John Johnston

Mr. JOHNSTON

Mr. JOHNSTON. Then let whoever wishes answer it. I think it is a very serious question. And I do not think it is answered by the terms of the amendment or by the legislative history here. After all, we have a Budget Control and Impoundment Act, but this is the Constitution we are expounding. I think it is at least arguable, if not persuasive, that this constitutional amendment would overrule that Budget Control and Impoundment Act and would return us to the days of President Nixon where he felt that he had the inherent power to impound. Indeed, he might feel as if he had the inherent duty to impound. I think we better find the answer to that and, if it is not clear under the amendment, make it clear. I might say to my friend from California that I propose later on to make it clear what the authority of the courts is by an amendment which I am working on, and I would like to also make it clear what the power of the President is. These are fundamental constitutional questions with overriding importance to the country, and before we pass a constitutional amendment we need to know whether it is enforceable and, if so, by whom. So I hope the Senator will work with us and will withhold some judgment. Assuming she can get her Social Security issue successfully solved, I hope she will also understand the gravity of the question of enforceability and the absolute necessity to clear up what is an overhanging ambiguity in this amendment. It is an ambiguity so great that it is almost impossible to fly through that fog, and I hope she will work with us in trying to get that cleared up.

Mr. JOHNSTON. Mr. President, we had a discussion yesterday on the floor about the authority of the courts with respect to a balanced budget amendment, whether they would have authority to enforce that, and the distinguished Senator, Senator Hatch, responded to that in part. I will have more to say about that later. Mr. President, my question today has to do with the authority of the President with respect to the balanced budget amendment. I wonder if the Senator from California can tell me when the President, on Inauguration Day, raises his hand and swears to uphold the Constitution of the United States, which at that time, let us assume, includes this amendment, my question is, what authority or what duty does the President have under this amendment to balance the budget if the Congress, in fact, has not balanced that budget?

Mr. JOHNSTON. Yes. The question I had, Mr. President, was to what extent does the President of the United States have a duty or authority under the Constitution, which he is sworn to uphold, to balance this budget if the Congress has failed to do so?

Mr. JOHNSTON

Mr. JOHNSTON. Political doctrine? The Senator remembers the one-man- one-vote case, Baker versus Carr?

Mr. JOHNSTON. Would not my friend agree with me that this is at least ambiguous----

Mr. JOHNSTON. Would not my friend agree----

Mr. JOHNSTON. Why do you not say so? It is very easy, very sparing words.

Mr. JOHNSTON. Is that the clear intent of the authors, that the courts may not enforce it?

Mr. JOHNSTON. My friend would agree that the courts are not prohibited from enforcing this amendment, and that in every other amendment the Court has jurisdiction to enforce, and they do get involved in every other amendment, do they not?

Mr. JOHNSTON. May I ask my dear friend. Section 6 says, Congress shall enforce and implement this by appropriate legislation. It does not say the courts lack jurisdiction to enforce the amendment. Every other amendment of the Constitution, my friend would agree, can be enforced by the courts, can they not?

Mr. JOHNSTON. Does it say the courts may not enforce?

Mr. JOHNSTON. Under the 14th amendment, courts run prisons, courts run schools, courts have even required taxes. What was the name of the case where the courts required taxes to equalize taxes between school districts in a State? They do that all the time. Section 5 of the 14th amendment says that the Congress may implement this amendment by appropriate legislation. Same language as we have here. What is the difference?

Mr. JOHNSTON. Mr. President, 3 weeks ago I rose on the floor of this Senate to announce I would not be running for reelection. Today I rise, with the luxury of not having to face another election to the U.S. Senate, to oppose this amendment in its present form. I do so, first of all, because I believe this amendment violates the social contract. The social contract was a concept formed in the 18th century by French philosophers, principally Jean Jacques Rousseau, who came up with this concept which in turn inspired Thomas Jefferson and the people who wrote the Declaration of Independence and the Constitution. It was founded on the thought that there should be government by consent of the governed. A social contract where the people, understanding the issues, gave to their elected officials the right to make decisions on their behalf. Why does this violate the social contract? Because we have here a pig in a poke in which the American public are asked, in effect, to trust us and we or the courts will later tell you what the program is. A balanced budget is not self-defining. A balanced budget can be balanced in many, many ways, some of Alan Greenspan, the chairman of the Fed, was before the Budget Committee just last week. I asked him about various ways that the budget could be balanced. Some, he said, would be bad for the economy. Some would be good for the economy. And the fact of the matter is, we do not know how this budget would be balanced. It could be balanced through taxes, and I wonder how many of my colleagues on the other side of the aisle would sit still for a budget balanced solely through taxes? I would guess they would all oppose it. The American people would oppose it. I wonder how many on my side of the aisle would like a budget balanced by cuts in Social Security and Medicare; in other words, senior citizens programs. I suspect not that many. One reason it violates the social contract is that people in our country do not understand the budget and how it is made up. On Wednesday, November 16, the New York Times printed an article which in turn reported the results of an exit poll done by Harvard University and the Kaiser Family Foundation. In this poll, people were asked, ``What is the biggest program in the Federal budget?'' Twenty- seven percent of the respondents said foreign aid; 19 percent said welfare. In other words, almost half of the people said that two of the really smaller programs make up the biggest part of the Federal budget. The fact of the matter is foreign aid is less than 1 percent of the budget. AFDC--otherwise called welfare--is also only little more than 1 percent of the budget. As this article goes on to say, quoting from the article, it says: * * * the Harvard polling expert who helped conduct the survey said that unless policymakers tried to educate people on the budget we are going to have a heck of a time having a national debate on the deficit. Here we are. There has been very little done to educate the public on what we are really talking about. The public thinks, I believe--and this poll indicates--that all you have to do is cut welfare and foreign aid and maybe waste, fraud, and abuse, and you have the problem solved. You do not have to deal with taxes, you do not have to deal with Medicare, you do not have to deal with Medicaid--all of those things. What would the American people do when faced with the facts? Many of us are trying very hard to get those facts out to the American people. I do not believe they are going to be as enthusiastic about this amendment once those facts are trotted out. Indeed, Representative Armey, the majority leader in the House, said, ``We cannot tell the American people about how we are going to balance this budget. Their knees would buckle.'' Can you imagine, Mr. President, the cynicism of saying that if we have a social contract, if we have the facts known by the American people, they would be against this matter, and therefore we cannot tell them? It is like a candidate running for office who says, ``Vote for me now, and I will tell you what my platform is later.'' Is there anything more fundamental to the choices of America, to the future of America, than who pays for the balanced budget? Who pays? Mr. President, there are vast differences in who pays. Just in the last Congress this Senate went a long way toward reducing that deficit. In fact, both under the Bush and under the Clinton programs the budget deficit as a percent of the gross national product is coming down from 5 to 2.3 percent, almost half of the deficit as a percent of gross national product, which is the appropriate measure to use. The deficit has come down by that much. But what a controversial matter that was in the last Congress. In fact, not one single Republican voted for the Clinton program because it involved taxes. It is, in fact, Mr. President, a fundamental choice. And the American people ought to be involved in that fundamental choice. How is it going to be done? How is it going to be balanced? Well, the Treasury Department was asked by the chairman of the National Governors Association to do a State-by-State breakdown making assumptions that the Contract With America would be passed and asked what the effect on each State would be. I can tell you, Mr. President, for my State of Louisiana, it showed that we were more heavily impacted than any other State. They concluded that we would have $2.1 billion per year in lost funding for Medicaid, $129 million per year in lost highway trust funds, $66 million per year in lost welfare--AFDC, that is--$444 million per year in lost funding for education, job training, the environment, and housing and other areas, and that, ``Louisiana would have to increase State taxes by 38.2 percent across the board to make up for the loss in grants.'' That is what the Treasury Department concluded. They were not asked to make that judgment for my State of Louisiana but for all States. I invite all Senators to look at the State-by-State breakdown and the assumptions that were made. Some of my colleagues in the House from my State when faced with these figures said, ``Oh, that is scare talk. That is scare talk. It is not to be.'' Mr. President, it involves assumptions, no doubt, and they may not be exactly accurate. I do not claim that they are exactly accurate. I do say that they are mathematically correct, that they assume that you are going to get to a balanced budget, and that you use today's figures about the economy. I can tell you this, Mr. President. No one else has put out any other alternative. So if this is not correct, I say to my colleagues who criticize the Treasury study, tell us what your program is. That is why we are so anxious to find out what that program is. I confidently predict when the word gets out there across America as to what this is going to mean, it is not only going to not be popular, but it is going to be wildly unpopular. I well remember the catastrophic health care debate around here where, to solve a problem, the American Association of Retired Persons, AARP, proposed a program and we adopted it in this Senate, a highly subsidized program for senior citizens and catastrophic health care under which the richest American would have to pay a maximum of $600 a year. We passed it, I think, unanimously, or maybe there were one or two votes against it; not many. And within a year, because of the outcry across America, both Houses repealed it in record time. That was $600. Mr. President, when senior citizens see the size of Medicare cuts that are going to be required under this, they are going to rise up as one. Social Security is not off the table here. Social Security is right there on the table. It is right there in the cross hairs. What everyone is asking by voting for the balanced budget amendment is to say, make us do it. We really want to cut Social Security and we want to cut Medicare. Make us do it so we can blame it on somebody else, the courts or whoever. Mr. President, we are told here today that there is some language in this amendment that prevents the courts from enforcing this amendment. I can not find that language. Mr. President, it permits the Congress to implement this amendment by appropriate legislation, which is the same language you have in the 14th amendment. I believe that same language is in the 15th amendment as well. Congress, as far as I can recall, never used that under the 14th amendment. It is permissive and it does not make any requirement. But we are told that there are two bases on which the Court would not get into this. First is that it was a political question. Mr. President, I think the Court has long since abandoned that political question. You remember the one-man-one-vote decision. That was, for many, many years a political question in this country. The Supreme Court refused to take jurisdiction, and they finally did take jurisdiction and ruled for one- man-one-vote. I think the proclivity of the Supreme Court to avoid political questions has long since left, and I think properly so. Second, we are told there would be no standing to sue under this. If that is the intent of Congress, it is very easy to deprive anyone from access to the Court. But that is not the intent here, Mr. President. It is very plain. It is a constitutional amendment. There is a Federal statute giving jurisdiction to courts to raise constitutional questions. And surely somebody has a right to raise a constitutional question. We have that under the 14th amendment. Why would you not have it under this? And if there is no access to the Court, who is to enforce? If what we are after is some requirement from some outside force to make us do what we would can? Then where is the compulsion? Then what is the point? We can do this right now, Mr. President. If this amendment does not mean that the courts have jurisdiction to enforce it, it does not mean anything more than the present law says, because the law now says you must have a balanced budget. Mr. President, I believe that this also violates the principle of majority rule. By requiring 60 votes to have an unbalanced budget, you give enormous power to the minority. This is an old ploy, Mr. President. We have it in our State, where in order to raise taxes you must have, I believe, a two-thirds vote. And what happens when you have to have taxes? That one-third of holdouts have a shopping list which is always long, usually very expensive and, in the end, they finally get the votes because they have to have the revenues. But in the end, it amounts to bad policy. Not only does it violate the principle of majority rule, but it calls for making deals with the holdouts. Mr. President, if we get into the shape where you have to do it, where you have to have the 60 votes and everybody recognizes it, you will be able to get it done, but probably at great cost to the taxpayer, both in money and in bad policy. Mr. President, if, as I contend, the courts very plainly have jurisdiction here to order up a balanced budget, then how are they going to do it? The occupant of the chair is a lawyer of some distinction, and I know he has dealt with constitutional questions before. I believe what the Court would do is to order an income tax surcharge and say the Congress has X amount of time within which to come up with an alternative to balance the budget; otherwise, the surcharge will go into effect. Why do I believe that? Because the Court does not have access to the huge amount of staff it would take to determine the effect of budget cuts. It takes tremendous sophistication, computer models, and knowledge, to know what the spend- out rates of various cuts would be, how they impact upon the public in general, and how they impact upon the budget. I do not believe the Court is going to get in there and say, well, we need to cut the National Park Service by 5 percent; we are going to exempt the IRS because we need those people; we are going to cut Medicare by X percent. One thing we found out about health care, this huge, growing part of the budget, is how complicated it is. The Court is not going to deal with those kinds of cuts. Do you think the Court is going to get in and say we need to cancel the remaining part of the B-2 bomber program, and we are going to allow the F-l6 to go forward, and we are going to have one less division, and we are going to close this many bases? They are not going to do that, Mr. President. They do not know how to do that. If they took 2 years within which to make a decision, they could never come up with that judgment. So what are they really going to do? If they conclude, as I believe they would, that you cannot get the 60 votes and that you have violated the balanced budget, the simple thing is an income tax surcharge. You do not have to know about the income tax program. You do not have to be an expert on that. You simply say a surcharge. All of the rules that are in effect right now, you let them go on, and you put a surcharge equal to the amount of that deficit. It may be a huge one; it may be a punishing kind of thing. But they would then lob the ball right back into the Congress. I sincerely believe, Mr. President, that is what the Court would do. I have thought about this thing a lot. That is what I would do if I were on the Court, because there is no other alternative. If you say the Court is not going to get involved in it, again, Mr. President, what is the point? If the Court is not going to enforce it, then it is up to the Congress--well, it is up to the Congress right now. So what does this add? I say to those who would argue with me that the Court has no jurisdiction; why do you not put that in the amendment? I can give you the language for it off the top of my head within about 10 words: No court shall have jurisdiction to order the budget to be balanced. That is all we have to say if that is what we mean. And if it is so fundamental, why do we not say it? Because that is not what it means? Of course, it means that the Court can enforce it. If we do not know the answer to that fundamental question, then I say this is the most ambiguous constitutional amendment, perhaps, we have ever had, and there has been a lot of ambiguity. This particular ambiguity would be very easy to clear up if in fact it is ambiguous, and I believe it is. Mr. President, virtually everyone is for the balanced budget, but there are vast differences in how to do it, and there are also vast differences in the timing of when it is done. All economists--a conservative economist, a liberal economist, and all the rest--will agree on one thing, and that is that you ought to take bigger bites out of the deficit when times are good and lesser bites out of the deficit when times are bad. In other words, as the Federal Reserve Board is meeting today and tomorrow, talking about raising interest rates, why are they talking about raising interest rates and why have they raised them over these last few months? Very simple. Because they believe the economy is overheating. They point out that unemployment rates are at not historic lows, but very low rates. They are worried that that low unemployment will spur inflation in wages and in commodity prices. So the rumor is that they are going to raise interest rates another half, maybe three-quarters of a point. This would be a good time to take some big bites, therefore, out of the deficit. When you get into a recession, Mr. President, it is not the time to take big bites out of the deficit. And everybody, virtually all economists, agree on that. But this amendment puts you irrevocably, indelibly, inexorably on this glidepath--some would call it a crash path--to a balanced budget, without knowing how in the world we are going to do it. And it may be, Mr. President, that you will have maybe 50 Senators who want to raise taxes, maybe 50 Senators who want to cut Medicare, maybe 40 Senators who want to cut Social Security. You may not be able to agree, and you lateral that ball right over to the Supreme Court, who will decide it for us in the way that I believe they would, which is with an income tax surcharge. Mr. President, the Congress can, in fact, balance the budget right now or put us on the glidepath. We can do it under Gramm-Rudman and set forth a spending glidepath that is enforceable, that calls for sequestration if we violate it, that calls for 60-vote points of order if we violate that. That is really all we have to do. I mean, that is an elaborate procedure which, once agreed upon, is much more clear, much less ambiguous than a constitutional amendment would be, because you know exactly how it is to be enforced; to be enforced by sequestration, which exempts certain programs, and does not exempt other programs. And it is self-enforcing. The whole mechanism is enforcing. Now, why would we not do that? Well, it may be, Mr. President, because, as Mr. Armey says, the public's knees would buckle if they knew the truth--the public's knees would buckle if they knew the truth. What an incredible statement for this Congress to make; that if the public knew how we were going to do this thing, they would not like it and they would not be for it. What happened to that old axiom of government with the consent of the governed? Oh, we are told that the Congress has not done anything. Mr. President, where have my colleagues been these last 2 or 3 years, when we brought the deficit down from 5 percent to 2.3 percent of gross national product? Did we think we achieved that without any pain or any disagreement here? Mr. President, we achieved a lot in terms of reducing that deficit. It can be done. It is hard to do, of course. But it can be done. And the American people were involved in that. Maybe they did not like the way it was done. I did not like the way it was done. I had a different idea about how it should be done. But the majority ruled and it was done, and it can be done now without this constitutional amendment. down but that forecasts show that, in the future, the deficit is due to go up rapidly again because of the projected increases in medical programs, particularly Medicare and Medicaid. That means that we in the Congress are going to have to take rather heroic steps in order just to stay even with the board; in other words, to keep the deficit from going up, much less balancing the budget, we are going to have to take rather heroic steps. Now, how difficult will those steps be? I do not know, Mr. President. I suspect they will be rather difficult. But I can tell you this: that those steps, combined with an automatic deficit reduction down to a zero constitutional amendment, which cannot be avoided except by supermajorities, at least if we go into a recession or slowdown, might make it virtually impossible for us to act. In other words, we do not know what we are in for in terms of the coping with this Medicare problem. We just do not know. The difficulties we had in the last Congress in trying to figure out how to deal with the medical crisis in this country and how to project costs and how to project savings from certain steps and certain legislation were terribly difficult. No one could ever agree. Some said it was going to cost more; some said it was going to cost less. But we are going to have to not only do that to conquer that question of turning around the increase in Medicare spending, but we are going to have to balance the budget at the same time, no matter what. That is why, Mr. President, taking out the flexibility that this Congress ordinarily has to act by majority vote is a very, very bad idea. The timing is simply bad. The political timing is good. You know, the American people have finally woke up to the balanced budget issue. They seemed to be unaware of it during the 1980's when the debt was going from a little over $900 billion to almost $4 trillion at the start of this administration. They seemed to be relatively unaware of it at that time. Now they have become aware, since it has come down from 5 percent of GNP down to 3.2 percent of GNP by the end of this year; now they are aware of it. It does not mean that it is not still a problem. But it does mean to say that political polls, as to who is for and who is against a balanced budget, are ephemeral gauges that go up and down and do not take into account that the American people do not yet know how it is going to be done. Mr. President, we ought to involve the American people in this biggest of all social contracts. We have heard this term ``Contract With America.'' It was an ingenious political device. I stand in admiration of it. Some parts of it I support. But it was an ingenious political device which conjured up the idea that the Congress and the American public ought to have an agenda, that they ought to vote on that agenda by electing their representatives, vote for what they get and get what they vote for. And that was brilliant. Mr. President, this is a bigger contract with America than that which is contained in the so-called Contract With America, because it involves the future of everyone. It is a question of who pays. It can be done by means testing and maybe that ought to be the way we ought to do it. Maybe we ought to say that everybody who makes over X dollars has to pay twice as much for their Medicare. Maybe we ought to say if you make over $50,000 a year, you do not get Social Security, whatever the formula is. Means testing is clearly one of those ways to do it. It has been discussed a lot. I wonder how many people out there in America, how many senior citizens, have thought about how much means testing has to be done. And remember catastrophic health care and the reaction to that. Or it could mean taxes. And we know how the American public feels about taxes. Or defense. You know, the American public says, ``Gosh, we need a strong national defense.'' Or we could eliminate some of these programs. But I suspect, Mr. President, that the American public is in for a rude awakening when they find out how little money you can get out of the welfare program. I think we ought to have welfare reform. But virtually everything that is talked about with welfare reform costs more money. Orphanages? Mr. President, what do you think orphanages would cost? Right now, you know, the babies stay at home with mama and you give mama a check. But if you had to build the orphanage, acquire the property and build the orphanage, get the staff to operate the orphanage, and not only do that but take care 24 hours a day of these kids in loco parentis, as we say, the cost of that, Mr. President, would be--maybe it would not be as expensive as Boys Town; I understand Boys Town costs $70,000 or $80,000 a year. They have a lot of special counseling there. But if we have just the garden variety orphanage, it will cost a lot more than welfare does. Job training, I am for it. But anybody who thinks we can have job training and then have day care for the mothers--and we are going to be a lot cheaper on that than the present welfare program--has not taken out the calculator to figure this thing out. There is not a lot to be saved in welfare. We need to reform it, but there is not a lot to be saved. There is certainly not a lot to be saved in foreign aid. I want to see my colleagues who are for cutting aid to some of our great friends out there--I am not--countries like Israel, which are so strong in promoting the American interests all throughout the Middle East. I am not for cutting that program. It is less than 1 percent of the budget. Mr. President, in conclusion, and I apologize for speaking so long, but it is an important issue. This is an issue where we need a Contract With America. This is an issue where we need a social contract. We need a major debate where the American public is told about how this will be done, at least what is the approach; maybe not how every dollar over a period of 7 years is going to be cut in every single program, but how is it going to be done in approach. Is it going to be a means testing approach? If so, what is that going to mean to those senior citizens out there? Is it going to be cuts in Medicare? For example, copayments? And how big would those copayments have to be? How much do we pay each time we go to a doctor? Should senior citizens not know that? Should they not know that, Mr. President? What will happen if they wake up--all the Senators have voted for the balanced budget amendment, and then I can see them. It will be just like in catastrophic health care. They will call up and say, ``We did not know that that is what was meant. We did not know, Senator, that is what you had it mind.'' I remember those calls on catastrophic health care. Now, I think the American public ought to be entitled to know what we are going to do, to know what the plan is and involve them in the debate. We do not have to rush into this thing. It is one of the most important debates we have ever had. Involve them in that debate. Tell them at least the broad outlines of what we will do, what will it cost Mr. or Mrs. or Ms. Senior Citizen. Do you know what I really believe? I really believe the senior citizens are right in the cross hairs. They are in the scope. They are in the sights. And get ready, senior, because you will have to pay for this thing. To a very large extent, it is our senior citizens who will pay for the balanced budget amendment. Medicare is going to be No. 1. Mr. President, we made cuts in Medicare in the past. They have not really hurt. Right now the Government pays about 70 percent of the doctor's bill or the hospital bill on the average on Medicare. But those doctors and the hospitals had accepted that 70 percent. What do they do? They pass it on to the other people. ``Cost-shifting'' it is called. Passed on. Passed on to those who have insurance and to those who can pay. Everybody knows that that is so. There are, however, limits to that cost shifting, I suspect, and I am told by experts that we are right at the limit on cost shifting. In other words, we start cutting Medicare just on these block cuts more than we have now, and we will have doctors who will refuse to treat, hospitals who will refuse to accept patients, and we are going to have to make the changes in Medicare. Copayments, increases in premiums, or rationing of medical care, or other means. we need a fundamental reexamination of Medicare. What did he mean? What did he mean, Mr. President? We do not know. But I think Medicare is important enough to the American people that we should be told that fundamental thing before we go in and adopt a balanced budget amendment which may require that fundamental restructuring of Medicare in such a way that the seniors are going to have to pay for this balanced budget amendment. We are not talking about small decreases in expenditures. We are talking about $1.5 trillion between now and the year 2002. We are talking about cuts so huge that it would require a fundamental restructuring in Medicare, probably a fundamental restructuring in Social Security if those things are on the table. What else is there? What else is there? Mr. President, I oppose this balanced budget amendment, certainly in the form that it is now. It is a ticket to the Supreme Court with an order for an income tax surcharge. It is an invitation for the senior citizens of this country to pay for it with huge, massive cuts in Medicare, probably Social Security. My State of Louisiana--according to the Treasury Department, is going to be impacted more than anybody. They say it would require a tax increase of 38.2 percent across the board. How many people in my State, if this is true, would be for this 38.2-percent tax increase? Maybe that is not so. Well, if they did not make the right assumptions, tell Members what the assumptions are. Tell Members what those assumptions are. Then, if I know how it will be done and we sort of have that debate out there with our people, I could well be for it, because everyone, including me, is certainly for the balanced budget in concept. But not this way. Not ``vote for me now'' and I will tell you what the platform is later. Not putting at risk the fundamental future of senior citizens in these fundamental programs that we have in this country. It is the wrong way to do it, Mr. President. I hope as this debate proceeds we will get some of these answers. How are we going to do it? Does the court have jurisdiction? Does anybody have standing? Just what is the plan? That is what we need in order to have a contract with America and to have a social contract with the people of this country. I yield the floor.

Mr. JOHNSTON. Mr. President, I yield for a unanimous-consent request to the Senator from Utah.

Mr. JOHNSTON. The courts would have jurisdiction to enforce the amendment?

Mr. JOHNSTON. Every other amendment is enforceable.

Mr. JOHNSTON. Let me ask, because it is at least as fundamental a question as there is here, do we agree, if I may get involved with the distinguished floor manager--

Mr. JOHNSTON. Would the Senator yield at that point?

Mr. JOHNSTON. Mr. President, I will yield for the purpose of Senator Simon asking a question.

Mr. JOHNSTON. Why do you not say it? I do not believe----

Mr. JOHNSTON. Is not that language about the Congress acting to enforce the amendment by appropriate legislation identical to the language found in section 5 of the 14th amendment, and that has not prohibited the courts from issuing literally thousands upon thousands of orders under the 14th amendment, so why would it under this amendment?

Mr. JOHNSTON. Will the Senator yield at that point?

Mr. JOHNSTON. Mr. President, I did not want to cut off the Senator from Illinois. I thought she had finished her speech. Did she?

Mr. JOHNSTON. I think it is probable. I think it is clear.

Mr. JOHNSTON. Mr. President, my friend has outlined the emerging state of the law on the question of standing to sue. The issue of standing to sue goes all across the law and provokes about as many decisions as any area of the law that I know about. Suffice it to say it is emerging, dynamic, and changeable. And--as is the question of a political question. In Reynolds versus Sims, and Baker versus Carr, formerly political questions, they changed on that issue. There they were enforcing the 14th amendment, which said nothing about voting rights and which traditionally had been left to the States. So this was a change. This amendment specifically deals with a question of unbalanced budgets. My friend says no taxpayer is particularly harmed by this. You should have heard the eloquent speech--as maybe he did--of my colleague from Illinois, who talked about her child and future deficits. You would think, to hear that, it is the most fundamental issue for our progeny and our families that there is. And I believe the Court would find that standing to sue. What I find to be objectionable, among other things, I say to my friend, is this is deliberately ambiguous. It is deliberately ambiguous because there are those Senators who say the Court has to have the final club in the closet otherwise this does not mean anything. And there are others who say we do not want to get the Court mixed up in this because we do not want the Court to order taxes. So we leave it deliberately vague, ambiguous, to be decided by some future Supreme Court. I believe that is the height of irresponsibility. It is not a difficult task from the standpoint of statutory draftsmanship. We could literally draft it here within 5 minutes on the floor of the Senate. I would say ``No court shall have jurisdiction to enforce this amendment.'' That is simple, straightforward and unambiguous. If that is what we mean it ought to be said. It is not one of those difficult things to define like ``outlays and expenditures and receipts.'' That is what I read from section 6 here, is that the Congress shall enforce and may-- what does it say--may define outlays and receipts? What does it say? ``Estimates of outlays and receipts,'' define those. That is because they are not self-defining. But a jurisdiction of a court is fundamental and it is the Congress who needs to make that choice. Is it an enforceable amendment or not an enforceable amendment? How can we be debating something as fundamental as a balanced budget amendment and not know whether the Court can enforce it or not? How could we do that? That boggles the mind. That is the question. Can they enforce and how can they enforce? That is the question. We do not answer it.