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107th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     107-43

======================================================================



 
PROPOSING A TAX LIMITATION AMENDMENT TO THE CONSTITUTION OF THE UNITED 
                                 STATES

                                _______
                                

 April 20, 2001.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                      [To accompany H.J. Res. 41]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
joint resolution (H.J. Res. 41) proposing a tax limitation 
amendment to the Constitution of the United States, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the joint resolution do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
  I. Application of the Amendment.....................................3
 II. The ``de minimis'' Exception and Implementing Legislation........3
III. Prior Legislative Action.........................................4
 IV. State Tax Limitation Laws........................................5
  V. Supermajority Requirements and Taxation..........................5
 VI. Standing to Sue Under the Tax Limitation Amendment...............7
VII. Differences Between the Tax Limitation Amendment and the House 
     Rule.............................................................8
Hearings.........................................................     8
Committee Consideration..........................................     8
Vote of the Committee............................................     8
Committee Oversight Findings.....................................    11
Performance Goals and Objectives.................................    11
New Budget Authority and Tax Expenditures........................    11
Congressional Budget Office Cost Estimate........................    11
Constitutional Authority Statement...............................    13
Section-by-Section Analysis......................................    13
Markup Transcript................................................    13
Dissenting Views.................................................    49

    The amendment is as follows:

    Amend the title so as to read:

      Joint resolution proposing a tax limitation amendment to 
the Constitution of the United States.

                          Purpose and Summary

    H.J. Res. 41, introduced by Congressman Pete Sessions of 
Texas, would require any legislative measure changing the 
internal revenue laws that increases revenue by more than a de 
minimis amount to receive the concurrence of two-thirds of the 
Members of each House voting and present.\1\ Excluded from this 
requirement would be any increase resulting from the lowering 
of an effective rate of any tax. This supermajority requirement 
could be waived when a declaration of war is in effect or when 
the United States is engaged in a military conflict which 
causes an imminent and serious threat to national security and 
is so declared by a joint resolution, adopted by a majority of 
the whole number of each House, which becomes law. Pursuant to 
the Necessary and Proper Clause of article I, section 8 of the 
Constitution, the Congress would have authority to enact 
implementing legislation.
---------------------------------------------------------------------------
    \1\ The United States Constitution provides the Congress the power 
to levy taxes. See U.S. Const., Art. I, Sec. 8, cl. 1 (``The Congress 
shall have Power To lay and collect Taxes, Duties, Imposts and Excises. 
. . .''); U.S. Const., Amend. XVI (``The Congress shall have power to 
lay and collect taxes on incomes, from whatever source derived, without 
apportionment among the several States, and without regard to any 
census or enumeration.'').
---------------------------------------------------------------------------
    The Tax Limitation Amendment is intended to force Congress 
to seriously consider alternatives to raising taxes when 
attempting to manage the budget. The amendment does not 
foreclose the possibility of raising taxes, closing loopholes, 
or improving enforcement of existing internal revenue laws. It 
simply requires a broad consensus before increasing taxes to 
raise additional revenue by more than a de minimis amount.

                Background and Need for the Legislation

    According to the Congressional Budget Office, individual 
income tax revenues increased last year by 14.2 percent--125 
billion dollars, and overall revenues increased by 10.8 
percent--197.7 billion dollars.\2\ With the exception of 1942, 
the overall amount of these revenues is a higher percentage of 
our Gross Domestic Product than at any other time in our 
history. While this proposal would not provide immediate relief 
for taxpayers, it will help direct the Federal Government to 
reduce wasteful spending, to ferret out fraud, and to eliminate 
ineffective programs before raising taxes. A supermajority vote 
is already required for several important governmental 
decisions.\3\
---------------------------------------------------------------------------
    \2\ Congressional Budget Office, The Budget and Economic Outlook: 
Fiscal Years 2002-2011, pp. 144-45, January, 2001.
    \3\ See U.S. Const., Art. I, Sec. 3, cl. 6 (Senate conviction 
following impeachment trial); U.S. Const., Art. I, Sec. 5, cl. 2 
(Expelling a Member of Congress); U.S. Const., Art. I, Sec. 7, cl. 2 
(Overriding a Presidential veto); U.S. Const., Art. II, Sec. 1, cl. 3 
(Required quorum for House to choose President); U.S. Const., Art. II, 
Sec. 2, cl. 2 (Senate concurrence to treaties); U.S. Const., Art. V 
(Proposing Constitutional Amendments); U.S. Const., Art. VII (State 
ratification of Constitution); U.S. Const., Amend. XII (Required quorum 
to choose President and Vice President); U.S. Const., Amend. XIV, 
Sec. 3 (Removing disability for holding office); U.S. Const., Amend. 
XXV, Sec. 4 (Determining Presidential disability).
---------------------------------------------------------------------------
I. Application of the amendment
    The supermajority requirement of H.J. Res. 41 would only 
apply to changes to the internal revenue laws. Any bill, 
resolution, or other legislative measure changing the internal 
revenue laws would require a two-thirds vote, unless it was 
determined that the bill's provisions, taken together, either 
raised revenue by less than a de minimis amount, decreased 
revenue by any amount, or were revenue neutral. In determining 
whether a bill increased the internal revenue, any increase 
resulting from the lowering of an effective rate of any tax 
would be excluded.
    Generally, the phrase ``internal revenue laws'' covers 
taxes found in the Internal Revenue Code, such as income taxes 
(personal and corporate), estate and gift taxes, employment 
taxes, and excise taxes. The amendment would also cover future 
revenue laws even if they were not placed into the Code.\4\ It 
would not cover tariffs, user fees, voluntary payments, or 
bills that do not change internal revenue laws, even if such 
measures increase the internal revenue by more than a de 
minimis amount.
---------------------------------------------------------------------------
    \4\ The Internal Revenue Code, title 26 of the United States Code, 
is not explicitly referenced because Congress could avoid the 
application of the amendment by passing tax legislation and putting it 
elsewhere in the code or characterizing it in a different fashion.
---------------------------------------------------------------------------
II. The ``de minimis'' exception and implementing legislation
    The term de minimis is not new to Federal law. It appears 
in approximately 80 statutes in the United States Code. An 
April 7, 1997 letter to then-Judiciary Committee Chairman Henry 
Hyde, from then-Ways and Means Committee Chairman Bill Archer 
discussed the meaning of the de minimis standard and the 
enactment of implementing legislation in connection with a bill 
similar to H.J. Res. 41 introduced during the 105th Congress:

          [T]he Constitutional amendment excepts from the \2/3\ 
        requirement tax legislation that raises no more than a 
        de minimis amount of revenue. The amendment states that 
        Congress may ``reasonably provide'' how this exception 
        is applied. Details may be very important, but they do 
        not belong in the Constitution. Instead, Congress would 
        adopt legislation that implements the Constitutional 
        amendment by defining terms and fleshing out 
        procedures.
          It is up to this or a future Congress to design this 
        ``implementing legislation.'' However, it is my 
        understanding and intent that such legislation will 
        have the following characteristics:
          Revenue would be measured over a period consistent 
        with current budget windows. For example, measuring the 
        net change in revenue over a 5 year period would be 
        appropriate.
          Estimation would be made employing the usual revenue 
        estimating rules. As under the Budget Act, a committee 
        of jurisdiction or conference committee would, in 
        consultation with the Congressional Budget Office or 
        the Joint Committee on Taxation, determine the revenue 
        effect of a bill.
          A bill would be considered to raise a de minimis 
        amount of revenue if it increased Federal tax revenues 
        by no more than 0.1 percent over 5 years.
          For purposes of determining whether a bill raises 
        more than a de minimis amount of revenue, only tax 
        provisions (i.e., provisions modifying the internal 
        revenue laws) in the bill would be considered. Other 
        provisions that increase Federal revenues or receipts 
        (such as asset sales, tariffs, user fees, etc.) would 
        not be taken into account in determining the revenue 
        raised by the bill.\5\
---------------------------------------------------------------------------
    \5\ H.R. Rep. No. 105-50, 105th Cong., 1st Sess., at 4 (1997).

    Although opponents of H.J. Res. 41 have argued that a 
supermajority requirement would unduly burden Congress in 
closing so-called tax loopholes, the de minimis standard would 
actually permit a simple majority vote on certain measures that 
seek to close tax loopholes. Should Congress adopt the 
definition proposed by Chairman Archer, a simple majority vote 
would suffice for passage where the tax provisions in the 
measure, taken together, would not increase Federal tax 
revenues by more than one-tenth of 1 percent of Federal 
revenues over a 5-year period. Thus, so long as the revenue 
effect of provisions that close tax loopholes is offset by 
other provisions in the measure, such that the increase, if 
any, in revenue is ``de minimis,'' a two-thirds vote will not 
be required.
III. Prior legislative action
    During the 104th Congress, on April 15, 1996, H.J. Res. 159 
failed to receive the required two-thirds vote for 
constitutional amendments by a vote of 241-157. That resolution 
would have required any bill that levied a new tax or increased 
the rate or base of any tax to receive a two-thirds majority of 
the whole number of each House of Congress.
    During the 105th Congress, the Committee on the Judiciary 
conducted a markup of H.J. Res. 62 following a hearing 
conducted by the Subcommittee on the Constitution. Eight 
witnesses, including two Members of Congress, testified at the 
March 18, 1997 Subcommittee hearing. On April 8, 1997, the 
Committee ordered H.J. Res. 62 to be reported, as amended, by a 
vote of 18-10. See H. Rept. 105-50, 105th Cong., 1st sess. 
(1997). H.J. Res. 62, as amended, would have required, inter 
alia, any legislative measure changing the internal revenue 
laws to receive the concurrence of two-thirds of the Members of 
each House voting and present, unless the measure did not 
increase the internal revenue by more than a de minimis amount. 
But on April 15, 1997, the bill failed by a vote of 233-190.
    In 1998, H.J. Res. 111 was introduced and was subsequently 
modified and deliberated pursuant to H. Res. 407, a rule for 
its consideration. Pursuant to H. AMDT. 553, section 1 of H.J. 
Res. 111 was amended to additionally state that ``[f]or the 
purposes of determining any increase in the internal revenue 
under this section, there shall be excluded any increase 
resulting from the lowering of an effective rate of any tax.'' 
On April 22, 1998, H.J. Res. 111, as amended, failed by a vote 
of 238-186.
    During the 106th Congress, H.J. Res. 37 failed on April 15, 
1999 by a vote of 229-199, and H.J. Res. 94 failed on April 12, 
2000 by a vote of 234-192. The bills were identical to each 
other and identical to H.J. Res. 111, 105th Congress, as 
amended, except that the bills introduced during the 106th 
Congress did not contain a section providing that Congress can 
enact enabling legislation. However, pursuant to the Necessary 
and Proper Clause of article I, section 8 of the Constitution, 
Congress still has authority to enact enabling legislation.
    H.J. Res. 41, introduced during the 107th Congress on March 
22, 2001, is identical to the bills introduced during the 106th 
Congress.
IV. State tax limitation laws
    Currently, fourteen states have tax limitation provisions 
for all, most, or some tax increases. Out of the fourteen 
states with tax limitation provisions, eleven states require a 
supermajority for any tax increase (supermajority required in 
parentheses): Arizona (\2/3\); Arkansas (\3/4\); California 
(\2/3\); Colorado (\2/3\); Delaware (\3/5\); Louisiana (\2/3\); 
Mississippi (\3/5\); Nevada (\2/3\); Oklahoma (\3/4\); Oregon 
(\3/5\); and South Dakota (\2/3\). Missouri requires a \2/3\ 
supermajority for most tax increases, Florida requires a \3/5\ 
supermajority for corporate income tax increases only, and 
Michigan requires a \3/4\ supermajority for a certain type of 
property tax increase.
    Barry W. Poulson, Professor of Economics at the University 
of Colorado, testified before the Constitution Subcommittee 
during the 105th Congress that when tax limitation provisions 
are incorporated into state constitutions, ``they are more 
likely to constrain the growth of government'' than statutory 
provisions.\6\ Daniel Mitchell, McKenna Senior Fellow in 
Political Economy at the Heritage Foundation, who also 
testified before the Subcommittee on the Constitution during 
the 105th Congress, stated that empirical data from states 
suggests that supermajority requirements are successful in 
limiting the growth of government and in enabling a more rapid 
pace of economic growth and job creation. States with 
supermajority requirements have lower spending increases, 
faster economic growth, more jobs, and a more tightly-
controlled tax burden than states without such requirements.\7\
---------------------------------------------------------------------------
    \6\ ``Proposing an Amendment to the Constitution with Respect to 
Tax Limitations, 1997: Hearings on H.J. Res. 62 Before the Subcomm. On 
the Constitution of the House Judiciary Committee,'' 105th Cong., 1st 
sess. (written statement of Dr. Barry Poulson).
    \7\ ``Proposing an Amendment to the Constitution with Respect to 
Tax Limitations, 1997: Hearings on H.J. Res. 62 Before the Subcomm. On 
the Constitution of the House Judiciary Committee,'' 105th Cong., 1st 
sess. (written statement of Daniel Mitchell).
---------------------------------------------------------------------------
V. Supermajority requirements and taxation
    There is nothing undemocratic or unusual about 
supermajority requirements in our system of representative 
democracy. Supermajority voting requirements are routinely used 
for legislative business in both the House and the Senate. 
Since 1828, the House has allowed a two-thirds vote to suspend 
rules and to pass legislation. Senate rules require a two-
thirds vote for suspension of the rules and for the fixing of 
time for considering a subject. The Senate requires a three-
fifths vote of all Senators to end debate or to increase the 
time available under cloture. Senate Budget procedures require 
that three-fifths of the full Senate must agree to waive 
balanced budget provisions or points of order to consider 
amendments that would violate the budget approved by Congress. 
Moreover, there are ten instances in which the Constitution 
requires a supermajority vote. Seven of these were part of the 
original Constitution and three were added through the 
amendment process.\8\
---------------------------------------------------------------------------
    \8\ See supra note 3.
---------------------------------------------------------------------------
    Opponents of H.J. Res. 41 point to the fact that one of the 
weaknesses that led to the demise of the Articles of 
Confederation was that the Articles required a supermajority 
vote to raise Federal revenue. It is true that the Framers of 
the Constitution did not impose a supermajority voting 
requirement to raise revenue. Their solution was far more 
severe--an explicit constitutional restriction on direct 
taxes.\9\
---------------------------------------------------------------------------
    \9\ See U.S. Const., Art. I, Sec. 9, cl. 4 (``No Capitation, or 
other direct, tax shall be laid, unless in Proportion to the Census or 
Enumeration herein before directed to be taken.'').
---------------------------------------------------------------------------
    As explained by Alexander Hamilton in Federalist No. 21, 
the taxing ability of the Federal Government was intentionally 
limited:

          It is a signal advantage of taxes on articles of 
        consumption [today called tariffs, sales and excise 
        taxes] that they contain in their own nature a security 
        against excess. They prescribe their own limit, which 
        cannot be exceeded without defeating the end proposed--
        that is, an extension of the revenue. When applied to 
        this object, the saying is as just as it is witty that, 
        ``in political arithmetic, two and two do not always 
        make four.'' If duties are too high, they lessen the 
        consumption, the collection is eluded; and the product 
        to the treasury is not so great as when they are 
        confined within proper and moderate bounds. This forms 
        a complete barrier against any material oppression of 
        the citizens by taxes of this class, and is itself a 
        natural limitation of the power of imposing them.\10\
---------------------------------------------------------------------------
    \10\ The Federalist No. 21 (Alexander Hamilton).

    Lawrence Hunter, President of the Business Leadership 
Council, testified before the Subcommittee on the Constitution 
during the 104th Congress that the original design of the 
---------------------------------------------------------------------------
Constitution carefully balanced the powers to tax and spend:

          In Madison's and Hamilton's original design, the 
        taxing and spending authority of the Federal Government 
        was hemmed in by the dual constraints of exclusive 
        reliance on indirect taxes (which ``prescribe their own 
        limit'') working side-by-side with the powerful 
        constraint on spending resulting from the limited 
        delegation of powers to the Federal Government. This 
        limited delegation of powers severely restricted the 
        objects and activities on which the Federal could spend 
        money. In other words, the original constitutional 
        design constrained both the means by which Congress 
        spent (taxation) and the ends on which Congress spent 
        (defined by a limited delegation of powers).\11\
---------------------------------------------------------------------------
    \11\ ``Amendment to the Constitution Requiring Two-thirds 
Majorities for Bills Increasing Taxes, 1996: Hearings on H.J. Res. 159 
Before the Subcomm. On the Constitution of the House Judiciary 
Committee,'' 104th Cong., 2nd Sess. 75.

    As ratified, the Constitution allowed no direct taxation of 
the income of citizens. For three-quarters of our history, the 
power of the Federal Government to tax was carefully 
constrained by explicit constitutional restraints. It was not 
until the early 1900's that the 16th amendment swept away the 
Constitution's careful balance with respect to taxes. While in 
the 1780's, the Federal Government may have had a problem 
raising revenue, this is certainly no longer a problem today. 
As recently as 1940, Federal taxes were only 6.7% of the Gross 
Domestic Product. But according to the Congressional Budget 
Office, by the year 2000, Federal taxes had exceeded 20% of the 
GDP. Moreover, total Federal revenues exceeded $2 trillion as 
of 2000 with over $1 trillion of the revenues derived from 
individual income taxes.\12\
---------------------------------------------------------------------------
    \12\ Congressional Budget Office, The Budget and Economic Outlook: 
Fiscal Years 2002-2011, pp. 144-45, January, 2001.
---------------------------------------------------------------------------
    Under our current system it is too easy to add to the 
already onerous tax burden Congress has placed upon the 
American people. The adoption of a supermajority provision will 
force Congress to give careful consideration to proposals to 
raise taxes and will require a broad consensus in order to do 
so.
VI. Standing to sue under the tax limitation amendment
    As a general matter, in order to file civil actions in 
Federal court, plaintiffs must have standing. Plaintiffs must 
demonstrate that they: (1) suffered an actual injury of the 
type for which a court may grant relief; (2) by some action of 
the defendant, and that; (3) the court will be able to redress 
the injury.
    Prudential considerations, not rooted in the Constitution, 
also come into play. These rules require that (1) the defendant 
violated the plaintiff's legal right, not someone else's; (2) 
the plaintiff's injury is somehow differentiated from those of 
all other people in the country; and (3) the injury is of the 
type that the law or constitutional provision in question was 
designed to protect. Ordinarily, a taxpayer has no standing to 
sue the Federal Government for carrying out an arguably 
unconstitutional program that allegedly wastes the public's 
money. Most direct constitutional challenges to the exercise of 
the government's spending power are beyond judicial reach. The 
mere fact that the Federal Government did not act 
constitutionally in exerting its spending power does not 
provide a plaintiff with standing.
    Under H.J. Res. 41, an increase in taxes does not 
automatically trigger a two-thirds vote. The proposed 
constitutional amendment does not create a legal right to have 
taxes raised only where there is a two-thirds vote. Therefore, 
a taxpayer would not have standing to sue merely because his 
tax burden was increased. The amendment requires Congress to 
determine ``at the time of adoption, in a reasonable manner 
prescribed by law'' whether the tax provisions in the 
legislation, taken as a whole, increase the internal revenue by 
more than a de minimis amount. Thus, a bill raising some taxes 
and lowering others, would not necessarily trigger a two-thirds 
vote. A court would be extremely reluctant to substitute its 
own judgment on the revenue effects of a particular piece of 
legislation for that of the Congress. Under current 
interpretations of ``standing'' rules, it is highly unlikely 
that a court would allow a taxpayer to challenge Congress' 
determination that a bill raised revenue by less than a de 
minimis amount.\13\
---------------------------------------------------------------------------
    \13\ The strongest case for standing would be made where Congress 
failed to determine whether a bill changing the internal revenue laws 
increased the internal revenue by more than a de minimis amount. Even 
here, however, it is not entirely clear under the ``standing'' doctrine 
that a plaintiff whose taxes had been raised under such a scenario 
would have standing to sue.
---------------------------------------------------------------------------
VII. Differences between the tax limitation amendment and the House 
        rule
    The House rule for the 104th Congress required a three-
fifths vote for any bill ``carrying a Federal income tax rate 
increase.'' The rule was waived several times during the 104th 
Congress. At the beginning of the 105th Congress, the House 
rule was changed. Now, rule XXI, cl. 5(c) requires a three-
fifths vote for any bill that ``amends subsection (a), (b), 
(c), (d), or (e) of section 1, or to section 11(b) or 55(b), of 
the Internal Revenue Code of 1986, that imposes a new 
percentage as a rate of tax and thereby increases the amount of 
tax imposed by any such section.'' (Emphasis added).\14\ The 
House rule, then, applies to amendments to certain sections of 
the Internal Revenue Code that increase tax rates even if the 
bill, taken as a whole, would reduce revenues.
---------------------------------------------------------------------------
    \14\ Section (1)(a) covers the tax rate for married individuals 
filing joint returns and surviving spouses. Section (1)(b) covers heads 
of household. Section (1)(c) covers unmarried individuals. Section 
(1)(d) covers married individuals filing separate returns. Section (e) 
covers estates and trusts. Section 11(b) covers the amount of tax on 
corporations. Section 55(b) covers the tentative minimum tax.
---------------------------------------------------------------------------
    In contrast, H.J. Res. 41 would not require a two-thirds 
vote for a bill that changed the tax rates if the tax 
provisions of the bill, taken together, either raised revenue 
by less than a de minimis amount, decreased revenue by any 
amount, or were revenue neutral. H.J. Res. 41 would undoubtedly 
make it more difficult for Congress to raise taxes, but it 
would still provide Congress with the flexibility to cut taxes, 
to close so-called tax loopholes, and to make revenue neutral 
changes to the tax laws.

                                Hearings

    Because similar tax limitation amendments to the United 
States Constitution have been considered by the Congress, the 
Committee on the Judiciary did not hold hearings on H.J. Res. 
41. H.J. Res. 41 is identical to tax limitation amendments that 
were considered in the 106th Congress, and the Subcommittee on 
the Constitution conducted a full day of hearings on a similar 
tax limitation amendment in the 105th Congress.

                        Committee Consideration

    On April 4, 2001, the full Committee met in open session 
and ordered favorably reported the joint resolution H.J. Res. 
41, by a vote of 17 ayes to 9 nays, a quorum being present.

                         Vote of the Committee

    1. Two amendments offered en bloc by Ms. Jackson Lee would 
have: (1) excluded any bill, resolution or other legislative 
measure that imposes an environmental tax, fee, charge or 
assessment from requiring a two-thirds majority vote; and (2) 
excluded any bill, resolution, or other legislative measure 
necessary to preserve the solvency of the Federal Old Age and 
Survivors Insurance Trust Fund or the Federal Disability Trust 
Fund, or any successor funds from requiring a two-thirds 
majority vote. The amendments were defeated by voice vote.
    2. Amendment offered by Mr. Watt, which would have required 
a two-thirds majority vote for any bill, resolution, or other 
legislative measure determined to decrease the internal revenue 
by more than a de minimis amount, was defeated by voice vote.
    3. Amendment offered by Mr. Nadler, which would have 
excluded any bill, resolution, or other legislative measure 
designed to improve enforcement of the internal revenue laws 
from requiring a two-thirds majority vote, was defeated by 
voice vote.
    4. Amendment offered by Mr. Frank, which would have 
excluded any bill, resolution, or other legislative measure 
necessary to preserve the solvency of the Federal Old Age and 
Survivors Insurance Trust Fund from requiring a two-thirds 
majority vote, was defeated 8 ayes to 16 nays.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (Texas)...............................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Hostettler..................................................  ..............              X   ..............
Mr. Green.......................................................  ..............              X   ..............
Mr. Keller......................................................  ..............  ..............  ..............
Mr. Issa........................................................  ..............              X   ..............
Ms. Hart........................................................  ..............              X   ..............
Mr. Flake.......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................  ..............  ..............  ..............
Ms. Jackson Lee.................................................  ..............  ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Schiff......................................................  ..............  ..............  ..............
Mr. Sensenbrenner, Chairman.....................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              8              16   ..............
----------------------------------------------------------------------------------------------------------------

    5. Amendment offered by Mr. Watt, which would have limited 
judicial review to legislative compliance, was defeated 9 ayes 
to 16 nays.

                                                   ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............              X   ..............
Mr. Smith (Texas)...............................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............  ..............  ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Hostettler..................................................  ..............  ..............  ..............
Mr. Green.......................................................  ..............              X   ..............
Mr. Keller......................................................  ..............              X   ..............
Mr. Issa........................................................  ..............              X   ..............
Ms. Hart........................................................  ..............              X   ..............
Mr. Flake.......................................................  ..............              X   ..............
Mr. Conyers.....................................................              X   ..............  ..............
Mr. Frank.......................................................              X   ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................  ..............  ..............  ..............
Ms. Jackson Lee.................................................  ..............  ..............  ..............
Ms. Waters......................................................              X   ..............  ..............
Mr. Meehan......................................................              X   ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Schiff......................................................  ..............  ..............  ..............
Mr. Sensenbrenner, Chairman.....................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              9              16   ..............
----------------------------------------------------------------------------------------------------------------

    6. Amendment offered by Mr. Nadler, which would have 
excluded any bill, resolution, or other legislative measure 
repealing any industry-specific exemptions, deductions, or 
credits, was defeated by voice vote.
    7. Motion by Mr. Sensenbrenner to favorably report the 
joint resolution H.J. Res 41 was agreed to, 17 ayes and 9 nays.

                                                   ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................  ..............  ..............  ..............
Mr. Gekas.......................................................              X   ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (Texas)...............................................              X   ..............  ..............
Mr. Gallegly....................................................              X   ..............  ..............
Mr. Goodlatte...................................................  ..............  ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................              X   ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Cannon......................................................              X   ..............  ..............
Mr. Graham......................................................              X   ..............  ..............
Mr. Bachus......................................................  ..............  ..............  ..............
Mr. Scarborough.................................................              X   ..............  ..............
Mr. Hostettler..................................................  ..............  ..............  ..............
Mr. Green.......................................................              X   ..............  ..............
Mr. Keller......................................................              X   ..............  ..............
Mr. Issa........................................................              X   ..............  ..............
Ms. Hart........................................................              X   ..............  ..............
Mr. Flake.......................................................              X   ..............  ..............
Mr. Conyers.....................................................  ..............              X   ..............
Mr. Frank.......................................................  ..............              X   ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................  ..............              X   ..............
Mr. Scott.......................................................  ..............              X   ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................  ..............  ..............  ..............
Ms. Jackson Lee.................................................  ..............  ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................  ..............              X   ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Ms. Baldwin.....................................................  ..............              X   ..............
Mr. Weiner......................................................  ..............              X   ..............
Mr. Schiff......................................................  ..............              X   ..............
Mr. Sensenbrenner, Chairman.....................................              X   ..............  ..............
                                                                 -----------------------------------------------
    Total.......................................................             17               9   ..............
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                    Performance Goals and Objectives

    H.J. Res. 41 does not authorize funding. Therefore, clause 
3(c) of House Rule XIII is inapplicable.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the joint resolution, H.J.Res.41, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                    Washington, DC, April 13, 2001.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.J. Res. 41, a joint 
resolution proposing an amendment to the Constitution of the 
United States with respect to tax limitations.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are John R. 
Righter (for Federal costs), who can be reached at 226-2860, 
and Shelley Finlayson (for the state and local impact), who can 
be reached at 225-3220.
            Sincerely,
                                  Dan L. Crippen, Director.

Enclosure

cc:
        Honorable John Conyers Jr.
        Ranking Member
H.J. Res. 41--A joint resolution proposing an amendment to the 
        Constitution of the United States with respect to tax 
        limitations.
    H.J. Res. 41 would propose amending the Constitution to 
require that any change to the nation's internal revenue laws 
pass both houses of Congress by a two-thirds vote. Current law 
requires that such measures pass by a simple majority. The 
amendment would except instances where it is determined the 
change in law would increase taxes by not more than a minimal 
amount. For the amendment to become effective, the legislatures 
of three-fourths of the states would be required to ratify it 
within 7 years of enactment.
    By itself, this resolution would have no impact on the 
Federal budget. If the proposed amendment to the Constitution 
is approved by the states, then it would be more difficult for 
future Congresses to pass legislation increasing revenues 
through changes to the internal revenue code. Because enactment 
of H.J. Res. 41 would not affect direct spending or receipts, 
pay-as-you-go procedures would not apply.
    H.J. Res 41 contains no private-sector or intergovernmental 
mandates as defined in the Unfunded Mandates Reform Act, and 
would impose no costs on state, local, or tribal governments. 
In order to become part of the Constitution, three-fourths of 
the state legislatures would have to ratify the resolution 
within 7 years of its submission to the states by the Congress. 
However, no state is required to take action on the resolution, 
either to reject it or to approve it.
    The CBO staff contacts for this estimate are John R. 
Righter (for Federal costs), who can be reached at 226-2860, 
and Shelley Finlayson (for the state and local impact), who can 
be reached at 225-3220. This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article V of the Constitution, which 
provides that the Congress has the authority to propose 
amendments to the Constitution.

               Section-by-Section Analysis and Discussion

    Section 1. This section requires any legislative measure 
changing the internal revenue laws to receive the concurrence 
of two-thirds of the Members of each House voting and present, 
unless the legislative measure is determined not to increase 
the internal revenue by more than a de minimis amount. The bill 
provides that for the purposes of determining any increase in 
the internal revenue, there shall be excluded any increase 
resulting from the lowering of an effective rate of any tax. In 
addition, section 1 provides that on any vote for which the 
concurrence of two-thirds is required under the bill, there 
shall be a roll-call vote of the Members of each House.
    Section 2. This section provides that the Congress may 
waive the bill's requirements under two circumstances: (1) when 
a declaration of war is in effect; and (2) when the United 
States is engaged in military conflict which causes an imminent 
and serious threat to national security and is so declared by a 
joint resolution, adopted by a majority of the whole number of 
each House, which becomes law. But section 2 provides that any 
increase in the internal revenue enacted under such a waiver 
shall be effective for no more than 2 years.

                           Markup Transcript



                            BUSINESS MEETING

                        WEDNESDAY, APRIL 4, 2001

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:00 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner [chairman of the committee] presiding.
    Next, pursuant to notice, I now call up the bill H.J. Res. 
41 proposing an amendment to the Constitution of the United 
States with respect to tax limitations for purpose of markup 
and move its favorable recommendation to the House.
    [H.J. Res. 41 follows:]
    
    
    Chairman Sensenbrenner. Without objection, the bill will be 
considered as read and open for amendment at any point.
    The Chair strikes the last word and recognizes himself for 
5 minutes.
    H.J. Res. 41, introduced by Congressman Pete Sessions, is 
known as the Tax Limitation Amendment. This legislation would 
establish a constitutional amendment requiring a two-thirds 
majority vote by Congress for any bill that increases the 
internal revenue by more than a de minimis amount. However, 
this amendment would not require a two-thirds vote for every 
tax increase. For example, a bill that both lowered and 
increased taxes, if it were revenue-neutral, would not be 
subject to the two-thirds vote requirement, nor would a bill 
intended to raise revenue by reducing taxes.
    In addition, the two-thirds majority requirement would be 
waived when a declaration of war is in effect or when both 
houses pass a resolution which becomes law stating that the 
United States is engaged in a military conflict which causes an 
imminent and serious threat to national security.
    Currently, 14 States have adopted tax limitation 
amendments. According to statistics provided by the Bureau of 
Economic Analysis, these States have benefitted from greater 
rates of increased employment, greater economic growth, 
decreased government spending, and decreased rates of tax 
growth.
    Although similar amendments have been unsuccessfully 
considered by the House over the past few years, the need for 
tax reform has never been greater. According to the CBO, with 
the exception of 1942, the overall amount of individual income 
tax revenues is a higher percentage of our gross domestic 
product than in any other time in our history, and today, we're 
not combatting either fascism or communism.
    The bottom line is that taxes today are too high. Federal, 
state and local taxes consume about 40 percent of the income of 
the average family. That's more than the average family spends 
on food, clothing and shelter combined.
    As Congress debates meaningful tax relief for the American 
people, today is an important time to recognize that Congress' 
voracious appetite for spending still endures. That's why I 
think it's more important than ever for this committee and this 
Congress to reconsider and support the measure that will make 
it more difficult for Congress to raise taxes in the future.
    Inevitably, there will come a time when Congress wishes to 
spend more and will not have budget surpluses to reply upon. 
There will be many inside the Washington Beltway who argue that 
in order for Congress to spend more, we will need to take more 
from the hard-working citizens in places like Madison, 
Wisconsin; Detroit, Michigan; Los Angeles, California; Houston, 
Texas; Murrysville, Pennsylvania; Egan, South Carolina, and 
every other area, large and small, across our great nation. 
However, I believe that this is the wrong approach and there is 
another way to meet our nation's priority, and that's by 
tightening our belt and reducing wasteful spending, ferreting 
out fraud, and eliminating ineffective programs. Raising taxes 
should be a last-ditch option and should occur only after 
careful consideration with broad consensus.
    Although a constitutional amendment is a big step, I 
believe our history of tax hikes illustrates that this is an 
important step that will bring needed discipline to Congress 
and relief to the American people.
    I urge the passage of this resolution and yield back the 
balance of my time.
    For what purpose does the gentleman from New York seek 
recognition?
    Mr. Nadler. For an opening statement.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes to strike the last word.
    Mr. Nadler. Thank you, Mr. Chairman.
    I regard it as very unfortunate that this committee is 
wasting its time with this old chestnut when we're not, for 
example, looking into the questions of electoral reform or the 
question that the President has put before us of faith-based 
initiatives as the minority has requested. These are real 
issues that are currently before us. We know that this 
amendment is not going to pass, it has gone nowhere in the 
last, what, four congresses, but if we're going to waste the 
time, we're going to waste the time.
    Let me talk to the merits, or rather demerits, of this 
bill. The bill is profoundly--or the constitutional amendment 
is profoundly anti-democratic. Profoundly anti-democratic. The 
Congress represents the American people and ought to be able to 
act on any subject by--except amending the Constitution, by 
majority vote. If the people want the taxes lowered, Congress 
should do that by majority vote. If the people want the taxes 
raised, Congress should do that by majority vote. If the 
present political consensus today is that taxes should be 
lowered, so be it, but by what right do we hamstring our 
successors 20 or 30 or 40 or 100 years from now who may face 
circumstances where they judge and the American people by 55 or 
60 percent judge that taxes should be raised? We don't know 
what the circumstances are going to be and it's not for us to 
make that determination. Our successors, elected by the 
American people in the future, should make these 
determinations.
    Now, today we may think the political philosophy of the 
majority of the country may be that taxes should be lowered. 
Fine. But who knows what the story will be 50 years from now or 
100 years from now?
    What this bill says is that one-third of the Congress 
members at any point in the future can--one-third plus one can 
thwart the will of almost two-thirds of the American people as 
represented in Congress. That's exactly the opposite way of 
where our democratic government ought to go.
    Secondly, it sets up a one-way ratchet situation. Let's 
assume that we decide that taxes ought to be lowered and we 
estimate that by lowering it in a certain way, that will cut 
$100 billion of revenue. It turns out the estimate was wrong; 
it cuts $150 billion of revenue. Most people want to say, no, 
no, no, we intended a $100 billion tax cut. Oh, but you can't 
correct it because the majority vote can only go down, the 
majority vote can't go up, you need a two-thirds vote. It 
should be the same, it should be majority to go up or down, it 
should be two-thirds to go up or down if we want to be anti-
democratic. We set up a one-way ratchet because we prefer 
cutting taxes, and certainly all of us prefer cutting to 
increasing taxes, and that's--but that's for the American 
people to decide at elections.
    Thirdly, the way the bill is written, any revenue measure, 
any bill amending the Internal Revenue Code that is 
determined--needs a two-thirds vote unless it is determined not 
to increase the internal revenue by more than a de minimis 
amount. So if we find that people are cheating and we decide to 
put in better enforcement mechanisms, that would bring in more 
revenue, no, no, you can't do that except by a two-thirds vote 
because that would increase the internal revenue, we should let 
the cheats get away.
    If we find that some huge corporation has found a loophole 
that nobody intended and that lets them pay no tax at all? Oh, 
you can't correct that loophole without a two-thirds vote 
because that's increasing the internal revenue.
    And if we decide that we ought to--well, that's sufficient. 
You can't change enforcement, you can't close loopholes, and we 
thwart the will of the American people.
    This is a profoundly anti-democratic amendment, it seeks to 
enact into law the political philosophy at a given moment--of 
some people at a given moment in history, and that is wrong to 
bind our successors.
    If the American people by a majority want to raise taxes, 
they ought to be able to do it; to lower taxes, they ought to 
be able to do it; and we have no business telling our 
successors 50 or 100 years from now what they can and cannot do 
except in terms of violating the Bill of Rights because of our 
political opinions or prejudices.
    This is a profoundly unwise amendment and it's a waste of 
our time. I hope the committee will get on to dealing with 
contemporary issues soon.
    Thank you, Mr. Chairman.
    The Chair will declare a recess for us to go and vote. 
Please come back promptly, because after the rule on the estate 
tax repeal is voted on, we're supposed to have three or four 
votes in a row on motions held over from yesterday and it would 
be nice if we didn't have to come back after lunch.
    The committee is in recess.
    [Recess.]
    [Staff Note: Intervening Business.]
    Chairman Sensenbrenner. The committee will be in order.
    Let the Chair say that we've got about an hour to be able 
to consider this joint resolution. The Chair really would like 
to avoid coming back after lunch, but we have to get this out 
today because leadership has scheduled it for the first week 
after the recess.
    For what purpose does the gentleman from Michigan seek 
recognition?
    Mr. Conyers. I ask unanimous consent to add my statement to 
the record, and I would like to point out, after Mr. Nadler has 
made his profound analysis about how anti-democratic this is, I 
would like to point out that this is very, very much a 
Republican amendment, and I ask unanimous consent to add my 
statement to the record.
    Chairman Sensenbrenner. Without objection, and without 
objection, we will change the small ``d'' in Mr. Nadler's 
speech to a large ``D.''
    [The statement of Mr. Conyers follows:]
   Prepared Statement of Hon. John Conyers, Jr., a Representative in 
                  Congress from the State of Michigan
    I am opposed to this amendment because it is bad for our democracy 
and bad for our tax policy.
    By requiring a two-thirds majority to adopt certain legislation, 
the amendment undercuts majority rule and diminishes the vote of every 
Member of the Congress. The framers wisely rejected requiring a 
supermajority for basic government functions, and James Madison argued 
that under a supermajority requirement, ``the fundamental principle of 
free government would be reversed. It would no longer be the majority 
that would rule; the power would be transferred to the minority.''
    In addition, the amendment would permanently enshrine some $450 
billion of special corporate tax favors into the Constitution, nearly 
three times as much as all means tested entitlement programs combined. 
It would be next to impossible to change the law to require foreign 
corporations to pay their fair share of taxes on income earned in this 
country, or to repeal loopholes which encourage United States companies 
to relocate overseas. In fact, under this amendment it would take more 
votes to close a tax loophole engineered by a powerful interest group 
than to cut Social Security, Medicare, and education programs.
    The amendment would also make major deficit-reduction measures much 
harder to pass when they are needed. Five of the six major deficit-
reduction acts that were enacted since 1982 included a combination of 
revenue increases and program cuts. President Reagan signed three of 
these measures into law, and Presidents George H.W. Bush and Clinton 
signed one each. None of the five measures received a two-thirds 
majority in both houses, so had the proposed constitutional amendment 
been in effect during this period, substantial budget deficits would 
still be with us today.
    Finally, I would remind the Members that this amendment is the 
height of hypocrisy. Three Congresses ago, the Majority changed the 
House Rules so they could not increase tax rates without a three-fifths 
vote. But on six separate occasions since then the Majority ignored or 
waived their own House Rule. If the supermajority requirement didn't 
work as a House rule, why in the world would it work any better as a 
constitutional amendment?
    It's time the Majority got serious about the business of governing 
this country. A super-majority requirement has been rejected each of 
the last five years. Voting on this purely symbolic gesture one more 
time won't change anything. It's unworkable. We need to consider real 
solutions to our problems, not end majority rule as we know it.

    Chairman Sensenbrenner. For what purpose does the gentleman 
from Ohio seek recognition?
    Mr. Chabot. For the purpose of making an opening statement.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    The overall amount of money taken in taxes in this country 
is simply too high, and that adds to the difficulties many 
families face in making ends meet.
    Congress should reduce the tax burden on all Americans, but 
at the very least, we must act to protect hard-working families 
from future increased taxation. By making it more difficult to 
raise taxes, H.J. Res. 41 will do just that. H.J. Res. 41 would 
require Congress to focus on options other than raising taxes 
to manage the Federal budget, helping to impose fiscal 
discipline and to constrain the growth of government. This 
legislation would not foreclose the possibility of raising 
taxes under any circumstances; rather, a supermajority is 
required to achieve that goal.
    This is definitely very useful legislation. Currently 14 
States have tax limitation provisions for all, must or some tax 
purposes. The Tax Limitation Amendment will cover personal and 
corporate income taxes, estate and gift taxes, employment 
taxes, and excise taxes. The amendment would not apply to 
tariffs or user fees or voluntary payments or bills that do not 
change the internal revenue laws even if they have revenue 
implications.
    For purposes of determining whether a bill raises more than 
a de minimis amount of revenue, only tax provisions in the bill 
would be considered. Legislation that is roughly revenue 
neutral would not be subject to a two-thirds vote. For example, 
a bill that closed a tax loophole would not require a two-
thirds vote if it created less than a de minimis increase in 
revenue or was accompanied by a tax cut.
    The amendment states that a determination must be made at 
the time of the adoption of legislation as to whether it raises 
the internal revenue by more than a de minimis amount. In order 
to implement the amendment, Congress will need to adopt 
legislation defining terms and flushing out the necessary 
procedures.
    Assuming ratification by the requisite number of States 
will not occur by the end of this Congress, it will be up to a 
future Congress to design this implementing legislation once 
the amendment has taken effect.
    As I have observed many times before, Mr. Chairman, we need 
this amendment to help stem the tax-and-spend policies that too 
often rule Washington. Much of what goes on in this town 
involves the taking and spending of other people's money. 
Average Americans now have to spend most of their time working 
just to cover their tax burden and hopefully have enough left 
over to maintain a reasonable standard of living for themselves 
and their families.
    In the 1950's, the Federal Government, for example, took 
about 5 percent of the average American family's money, and 
that was after fighting World War II and the Korean War; yet, 
since then, in peacetime with a generally strong economy, that 
figure has increased five-fold. Today, the Federal Government 
takes about a quarter of what we earn, and I'm not sure anyone 
here would even suggest that the Government has gotten 500 
percent better.
    Since '92 alone, the Federal Government has raised taxes at 
the gas pump, on working seniors receiving Social Security, on 
mom-and-pop small businesses, et cetera; yet, the average 
family's real after-tax income has not really increased over 
the years. At best, working families are just treading water, 
and the Government keeps trying to soak them in order to fund 
more and more often wasteful Government programs.
    The House is now initiating meaningful change by reducing 
income tax rates, providing marriage tax penalty relief, 
doubling the child tax credit, and today getting rid of the 
onerous death tax, but these are precarious victories that can 
too easily be reversed by future congresses and future 
administrations.
    The solution has always been smaller, more efficient 
government, and this amendment would force the Congress to make 
responsible budget choices first instead of enacting knee-jerk 
policies that drain the wallets of average Americans at every 
turn; therefore, I encourage my colleagues to support this 
important amendment to the Constitution.
    I yield back the balance of my time.
    Chairman Sensenbrenner. Can we get to amendments? Are there 
amendments?
    For what purpose does the gentleman from North Carolina 
seek recognition?
    Mr. Watt. I was trying to strike the last word, Mr. 
Chairman, if the Chairman doesn't mind.
    Chairman Sensenbrenner. If the gentleman insists on 
striking the last word, the gentleman is recognized for 5 
minutes.
    Mr. Watt. Thank you, Mr. Chairman, and I'm the first to 
concede that the members of the committee who have been here 
before can just turn off their microphones or close their ears 
because they have heard this speech or some variation of it 
before, and so I'm going to primarily direct this to the new 
members of the committee. The older members can go back and 
just replay this speech because I have given it, some variation 
of it, several times.
    The thing that probably amazes me more than anything else 
about my conservative colleagues in this Congress since I have 
been here is two things. Number one, they say that they are 
conservative, and number two, their egos are big enough to 
think that what they can do to the Constitution is more 
valuable than 200 or more years of experience, and that George 
Washington and the folks who drafted this Constitution must 
have been stupid.
    I found that out primarily in the 104th Congress when the 
Gingrich revolution came in. It was in that Congress that 118 
proposed constitutional amendments were introduced, the bulk of 
which were by the conservatives who were claiming that they 
were conservative yet trying to amend the most conservative 
document that we have ever had and trying to change in dramatic 
ways the principles that we had founded our government on. In 
that Congress, four of those constitutional amendments were 
actually voted on on the House floor.
    In the 105th Congress, 86 constitutional amendments were 
introduced and six of those were actually voted on on the House 
floor. This is at a time when the conservatives were telling me 
that they were in control of the schedule. These same 
conservatives, who I think are really revolutionaries rather 
than conservatives--I think you've lost sight of what a 
conservative is.
    In last Congress, 52 proposed constitutional amendments 
were introduced and three were voted on on the House floor.
    So I just think you all have some notion that being a 
conservative has something to do with amending the 
Constitution. I actually was taught just the opposite of that, 
and so I really--I really have some serious concerns with your 
underlying proposition there that, number one, amending the 
Constitution is a conservative step, and number two, that 
people like Sessions in Idaho and people in this Congress are a 
lot brighter than the people who drafted the Constitution 
originally.
    Chairman Sensenbrenner. Would the gentleman yield?
    Mr. Watt. Beyond that----
    Chairman Sensenbrenner. Would the gentleman yield?
    Mr. Watt. --let me just--I'm happy to yield to the 
gentleman. I just want to make one other point and then I'm 
going to quit and I'll yield all the rest of my time to you.
    The other practical problem, in addition to the one that 
Mr. Nadler alluded to about this being just absolutely 
undemocratic and upsetting the whole balance that was 
contemplated in a democratic society, is the practical problem 
that was illustrated to me yesterday when a constituent called 
me and said, well, you can cut these taxes because if the 
projections that we have are wrong, then you can just pass 
something to reverse it. And I said, well, that I assure you is 
a lot more difficult than cutting taxes in the first place. But 
now you are trying to make it inordinately more difficult. If 
these projections that all of us know have a large margin of 
error are, in fact, in error, then at some point, we're going 
to have to come back and hopefully do something about that. I'm 
sure some of you will say you're conservatives and--and that 
that just means tightening the belt and reducing spending, but 
I think you are--you are unbalancing the democratic----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Mr. Watt. --playing field. I ask unanimous consent for 30 
seconds, and I'll yield it to--or a minute or whatever the 
Chairman needs, and I'll yield----
    Chairman Sensenbrenner. I'll hold my fire. The gentleman 
has expired.
    The gentleman from Massachusetts.
    Mr. Frank. Thank you, Mr. Chairman. I don't think----
    Chairman Sensenbrenner. Five minutes.
    Mr. Frank. I don't think they are going to be dilatory 
amendments, but as I've looked at the amendments, they really 
go to specifics, and I think it would be wrong for me to try to 
make my general comments under that rubric because we are 
talking about a very fundamental proposal--a proposal of a very 
fundamental shift in American--the government, essentially to 
lessen the people's role here.
    It's interesting that conservatives apparently believe that 
if we go by normal majority procedures, they won't do well, so 
they want to change the rules. I found something very 
interesting in my political career. Whichever side complains 
that the other side is demogaging or politicizing the issue is 
the side that recognizes it's in the political minority, I mean 
for a while. That is, both sides have tended to complain from 
time to time that people are politicizing an issue. Horror is 
that 535 politicians would politicize an issue. People who 
don't want issues politicized should never entrust them to 535 
elected officials.
    But what we now have is a permanent effort in this regard 
by the conservatives. They clearly are disappointed by the 
American people who have been insufficiently willing to oppose 
tax increases from time to time.
    Now, I think there have been some important tax increases 
that wouldn't have gone through. I did notice the gentleman 
from Ohio listed as one of these unfortunate tax increases the 
gasoline tax increase of 1993. I have also noticed that now 
that the Republican party has the President, both houses of 
Congress, and certainly a sympathetic ear at the Supreme Court, 
or 10 sympathetic ears at the Supreme Court, this terrible 
gasoline tax, about which we heard so much, isn't going to be 
changed. I haven't seen the proposal to cut the gasoline tax. 
You're in power, you have the President, you have both houses 
of Congress, you're passing all kinds of tax bills. Has that 
terrible gasoline tax increase of 1993 grown on you? Have you 
suddenly found merit in it that you never found before? That 
would not have passed.
    Apparently the majority now is happy that it passed because 
certainly the Republicans could, if they wanted to, do away 
with the gasoline tax increase of 1993, and it seems to me now 
that they apparently have decided that it was a good thing that 
that got through by one vote.
    I remember--I was here during Ronald Reagan. I remember a 
couple of tax increases Ronald Reagan asked us to vote for. 
Ronald Reagan in 1982, with the leadership of then Senator 
Dole, pushed through a tax increase to partially undo the tax 
cut of 1981.
    Now, I didn't vote for that at the time. I thought that 
particular Republican tax increase was not well constructed, 
but the Reagan people thought it was very important to the 
economy. My recollection is that if you had your two-thirds in 
there, Ronald Reagan wouldn't have gotten that tax increase.
    And then came 1983 when Ronald Reagan and Tip O'Neill 
collaborated to raise Social Security taxes, and people who 
talk about the need of people who are on Social Security to pay 
taxes on their Social Security. The first piece of that, the 
taxation of 50 percent of people's Social Security benefits if 
they are making more than $25,000 a year, that was enacted by 
the Congress at the request of Ronald Reagan with the support 
of Tip O'Neill and Bob Dole. I don't think it got two-thirds. I 
didn't vote for that one, either. I didn't think that was well 
done, it put off the cost-of-living increase. So I think the 
Republican party is being a little shortsighted because they 
are forgetting that at times when they were in power, they were 
for tax increases.
    And then, of course, George Bush's lips would never have 
moved if he needed two-thirds to move them. George Bush's lips 
were moved by a majority in 1990, not by two-thirds, and 
again--and so what I'm struck by is the repudiation of the Bush 
and Reagan tax cuts here. As I said, Ronald Reagan pushed 
through a couple of tax increases, not tax cuts, but tax 
increases. I'm not talking about the '86 one, I'm talking about 
the '82 and the '83 tax increases. And I don't know, is this 
kind of some compensatory thing? You'll name things for Ronald 
Reagan on the one hand, but on the other hand, you'll change 
the Constitution to make it impossible to do the things that he 
did?
    I mean, I have always read that the Republicans thought 
that one of their advantages--one of their benefits that they 
gave the country was that they saved Social Security. Well, 
they saved it in part by a tax increase, and this, of course, 
would have made it impossible. But the fundamental point is 
that it's just not democratic, it's not majority rule.
    Now, there are elements in our Constitution that already 
prevent majority rule, specifically the two States--two 
senators per State, and that was because of the political 
bargain they made. But apparently what the conservatives are 
now saying is, if we play by what we've always considered to be 
the fair rules--majority wins--and we count the majority of the 
votes, if we count the majority of people elected, if we count 
the majority of people elected in the United States House of 
Representatives, we'll lose a few, and we don't want to do 
that, and so therefore we are going to change the Constitution 
to say you can't raise taxes; we're not going to change the 
Constitution to say you can't protect Social Security or that 
you can't protect Medicare; we're not even going to change the 
Constitution to say you need two-thirds to go to war; we're 
talking about changing the Constitution to favor a particular 
ideology that----
    Chairman Sensenbrenner. The gentleman's time has expired.
    Are there amendments?
    For what purpose does the gentlewoman from Texas, Ms. 
Jackson Lee, seek recognition?
    Ms. Jackson Lee. Thank you, Mr. Chairman. I have two 
amendments at the desk, Amendments 1 and 2, that I would 
appreciate taking en bloc.
    Chairman Sensenbrenner. Without objection, the amendments 
will be considered en bloc. The Clerk will report the 
amendments.
    [Amendments 1 and 2 to H.J. Res. 41 offered by Ms. Jackson 
Lee follow:]
                 AMENDMENT 1--Amendment to H.J. Res. 41
                  Offered by Ms. Jackson Lee of Texas
    Add at the end the following:
    SECTION. The requirements of this article do not apply to any bill, 
resolution, or other legislative measure that imposes an environmental 
tax, fee, charge, or assessment.
                 AMENDMENT 2--Amendment to H.J. Res. 41
                  Offered by Ms. Jackson Lee of Texas
    Add at the end the following:
    SECTION. The requirements of this article do not apply to any bill, 
resolution, or other legislative measure necessary to preserve the 
solvency of the Federal Old Age and Survivors Insurance Trust Fund or 
the Federal Disability Trust Fund, or any successor funds.

    The Clerk. Amendment to H.J. Res. 41 offered by Ms. Jackson 
Lee, Amendment 1 and Amendment 2. Add at the end the following: 
Section: The requirements of this article do not apply to any 
bill, resolution, or other legislative measure that imposes an 
environmental tax, fee, charge or assessment.
    Chairman Sensenbrenner. Without objection, the amendments 
are considered as read and the gentlewoman from Texas is----
    Mr. Lee. Mr. Chairman?
    Chairman Sensenbrenner. Yes?
    Mr. Lee. Are we doing them one at a time or en bloc?
    Chairman Sensenbrenner. En bloc.
    Mr. Lee. So she should read the second one, too.
    Chairman Sensenbrenner. Okay. The Clerk will continue 
reading. The objection is heard.
    The Clerk. Amendment 2. At the end--at the end, the 
following: Section: The requirements of this article do not 
apply to any bill, resolution, or other legislative measure 
necessary to preserve the solvency of the Federal Old Age and 
Survivors Insurance Trust Fund or the Federal disability trust 
fund or any successor funds.
    Ms. Jackson Lee. Thank you.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Jackson Lee. Thank you, Mr. Chairman.
    Let me raise a general perspective of opposition to the 
legislation and speak then to my amendments, and that is, of 
course, the diminishing impact that this has on the individual 
votes of members of the United States House of Representatives, 
in particular noted as the People's House.
    I would say to you, Mr. Chairman, factually that it is well 
known that our taxes in America are less than many of our 
European neighbors, as well as our debt and deficit, which we 
appreciate, and so I would offer to say that a constitutional 
amendment, which we have certainly voted on in many instances 
before and it has not passed, really should answer dire 
circumstances, and the question is, do we have dire 
circumstances to warrant diminishing my vote or any other vote 
of any other member of the United States House?
    The first amendment speaks to our priorities and our 
values. I would offer to say that this amendment eliminates the 
provision on the impact of an environmental tax, fee, charge, 
or assessment that would cause us to be able, if you will, to 
support a super fund and compensation for health damages and 
dealing with the public safety and environmental programs which 
are so very vital to this country, particularly, for example, 
as we move through this tragic repeal of the arsenic quality in 
water. There may be instances once this works its will through 
Congress that we would want to compensate some of our citizens 
for the intake of arsenic; But in particular, a recent example, 
of course, was the hazardous oil spill of the Exxon Valdez 
where it was necessary to use Federal funds to clean it up.
    I would simply say to my colleagues that we're doing great 
damage and great danger by preventing--putting these particular 
funds in jeopardy.
    Amendment Number 2 goes to the issue of dealing with the 
preservation of the solvency of the Federal Old Age and 
Survivors Insurance Fund of the disability--or the disability 
trust fund or any successor funds.
    I think, again, I go to the point of whether or not these 
are dire circumstances that require a constitutional amendment 
that, in fact, extinguishes the rights of my constituents to 
protect Social Security. I would hope that we would, in fact, 
support this amendment to shore up Social Security and Medicare 
and not allow a two-thirds provision, if passed, to interfere 
with the responsibilities that we have for Medicare and Social 
Security and its solvency. This constitutional amendment would 
do great damage, and I would ask my colleague to support both 
amendments.
    Chairman Sensenbrenner. Does the gentlewoman yield back?
    Ms. Jackson Lee. I yield back.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Ohio seek recognition?
    Mr. Chabot. Mr. Chairman, I rise to oppose the amendments, 
both.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I will be relatively 
brief.
    Our position would be that there is no reason to make the 
exceptions which are called for in these two amendments. We 
agree that we clearly should protect the environment, we agree 
that we should protect Social Security and Medicare, but the 
purpose of this constitutional amendment is simply to make it 
more difficult to raise taxes. There is no reason to believe 
that these amendments would add anything to the amendment, and 
for that reason, we oppose it.
    Chairman Sensenbrenner. Would the gentleman yield?
    Mr. Chabot. I'll be happy to yield to the Chairman.
    Chairman Sensenbrenner. I would just point out that both 
the Social Security amendments of 1983 and the Super Fund law 
were passed by over two-thirds margins in the House of 
Representatives and the Senate. So even if this amendment were 
in place, the revenue that the gentlewoman from Texas is 
talking about would have been there and the tax increase would 
have been collected on the American people.
    I thank the gentleman for yielding.
    Mr. Chabot. Thank you. And I yield back the balance of my 
time.
    Chairman Sensenbrenner. The question----
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Strike the last word on the amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, I would, in response to the 
gentleman from Ohio, just point out that it would just be more 
difficult to improve Social Security. But let me just say that, 
Mr. Chairman, this constitutional amendment will not affect 
spending; it only affects paying for the spending. You can 
increase spending and enact new programs with the simple 
majority. To pay for those programs under this amendment, under 
the bill, would--to pay for it would require two-thirds.
    Now, as the gentleman from North Carolina has suggested, 
this year, we have not had any hearings, there has been no 
subcommittee mark, and I think that's deliberate because the 
more we actually consider this, the worse the bill looks.
    For example, two-thirds required to increase revenue by 
more than a de minimis amount. If we had had a hearing, we 
might have had to listen to Jim Miller again, a high-ranking 
Reagan appointee, who said that de minimis was an unworkable 
standard; or listen to several witnesses pontificate about the 
exact meaning of ``increase the internal revenue''; or hear 
about Section 2 that suggests that if we're engaged in a 
military conflict and pass a joint resolution which becomes 
law, does that mean it becomes law without the President's 
signature, the President can't veto the bill?; or hear what 
happens when there's a dispute. The Speaker of the House says 
the bill passes; somebody says no, you needed two-thirds; you 
didn't get two-thirds. Who is going to resolve that dispute?
    Maybe if we had a hearing, Mr. Chairman, we would have to 
hear senior citizens explain that in a budget crunch, you can 
cut Social Security with a simple majority, but it takes a two-
thirds vote to close corporate loopholes.
    We might even hear about the half-trillion dollars every 
year we spend in tax expenditures and, in fact, if you are 
passing a bill with just transient support, you don't know 
whether it's going to be there next year, but you've got the 
majority this year, you might pass an appropriation in the form 
of a tax expenditure rather than a straight appropriations 
because it would take two-thirds vote the following year to 
reverse that tax expenditure.
    We might have to hear, as the gentleman from New York, Mr. 
Nadler, pointed out, that if you make a mistake and you drain 
the--and a tax bill drains--tax cut drains the budget a lot 
more than you thought it would, it would take two-thirds vote 
to correct that mistake.
    If we had a hearing, we might consider, is this amendment--
is these amendments considered--we might consider the impact 
that it would have on the environment, might have to consider 
the impact it has on Social Security or our ability to provide 
a prescription drug benefit under Medicare.
    But since we haven't had a hearing, we just have to go 
through the charade and try the best we can with amendments 
without the hearings, without the subcommittee mark, and do the 
best we can.
    I think these amendments are very meritorious and I would 
hope that we would adopt these amendments.
    Mr. Nadler. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from New York seek recognition?
    Mr. Nadler. To strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you.
    I just want to expand on what the gentleman from Virginia 
was saying. This is an amendment to the United States 
Constitution we're considering. We haven't had a subcommittee 
hearing, we haven't had a committee hearing, we haven't had any 
hearings, maybe because we're afraid of what we'll hear at 
those hearings or maybe because we know this is a joke and 
nobody takes it seriously.
    Look at the absences on both sides of the aisle on this 
committee, look at the crowd out here, look at the legions of 
the press. Everybody knows this is a press release and not a 
serious consideration of a constitutional amendment.
    Chairman Sensenbrenner. Will the gentleman yield?
    Mr. Nadler. No, I won't, not on this point. Yes, I'll 
yield. Yes, I'll yield.
    Chairman Sensenbrenner. Okay. Let me say that it is only as 
a result of the Chair's insistence that the regular order be 
followed that we are here today, because the leadership said 
this bill is coming up the week after we get back----
    Mr. Nadler. Reclaiming my----
    Chairman Sensenbrenner.--and if we don't have a markup, it 
will be brought directly to the floor.
    Mr. Nadler. Reclaiming my time. This----
    Chairman Sensenbrenner. Please give the Chair a little 
credit where credit is due.
    Mr. Nadler. I will give the Chair the credit. I will just 
point out that what that simply emphasizes is how much of a 
joke the leadership of this House thinks this is. The present 
leadership of this House, the Speaker, whoever else made that 
threat to the Chairman of the committee, obviously doesn't 
consider this seriously as a constitutional amendment if 
they're willing to dispense with any committee consideration, 
so we have no subcommittee consideration, no hearings, a 
markup, but it's coming up. Why next week? It's got to be done 
before April 15th, that's when the press release is due because 
that's the day people have to file their income taxes.
    Now, this would be tragic if there were a snowball's chance 
in hell that this bill would survive on the floor of the House. 
We know that's not going to happen, we know it's not going to 
pass the House or the Senate by a two-thirds vote, thank God, 
but we have to go through this charade nonetheless because we 
must have the press release.
    Frankly, I will express again what I said in my opening 
statement. I hope that this committee can get down to business 
and deal with serious concerns that we haven't had hearings on 
such as the President's proposal for faith-based initiatives. I 
see that Mr. Watts and--J.C. Watts and others are introducing a 
bill; we ought to be taking a look at that. This is part of our 
responsibility. I won't characterize the bill or the whole 
initiative--I have my questions about it--but the fact is it 
certainly implicates serious questions about the First 
Amendment, the Bill of Rights, which are the province of this 
committee, and we're not doing anything about this but wasting 
our time on charades and press releases such as this bill.
    Now, I urge the adoption of Ms. Watts--of Ms. Jackson Lee's 
amendments and the amendments that I will introduce as 
mitigating the damage of the press release.
    Thank you, Mr. Chairman.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Massachusetts seek recognition?
    Mr. Frank. To strike the requisite number of words.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Frank. Thank you, Mr. Chairman.
    First I want to credit you for throwing yourself however 
temporarily in the way of this locomotive. I realize that it's 
got to pass over you or through you. But I appreciate your 
honesty in telling us that it was the desire of the Republican 
leadership to bring the bill to the floor whether or not there 
was committee consideration.
    I do remember that the previous chairman was less unhappy 
about that because his feeling always was that the less he had 
to do with this distortion of the American Constitution, the 
better he liked it.
    I have a particular concern with regard to the Social 
Security trust fund. This talks about the gentlewoman's 
amendment, exempting from this two-thirds requirement a bill 
necessary to preserve the solvency of the Federal Old Age and 
Survivors Insurance Trust Fund.
    Now, doing that is not controversial. How you correct it 
could be controversial, and let me give you one specific 
proposal that would be made very difficult, even more 
difficult, if this were to pass.
    One of the single most egregiously unfair thing in the 
Federal tax code is the fact that the payroll tax cuts off at 
about $75,000. As a single Member of Congress, my salary is 
about 145,000; I have no dependents. I pay less in dollars, not 
percent, I pay less in dollars in Social Security tax for the 
Social Security system, not Medicare, than a married couple, 
each of whom makes $40,000 a year and has a couple of 
dependents, because between them, they are taxed on the full 
$80,000 they earn, each being--earning $40,000.
    Now, I think that's egregiously unfair, and one of the 
proposals that many of us have had is to change that by 
increasing the level at which payroll taxes are no longer 
applied. We do know that payroll taxes are partly returned to 
you, but they partly are a system of helping other people, 
disability people--people with disabilities, et cetera.
    A proposal to take the cap off the Social Security payroll 
tax and make it more progressive with the funds from that 
devoted to the Survivors Insurance--Old Age and Survivors 
Insurance Trust Fund would be affected by this amendment. So 
anyone who has supported the idea of making the Social Security 
payroll tax less regressive, an idea the current Republican 
leadership ignores but I think has a lot of appeal, would find 
that two-thirds would be required to do that; that is, if you 
wanted to increase the level at which you impose the taxes and 
put that money into the Social Security trust fund--now, we're 
told we need to look into Social Security and make it more 
secure. One reasonable way to do it would be--even if we wanted 
to go to $100,000 or $125,000 or perhaps we might want to 
exempt the first $25,000 of income and then add; in other 
words, give a break to people at the low end----
    Mr. Issa. Mr. Chairman, point of order.
    Chairman Sensenbrenner. The gentleman will state his point 
of order.
    Mr. Issa. I truly hate to interrupt, but we've all called 
to end this debate as quickly as possible. Could I ask that the 
gentleman stick to germane subjects related to this, the bill 
before us?
    Mr. Frank. Mr. Chairman, if I may be heard on that----
    Chairman Sensenbrenner. The gentleman from Massachusetts 
will confine his remarks to the amendment before the committee.
    Mr. Frank. That's what I was doing, Mr. Chairman. The 
amendment before the committee----
    Chairman Sensenbrenner. You may proceed.
    Mr. Frank. Apparently the gentleman is so eager to get the 
debate over with that he decided not to pay any attention to 
it. That is his prerogative, but making false points of order--
and I assume, Mr. Chairman, that the time consumed by that 
point of order does not come out of my time since it was not 
under my control and I didn't yield, as I may not control a 
point of order.
    But in fact, let me read to the gentleman what he 
apparently did not read. ``The requirements of this article''--
this is part of the gentlewoman's amendment--``do not apply to 
any legislative measure necessary to preserve the solvency of 
the Federal Old Age and Survivors Insurance Trust Fund.''
    This would require you to a two--to take a two-thirds vote 
to protect the Social Security system as it now is pending. The 
gentlewoman says, no, we'll exempt measures for the Social 
Security system. I am speaking very directly to the amendment 
of the gentlewoman from Texas.
    If we decided to protect the Social Security system by 
making that tax revenue system less regressive and cover some 
of the taxes on revenues--on incomes above $75,000, your 
amendment would require two-thirds.
    I think a bill that would both make it less regressive, 
give relief to people making 30- and 40- and 50- and 60,000 a 
year, particular two-income couples in that category, and 
increase the total revenue by removing the cap or raising the 
cap, would be one of the best things we could do. I regret that 
we aren't doing it now, I regret that neither party has done it 
before.
    The amendment, without the amendment of the gentlewoman 
from Texas, would say that requires two-thirds, and I say it 
would be terribly wrong for us to require a two-thirds vote to 
say that we were going to increase the level at which Social 
Security taxes could be levied for the purposes of both making 
it less regressive and putting some of that money into the 
Social Security system.
    So while it pains the gentleman from California, it pains 
me more that we would make such a reasonable measure require a 
two-thirds vote.
    Chairman Sensenbrenner. The gentleman's time has expired.
    For what purpose does the gentleman from California seek 
recognition?
    Mr. Issa. Just a short answer----
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Issa. For the gentleman from Massachusetts, I truly 
appreciate your speaking to the issue of a tax or some other 
example, but speaking on the merits of that tax and going into 
what we should do and how we should do it and so on in my 
opinion clearly was beyond the scope of this.
    In an effort to move this along expeditiously but not 
adversely fast, I come from a state where I feel mandated to 
support a move towards a two-thirds majority to raise the taxes 
of the people of California. The Constitution of the State of 
California requires a two-thirds majority with rare exceptions 
to raise the taxes of the people of California.
    So unlike the gentleman from Massachusetts who sees a 
simple majority as appropriate, I believe that all of us in the 
spirit of the Constitution and the will of the people of 
California are obligated to attempt to give the people of 
California as to their Federal dollars the same protection they 
have as to their state dollars.
    Mr. Frank. Would the gentleman yield?
    Mr. Issa. Yes, I will.
    Mr. Frank. I would just like to say to the gentleman that 
his conception of the germaneness rule is extraordinarily 
shaky. The fact is that when a constitutional amendment would 
make it harder to do a particular thing, discussing the 
desirability of that particular thing and giving an example of 
what would be involved is, in fact, very much in order, and I 
am sorry that the gentleman didn't like what I said, but he's 
going to have to be more inventive in trying to shut me up in 
the future.
    Mr. Weiner. Will the gentleman from California yield?
    Mr. Issa. Just a moment.
    Mr. Weiner. Sure.
    Mr. Issa. I certainly, Mr. Frank, appreciate that. As you 
know, I'm a freshman learning the ropes and was only 
questioning whether it was germane. I will learn as time goes 
on, presumably from----
    Mr. Frank. If the gentleman would yield, if the gentleman 
would yield, in the interest of his learning the ropes, the way 
to ask a question about whether something is germane is to ask 
a parliamentary inquiry. Making a point of order is not asking 
a question; it is making a statement and, in this case, an 
incorrect one.
    Mr. Issa. Thank you.
    Mr. Weiner. Will the gentleman yield?
    I am curious, given that California is the experience that 
you base your view on, is there a two-thirds requirement to 
make expenditures?
    Mr. Issa. Yes, there is.
    Mr. Weiner. So it is a--would you support having a two-
thirds majority here in Congress for expenditures to be made, 
and if so--I mean, wouldn't that be consistent since it's two-
halves of the same equation? I yield back.
    Mr. Issa. Yes, I think that's a wonderful idea. Are you 
offering it as an amendment to this particular bill?
    Mr. Weiner. Why not four-fifths?
    Chairman Sensenbrenner. That would be non-germane.
    Mr. Issa. Thank you, Mr. Chairman. I yield back the 
remainder of my time.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Virginia seek recognition?
    Mr. Scott. Move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Scott. Mr. Chairman, the point that the gentleman from 
New York has made is exactly the problem with this 
constitutional amendment in its present form. You can increase 
spending with a simple majority, but it takes two-thirds to pay 
for it. In California, if you have two-thirds support for a--if 
you have support for--if you want to pass a budget, you need 
two-thirds of the vote. That would give--the same people who 
support it can pay for it. This bills says you can support it 
with a simple majority and you're just left with deficit 
spending, which is what we're trying to get away from.
    California--it's the same two-thirds both ways, and that is 
not what's in this bill. That's why this is so important.
    Chairman Sensenbrenner. For what purpose does the gentleman 
from North Carolina seek recognition?
    Mr. Watt. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. Mr. Chairman, I won't take 5 minutes.
    I confess to being in a real quandary here, because if we 
were seriously legislating, I would agree with your side that 
both of Ms. Jackson Lee's amendments really don't make any 
sense. They don't make any sense because the underlying bill 
doesn't make any sense, however.
    I wouldn't want to write these provisions into the 
Constitution of the United States any more than I would want to 
write the underlying bill into the Constitution of the United 
States. So I'm in this quandary about whether we are seriously 
legislating and looking at something that the Judiciary 
Committee is supposed to take seriously or whether we're just 
engaging in the politics of whatever this is that the 
leadership has told us to engage in. And I'm--I'm going to try 
to continue to be serious about what I think our role ought to 
be, and in that spirit, I'm going to vote against Ms. Jackson 
Lee's amendments.
    I do have two amendments that I think are serious that I 
hope will be considered in that same light, and I will yield 
back the balance of my time.
    Chairman Sensenbrenner. The question is on the amendments 
en bloc offered by the gentlewoman from Texas, Ms. Jackson Lee.
    Those in favor will signify by saying aye.
    Opposed, no.
    The no's appear to have it, the no's have it and the 
amendments are not agreed to.
    Are there further amendments?
    The gentleman from North Carolina, Mr. Watt, for what 
purpose do you seek recognition?
    Mr. Watt. Mr. Chairman, I have an amendment at the desk, 
Watt 02.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    [The amendment Watt 02 to H.J. Res. 41 offered by Mr. Watt 
follows:]
              AMENDMENT WATT 02--Amendment to H.J. Res. 41
                 Offered by Mr. Watt of North Carolina
    Page 2, line 17, after the word ``increase'' insert ``or 
decrease''.

    The Clerk. Amendment to H.J. Res. 41 41 offered by Mr. Watt 
of North Carolina. Page 2, line 17----
    Mr. Watt. I ask unanimous consent the amendment be 
considered as read.
    Chairman Sensenbrenner. Without objection, so ordered, and 
the gentleman is recognized for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman, and I'll be very brief. 
I don't think this requires any elaborate explanation.
    I think if this bill makes any sense and--it should work 
both ways. I don't think it makes any sense, so I'm going to 
vote against it even if you pass this amendment, but if it is 
to create some equity and to do something that is beneficial to 
our country, then I think it ought to work both ways.
    I yield back the balance of my time.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. Mr. Chairman, I move to oppose the amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I'll be very brief.
    Mr. Chairman, the whole purpose of this bill is to make it 
more difficult for Congress to raise taxes, and if Congress is 
able to decrease taxes on the American people, more power to 
us. Let's not make it any tougher.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from North Carolina, Mr. Watt.
    Those in favor will signify by saying aye.
    Opposed, no.
    The no's appear to have it, the no's have it and the 
amendment is not agreed to.
    For what purpose does the gentleman from New York, Mr. 
Nadler, seek recognition?
    Mr. Nadler. Mr. Chairman, I have two amendments. I would 
like to ask that Amendment Number 1--I have two amendments at 
the desk. Will you read Number 1----
    Chairman Sensenbrenner. The Clerk will report Nadler Number 
1.
    [The Amendment Number 1 to H.J. Res. 41 offered by Mr. 
Nadler follows:]
                 AMENDMENT 1--Amendment to H.J. Res. 41
                   Offered by Mr. Nadler of New York
    Add at the end the following:
    SECTION. The requirements of this article do not apply to any bill, 
resolution, or other legislative measure designed to improve 
enforcement of the internal revenue laws.

    The Clerk. Amendment to H.J. Res. 41 offered by Mr. Nadler. 
At the end, the following: Section. The requirements of this 
article do not apply to any bill, resolution or other 
legislative measure designed to improve enforcement of the 
internal revenue laws.
    Mr. Nadler. Thank you.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Nadler. Thank you, Mr. Chairman. I will be very brief 
on this. This is a very straightforward amendment that simply 
exempts from the super majority requirement any law that, 
although it would obviously increase revenues, would do so only 
by improving law enforcement.
    Surely we should not be required to obtain a two-thirds 
vote to improve the enforcement of the existing law. That would 
turn this constitutional amendment into a criminal's protection 
act, and I'm sure that Mr. Chabot does not want that and will 
support this amendment. We cannot mean that. I assume that if 
enforcing the existing law stops people from--if we find a 
better way to enforce the existing law, the existing tax rates, 
the existing tax code, that stops someone from cheating and 
stealing money from the American people, that shouldn't require 
a two-thirds vote. There should not be a presumption in favor 
of criminals.
    So anticipating Mr. Chabot's support, I--I urge the 
adoption of this amendment.
    Chairman Sensenbrenner. Does the gentleman yield back the 
balance of his time?
    Mr. Nadler. I do.
    Mr. Chabot. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Ohio, Mr. 
Chabot.
    Mr. Chabot. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman. I'm very--it's 
unfortunate that I'm going to have to let the gentleman from 
New York down, but I do not support his amendment. I know he's 
shocked, but the provisions of H.J. Res. 41 which allow for an 
increase in revenue by no more than a ``de minimis'' amount 
would cover the kind of situation that this amendment is 
intended to address, and in addition a bill intended to improve 
tax law enforcement would in all likelihood have a broad 
consensus, and for that reason, we oppose the amendment.
    Mr. Nadler. Would the gentleman yield for a question?
    Mr. Chabot. I'll be happy to yield.
    Mr. Nadler. If there were a very small thief, then this 
amendment would be unnecessary because a ``de minimis'' 
increase in revenue would not trigger the amendment. But if 
there were a large previously successful thief or thieves, then 
it might be just ``de minimis'' amendment--``de minimis'' 
revenues if we discovered how a bunch of people or a very large 
corporation is cheating. So we would need this amendment, would 
we not?
    Mr. Chabot. Reclaiming my time, we clearly believe that a 
``de minimis'' amount would cover this. If you want to discuss 
Mark Rich and other cases, we could get into that, but not 
wanting to do that, we continue to oppose the amendment and 
we'll yield back the balance of our time.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia, Mr. 
Scott.
    Mr. Scott. Mr. Chairman, this----
    Chairman Sensenbrenner. Five minutes.
    Mr. Scott.--invites a discussion again on what is ``de 
minimis''. If you had widespread Medicare fraud, a new 
enforcement technique might well reap billions of dollars in 
internal revenue.
    My question to the gentleman from Ohio would be what is 
``de minimis'' so we would know what kinds of enforcement 
mechanisms would qualify and which would not.
    Mr. Chabot. Will the gentleman yield?
    Mr. Scott. I'll yield.
    Mr. Chabot. I thank the gentleman for yielding. In a 
previous Congress, Chairman Archer of the Ways & Means 
Committee had suggested that it be 1 percent or, excuse me, 
one-tenth of 1 percent over a 5-year period. That was their 
definition of ``de minimis''. But we would ultimately have to 
see how the courts interpreted this down the road or future 
congresses under a follow-up.
    I yield back the balance.
    Mr. Weiner Mr. Chairman?
    Mr. Scott. Reclaiming my time----
    Chairman Sensenbrenner. The time belongs to the gentleman 
from Virginia.
    Mr. Scott. Mr. Chairman, my offhand calculation would mean 
that would be tens of billions of dollars in tax revenue would 
constitute ``de minimis''--billions--at least billions of 
dollars and over a 10-year period tens of billions of dollars 
would constitute a ``de minimis'' amount under that 
calculation. And I would yield to the gentleman to see if 
that's right.
    Mr. Chabot. Again, I thank the gentleman for yielding.
    It's impossible to put an exact figure on that at this 
time. ``de minimis'' is terminology that's used in other pieces 
of legislation; there's all kinds of verbiage that are 
contained in bills which have to be subsequently defined and 
this perhaps will ultimately be one of those.
    Mr. Scott. Reclaiming my time, then I guess the courts or 
the speaker will decide what is ``de minimis'' in the eyes of 
the beholder, I would suppose.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on----
    Mr. Weiner. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Weiner.
    Mr. Weiner. I would move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Weiner. I am ultimately puzzled by why we should have 
any amendments to something that clearly doesn't have support 
in this House and clearly isn't going to be passed and amend 
any Constitution, and also the desire to kind of keep us on 
some intellectual even keel here.
    Can I ask--I mean, this is an amendment that--the 
amendments that have been considered all, I think, point up 
some fundamental problems, but from the way I read the 
constitutional amendment that we're considering today, if we 
have a budget resolution that's offered on the floor that 
triples the number of IRS enforcement agents, it would trigger 
this bill and we would have a legislative and a constitutional 
fight over the future of the budget because it increases the 
number of agents.
    We would have--if we had an omnibus banking bill that had 
tougher enforcement of the money laundering laws----
    Mr. Chabot. Will the gentleman yield?
    Mr. Weiner. Certainly.
    Mr. Chabot. This particular--I thank the gentleman for 
yielding. This particular legislation only kicks in if we're 
talking about internal revenue issues, internal revenue laws. 
It wouldn't apply to additional personnel or any of the other 
items that the gentleman is raising.
    And I again thank the gentleman for yielding.
    Mr. Weiner. Well, reclaiming my time, you know, it is--you 
know, perhaps internal revenue laws is something that is a term 
of art that is defined elsewhere in the statute that maybe I--
or certainly not--it's certainly not defined clearly enough in 
the Constitution to obviate any change in the budget as 
impacting our internal revenue. I mean, the fact of the matter 
is, if you, you know, if you think that we have difficult 
time--I mean, and you've said it, and to give the gentleman 
from Ohio credit, he made it very clear that his objective is 
to make some things more difficult to do. So when it was asked, 
well, should we make expenditures more difficult, well, maybe 
we should in some cases. When answering Mr. Nadler, said, well, 
there will be broad consensus on that, so that will be able to 
pass, we don't want to make that kind of thing more difficult.
    The fact of the matter is, the way I look at it, if we ever 
do an omnibus appropriation, if we ever do an omnibus banking 
bill, if we ever do an omnibus budget bill, we are then going 
to have a constitutional question about the--about ``de 
minimis'', and with that, I'd like to ask a question.
    Is there any other place in the Constitution that the words 
``de minimis'' appear?
    Mr. Chabot. If the gentleman would yield, we appreciate 
that. I believe there are and we can point that out in a moment 
here.
    Mr. Weiner. Do you have any case law that perhaps would 
give us some guidance, just so I know if ``de minimis'' is 2 
percent or 8 percent or 9 percent?
    Mr. Chabot. We would be happy to provide that information 
to the gentleman; we just don't have the time at this point.
    Mr. Frank. Would the gentleman yield?
    Mr. Weiner. Certainly.
    Mr. Frank. I would only point out, though, that if we did 
do this amendment and we included the word ``de minimis'' and 
we were subsequently to adopt an amendment requiring that 
English be the official language, I assume that would 
automatically previously amend the insertion of those Latin 
words ``de minimis.''
    Mr. Weiner. I yield back my time.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from New York, Mr. Nadler.
    Those in favor will say aye.
    Opposed, no.
    The no's appear to have it----
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. The no's appear to have it, the 
no's have it and the amendment is not agreed to.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. For what purpose does the gentleman 
from Massachusetts, Mr. Frank----
    Mr. Frank. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The clerk will report the 
amendment.
    Mr. Frank. Mr. Chairman, I ask unanimous consent it be 
considered as read. I'll explain it briefly.
    Chairman Sensenbrenner. Without objection. The gentleman is 
recognized for 5 minutes.
    [The Amendment to H.J. Res. 41 offered by Mr. Frank 
follows:]
                       Amendment to H.J. Res. 41
                 Offered by Mr. Frank of Massachusetts
    Add at the end the following:
    SECTION. The requirements of this article do not apply to any bill, 
resolution, or other legislative measure necessary to preserve the 
solvency of the Federal Old Age and Survivors Insurance Trust Fund.

    Mr. Frank. This is a truncated version of the en bloc 
amendment offered by the gentlewoman from Texas. It does not 
include the environmental fee part. It says only that 
legislation aimed at protecting the solvency of the Federal Old 
Age and Survivors Insurance Trust Fund would not be subject to 
the rules.
    I think we've debated it sufficiently. I'm ready to go it a 
rollcall, Mr. Chairman.
    Chairman Sensenbrenner. Okay. The question is on the 
amendment offered by the gentleman from Massachusetts, Mr. 
Frank. rollcall will be ordered.
    All those in favor of the Frank amendment will signify by 
saying aye.
    Opposed, no.
    The Clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    Mr. Coble. No.
    The Clerk. Mr. Coble, no. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Barr?
    [No response.]
    The Clerk. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Hutchinson?
    Mr. Hutchinson. No.
    The Clerk. Mr. Hutchinson, no. Mr. Cannon?
    Mr. Cannon. No.
    The Clerk. Mr. Cannon, no. Mr. Graham?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    Mr. Scarborough. No.
    The Clerk. Mr. Scarborough, no. Mr. Hostettler?
    Mr. Hostettler. No.
    The Clerk. Mr. Hostettler, no. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    [No response.]
    The Clerk. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Frank?
    Mr. Frank. Aye.
    The Clerk. Mr. Frank, aye. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    [No response.]
    Chairman Sensenbrenner. No.
    The Clerk. No.
    Chairman Sensenbrenner. Are there additional members in the 
room who desire to record or change their vote?
    The gentleman from South Carolina.
    Mr. Graham. No.
    Chairman Sensenbrenner. The gentleman from Tennessee.
    Mr. Jenkins. No.
    Chairman Sensenbrenner. Anybody else?
    If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 8 ayes and 16 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    The gentleman from North Carolina, Mr. Watt.
    Mr. Watt. Mr. Chairman, I have an amendment at the desk.
    Chairman Sensenbrenner. The Clerk will report the 
amendment.
    [The Amendment Watt 01 to H.J. Res. 41 offered by Mr. Watt 
follows:]
              AMENDMENT WATT 01--Amendment to H.J. Res. 41
                 Offered by Mr. Watt of North Carolina
    Page 3, after line 15, insert the following:
    ``SECTION 3. This article shall not be construed as to give the 
Judicial Branch any authority except to declare whether the Legislative 
Branch is in compliance herewith.''

    The Clerk. Amendment to H.J. Res. 41----
    Mr. Watt. I ask unanimous consent the amendment be 
considered as read.
    Chairman Sensenbrenner. Without objection, so ordered, and 
the gentleman is recognized for 5 minutes.
    Mr. Watt. Thank you, Mr. Chairman.
    I really think this proposed constitutional amendment puts 
us in a real separation of powers quandary which I'm trying to 
address and I'm trying to address it in the spirit of trying to 
do what I think is our responsibility in this committee.
    This whole discussion about what is ``de minimis'' and what 
is not ``de minimis'' will get you to a point that it will 
actually be the United States Supreme Court who will decide 
what is ``de minimis'' and what is not ``de minimis''.
    If we are going to do this with any degree of integrity, I 
think we've got to retain that responsibility here in our body, 
in the--in the legislative body and not give that authority 
over to the judicial branch.
    So the impact of this amendment would be to say to the 
Supreme Court, yes, you can--if we pass something and it 
doesn't comply with this constitutional provision, yes, you can 
declare it, what we have done, unconstitutional, but you can't 
rewrite the bill to impose your own values on that because 
that's a legislative judgment. And the effect of this amendment 
would be to limit the judicial branch's authority to a 
declaration--in effect a declaratory judgment of whether what 
we had done complies with the statute or doesn't comply with 
the statute, or complies with this constitutional amendment or 
doesn't comply with the constitutional amendment, then the 
legislative branch could come back and redo it until we get it 
right, but the last thing I think we want to do is to give the 
courts the right to make these decisions for us.
    So I'm offering this. I mean, I--again, I'm having the same 
problem I've had throughout this process. Are we serious about 
this or--and doing what we have as a responsibility as a 
judiciary committee and to other Members of the Congress who 
are not going to look at this this closely, or are we engaged 
in a political charade here? And I hope that you all will 
understand that this is basic to our constitutional 
prerogatives as a legislative body, and I hope that you will 
support the amendment.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The gentleman's time has expired.
    The gentleman from Ohio, Mr. Chabot.
    Mr. Chabot. Thank you, Mr. Chairman.
    I move to oppose the amendment.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Chabot. Thank you, Mr. Chairman.
    Congress--and I'll be brief--Congress would have the 
authority to enforce and implement H.J. Res. 41 by appropriate 
legislation, and it's unlikely that persons would have standing 
in Federal court to challenge decisions made by Congress 
pursuant to H.J. Res. 41. So the amendment is unnecessary, and 
in addition, it's also inappropriate to restrict the power of 
the judicial branch in this manner. We should not put in the 
Constitution the manner in which courts must interpret a 
constitutional amendment, and therefore we oppose the 
gentleman's----
    Mr. Watt. Would the gentleman yield?
    Mr. Chabot. I would be happy to yield.
    Mr. Watt. The last time I checked, every American citizen 
had the right to raise a constitutional objection, and 
certainly somebody who refused to pay their taxes has the right 
to raise it.
    I just--I don't understand what it is you're saying. What 
you're saying is former Chairman Archer can make this decision, 
Justice Rehnquist can make it, we don't care in this body 
what--what definition of ``de minimis'' is and what----
    Mr. Chabot. Reclaiming my time----
    Mr. Watt.--I mean, because we're not even going to try to 
do our legislative responsibility.
    Mr. Chabot. Reclaiming my time, the courts oftentimes 
determine whether or not a person has standing; and in the vast 
majority of cases, the courts determine they don't have 
standing.
    I yield back the balance of my time.
    Chairman Sensenbrenner. The question is on the Watt 
amendment. Those in favor----
    Mr. Weiner. Mr. Chairman? May I be heard on the Watt 
amendment brief--I won't take the full 5 minutes.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Weiner. First of all, I--with all due deference to the 
chairman of the subcommittee, the issue of standing in a 
constitutional matter, if you are a United States citizen, it's 
under the laws of the Constitution, you have standing. 
Furthermore, this is an act of Congress that affects all 
Americans, so you have standing if you are affected by the act 
of Congress. So the impact will be every single time we have a 
bill that has any impact or maybe no impact, it will--once we 
pass it, any American can go into court and say, wait a minute, 
this violated my constitutional right, that I have a 
constitutional right as an American citizen to make sure that 
my Congress acts according to the Constitution, so I am 
questioning the ``de minimis'', whether it's ``de minimis'' or 
not.
    And I can tell you this is not an--well, this whole 
argument is a little bit abstract, but it's not an abstract 
discussion. There are groups in this town who believe that 
taxes should be much lower, so they are going to come in with 
every--every time we have a bill and go to court. Now, it might 
not reach the Supreme Court every time, and it might, you know, 
it might be handled quickly. ``de minimis'' is only 2 percent; 
do we have a precedent; now this is--2 percent is ``de 
minimis''; 9 percent is not ``de minimis''. But the idea of 
standing is an absurd one.
    I think what the amendment seeks to do is to say that when 
we legislate here, you know, on some level, there are broad 
constitutional prescriptions on things that we can do and very 
often our laws wind up before--before bodies that have to 
interpret its constitutionality.
    I think what the author of the amendment is seeking to do 
is making sure that every single legislative action does not 
automatically result in a constitutional question. That is what 
the effect of this constitutional amendment will be if--if pigs 
fly and it passes. But I think that the idea that you--that the 
courts will have to determine who has standing on a 
constitutional question misunderstands the effect--the net 
effect of this amendment.
    Chairman Sensenbrenner. The question is on the amendment 
offered by the gentleman from North Carolina, Mr. Watt.
    Those in favor will signify by saying aye.
    Opposed, no.
    The no's appear to have it----
    Mr. Watt. I ask for a recorded vote.
    Chairman Sensenbrenner. A rollcall is ordered. Those in 
favor of the Watt amendment will, after your names are called, 
answer aye; those opposed, no; and the Clerk will call the 
roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. No.
    The Clerk. Mr. Gekas, no. Mr. Coble?
    [No response.]
    The Clerk. Mr. Smith?
    Mr. Smith. No.
    The Clerk. Mr. Smith, no. Mr. Gallegly?
    Mr. Gallegly. No.
    The Clerk. Mr. Gallegly, no. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. No.
    The Clerk. Mr. Chabot, no. Mr. Barr?
    [No response.]
    The Clerk. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Hutchinson?
    Mr. Hutchinson. No.
    The Clerk. Mr. Hutchinson, no. Mr. Cannon?
    [No response.]
    The Clerk. Mr. Graham?
    [No response.]
    The Clerk. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    Mr. Scarborough. No.
    The Clerk. Mr. Scarborough, no. Mr. Hostettler?
    [No response.]
    The Clerk. Mr. Green?
    Mr. Green. No.
    The Clerk. Mr. Green, no. Mr. Keller?
    Mr. Keller. No.
    The Clerk. Mr. Keller, No. Mr. Issa?
    Mr. Issa. No.
    The Clerk. Mr. Issa, no. Ms. Hart?
    Ms. Hart. No.
    The Clerk. Ms. Hart, no. Mr. Flake?
    Mr. Flake. No.
    The Clerk. Mr. Flake, no. Mr. Conyers?
    Mr. Conyers. Aye.
    The Clerk. Mr. Conyers, aye. Mr. Frank?
    [No response.]
    The Clerk. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. Aye.
    The Clerk. Mr. Nadler, aye. Mr. Scott?
    Mr. Scott. Aye.
    The Clerk. Mr. Scott, aye. Mr. Watt?
    Mr. Watt. Aye.
    The Clerk. Mr. Watt, aye. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. Aye.
    The Clerk. Ms. Waters, aye. Mr. Meehan?
    Mr. Meehan. Aye.
    The Clerk. Mr. Meehan, aye. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. Aye.
    The Clerk. Ms. Baldwin, aye. Mr. Weiner?
    Mr. Weiner. Aye.
    The Clerk. Mr. Weiner, aye. Mr. Schiff?
    [No response.]
    The Clerk. Mr. Chairman?
    Chairman Sensenbrenner. No.
    The Clerk. Mr. Chairman----
    Chairman Sensenbrenner. Are there additional members in the 
chamber who wish to cast or change their vote?
    The gentleman from North Carolina.
    Mr. Coble. No.
    The Clerk. Mr. Coble, no.
    Chairman Sensenbrenner. The gentleman from Tennessee.
    Mr. Jenkins. No.
    Chairman Sensenbrenner. The gentleman from South Carolina.
    Mr. Graham. No.
    Chairman Sensenbrenner. The gentleman from Utah.
    Mr. Cannon. No.
    Mr. Frank. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Massachusetts.
    Mr. Frank. Aye.
    Chairman Sensenbrenner. Is there anybody else who desires 
to cast or change their vote?
    If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 9 ayes and 16 nays.
    Chairman Sensenbrenner. And the amendment is not agreed to.
    Are there further amendments?
    The gentleman from New York, Mr. Nadler.
    Mr. Nadler. Thank you. Mr. Chairman, I earlier said I had 
two amendments. I would ask the Clerk to report the second 
Nadler amendment.
    [The Amendment Number 2 to H.J. Res. 41 offered by Mr. 
Nadler follows:]
                 AMENDMENT 2--Amendment to H.J. Res. 41
                   Offered by Mr. Nadler of New York
    Add at the end the following:
    SECTION. The requirements of this article do not apply to any bill, 
resolution, or other legislative measure repealing any industry-
specific exemptions, deductions, or credits.

    Chairman Sensenbrenner. The Clerk will report.
    The Clerk. Amendment to H.J. Res. 41 offered by Mr. Nadler.
    Chairman Sensenbrenner. Without objection, the amendment is 
considered as read and the gentleman from New York is 
recognized for 5 minutes.
    Mr. Nadler. Thank you.
    Mr. Chairman, this bill is designed or will have the effect 
of benefiting the wealthy and powerful at the expense of the 
average American family and the poor.
    This constitutional amendment makes it difficult to close 
unfair tax loopholes that benefit the powerful corporations and 
wealthiest Americans, requiring a two-thirds super majority to 
do so. For example, the amendment makes it difficult to curb 
the corporate welfare that our former colleague, Mr. Kasich, 
was always talking about, and to cut unproductive tax 
expenditures that grant subsidies to powerful special 
interests. Yet, according to a recent editorial in the 
Washington Post, quote, ``When the baby boomers begin to 
retire, the country will be in an era of fiscal strain.'' To 
avoid destructive deficits, there will have to be tax increases 
and/or spending cuts. By making it harder to increase taxes, 
this amendment would compound the pressure on the major social 
spending programs--Social Security and Medicare.
    I think Congress has been rightly criticized for busting 
the Federal budget with billions of dollars in special interest 
corporate welfare. We should not be making it harder to cleanse 
the Tax Code of these outrages.
    Think of the tax break we could give our constituents if 
the special favors--or the--or the money we could have for 
prescription drugs for Medicare or for Social Security and 
Medicare in the future if the special favors for the oil 
industry or corporate agriculture or companies that move 
American jobs overseas were removed from the Tax Code. Perhaps 
these reforms will have to wait until we pass genuine and 
effective campaign finance reform--perhaps I should say if we 
pass genuine and effective campaign finance reform. The powers 
that be seem intent on--in this house, at least--seem intent on 
preserving the money machine, so perhaps my concerns on this 
front are moot.
    Today, for example, we are doing another big favor for the 
wealthiest Americans on the floor. So be it. The rule around 
here seems to be dance with the one that brung you, so let the 
dance continue. I am, however, concerned that when the time 
comes to clean up this mess, a constitutional amendment of this 
sort will make it impossible to repair the damage.
    For those smug enough to believe the need will never arise, 
I would point to just two instances in our recent experience. 
First was President Bush's now infamous ``No new taxes'' pledge 
in the heat of a campaign. It was a foolish promise. No serious 
person believed it, especially in light of Ronald Reagan's 
eight budget-busting years. His decision to break that 
promise----
    Mr. Conyers. Would the gentleman yield? Would the gentleman 
yield? Could he submit his statement, have a vote, and then a 
final vote before----
    Mr. Nadler. Maybe we should--okay.
    Mr. Conyers. Thank you.
    Chairman Sensenbrenner. Without objection, the gentleman's 
statement will appear in the record.
    [The statement of Mr. Nadler follows:]
Prepared Statement of Hon. Jerrold Nadler, a Representative in Congress 
                       from the State of New York
    H.J.Res 41 is designed to benefit the wealthy and powerful at the 
expense of the average American family and the poor. This 
constitutional amendment makes it difficult to close unfair tax 
loopholes that benefit the powerful corporations and wealthiest 
Americans, requiring a two-thirds supermajority to do so. For example, 
the amendment makes it difficult to curb ``corporate welfare'' and cut 
unproductive tax expenditures that grant subsidies to powerful special 
interests. Yet, according to a recent editorial in the Washington Post, 
``when the baby boomers begin to retire . . . the country will be in an 
era of fiscal strain. To avoid destructive deficits, there will have to 
be tax increases and/or spending cuts. By making it harder to increase 
taxes, this amendment would compound the pressure on the major spending 
programs: Social Security, Medicare.'' I think Congress has been 
rightly criticized for busting the federal budget with billions of 
dollars in special interest corporate welfare. We should not be making 
it harder to cleanse the Tax Code of these outrages.
    Think of the tax break we could give our constituents if the 
special favors for the oil industry or corporate agriculture or 
companies that move American jobs overseas were removed from the Tax 
Code. Perhaps these reforms will have to wait until we pass genuine and 
effective campaign finance reform. Perhaps I should say if we pass 
genuine and effective campaign finance reform. The powers that be seem 
intent on preserving the money machine, so perhaps my concerns on this 
front are moot.
    Today, for example, we are doing another big favor for the 
wealthiest Americans. So be it. The rule around this place is ``dance 
with the one that brung ya,'' so let the dance continue. I am, however, 
concerned that when the time comes to clean up this mess, a 
constitutional amendment of this sort will make it impossible to repair 
the damage.
    For those smug enough to believe that the need will never arise, I 
would point to just two instances in our recent experience.
    First, was President Bush's now infamous ``no new taxes'' pledge in 
the heat of a campaign. It was a foolish promise, no serious person 
believed it, especially in light of Ronald Reagan's eight budget-
busting years. His decision to break that promise, although politically 
costly, was correct. It helped restore fiscal stability. Our ability to 
achieve the substantial surpluses we are now enjoying would have been 
made far more difficult if we had not acted so responsibly when we did. 
This amendment would have made President Bush's courageous change in 
course virtually impossible.
    Second is the experience of the Great State of Texas under the 
stewardship of Governor Bush. His excessive tax cuts have resulted in 
huge deficits in Texas. He now means to do for the nation what he has 
done for the Lone Star State. He may be able to pass this boondoggle by 
a slim majority. What a disaster it would be for the nation if, after a 
second bout of Republican fiscal irresponsibility, Congress would have 
its hand tied, and be unable to repair the damage after George W. 
leaves town a second time before the consequences strike.
    I am not proposing in my amendment that we reject this ill-
considered rule altogether. At this time, all I am asking is that our 
ability to go back through the Code and remove only the most egregious, 
industry, or company, specific loopholes not be eliminated. Cleaning up 
corruption should not be held hostage to a supermajority rule. I do not 
think it is too much to ask that we be allowed to have the ability to 
do so when cooler heads prevail.

    Chairman Sensenbrenner. The question is on the Nadler 
amendment.
    Those in favor will say aye.
    Opposed, no.
    The no's appear to have it, the no's have it.
    The question----
    Mr. Nadler. Can we have a rollcall on this, Mr. Chairman?
    Chairman Sensenbrenner. If the gentleman demands a 
rollcall, we will recess the committee until one o'clock----
    Mr. Nadler. No, never mind, then.
    Chairman Sensenbrenner. The no's have it.
    The question is now on the motion to report the joint 
resolution H.J. Res. 41 favorably. The Chair will order a 
rollcall. Those in favor will signify by saying aye, those 
opposed no, and the Clerk will call the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Gekas?
    Mr. Gekas. Aye.
    The Clerk. Mr. Gekas, aye. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    Mr. Smith. Aye.
    The Clerk. Mr. Smith, aye. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    [No response.]
    The Clerk. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Barr?
    Mr. Barr. Aye.
    The Clerk. Mr. Barr, aye. Mr. Jenkins?
    [No response.]
    The Clerk. Mr. Hutchinson?
    Mr. Hutchinson. Aye.
    The Clerk. Mr. Hutchinson, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Graham?
    Mr. Graham. Aye.
    The Clerk. Mr. Graham, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Scarborough?
    Mr. Scarborough. Aye.
    The Clerk. Mr. Scarborough, aye. Mr. Hostettler?
    [No response.]
    The Clerk. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    Mr. Issa. Aye.
    The Clerk. Mr. Issa, aye. Ms. Hart?
    [No response.]
    The Clerk. Mr. Flake?
    Ms. Hart?
    Ms. Hart. Aye.
    The Clerk. Ms. Hart, aye. Mr. Flake.
    Mr. Flake. Aye.
    The Clerk. Mr. Flake, aye. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Frank?
    Mr. Frank. No.
    The Clerk. Mr. Frank, no. Mr. Berman?
    [No response.]
    The Clerk. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren?
    [No response.]
    The Clerk. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    [No response.]
    The Clerk. Mr. Meehan?
    Mr. Meehan. No.
    The Clerk. Mr. Meehan, no. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Ms. Baldwin?
    Ms. Baldwin. No.
    The Clerk. Ms. Baldwin, no. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Are there additional members in the 
chamber who wish to change or record their vote?
    The gentleman from Tennessee.
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye.
    Chairman Sensenbrenner. Anybody else?
    If not, the Clerk will report.
    The Clerk. Mr. Chairman, there are 17 ayes and 9 nays.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to. Without objection, the title of the joint 
resolution is amended with the amendment before all members. 
Without objection, the Chairman is authorized to move to go to 
conference pursuant to House rules. Also without objection, the 
staff is directed to make any technical and conforming changes 
and all members will be given 2 days as provided by House 
rules, which means in this case April 20th, in which to submit 
additional dissenting supplemental or minority views.
    This completes the business before the committee and the 
committee stands adjourned.
    [Whereupon, at 11:52 a.m., the committee was adjourned.]
                            Dissenting Views

    The problems with H.J. Res. 41, like past versions of the 
constitutional amendment,\1\ are myriad and obvious: most 
fundamentally, it undercuts the very principle our nation was 
founded upon--majority rule. By requiring a supermajority to 
pass certain legislation, the amendment would diminish the vote 
of every Member of the House and Senate, nullifying the seminal 
democratic concept of ``one person, one vote.''
---------------------------------------------------------------------------
    \1\ Every year during tax season beginning in 1996, the Majority 
proposes a constitutional amendment to require a two-thirds vote in the 
House and Senate for any legislation that increases revenues. In 2000, 
H.J. Res. 94 was taken straight to the floor and failed by a vote of 
234-192. In 1999, H.J. Res. 37 was taken straight to the floor and 
failed by a vote of 229-199. In 1998, H.J. Res. 111 was taken straight 
to the floor and failed by a vote of 238-186. In 1997, H.J. Res. 62 
passed the Committee by a vote of 18-10 but failed in the full House by 
a vote of 233-190. In 1996, H.J. Res. 159 was taken straight to the 
floor and failed by a vote of 243-177.
---------------------------------------------------------------------------
    Moreover, the amendment would make it nearly impossible to 
eliminate corporate tax welfare or even to increase tax 
enforcement against foreign corporations. Furthermore, the 
amendment could make it difficult to maintain a balanced budget 
or to develop a responsible plan to restore Medicare or Social 
Security to long-term financial solvency. Such an amendment 
would endanger the reauthorization of excise taxes and related 
fees that support important programs such as Superfund, highway 
construction, and air safety. Also, the amendment is vague in 
that there is no definition of ``internal revenue laws'' or 
``de minimis amount.'' It is for these reasons that groups 
concerned about good government and budget policy, such as 
Common Cause,\2\ The Concord Coalition,\3\ Center on Budget and 
Policy Priorities,\4\ Citizens for Tax Justice,\5\ the AFL-
CIO,\6\ and AFSCME,\7\ oppose the type of tax limitation 
constitutional amendment that the Majority is pursuing. For 
these and the reasons set forth below, we dissent from H.J. 
Res. 41.
---------------------------------------------------------------------------
    \2\ Letter from Scott Harshberger, President, Common Cause, to 
Representatives, U.S. Congress (Apr. 4, 2001) [hereinafter Common Cause 
Letter].
    \3\ Letter from Robert L. Bixby, Executive Director, The Concord 
Coalition, to Representatives, U.S. Congress (Apr. 2, 2001) 
[hereinafter Concord Coalition Letter].
    \4\ Robert Greenstein, Center on Budget and Policy Priorities, The 
Constitutional Amendment to Require a Two-Thirds Supermajority to Raise 
Taxes (Apr. 10, 2001) [hereinafter Greenstein Report].
    \5\ Letter from Robert S. McIntyre, Director, Citizens for Tax 
Justice, to Representatives, U.S. Congress (Apr. 11, 2000) [hereinafter 
CTJ Letter].
    \6\ Letter from Peggy Taylor, Dep't of Legislation, AFL-CIO, to 
Representatives, U.S. Congress (Apr. 11, 2000) [hereinafter AFL-CIO 
Letter].
    \7\ Letter from Charles M. Loveless, Director of Legislation, 
AFSCME, to Representatives, U.S. Congress (Apr. 10, 2000) [hereinafter 
AFSCME Letter].
---------------------------------------------------------------------------

 I. The Amendment Disregards the Constitutional Principle of Majority 
                                  Rule

    The framers of the Constitution wisely rejected the 
principle of requiring a supermajority for basic government 
functions.\8\ James Madison vehemently argued against 
supermajorities, stating that, under such a requirement, ``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.'' \9\
---------------------------------------------------------------------------
    \8\ It is significant to note that, because of population patterns, 
Senators representing some 7.3% of the population could prevent a bill 
from obtaining a two-thirds majority. See U.S. Census Bureau, U.S. 
Dep't of Commerce, 1996 Population Estimates (Dec. 30, 1996) (Press 
Release CB-96-244).
    \9\ The Federalist Paper No. 58, at 393 (James Madison) (The 
Belknap Press of Harvard University, 1961); see also Common Cause 
Letter at 1. At a Constitution Subcommittee hearing during the 104th 
Congress, Rep. Henry J. Hyde (R-IL), Chair of the House Committee on 
the Judiciary, echoed this concern:

      I am troubled by the concept of divesting a Member of the 
      full import or his or her vote. You are diluting the vote 
      of Members by requiring a supermajority of them to do 
      something as basic to government as acquire the revenue to 
      run government. It is a diminution. It is a disparagement. 
      It is a reduction of the impact, the import, of one man, 
---------------------------------------------------------------------------
      one vote.

Proposing An Amendment to the Constitution of the United States to 
Require Two-Thirds Majorities for Bills Increasing Taxes: Hearing on 
H.J. Res. 159 Before the Subcomm. on the Constitution of the House 
Comm. on the Judiciary, 104th Cong., 2d Sess. 107 (1996).
    Adopting a supermajority tax requirement would repeat the 
very mistakes made in the 1780's under the Articles of 
Confederation, which required a vote of nine of the thirteen 
States to raise revenue. It is because this system worked so 
poorly that the founding fathers sought to fashion a national 
government that could operate through majority rule.\10\
---------------------------------------------------------------------------
    \10\ Proposing An Amendment to the Constitution with Respect to Tax 
Limitations on H. J. Res. 62 Before the Subcomm. on the Constitution of 
the House Comm. on the Judiciary, 105th Cong. 1st Sess. (1997) 
[hereinafter 1997 Judiciary Committee Hearing] (statement of Robert 
Greenstein, Executive Director, Center on Budget and Policy 
Priorities).
---------------------------------------------------------------------------
    Supporters of a tax limitation amendment have sought to 
justify the departure from majority rule by pointing to other 
provisions in the Constitution that require a two-thirds vote, 
such as approving a treaty or obtaining a conviction in a 
congressional impeachment trial.\11\ This argument, however, 
overlooks the fact that none of these supermajority 
requirements pertains to the day-to-day operations of the 
government--limiting such congressional authority is an 
invitation to gridlock.
---------------------------------------------------------------------------
    \11\ There are eleven matters for which a supermajority vote is 
required under the Constitution: Art. I, Sec. 2, cl. 2 (ratification of 
a treaty); Art. I, Sec. 3, cl. 6 (conviction in impeachment trials); 
Art. I, Sec. 5, cl. 2 (expulsion of a Member of Congress); Art. 1, 
Sec. 7, cl. 2 (override a Presidential veto); Art. II, Sec. 1, cl. 3 
(quorum of two-thirds of the States to elect the President); Art. II, 
Sec. 2, cl. 2 (consent to a treaty); Art. V (proposing constitutional 
amendments); Art VII (State ratification of the original Constitution); 
amendment XII (quorum of two-thirds of the States to elect the 
President and the Vice President); amendment XIV, Sec. 3 (to remove 
disability); and amendment XXV, Sec. 4 (removal of President for 
disability).
---------------------------------------------------------------------------
    Supporters of the measure also claim that, because fourteen 
States have adopted some form of a supermajority vote 
requirement for tax increases, the Federal Government also 
should have one. This argument bears little relation to the 
current debate. First, it is inappropriate to compare a State's 
revenue needs with the more comprehensive obligations of the 
Federal Government (such as economic policy and disaster 
assistance). In addition, many of the State requirements apply 
to particular types of taxes and do not apply to all or even 
the principal means of raising State tax revenue. For example, 
Florida's supermajority requirement applies only to corporate 
income taxes; exempt from the requirement is the sales tax on 
the purchase of goods--the primary source of the State's 
revenues.\12\
---------------------------------------------------------------------------
    \12\ See 26 Fla. Stat. Ann. V. Sec. 1(e) (West 1970). As Rep. Bobby 
Scott (D-VA) noted during the Committee's markup debate, California 
acts simultaneously on taxes and spending cuts through the annual 
budget process, which considerably diminishes the supermajority's 
impact on tax increases because both spending increases and tax 
increases are subject to the same supermajority requirement. It is also 
important to note that total tax receipts collected by the Federal, 
State, and local governments (as a percentage of gross domestic 
product) in the United States (30.8% in 2000)--is lower than almost all 
of the other major industrialized countries (Japan: 30.5%; Germany: 
45.6%; France: 49.8%; Italy: 45.9%; United Kingdom: 40.3%; Canada: 
42.5%). See Gregg A. Esenwein, Congressional Research Service, U.S. 
Library of Congress, The U.S. Fiscal Position Compared to Selected 
Industrial Nations, (CRS Report RL30560, May 19, 2000). Moreover, 
Federal tax revenue, as a percentage of gross domestic product, was 20% 
in 1999 and has remained near that level since 1960. See Gregg A. 
Esenwein, Congressional Research Service, U.S. Library of Congress, 
Recent Trends in the Federal Tax Burden (CRS Report RS20059, Mar. 27, 
2000).
---------------------------------------------------------------------------
    In addition, arguments by proponents that seven States that 
have had a supermajority tax requirement \13\ have enjoyed more 
rapid economic growth also are misleading.\14\ A study by the 
Center on Budget and Policy Priorities found that such analysis 
was ``simplistic'' and ``flawed.'' \15\ This study found that, 
by some measures, supermajority States had lower economic 
growth and more tax increases than other States.\16\ For 
example, between 1979 and 1989, four of the seven States had 
lower than average economic growth as measured by State gross 
domestic product; five of the seven States experienced lower 
than average growth when measured by changes in per capita 
income; and six of the seven States had higher than average 
increases in State and local revenues as a percentage of 
residents' income.\17\ Obviously, there are many factors that 
impact State growth other than supermajority tax requirements, 
including a State's educational system and the skill of its 
workforce.
---------------------------------------------------------------------------
    \13\ Arkansas, California, Delaware, Florida, Louisiana, 
Mississippi, and South Dakota.
    \14\ See 1997 Judiciary Committee Hearing (statement of Daniel J. 
Mitchell, The Heritage Foundation).
    \15\ Iris J. Lav & Nicholas Johnson, Center on Budget and Policy 
Priorities, Do States with Supermajorities Have Smaller Tax Increases 
or Faster Economic Growth than Other States? (Apr. 10, 1997).
    \16\ Id. at 1.
    \17\ Id. at 1-2.
---------------------------------------------------------------------------

    II. The Amendment Would Make it Difficult to Close Tax Loopholes

    In addition, H.J. Res. 41 will make it nearly impossible to 
eliminate tax loopholes, thereby locking in the current tax 
system at the time of ratification. As Dean Samuel Thompson, 
one of the nation's leading tax law authorities, observed at a 
1997 House Judiciary Subcommittee hearing on the proposal:

        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 the tax benefit with just a 34% vote of one 
        House of Congress.\18\
---------------------------------------------------------------------------
    \18\ 1997 Judiciary Committee Hearing (statement of Samuel 
Thompson, Dean, University of Miami School of Law).

    The potential revenue loss to the Treasury Department from 
such loopholes is staggering. A Congressional Budget Office 
study found that over half of the corporate subsidies the 
Federal Government provides are delivered through ``tax 
expenditures.'' \19\ Such expenditures were estimated to cost 
the Federal Government $455 billion in fiscal year 1996 alone--
triple the deficit at the time, and a full two-and-one-half 
times as much as all means-tested entitlement programs 
combined.\20\
---------------------------------------------------------------------------
    \19\ Congressional Budget Office, Congress of the United States, 
Federal Financial Support of Business (July 1995). ``Tax expenditures'' 
are provisions of the tax code that selectively reduce the tax 
liability of particular individuals or businesses. See also Office of 
Management and Budget, Analytical Perspectives: Budget of the U.S. 
Government for Fiscal Year 2002 61 (Apr. 9, 2001).
    \20\ Citizens for Tax Justice, The Hidden Entitlements (May 1996). 
According to Internal Revenue Service documents, drastic staff 
reductions have prevented it from pursuing individuals whose failure to 
pay taxes cost the Federal Government approximately $2.5 billion in 
2000. David Cay Johnston, A Smaller IRS Gives up on Billions in Back 
Taxes, N.Y. Times, Apr. 13, 2001, at A1; see also The Cost of Ignoring 
Tax Evasion, N.Y. Times, Apr. 16, 2001. Those documents show that, 
since 1992, IRS audits have fallen by two-thirds because the agency's 
staff has fallen from 115,000 to 97,000 in 8 years.
---------------------------------------------------------------------------
    In this regard, a 2001 study by the Institute on Taxation 
and Economic Policy shows that corporate tax breaks permitted 
at least forty-one companies to pay less than zero dollars in 
taxes in at least 1 year between 1996 and 1998--these companies 
actually got tax rebates totaling $3.2 billion from the Federal 
Government.\21\ Eleven of these companies actually had negative 
Federal tax rates every year from 1996 to 1998.\22\ Not 
surprisingly, the industry enjoying the lowest tax rates during 
this 3-year period was the oil industry.\23\
---------------------------------------------------------------------------
    \21\ Institute on Taxation and Economic Policy, Corporate Income 
Taxes in the 1990's 2 (2001) [hereinafter ITEP Report]. For example, 
Lyondell Chemical had 1998 profits of $80 million, but its tax was 
negative $44 million (tax rate of negative 55%); Texaco had 1998 
profits of $182 million, but its tax was negative $67.7 million (tax 
rate of negative 37.2%); and Chevron had 1998 profits of $708 million, 
but its tax was negative $186.8 million (tax rate of negative 26.4%).
    \22\ Id. For example, Goodyear's average tax rate for the years 
1996 to 1998 was negative 9.9%, Texaco's was negative 8.8%, and Ryder's 
was negative 6.2%.
    \23\ Id. at 4.
---------------------------------------------------------------------------
    Furthermore, these loopholes affect State governments as 
well as the Federal Government. The same study by the Institute 
on Taxation and Economic Policy states that:

        The loopholes that reduce Federal corporate income 
        taxes cut State corporate income taxes, too, since 
        State corporate tax systems generally take Federal 
        taxable income as their starting point in computing 
        taxable corporate profits. . . . It's a mathematical 
        truism that low and declining State revenues from 
        corporate income taxes means higher State taxes on 
        other State taxpayers or diminished State and local 
        public services.\24\
---------------------------------------------------------------------------
    \24\ Id. at 11.

    In addition, the tax limitation amendment would make it 
exceedingly difficult to make foreign corporations pay their 
fare share of taxes on income earned in this country. Congress 
would even be limited from changing the law to increase 
penalties against foreign multinationals who avoid U.S. taxes 
by claiming that profits earned in the United States were 
realized in offshore tax havens. Estimates of the costs of such 
tax dodges are also significant; a 1992 Internal Revenue 
Service study estimated that foreign corporations misreported 
information on their tax returns at a cost of $30 billion per 
year.\25\
---------------------------------------------------------------------------
    \25\ The IRS also found that on average, foreign companies report 
only 40% of what comparable American companies reported in taxes. See 
Department of the Treasury's Report on Issues Related to the compliance 
with U.S. Tax Laws By Foreign Firms Operating in the United States: 
Hearing Before the Subcomm. on Oversight of the House Ways and Means 
Comm. 102d Cong., 2d Sess. 7 (1992) [hereinafter 1992 Ways and Means 
Committee Hearing] (statement of Rep. Pickle, Chairman, Subcommittee on 
Oversight).
---------------------------------------------------------------------------
  The problem is particularly acute in the automobile and electronics 
industries. For example, of foreign automotive company tax returns 
reviewed in a congressional study, 28% showed no taxes due, even though 
these firms reported sales of nearly $27 billion. One foreign auto 
company had $3.4 billion in sales over 2 years and paid no taxes. Of 
the foreign electronics companies reviewed in the study, 40% paid no 
U.S. income tax whatsoever, though they reported sales of almost $30 
billion. One electronics firm sold $2.4 billion of products over 8 
years and paid no taxes. Another company had sales of more than $9.4 
billion in the United States and paid $156 in taxes. Id.
    Furthermore, adoption of H.J. Res. 41 would make it even 
more onerous than it already is to repeal or limit statutorily-
permitted foreign tax credits or deferrals of taxes on 
unrepatriated foreign profits.\26\ Estimates regarding how much 
the deferral provision costs U.S. taxpayers easily reach into 
the billions.\27\ Congress's Joint Committee on Taxation 
predicted that the loophole would cost $800 million in 2001, 
while the Treasury Department found the total to be $1.4 
billion.\28\ Furthermore, a Congressional Budget Office 
forecast expects taxpayers to lose $3.8 billion per year by 
2011, while the publication Tax Notes estimated the loss to be 
$10 billion per year.\29\
---------------------------------------------------------------------------
    \26\ The foreign tax credit allows U.S.-based multinational 
corporations to reduce their taxes in this country by one dollar for 
every dollar of taxes they pay overseas. 26 U.S.C. Sec. Sec. 27, 33. 
This favorable treatment contrasts sharply with the treatment of nearly 
every other business expense--whether it be wages or taxes paid to 
State or local governments here in the United States. The foreign 
deferral provision, vehemently opposed by the Clinton Treasury 
Department, allows U.S. corporations to pay no income taxes on the 
profits of their foreign subsidiaries unless and until such profits are 
remitted to the U.S. parent. 26 U.S.C. Sec. Sec. 11(d), 882, 901, 951. 
If profits are never paid as dividends to the parent, taxes never 
become due in the United States, amounting to an interest-free loan 
from U.S. taxpayers.
    \27\ Sam Loewenberg, Business Eyes Tax Break on Foreign Profit, 
Legal Times, Feb. 26, 2001, at 1.
    \28\ Id.
    \29\ Id.
---------------------------------------------------------------------------
    Not only do these loopholes cost individual taxpayers 
desperately-needed funds--they cost our workers jobs.\30\ While 
in the past U.S. companies have laid off workers in the United 
States to cut costs, they have hired additional workers 
overseas to take advantage of tax provisions requiring the 
payment of taxes on foreign profits only if those profits are 
repatriated to the United States.
---------------------------------------------------------------------------
    \30\ See AFL-CIO Letter. Since 1979, we have lost almost 3 million 
manufacturing jobs in this country. See Bureau of Labor Statistics, 
U.S. Dep't of Labor, Current Employment Statistics Program (Apr. 4, 
1997). During the economic downturn of the mid-1990's, we lost 26,000 
manufacturing jobs per month--the equivalent of shutting down one 
Fortune 500 company every 30 days. Id. At the same time, the number of 
overseas jobs with U.S.-based manufacturing companies skyrocketed. For 
example, there are nearly 40,000 foreign workers working for U.S. 
corporations in Singapore alone. The Wall Street Journal has reported 
in the past that nearly half of the export jobs in China are linked to 
U.S.- and other multinational-based companies. See Joseph Kahn, 
Foreigners Help Build China's Trade Surplus, Wall St. J., Apr. 7, 1997, 
at A1.
---------------------------------------------------------------------------
    In rejecting these arguments, the Majority has attempted to 
argue that, under a tax limitation amendment, a two-thirds 
majority would not necessarily be required if the elimination 
of the loophole was linked to other tax cuts so that the 
overall bill was revenue neutral.\31\ Although it is not 
entirely clear the amendment would operate in such a 
fashion,\32\ even if it did, this interpretation would prevent 
using the funds raised from the elimination of such loopholes 
for any reason other than providing for tax cuts. For example, 
such revenues could not be used for debt reduction, disaster 
assistance, education, Medicare, or Social Security. There is 
simply no legitimate policy reason to link a bill raising taxes 
on foreign corporations or eliminating abusive loopholes with 
any additional Federal tax changes.\33\
---------------------------------------------------------------------------
    \31\ H.R. Rep. No. 50, 105th Cong., 1st Sess. 7-8 (1997) (House 
Committee on the Judiciary report on H.J. Res. 62).
    \32\ 1997 Judiciary Committee Hearing (``It is not clear from the 
text of H.J. Res. 62 [a prior tax limitation amendment] whether . . . 
it would only apply to a bill that leads on an over-all basis to an 
increase in tax.'') (statement of Dean Thompson).
    \33\ Markup of H.J. Res. 41, House Comm. on the Judiciary, 107th 
Cong., 1st Sess. (2001) [hereinafter H.J. Res. 41 Markup]. 
Unfortunately, the Majority rejected by voice vote an amendment offered 
by Rep. Jerrold Nadler (D-NY) to exclude from the supermajority 
requirement any measures that closed corporate tax loopholes. The 
amendment added at the end of the resolution the following: ``The 
requirements of this article do not apply to any bill, resolution, or 
other legislative measure repealing or reducing any industry-specific 
exemptions, deductions, or credits.''
---------------------------------------------------------------------------
    Incredibly, under the Majority's proposal, even measures 
that raised revenue by improving tax enforcement would require 
a two-thirds majority vote.\34\ As a result, new anti-fraud 
provisions or even a program of stepped-up enforcement against 
foreign multinationals who avoid U.S. taxes would be subject to 
a supermajority requirement.
---------------------------------------------------------------------------
    \34\ Rep. Nadler offered an amendment that would have exempted from 
the provisions of the tax limitation amendment any measures designed to 
improve revenue enforcement, but the Majority rejected it on a voice 
vote. Id. The amendment added at the end of the resolution the 
following: ``The requirements of this article do not apply to any bill, 
resolution, or other legislative measure designed to improve 
enforcement of the internal revenue laws.''
---------------------------------------------------------------------------

  III. The Amendment Could Lead to Large Cuts in Social Security and 
               Medicare and a Return to Deficit Spending

    In addition, H.J. Res. 41 could lead to large reductions in 
Social Security and Medicare benefits. As the Washington Post 
previously noted:

        When the baby boomers begin to retire not that many 
        years from now, the country will be in an era of 
        constant fiscal strain. To avoid destructive deficits, 
        there will have to be tax increases and/or spending 
        cuts. By making it harder to increase taxes, the 
        amendment would compound the pressure on the major 
        spending programs: Social Security, Medicare, Medicaid 
        and the rest. Is that what Congress really wants to do? 
        The pressure on those programs is great enough as it 
        is.\35\
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    \35\ Show Vote on Tax Day, Wash. Post, Apr. 9, 1997, at A20 
(editorial).

    Democratic Members offered an amendment to ensure that 
measures designed to secure the financial solvency of Social 
Security would not be subject to the supermajority requirement, 
but the Majority defeated it on a party-line vote of 8-16.\36\
---------------------------------------------------------------------------
    \36\ H.J. Res. 41 Markup. Rep. Barney Frank (D-MA) offered an 
amendment that added at the end of the resolution the following: ``The 
requirements of this article do not apply to any bill, resolution, or 
other legislative measure necessary to preserve the solvency of the 
Federal Old Age and Survivors Insurance Trust Fund.''
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    Also, the proposed tax limitation would rule out measures 
to raise Medicare premiums for higher income individuals' as 
well as modest measures to shore up Social Security and 
Medicare.\37\ For example, if Congress attempted to make Social 
Security payroll taxes more progressive, such as by imposing 
higher tax rates on higher-income individuals, there would be 
an increase in the revenue laws and the supermajority 
requirement would be triggered.\38\ Indeed, when the Republican 
budget reconciliation bill reached the House floor in the fall 
of 1995, it became clear that its proposed increase in Medicare 
premiums for those at higher income levels constituted a tax 
increase.
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    \37\ Unfortunately, the tax burden in recent years has fallen 
mainly on income and Medicare and Social Security payroll taxes. ITEP 
Report at 10 (``In fiscal years 1997-99, personal income tax payments 
grew by 28 percent and Social Security and Medicare payroll taxes on 
wages grew by 22 percent. But corporate income tax payments went up by 
a total of only 8 percent over the 3 years, and actually fell from 
fiscal 1998 to fiscal 1999.'').
    \38\ Payroll taxes for Social Security are capped for the year 2001 
to the first $80,400 of income and are imposed on all taxpayers at the 
same rate. David Koitz, U.S. Library of Congress, Congressional 
Research Service Report: Social Security and Medicare Premiums--A Fact 
Sheet (CRS Report 94-28 EPW, Jan. 4, 2001). The effect of this is that 
lower-income taxpayers pay a higher percentage of their salaries for 
Social Security.
---------------------------------------------------------------------------
    Similarly, legislation expanding Social Security to include 
State and local government employees--which the Advisory 
Council for Social Security has proposed--would result in a 
revenue increase and would therefore be subject to the two-
thirds requirement.\39\
---------------------------------------------------------------------------
    \39\ See Greenstein Report.
---------------------------------------------------------------------------
    Another dangerous byproduct of H.J. Res. 41 could be a 
return to deficit spending. As the Center on Budget and Policy 
Priorities testified:

        The amendment would make it virtually impossible to 
        amass the two-thirds majority required to pass large 
        deficit reduction packages that include both reductions 
        in Federal programs and measures to raise revenue. As a 
        result, the amendment would erect serious new barriers 
        to long-term deficit reduction.\40\
---------------------------------------------------------------------------
    \40\ 1997 Judiciary Committee Hearing (statement of Robert 
Greenstein). Between 1982 and 1993, five pieces of legislation that 
raise significant revenue were enacted. The Tax Equity and Fiscal 
Responsibility Act of 1982, passed the House by a vote of 226-207. The 
1987 Social Security rescue plan was passed by a vote of 282-148. The 
Omnibus Budget Reconciliation Act of 1987, a product of bipartisan 
negotiations that contained both spending cuts and revenue increases, 
passed by a vote of 237-181, and the Omnibus Budget Reconciliation Act 
of 1993 passed by a slender vote of 218-216.

    It is for these reasons that the nation's perhaps most 
credible advocate of deficit reduction--the bipartisan Concord 
Coalition--strongly opposes a supermajority tax requirement. In 
its view, ``enactment of [a tax limitation] constitutional 
amendment would unduly complicate the budget process. . . . No 
area of the budget--on either the spending or the revenue 
side--should receive preferential treatment such as requiring 
supermajority votes.'' \41\
---------------------------------------------------------------------------
    \41\ Concord Coalition Letter at 1.
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 IV. The Amendment Will Endanger Excise Taxes that Fund Public Safety 
                      and Environmental Programs.

    Another problem with this tax limitation amendment is that 
there are many important public safety programs funded by 
excise taxes whose extension would be subject to a 
supermajority vote. Many such excise taxes are dedicated to 
purposes such as transportation trust funds, Superfund, and 
compensation for health damages.\42\ H.J. Res. 41 would apply 
to excise taxes on alcohol, tobacco, and pensions, as well as a 
variety of environmental taxes.\43\
---------------------------------------------------------------------------
    \42\ See James V. Saturo & Louis Alan Talley, U.S. Library of 
Congress, Congressional Research Service Report: Tax Limitations 
Proposals--An Assessment of the Issues and Options Together With the 
Major Tax Acts, Votes, and Revenue Effects (CRS Report 97-372 E, March 
20, 1997); see also 1997 Judiciary Committee Hearing (statement of Rep. 
Charles Rangel (D-NY), Ranking Member, House Comm. on Ways and Means).
    \43\ See generally 26 U.S.C. Chapters 31-47, 51-54.
---------------------------------------------------------------------------
    Former White House Counsel Lloyd Cutler explained the 
difficulties a supermajority tax requirement could cause in the 
context of extending such taxes:

        Today a simple majority of the Senate and House could 
        restore the [expired airline ticket tax]. . . . But 
        under the proposed amendment, it would take 67 of the 
        100 senators and 290 of the 435 congressmen to restore 
        this tax which, having expired on December 31, 1995, 
        would clearly be a ``new'' tax covered by the 
        amendment.\44\
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    \44\ A Proposed Constitutional Amendment To Require A Two-Thirds 
Vote to Increase Taxes: Hearing on S.J. Res. 49 Before the Subcomm. on 
the Constitution, Federalism and Property Rights of the Sen. Comm. on 
the Judiciary, 104th Cong., 2d Sess. (1996) (statement of Lloyd 
Cutler).

    In an effort to carve-out at least one important program 
from the onerous supermajority requirement, Democratic Members 
offered an amendment that would have excluded from the 
supermajority requirement any measures that imposed 
environmental taxes; again, the Majority rejected it.\45\
---------------------------------------------------------------------------
    \45\ H.J. Res. 41 Markup. Rep. Jackson Lee offered an amendment 
that added at the end of the resolution the following: ``The 
requirements of this article do not apply to any bill, resolution, or 
other legislative measure that imposes an environmental tax, fee, 
charge, or assessment.'' The amendment was defeated on a voice vote.
---------------------------------------------------------------------------

 V. The Amendment is Vague and Could Transfer Significant Authority to 
                               the Courts

    H.J. Res. 41 will present a variety of new and complex 
interpretational difficulties. Most notably, there is no 
definition of the term ``internal revenue laws,'' a new term of 
art with no legislative antecedent.\46\ For example, although 
proponents of similar proposals have contended in the past that 
there is a clear distinction between ``taxes'' (which they 
believe are ``internal revenue'') and ``user fees'' (which they 
believe are not ``internal revenue''),\47\ this is a 
distinction without any meaningful difference in practice. As 
Richard Darman, Director of the White House Office of 
Management and Budget under President Reagan, acknowledged, 
``[i]f it looks like a duck and walks like a duck and quacks 
like duck, it is a duck, [and] euphemisms like user fees will 
not fool the public.'' \48\
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    \46\ Proponents' arguments that the courts can resolve the meaning 
of such open-ended terms in the same way they have ``equal protection'' 
and ``due process'' also miss the point. The courts are the most 
appropriate body to protect such individual rights and liberties from 
government excesses in these areas. On the other hand, judging the 
policy value of tax legislation is an inherently political judgment and 
should not involve the judiciary.
    \47\ H.R. Rep. No. 50 at 3.
    \48\ See Hearing on Nomination of Richard Darman to be the Director 
of the Office of Management and Budget Before the Senate Comm. on 
Governmental Affairs, 101st Cong., 1st Sess. (1989). The amendment's 
authors allowed for a loophole of potentially massive dimensions when 
they stated that efforts to adjust the Consumer Price Index--which 
would reduce indexing for tax brackets--would not constitute a change 
in ``internal revenue.'' (Transcript at 39 (``under the [revised] 
language [reducing the CPI] would not [require a two-thirds vote], 
because that would not be a change to the internal revenue laws.'') 
Under this interpretation, legislation such as that offered by Sen. 
William Roth (R-DE), Chair of the Senate Finance Committee, reducing 
CPI adjustments by 1.1% per year--and which Congressional Budget Office 
estimated would increase income taxes by $22.8 billion per year in 2002 
and more than double that by 2006--would not constitute an increase in 
``internal revenue.'' See S. 2, 105th Cong., 1st Sess. (1997).
---------------------------------------------------------------------------
    Another definitional problem arises from the fact that it 
is unclear how and when the so-called ``de minimis'' increase 
is to be measured, particularly in the context of a $1.5 
trillion annual budget.\49\ Would we look at a one, five, or 
10-year budget window? What if a bill resulted in increased 
revenues in years one and two, but lower revenues thereafter? 
It is also unclear when the revenue impact is to be assessed--
based on estimates prior to the bill's effective date, or 
subsequent determinations calculated many years out. Further, 
if a tax bill was found retroactively to be unconstitutional, 
the tax refund issues could present insurmountable logistical 
and budget problems.\50\
---------------------------------------------------------------------------
    \49\ See, e.g., Concord Coalition Letter at 1.
    \50\ Jim Miller, Director of the White House Office of Management 
and Budget under President Reagan, testifying on behalf of the Citizens 
for a Sound Economy, stated that the ``de minimis'' requirement should 
be taken out. See 1997 Judiciary Committee Hearing.
---------------------------------------------------------------------------
    All of these ambiguities point to one of the most serious 
problems inherent in H.J. Res. 41: uncertainty regarding the 
branch of government vested with responsibility for interpeting 
and enforcing the amendment's requirements. If H.J. Res. 41 is 
read to authorize judicial interpretation and enforcement, 
courts would be drawn into fundamental policy disputes best 
left to the Congress; \51\ on the other hand, if judicial 
enforcement is unavailable, those seeking redress for 
improperly-imposed tax increases would be left without a 
meaningful remedy, undermining the public's faith in the 
Constitution. Moreover, it is doubtful the public would approve 
of Congress selecting an unelected official, such as the head 
of the Congressional Budget Office, to police these matters.
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    \51\ In the event judicial review is invoked, the proposed tax 
limitation amendment would raise difficult questions concerning 
standing. For example, it would be unclear whether a taxpayer whose 
taxes were raised would be able to show sufficient harm to constitute a 
``case or controversy'' or whether it would be necessary for a Member 
or a whole House of Congress to bring the legal challenge. See Balanced 
Budget Constitutional Amendment: Hearing before the Subcomm. on the 
Const. of the House Comm. on the Judiciary, 104th Cong., 1st Sess. 229 
(1995) (statement of Walter Dellinger, Asst. Attorney General, Office 
of Legal Counsel, U.S. Dep't of Justice). To avoid these complications, 
Rep. Melvin L. Watt (D-NC) offered an amendment to ensure the courts 
did not get involved in this political question. The amendment stated: 
``This article shall not be construed as to give the Judicial Branch 
any authority except to declare whether the Legislative Branch is in 
compliance herewith.'' The Majority rejected it on a party-line vote of 
9-16.
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VI. The Majority Frequently Has Waived Its Own House Rules Requiring a 
                  Supermajority Vote to Increase Taxes

    The unworkability of H.J. Res. 41 is illustrated by the 
fact that the Majority frequently has ignored its own House 
rule preventing tax rate increases from taking effect unless 
approved by three-fifths of the House.\52\ In the 104th 
Congress, the Majority ignored or waived this three-fifths 
requirements for tax increases on six separate occasions.\53\ 
As Rep. Charles Stenholm (D-TX) wrote in the Washington Post:
---------------------------------------------------------------------------
    \52\ House rule XXI 5(c), 104th Cong., 1st Sess. (1995).
    \53\ On April 5, 1995, during the consideration of H.R. 1215, the 
Contract with America Tax Relief Act, the House Parliamentarian ruled 
that the new House rule did not apply to the bill even though H.R. 1215 
would have repealed the current 50% exclusion for capital gains from 
sales of certain small business stock. The net effect of H.R. 1215 was 
to increase the maximum rate of tax on those gains from 14% (50% 
inclusion times 28% top rate) to 19.8%. All seem willing to concede now 
that the ruling was erroneous. Even Speaker Newt Gingrich (R-GA) in a 
June 27, 1995 letter, responding to an inquiry by Reps. Jim Gibbons (R-
NV), Joe Moakley (D-MA), and Richard Gephardt (D-MO), conceded that the 
ruling did not seem ``either satisfactory or overly compelling.''
---------------------------------------------------------------------------
  On October 26, 1995, the Republicans waived the House rule for 
consideration of H.R. 2491, the FY 1996 budget reconciliation bill and 
its conference report. The bill contained several tax rate increases.
  On October 19, 1995, the Republicans waived the House rule for 
consideration of H.R. 2425, the Medicare Preservation bill (which would 
have imposed additional taxes on withdrawals from MedicarePlus Medical 
Savings Accounts and premium increases on high-income Medicare 
beneficiaries).
  On March 28, 1996, the Republicans waived the House rule for 
consideration of H.R. 3103, the Health Coverage Availability and 
Affordability bill (imposing additional taxes on withdrawals from 
Medical Savings Accounts).
  On May 22, 1996, the Republicans waived the House rule for 
consideration of the Small Business Protection Act.
  On July 31, 1996, the House rule was waived for the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1995 
(possible increases in the earned income tax credit program).

        [T]he final blow to any hope that the vote [on the 
        supermajority tax requirement] might be for real comes 
        from the dismal adherence Republicans have made to 
        their own internal House rule requiring a three-fifths 
        vote to raise taxes. After much fanfare during the 
        organization of the 104th Congress, the House 
        leadership has waived its own effort to restrain itself 
        in every potential instance except one.\54\
---------------------------------------------------------------------------
    \54\ Charles Stenholm, An Amendment Without a Prayer, Wash. Post, 
Apr. 15, 1996, at A21.

    In an attempt to avoid these problems, at the beginning of 
the 105th Congress, the House rule was significantly narrowed 
to limit its application to increases in particular tax rates 
specified under the Internal Revenue Code, rather than tax rate 
increases generally.\55\ Such experiences highlight the 
unworkability of setting forth special procedural rules 
concerning tax laws and tax rates and these problems would be 
greatly compounded in a constitutional context.
---------------------------------------------------------------------------
    \55\ House rule XXI 5(c), 105th Cong., 1st Sess. (1997).
---------------------------------------------------------------------------

                               CONCLUSION

    Few measures demonstrate the Majority's inability to 
understand issues of real importance to the American people 
like this tax limitation amendment. Year after year, this 
amendment is brought to the House floor, and year after year it 
fails. In the meantime, there has been no congressional action 
on real issues that affect real people, such as a patients' 
bill of rights, prescription drug benefits for seniors, or a 
minimum wage increase. For these reasons, we respectfully 
dissent.

                                   John Conyers, Jr.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   William D. Delahunt.
                                   Tammy Baldwin.
                                   Anthony D. Weiner.