Could a balanced-budget amendment ever pass the states?

Republicans, we’ve learned, really want a balanced-budget amendment to the Constitution. So much so that, under the debt-ceiling deal, they’re willing to give President Obama an additional $1.5 trillion in borrowing authority, no questions asked, if Congress merely votes to approve an amendment and send it to the states for ratification.

So why don’t Democrats just call their bluff and vote for a balanced-budget amendment? Sure, the amendment is a terrible, impractical idea that could cripple the economy and get the courts involved in micromanaging federal spending. But that’s only if it gets ratified by the states. And constitutional amendments are notoriously difficult to enact. They need the approval of the entire legislatures of 38 states, which means that a mere 13 chambers in 13 states can block the amendment. And Republicans only control 26 statehouses across the country:

“It’s much, much easier to play defense,” explains Sanford Levinson, a law professor at University of Texas Austin. Amendments that generate controversy rarely gain momentum. The last successful amendment whose prospects were initially uncertain was arguably the 22nd, which sets term limits for presidents, and that was ratified back in 1951. And, in this case, there would surely be at least 13 legislative chambers that understand the consequences of a balanced-budget amendment. More than 30 states, after all, have their own balanced-budget rules. Which means that when there’s a recession, and spending automatically rises — especially on programs like unemployment insurance and Medicaid — they rely on the federal government, which can run counter-cyclical deficits, to send aid. Why would states cripple themselves like that?

One wild card here would be how Congress approved the amendment. Congress is allowed to define a time limit for the states to ratify — it could be six months or it could be unlimited. (The 27th Amendment, which governs congressional salaries, was originally proposed in 1789, but there was no time limit, and it was finally ratified more than two centuries later when Illinois took the plunge in 1992.) Not only that, but Congress can decide whether the amendment has to be approved by state legislatures or by state conventions. The balanced-budget amendment polls quite well, and could conceivably pass if put to popular referenda. So if Democrats wanted to report the amendment out—but didn’t actually want it to pass—they could stump for short time limits and no conventions. Republicans, presumably, would push for the reverse.

The real flaw in this plan is the obvious one — what if, against all odds, the amendment was actually ratified? Suddenly Democrats wouldn’t look so brilliant. Note that a similar dynamic occurred with the 18th Amendment, which kicked off Prohibition. As Dan Okrent’s “Last Call: The Rise and Fall of Prohibition” details, the Anti-Saloon League provided swing votes in a number of close races and managed to pressure senators to approve the amendment and send it to the states. Some of the senators figured the amendment’s chances of ratification were low and so there was little harm in a “yes” vote. There was plenty of time to ponder that one at the local speakeasy.