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The ‘Contract with America’: What It Really Means

Standing on the steps of the US Capitol on September 27, 1994, more than three hundred Republican candidates for the House of Representatives voiced their support for a “Contract with America.” The remarkable victory by Republicans in last November’s elections converted the Contract into a blueprint for legislative action. Although the broad contours of the Contract are generally known, little is understood about the bills now being enacted. What do they contain? How do they compare with the original plan?

The Contract indicts the national government as “too big, too intrusive, and too easy with the public’s money.” The three principles said to underlie the Contract’s many parts are accountability, responsibility, and opportunity. The signers of the Contract pledged to make elected officials more accountable to the public, to bring about a new, and in their view better, balance between government and personal responsibility, and to increase private opportunities by reducing taxes and curbing regulations.

Some of those goals were achieved in the opening weeks of the 104th Congress. The House eliminated several committees, cut committee staff by a third, and prohibited proxy voting in committee. The Senate also acted to reduce the size of committee budgets. By the end of the first hundred days, most of the Contract had passed the House, and two bills were signed into law. A Congressional Accountability Act requires Congress to comply with federal standards, and another statute restricts the ability of the federal government to impose expensive mandates on the states and the private sector.

Despite the extensive press coverage lavished on the Contract, deep misconceptions about it prevail. Republican rhetoric, misleading White House statements, technical complexities, the breakneck legislative pace, and superficial reporting all contribute to widespread public confusion. I deal here only with seven cases of such confusion: the Congressional Accountability Act, unfunded mandates, the National Security Act, item-veto authority, the balanced budget amendment, the private property bill, and term limits. Other proposals in Contract With America, the recently published text of the contract,1 also deserve close examination: welfare reform, the anti-crime bills, the child-tax credit, regulatory reform, and product liability legislation.2

1.

Regarding congressional accountability, the Contract states: “All laws that apply to the rest of the country [should] also apply equally to the Congress.” A number of laws, including equal employment opportunity and labor legislation, did not cover Congress. When President Bill Clinton signed the Congressional Accountability Act on January 22, he said it is “about time that Congress lived by the same laws it places on the private sector.”

This is not the first time, however, that Congress has acted on this question. The bill Clinton signed is only the latest in a series of steps taken by Congress over the years to comply with federal standards. The Civil Rights Act of 1991 subjected Congress to a number of civil rights provisions and established an Office of Senate Fair Employment Practices to provide for their enforcement. Senate employees are protected from discrimination based on race, color, religion, sex, national origin, age, handicap, or disability. The House adopted similar reforms.

In several other ways Congress has acted to bring itself under the same standards applied to other citizens and public officials. In 1994, the Joint Committee on the Organization of Congress recommended an end to Congress’s exemption from workplace laws, and on August 10, 1994, the House passed legislation to apply a series of worker-protection and anti-discrimination laws to Congress. Members of both parties recognized the need to move decisively. The vote in the House was nearly unanimous, 427 to 4. Although most senators were prepared to pass this legislation, it was blocked along with other measures at the end of the 103d Congress. At that point the House approved a resolution to amend its rules to include much of the language in the bill that had passed in August. Thus, by the time of the Contract and the Republican victory in last year’s elections, both houses and both parties had already done the main work in drafting this legislation and arriving at a consensus.

Why had Congress exempted itself from these laws? Did it try to place itself “above the law,” as critics suggested? In some cases Congress did not apply laws to itself simply because it had no responsibilities in such matters as non-discrimination in elections, public accommodations and public facilities, and disbursement of federal funds. Second, the responsibility for enforcing equal employment opportunity laws is vested in executive agencies, and Congress had a legitimate reason to protect its prerogatives as a separate branch. It did not want the Justice Department or some other agency supervising its offices. Hence the series of incremental and cautious steps taken by Congress before the Contract. The bill signed into law by Clinton avoids separation of power problems by creating an Office of Compliance outside the executive branch to oversee congressional adherence to workplace laws.

2.

Press accounts suggested that the unfunded mandates law, signed by Clinton on March 22, would do away with the federal government’s practice of ordering states to meet national standards while not providing federal funds. Clinton reinforced that impression when he signed the legislation. He said that when he took office there were at least 172 separate pieces of legislation that imposed federal requirements on state and local government. “After today,” he said, “this should stop.”

But the unfunded mandates law does not stop unfunded mandates. As Clinton later noted, the bill simply requires the Congressional Budget Office to flag any bill that creates an unfunded mandate of $50 million or higher on the states and $100 million or higher on the private sector. On the basis of CBO estimates a member of Congress may make a point of order against these mandates, but the point of order can be overridden by simple majority vote. The proposals by some legislators that a point of order could be waived only by a large majority (such as three fifths) were defeated. As enacted, the bill sends a cautionary signal to Congress and probably requires it to engage in serious debate on issues of federalism before it overcomes a point of order. It may make Congress more sensitive and responsive to the issue of unfunded mandates, but the mandates remain permissible.

The bill that Clinton signed, moreover, exempts a number of matters that account for most unfunded mandates. Senate hearings in 1994 clearly revealed that governors and mayors were not eager to challenge unfunded mandates dealing with civil rights and the disabled. The bill exempts any legislation that “establishes or enforces any statutory rights that prohibit discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or disability.” Many of the mandates that Congress imposed on states and local governments during the 1980s consisted of these anti-discrimination laws.

Also exempted is any legislation dealing with the “constitutional rights of individuals.” That would cover statutes passed to enforce the Fourteenth and Fifteenth amendments (for example, the Voting Rights Act). Further exemptions apply to any bill “necessary for the national security” (however that is defined) and any bill that the president designates as “emergency legislation and that the Congress so designates in statute.” Another exemption applies to situations where the federal government offers money to the states only if certain conditions are accepted. These programs are voluntary, not mandatory. If states object to the condition, they don’t have to participate (and they don’t get the funds). Also exempted is the politically explosive social security program.

Like the congressional accountability statute, the unfunded mandates bill reflects bipartisan action in the 103d Congress. Both houses, with the support of Democrats and Republicans, moved this legislation along and developed the basic principles. But the Republicans deserve credit for pushing both bills—congressional accountability and unfunded mandates—through Congress and enacting them into law.

3.

As part of the Contract, the Republicans produced a draft National Security Act that required advance congressional approval whenever the president enters into “special agreements” with the UN Security Council to provide US troops for UN military actions. Special agreements describe the type of forces the US will make available. The draft bill also specified that Department of Defense funds could be used for UN peace-keeping operations “only to the extent that Congress has by law specifically made those funds available for such purposes.”

When this bill passed the House on February 16, it stated that any special agreement “shall not be effective unless approved by the Congress by law.” Does this prohibit unilateral military commitments by the president? It does not. The requirement for congressional approval applies only to special agreements to provide forces for UN action, and no president has ever entered into those arrangements. The new National Security Act reflects language in the UN Participation Act of 1945, which provides that any special agreement “shall be subject to the approval of the Congress by appropriate Act or joint resolution.” But the UN Participation Act did not prevent President Truman from sending US forces into Korea in 1950, supposedly under the authority of the UN, without seeking the approval of Congress. Truman circumvented the 1945 statute because he never entered into a special agreement. Clinton was ready last year to invade Haiti—again on the basis of a Security Council resolution—without ever considering it necessary to make a special agreement or seek congressional approval.

Presidents can easily evade the language in the new National Security Act regarding special agreements. The Republicans, however, took significant action this year in responding to Clinton’s request for $2.5 billion in supplemental funds for the Defense Department. His request covered peace-keeping, peace enforcement, and humanitarian assistance “in and around” Somalia, Rwanda, Iraq, Bosnia, Haiti, Cuba, and Korea. Several of those operations, as with Rwanda, Bosnia, and Haiti, were taken unilaterally by the Clinton administration without seeking congressional approval. Some of them, as with Haiti, were taken in the face of active congressional opposition by members from both parties.

The Republicans provided Clinton with the supplemental funds, but only at a cost. The supplemental bill required “rescissions”—cancellations of funds previously appropriated to the Pentagon—to offset the new funds. Moreover, the conference report on this bill noted that the missions involving Somalia, Rwanda, Haiti, and refugee relief in the Caribbean “all mark significant departures from previous emergency deployments of American forces.” Of course other presidents have deployed military forces without congressional authority, as with the Grenada invasion, for example, but the level of such activity sponsored by Clinton in his first two years was remarkable. The conferees stated their “strong belief” that military deployments in support of peace-keeping or humanitarian objectives “both merit and require advance approval by the Congress.”

4.

The “item veto” bill sped through Congress this year, apparently with scarcely any public understanding of its actual effect. Many citizens likely thought that this reform would permit the president to strike items from a bill and return them to Congress for a possible override. The rest of the bill would become law. That is the way the item veto works in many states. It is not the procedure included in the bills passed by the House and the Senate.

  1. 1

    Ed Gillespie and Bob Schellhas, editors, Contract with America: The Bold Plan by Rep. Newt Gingrich, Rep. Dick Armey and the House Republicans to Change the Nation (Times Books, 1994).

  2. 2

    Some of these provisions, including the ones on welfare, will be the subject of separate articles in these pages.—the editors

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