The centerpiece of former pizza czar Herman Cain’s presidential campaign is his radical “999” tax plan that would create the largest deficits since World War II, slash taxes on the wealthy and jack up taxes on the poor by as much as nine times. At last night’s GOP presidential debate, however, former Sen. Rick Santorum (R-PA) attacked Cain’s plan — not because it is both fiscally irresponsible and morally indefensible — but because he feared that future generations could increase Cain’s proposed national sales tax. In response, Cain claimed the right to effectively permanently entrench his 999 plan in American law no matter what future generations tried to do:
SANTORUM: Cain is giving, naively, a tool in his 999 plan of giving Washington a huge new tax opportunity to get money through a sales tax. Can we trust you that, with your lack of experience, you won’t continually give Washington the ability to take freedom away from freedom-loving people here in the Live Free or Die state? […]
CAIN: There are three deterrents to this nightmare scenario that you described. […] The first deterrent is that I’m going to ask the United States Congress to include a two-thirds majority vote before they can raise the 999 tax.
Once again, Cain reveals that his grasp of the Constitution is even weaker than his grasp of economic policy. The Constitution forbids lawmakers from tying the hands of their successors. Lawmakers have broad discretion to enact the laws they think are best for the country, but the voters almost always retain the power to vote them out of office and have their newly elected leaders implement different policies. As the Supreme Court held more than a century ago, newly elected legislators “have the same power of repeal and modification which [past legislators] had of enactment.”
To be sure, Cain might try to justify his unconstitutional supermajority requirement by citing the filibuster — a Senate procedure that has certainly prevented much lawmaking at all from occurring in recent years. But Cain’s proposal goes much further than the filibuster. For one thing, there is a big difference between a 60-vote rule in one house of Congress and a two-thirds rule in both houses. The first requirement can occasionally be overcome; the second is virtually the same thing as a total ban on changing the law. Additionally, the filibuster doesn’t single out one law for special treatment — insulating it from repeal in a way that no other law is protected.
There are non-frivolous arguments that the filibuster itself is unconstitutional. But even if the Supreme Court were to uphold it, Cain’s ubermajority requirement is something else altogether. Indeed, it is just one more sign that Cain thinks the Constitution means whatever he feels like he wants it to mean.