The Balanced Budget Amendment--The Road to Ratification

By Scott Mackey, Brenda Erickson, and Christopher Zimmerman

February 1997

Acknowledgements
Introduction and Overview
Proposal of an Amendment: Federal Procedures
Ratification of an Amendment: State Procedures
What's a majority?--State procedural requirements
Where does it go?--Referral procedures

Appendix A. State Legislative Procedures

Acknowledgments

This report is based on 1995 and 1997 surveys of state legislatures. The authors wish to acknowledge the invaluable assistance they have received from staff in the fifty state legislatures in preparing this report. In particular, thanks are due to the American Society of Legislative Clerks and Secretaries, without whose cooperation this report would not have been possible. Special thanks to Becky Lenahan of the Colorado General Assembly Office of Legislative Legal Services. Thanks also to Sandy Jablonski of the Office of Federal Register at the National Archives. Naturally, the authors retain responsibility for any errors.

I. Introduction and Overview

In the next several months, Congress may debate whether to submit to the states for ratification a proposed amendment to the U.S. Constitution that would require the federal government to maintain a balanced budget.

It is sometimes forgotten that "state ratification" of an amendment actually means ratification by the state legislatures. Just as the President has no formal role in proposing amendments, governors have no constitutional role in their ratification. Ratification is an up-or-down vote in each legislative chamber on the language as proposed by Congress; states may make no changes, or ratification is invalid. A legislature which has rejected an amendment may subsequently return to it and vote affirmatively for ratification. On the other hand, it is generally held that once a legislature has voted affirmatively, the state has ratified, and the ratification cannot be rescinded by the legislature. (Note: An alternative prescribed by the Constitution is for Congress to submit the proposed amendment to conventions in each of the states, three-fourths of whom must ratify. This method has been used only once, for the 21st Amendment, repealing Prohibition. In that case, state legislatures were left to determine most of the details for the calling and conduct of the conventions. [See Edward S. Corwin, The Constitution, and what it means today, rev. by Harold W. Chase and Craig R. Ducat, Princeton University Press, 1973, p. 220.])

Since the first ten amendments constituting the Bill of Rights were added in 1791, the Constitution has been amended only 17 times. An examination of the process of state ratification reveals the difficult hurdles that an amendment must overcome to be added to the Constitution.

To begin with, three-fourths of the states--38--must vote to ratify for the amendment to be adopted. Defeat in either chamber in any 13 states is sufficient to prevent a proposed amendment from becoming part of the Constitution. Stated another way, opponents can block any proposed amendment simply by defeating it in 13 of 99 legislative chambers across the country. (All states except Nebraska have bicameral legislatures; ratification requires an affirmative vote in both chambers.) Furthermore, in a few state legislative chambers defeating an amendment for ratification does not even require garnering a majority vote in opposition, because a supermajority (two-thirds or three-fifths) is required for passage by rule or statute.

The road to ratification is a long one, with some odd twists and turns along the way. The purpose of this report is to describe what happens to a proposed constitutional amendment after it passes the Senate and House of Representatives of the U.S. Congress.

Part II discusses the federal procedures immediately following passage by Congress of a proposed amendment to the Constitution. Part III concerns state procedures.

In 1995 and 1997 NCSL conducted surveys of the clerks and secretaries of the 99 state legislative chambers which may be considering the Balanced Budget Amendment. The surveys obtained information about what procedures are likely to be followed in each state if the amendment is considered and what majority requirements govern ratification votes. Part III of this report discusses the results of the surveys. The responses are presented in Appendix A.

II. Proposal of an Amendment: Federal Procedures

Unlike most Acts of Congress, the proposal of an amendment to the Constitution does not involve the President of the United States. Once passed by two-thirds of both houses of Congress, the proposed amendment is sent directly to the Office of Federal Register at the National Archives, where a "slip law" is prepared and sent to governors with notice to refer it to the legislatures of their states. (Note: A bill normally would go to the White House first for the President's signature or veto. In this case, there is no role for the President, so the process is similar to that for a law passed on a veto-override vote.) Actually, state legislatures may act on a proposed amendment any time after it has passed Congress; they need not wait for any official communication. Technically, neither the Archives--an independent agency--nor the governors play any role under the Constitution in submitting a proposed amendment for ratification.

The Office of Federal Register then maintains an open file on state ratification, tracking state passage. Whenever the requisite number (38) have ratified a proposed amendment, the Archivist of the United States proclaims it as a new amendment to the Constitution. Actual certification would be published in the Federal Register immediately, and eventually in United States Statutes-at-Large.

The last amendment to be so ratified (the 27th, which concerned congressional pay increases) was certified by the Archivist on May 7, 1992. This was an unusual case, however, in that the amendment had actually been introduced in the eighteenth century (as part of the original Bill of Rights), and had virtually been forgotten about. (The constitution itself prescribes no time limit for state ratification. Early proposals were open-ended; however, most amendments proposed by Congress in modern times have incorporated a seven-year limit.) The two amendments most recently proposed by Congress, the Equal Rights Amendment and one concerning congressional representation for the District of Columbia, were submitted to the states in the 1970s. Neither attained the necessary three-fourths ratification.

III. Ratification of an Amendment: State Procedures

To become part of the United States Constitution, an amendment must be ratified by the legislatures of three-fourths of the states:

The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several States, shall call a convention for proposing amendments, which in either case shall be valid to all intents and purposes as part of this Constitution, when ratified by the legislatures of three-fourths of the several States, or by conventions in three-fourths thereof, as one or the other mode of ratification may be proposed by the Congress . . .

From Article V, U.S. Constitution (emphasis added)

Although the Constitution specifies that three-fourths of the legislatures (currently 38) must ratify a proposed amendment, details of the ratification process are left to the states themselves. How ratification is handled in each state is subject to individual practices, governed by state constitution, statute, and the rules of each chamber. Appendix A presents the results of a survey of state legislatures concerning their procedures for ratification.

What's a Majority?--State Procedural Requirements

Rule, statute or constitution. Curiously, few state constitutions address the question of ratification of amendments to the federal constitution. Even statutes are relatively silent. These matters are largely governed by chamber rules.

The majority vote that is sufficient for ratification varies from state to state, and from chamber to chamber. Appendix A indicates the vote requirements reported by state legislative chambers.

State ratification vote requirements can be divided into three categories:

Those that require a simple majority (one more than half a quorum) of each chamber.
Those that require an absolute or constitutional majority (one more than half of the total membership) of each chamber.
Those that require a supermajority in one or both chambers.

Over four-fifths of the legislative chambers fall into the first two categories. Only twelve chambers, in seven states, reported supermajority requirements.

Supermajorities. In seven states--Alabama, Colorado, Delaware, Georgia, Illinois and Kansas--ratification requires, either by rule, statute or state constitution, a supermajority vote in at least one chamber, .

In Alabama, both the House of Representatives and the Senate require an affirmative vote of three-fifths of the members for passage. A two-thirds vote is required for passage in the Colorado House of Representatives, the Georgia Senate and both chambers in Idaho and Kansas. A Delaware statute requires a two-thirds majority in each legislative body. Under the Illinois constitution, a three-fifths majority of both houses is necessary for ratification of an amendment to the U.S. Constitution. (Note: This became a matter of controversy in the 1970s when the Equal Rights Amendment gained a majority, but not three-fifths of the membership.)

Other requirements. In some states, the legislation proposing an amendment to the U.S. Constitution are routinely submitted to the governor for signature. This is true in Rhode Island, Tennessee and Wyoming. The practice has no effect on ratification, since technically a governor's signature on the bill or resolution is not necessary. Under Article V of the U.S. Constitution, the action of the state legislatures is final.

Florida, Illinois and Tennessee have state constitutional provisions that are intended to restrict the legislatures from voting on a proposed amendment until after a general election at which a majority of state legislators have stood for re-election. Various court decision have apparently made these restrictions inoperative.

Idaho has a law on its books that requires an advisory vote of the people at a general election before the legislature can act. However, a state attorney general has found that this provision conflicts with Article V of the U.S. Constitution, so it also has been rendered null.

Where Does It Go?--Referral Procedures

A proposed amendment to the U.S. Constitution is usually introduced in a legislature as a concurrent or joint resolution. In most states it is handled like any bill: referred to a committee, which may hold hearings before sending it back to the floor.

It is not immediately clear, however, just how deliberative legislatures will be in considering the Balanced Budget Amendment. Some may suspend usual procedures and proceed directly to a vote. In a number of states, the resolution for ratification is introduced early in the session, prior to Congressional action, in the hope of expediting consideration. As was the case when the Equal Rights Amendment was passed by Congress, some states are interested in acting fast; a few will vie to be the first to ratify. Appendix A gives the most likely committee(s) of referral for each state.

Posted February 1997, reviewed December 2003.
Email statebudget-info@ncsl.org for more information.
Visitor counts for this page.