Why Grover Norquist’s Anti-Tax Pledge Is Unenforceable and Unconstitutional

This column is part of Mr. Dean’s series on Republican Party obstructionism. –Ed.

We are approaching a metaphorical “fiscal cliff”—so named by Federal Reserve Chairman Ben Bernanke.  It is occurring because of the expiration of the Bush Administration’s tax cuts in January 2013, along with the self-imposed sweeping spending cuts that Congressional Republicans demanded in order to raise the government’s debt-ceiling limit, a combination of events that most economists believe will harm the American economy if it is not averted or appropriately addressed.

To deal with the potential crisis, President Obama has urged Congress to extend the Bush tax cuts (enacted in 2001/2003, and expiring in January 2013) for all with incomes below $250,000.  The President wants to return to the marginal tax rates that prevailed during the Clinton Presidency for those with higher incomes.  Some sixty percent of Americans agree with this approach, according to an ABC News poll.

But not Washington lobbyist Grover Norquist.  He wants no tax increase for anyone, ever.  Norquist hopes to shrink the size of the federal government by starving the beast, or cutting off the tax revenues that are needed to operate the government.  And over the past few decades, Norquist has enlisted countless Republicans to join his cause by pledging in writing to never increase taxes.

The debate over dealing with the fiscal cliff has placed the Norquist pledge front and center.  Truth be told, however, the Norquist pledge is merely an irresponsible tactic that has been used by contemporary conservative Republicans to obstruct government.

The Norquist Pledge 

Norquist, who is now fifty-six years of age, recently told 60 Minutes that he first conceived of a Republican anti-tax pledge in 1968, at just twelve years of age, while working as a young volunteer seeking to get Richard Nixon elected president. This is not surprising.  Norquist’s anti-tax pledge is juvenile, with all the political sophistication and legal acumen of a twelve-year-old.

According to Norquist’s tantrum-titled political autobiography, Leave Us Alone: Getting the Government’s Hands Off Our Money, Our Guns, Our Lives (2009), he founded Americans for Tax Reform (ATR) in 1985, and in 1986 started enlisting Republicans to take his pledge to not raise taxes.  Norquist is a businessman, not an attorney, and his business is protecting the interests of big business in Washington.

His pledge, a rather loosely written document, states: “I [insert name] pledge to the taxpayers of the state of [insert name], and to the American people that I will: ONE, oppose any and all efforts to increase the marginal income tax rates for individuals and/or businesses; and TWO, oppose any net reduction or elimination of deductions and credits, unless matched dollar for dollar by further reducing tax rates.”

According to the ATR website, by signing the so-called Taxpayer Protection Pledge, “candidates and incumbents solemnly bind themselves to oppose any and all tax increases. While ATR has the role of promoting and monitoring the Pledge, the Taxpayer Protection Pledge is actually made to a candidate’s constituents, who are entitled to know where candidates stand before sending them to the capitol. [And] it is considered binding as long as an individual holds the office for which he or she signed the Pledge.” (ATR’s emphasis)

In fact, the pledge is totally unenforceable, and thus no different from any other campaign promise, notwithstanding impressions to the contrary that have been given by Norquist himself, and by some in the news media.

Norquist’s Pledge Is Unenforceable

Black’s Law Dictionary defines a pledge as “a promise or agreement by which one binds [oneself] to do or forbear something.”  Norquist’s pledge is not binding, for a number of reasons.  As all lawyers know, for a promise or agreement to be binding there must be an exchange of good and valuable consideration (with consideration meaning, in this context, a thing of value) between identifiable parties for a lawful purpose.  Norquist’s pledge meets none of these requirements.

There is no consideration, as would be required for the Norquist pledge to be binding.  Rather, the pledge is merely a written campaign promise.  (Here’s an essay that’s directly on point: “Promises by Political Candidates Not Legally Enforceable in the USA“ by attorney Ronald B. Standler.)  There can be no consideration for this pledge because, if it were otherwise, it would be illegal, for it is bribery to offer or accept a candidate’s or incumbent’s future actions in office as consideration.

Pursuant to the material on Norquist’s ATR website, no one is bound to him by his pledge; rather, the pledge is simply a commitment to voters who elect the pledge-signing candidate.  Norquist states that his pledge is self-enforcing—”candidates and incumbents solemnly bind themselves”—but in a leading case cited in the Standler essay (above), Schaefer v. Williams, the court pointed out that “a person can make a promise to himself, but the law does not provide remedies for breach of such promises.”

The Norquist website further explains that although ATR promotes and monitors compliance with the pledge, the promise is “actually made to a candidate’s constituents.”  But again, under long-established contract law, such a pledge is unenforceable.  For example, in Schaefer, the defendant pledged in writing to follow the California Code of Fair Campaign Practices, and thus it was claimed that he had made an enforceable promise to the people of California.  Thus, his  situation was very similar to the Norquist arrangement. The court, however, found that for the pledge to be enforceable there must be at least two identifiable parties to a contract, “a promisor and a promisee,” but the collective group of the people of California were deemed too vague an entity to be a promisee under contract law. The Norquist pledge includes not only the taxpayers of the state of the pledge-signer, but also “the American people,” a collective group that is even less precise.

Norquist’s pledge fails, however, for an even more fundamental reason: The object of his pledge is unconstitutional, and thus illegal, and if Norquist is enforcing his pledge by threatening to run primary-campaign candidates against those Republicans who fail to honor his pledge, that enforcement strategy could raise questions of extortion.

The Unconstitutionality of the Norquist Pledge     

Article I, Clause 8 of the U.S. Constitution states, “The Congress shall have power to lay and collect taxes….”  Amendment XVI [adopted 1913] states, “the Congress shall have power to lay and collect taxes on income, from whatever source derived….” It is indisputably clear that a primary Constitutional responsibility of anyone elected to Congress is to enact laws relating to American taxes.

The Constitution further requires, in Article II, Clause 8, that presidents take an oath to faithfully execute their office, and to “preserve, protect and defend the Constitution of the United States.” Similarly, Article VI, Clause 3, states that “Senators and Representatives … shall be bound by oath or affirmation to support this Constitution….”

To honor this Constitutional requirement, Congress has enacted a law requiring the following oath: “I [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I’m about to enter, so help me God.”

The oaths for federal office (and state offices as well), which demand allegiance first and foremost to the Constitution, are absolutely incompatible with the Norquist pledge.  Congress has the defined power to raise or lower taxes, not merely to lower them.  Indeed, to give the central government the power to tax was one of the reasons the founders abandoned the Article of Confederation, and wrote a new constitution.  The Norquist pledge prohibits the pledge-taker from raising taxes, and thus, it requires that the pledge-taker give something less than true faith and allegiance, without reservation, to our Constitution—as required by that Constitution.  The Norquist pledge requires the signer to relinquish a Constitutional power.

If the federal oath of office is taken after a legislator has signed a Norquist pledge, the federal oath clearly trumps the Norquist pledge.  No official can be true to the Constitution’s oath if he or she has refused to raise taxes, and is only willing to lower them.  Throughout our history, there have been repeated occasions when common wisdom demanded (with only kooks doubting th point) the need for tax hikes, such World Wars I and II, and Korea.  Today, because the Bush II Administration took the nation into two unpaid-for wars in Iraq and Afghanistan, not to mention added unfunded entitlements, only outliers and malcontents (along with a few, very selfish members of the well-to-do) deny that we need to raise taxes on those who are very able to pay additional taxes, in order to prevent a further downturn in the economy, while continuing the tax cuts for all but the most affluent few.

If any member of Congress has signed the Norquist pledge AFTER taking his or her oath of office, he or she has violated that oath—which is no small matter. I suspect that a member of Congress could have much more serious problems with voters for violating his or her oath of office, than they might have due to their ignoring the pledge of a Washington lobbyist.

Enforcing the Unenforceable Norquist Pledge

Norquist is doing his best to keep his pledge from being violated by Republicans.  He has issued public warnings to all who have signed his pledge that, regardless of the approaching crisis, he expects them to honor his pledge.  More specifically, CNN reports that Norquist is threatening to unseat Republicans who break the pledge.  Of course, Norquist says that he is not doing this himself; rather, he claims that it is the voters who purportedly relied on the pledge who will vote pledge-violators out of office.  This is a ruse.  In fact, the reality is that Norquist finds and funds candidates to run against those who violate his pledge.

As Newsmax reports, “Norquist has often used the financial power of his group to help elect Republican members to Congress. He’s also used it to help defeat candidates who won’t sign his pledge or who renege on their no-tax promise.” Norquist has a long relationship with other conservative lobbying organizations, like the Chamber of Commerce, where he began his work in Washington.  The Nation reports that Norquist’s current big backers are pharmaceutical and industrial groups that seek to avoid government regulation. It is for that reason that the groups support his $8-million-a-year operation.

Washington lobbyists raise money for Congressional and presidential candidates literally every day; this is standard operating procedure.  But threatening office-holders with recruiting opponents to unseat them if they vote the wrong way on taxes comes dangerously close to violating the very broad language of the federal extortion law, 18 U.S.C. § 875 and the federal conspiracy statute, 18 U.S.C § 371.  In short, while Norquist is busy playing the heavy to prevent Republicans in Congress from breaking their pledge to never raise taxes, he can only go so far, before he is on the wrong side of the law on this matter.

As the fiscal cliff approaches, it appears that more and more Republicans, both publicly and privately, are figuring out that they have no obligation whatsoever to Grover Norquist.  Rather, the first obligation of these officeholders is to the Constitution, which asks them simply to use their fair and honest judgment about whether or not it is necessary to raise taxes at this time.

Norquist, it appears, has overplayed his juvenile and obstructionist anti-tax gambit. While he reportedly has 238 Republicans in the current House of Representatives, and 41 members of the Senate, as pledge signatories, those numbers will shrink, in the new Congress that is convening in January, to 219 in the House and 39 in the Senate.  And it appears that new defectors are lining up to ignore the unenforceable and unconstitutional pledge in order to do the right thing, and deal with the “fiscal cliff.”  How nice it would be to see a few Republicans act like adults, rather than following the ideological demands of a petulant Washington lobbyist who is trying to enforce an idea he developed as a twelve-year-old.