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April 15, 1997

H.J.Res. 62 - Constitutional Amendment Requiring
Two-Thirds Votes on Certain Tax Measures
(Barton (R) TX and 164 cosponsors)

The Administration strongly opposes a constitutional amendment requiring a two-thirds supermajority vote to raise revenues.

The Nation's 200 year-old constitutional system, with its strong emphasis on majority rule, should not be altered or amended for symbolic or political purposes. James Madison, in The Federalist Papers (No. 58) argued against requiring supermajorities for legislative business, stating "the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority."

The language of H.J.Res. 62, as reported, is ambiguous -- but is problematic no matter how it is interpreted. If the proposed amendment applies to all "chang[es in] the internal revenue laws," it would take a two-thirds majority to cut taxes as well as increase taxes. Alternatively, if the amendment is read to apply only to "increase[s]... by more than a de minimis amount," we would have the absurd result that special interest tax loopholes could be enacted by a simple majority, but a two-thirds super-majority would be required to close loopholes.

Another harmful effect of H.J.Res. 62 would be permitting a small minority of legislators in either House to block revenue-raising measures needed to prepare for potential military conflicts or to respond to other national emergencies.

Enforcement of the proposed amendment would also raise serious concerns. If the proposed amendment is read to authorize judicial enforcement, courts could be drawn into fundamental policy and political disputes better resolved by the elected branches of government (e.g., determining whether a tax increase is "de minimis" or in distinguishing between a fee and a tax). Alternatively, if judicial enforcement is unavailable, those who would seek to enforce the amendment would be left without a remedy, and the public's confidence in the Constitution would be diminished.