April 13, 1998

Proposed Constitutional Amendment Would Impede Deficit
Reduction and Protect Special Interest Tax Breaks


On April 22, the House of Representatives will vote on an amendment to the U.S. Constitution to require a two-thirds vote by the House and Senate for any bill that raises federal revenues (H.J. Res. 111). This amendment is ill-advised.


I. The Constitutional Amendment and the Long-Term Fiscal Forecast

The federal deficit has been eliminated for now. If no action is taken to raise revenues or reduce program costs, however, the deficit will return and rise sharply when the baby boom generation retires in large numbers. As noted, CBO forecasts that the deficit could reach 20 percent of GDP by 2050. GAO forecasts are similar

Deficits of this magnitude would be unhealthy for the U.S. economy. To avoid such a development, major deficit reduction measures will eventually be needed.

Votes for Recent Legislation that Raised Taxes

Between 1982 and 1993, five pieces of legislation that raised significant revenue were enacted. Presidents Reagan signed three of these measures, while President Bush and President Clinton each signed one. All five failed to secure a two-thirds vote on the House floor.

In passing the Tax Equity and Fiscal Responsibility Act of 1982, a measure crafted in substantial part by Senator Bob Dole, the House vote was 226-207. When the House considered its version of the 1983 Social Security rescue plan the following year, the vote was 282-148. The vote for the 1987 budget reconciliation bill, a product of bipartisan negotiations that contained both spending cuts and revenue increases, was 237-181, while the 1990 budget agreement passed by only 228 to 220. The 1993 budget agreement passed by a slender 218-216 vote.

During this period, only one measure that raised revenue secured a two-thirds vote, the 1989 reconciliation bill. The 1989 bill was a minor measure. It did relatively little to reduce the deficit and contained only very small revenue increases. The revenue increases in all five of the pieces of legislation that failed to secure a two-thirds vote exceeded the level of revenue increases in the 1989 bill.

Testifying before the Bipartisan Commission on Entitlement and Tax Reform in 1994, Robert Reischauer, then the director of the Congressional Budget Office, observed that the public would be unlikely to accept the steps that would be required either to extract all of the needed deficit reduction in the decades ahead just from government programs or to extract all of the needed deficit reduction just from revenues. In the long run, Reischauer predicted, policymakers will consequently need to reach agreement on some mix of program cuts and revenue increases to prevent deficits of a magnitude that would do substantial damage to the economy.

The proposed constitutional amendment is designed to ensure that virtually no future deficit reduction measures come from the revenue side and virtually all come from cutting programs. That the amendment is likely to bar all or nearly all revenue increases can be seen by examining House votes for the five principal deficit reduction measures enacted between 1982 and 1993 that raised federal revenue. Although four of these five measures were signed by Republican presidents and all five enjoyed the support of Democratic Congressional leaders, none received two-thirds support on the House floor. Even the 1983 Social Security rescue plan, which accelerated scheduled Social Security payroll tax increases and reduced future benefits, failed to secure a two-thirds vote despite strong support from President Reagan and Congressional leaders of both parties.

Most States Do Not Have Supermajority Requirements

Only seven states require the approval of at least two-thirds of their legislatures for any tax increase. Seven other states either require such approval for some taxes but not others, require a three-fifths rather than a two-thirds vote, or both. The other 36 states generally require simple majority approval for revenue increases of all sorts.

A 1993 General Accounting Office study of state budget trends found that a majority of states surveyed had used both spending cuts and revenue increases to balance their budgets in recent years. Revenue increases accounted for about one-third of the deficit reduction these states instituted to balance their budgets during the period studied.

As a result, the constitutional amendment would likely lead to one or more of several possible outcomes: 1) larger deficits over time; 2) a sharply shrunken federal government that must radically scale back in numerous areas beyond running Social Security and Medicare, maintaining national defense, making federal pension and veterans payments, and making interest payments on the national debt; and 3) overly steep reductions in Social Security and Medicare that significantly reduce the living standards of millions of elderly people who are not well off. Such stark outcomes are not necessary if a balance of spending cuts and revenue-raisers ultimately can be considered over the next several decades. Such balance is what the amendment is designed to prevent. (Some supporters of the amendment claim it would lead to another outcome, stronger economic growth. This claim is based on a study purporting to show that states with supermajority requirements experience faster growth. An appendix at the end of this paper explains, however, that the study in question is severely flawed. A more careful examination of the data does not support the claim that supermajority tax requirements boost economic performance.)



II. The Amendment Makes it Difficult to Close Tax Loopholes

The requirement for a two-thirds majority would apply not only to measures to raise tax rates but also to measures to cut unproductive tax expenditures that grant subsidies to powerful special interests. A Congressional Budget Office study in 1995 found that over half of the corporate subsidies the federal government provides are delivered through the tax code. Curbing "corporate welfare" provided through the tax code would be one way to help address future deficits, but doing so would require a two-thirds vote under the proposed amendment. This would likely rule out closing unproductive corporate tax breaks as a way to help shrink deficits when they reappear.

The constitutional amendment would effectively place a substantial share of the federal budget largely off limits for deficit reduction. Provisions of the tax code that the Joint Committee on Taxation classifies as "tax expenditures" — spending programs that operate through the tax code by selectively reducing the tax liability of particular individuals or businesses — appear now to cost in the neighborhood of $600 billion a year.(1) (The corporate subsidy provisions that operate through the tax code are part of this total.) This is substantially more than the federal government spends on Social Security or defense.

Law School Dean Warns of Perverse Effects, Including Increased Difficulty in Stanching Unintended Revenue Losses

In testimony before the Subcommittee on the Constitution of the House Judiciary Committee on March 18, 1997, Samuel C. Thompson, Dean of the University of Miami Law School, warned of potential perverse consequences from the proposed amendment. Thompson stated:

"Under either interpretation, H.J. Res. 62 will have the effect of making it much harder for Congress to close tax loopholes, because any such legislation could be blocked with a mere 34% vote in either house of Congress....

"This amendment would also penalize the American public for mistakes made in the tax legislative process. For example, assume that after an adoption of this Constitutional amendment, Congress adopts a flat tax. Assume that before enactment it is estimated that the flat tax will reduce revenues by $100 billion. It turns out, however, that the revenue estimates are wrong and the actual revenue loss is $200 billion, which will lead to a significant increase in the budget deficit. The Treasury immediately proposes legislation to increase the revenues by $100 billion, thereby restoring fiscal responsibility. The legislation is, however, opposed by powerful special interest groups who will prevail if they can convince just 34% of the members of either the House or the Senate to vote against the amendment....

"The core problem with this proposed constitutional amendment is that it would give special interest groups the upper hand in the tax legislative process. Once a group of taxpayers receives either a planned or unplanned tax benefit with a simple majority vote of both houses of Congress, the group will then be able to preserve that tax benefit with just a 34 percent vote in one house of Congress. Thus this amendment would create an unlevel playing field in the tax legislative process. Indeed, I believe that if enacted this amendment would become known as the 'Tax Loophole Preservation Amendment to the Constitution.'"

In testimony before the Entitlement Commission in 1994, Federal Reserve Board chairman Alan Greenspan referred to these provisions of the tax code as "tax entitlements" because they entitle those who qualify for them to government subsidies provided in the form of a tax reduction. Greenspan testified that the tax entitlements should be looked at, along with the spending entitlements, in developing measures to address the nation's long-term deficit problem.

If anything, however, the proposed constitutional amendment would encourage the spread of more tax expenditures over time, since such measures would take only a majority vote to enact but a two-thirds vote to remove. California's experience with a constitutional supermajority requirement for raising taxes bears out this concern. The California Citizens Budget Commission, a distinguished bipartisan panel of business and community leaders formed in 1993 to study the state's budget problems, reported that the supermajority requirement appears to have had adverse effects and "makes it relatively easy to enact tax breaks but difficult to repeal them." (See box on page 10).

Moreover, if Congress passed a series of tax changes that were thought to be deficit-neutral, but clever, high-priced tax lawyers and accountants found ways to convert some of the measures into tax shelters at greater-than-anticipated cost to the Treasury, it would take a two-thirds vote to scale the shelters back so the original measure did not produce an unexpected revenue loss. Even measures to prevent corporations from gaining tax advantages by moving plants and jobs overseas would require a two-thirds vote.



III. The Amendment Tilts Toward the Wealthy and the Powerful At the Expense of Average Families and the Poor

Most government benefits that low- and middle-income Americans receive come through government programs, such as Social Security, Medicare, Medicaid, unemployment insurance, student loan and grant programs, the school lunch program, and the food stamp program. By contrast, most government subsidies that wealthy individuals and large corporations receive come through tax subsidies. As a result, a constitutional amendment that makes it difficult to scale back tax subsidies when major deficit reduction is needed in future decades would tilt the playing field in favor of the wealthy and powerful over Americans of average or lesser means.

The amendment also would be likely to affect the middle class and the poor adversely for another reason. If the federal government is unable to raise revenue when needs for public expenditures rise, one likely result will be to shift more of the burden of raising revenue and meeting public needs to state and local governments. Most state tax codes are regressive — that is, the taxes they impose consume a larger percentage of the income of lower-income households than of higher-income households. State and local governments extract a larger proportion of the revenues they raise from the middle class and the poor, and a smaller proportion from the affluent, than the federal government does. If revenue-raising burdens are shifted from the federal to state and local levels, the share of the overall tax burden borne by the middle class and the poor is likely to rise.



IV. Amendment Could Lead to Overly Large Reductions in Social Security and Medicare Benefits

The constitutional amendment would likely lead to larger reductions in Social Security and Medicare benefits for low- and middle-income elderly and disabled beneficiaries than otherwise would be needed to put these programs in long-term actuarial balance. This would be the case for several reasons.

First, because the amendment would make it much more difficult to secure revenue increases when the need for large-scale deficit reduction reappears, the amendment likely would place a greater deficit-reduction load on Social Security and especially on Medicare in coming decades. These two programs are projected eventually to constitute half or more of the federal budget exclusive of interest payments on the debt. If there is no revenue contribution to deficit reduction, there likely will have to be a greater contribution from Medicare and/or Social Security than would otherwise be the case.

Second, the amendment would probably rule out measures to raise the Medicare premiums paid by well-to-do beneficiaries. The 1995 budget reconciliation bill contained such a measure. Because the added premium charge would have been based on family or personal income, it could be viewed as a tax on income. When the 1995 reconciliation bill was about to come to the House floor, the House parliamentarian advised that the measure could be considered a tax increase. A House rule that Congress adopted in January 1995 required a three-fifths majority for measures raising tax rates, so the parliamentarian's advice meant the budget bill would need a three-fifths vote unless this rule was waived. The House leadership promptly arranged to waive the rule. Once a supermajority requirement is in the U.S. Constitution, however, no such waivers are possible. If Medicare premiums cannot be raised on those at high income levels, more of the burden of addressing Medicare's financing problems is likely to fall on elderly people at low- and moderate-income levels.

Third, the amendment would require a two-thirds vote for common-sense measures to help address Social Security's long-term financing problems in ways that involve raising more revenue for Social Security. For example, most Social Security experts agree that all state and local employees should be brought into the Social Security system. Some state and local government workers in a number of states remain outside the system, comprising the last sizable group of workers not covered under Social Security. Although the 1994-1996 Advisory Council on Social Security split three ways in its recommendations on how to address the program's long-term financing problems, the Council was unanimous in recommending that all state and local government workers not covered under Social Security be brought into the system; all of the rival Social Security plans the Advisory Council submitted contained this recommendation.

Expanding coverage in this manner would improve the balance in the Social Security trust fund while benefitting many workers who spend only part of their careers in the government sector. But expanding coverage entails a revenue increase, since the newly covered employees and their state and local employers would become subject to the Social Security payroll tax. Accordingly, this provision would require a two-thirds vote and be much more difficult to pass. Failure to pass proposals such as this would likely mean that larger Social Security benefit cuts eventually would have to be instituted instead. Such benefit reductions would require only a majority vote.

The constitutional amendment also would effectively rule out small adjustments in Medicare and Social Security payroll taxes as part of the effort to bring these programs into long-term actuarial balance. Modest increases of a fraction of a percentage point in the payroll tax — or modest increases in the ceiling on wages subject to the Social Security payroll tax — would require a two-thirds vote under the amendment, making them virtually impossible to achieve. Medicare in particular is so far out of actuarial balance that it may ultimately prove difficult to restore long-term balance to the program without some modest increase in payroll tax contributions along with other significant changes, unless the health insurance that Medicare provides is scaled back substantially. (For example, in a symposium in 1995, Henry Aaron of the Brookings Institution observed that the full $270 billion that Republican Congressional leaders were seeking at that time in Medicare savings over seven years could be achieved if one combined those aspects of the Republican Medicare proposals that Aaron believed represented sound policy, and that yielded about half of the $270 billion in savings, with an increase of one-quarter of one percentage point in the employee and employer shares of the Medicare payroll tax.)

The Supermajority Experience in California

The fiscal problems faced by California over the last two decades — frequent budget deficits, poor bond ratings, and repeated budget delays — have led a number of analysts to question the wisdom of several features of the state's complex budget process, including supermajority requirements. The California constitution requires a two-thirds majority in each house of the legislature to increase taxes and also a two-thirds majority to enact an annual budget. The California Citizens Budget Commission, an independent, bipartisan commission composed of prominent California business and community leaders, was formed in 1993 to consider how to strengthen state budgeting procedures. After extensive hearings and analysis, the commission reached consensus that the state's supermajority requirements "have not fulfilled their original intentions and have even on occasion worked to the detriment of the state's budgeting process."

The findings of the commission include many of the same concerns as are raised in this analysis of the proposed federal constitutional amendment.

  • Supermajority requirements for tax increases encourage the proliferation of tax expenditures and should be scaled back. The commission concluded that California's requirement of a two-thirds supermajority to raise taxes "makes it relatively easy to enact tax breaks but difficult to repeal them." In its final report, scheduled to be published in April 1998, the commission is expected to recommend that California's legislature be allowed to eliminate tax breaks by a simple majority vote. This change, which would require a constitutional amendment, would make it as easy to eliminate tax expenditures as it is to create them.
  • Supermajority requirements lead to increased vote swapping. In its 1995 preliminary report, the commission found that:

    "Stories abound of legislative majorities "buying" votes to reach the two-thirds majority for passage of a budget bill.... [One lawmaker in the early 1980s] held up budget approval until appropriations were included for restrooms at a beach in his district. [Another legislator] refused to give the key vote for the budget bill until the governor promised to appoint a friend as a judge."

    The commission said that while vote-swapping occurs under any procedural rules, the two-thirds requirement makes such vote-swapping more costly.
  • Supermajority requirements contribute to delays in enacting budgets. The commission found that the state's supermajority requirement for enactment of the budget was largely responsible for the state's tendency to enact budgets well past the start of the new fiscal year. Since 1980, the budget has been delayed eight times, once for as long as 63 days — a delay that forced the state to distribute IOUs in place of paychecks to workers and payments to firms that do business with the state.

Sources: Reforming California's Budget Process: Preliminary Report and Recommendations of the California Citizens Budget Commission (Los Angeles: Center for Governmental Studies, 1995); summary of recommendations from forthcoming final report of the commission provided by commission staff.


V. Amendment Could Increase Pressures for Pork-barrel Projects

The proposed supermajority requirement also could result in the expansion of special-interest projects that individual legislators favor. The proposed requirement would enable individual legislators to demand federal funding for pet projects in return for agreeing to provide the necessary votes so a budget containing revenue-raising measures could obtain two-thirds support and pass. To be sure, such vote-swapping can occur whether revenue-raising measures require a simple majority or a supermajority. But as the California Citizens Budget Commission has noted, the degree of vote-swapping tends to intensify as the level of difficulty needed to obtain the neces-sary votes to pass a budget increases; the level of difficulty is much greater when a two-thirds supermajority is required.

This commission, which consisted of a group of prominent California business and government leaders formed to study the state's budget process, found evidence that California's requirements for a two-thirds majority to raise revenues and pass budgets had led to substantial "pork-barrel" legislation promoted by individual legislators.(2) (See box on page 10). Supermajority requirements present legislators with tempting opportunities to threaten to block revenue-raising measures that a majority favors unless the majority accepts various pet projects or programs these legislators are pushing.



VI. Weakening Our System of Democracy

As the foregoing discussion indicates, the amendment would weaken the principle of majority rule that has been at the heart of our system of representative democracy for more than 200 years. As Rep. James Moran has observed, it would partially restore the system we had in the 1780s under the Articles of Confederation, a system that functioned poorly and was soon abandoned.

The Articles of Confederation required the vote of nine of the 13 states to raise revenue. At the Constitutional Convention in 1787, the Founding Fathers recognized this was an insurmountable defect. They fashioned instead a national government that can impose and enforce laws and collect revenue through simple majority rule.

James Madison on Majority Rule

The Constitutional Convention rejected requiring supermajority approval for basic functions such as raising taxes. Supermajority rules had applied in the Continental Congress. The framers of the constitution had experience with these rules and understood what they were rejecting.

In the Federalist Papers No. 58, James Madison, one of the key figures in drafting the Constitution, explained why the Constitution rejected supermajority rule:

"It has been said that more than a majority ought to have been required for a quorum, and in particular cases, if not in all, more than a majority of a quorum for a decision....[But that would mean] ... [i]n all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority. Were the defense privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or in particular emergencies to extort unreasonable indulgences."

Madison equated majority rule with "free government." In his view, freedom consisted not just of protecting individuals from unreasonable intrusion by government, but also in the right of citizens to have an equal voice in the affairs of government. According to Madison, a person whose vote is diluted by supermajority rules is not an equal citizen and does not fully enjoy the fruits of freedom.

The proposed constitutional amendment would end the ability of a majority of the American people, acting through their duly elected representatives, to decide whether they want to raise more revenues so the federal government can address needs the majority finds legitimate. The amendment would deny the majority this right both now and in future generations. As Representative Nancy Johnson (R-CT) pointed out on the House floor during debate on a similar constitutional amendment in April 1996, future generations should be "free to establish that balance between taxing and spending that they believe is in their interest."

At its core, the amendment is rooted in deep distrust of the ability of the majority of the American people to make decisions that the authors of the amendment believe to be ideologically correct. The amendment seeks permanently to deny the majority that right. Powerful, well-connected minorities would gain power at the expense of the majority.



Data Do Not Show Better Economic Performance
in States with Supermajority Requirements

The Heritage Foundation contends that states in which a supermajority vote of the legislature is required to raise taxes have experienced faster economic growth and fewer tax increases than other states. A March 1996 Heritage report looks at the seven states that have had supermajority requirements in place for a number of years — Arkansas, California, Delaware, Florida, Louisiana, Mississippi, and South Dakota — and finds that five of the seven states experienced slower than average growth in tax revenue. It also finds that five of the seven states (but not the same five states) experienced faster economic growth than the average state. The Heritage report suggests a causal link between supermajority limits, lower taxes, and faster economic growth, saying "...there is no escaping the logical relationship between supermajorities and superior state performance."(3)

But the Heritage study is fundamentally flawed. It considers only state-level tax changes rather than changes in total state and local revenues, despite the capacity of states to shift costs and responsibilities to local governments. In addition, it compares 1980, a year in which the economy was just turning down from the peak of an economic expansion, with 1992, a year at the beginning of a recovery from a deep recession. Economists and analysts generally frown upon comparisons that use years representing different points in the business cycle.

If one measures state and local revenues, examines years that represent similar points in the business cycle, and looks at various measures of economic growth, conclusions very different from those Heritage has presented may be drawn. By some measures, supermajority states have had less economic growth than other states and have not had smaller tax increases. For example:

Five of the seven states with supermajority requirements experienced lower-than-average economic growth, as measured by changes in per capita personal incomes between 1979 and 1989. (These years both represented business cycle peaks.) Four of the seven supermajority states had lower-than-average economic growth during this period as measured by changes in Gross State Product.

In addition, five of the seven states with supermajority requirements had higher-than-average growth of state and local revenues as a percent of residents' incomes from 1979 to 1989. Five of the seven states (not the same five) had higher-than-average increases in state and local taxes per capita from 1984 to 1993, two other years falling at similar points in the business cycle.

This is not to say that supermajority requirements hinder economic growth and lead to revenue increases. Rather, the point is that different choices of years and of measures of taxes and economic growth lead to diametrically opposed results. This should serve as a strong caution that no valid conclusions about the effects of supermajority requirements can be drawn from the type of simplistic analysis the Heritage Foundation has conducted.

End Notes

1. The Joint Committee on Taxation publishes annually a compendium of all tax expenditures and their cost. The Joint Committee does not total these expenditures, but if one adds the cost for each of these tax expenditures, the total is approximately $600 billion. Since various tax expenditures interact, the total cost will vary somewhat from the $600 billion estimate. The Joint Committee indicates that due to interactions, the total cost could be either higher or lower. The authors of this Center analysis believe the total cost is likely to be somewhat less than $600 billion.

2. Reforming California's Budget Process: Preliminary Report and Recommendations of the California Citizens Budget Commission, (Los Angeles: Center for Governmental Studies, 1995), pp. 43-47.

3. Daniel J. Mitchell, "Why a Supermajority Would Protect Taxpayers," The Heritage Foundation, March 29, 1996.