SUPERMAJORITY RULES

A supermajority rule is a rule that requires a legislative body to pass a class of legislative enactments, such as treaties or bills of certain types, by more than a bare majority. Supermajority rules are created either by the legislature or by the Constitution. An example of a legislative super-majority rule is the requirement first adopted by the U.S. house of representatives in the 104th Congress that three-fifths of those voting are needed to pass an increase in income tax rates. Examples of constitutional supermajority rules include the clause requiring that two-thirds of the U.S. senate approve treaties and the provision allowing Congress to propose constitutional amendments only if two-thirds of the House and the Senate approve.

Supermajority rules have a number of justifications. Some matters such as constitutional amendments are thought to be so important that they require a greater-than-majority consensus. For other matters, supermajority rules are justified as necessary to offset what is thought to be the disproportionate power of special interests in a legislature governed by majority rule. For example, proposals to require supermajorities for tax increases has been based on the view that the power of special interests would otherwise lead to higher taxes than the majority of citizens actually prefers.

Controversy over federal legislative supermajority rules centers on whether Congress has the constitutional authority to enact them. Defenders of the constitutionality of such rules have argued (1) that the clause authorizing "each House [to] determine the Rules of its Proceedings" allows either house to pass whatever rules it chooses unless they violate a constitutional provision and (2) that no constitutional provision precludes supermajority rules. Those who attack the constitutionality of legislative supermajority rules argue that the constitutional clause allowing Congress to pass bills should be read to mean "pass by a majority." Defenders counter that neither constitutional history nor structure support this reading. One proposition accepted by both sides of the debate is that neither house may prevent a majority from repealing supermajority rules. This proposition, however, raises questions about the utility of such rules. If simple legislative majorities can undo legislative supermajority rules, they may not greatly restrain such majorities.

Constitutional supermajority rules, however, are more entrenched political norms and cannot be so easily undone. Constitutional supermajority rules represent a compromise between the two other principal forms of constitutional governance: rule by legislative majority and absolute constitutional limitations, such as those contained in the bill of rights. Like rule by legislative majority, supermajority rules allow Congress to make the decision whether to pass a bill. Like absolute constitutional limitations, however, supermajority rules restrain a simple majority from passing certain types of laws.

Proponents of constitutional supermajority rules argue that, as a third distinct form of constitutional governance, such rules will under certain circumstances be preferable to both legislative majority rule and absolute limitations. Supermajority rules will be superior to legislative majority rule when special interests (or other defects) undermine the majoritarian process. In these circumstances, super-majority rules may act as a constitutional filter, blocking more undesirable legislation than desirable legislation. Supermajority rules will function better than absolute limitations in areas where there is no determinate principle for judges to enforce or where it is inappropriate to give judges the authority that absolute limitations generally provide.

Opponents of supermajority rules suggest that they are inconsistent with democracy because they detract from majority rule and the principle that citizens should have equal influence on legislation. Proponents of constitutional supermajority rules respond that all constitutional limitations constrain simple democracy, and say that the question is whether these limitations will work well. Moreover, if supermajority rules are employed to limit special interests, proponents argue that such rules will in fact advance the democratic goal of equal influence.

Michael B. Rappaport

John O. Mc g innis
(2000)

Bibliography

Amar, Akhil Reed et al. 1995 An Open Letter to Congressman Gingrich. Yale Law Journal 104:1539–1544.

Mc Ginnis, John O. and Rappaport, Michael B. 1995 The Constitutionality of Supermajority Rules: A Defense. Yale Law Journal 105:470–483.

——1997 The Rights of Legislators and the Wrongs of Interpretation: A Further Defense of the Constitutionality of Legislative Supermajority Rules. Duke Law Journal 47:327–349.

——1999 Supermajority Rules as a Constitutional Solution. William and Mary Law Review 40:365–470.

Rubenfeld, Jed 1996 Rights of Passage: Majority Rule in Congress. Duke Law Journal 46:73–90.