Russell Feingold

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I do recall that.

Mr. FEINGOLD. Mr. President, it was not too long ago, just last June, when I joined the senior Senator from Arizona and the senior Senator from Tennessee, as well as the senior Senator from Minnesota and other Senators, in offering in this body the first bipartisan campaign finance proposal in over a decade. Although the legislation had received unprecedented bipartisan support, including the backing of President Clinton and Ross Perot and Common Cause, 161 different editorial boards nationwide and some 60 congressional Democrats and Republicans, we in this body did fail to invoke cloture on that measure by 6 votes. We have heard some interesting arguments during the past summer about this in the public debate, when we did finally debate campaign finance reform for just 2 days under a series of rules that would not allow us to amend the bill but would only allow us to have a debate for 2 days and then vote immediately on cloture. That was the deal we had to accept, just to have this issue heard in this body and before the American people. But we did so because we wanted a chance to be heard. We were told on that occasion by our opponents, led by the junior Senator from Kentucky, very clearly that he believed there really wasn't much of a problem with our current campaign finance system. We were told that the explosion in campaign spending that we had seen in 1992 and, again, in the 1994 elections was not only not a cause for alarm; we were told by some, led by the senior Senator from Kentucky, that this onslaught of campaign cash was healthy for democracy. That is what we were told, and it carried the day, although a majority of this body did vote to go forward. The status quo, we were told, was democracy at its finest, and more spending, more big spending, would only make it better. Of course, we heard the other side of this debate from those of us who adamantly are opposed to the status quo, and at one point during the public debate over this issue, I recall very clearly hearing both the Senator from Arizona [Mr. McCain], and the Senator from Tennessee [Mr. Thompson], predict that the 1996 elections would produce a large- scale scandal. They predicted a scandal. I also remember their stern warnings that it would be a scandal of grand magnitude that would eventually compel the Congress to pass meaningful campaign finance reform. Mr. President, based on what has happened in the months that followed that debate, what was right? Who was right? Those who were proclaiming that money in politics was a match made in Heaven, or those who suggested that money in politics was closer to gasoline and matches? I believe the debate we are having today, and the endless headlines and media reports of abuses by both sides of the aisle in the last election, provide a clear answer to that question. In fact, the Senator from Kentucky and others who opposed our effort last June on the grounds that we needed more campaign spending, not less, got exactly what they wanted in the last election. They got more spending all right. The 1996 elections set an all-time record for campaign spending at $2.7 billion--$2.7 billion, Mr. President. Now, was democracy strengthened, as the Senator from Kentucky suggested it would be? I don't think so. Considering that the fewest percentage of Americans went to the ballot in 72 years in that election, I would say that we can lay to rest the theory that more campaign spending increases participation in our political system and is somehow good for democracy. The resolution before us today provides about $4.3 million for the Governmental Affairs Committee to conduct an investigation into reported illegalities stemming from just the 1996 elections. This includes abuses both in the Presidential and congressional elections. The investigation, as we have laid out here today, must conclude by December 31, and a report must be issued by the committee within 1 month after that date. Ultimately, I certainly will support this resolution, because I strongly believe these activities must be investigated on a bipartisan basis. That is why I have also supported an appointment of an independent counsel to investigate both Republican and Democratic abuses in the 1996 elections. I am aware that several of my colleagues originally held to the position, as the senior Senator from Ohio is pointing out, that the committee should only examine abuses in the Presidential election, but in light of the recent revelations about potential congressional campaign finance abuses in the last election, I commend the authors of this resolution for their willingness to investigate wrongdoing at both ends of Pennsylvania Avenue. I am concerned, however, that this resolution is confined to the 1996 elections. Just in the past few days, allegations have come to light about the 1992 elections and potential wrongdoing by the current Speaker of the other body, as well as a former Vice President of the United States. These 1992 allegations are as serious, in my mind, as the 1996 allegations, and they warrant a full investigation by the oversight committees. The use of the White House and the office of the Vice President for activities related to fundraising I don't think was invented in 1996. That is just my guess, but I am pretty sure it was not invented in 1996. Although it is imperfect, I will ultimately support the underlying resolution to allow this investigation to go forward and hope that the committee, under the strong leadership of the Senators from Tennessee and Ohio, will conduct a balanced and bipartisan investigation process. But we have to recognize that these investigations are only one small step forward. We have to understand that these abuses, on both sides of the aisle, were an almost inevitable byproduct of a campaign finance system that has virtually no restraints on candidate or party spending and no restraints whatsoever on the so-called soft money contributions that seem to be at the focal point of so many of these abuses. These abuses, as the Senators from Arizona and Tennessee predicted last June, were simply inevitable. Yes, it is illegal to raise campaign funds from the White House or from a Senate office. Yes, it is illegal to accept campaign contributions from nonresident foreign nationals. Now, that is clear. But let us talk about fundraising practices where the lines between what is legal and illegal and what is ethical and unethical become far more blurred. This is very, very difficult to determine whether something is simply illegal or legal. For example, under current law, it is viewed as legal for a corporation, a labor union or a wealthy individual to hand the President of the United States or a U.S. Senator acting on behalf of their political parties a check for $400,000. As long as the check is made out to the party and not the person accepting or even soliciting the check, it is widely viewed as legal. It is called soft money, which is unlimited campaign contributions from sources which are normally restricted in their contributing, based on the reforms that were enacted some 20 years ago. For example, corporations and labor unions, which are strictly forbidden from contributing directly to Federal candidates, can contribute unlimited sums of money to the national parties, which then funnel these funds into various House and Senate races. Mr. President, I don't think anyone in this body is going to be able to fool the American people on this. What this system is is a giant money laundering operation, and it is done openly. That is what it is. It is a giant money laundering operation, known as soft money. It is also considered legal, apparently, for elected officials to trade access for huge campaign contributions. That is probably on the legal side of the ledger. Let me give you a couple of examples. In 1995, the Republican National Committee promised $15,000 donors four meetings a year with House and Senate Republican leaders, as well as participation in international trade missions. That same year, the Democratic National Committee offered $10,000 donors the opportunity to participate in trade missions to Budapest, Vienna, and Paris. This system of exchanging access to elected officials for large campaign contributions was recently referred to by a Member of this body as ``the American way,'' that it is simply the American way to do things this way. Mr. President, if that is true, it is an awfully sad day for America. The abuses that have been uncovered in recent elections are the symptoms, not the disease. The disease is our failed campaign finance system. Nowhere is this more visible than with the virtual explosion of so-called soft money. In the 1992 elections, about $86 million was raised by the two national parties in these so-called soft money contributions. In 1994, that figure jumped to over $100 million. And then in the 1996 elections, soft money exploded, and the two parties accumulated over $263 million in soft money contributions. That, Mr. President, is more than a 150 percent increase in just 2 years. When is this body going to stand up and say that it should be illegal, clearly illegal, for anyone, whether you are from Jakarta or Janesville, WI, to make a $400,000 contribution? When is this body going to stand up and say that we should reform a system that reelects incumbents well over 90 percent of the time? When is this body going to stand up and say there is simply too much money flowing through our campaign system? And, yes, we do need--soon-- comprehensive bipartisan reform. I just got here a little while ago, got to the floor, and heard the arguments of, yes, we are going to have the investigation and, yes, we are going to have a vote on the constitutional amendment on campaign finance reform. I am hopeful no one will be fooled. That combination of limited hearings that have to do with only illegal conduct and a vote on a constitutional amendment that will lose is simply a way to sweep this issue under the rug. That is all it is. That is a deadly combination. That would be the death of campaign finance reform, to simply pretend that a vote on a constitutional amendment, with the barriers that are involved there in a limited hearing, will somehow take care of this problem. Many of the people who are saying that they are concerned and want to work on this issue are the very ones that voted last year to not even put campaign finance reform on the agenda of the 104th Congress. So we ought to very carefully examine their claims that the combination of a couple days of debate on a constitutional amendment and limited hearings will do the job. If it can be accomplished, it will be a very neat trick. And it worked in the 104th Congress, but it will not work in the 105th Congress. Mr. President, it will not be possible to contain this issue. It will not be possible to just sweep it under the rug. Mr. President, make no mistake, the investigations and the issue of legislating campaign finance reform are automatically and inextricably linked to each other. Let me say, if these investigations are done right, it can help. An investigation that shines a spotlight on the darkest corners of our campaign finance system can be a useful endeavor so long as those who benefit the most from our current campaign finance rules are willing to turn the spotlight on themselves. Passage of this resolution, if done right, is a first step. But I do not believe its passage will change one bit the public's perception that their Government and the elected leaders are for sale. The only way we can truly begin the process of restoring the trust and faith of the American people in their elected officials is to pass meaningful, bipartisan campaign finance reform. It is my sincere hope that opportunity presents itself in the coming months. And I look forward to a thoughtful debate on the issue as well as negotiations with regard to the specifics. So although I will support this resolution, I will also support efforts to strengthen it by explicitly broadening its scope to include both legal and illegal fundraising activities as well as including the elections prior to 1996 where the seeds of much of this abuse were planted. Mr. President, what I just described was the original scope of the hearings approved by the Governmental Affairs Committee on a bipartisan, unanimous vote of 16 to 0. And those who supported the narrowing of this scope owe the American people an explanation of why we are only going to examine some of the abuses but not all of the abuses. In my view, many of the issues can be investigated even under the wording of the resolution before us. In other words, I think it is going to be very difficult to simply make a legal ruling that something was legal or illegal without looking at the facts. And I do think, however, though it would be preferable to restore the specific language regarding the detailed scope that was originally outlined by the Governmental Affairs Committee. Thank you, Mr. President. I yield the floor. Mr. WARNER addressed the Chair.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I am introducing legislation to expand the Line-Item Veto Act to cover one of the largest and fastest growing areas of the Federal budget, tax expenditures. I am especially pleased to be joined in offering this legislation by my good friend, Congressman Tom Barrett of Milwaukee who is spearheading this legislation in the other body. Both bills expand the Line-Item Veto Act which took effect this past January and will remain in force for the next 8 years. Mr. President, both Congressman Barrett and I supported the new Line- Item Veto Act that was signed into law last session. Though it isn't the whole answer to our deficit problem, I very much hope it will be part of the answer. However, the new Line-Item Veto Act failed to address one of the largest and fastest growing areas of Federal spending--the spending done through the Tax Code, often called tax expenditures. According to the Senate Budget Committee's most recent committee print on tax expenditures, prepared by the Congressional Research Service, we will spend nearly half a trillion dollars on tax expenditures during the current fiscal year. Citizens for Tax Justice estimates that over the next 7 years, we will spend $3.7 trillion on tax expenditures, and sometime in the next 2 to 3 years, the total amount spent on tax expenditures will actually surpass the total discretionary budget of the United States. Mr. President, despite making up a huge and growing portion of the Federal budget, tax expenditures are beyond the reach of the new Presidential line-item veto authority. As currently structured, that authority only extends to so-called limited tax benefits, defined in part to be a tax expenditure that benefits 100 or fewer taxpayers. As long as the tax attorneys can find 101st taxpayers who benefit from the proposed tax expenditure, it is beyond the reach of the new Presidential authority. Mr. President, it may not even be necessary for the tax attorneys to find that 101st taxpayer. If a tax expenditure gives equal treatment to all persons in the same industry or engaged in the same type of activity, it is exempt from the new Presidential authority no matter how narrow the special interest spending. Further, if all persons owning the same type of property, or issuing the same type of investment, receive the same treatment from a tax expenditure, that tax expenditure is similarly outside the scope of the President's new authority. Mr. President, there are still more exceptions that make it even harder for a President to trim unnecessary spending done through the tax code. For example, if any difference in the treatment of persons by a new tax expenditure is based solely on the size or form of the business or association involved, or, in the case of individuals, general demographic conditions, then the new spending cannot be touched by the President except as part of a veto of the entire piece of legislation which contains the new spending. By contrast, we find none of these elaborate restrictions on the new line item veto authority for spending done through the appropriations process or through entitlements. The new Presidential authority is handcuffed only for spending done through the Tax Code. Mr. President, this raises several problems. First, and foremost, it shields an enormous portion of the Federal budget from this new tool to cut wasteful and unnecessary spending. If the authority established by the Line-Item Veto Act is to have meaning, it cannot be preempted from being used to scrutinize this much spending. A second problem raised by the inability of the new Presidential authority to address new tax expenditures is that it creates an enormous loophole through which questionable spending can escape. We have already seen discussions of how special interest spending can be crafted to avoid the new Presidential authority. While the current Line-Item Veto Act power given the President formally covers discretionary spending and new entitlement authority, a special interest intent on enacting its pork barrel spending could readily do so by avoiding the discretionary or entitlement formats, and instead transform their pork into a tax expenditure. As we know from the elaborate limits placed on the President's ability to apply the new authority to spending through the Tax Code, most special interest pork that takes the form of a tax break is beyond the reach of the Line-Item Veto Act. Mr. President, no matter how powerful this new authority is with regard to discretionary spending and entitlement authority, it is virtually useless against tax expenditures, and thus invites special interests to use this avenue to deliver pork. A further problem with the lack of adequate Presidential review in this area is the very real potential for inequities in the implementation of the new Line-Item Veto Act authority. These inequities arise in part from the progressive structure of marginal tax rates--as income rises, higher tax rates are applied. In turn, this means that many tax expenditures are worth more to those in the higher income tax brackets than they are to families with lower incomes. In some instances, tax expenditures provide no benefit at all to individuals with lower incomes. This is not the case with entitlement and discretionary spending programs--both areas covered by the Line-Item Veto Act. The benefits of those programs often are targeted to those with lower income. The net effect is that the scope of the current Line-Item Veto Act covers programs that often benefit those with low and moderate income, while it is powerless with regard to programs that often benefit individuals and corporations with higher incomes. Mr. President, tax expenditures have another feature that makes it especially important that we extend the new Line-Item Veto Act to cover them, namely their status as a kind of super entitlement. Once enacted, a tax expenditure continues to spend money without any additional authorization or appropriation, and without any regular review. In fact, while even funding for entitlements like Medicare or Medicaid can be suspended in rare instances such as a Government shut-down, funding for a tax expenditure is never interrupted. Tax expenditures enjoy a status that is far above any other kind of government spending, and as such, it should receive special scrutiny. Extending the Line-Item Veto Act to cover them will provide some of that needed review. Mr. President, as I have noted, tax expenditures make up a huge portion of the budget. They will soon exceed the entire Federal discretionary budget. Citizens for Tax Justice reports that if all current tax expenditures were suddenly repealed, the deficit could be eliminated and income tax rates could be reduced across the board by about 25 percent. Clearly, tax expenditures have an enormous impact on the deficit, and we need to pursue two tracks with regard to them. First, we must cut some of the nearly half a trillion dollars in existing spending done through the tax code. Any balanced plan to eliminate the deficit over the next few years must contain cuts to spending in this area. And second, with so much of our budget already dedicated to this kind of spending, we must bring tax expenditures under the Line-Item Veto Act and give the President the authority to act on new spending in this area as he does in other areas. Our legislation does just that by eliminating the highly restrictive language with respect to tax expenditures. Mr. President, as with the recently enacted Line-Item Veto Act itself, this bill to extend that new authority is not the whole answer to our deficit problems, but it can be part of the answer, and I urge my colleagues to support this effort to put teeth into the new Presidential authority with respect to the tax expenditure portion of the Federal budget. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I am introducing legislation to expand the Line-Item Veto Act to cover one of the largest and fastest growing areas of the Federal budget, tax expenditures. I am especially pleased to be joined in offering this legislation by my good friend, Congressman Tom Barrett of Milwaukee who is spearheading this legislation in the other body. Both bills expand the Line-Item Veto Act which took effect this past January and will remain in force for the next 8 years. Mr. President, both Congressman Barrett and I supported the new Line- Item Veto Act that was signed into law last session. Though it isn't the whole answer to our deficit problem, I very much hope it will be part of the answer. However, the new Line-Item Veto Act failed to address one of the largest and fastest growing areas of Federal spending--the spending done through the Tax Code, often called tax expenditures. According to the Senate Budget Committee's most recent committee print on tax expenditures, prepared by the Congressional Research Service, we will spend nearly half a trillion dollars on tax expenditures during the current fiscal year. Citizens for Tax Justice estimates that over the next 7 years, we will spend $3.7 trillion on tax expenditures, and sometime in the next 2 to 3 years, the total amount spent on tax expenditures will actually surpass the total discretionary budget of the United States. Mr. President, despite making up a huge and growing portion of the Federal budget, tax expenditures are beyond the reach of the new Presidential line-item veto authority. As currently structured, that authority only extends to so-called limited tax benefits, defined in part to be a tax expenditure that benefits 100 or fewer taxpayers. As long as the tax attorneys can find 101st taxpayers who benefit from the proposed tax expenditure, it is beyond the reach of the new Presidential authority. Mr. President, it may not even be necessary for the tax attorneys to find that 101st taxpayer. If a tax expenditure gives equal treatment to all persons in the same industry or engaged in the same type of activity, it is exempt from the new Presidential authority no matter how narrow the special interest spending. Further, if all persons owning the same type of property, or issuing the same type of investment, receive the same treatment from a tax expenditure, that tax expenditure is similarly outside the scope of the President's new authority. Mr. President, there are still more exceptions that make it even harder for a President to trim unnecessary spending done through the tax code. For example, if any difference in the treatment of persons by a new tax expenditure is based solely on the size or form of the business or association involved, or, in the case of individuals, general demographic conditions, then the new spending cannot be touched by the President except as part of a veto of the entire piece of legislation which contains the new spending. By contrast, we find none of these elaborate restrictions on the new line item veto authority for spending done through the appropriations process or through entitlements. The new Presidential authority is handcuffed only for spending done through the Tax Code. Mr. President, this raises several problems. First, and foremost, it shields an enormous portion of the Federal budget from this new tool to cut wasteful and unnecessary spending. If the authority established by the Line-Item Veto Act is to have meaning, it cannot be preempted from being used to scrutinize this much spending. A second problem raised by the inability of the new Presidential authority to address new tax expenditures is that it creates an enormous loophole through which questionable spending can escape. We have already seen discussions of how special interest spending can be crafted to avoid the new Presidential authority. While the current Line-Item Veto Act power given the President formally covers discretionary spending and new entitlement authority, a special interest intent on enacting its pork barrel spending could readily do so by avoiding the discretionary or entitlement formats, and instead transform their pork into a tax expenditure. As we know from the elaborate limits placed on the President's ability to apply the new authority to spending through the Tax Code, most special interest pork that takes the form of a tax break is beyond the reach of the Line-Item Veto Act. Mr. President, no matter how powerful this new authority is with regard to discretionary spending and entitlement authority, it is virtually useless against tax expenditures, and thus invites special interests to use this avenue to deliver pork. A further problem with the lack of adequate Presidential review in this area is the very real potential for inequities in the implementation of the new Line-Item Veto Act authority. These inequities arise in part from the progressive structure of marginal tax rates--as income rises, higher tax rates are applied. In turn, this means that many tax expenditures are worth more to those in the higher income tax brackets than they are to families with lower incomes. In some instances, tax expenditures provide no benefit at all to individuals with lower incomes. This is not the case with entitlement and discretionary spending programs--both areas covered by the Line-Item Veto Act. The benefits of those programs often are targeted to those with lower income. The net effect is that the scope of the current Line-Item Veto Act covers programs that often benefit those with low and moderate income, while it is powerless with regard to programs that often benefit individuals and corporations with higher incomes. Mr. President, tax expenditures have another feature that makes it especially important that we extend the new Line-Item Veto Act to cover them, namely their status as a kind of super entitlement. Once enacted, a tax expenditure continues to spend money without any additional authorization or appropriation, and without any regular review. In fact, while even funding for entitlements like Medicare or Medicaid can be suspended in rare instances such as a Government shut-down, funding for a tax expenditure is never interrupted. Tax expenditures enjoy a status that is far above any other kind of government spending, and as such, it should receive special scrutiny. Extending the Line-Item Veto Act to cover them will provide some of that needed review. Mr. President, as I have noted, tax expenditures make up a huge portion of the budget. They will soon exceed the entire Federal discretionary budget. Citizens for Tax Justice reports that if all current tax expenditures were suddenly repealed, the deficit could be eliminated and income tax rates could be reduced across the board by about 25 percent. Clearly, tax expenditures have an enormous impact on the deficit, and we need to pursue two tracks with regard to them. First, we must cut some of the nearly half a trillion dollars in existing spending done through the tax code. Any balanced plan to eliminate the deficit over the next few years must contain cuts to spending in this area. And second, with so much of our budget already dedicated to this kind of spending, we must bring tax expenditures under the Line-Item Veto Act and give the President the authority to act on new spending in this area as he does in other areas. Our legislation does just that by eliminating the highly restrictive language with respect to tax expenditures. Mr. President, as with the recently enacted Line-Item Veto Act itself, this bill to extend that new authority is not the whole answer to our deficit problems, but it can be part of the answer, and I urge my colleagues to support this effort to put teeth into the new Presidential authority with respect to the tax expenditure portion of the Federal budget. Mr. President, I ask unanimous consent that the text of the bill be printed in the Record.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I rise to support the amendment offered by the senior Senator from Arkansas [Mr. Bumpers]. Over the years, Senator Bumpers has been the Senate's most consistent voice for deficit reduction, and I am pleased to join him in this effort. As has been described, this amendment provides a statutory alternative to the constitutional approach, and as such, it has significant advantages. First and foremost, the Bumpers alternative would require immediate action. As I have noted on several occasions, the lengthy and uncertain ratification process allows Congress to hide behind years and years of delay. The only enforcement mechanism explicitly provided in the proposed constitutional amendment, the supermajority voting requirements, would not kick in for years. If Congress acted today to pass the proposed constitutional amendment, slow ratification could delay enforcement for another 9 years--until 2006. Even without delays in ratification--even if the States ratified the amendment tomorrow--the constitutional amendment would have no effect until 2002 at the very earliest. By contrast, this alternative would require action this year. We would face the supermajority thresholds as part of this year's budget resolution, every year before 2002 and thereafter. This approach makes good sense. It removes the excuse for inaction by implementing budget discipline right away. It also does so without the troubling potential for unintended consequences inherent in the proposed constitutional amendment. There have been lengthy debates over the precise powers the proposed constitutional language confers on the President and the courts. To any disinterested observer, these issues are clearly open to different interpretation, and at the very least there is doubt as to the precise role the courts and the President will have in the brave new world of the balanced budget amendment. The statutory approach contains none of these risks. There is no unintended domino effect on the constitutional powers of the executive and judicial branches. In this regard, I strongly urge my colleagues who support a constitutional approach to consider the statutory alternative as a prudent first step, and I invite them to consider the Line-Item Veto Act that we passed last session as a model. Wisely, Congress opted to pursue a statutory approach instead of a constitutional path in that case. Although I would have opposed changing our Constitution to provide line-item veto authority, I supported the statutory Line-Item Veto Act crafted here by my good friend the Senator from Arizona and others. Opting for a statutory approach allows Congress to evaluate the new line-item veto authority carefully and to offer refinements when appropriate. In fact, I am pleased to have established a line-item veto watchdog group for just this purpose, and look forward to taking an active role in watching the development of this new statutory authority. I have also offered legislation to strengthen the Line-Item Veto Act with regard to wasteful special interest spending in the tax code. As we know, changes to our Constitution are not so easily refined. As the supporters of prohibition discovered, we can only react to the unintended consequences of a constitutional amendment by amending the Constitution again. Of course, supporters of the constitutional amendment are unwilling to admit there may be unintended consequences, especially with regard to the role of the courts and the President. They generally remain silent about those issues. While they are unwilling to confer specific enforcement powers explicitly to the executive or judicial branches, they also refuse to acknowledge the implied presence of enforcement powers in the proposed constitutional amendment. The amendment offered by my good friend from Arkansas adopts the same supermajority threshold approach used in the proposed constitutional amendment; it would take effect right away, not 9 years from now; and, it avoids the monumental uncertainties inherent in any constitutional change. I congratulate my good friend Senator Bumpers for offering this sensible alternative, and I urge my colleagues to support it.

Mr. FEINGOLD. Mr. President, my amendment allows Congress to establish a surplus fund, a tool used in many States, in a far more responsible way to address emergencies than simply deficit spending or scrambling for offsets. My amendment allows Congress to build up and use the savings needed to fund the bulge in Social Security benefits that will occur when the baby boomers retire. Without this amendment, there would be a three- fifths vote required in each House in order to access the Social Security fund. This is terribly important to current and future retirees, and my amendment does not require Congress to do the right thing, but at least allows Congress to live up to its commitment to the Social Security beneficiary.

Mr. FEINGOLD. Mr. President, my amendment simply reduces from 7 to 3 the number of years that States have to ratify the balanced budget amendment, thereby ensuring that it will take effect no later than the year 2002. Under the current version of the balanced budget amendment, the balancing requirement could be delayed in its effectiveness until the year 2006. I like to call this the fish-or-cut-bait amendment. This will ensure, whether we go with a balanced budget amendment or whether we simply do our job now as we should, that we get the job done by the year 2002.

Mr. FEINGOLD. Mr. President, my amendment simply reduces from 7 to 3 the number of years the States have to ratify the balanced budget amendment.

Mr. FEINGOLD. Thank you, Mr. President. I rise today in support of the amendment by my colleague, the senior Senator from Massachusetts. I do so because it speaks directly to one of the most significant, yet still unanswered questions about this proposed amendment to the U.S. Constitution. The issue I want to speak about today goes to the very heart and structure of our democratic system of Government, that being the role the courts will play if this amendment is adopted. As has often been the case during this debate on the issue of judicial enforcement, we have rarely moved the dialog beyond generalities and hypotheticals to resolve with any finality what role if any the courts will play if the balanced budget amendment becomes a part of our Constitution. Unless the proposed amendment is modified to make clear that the judiciary shall not assume the responsibilities of managing the financial obligation and priorities of this Nation, it could well turn over to the courts decisionmaking authority on issues such as tax rates and spending priorities, decisions which I think we all agree should remain within the purview of the Congress and the executive branch. As the President has said, all it takes to balance the budget is our votes and his signature. Yet, this amendment potentially wrests from Congress our ability and, in my opinion, our responsibility to make the tough choices and lays them at the foot of the judiciary. We should make it clear that unelected judges will not assume the role which is better left to those who are elected by the voters. In raising my concern with the potential role of the judiciary enforcing the balanced budget amendment, I want to make it clear that I do not do so out of disrespect or disregard for the courts and their very significant role in our democracy. Nor do I rise to engage in the kind of assault on the integrity of the judiciary that has become all too commonplace in recent years when a contrary decision manifests itself into a full-scale assault on the judicial system of our Nation. Mr. President, our system of justice is by no means foolproof. Nor does it always reach popular results. It is, however, the best system that has been devised throughout history. And this is due in large measure to its independence, to the independence of the judiciary. The Federal judges are granted life tenure so that they may be free to interpret the law without fear of retribution during the next election cycle. The independence of the judiciary is as important to our democracy as any other element, and I do not rise to question that independence or to castigate members of the judiciary. Rather, I rise because the failure to address the role of the courts in this amendment strikes at the very heart of our system of government. Our system of checks and balances between our three branches has prevented any one branch from becoming too powerful. This body, the legislative branch, the branch closest to the people, was given the responsibility of making the laws and controlling the purse. The executive is charged with the primary responsibility for execution of the laws and the judiciary with interpretation and enforcement of them. The premise that the courts shall interpret and enforce the laws has been a fundamental notion throughout our constitutional history. Although noted in the accompanying views of both the proponents and opponents in the report on this amendment, the words of Chief Justice John Marshall, in Marbury versus Madison, are worth reiteration here. It is, emphatically, the province and duty of the judicial department, to say what the law is. Mr. President, there could be little doubt that the courts of this Nation play a significant and vital role in our democracy. As was pointed out by my colleague in the Senate Committee on the Judiciary, Senator Torricelli, the difference between our Constitution and those of other countries is not necessarily in the rights that it assures, but that they will be enforced by an independent judiciary. It is this structure which has served us so well for so long. However, that structure is also based upon the assumption that the courts will not be given the responsibility for actions which are intended to and have historically been reserved for elected officials in both the executive and legislative branches. In the context of this amendment, that assumption simply cannot be made. If the balanced budget amendment is added to this Nation's charter, without clarifying and limiting the role of the courts and establishing fiscal priorities for our Nation, it will constitute nothing less than a radical restructuring of our democratic system of government. In fact, the history of this amendment illustrates the significance of this issue. On two previous occasions, in 1994 and 1995, the text of the balanced budget amendment was modified in respect to the role of the courts: Once to limit involvement to declaratory judgments and, most recently, to allow implementing legislation to define the role of the courts. Yet, despite these facts, proponents of this amendment, the one we are to vote on next week, now argue that the best approach to this significant threshold issue is simply silence. They are not open to the kinds of changes that were added in the last two attempts to pass this amendment to our Constitution. The committee report states that it is the belief of the proponents that: S.J. Res. 1 strikes the right balance in terms of judicial review. By remaining silent about judicial review in the amendment itself, its authors have refused to establish congressional sanction for the Federal courts to involve themselves in fundamental macroeconomic and budgetary questions, while not undermining their equally fundamental obligation to ``say what the law is . . .'' Thus, Mr. President, it seems under a veil of silence the proponents are simply choosing not to address this issue. I also note that I do not believe that the courts of this Nation have historically waited for congressional sanction before addressing issues raised by the U.S. Constitution. In short, the committee report seems to be saying that Congress will not explicitly give the courts their approval to do something which, in fact, the courts may already do on their own--interpret and enforce the Constitution. To me, Mr. President, this approach is the kind of classic sidestepping of critical issues which has plagued this debate and that fosters public cynicism for this body and elected officials in general. In response to this concern, one can anticipate that proponents will argue that we should set aside such issues and just address them within implementing legislation. This has been standard throughout the debate--much as the balanced budget amendment allows us to forestall the tough votes needed to balance the budget, the distant promise of implementing legislation allows us to forestall answering the tough questions about this proposed amendment to the U.S. Constitution. Mr. President, if we are going to ask the American people to amend the Constitution in a manner as unprecedented as this amendment, I believe they have a right to know exactly what the amendment will mean to them. They should have a chance to know that now, not after it has already been locked into the Constitution in a way that we cannot easily undo. The hollow promise that all of these issues may be resolved at some unspecified point in the distant future should not be the basis on which we choose to amend the U.S. Constitution. It is more than a bit ironic that many of the same Members of this Congress who support the balanced budget amendment on the ground that Congress lacks the discipline and responsibility to balance the budget ourselves, have little trouble asking the American people to trust that same Congress to somehow properly address the myriad of uncertainties created by this amendment through implementing legislation. Mr. President, if the 105th Congress is intent on adding a balanced budget amendment to the U.S. Constitution, then we better do it correctly. We should know what it means and we should address situations like judicial review now, not later. Furthermore, by placing the intent of the Congress into the amendment, the potential result of the Presidential veto of implementing legislation is avoided. There can be little doubt that the debate over implementing legislation will be a very protracted and difficult debate involving issues of separation of powers and enforcement, among others. What if the President vetoes implementing legislation and Congress cannot muster the two-thirds necessary to override? At this point, does anyone truly believe that the courts will simply sit idly by and wait for Congress and the President to reach an accord on implementing legislation? They must, Mr. President, have a duty to enforce constitutional requirements and the fact that Congress and the Executive cannot agree on legislation does not simply and suddenly negate that duty. While section 6 of the balanced budget amendment authorizes the Congress to create implementing legislation, that authority is not exclusive and does not preclude court action. Quite simply, Mr. President, as currently configured, this amendment does nothing to stop the courts from fulfilling their historic role of interpreting and enforcing the Constitution of this Nation. While the committee report seeks to silently advocate the position that the involvement of courts should be limited, many proponents of the amendment have argued for significant judicial involvement. The U.S. Chamber of Commerce testified that there is in fact a legitimate and necessary role for the courts in maintaining the integrity of the balanced budget requirement. This position is not ahistorical as the courts have historically played a legitimate role in maintaining the protections embodied in our Constitution. As Alan B. Morrison of Public Citizen testified before the Committee on the Judiciary: Does anyone believe that the First, Fourth, Fifth, Tenth or Fourteenth Amendments, to mention a few, would be respected by our governments if the Federal Judiciary were not there to back up the words with court orders? The notion that the role of the courts would be limited because the amendment will not spawn litigation is simply unfounded. Constitutional scholars, from Robert Bork to Kathleen Sullivan have agreed that this amendment will force the issue before the courts in myriad lawsuits. Former Judge Bork argued that the potential for thousands of cases, with inconsistent results, would be before the courts. Thus, what the American people are faced with is this: An amendment which is intentionally silent on the role of the courts, the looming specter of thousands of lawsuits, and a Judiciary which has historically, and in my opinion properly, played a primary role in resolving constitutional conflicts. Given these factors, is there any question that in the absence of an express limitation the courts will become hopelessly immersed in the budgetary decisions which should be left up to Congress? When faced with such a scenario, proponents argue that the issue of standing will preclude court intervention, despite the fact that doing so suggests that the constitutional amendment is virtually inoperative because no one would be able to go into court and have it enforced. While some argue that only a handful of parties may have standing, and still others argue for a more broad interpretation, no one can argue or be sure who, in fact, will be heard by the courts. Further, the arguments on both sides of the issue must be viewed in the context of the amendment being added to the Constitution. For example, while the proponents argue that the amendment does not allow for Presidential impoundment, it is conceivable that the President, backed by the new amendment, could argue he or she not only has the power to impound appropriated funds but also a constitutionally mandated obligation to do so. If such action would occur, individuals whose retirement checks are withheld or Federal employees whose salaries have been reduced by executive fiat would surely have standing to sue. What about a suit brought by Members of Congress challenging the actions of the Executive? Testimony received from Stuart Gerson, former Acting Attorney General and proponent of the notion that judicial intervention will be narrow, who conceded some limited form of standing may exist and that judicial review is not fully foreclosed. What about the potential for taxpayers bringing lawsuits--potentially in the State courts? The simple and uncontroverted fact, Mr. President, is that we do not know the answers to these questions. In response, the proponents argue that the balanced budget amendment strikes the proper response by remaining silent. We can continue to have hypothetical debates ad infinitum, and we will never resolve, until the courts themselves do so, what will happen when these lawsuits are filed. Until such time, this is all speculation, speculation which provides an insufficient foundation in my view on which to amend the Constitution of the United States. Failure to address the issue in the context of this amendment will result in three unfortunate and unnecessary results: First, unelected judges, potentially both State and Federal, will be inserted into policymaking positions for which they have no experience. Second, such a result will constitute a radical and unwise transformation of responsibility of three branches of our democratic Government. Third, this shift in power could do incalculable damage to our system of justice itself. Not only would the practical, policy driven demands burden the courts, but the potential backlash for unpopular judiciary decisions would threaten to undermine the effectiveness of the courts and risk the independence of that important branch. One can only assume that a court forced to make a tough if constitutionally mandated budgetary decision would no doubt feel the sting not only of angry public sentiment, but also from Members of Congress, many of whom engage in this type of rhetoric even now. Mr. President, we should make the tough choices, not the courts. Finally, Mr. President, it is no secret that I oppose this amendment to the Constitution for a number of reasons, many of which I have had the chance to speak about today, and also because it is unnecessary to amend the Constitution in order to balance the budget. Many have argued this amendment will instill within the Congress the character necessary to balance the budget--I disagree. Character cannot be constitutionally mandated. It can only be revealed through accepting responsibility and making the tough choices and doing it now. The amendment before this body potentially forestalls the enactment of the balanced budget well into the next century. In doing so, it amends our fundamental charter, and it does so in a manner that creates more questions than it resolves. This is not the way to balance the budget, nor, in my opinion, is it the way to maintain the integrity of our great Constitution. While we may disagree on the utility of amending the Constitution, I hope we can at least strike agreement on the particular issue of judicial review. For the reasons I and others have outlined, it is the height of foolishness to leave something as important as this unresolved. For many of my colleagues who call themselves conservatives and criticize what they believe to be judicial excess, explicitly foreclosing judicial intervention would seem to be a very simple, appropriate, and appealing solution to what is a legitimate and potentially catastrophic problem. Mr. President, before yielding the floor back to the senior Senator from Massachusetts, let me just say we should not leave important budgetary decisions in the uncertain hands of unelected judges. We should make them ourselves. We can ensure this result by clarifying the role of the courts in this amendment. I urge my colleagues to support the Kennedy amendment, and I yield the floor. Mr. HUTCHINSON addressed the Chair.

Mr. FEINGOLD. How much time do I have remaining?

Mr. FEINGOLD. Mr. President, I thank the Senator from Rhode Island for his kind remarks and for his excellent remarks in opposition to the balanced budget amendment. The amendment I am offering today to the balanced budget amendment will ensure that this Congress will meet its stated goal of reaching a balanced budget by the year 2002. Many people do not realize that as currently drafted, Senate Joint Resolution 1 may well forestall this goal of balancing the budget by the year 2002 well into the next century. I believe reaching a balanced budget by 2002 or earlier should be our highest priority. Thus, I am offering an amendment that will shorten the time for ratification of this amendment. As was noted on the floor by our colleague from North Dakota, Senator Dorgan, a few weeks ago, even if this amendment were somehow ratified at 2:10 today, tomorrow this Nation's deficit would be no smaller than it was when the amendment was adopted. The fact that this amendment in and of itself does nothing to reduce the deficit highlights one of my principal concerns with Senate Joint Resolution 1. That concern is that pursuing a constitutional amendment approach could, counter to what everyone suggests on this issue, actually delay action on the real work of achieving a balanced budget by providing what is, in effect, political cover for inaction while the States debate the question of ratification. Under the proposal before us, even if the Congress adopted the joint resolution this year, the implementation date, the date by which we would actually be required to balance the budget, is potentially well into the next decade. Conceivably, it could be as late as the year 2006. That is right within the terms of the balanced budget amendment that is being offered. This is evident on the face of the amendment itself. Section 8 of the amendment offered in Senate Joint Resolution 1 provides that the balanced budget amendment will take effect beginning with the fiscal year 2002, or within the second fiscal year beginning after its ratification, whichever is later. So there is no certainty at all with regard to the year 2002. The report accompanying Senate Joint Resolution 1 reiterates this uncertain timeframe. It states as follows: An amendment to the Constitution forces the Government to live within its means. S.J. Res. 1 requires a balanced budget by the year 2002, or 2 years after the amendment is ratified by the States, whichever is latest. So, Mr. President, the proposal before us allows the States a full 7 years to ratify this amendment. The practical effect of this is, assuming Congress approves Senate Joint Resolution 1 by June 1 of this year, the States then have 7 years, or until the year 2004, just to ratify the amendment. If they take the full 7 years, and I think they will take more time when they begin to consider the full implications of this approach, the amendment would then not become effective--in other words, binding on Congress--until 2 years later, in the year 2006. In other words, the ratification period envisioned by Senate Joint Resolution 1 forestalls making the truly hard choices until as late as the year 2006, well, well beyond the current target of the year 2002. In fact, the only way this amendment can be effective and binding by the year 2002 is if we pass it this year and the States then ratify it within only 3 years. Because I believe, as I know do most of my colleagues, that we should balance the budget no later than the year 2002, I am offering this amendment to shorten the time for ratification from the allowed 7 years under the current amendment to 3 years, thus keeping us on track to meet the 2002 goal. I want to be candid in stating that I disagree with many of my colleagues who believe that this amendment will be promptly ratified by the States. There is already talk that some of the States that might have ratified this proposed amendment in the past may be having some second thoughts. Maybe they have been listening to the debate on the floor, about some of the very serious flaws with the way this balanced budget amendment was drafted, that has been brought forward. In fact, the longer the States have to consider this amendment and its potential ramifications and uncertainties, they will be less and less inclined to adopt it. However, when I offered this amendment in the Judiciary Committee, the proponents of the balanced budget argued against it. The distinguished chairman of the Judiciary Committee, the senior Senator from Utah, Senator Hatch, stated that he was quite confident that if the timeframe were shortened, as I am proposing, that the underlying amendment ``would still be ratified by an overwhelming number of States and probably within that 3-year time.'' That being the case, and the general agreement that the budget must be balanced no later than the year 2002, I was somewhat surprised to see my amendment defeated by the committee. If we are sincere about our efforts to achieve balance within 5 years, our actions on this amendment should reflect that goal, a goal that has been stated by the President and by the majority leader and by the Speaker of the other body. The argument has also been made we should not abandon the custom of allowing a full 7 years for ratification. However, the 7-year period for ratification has evolved as a matter of practice beginning with the 18th amendment. On each successive occasion, except the 19th amendment, Congress has a set time for ratification, and they have set that time each time at 7 years. Doing so has been upheld as appropriate by the Supreme Court as an exercise of Congress' authority to adopt reasonable timeframes for ratification of amendments. There has, no doubt, been much debate over whether or not the time for ratification may be extended. There is nothing, Mr. President, nothing, except adherence to tradition, that precludes the adoption of a shorter period of ratification, of a period less than 7 years. I respectfully suggest that the context in which the debate over the balanced budget arises counsels that it would be entirely appropriate and reasonable to depart from the 7-year standard and adopt, in this case, 3 years, as is proposed in my amendment. There can be little doubt that balancing the budget is perhaps the top priority of the Federal Government at this point. In fact, so important was the adoption of the 2002 target date that the Republican Party created and ran what was, in my opinion, a pretty effective TV ad that showed President Clinton saying that a balanced budget could be attained in 7 years, then 8 years and then 10 years. That was a pretty good ad. This ad was a dramatic portrayal of what many argued was a general unwillingness to commit to attaining balance by a specific date. I agreed with my Republican colleagues that we should set about the business of reaching balance by the year 2002, and that is why I think the amendment I am offering is appropriate and should be adopted. It assures that the target date of 2002 will not be pushed back until possibly as late as 2006. If, as the chairman of the Judiciary Committee suggested, the States adopt this Senate Joint Resolution 1 very quickly, then we should make it effective no later than 2002. If however, the States, upon learning about the uncertain consequences to the American people of this proposal, reject it, Congress should not be allowed to sit on their hands for 7 years and let the gains of the past 4 years of reducing the deficit languish or, even worse, be lost. I am sure that many proponents of this constitutional amendment will argue that even if the States take the full 7 years, there is nothing to stop the Congress from continuing to work hard to get the balance done by the 2002 date. I hope so. But I suggest that such an argument speaks not to my amendment, but to the more threshold question of why, if that is the case, do we have to amend the Constitution anyway? If the constitutional amendment is not going to require balance until the year 2006, what will force this body to do the job by the year 2002? Nothing. The heat will be off. President Clinton was clear when he said that all we need to balance the budget is our votes and his signature. I agree. We should make the tough choices sooner, not later. The report accompanying this measure argues that should this amendment be adopted and subsequently disregarded by a Congress and a President and are stalled at an impasse in budget negotiations, that that would constitute nothing less than a betrayal of public trust. In my opinion, if we allow this amendment to potentially delay balancing the budget or, in the interim, stray from the course charted over the last 4 years, that would also be, in my view, a betrayal of the public trust. We should remain always and in all respects committed to the 2002 target date. As I said before in the Judiciary Committee, this amendment is really, to put it in very simple terms, the fish-or-cut-bait amendment. You either support moving toward balance by the year 2002 or you don't. If this Nation is going to take the constitutional approach, we should set about doing so and not let possible delays over ratification provide an excuse, provide political cover for inaction and delay until as long as the year 2006. I do not question the sincerity of my colleagues in their desire to balance the budget. My amendment ensures that this will occur within the timeframe we have all agreed upon. Therefore, Mr. President, I am hopeful that all of us who support balancing the budget, whether we support this amendment or not, will embrace my amendment that will limit the ratification to 3 years and, therefore, Mr. President, keep us on track to balance by the year 2002, not the year 2006. I reserve the remainder of my time. Mr. HATCH addressed the Chair.

Mr. FEINGOLD. Mr. President, under the unanimous-consent agreement I have two amendments at the desk and I believe it is in order for me to call up the first of the amendments, amendment No. 13.

Mr. FEINGOLD. Mr. President, if I may, I would like to use that time. There were interesting remarks made by the chairman of the Judiciary Committee, my friend, Senator Hatch. I will reiterate, this is really the fish-or-cut-bait amendment. I always appreciate the eloquence of the Senator from Utah, but I notice a sort of different tone when he speaks about this amendment as opposed to the balanced budget amendment. There is sort of a lack of urgency to his tone about this. His tone suggests that whether we get this thing done by 2002 or 2006, the important thing is that we just have this balanced budget amendment on the books. That just does not seem to square with the rest of the comments I have heard from the Senator and most of the other supporters of the balanced budget amendment. There was no suggestion by the Senator from Utah that we could not limit this to 3 years. I appreciate his candor on that. That is something that is available to the Congress. It has not been done before, but when the limitation was put in the first place on the 7 years on the 18th amendment, it was my understanding that was not done before. So there is no literal constraint on that. I was also struck, Mr. President, by the Senator from Utah's statement that we really had no reason here not to adhere to convention, there is no reason not to go to 3 years or we should stick with the traditional 7 years. This entire process of balancing the budget and having an amendment to the Constitution to do it could not be more contrary to the notion of adhering to convention. We have tried to use the Constitution of this country as a very limited and narrow document for 200 years but now we are going to do accounting through the Constitution. I suggest that that is a failure to adhere to convention. The Senator from Utah also tried to describe this amendment as sort of a technicality, saying that whether it is 2002 or 2006, that is not the issue. We just need it in the Constitution. Mr. President, it flies right in the face of his excellent description of that stack of documents in front of him. The Senator from Utah is one of the taller Members of this body, if I may say so. I do not think that is in dispute. I agree that if we keep going down this road that we will be unable to see the distinguished chairman, perhaps even by the year 2002, because of these books that are piling up. But if we wait not until the year 2002 but to the year 2006, I think the former Senator from New Jersey may not be visible and we may have to get Senators who would be able to start in a starting line up in the NBA just to be able to be seen over these documents. The fact is, there is a difference between the year 2006 and the year 2002. All my amendment does, Mr. President, is guarantee that however this turns out, through a balanced budget amendment or through a bipartisan agreement to balance the budget by the year 2002, that is the date. Either way, it cannot be after that time. That is the effect of my amendment, Mr. President. I yield the floor.

Mr. FEINGOLD. I thank the Chair. I think the discussion of both the issue of tax cuts and the Social Security benefits points up how serious it is to amend the Constitution in order to balance the budget. In effect, we are not going to be able to use a surplus that has been built up to give a tax cut. If we do not worry about it now and we only worry about it when there is a surplus, the problem is it is going to be in the Constitution. We are not going to be able to just fix it. We had one experience like that in this country in prohibition, and it took quite an effort to undo it. So, again, there appears to be a major uncertainty with regard to this. The important question is do we really want to be faced in the future years with a system set forth in the Constitution that gives us no flexibility, that requires a three-fifths majority of both Houses in order to simply access and use the Social Security trust funds? The other side is not denying that is what is happening. In fact, they say that is what should have to happen--and that is what our retirees of the future may face.

Mr. FEINGOLD. Let me say I, of course, am very candid on this point, that I do not support the balanced budget amendment for a variety of reasons, but I do recognize that there are some very serious consequences for this country if we do pass it. My amendments today are relevant to the situation we would face if it does go through. I am sincere in my belief that if it does pass, the process is going to be slowed down here if it is not ratified quickly by the States. That is why I offer this amendment, because sometimes things happen that you are not happy about in the Congress and the President signs it, but you would like the negative effects to be limited. That is the spirit in which the amendment is offered.

Mr. FEINGOLD. How much time do I have remaining?

Mr. FEINGOLD. Surpluses we have accumulated.

Mr. FEINGOLD. This would relate, Mr. President, to the surplus that has been built up over several years.

Mr. FEINGOLD. Thank you, Mr. President. Let me respond to the remarks of the Senator from Arizona. He referred to the belief that we should worry about spending, what he has referred to as the ``extra money'' when we get to the point of the surplus. I guess the main thrust of my remarks is that I wasn't talking really about extra money. I am sure that could happen. I will address an example of that in a moment. What we are talking about here is a formula against money which is otherwise known as the Social Security trust fund. Are we going to start thinking about whether we are going to honor the obligations to our retirees only at the point that we have a surplus? That is what it sounds like. We get to that point, and say, ``Oh, there is a bunch of money in here for Social Security. Let's see if we can get 60 votes of the Senate to hand that money out.'' That strikes me as very different than a discussion of what we are going to do about extra money. What we are talking about here is whether we are going to basically pull the rug out from under people who paid into a system for the express purpose of providing for their retirement. There are really very few things that are more important to working people in this country. I do not think there has been a real response to my concern that the bar is being set higher for Social Security under this amendment than it is for other programs. That is because Social Security by its nature requires the buildup of a surplus in order to work. Such a program, in order to access those surplus funds, has to get three-fifths of both Houses, but other programs, the Defense Department, corporate welfare, and wasteful spending programs, need only obtain a simple majority as long as it is within the balance of the balanced budget amendment. This is very serious business. Let us finally just take the example of surplus funds that might be used for a different purpose. Let us say there is a surplus that builds up--and I think the folks on the other side of the aisle might be attracted to this--and Congress decides they expected and they would like to give the people in the country a tax cut. Maybe they decide it is not the Government's money; it is the people's money, and there is enough money in surplus to give everybody $500 of tax relief. Under this amendment as it is now drafted, that built up surplus could not be used to cut taxes unless you had 60 votes. And as strong as the Republican majority is in this body, you do not have 60 votes. You would need 60 votes to give the American people the benefits of that surplus in the form of a tax cut. That does not strike me as similar to the arguments I have heard about the urgency of tax cuts in the past, and I do believe that would be the effect of the proposed balanced budget amendment if we do not adopt the amendment I have suggested to allow a surplus to be used for other purposes as long as a simple majority is achieved in both Houses. Mr. President, I reserve the remainder of my time.

Mr. FEINGOLD. Mr. President, how much time do I have remaining?

Mr. FEINGOLD. Thank you, Mr. President. I appreciate the comments of the Senator from Arizona. I enjoy serving with him on the Judiciary Committee. I appreciate his candor. Basically, those folks who advocate the constitutional amendment have said it all here. They have now said formally that if you want to get money from the Social Security trust fund surplus in the coming years, that in fact the only way to do it is by getting a supermajority, three-fifths of both the Senate and the other body. I hope the seniors of this country are listening and realize what we are talking about here. It is incredibly difficult to get three-fifths of either body on anything. It is hard enough to get over 50 votes on anything. And when you are talking about the competition with all the special interests that are represented in this community, even with a fully funded Social Security trust fund, requiring a three-fifths majority of both Houses to fully fund Social Security benefits from the trust fund has to be one of the greatest threats to Social Security that can be imagined. Let's be clear. I do not think anyone has successfully disputed the claim that this constitutional amendment allows the use of Social Security dollars to balance the budget. That has become very clear in this debate. What this new admission tells us is that if the Congress wants to do the right thing after we have a balanced budget amendment and wants to make sure that retirees and future retirees have the money saved for them over the years, they will not be able to do it through a majority vote. A minority in either House will be able to prevent every senior citizen in this country from getting the payments they deserve and that they paid into the system for. That is what this thing does. This isn't just about seniors. Yes, it is about my generation. It is about baby boomers. Perhaps that will be the first group that will be affected by this. But it is also about future generations who certainly hope, if they are required to pay into the Social Security system, that there would be a way for them to access their retirement benefits without having to persuade three-fifths of both Houses of Congress it is a good idea. You should not have to persuade three-fifths of the Congress that it is a good idea. That is your money. That is your retirement benefit. So, basically, our argument has been conceded here. I thank the Senator for his candor. Let me note that in States where they have a surplus fund, in most of those States they do not require a supermajority in order to access the surplus money. According to the National Conference of State Legislators, as of 1995, 45 States and Puerto Rico had created such funds but only about a quarter of them required a supermajority to use the fund. Further, let's remember that States are not faced with having to fund a program like Social Security that absolutely requires a substantial buildup of savings in advance. As drafted, the balanced budget amendment puts programs like Social Security at a tremendous disadvantage by requiring a three-fifths vote to use net savings. So why don't we learn from the experience of the States? The Presiding Officer was a distinguished Governor, and he and the other former Governors in this body know that it is very important sometimes to have a projected surplus for a rainy day. Apparently, the vast majority of the States have determined in their experience--which we don't have here in Washington--that you should not require a supermajority if you need to get at that money either for purposes of emergency, or here, in this case, for the very important purpose of paying retirement benefits to people who are promised those benefits for their retirement. Mr. President, I reserve the remainder of my time. Mr. KYL addressed the Chair.

Mr. FEINGOLD. Mr. President, how much time do I have remaining?

Mr. FEINGOLD. Thank you, Mr. President. I thank the distinguished Senator from Utah, the chairman of the Judiciary Committee, for his kind remarks. I now would like to speak about an amendment that is also in the spirit of trying to make sure this balanced budget amendment works properly, in the event it goes through the Congress and is ratified by the States. Mr. President, regardless of our views on the balanced budget amendment, many of us would like us not only to balance the budget, but many of us would like us to establish a statutory balance that can act as a fiscal cushion against unexpected emergencies. In other words, we think we should never project a deficit, but that on occasion we may want to project something of a surplus to make sure there is money there in case there is an emergency or some other urgent spending priority that has to be dealt with, but only on a surplus basis. Now, Mr. President, this is not some idea I cooked up. This is what we do in Wisconsin. It is done in some form in most States. I think it would make good sense at the Federal level. Unfortunately, Mr. President, in its current form, the proposed balanced budget amendment discourages this fiscally responsible tool. In effect, it does not really allow a surplus. It certainly does not allow a surplus to be used if one arises, except by a three-fifths vote in each house, which is a very high standard. Because outlays cannot exceed receipts in any year under the balanced budget amendment, any surplus built up to address an unexpected need would be subject to the three-fifths threshold and all the potential mischief that a supermajority requirement employs. Mr. President, many of us in this body have concerns with the way we currently address emergencies and other unexpected needs as they arise. I have seen a lot of that just in the 4 years I have been here dealing with various disaster and emergency legislation. Under our present budget structure, we are forced to choose between adding to the deficit and scrambling to find spending cuts or tax increases to offset the unexpected need. I think, and we have certainly seen this in Wisconsin, a far more fiscally responsible approach would be to appropriate a dedicated emergency fund or require a positive ending balance on which we could draw as the need arises. By budgeting for an emergency in advance, this approach would avoid deficit funding, but it would also decouple the potentially desperate need for emergency assistance from the hurried approach of emergency offsets. So a surplus fund or statutory ending balance would also address some of the concerns that have been raised by Secretary Rubin and others who have spoken about the important role that automatic economic stabilizers play in the health of the economy. Our committee chairman has cited Fred Bergsten, a noted economist, during the committee's markup. This is what our distinguished chairman said in citing Mr. Bergsten: ``* * * a better way to go is to shoot for a yearly surplus and let that take care of truly automatic fluctuations, if there are any.'' Mr. President, I agree with our chairman. I think balancing the budget and building up a reasonable surplus during good times to help cushion economic downturns is a better way to go. However, as I just noted, Mr. President, under the present draft, we could not establish and use such a surplus fund without violating the constitutional amendment mandate except through achieving a three-fifths majority in each house. Mr. President, you know that threshold presents serious problems, as many of our colleagues have noted during the course of this debate. The supermajority requirement empowers a minority to hold up a must-pass measure unless their fiscal or policy demands have been met. As some have noted, this perhaps mild form of extortion might even take the form of insisting on additional deficit spending, precisely the opposite direction intended by the supporters of the constitutional amendment. Remember, this balanced budget amendment does not guarantee that we have deficit spending, it just requires a supermajority to do so. Mr. President, if allowing a surplus fund might be fiscally prudent to handle the unexpected natural disaster or military conflict, I think this surplus opportunity becomes absolutely essential if we hope to fund the bulges in Social Security benefits that will occur when the baby boomers retire. In just a few years, we will begin to have to pay back the funds we have borrowed from the Social Security trust fund. Before that happens, Mr. President, we have to somehow rid ourselves of the addiction to those trust fund surpluses. That is how we have been masking how great our deficit is in the past, and we have to begin to balance the budget without those surpluses. That means, Mr. President, that the unified budget will have to be in surplus, but even then, if we build up a genuine surplus in unified budget to pay future retirees, the restrictions of the proposed balanced budget amendment will prevent us from using it unless we can muster a three-fifths vote of support in both bodies. Mr. President, right now, the Social Security trust fund is receiving more than it is paying out. Those surpluses will continue to build until the baby boomers retire, and we need to tap into those savings at that point to offset the bulge in Social Security beneficiaries. Mr. President, many have said this, but we have abused the Social Security surpluses by using them to mask part of our budget deficit. I don't single out one party or one branch of Government, because it has sort of been standard operating procedure for nearly 30 years. Mr. President, many of us want to stop that abuse and to work to get the budget off the Social Security surplus addiction so the funds are there for retirees as promised. Mr. President, again, the current balanced budget amendment draft will not let us do that. When the baby boomer retirees begin to collect Social Security and the surpluses turn negative, the balanced budget amendment does not permit us to draw upon any savings we can build up between now and then. Now, one approach is to explicitly exempt Social Security from the balanced budget amendment by putting the Social Security trust fund out of reach. We could then be sure that they will be available to draw down when needed. Some who oppose this approach argue that we can do so by statute. They note that nothing in the current draft would prevent us from taking Social Security off budget by law, as we do now, and achieve genuine balance outside of Social Security. Unfortunately, though, Mr. President, even if the rest of the budget is in true balance, the current version of the amendment still prevents the use of the trust fund savings to pay Social Security benefits, unless the rest of the budget is cut or taxes are increased. Mr. President, the current balanced budget draft requires cash flow to be balanced. It expressly prohibits the kind of buildup in anticipation of need that is the underpinning of the Social Security system itself. To put it in more simple terms, it is exactly like telling parents when the time comes to pay the cost of their child's education, they will not be able to use any of the savings they have built up, but will have to pay for the cost of their child's college education out of whatever their income is at that time--not one dime more. I can tell you, as a parent of four teenagers, that would be a very troubling prospect indeed. Mr. President, my amendment would allow us to use the savings we must build up in advance of the coming retirement bulge. Let me be clear about this. Although this is the way it is done in my home State of Wisconsin--by statute--my amendment does not require us to have a surplus. My amendment does not require us to fulfill our commitment to future retirees. Yes, Congress could still duck that commitment. But at least, Mr. President, if my amendment is adopted, Congress would be able to do the right thing by Social Security beneficiaries. Without it--if the Constitution is amended as it is currently drafted--Congress will have to find a dollar in budget cuts or tax increases for every dollar Social Security outlays exceed receipts. Mr. President, despite all the rhetoric about how Social Security will do quite well in what I like to call the ``brave new world of the balanced budget amendment,'' who can doubt that Social Security benefits will quickly go on the chopping block, if we ever get to that eventuality? Mr. President, this is a fundamental inequity that is built into the proposed constitutional amendment. Programs like Social Security, which require a buildup of savings to work, have to muster a three-fifths majority from both bodies. But the defense budget, special interest spending done through the Tax Code, and corporate welfare, all get a free pass. They don't have to go through this. So, Mr. President, to conclude, even if my amendment is adopted, it will be difficult for Social Security to compete with these other powerful interests. But at least by allowing for a surplus, my amendment gives it a fighting chance. I reserve the balance of my time. Mr. KYL addressed the Chair.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, today I would like to recognize the achievement of three young women from the Milwaukee Morse Middle School. Together, Kayla Tepps, Alex Yale, and Carrie Schaffner, formed the winning team in the Regional Future Cities Competition sponsored by National Engineer's Week. They created a city plan using sophisticated computer simulation software that allowed them to analyze and measure effects of their designs on a living, changing city. The students then created a 3-dimensional model of their city to present in the competition along with their data. I commend the team's members on the quality and character of their hard work. I am impressed with the active role these students have taken in their education. This sort of initiative leads to citizens who take an active role in their communities. Whether that role be in the political, social, or economic arena, these young women are an example of the potential that our country's youth hold to come up with new ways, better ways, to solve our problems. These three Wisconsinites are a example to their peers that women can and do succeed in pursuing subjects and careers currently dominated by men. For this I also commend their teacher, Dave Mongin, for taking an active role in his student's careers, and their engineer-mentor, Eyad Mizian, for taking an active role in his community. They truly represent the kind of leadership we need more of in today's schools. I offer these students my sincere congratulations, I am proud that they represent the State of Wisconsin.

Mr. FEINGOLD

Mr. FEINGOLD. Mr. President, I ask unanimous consent that further reading of the amendments be dispensed with.