If a balanced-budget amendment were to pass the House and Senate with the necessary two-thirds approval, is there any chance it could get ratified by enough state legislatures to become a part of the Constitution?
It would be a hard road to slog, at least given the current political balance in state legislatures across the country.
The Constitution requires that three-quarters (38) of the states ratify an amendment before it can become law. (It’s also possible for two-thirds of the state legislatures to vote to convene a constitutional convention and for the convention to vote on an amendment, but in the 222 years since the Constitution’s ratification, this has never come close to happening.)
There are two ways for a state to ratify an amendment. The first way is for a simple majority of the members of its legislature to vote in favor of the amendment. The second way is for a state ratifying convention independent of a state’s legislature to approve it, although this has only happened once, during the passage of the 21st Amendment, which ended Prohibition.
Currently, Republicans control 26 state legislatures and Democrats control 15, while eight are split between the two parties. Nebraska has a unicameral, nonpartisan legislature. Assuming that the 27 Republican-controlled legislatures (I’m throwing Nebraska into that category) ratify the amendment, all eight of the split-party legislatures and three of the Democrat-controlled legislatures would also need to vote in the affirmative (governors can’t veto amendments).
Of the states with split legislatures, Alaska, Colorado, Iowa and Virginia are the most likely to ratify a balanced-budget amendment. There are three Democrat-controlled state legislatures that could possibly pass such an amendment as well: Arkansas, Nevada and New Mexico. Arkansas is a conservative state with Democrats controlling both houses by narrow margins, while the Nevada Senate is split almost evenly, with Democrats holding a 10-member advantage in the state assembly. In purplish New Mexico, Democrats hold a slight majority in the state assembly and a larger majority in the state senate.
Even if all of the aforementioned states ratified the balanced-budget amendment, it would remain four states short of passage — and it’s hard to see any additional states ratifying it in the near future.
There are a number of states where passage of a balanced-budget amendment is almost inconceivable. Republicans have a narrow majority in New York’s senate, but Democrats outnumber Republicans in the state assembly by a nearly two-to-one ratio. Of Hawaii’s 76 state legislators, only nine are Republicans; of Delaware’s 62 state legislators, only 22 are Republicans; and of Massachusetts’s 160 state legislators, only 36 are Republicans. Democrats also dominate both houses of California’s legislature.
What’s more, it can’t be taken for granted that all Republican-controlled legislatures would vote to ratify a balanced-budget amendment. The state legislatures in Louisiana, Maine, Minnesota and Wisconsin all have relatively slim Republican majorities, and Wisconsin’s recall battles may flip the state senate by September — before the House and Senate would be able to vote on the next iteration of a balanced-budget amendment.
And it goes without saying that the necessary two-thirds support in each chamber of the U.S. Congress is itself a high barrier.
It’s possible that the frustration of balancing state budgets in a time of fiscal duress will cause state legislators to decide that it’s time the federal government shared their pain. Of course, state legislators might also respond to that frustration by rejecting a federal balanced-budget amendment, on the grounds that it would cause the federal government to unload more programs on the states.
But amendments don’t have to be ratified immediately. The 27th Amendment passed Congress in 1789 but didn’t receive the approval of three-fourths of the states until over 200 years later. A popular 2012 Republican presidential candidate could help elect enough conservative legislators to tip the scales in the balanced-budget amendment’s favor.
Matt Thoman is Coordinator of Economic Policy at the American Action Forum.