Constitutional Politics and Balanced Budgets
Nancy C. Staudt | 1998 U. Ill. L. Rev.
Unbalanced budgets have sparked decades of debate among legislators, scholars, and the public at large. Although the controversy has abated somewhat in recent years given the pending budget surplus, many continue to believe that Congress has a tendency to pursue a level of public debt that is both inefficient and unfair. Foremost among those who criticize the federal budgeting process are fiscal constitutionalists, a group of public choice scholars who believe that constitutional constraints are the only means by which the public will obtain protection from legislative fiscal irresponsibility.
In this article, Professor Staudt explores the public choice argument for a balanced budget amendment. She first notes that public choice theorists reject budget constraints in the ordinary statutory context but support them if they are embedded into the Constitution. These divergent views are related to the idea that, unlike statutory decisionmakers, constitutional decisionmakers act behind a veil of ignorance, leading them to make choices that promote the overall public good. Professor Staudt argues that the veil (if it exists at all) will not completely obscure legislators' understanding of the political costs associated with a balanced budget amendment. Accordingly, she asserts that the legislators are unlikely to adopt an effective balanced budget amendment but will act as if they support the measure in order to gain the support of those contributors and voters who embrace this type of fiscal reform.
Not only does Professor Staudt reject the claim that constitutions are always above politics, she argues that legislators may act for the greater public good in the ordinary statutory context. She points out that Congress has recently achieved a balanced budget despite the absence of a constitutional amendment mandating it to do so. This outcome might be the result of the political pressure generated by the decades of debate around unbalanced budgets and the near consensus that has evolved regarding the inefficiencies and unfairness associated with the high levels of public debt Congress has maintained. In short, the public choice theorists may have accomplished their goal of balanced budgets without forcing a change to our constitutional order--a change many have found deeply problematic.
* Associate Professor of Law, State University of New York at Buffalo.