The Budget Control Act of 2011 (BCA) creates a joint committee to craft a deficit reduction bill. Joint committees in Congress are not uncommon, but the authority given to this committee will be unique. Is this “super-committee” constitutional?
The very first Congress had committees, and even the Continental Congress, which wrote the Constitution, divided itself into small working groups. Today, committees are how the work of Congress gets done. Without delegating authority to smaller groups of members, or committees, Congress would be unable to accomplish all the tasks necessary to govern a vast nation.
In Congress, there are standing committees and select committees. Standing committees, also referred to as the committee system, remain in place after each election and cover legislation in a broad topic area (such as armed services). Select committees are formed for a single purpose and are dissolved once its task is complete.
Joint committees are made up of members of both the Senate and the House of Representatives. Committees without the “joint” designation are specific to either chamber.
The committee created by the BCA will be a joint select committee. It will have members of both the House and the Senate, and once its purpose is fulfilled (crafting a $1.2 trillion deficit reduction bill) it will be dissolved.
Joint committees in Congress are fairly common. This Congress, for instance, has two joint committees-the Joint Committee on Taxation and the Joint Economic Committee.
The authority given to the Budget Control Act's joint committee will, however, be unusual. The deficit reduction bill that will be crafted by the joint committee will be guaranteed an up-or-down vote in the House and the Senate. When the bill reaches the floor of these bodies, senators and house members may not modify the bill with amendments. Additionally, senators may not filibuster the bill. This level of authority is why some have dubbed it a “super-committee.”
While the authority is unprecedented for a joint committee, it does share some similarities with commissions that have been created by Congress. While a joint committee is comprised of only members of Congress, a commission includes people outside of Congress and may or may not include members of Congress.
The military base-closing commissions, or BRACs, created in the 1980s and 1990s are the most similar to the BCA joint committee in the level of authority each were given. In fact, the BRAC commissions were given even more authority than the BCA joint committee. BRAC commission decisions automatically went into effect unless Congress specifically delivered a vote of disapproval signed by the president.
Why would Congress delegate such a high degree of authority to a BRAC commission or the BCA joint committee? Congress has difficulty coming to agreement when decisions are politically unpopular, and has difficulty making these decisions fair and reasonable to all the parties affected by them.
When it came to closing military bases, for instance, every member of Congress was going to fight to protect the bases in their district or state. If the decisions had been made through the usual congressional processes, most likely, the bases in the districts or home states of the most senior or powerful member of Congress, or members of the majority party, would have been protected while the weaker members, or members of the minority party, would have been losers in the process.
Another possibility is that Congress simply would not have acted and left military bases open that the military did not need. This would not have been an effective way to serve the needs of the military. Delegating that authority to an outside body became the most effective way for Congress to make those decisions based upon the interests of the military rather than the parochial or partisan interests of Congress.
Congress faces a similar situation with deficit reduction. Deficit reduction will be politically unpopular. It will mean spending less money on popular programs or raising taxes. Members of Congress generally want to be reelected, and thus, will be reluctant make either of these unpopular decisions. As seen in the recent battle to pass the BCA, coming to an agreement would be difficult under normal congressional procedure. Since the status quo is fiscally unsustainable, Congress had to force itself to make painful choices. Giving great authority to a joint committee proved to be the most effective way of accomplishing that task.
Some, such as Rep. Ron Paul (R-Texas), have said that the BCA joint committee is unconstitutional. “I would challenge it in the courts and say that is not a constitutional function. There’s no authority to have a super-Congress who takes over for what the House and Senate are supposed to do,” Paul said Thursday on CNBC's “Squawk on the Street.”
The Constitution, however, leaves it up to each Congress to decide how it makes its own decisions. Article 1, Section 5 of the Constitution states, “Each house may determine the rules of its proceedings.”
“Where does [the Constitution] say that we can set up a program like this and then give the-and then pop something back into the House and Senate and say you have a vote, you can’t take it to a subcommittee or full committee,” Paul asked. The committee system itself was not created by the Constitution, however. Congress created the committee system and it has the authority, under the Constitution, to change it or recreate it however it sees fit.