Majority of a Majority

Over on Balkinization, I posted yesterday about the idea of a constitutional “deep state.”  The question is what are the institutions and norms in our system that are not a part of standard constitutional analysis?  (The Federal Reserve is one example.)

Here’s another possibility, though I’m not sure how important it is. It is now a well-accepted practice on Capitol Hill that the leadership will not bring a bill to the floor if a majority of the majority party is opposed.  In other words, a bill that is supported by House Democrats and by many House Republicans–enough to create a majority in the House as a whole–goes nowhere if most House Republicans say no.  In theory, this means that slightly more than one-quarter of the House or Senate can block any bill.

The Senate filibuster gets a lot of attention, but this “majority of the majority” norm could be a much greater obstacle because it reaches into both Houses of Congress and requires a smaller faction to succeed.  I say “could be” because I don’t know as an empirical matter how often this custom stops proposals from being enacted.  The answer may be “hardly ever.”  It’s a good topic for someone to research.

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6 Responses

  1. Toby says:

    Well, the House does have a discharge petition, which can get a bill to the floor even if a “majority of the majority” oppose it. This was (spoiler alert) part of the plot device in the movie Legally Blonde.

  2. Joe says:

    That would be the (other than Bob Newhart) fully substandard Legally Blonde 2.

  3. Gerard Magliocca says:

    True, but a discharge petition is a tall order. The House leadership can lean hard on dissenting members not to sign. Plus, the majority of a majority rule helps the governing party longer term, so repeat players are unlikely to break ranks.

  4. Please remind me why we have a Congress

  5. Brett Bellmore says:

    “The House leadership can lean hard on dissenting members not to sign.”

    There you have your real problem: The leadership have to power to lean hard on individual members. Very few members are willing to cross the leadership for this reason, even in instances where they theoretically have the power to do so.

    The institutional rules have transfered most of the power of individual members to the leadership, in some cases (The enrolled bill doctrine.) with the complicity of the judiciary.

  6. Rick Hills says:

    There has been a long-running debate among political scientists about whether Congress is controlled by its median member or by the majority party. Gary Cox and Matt McCubbins provide theory and evidence for the latter proposition: “Setting the Agenda: Responsible Party Government in the U.S. House of Representatives (Cambridge 2005) argues that the leadership of the majority party controls legislation by keeping bills disfavored by the party from the floor. One important mechanism is the Rules Committee, which tends to have a super-majority of majority party members sitting on it. Cox and McCubbins provide some decent evidence that majority party “vetoes” of bills’ reaching the floor have been a very important mechanism by which the floor agenda tilts towards the median of the majority party.

    I doubt, however, that responsible party government of this sort is undemocratic in any meaningful sense. You do not want to commit what Adrian Vermeule calls the “fallacy of composition” in which you assume that, because procedures within component parts of a system are more democratic, therefore the system as a whole is more democratic. Making the House of Representatives responsive to majorities within the House is not the same as making the U.S. law-making process responsive to a majority of voters. In particular, skewing each House’s decisions to the median of its majority party might actually make voting more democratic to the extent that voters vote on the basis of party labels rather than the individual ideological profile of their congressperson. Given that many voters are likely ignorant of the latter, having party-based agenda-setting in Congress might actually be closer to voter preferences than member-based agenda setting.

    (I do not endorse this view, being too ignorant of the underlying political science to have any firm opinion. I just caution against assuming that protecting the voting rights of the median member of Congress is the same as protecting “democracy”).