Supermajority Rules and Policy Outcomes

It is a familiar argument that procedural rules requiring supermajority support for decisions made by collective bodies, such as a legislature, tend to produce better policy. John McGinnis and Michael Rappaport, for example, have relied on this assertion in arguing that the original meaning of the Constitution, whose provisions required supermajoritarian support for enactment, should be preferred today. I think the basic assertion is debatable, but at a minimum, to assess the claim we need to have a clear definition of the degree of supermajoritarianism that ought to be required to ensure “good” results. After all, a requirement of unanimity, for example, often will result in no affirmative enactments; this might be good if you are a committed libertarian, but otherwise the complete failure of the legislature to act often might be tantamount to making bad policy.

Yesterday’s vote on Senator Webb’s proposal is an interesting example. The Senate’s cloture rules — which effectively require a supermajority of 60% to pass a bill — prevented passage of Webb’s bill, which attracted only 56 votes. But the Senate, of course, is not a truly representative institution to begin with. Because each state is entitled to two Senators (thanks to the “good” policy produced by the supermajoritarian enactment rules for constitutional ratification), the voters of small states have a disproportionately large voice in the Senate. Consider what these two layers of supermajoritarianism in the Senate–equal state representation and the Senate’s own cloture rules–meant for yesterday’s vote. If we assume, for argument’s sake, that each Senator represents one half of the population of the state that he or she serves, then we can determine the true degree of the Senate’s supermajoritarianism.

Before I checked the numbers, my intuition was that the 56 Senators voting for the proposal represented a significantly higher percentage of the population than 56%. It turns out that although I was right that they represent more than 56%, it is not too much more. The 56 Senators who voted for Webb’s bill collectively represent 167,477,569 of the 281,424,177 people currently estimated to live in the United States according to the 2000 Census; the 44 Senators who voted against the proposal represent 113,946,607. That means that Senators representing 40.5% of the population were able to prevent passage of Webb’s bill.

Whether this is a good or bad thing depends, of course, on one’s view of what good policy is, and reasonable minds of course can disagree about the merits of the Webb proposal, as a matter of policy or politics. Given the current nature of party representation in the Senate–in which Democrats hold both seats in several small states, including Rhode Island, Delaware, North Dakota, and Montana–the Senate’s equal representation rule does not skew solely in the favor of the Republicans, as it tends to do in the context of the electoral college. But if nothing else, it is important to recognize that sometimes the Senate will in fact be subject to super-supremajoritarian rules –when election patterns combine to aggregate the effects of constitutional requirements and the Senate’s own rules. Whether such rules will generally produce good policy certainly is not immediately obvious to me.

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3 Responses

  1. Archit Shah says:

    Or you could look one step deeper. If we assume that Senators only represent those who voted for them, then you have to look at how each Senator was elected, some won in landslides and others squeaked through. Here’s data from the Senate of 2005-06, where in aggregate across all races 46% of votes went to Republican candidates produced 56 Republican Senators.

  2. Calvin TerBeek says:

    Good fact-based critique of McGinnis’s supermajority assumption. This is, I think, a serious problem in legal scholarship. That is to say, legal academics taking certain propositions as fact — e.g, the countermajoriatarian difficulty — instead of trying to engage with empirical reality. I think originalists (original public meaning originalists) are esp susceptible to this . . .

  3. M. Simon says:

    The less legislation Congress can pass the cheaper it is for all of us.

    Now if only we could prevent Congress critters from bribing each other with earmarks we might actually get some where.

    As it is super majorities often raise the cost of legislation.

    BTW I like having the Senate as a brake on legislation.