels and include an even greater percentage of transfer payments.(4) This transformation of federal spending from a modest budget devoted to public interest goods into a vast engine for the production of private interest goods has had several harmful consequences. First, there has been a surge in inefficient spending that has reduced the size of the economic pie.(5) Second, taxes have increased to sustain that spending, which has depressed personal income and hindered economic growth.(6) Finally, the rise in government spending has resulted in the creation of excessive government debt as politicians have sought to shift the costs of increased spending onto future generations.(7) Excessive spending on private interests has not merely produced financial disarray; it also has contributed to the decline in our political culture. A regime structured to produce public goods unites the community by encouraging citizens to consider what they have in common, but one that countenances large scale transfer payments continuously pits citizens against one another and saps public spiritedness.(8) Although political theorists and politicians call for a dialogue of reasoned deliberation and decry today's factious politics, none addresses the most basic cause of divisiveness--a government structured to be a dynamo of private interest spending.(9) Despite a series of much publicized efforts, Congress has failed to halt, let alone reverse, the growing percentage of national income that the federal government spends. For example, the Congressional Budget Act of 1974(10) was supposed to establish legislative procedures that would restrain unnecessary spending, but spending and debt mounted instead.(11) The Gramm Rudman Act(12) created a mechanism that would impose automatic spending cuts to reduce the deficit, but when the pressure to choose among programs became too great, the only automatic aspect of Gramm-Rudman proved to be Congress's decision to eviscerate the statute.(13) The Budget Enforcement Act of 1990(14) attempted to restrain spending through mandatory caps,(15) but Congress now has chosen to spend at levels that exceed those caps.(16) For all the self-congratulations of its creators, the 1997 budget agreement followed this same pattern. The agreement did not halt the growth in spending. In fact, the agreement explicitly abrogated spending limits that Congress had previously imposed.(17) Consistent with past practice, in 1998 politicians appear already to have exceeded the new spending limits in the agreement. …