There is a simple legislative fix for all of this country's fake veto point and legislative hostage taking problems. It will rescue us from what we have already lost in the recent budget ceiling debacle, and, more importantly, will completely prevent all future budget hostage taking.
Congress just has to pass a law that says that the annual budget bills mean what the unsophisticated observer might imagine that they mean already -- that if they say a spending obligation is the law of the land, then it is just that, the law of the land. This law would clarify that Treasury has the authority and responsibility to borrow as much as it has to in order to meet all of the spending obligated by law in the annual budget bills.
The Politics, first cut
This law could be offered as a separate measure. Of course it won't pass in that form, neither the R-controlled House, nor the R-filibusterable Senate.
The obvious effect of this law would be to disarm the debt ceiling statute as any sort of threat in a hostage taking situation. The debt ceiling would become like a water pistol aimed straight at the head of the US economy, because this law would make the effective ceiling that applies to Treasury be whatever amount of debt is required to meet all US obligations. The debt ceiling law would go back to being what it was designed to be, its only effect what everyone imagined was its only effect until the clown car stopped at the Capitol and unloaded the Teahadists -- a purely internal requirement applying to Congress alone.
Of course the Rs don't want to see that result. They don't want their little Constitutional workaround blocked. They want to be able to make and unmake laws. But to make new law or repeal old law in this country, you need majorities in both chambers plus the president, or you need 2/3 majorities in both chambers. Look it up. It's in the Constitution.
Sadly for the Teahadists, they only control one chamber. They still want the power to pass new laws and repeal old ones, but they don't have what the Constitution says you need to do that. So they have invented veto points not seen in the actual Constitution, so that their majority in one chamber can threaten to make all laws inoperable, and can threaten economic ruin, by throttling spending. Of course they're not going to favor a law that removes their greasy little House majority hands from around the country's neck.
Now, practially speaking, we can probably stop talking about this idea right now. If the Rs don't like an idea, forget about it. Our side nominally controls one chamber plus the White House, while the other side controls only one chamber; but, please, get real. We all know that our side doesn't do anything, no matter how needful, no matter how politically useful and policy needful, if that would upset the Rs. So yes, when I get to the second take on the politics of this, when I discuss how our side would actually implement this idea, it will be a sort of science fiction, an exploration of an alternate universe in which the Ds behave like a political party.
I want to discuss the policy implications here, the Constitutional and legal structure involved, to try to establish that this discussion is at least hard science fiction, and not some pure fantasy with no possible relation to reality. We could do this. It makes perfect sense in terms of how the legislative process works to do this. In fact, I will argue, a Truth in Budgeting Act is absolutely necessary to getting the sytem to work, to preventing the imminent collapse of that process threatened by this use of fake veto points.
These debt ceiling laws that we have had for almost a century were never intended to be veto points. The clear purpose of the debt ceiling laws has been to force a vote in Congress. Before 1917, before Congress started delegating to Treasury the authority and responsibility to issue US debt on its own, there was no need for a trigger to insure Congressional oversight of the size of the national debt. Congress voted to authorize every bond issue, and oversight wuld occur before every new bond was put on the market. When it delegated the issuing of US debt, it started having these debt ceiling statutes as a way to force the leadership to schedule a vote on increasing the ceiling. If you force a vote, you force consideration, hearings and witnesses, a public airing of the growing size of the debt, and possible alternatives to simply increasing the ceiling, such as raising taxes and/or cutting spending.
It is difficult to imagine that there was any intention that the ceiling was meant to be a sort of self-destruct button for the budgetary process that any of three parties could unilaterally push and thereby bring about a situation in which the US repudiates spending obligations. That would be a truly extraordinary intention, one that you would think the ceiling statutes would state very clearly, both because of the disastrous consequences of following that interpretation, and because that interpretation puts the ceiling law at odds with all the statutes that legally obligate spending. You would think that that intention to force selective repudiation of obligations, because there would still be a revenue stream capable of meeting some obligations, would have to be accompanied by statutory guidance dictating that selection of what obligations are paid, vs which ones are stiffed. The absence of such a prioritization in law would seem to be, all by itself, a complete disqualifier of any interpretation that the ceiling statutes are intended to keep Treasury from borrowing as much as is necessary to meet all spednign obligations. Without the authority in law to prioritize spending, any prioritization that Treasury did follow would usurp Congress's sole control of spending.
It's not as if you need a debt ceiling set at some dollar figure in order to preserve Congress's sole control over borrowing. Congress has imposed another debt ceiling on Treasury, in that it has given that department the authority and responsibility to project revenue and obligations, and then borrow the difference to insure that the US always meets its obligations. Treasury does that all the time, borrows right up to what is needed to meet obligations, and no more. That's the Congressionally-imposed debt ceiling Treasury follows all the time; it borrows as much as it needs to, increases the national debt as high as it needs to be, to avoid repudiation of any US spending obligations.
That other debt ceiling, the one that has caused all of this ruckus, is a complete fifth wheel in terms of what Treasury does. No other government on the planet has such an arrangement as the one we have if you interpret the ceiling statute as limiting Treasury's borrowing authority. That's because that arrangement makes no sense. The same House that voted for a certain level of spending just a few months ago when it passed last year's budget bills, now says it won't let Treasury honor the legal committment to pay all the spending obligations it just voted into law. And this interpretation of the ceiling law says that one chamber can do that, one chamber's inaction can set aside what the trifecta hath written into the supposed law of the land. That's a mere logical consistency until you actually allow it in practice, at which point it becomes a known exploit, a hack into the system available to any party unscrupulous enough to use it. Such an unscrupulous party can get anything they want if this exploit is allowed to work, because it allows them to hold govt spending hostage, it allows them to force repudiation of the legal obligations of the US. Of course that's no way to run a railroad, of course no polity on the planet runs that way.
Ours doesn't really run that way either. And if we keep pretending it does, if we keep pretending that the debt ceiling statute is a real veto point, our system actually won't run much longer at all.
The Politics, second cut
Okay, enough reality, back to the politics of the situation.
We have already lost the chance to fight this particular fake veto point and its abusers the direct way, by just not playing along. One way to deal with this latest hostage taking would have been to just tell the Rs that they were perfectly welcome to refuse to raise the debt ceiling. Treasury would continue to follow the debt ceiling actually imposed on it in law, however much that Treasury has to borrow in order to meet all the spending obligations created by Congress. Publish and be damned, or words to that effect.
Perhaps we failed to deal with this threat the direct and honest way because the administration didn't really view the Teahadists' aims as a threat, and Obama went along with the pretence that raising the ceiling is a real veto point because he found it convenient to aid and abet the Teahadists in their hostage-taking. Or perhaps Obama was concerned that the electorate couldn't be bothered to understand the intricacies of which statute Treasury had to ignore to preserve all the statutes, and that as a result KENYAN USURPATION would become all we were going to hear from the Right's noise machine from now until election day. Or perhaps the folks in the WH were just so fixated on winning the week in the poll numbers that they just couldn't be bothered to think this through. Or perhaps gtomkins has tertiary syphilis and the debt ceiling actually is a veto point.
At this stage of the game, it no longer matters. Our side did the grand bargain, we bought into the idea that the debt ceiling actually is legally binding on Treasury, that it is an actual veto point under the law as it exists now. Whatever the risk that the public would have viewed Treasury ignoring the ceiling as a willful disregard of the law before we gave this validation, that is now beyond a risk, it's a dead certainty.
The only possible course of action is to change the law so that the debt ceiling is very clearly and explicitly no longer a constraint on Treasury.
We stop talking about the other side as hostage-takers. It's true. It would have been both true and strong before we gave in to the hostage-taking. Now it's true but very, very weak.
Instead, the story now is that our side went along with the intent of the ceiling law. The national debt neared the limit, so our side did exactly what that law intended. We participated in a good faith cooperative effort with the esteemed other side to look into the growing size of the national debt, and alternatives to simply raising it to cover all obligations, to consider also raising taxes and cutting those spending obligations. And so this SuperCongress was born. Praise democracy and all its holy works, allelujah!
But, you know, in the course of this eminently praiseworthy process, certain voices were heard muttering from the outer darkness about the potential inherent in this debt ceiling law for it to be abused as a hostage-taking mechanism. There's a serpent in every Paradise. Not that the honorable GOP would ever consider doing anything like that. Which is exactly why we're sure that they will want to join us in this Truth in Budgeting Act of 2011, to forever put to rest any possibility that malign forces might one day misuse this law to take hostages. Of course Republicans would never do such a thing, but the political landscape is full of Kenyan Usurpers, ACORN-like entities and other Democrats, so we really have to act now to prevent such a possibility.
All this law would do is make the spending committments the US makes when the Congress passes the budget laws every year, actual promises, promises not subject to a unilateral veto by the WH, or by bare majorities in only one chamber, or just by gridlock, and the inability of the system as a whole to reach agreement in time. Think of it as Covenant Budgeting, or Promise Keeper Budgeting, if you want to pull in the evangelicals. When the US promises to pay, it actually will pay, period. No matter what roadblocks are thrown in the way either by the willful hostage-taking of any party, or just by inertia and inefficiency, Treasury will always be both authorized and required to pay all legal spending obligations undertaken by Congress, and to borrow what it has to in order to do that.
Again, the practical effect of this law, if passed, would be to defang the SuperCongress. It reaches an agreement on cuts, fine, those cuts still have to pass as laws, get the assent of both chambers and the president. It fails to reach an agreement on cuts, and whatever automatically triggered cuts that were supposed to ensue now have to pass as laws, because spending obligations undertaken in law will only be repealable by law once the Truth in Budgeting Act is the law of the land. And of course, never again. The budget ceiling will never be usable to hold the country hostage again, ever.
So of course the other side will oppose it.
Let them. How do they justify that? The country is heartily sick of hostage-taking, and threatened default and threatened shutdowns. When the controversy is between alternate budgets, the Rs can crank up their noise machine to muddy the question and cast blame for the crisis they created onto both sides, because both sides do have competing spending priorities from which they refuse to budge (well, refuse until our side gives in). But how can either side be in favor of keeping the ceiling as a means to take hostages? How do they object to a law outlawing budgetary hostage-taking? Sure, they'll crank up their noise machine against the Truth in Budgeting Act, but what will that machine say against it? Damned ACORN plot to have the law mean what it says it means, to have the promises to spend that the US makes in law actually carry the force of law?
Of course they'll vote against it anyway, public opinion be damned. So our side holds the budget bills hostage, refuses to allow either the bills themselves, or any CRs, to pass without this law as an amendment. Clarifying that any year's budget bills actually have the force of law is clearly pretty germane to this year's budget bills. And even if the result is that their side's noise machine is 100% succesful at blaming any govt shutdown that results on our side, well, about the only issue the public would foregive either side causing a shutdown over, would be the law that makes all future shutdowns impossible.
Yes, sure, this is science fiction. To imagine the Democrats holding together even to defend a prepared and fortified position is already to imagine an alternate reality. Imagining our side actually going over to the offensive, to the point of threatening a govt shutdown, verges on risking arrest for abuse of psilocyobin or LSD.
The one factor that makes even the projection of such uncharacteritically bold action on even the Democrats, is that we've exhausted all the wrong ways of dealing with Republican hostage-taking. The right thing is the only thing left to do. If we do not close this exploit, this fake veto point, then the Rs will continue and widen their use of it. It must be closed, and some law that does what this Truth in Budgeting Act does, is the only way to close this fake veto point that we have allowed to become real and exploitable. The alternate reality line we are on leads over the cliff. We have absolutely no choice but hop to an alternate reality that doesn't have the US plunging over the cliff. Somehow the Democratic Party has to leap to that alternatre reality in which it acts like a real political party.