Invasion of the Budget Snatchers

NATIONAL CONVENTIONS have had a habit of running wild--the idea of a people assembled has historically given them an aura of political legitimacy. A national assembly toppled the ancien regime in France, and it was a national convention to revise the Articles of Confederation that decided 200 years ago to start from scratch instead and create a whole new law for the land.

State legislators across the country are now clamoring for a convention to propose a constitutional amendment requiring a balanced federal budget, and liberal oracles everywhere warn it would entangle the branches of government in a messy constitutional conflict. The convention method of amending the Constitution has remained unused ever since the Philadelphia convention wrote it in for the states to use against a Congress that ignored the nation's will. Under the process used for each of the 26 amendments now on the books, Congress proposed the change and three-fourths of the states ratified it. Article V of the Constitution does provide for an alternate method, under which two-thirds of the states ask Congress to call a convention to propose amendments and three-fourths of the states must ratify them. The budget-balancers admit that they're wielding this second option as a "club" to show Congress that they are serious.

While politicians of both parties scramble to show how austere they can be, both Democrats and Republicans in Congress generally oppose a convention--they would rather keep control of the amendment process themselves. The pressure for a convention comes chiefly from Republican state legislators, and all but five of the 29 states which have already asked Congress to summon a convention are west of the Mississippi--the same area which gave Gerald Ford his near-win in 1976.

THE CONTROVERSY over the convention splits into two separate issues--whether a balanced-budget amendment is wise in the first place, and whether an Article V convention is a safe way to propose one. On both questions, the lines form predictably between liberals and conservatives. Convention supporters argue for a budget amendment with familiar Proposition 13 attacks on big government. Spokesmen for the National Taxpayers Union, which has pushed the convention proposal since 1975, admit that they are trying to "straightjacket" the federal government, but contend that a budget amendment could leave reasonable loopholes for national emergencies and wars.

Opponents dispute the convention on two distinct grounds. Sensibly, they say that the Constitution is no place to mandate a specific economic policy. If the budget-balancers succeed, they would join the distinguished company of slaveholders and Prohibitionists, the only other groups ever to write their interests into the Constitution. California Governor Edmund G. Brown Jr., the biggest national figure to support a convention publicly, wants to place a balanced budget requirement into the Constitution as a philosophical symbol of national discipline; but congressional budget-makers each year would have to work with that symbol, which could never be thorough enough to cover the wealth of specific problems in a national budget. Nor could it be specific enough to discourage innovative congressional accountants from balancing the budget to the letter but not the spirit of the amendment.

Practical problems make a constitutional amendment a poor instrument for austerity-mongers. Nonetheless, national polls show that about two-thirds of the country favors one. California sent a wave of tax-cutting and spending cutbacks rippling across the states last year, and Americans apparently want it to sweep through Washington as well. Of course, nobody answers the question of how states could balance their budgets without the billions of dollars in aid the federal government hands them each year. People know only that inflation hurts, and conservative economists and groups like the National Taxpayers Union tell them that federal deficit spending is to blame for it.

This attack on the warhorse of liberals' economic policy is undoubtedly what has inspired their overstated attack against a national convention-- that it might create a constitutional mess, or even run amuck and try to rewrite the entire document. An Article V convention would face a variety of procedural problems, and the Constitution leaves the details fuzzy, but the founding fathers would not have included the option if they never meant anyone to use it. The legal issues are thorny but not unresolvable; opponents of a balanced-budget amendment should rely on the merits of their argument against the amendment itself, and not resort to alarmist exaggerations of the size of the legal problems.

BUT THE ALARM continues, and the constitutional argument dominates the controversy. The legal questions are numerous--a memo prepared by Laurence H. Tribe '62, professor of Law, which the White House is distributing, lists 21 separate ones, all of which it calls "unanswerable." But the most important one--the one which raises the spectre of large-scale constitutional revision--is whether Congress or the states can limit the convention's agenda.

Tribe holds that since the Constitution does not explicitly state who controls a convention's agenda, the convention and Congress would probably bicker. Bruce Ackerman, professor of law at Yale, takes an even stronger position in this week's New Republic, maintaining that Article V conventions must be open to any amendment and cannot be limited to a specific agenda. Ackerman says that no one has the power to limit a convention's agenda, and no one ought to; he apparently believes the drafters of the Constitution intended the convention clause for the next time Americans wanted to rewrite their governing document. His position depends almost entirely on Article V's statement that the convention will be for the purpose of "proposing amendments." But this is a semantic technicality; if the Constitution had read in the singular, it would prohibit conventions from proposing multiple amendments like the Bill of Rights or the Civil War amendments. Ackerman clearly wants to make a convention sound so threatening that no one will desire one.

Actually, the working lawyers who would have to thrash out a conventions procedures do not share the professors' fears. Attorney General Griffin Bell has said that he believes Congress could limit a convention's agenda; an American Bar Association study from 1974 agrees, as long as Congress passes the necessary legislation. Furthermore, most of the bills that the states are passing to ask Congress to summon a convention themselves stipulate that budget-balancing should be the only issue on its agenda. Congressmen, too, though opposed to the whole idea of a convention, would obviously prefer one with narrow authority. In fact, the dire warnings against a convention run wild come only from opponents who are using them as a scare tactic; convention supporters seem perfectly willing to limit themselves.

The opponents also conveniently ignore the ratification process, which would block radical change no matter how far afield a convention's amendments ran. It is true that the 1787 convention tossed its agenda aside and offered an entirely new constitution; the states ratified it then because of the apparent weakness of the old Articles. Today there is no widespread sentiment for drastic constitutional revision, and any attempt to try it would be laughed out of the state legislatures.

TRIBE'S MEMO outlines the various procedural questions a convention might pose and points out that the Constitution does not say where power to resolve them lies. They include whether a state can withdraw its request for a convention, what possible time limit there might be on a state's request, how to choose the delegates and apportion votes in the convention, and whether the convention should refuse to propose an amendment it was summoned to consider. Although the Constitution never mentions these questions, there is no reason to expect Congress will meet serious opposition to an act outlining a convention's procedural details. Senator Sam Ervin (D-N.C.) proposed and the Senate adopted just such a bill twice already, in 1971 and 1973, but the House never approved it. And there are legal precedents applicable to each question--for example, it seems probable a convention would contain one delegate from each congressional district and two elected at large from each state, using the precedent of the electoral college.

If Congress should outline rules which a convention found unacceptable, the Supreme Court's judicial review prerogative remains a final safeguard against open conflict. The states, the convention, and Congress would almost certainly accept the Court's ruling; though many of its individual past decisions have been controversial, the Court's right to judge on constitutional issues has the weight of two centuries of tradition behind it.

The legal debates are endless, but they only obscure the one clear conclusion that can be drawn from the drive for a convention--most American voters want to see a federal government cut on taxes and spending, and they're willing to go to the foolhardy length of writing their wishes into the Constitution to make themselves heard. Most likely, fears of constitutional crisis will not come to a test; Congress will either propose the amendment itself or, preferably, persuade voters it will take spending cuts seriously.

YET THE LIBERALS continue to take their stand on the rock of the Constitution, instead of using more persuasive arguments against the whole idea of a balanced-budget amendment. Their cries of alarm only draw attention to the sad disarray into which American liberals have fallen. Calculating that they could not win a popular battle, they are calling in law professors and raising a standard in defense of a constitution which is in no danger. It would hearten those who agree with their basic stand against a balanced-budget amendment if they dropped the scare tactics and fought the issue out where it belongs, not in legal briefs, but in the legislatures and polls.