Super Congress, Super Committee ... super hyperbole; Update: More Constitutional nonsense from Napolitano

Since the final versions of the debt-ceiling compromise proposals first got floated, the notion of a “super Congress” has banged around the Internet with all of the accuracy one might expect from e-mail chain letters.  Unfortunately, it’s also seeping into the national debate.  Andrew Malcolm notes an appearance by Republican presidential hopeful Ron Paul calling the panel created by the compromise unconstitutional:

The 76-year-old retired OB-GYN, who is seeking the GOP presidential nomination again, said he was appalled at the ad hoc 12-member bipartisan committee devised to find further federal spending cuts before Thanksgiving, what he calls “this super Congress.”

According to this week’s agreement, the committee, three members of each party from each chamber, must do the job Congress is supposed to do but hasn’t or can’t. And if it doesn’t, then other automatic cuts occur by year’s end. Not unlike legislative cruise control.

“Where in the world did that come from?” Paul demanded. “And where is that going to lead to? That is monstrous. I keep looking and I can’t find any place in the Constitution where we have the authority to create such a creature as the super Congress.”

Survey USA did a national poll this week asking people what they thought of several different types of structures mentioned by the media and politicians as a possible component of the compromise.  The results should provide for a few facepalm moments:

  • 39% say a “Super Congress” is unconstitutional
  • 20% say a “Super Committee” or a “Cost Cutting Committee”  is unconstitutional
  • 17% say a “Bipartisan Commission” is unconstitutional

None of them got a majority to say that those structures are constitutional. The crosstabs on this are rather instructive, too, especially on the most provocative term, “Super Congress.”  Forty-three percent of Republicans consider it unconstitutional, with 56% of “strong Republicans” agreeing.  More than half of Republican-leaning independents believe it violates the Constitution as well.

The fact is that the terms all describe the same thing — and that it’s not just constitutional, it’s utterly routine.  Congress has the authority to create committees, which should be painfully obvious, given the proliferation of standing committees and subcommittees on Capitol Hill.  Congress can authorize ad hoc committees as well as standing committees, and have done so repeatedly for various purposes.  Those committees still report to Congress, and are bound by the authority of Congress and its limitations.

In this case, Congress has authorized an ad hoc committee to deal with budgetary matters.  They still have to report their findings back to the full Congress, which will vote to approve or disapprove their proposal; the ad hoc committee cannot pass anything directly into law or send anything directly to the President’s desk.  Congress as a whole agreed to this in the debt-ceiling compromise, including the rules that forbid amendments to the report and force a majority-rule up-or-down vote at the end.  Constitutionally, Congress can set its own rules — both chambers do so at the beginning of every session — and so this also is not just constitutional, but again utterly routine.

Are such committees good policy?  Generally speaking, no; they tend to let Congress escape some of the blowback of unpopular decisions.  However, they are certainly legitimate within the Constitution.  How a man can serve in Congress for more than a dozen terms and suddenly believe that committees offend the Constitution is beyond imagination.

Update: Bunkerville quotes more nonsense from Judge Napolitano, who should know better:

Members of the Senate and members of the House have the opportunity under the Constitution to debate items that are sent to them and to modify items that are sent to them. To force them to vote just yes or no with no debate, not to follow the rules of the House, which permits amendments, not to follow the rules of the Senate, which permits a filibuster, is such a substantial removal of the authority the Constitution gave them that this legislation is treading in waters that might not be constitutional.

Where to start with this?  First, I’d point out that filibusters can’t be used on budget bills anyway, which is why the “reconciliation” strategy on ObamaCare worked.  That’s only the first problem with Napolitano’s statement.  The Constitution does not provide the Senate with a filibuster; it is mentioned nowhere in the document.  The only supermajorities required by the Constitution are on veto overrides and on amendments to the Constitution itself.  The filibuster is a Senate rule which does not apply in all cases, and which can be eliminated at any time by the Senate if two-thirds of the members vote to dispense with it.

Neither does the Constitution require that bills have an opportunity for amendments.  In fact, it doesn’t even require debate, only a vote for passage of legislation.  Rules concerning debate and amendments are passed in the Rules Committee in each chamber for each bill presented; in the House, bypassing the Rules Committee then creates a requirement for a two-thirds vote, but only because the House has a standing rule to that effect.  The Rules Committees routinely limit amendments, sometimes to zero, depending on the circumstances.

So what do we have in this agreement?  An ad hoc committee has been formed with pre-agreed rules for debate and vote, none of which violates the Constitution or the standing rules of either chamber of Congress.  It may not be a wise process to deal with the situation, but the argument that it violates the Constitution is laughable on its face.

Update II, 8/10: Er, chamber of Congress, not of Commerce.