Rick Santorum

Mr. SANTORUM

Mr. SANTORUM. If we compare it to the language in the amendment it parallels, my opinion would be no.

Mr. SANTORUM. The Vice President is a Member of the Senate.

Mr. SANTORUM. If the Senator will yield, that is why it is very important to have committee reports and implementing legislation that is called for in the article; that we have implementing legislation to clear up these kinds of doubts that may exist with respect to specific provisions of the act. So I suggest to the Senator that a lot of this debate is useful. In fact, it is illuminating. I find it to be such, not just on this point, but on many others. But what is important to note is the ability of this Senate to come back, as it will, and implement this act and further specify the meanings of how this constitutional amendment will be implemented.

Mr. SANTORUM. By the way, I would further read that the meaning in the second sentence, the second use, is also the same, that in every fiscal year the Congress would have to extend this waiver.

Mr. SANTORUM. Not that I am aware. I will have someone check.

Mr. SANTORUM. My view is that the committee report, having had the time to study it longer than I, is probably the accurate view.

Mr. SANTORUM. I would answer the question----

Mr. SANTORUM

Mr. SANTORUM. The Senator is suggesting the Congress cannot limit suits? That is not within our ability to redress to the courts----

Mr. SANTORUM. If we did that in the implementing legislation, to limit them to declaratory judgment, is the Senator suggesting the courts can ignore that?

Mr. SANTORUM. I can read to the Senator, if he would like, example after example--I would like to submit it for the Record--of where the Congress has specifically limited the powers of the courts dealing with these kinds of matters.

Mr. SANTORUM. Does not----

Mr. SANTORUM. Mr. President, I would like to yield myself some time to address this issue. Section 6 of the constitutional amendment which we are discussing, the balanced budget amendment, specifically states that Congress has the ability to pass implementing legislation. In that legislation we can limit the authority of the courts----

Mr. SANTORUM. I did not understand, what would be overridden by the courts, our implementing legislation?

Mr. SANTORUM. To address this question.

Mr. SANTORUM. Even assuming the worst case, assuming that the sky will fall down----

Mr. SANTORUM. We have the ability here in this Chamber and across the aisle to deal with this issue, and in fact I suspect that as we do pass implementing legislation, which I am sure we will, we will be back on this floor and I think that is the arena for this discussion as to what the appropriate remedies should be.

Mr. SANTORUM. I will be happy to yield for a question.

Mr. SANTORUM. I promised the Senator from Illinois I would yield him some time, so I will yield to the Senator from Illinois 5 minutes.

Mr. SANTORUM. Mr. President, I think that is a discussion that we need to have. I think that is a discussion that has to be talked about far beyond the few hours of debate we have here on the Senate floor. We need to look at whether we should limit it to declaratory judgment or whether we should grant injunctive relief. All those kind of avenues. Who should we give standing to move these suits forward. All of those discussions, the particulars, need If we pass the amendment of the Senator from Louisiana, I do not believe we will get there. I do not believe we get there because we have already settled the issue and the courts do not have a role.

Mr. SANTORUM. But there is no incentive as a result of your amendment to specify. We have now kept them out of our affairs. There is no reason for Members to come back and give them access, where, if we did not pass the amendment, it would be a broad open question as to what extent they could get involved. It could be incumbent upon the Senate to protect our own viability as a body, for the Senate to specifically chart out where they would. I think any kind of implementing legislation--I think the Senator from Wisconsin was right on this. If we, through implementing legislation, said they have no access, I think we would have constitutional problems with that. We would have to provide some sort of limited access for suit. Your amendment does not do that. I think you run into very severe limitation on the due process clause. We are telling every citizen of this country that you cannot redress your Government through a constitutional amendment. I think that is a real problem. I think that is one of the reasons I would be opposed to it. The second is, I think it forecloses any future discussion on this matter. I would be happy at this point to yield the floor. Mr. HATCH addressed the Chair.

Mr. SANTORUM. Will the Senator yield for a question?

Mr. SANTORUM. The question I have is, given everything the Senator says will happen--all these suits occurring, et cetera--is there not specific authority in section 6 of this amendment for Congress to pass implementing legislation wherein we can specifically limit the ability of taxpayers, Members of Congress and others to sue on this amendment? Is that not the ability of the Congress to do even prior to maybe even ratification by the States? Could we not have legislation moving through the process to do that?

Mr. SANTORUM. Could we not limit them to simply declaratory judgment? Is the Senator saying the courts could go beyond that even though Congress limits them to simply declaratory judgment?

Mr. SANTORUM. Mr. President, I say to the Senator from Michigan, we have a limited amount of time remaining, and we have speakers that we have to accommodate.

Mr. SANTORUM. Mr. President, I wanted to make a comment about the practical effect that the amendment of the Senator from Louisiana will have on the process once the balanced budget amendment passes. I think this may be the serious constitutional infirmities that this amendment could have, and when I say ``constitutional infirmities,'' what I believe the Senator's amendment will do is, by denying access, by denying access to the courts in this constitutional amendment, in a sense what we are doing is modifying the fifth amendment due process clause. You are saying we have no redress to this act--none--until Congress acts. Now, I think the practical effect of that will be--and I think we are seeing within this body a lot of support for the courts keeping hands off, not reaching in--so what may happen, what I think there is high probability of happening, is we will leave that alone. We, in fact, will not implement. We will not provide. There is no requirement for Members to do so. There is no reason for the Senate now to provide access when, in fact, we have stated constitutionally they have no access. On the other side, if we do not have the Johnston amendment in place, it is incumbent upon Members to act because I think the Senator is right, we have left a big open question here. Now, it is our duty to define what avenues the court will have to address this constitutional amendment. I think what we have done here is take the Congress off the hook of having to come back, look at this question, debate it, find out specifically what areas we are going to deal with or provide for the citizenry, for Members of Congress, to address this issue in the courts. By this amendment we will, in fact, foreclose that discussion. I believe that discussion will not occur, or if it does occur, will not prevail, that we will feel most comfortable leaving the courts completely out of it. It has been passed in the constitutional amendment. There will be no reason for Members to come here because we have taken care of this issue. If we leave it open, the issue will arise again. And I believe the Senator is absolutely right. There is such a question here. We will be driven to provide specifically for that kind of redress in the court. I think not only do we have a limitation of the due process clause of the 5th amendment as a result of the amendment of the Senator from Louisiana, which I think is a red flag, No. 1. No. 2, we have in a sense decided this issue now maybe for a long period of time and eliminated any prospect of judicial review for this legislation. I do not think we are prepared to do that. I think we are prepared, at least what I hope most Members are prepared to do, is say, ``Let's leave this question open for us to go and then provide specific redresses in the implementing legislation to deal with this question. Let's be precise about it. Let's be limited about it but have a full and open discussion about it, not foreclose and slam the door for any possibilities of judicial overview,'' whatever limited amount it may be.