A few weeks ago I wrote about the proposed Repeal Amendment, a change to the Constitution that would allow the states to repeal any federal law or regulation on approval of two-thirds of the state legislatures. The idea would be to allow another avenue of pushback against bad legislation, such as ObamaCare, and regulations that threaten our individual liberties, such as the recently announced assumption of regulatory power over the Internet by the FCC.
In an article at The Weekly Standard, Jeffrey H. Anderson uses the example of ObamaCare to argue that the Repeal Amendment isn’t enough, for several reasons: first is the difficulty of getting enough legislatures to agree on repeal. Even after the sweeping Republican victories in state elections last November, enough state legislatures remain in Democratic hands to block repeal, even if just in theory. To be honest, I consider this a feature, not a bug, since the pwoer to overturn federal law should require an overwhelming consensus. And, I suspect, that consensus exists in this case.
The other problem he mentions is more serious: that, to prevent a repeal, Congress and the administration could, in essence, bribe state legislatures with federal money in return for voting the right way. We saw examples of this during the debates over the health care law, as Senators Nelson and Landrieu, were (and let’s be blunt here) bought off with the Cornhusker Kickback and the Louisiana Purchase. If it can be done to a US senator, it can happen with a state senator.
Anderson’s proposed solution is a amendment that caps spending at the federal level. He explains it thusly:
While we do have a federalism problem (as in too little of it), what we mostly have is a spending problem — and, thus, what we really need is a spending amendment. Such an amendment should limit spending based on 2008 figures and then prevent Congress from increasing real (inflation-adjusted) spending by more than 2 percentage points annually. Exceptions should be made for defense spending or if three-quarters of the state legislatures grant an exception requested by two-thirds of both houses of Congress. Over time, such a Limited Government Amendment would dramatically reduce federal spending as a percentage of our gross domestic product.
In the process, it would also greatly reduce the federal government’s ability to buy off the states. Thus, a spending amendment would not only do a great deal to check federal spending, it would also increase the effectiveness of a repeal/federalism amendment. In combination, these two amendments would profoundly limit federal spending and control, while helping to reestablish the federalist system that’s so essential to securing our rights.
It’s an interesting idea; Dan Mitchell of the Cato Institute has argued that simply limiting spending growth to two-percent would balance the budget by 2020. (Presumably surpluses beyond that could be used to pay down our debt.) And one could reasonably argue that a constitutional amendment is required, given Congress’ natural propensity to spend more of our money (or borrow it) regardless of need.
Perhaps it’s odd, but I’m more wary of this proposed amendment than I am of the Repeal Amendment, since I’m wary of tying the government’s hands in a time of emergency. While military spending would be exempted, what about a natural disaster that devastates a whole region? Time would be of the essence for any response, yet the two-thirds/three-fourths provision for an exception to the limit strikes me as too cumbersome.
Still, there’s no doubting the federal government has grown too powerful and needs to be restrained and pared back. Anderson’s proposal is at least worthy of serious debate.
(Crossposted at Public Secrets)