Many writers propose constitutional amendments in order to demonstrate their fantasy vision of the perfect regime. In this series, I propose realistic amendments to the Constitution aimed at improving the structure of the U.S. national government, without addressing substantive issues. Today’s proposal:
AMENDMENT XXIX
1. All Bills which raise or appropriate money, or which issue or limit the size of the public debt, or which fix the salaries of Officers of the Government of the United States, shall originate in the House of Representatives, and shall not be altered or amended by the Senate.
2. The Senate shall vote on all such money bills within one year, voting by the Yeas and Nays, and the affirmative vote of a majority of the Senators duly chosen and sworn shall cause the bill to be passed. If, after one year, this vote has not been taken, the House may present the money bill to the President of the United States for signature, in like manner as if it had been passed by the Senate.
3. These provisions may be enforced by judicial proceedings.
That’s right: today’s proposal is an Origination Clause! It dictates that “money bills” must come from the House of Representatives, not the Senate.
Now, the Constitution already has one of these. But the current Origination Clause is so old, musty, and irrelevant that you may have forgotten that it even exists:
THE CURRENT ORIGINATION CLAUSE (Article I, Section 7, Clause 1):
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
This Origination Clause failed, and we’ll get to that. But, first: why did the Founders give this special power to the House in the first place?
Let us turn, as we so often will, to the Federalist Papers. Federalist No. 58 considers the balance of power between the House and the Senate. It first notes that the People are represented by the House, which apportions representation (loosely) according to the general concept of “one person, one vote.” Meanwhile, the Senate represents the states, and apportions representation on the basis of “one state, one vote.”
This division between the People’s House and the States’ House is a crucial feature of the Constitution, to which we will return often. In our constitutional union, states (not the national government) are the primary, plenary policy-makers, and they are the immediate sovereigns of virtually all of us (unless you live in D.C., Guam, or one of the other federal territories). As we saw repeatedly during the pandemic, states can exercise vast powers that even our robust national government can’t dream of, like covid lockdowns. States are not mere land, as some like to say (the slogan is “land doesn’t vote, people do”). The Founders actually thought about making an upper house where representation would be based on property values, but rejected it because states, not land, needed representation. Nor are states mere provinces or administrative subdivisions of the National Government. States are the building blocks of Union, the political entities that forged the Constitutional compact in the first place, and which still govern most aspects of our lives today.
The Founding-era controversy over the Virginia Plan vs. the New Jersey is sometimes framed as a mere compromise for political expediency, which we should do away with now that the need has passed, but this fails to recognize the important insights the small-state advocates brought to the table. Their insistence on a bulwark for small states prevented the Virginia Plan from strangling federalism in the crib, and is directly responsible for our system where the states serve as “laboratories of democracy.” Because of state sovereignty, the diverse population of a vast nation can create diverse systems of law to suit their own local needs, instead of one-size-fits-all federal law trying to control 337 million people. We will explore this idea further when we discuss reforming the Senate. (By the by, the other thing the “obsolete compromise” view fails to recognize is that the Great Compromise is still a necessary political expedient. Ian Millhiser can tweet “abolish the Senate” all he wants, but good luck keeping the entire middle of the country in the Union if you do so!)
As crucial as the Great Compromise was, though, it was not without downsides, and Federalist No. 58 is about some of the Great Compromise’s risks:
It may be alledged, perhaps, that the senate would be prompted… to an adverse coalition; and as their concurrence would be indispensable, the just and constitutional views of the other branch might be defeated. This is the difficulty which has probably created the most serious apprehensions…
The Federalist‘s authors are suggesting that a small coalition of small states in the Senate, representing only a small fraction of the overall population of the United States, could band together and prevent just, equitable, and (above all) very popular legislation (in this case, reapportionment legislation) from coming into force. Some of this give-and-take is to be expected, and is indeed by design; the Senate’s equal representation of the small states is precisely intended to give the small states an effective voice against legislation that unjustly steamrolls them or their constituents. Given how easily the high-population states can silence the low-population states without this kind of affirmative action (consider how well-represented small states, small-state residents, and small-state experiences are in, say, Hollywood films or national news media), the low-population states needed a voice, and the Senate gave them one.
But the Founders did not intend for theirs to be an equal voice, and Federalist No. 58 makes that clear: in the matters that most affect the People, the People’s House is supposed to be in the driver’s seat. The Founders valued the States and their voices greatly, but their conception of the People as ultimate sovereign was the cornerstone of their political worldview. So how did the Founders put the House of Reps in the driver’s seat?
Well, one, the House’s sheer superior moral authority:
…it cannot be doubted that the house composed of the greater number of members, when supported by the more powerful states, and speaking the known and determined sense of a majority of the people, will have no small advantage in a question depending on the comparative firmness of the two houses.
But, also, the Founders gave the House the greatest weapon they could imagine to wield against the Senate:
A constitutional and infallible resource, still remains with the larger states, by which they will be able at all times to accomplish their just purposes. The house of representatives can not only refuse, but they alone can propose the supplies requisite for the support of government. They in a word hold the purse; that powerful instrument by which we behold in the history of the British constitution, an infant and humble representation of the people, gradually enlarging the sphere of its activity and importance, and finally reducing, as far as it seems to have wished, all the overgrown prerogatives of the other branches of the government. This power over the purse, may in fact be regarded as the most compleat and effectual weapon with which any constitution can arm the immediate representatives of the people, for obtaining a redress of every grievance, and for carrying into effect every just and salutary measure.
They’re talking about the Origination Clause, a clause so powerful that the Founding Fathers believed it gave the House an “infallible” upper hand in standoffs with the Senate. Indeed, Federalist 58 argues that Senators will be too embarrassed to hold out for long against the House, because the British House of Lords (on which they modeled the Senate) had for the most part capitulated to the House of Commons in a series of conflicts over several centuries:
…Or if such a trial of firmness between the two branches were hazarded, would not the one be as likely first to yield as the other? These questions will create no difficulty with those who reflect, that in all cases the smaller the number and the more permanent and conspicuous the station of men in power, the stronger must be the interest which they will individually feel in whatever concerns the government. Those who represent the dignity of their country in the eyes of other nations, will be particularly sensible to every prospect of public danger, or of a dishonorable stagnation in public affairs. To those causes we are to ascribe the continual triumph of the British house of commons over the other branches of the government, whenever the engine of a money bill has been employed. An absolute inflexibility on the side of the latter, although it could not have failed to involve every department of the state in the general confusion, has neither been apprehended nor experienced. The utmost degree of firmness that can be displayed by the federal senate or president will not be more than equal to a resistance in which they will be supported by constitutional and patriotic principles.
Meanwhile, in the actual Senate that actually exists:
Now, it is not especially fair to Sen. Mitch McConnell that he has become a totem of obstreperous, shameless, two-faced senatorial obstruction. McConnell is nothing special in the “obstreperous, shameless, two-faced obstructionist” department; Harry Reid and Tom Daschle were equally canny operators in their day, and the only reason Chuck Schumer hasn’t yet fully earned the epithet “obstructionist” is because he’s never yet led a Senate majority against a hostile White House and House of Representatives. (As a matter of fact, I’m rather fond of Sen. McConnell, one of the shrewdest generals on today’s political battlefield.) But there is no denying that McConnell is obstreperous, shameless, two-faced, and obstructionist. The House could threaten him and his caucus with money bills for decades and it wouldn’t move one Republican vote. McConnell gave only the tiniest bit of ground, at the last minute, temporarily, on the impending disaster of the debt default.
If I’m right (and I am right) that Schumer, Reid, Daschle, Lott, and the rest of them are/were equally shameless, then that only deepens my critique of the Founders. The Federalist Papers weren’t just talking the Origination Clause up for marketing purposes; they really thought it was going to be powerful. The high-population states considered the Origination Clause a key concession in the Connecticut Compromise. The big states would not have accepted equal suffrage of the states in the Senate–and, thus, the Constitutional Convention would have fallen apart–if the House had not been given this “money power.”
So if the Origination Clause is supposed to give the House a solid, reliable weapon against the Senate, forcing the Senate to yield in close contests, why do I routinely forget it even exists?
Simple: our Origination Clause sucks.
Elbridge Gerry saw it all coming. Mr. Gerry was a Massachusetts delegate to the Constitutional Convention, and the Origination Clause, about which Hamilton and Madison so rapturously wrote, was actually Mr. Gerry’s idea:
Taxation and representation are strongly associated in the minds of the people, and they will not agree that any but their immediate representatives shall meddle with their purses.
Elbridge Gerry, 13 August 1787
(Fun fact: Mr. Madison, despite his later participation in The Federalist, was not a fan when Gerry’s idea was introduced to the Convention.)
But Gerry’s proposal was much, much stronger than what ended up in the Constitution. His original text was:
All Bills for raising or appropriating money and for fixing the salaries of the Officers of the Government of the United States, shall originate in the first Branch of the Legislature, and shall not be altered or amended by the second Branch.
This is a fairly robust proposal. The House gets to write all the money bills, and the only thing the Senate is allowed to do is say yes or no. No amendments. Just yes, or no. Mr. Gerry’s original text is the basis for Section 1 of today’s proposed amendment.
(The biggest weakness in Gerry’s proposal is one he could not easily have anticipated: future Congresses and courts have construed the phrase “bills for” very, very narrowly, so that most bills that raise government revenue–debt issuances, fines, fees, and so forth–are not considered to “count” as “bills for raising revenue,” because the revenue is “merely incidental.” My text addresses that by changing “for” to “which” and expressly including debt.)
This proposal, arguably, doesn’t even make the House more powerful than the Senate. The Senate enjoys several enormous privileges in which the House does not get to participate. Particularly, the Senate has exclusive power to confirm presidential appointments to the executive branch, exclusive power to confirm judges, and exclusive power to ratify treaties. The House, despite being the more important house, closer to the People, has no corresponding powers of its own… except the Origination Power, which the Founders held in such high esteem, and which has turned out to be such a damp squib in practice.
Instead of Gerry’s text, the Convention eventually passed this instead, as we saw above:
All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.
This text, in practice, has proved totally meaningless.
The Senate writes its own money bills all the time. Then, once it has written a money bill, it finds some useless, completely irrelevant House bill that’s D.O.A. in the Senate–but which technically passed the House. Then the Senate “amends” the House bill by replacing its entire text with the text of the Senate’s new money bill. Under the language of the Origination Clause, this is technically legal (the best kind of legal?); the Origination Clause allows amendments, without limitation.
For example, one of the more notorious cases of this was the passage of the Affordable Care Act. The Senate wanted to write its own version of the ACA, but it was clearly a money bill. So they grabbed a bill called the Service Members Home Ownership Tax Act of 2009, a simple 6-page bill which dealt with homeowner tax credits for veterans, and replaced it with an all-new 2406-page “amendment” that the Senate had written to radically alter taxes and spending throughout the health care sector.
The Origination Clause does not work, it has never worked, and it renders the House of Representatives, the People’s House, the obvious primus inter pares of our entire Constitutional scheme… subordinate to, and obviously weaker than, the institutional oligarchy of the Senate.
Surely the Founding Fathers saw this possibility coming. Indeed, some did. Gerry himself thought that the Origination Clause that actually passed had been gutted of any real effect. Why did they gut such an important clause?
The Constitutional Convention was extremely anxious about the idea of sending unamendable money bills to the Senate. Indeed, John Francis Mercer, a Maryland delegate, “considered the exclusive power of originating money bills as so great an advantage, that it rendered the equality of votes in the Senate ideal and of no consequence.” This led the Convention to strike down Gerry’s original proposal and (eventually) replace it with the weaker one.
It’s important to explain this fear so that we can dismiss it. In Westminster Parliamentary systems, like the one the Founding Fathers had just rebelled against, money bills are extremely special. If the majority party in the lower house (this party is often called “the government” in Parliamentary systems) is unable to pass a money bill, it is called “loss of supply.” The government automatically falls. The Prime Minister must immediately resign and Parliament must hold new elections to resolve the crisis. This makes it, politically, almost impossible for the upper house to vote down a supply bill. And, in the British Constitution (as in Mr. Gerry’s proposal), the upper house can not amend a supply bill, either.
Eventually, the House of Commons figured out that the House of Lords couldn’t vote them down on supply bills, so the Commons started attaching totally irrelevant riders to supply bills — provisions they could not get through the Lords under ordinary circumstances, but which they could force through using a supply bill which the Lords could not practically reject and which they could not legally amend. The Commons then abused this authority to break the power of the Lords. The Founding Fathers (especially the small-state delegates) repeatedly and loudly worried about a strong Origination Clause having this same effect, and they had a point: the Senate was clearly based somewhat on the House of Lords, and look at the House of Lords today. Is it not “ideal and of no consequence,” just as Mercer predicted?
The thing is, our system does not have loss of supply, so none of these incentives have developed in quite the same way. Instead, our Congress just keeps on running after a money bill fails, leading to government shutdowns. We have these pretty routinely, often for precisely the reason the Founders thought would only be caused by a strong Origination Clause: one house gets really attached to a provision that is not actually relevant to the budget and refuses to pass a spending bill until they get their way. The other house refuses to go along with it. The government shuts down. (We’ve done this over Obamacare, DREAMers, and a border wall, among other things, all in the past decade.) Shutting down the government is extremely unpopular, and the voters start trying to figure out which side is to blame. Sooner or later, the voters make up their minds, then that side caves, a bill passes, and the government reopens.
We have these periodic budget crises even with a weak Origination Clause. A stronger Origination Clause would not encourage them any further–how could it? all the dynamics for periodic confrontation are already in place–but a stronger Origination Clause would strengthen the hand of the People’s House somewhat, giving them appropriate tools to counterbalance the awesome powers of the Senate, while putting the purse-strings more firmly in the hands of the People.
My Parliament-favoring friends will object that this proposal does not go far enough. Although I have made money bills unamendable by the Senate, the Senate can still reject them. If the Senate doesn’t like a provision in a money bill, won’t they just reject it and issue instructions to the House to amend, thereby thwarting the whole intent of the clause once again? Should we not remove the Senate’s power to reject the bill altogether? After all, James, you clearly based that “one year deadline” concept on the modern House of Lords’ suspensory veto, which also lasts up to one year. Why not go all the way?
I answer that it is true that the power of origination is not a trump card for the House… but it’s not supposed to be. It’s supposed to give the House the upper hand in negotiations, not unilateral control of the government. As my writing, even just in this article, makes clear, I think the Senate is really important! I think the Westminster parliamentary system is dangerously populist and, if stable, stable in part because of its tendency toward tyranny of the majority. You couldn’t pay me enough money to live under the system that murdered Charlie Gard for funsies or the one that says you have rights until we decide you shouldn’t lol. The U.K. swung wildly from market socialism to neo-liberalism in the span of just a few years in the ’70s and ’80s, while the delicate U.S. system weathered the same global economic storms with (what appeared to me to be) less financial, social, and psychic stress–because our system prevents a bare majority from going too far without minority buy-in, automatically slowing and moderating our major policy shifts. (Our system does concededly have more civil wars, so, y’know, trade-offs.) The Founders rejected a straightforward parliamentary system where the lower house controlled everything, and I think their decision was wise. A powerful Origination Clause is good, but the Senate should still have viable tools for resisting the House.
…while still leaving the House with a clear advantage. Removing the power of amendment does that. It is true that the Senate could obdurately refuse to pass every money bill that includes a provision they dislike. But we have two and a half centuries of experience with riders, poison pills, pork, and logrolling. We know from those experience that everyone in Washington is constantly running political calculus on every bill, trying to decide whether the parts their voters like are good enough to outweigh the parts their voters don’t like. We see daily how the power of amendment, even to force votes on doomed amendments, is a potent political weapon. Let the Senate continue running that calculus… but now without most of their tools in their arsenal. If Senators don’t like it, well, I’m guessing they won’t like it any less than the House doesn’t like being completely cut out of the loop on Supreme Court nominations. It’s about time we finally strengthened the House so the two halves of Congress stand on equal ground, as the Founding Fathers intended.
That explains Section 1 of my proposed amendment, which is the real meat of it. The other two sections are very straightforward, and exist mainly to prevent partisan or senatorial tricks. To remind you, here is my proposed text:
AMENDMENT XXIX
1. All Bills which raise or appropriate money, or which issue or limit the size of the public debt, or which fix the salaries of Officers of the Government of the United States, shall originate in the House of Representatives, and shall not be altered or amended by the Senate.
2. The Senate shall vote on all such money bills within one year, voting by the Yeas and Nays, and the affirmative vote of a majority of the Senators duly chosen and sworn shall cause the bill to be passed. If, after one year, this vote has not been taken, the House may present the money bill to the President of the United States for signature, in like manner as if it had been passed by the Senate.
3. These provisions may be enforced by judicial proceedings.
Section 2 forces the Senate to go on record for all money bills. They cannot pull the trick they often try, where they let a popular bill quietly die in a committee. They cannot delay the bills indefinitely. Nor can a minority of the Senate block a vote forever through the filibuster.
The House holds the purse-strings. The Senate may refuse them, but the Senate may not ignore them. The Senate can delay a bill for, at most, one year. Then there will be an up-or-down vote… or the House can deem the bill passed and send it to the President for signature. (Of course, if the President vetoes it, that makes the House’s position much harder, as it takes two-thirds to overcome a veto rather than a simple majority… but that is another reason to support gelding the veto.)
Section 3 settles a question that has been disputed for many years: if the Senate originates a money bill improperly, but the House does not object and the bill passes into law, may the courts strike down that law for being passed unconstitutionally? Section 3 says yes, the courts must uphold the Constitution over and against the incompetence or chicanery of the House of Representatives. This prevents various partisan political tricks where members of the same political party in the House and Senate conspire to work around the Origination Clause (and set bad Origination Clause precedents) for short-term political advantage. The courts will be watching.
The Origination Clause the Founders gave us was supposed to be a potent weapon. Instead, it’s a dead letter. Let’s restore their design, and strengthen the democratic half of Congress in the process, by amending in a new Origination Clause that is closer to Elbridge Gerry’s original vision.