By the Numbers: Constitutional Amending in the House

Later today, the House of Representatives will vote on House Joint Resolution 2, a proposal to amend the Constitution. Here is the text:

Section 1. Total outlays for any fiscal year shall not exceed total receipts for that fiscal year, unless three-fifths of the whole number of each House of Congress shall provide by law for a specific excess of outlays over receipts by a rollcall vote.

Section 2. The limit on the debt of the United States held by the public shall not be increased, unless three-fifths of the whole number of each House shall provide by law for such an increase by a rollcall vote.

Section 3. Prior to each fiscal year, the President shall transmit to the Congress a proposed budget for the United States Government for that fiscal year in which total outlays do not exceed total receipts.

Section 4. No bill to increase revenue shall become law unless approved by a majority of the whole number of each House by a rollcall vote.

Section 5. The Congress may waive the provisions of this article for any fiscal year in which a declaration of war is in effect. The provisions of this article may be waived for any fiscal year in which the United States is engaged in military conflict which causes an imminent and serious military threat to national security and is so declared by a joint resolution, adopted by a majority of the whole number of each House, which becomes law.

Section 6. The Congress shall enforce and implement this article by appropriate legislation, which may rely on estimates of outlays and receipts.

Section 7. Total receipts shall include all receipts of the United States Government except those derived from borrowing. Total outlays shall include all outlays of the United States Government except for those for repayment of debt principal.

Section 8. This article shall take effect beginning with the later of the second fiscal year beginning after its ratification or the first fiscal year beginning after December 31, 2016.

This is a big deal. Not because it looks like it will pass Congress; based on the reported tea leaves, it will probably not pass the House (the Democratic leadership is whipping against the resolution), the Senate is probably an even bigger hurdle, and who knows what would happen in the states. No, it’s a big deal because the elected representatives of the United States may plausibly propose that we change the constitutional structure of our government and our nation. Setting all the politics aside, we are watching a centuries-old mechanism of self-government being put to use. And that’s fundamentally important.

Anyway, let’s get to the numbers!

0: The number of Constitutional amendments that have been passed by Congress and sent to the states for ratification since August 22, 1978, when the D.C. Voting Rights Amendment was passed by Congress.

2/3: The fraction of votes necessary in the House (and the Senate if the resolution passes the House) necessary to pass the resolution and send it to the states as required under the Constitution. Many news outlets are reporting that the resolution needs 290 votes (2/3 of the 435 Members of the House) to pass. That’s not true. Under past court rulings, it has been decided that “2/3” as written in Article V refers to two-thirds of the Members present, assuming a quorum, not two-thirds of the total membership. With Oregon’s 1st district currently vacant and Rep. Giffords unlikely to return to Washington for the vote, the maximum number of Members present should not exceed 433, two-thirds of which is only 289.

3/4: The constitutional fraction of states need to ratify an amendment. Currently, this is 38. If states are added to the union while an amendment is open for ratification, the threshold can go up; it is not fixed to the number of states existing at the time of passage.

1: The number of Amendments added to the Constitution since August 22, 1978, when the D.C. Voting Rights Amendment was passed by Congress. No, it wasn’t the DC voting rights amendment. It was the 27th amendment, which prevents Member pay increases from going into effect prior to the following election and was passed by Congress on September 25, 1789, but not ratified by 3/4 of the states until 1992. Under a 1939 Supreme Court decision, any proposed amendment that does not specify an expiration date may be ratified at any time in the future.

5: The number of hours of debate there will be in the House on the proposed amendment. This is under a special rule, H.Res.466, which was agreed to yesterday. Here is the text:

Resolved, That it shall be in order at any time through the legislative day of November 18, 2011, for the Speaker to entertain motions that the House suspend the rules, as though under clause 1 of rule XV, relating to the joint resolution (H.J. Res. 2) proposing a balanced budget amendment to the Constitution of the United States. Debate on such a motion shall be extended to five hours.

Sec. 2. The Chair may postpone further consideration of a motion considered pursuant to this resolution to such time as may be designated by the Speaker.

Why will the House be considering the joint resolution under the suspension procedure, which requires a 2/3 vote for passage and usually is reserved for non-controversial legislation? And why are they using a special rule to get there? Three points: first, the resolution needs a 2/3 vote anyway, so it doesn’t matter if they do it by suspension or by rule; there’s no handicap to using the suspension process. Second, they needed to pass the special rule to extend the debate time, which is limited to 40 minutes under the suspension procedures. Finally — and this is just speculation — they might have gone with a suspension in order to avoid the motion to recommit, which would have allowed the Democrats to propose an amendment to the resolution. A strategic amendment (a so-called ‘poison pill’) — such as a more conservative version of the resolution — might have been able to get the bare majority needed to amend the resolution, but also guarantee that the amended resolution could not capture the 2/3 for passage.

6: The number of proposed Constitutional Amendments that have been passed by Congress but failed to be ratified. These include two early proposed amendments (one to adjust the size of the House in 1789, another to strip citizenship of anyone who accepts a foreign title in 1810); the Corwin Amendment, passed in March 1861 by a secession-shrunk Republican Congress, which was an attempt to end the secession crisis by offering guarantees to the South that slavery could not be attacked in states where it already existed; an anti-child-labor amendment, passed in 1926, which would have empowered Congress to regulate child labor; the well-known ERA amendment; and, of course, the DC Voting Rights Amendment. Both the ERA amendment and the DC voting rights amendment were time-limited and have since expired. The other four are still eligible for ratification, although the Corwin amendment is now moot. The anti-foreign title amendment has been ratified by 12 states so far, but none since 1812. The child labor amendment is functionally moot, but has been ratified by 28 states, the last in 1937. The House size amendment is also functionally moot, and has been ratified by 10 states, the last in 1791.

7: The number of proposed Constitutional Amendments that have been passed by the House since the DC Voting Rights Amendment went to the states in 1978. Six have been amendments to empower the states and federal government to ban flag burning. The other was the Balanced Budget Amendment of 1995. None of the flag burning amendments received a vote in the Senate. The balanced budget amendment in 1995 fell two votes short (64-35) of passage on June 6, 1996.

7: The number of years that today’s proposed amendment will be open for ratification by the states if passed by Congress.

28: The number of proposed Constitutional Amendments that have seen floor action in the House since the DC Voting Rights Amendment went to the states in 1978. In addition to the 7 described above that have passed the house, these have included balanced budget amendments, an anti-busing amendment, an amendment to alter the system of filling vacant House seats, an equal rights amendment, a term limits amendment, an amendment to require a 2/3 vote to raise taxes, other tax limitation amendments, an amendment to limit campaign spending, and a definition of marriage amendment.

59: The number of proposed Constitutional Amendments that have been introduced in the House so far this Congress.

268: My guess for the number of votes the resolution gets in the House today. Not enough to pass.

Update: The vote was 261-165, with 8 not voting. 4 Republicans vote against it; 25 Democrats votes for it.

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