Senate To Force Vote On Buffett Rule? But, Wouldn’t That Be Unconstitutional?

Greg Sargent reports that some Senate Democrats are considering trying to force their Republican colleagues to take a vote on President Obama’s so-called “Buffett Rule,” which he described in his State Of The Union Address as a guarantee that no person earning more than a million dollars a year would pay taxes at a rate less than 30 percent:

Picture this scenario. The Senate holds a high-profile vote on a proposal focused directly on implementing the Buffett Rule, one that would bring the current tax rate for millionaires paying lower rates on investments up to 30 percent. This, at at exactly the moment when the GOP is picking a nominee who is worth $250 million and is personally benefitting to an enormous degree from the current rate — one that’s lower than many middle class taxpayers pay.

It could happen. I’m told that Senator Sheldon Whitehouse is set to announce a proposal to do just this. The Senate Dem leadership is not commenting on this idea, but Dem leaders are looking for ways to hold votes on the agenda Obama laid out in his State of the Union speech. This would accomplish that perfectly.

Harry Reid has spoken positively about the general idea of a vote on the Buffett Rule, so it seems likely that Whitehouse’s idea will get serious consideration.

Whitehouse’s office shared some details of the proposal — which is called “Paying A Fair Share Act,” and will be introduced by Whiteouse next week.

The bill would ensure that taxpayers who make over $1 million would pay at least a 30 percent tax rate on all their income, Whitehouse aides say. It would do this by requiring millionaires to calculate their overall effective tax rate under the regular system — by taking into account all their sources of income and the various rates they are taxed at.

Those taxpayers whose effective rate is under 30 pecent would be required to pay taxes on all their income at the 30 percent rate. (Charitable contributions that are deductible under the current system would be exempt from income calculations.)

This answers one question that neither the President, nor any other Democrat, had been able to answer until now. Namely, what form the so-called “Buffett Rule” would take and how exactly they propose to implement it. Whitehouse’s plan appears to be yet another version of an Alternative Minimum Tax, although one would think that the extent to which the current AMT has evolved over the years into something that applies to far more than just “rich” people would cause Capitol Hill to pause before doing it yet again.

In any event, Ed Kilgore likes this idea:

The idea is to offer this pointed and very popular measure as part of a series of Senate votes designed to implement major presidential initiatives from the SOTU address. But it would be a separate vote. It would also presumably require a great deal of sustained publicity to make it clear a filibuster is a vote against the substance of the measure.

If they hurry, Senate Democrats could perhaps get this vote scheduled for the day the Beltway Pundits crown Mitt Romney, who would be a direct party of interest in this initiative, the putative GOP nominee.

In other words, it’s pure political theater, which I suppose is what one might expect in an election year. There’s just one possible problem with Kilgore’s idea, it appears that it would be unconstitutional. Article I, Section 7, Clause 1 of the Constitution says the following:

All bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

What this means, of course, is that all bills that include a tax increase must originate in the House of Representatives. A “Buffett Rule” bill that originates in the Senate would not meet Constitutional muster under this provision and would therefore be invalid. It’s possible that there’s a House-passed revenue bill sitting out there that the Senate could “amend” and turn into the “Buffett Rule” Bill, but unless that’s the case this would be an utterly pointless, and totally political, act. Of course, that’s what it is anyway so I suppose the fact that it might also be unconstitutional doesn’t matter, does it?

FILED UNDER: 2012 Election, Congress, Deficit and Debt, Taxes, US Politics, , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Hey Norm says:

    “…looking for ways to hold votes…”

  2. What this means, of course, is that all bills that include a tax increase must originate in the House of Representatives.

    There’s been a way around this for years. They just pick a random bill passed by the House, and ammend it to remove the entire contents of the original bill and insert whatever it is that the Senate wants to do. This is why if you ever bother to look them up, most Senate bills that have anything to do with spending have titles that have absolutely nothing to do with the contents of the bill (as an example, the Senate version of the Patient Protection and Affordable Care Act (HR 3590) is actually called the “Service Members Home Ownership Tax Act of 2009”). Now this is an obvious end run around the spirit of the Constitutional requirment, it does stick to the letter of it, and in any case has been going on so long that I doubt it will be successfully challengable at this point.

  3. Stormy,

    They can’t just take any bill that started in the House and amend it. It has to be a revenue bill

  4. @Doug Mataconis:

    There’s still plenty of those around. Heck, if Reid really wants to be ironic, he can use the bill the House passed to make the Bush tax cuts permanent.

  5. Hey Norm says:

    I do agree it is political theatre. But so was the House repealing the PPACA. And their Cut/Cap/And Balance nonsense. And Ryan’s ironically titled Path to Prosperity bill. And their resolution supporting the Nat’l Motto…which as far as any can tell is not under attack. So what’s your point?
    Nothing would make me happier than for Obama to propose wholesale tax reform. I’d love to see absolutely no deductions or loopholes and a progressive rate structure, with a similar number of brackets as today, that raises the appropriate amount of revenue. You make X amount of gross income…so you fall into a X% bracket…and anyone with a calculator can figure it out. Reasonable people can discuss what the appropriate level of revenue is…18, 19, 20%…whatever.
    Unfortunately the reality of our current political climate makes anything like that a non-starter. Even if Republicans love the idea…they will be vociferously against it.

  6. Jenos Idanian says:

    Why doesn’t Obama simply declare Congress in recess and pass the Buffett rule by executive order?

  7. PD Shaw says:

    Perhaps they could resurrect the Terri Schiavo Bill, add the Buffet Rule, and now you have a well-balanced bill of attainder, not a bill concerning revenue.

  8. Brummagem Joe says:

    Of course it’s a political vote to make a point. This sort of behavior is of course completely unknown in the GOP. And unconstitutional? Yeah right Doug.

  9. OzarkHillbilly says:

    Ohhh, the HORROR… A political party is playing politics in an election year!!!! This has NEVER happened before! Also among the things that have never happened before, Doug has gotten his panties in a bunch.

  10. Jim Swift says:

    What they’ll do is use bills passed by the House as a “shell.” That’s how the Senate gets around this, since the bills still technically originate in the House.

  11. B.D.Randall says:

    Thank you! Romney for showing your tax return. Thank you!