Tuesday, February 15, 2005

Supermajorities Rule

As the Iraqi election results are becoming known, many are relieved and pleased to see that the leading Shiite party received what appears to be about 48%, a strong plurality but not a majority. What this means is that no party will be able to completely dominate the proceedings, and inclusive compromises will need to be reached. (Some voice concerns that the top two parties -- the Shiites and the Kurds -- together have about 75%, and can forge an alliance of common convenience but lacking a deeply shared vision. Others are encouraged that the Shiites are talking about trying to be broadly inclusive.) Facing the possibility of strongly polarized contingents, and a possible Shiite majority, the interim constitution was explicitly designed with supermajority protections: a presidential triumvirate requires 2/3 election by the assembly, the triumvirate must act unanimously, and any new constitution requires approval in 16 of 18 provinces. The practical consequences of these supermajoritarian mechanisms are that broad agreement must be built across various constituencies in order to govern, protecting minority groups from the "tyranny of the majority".

Michael Rappaport of The Right Coast is especially attuned to the benefits of supermajoritarian mechanisms for the nascent Iraqi government. He and John McGinnis have written a paper suggesting supermajoritarianism as the central principle underlying the US Constitution. They note that this principle pervades the Constitution both explicitly (e.g., 2/3 Senate majority needed to ratify treaties) and implicitly (bi-cameral Congress plus Presidency required to enact laws). They explore the principle of supermajority, suggesting that it can improve the quality of legislation, particularly in certain situations. Such specific situations include:

  1. where special interests are pushing for legislation rather than opposing it (budget bills are a good example),
  2. where there is (a) strong partisanship and (b) the cost of doing the wrong thing is higher than the cost of not doing the right thing (e.g., impeachment),
  3. where decisions are difficult to undo (e.g., treaties or constitutional amendments),
  4. where consensus is beneficial to the decision-making

The authors are careful to note that supermajority mechanisms do not cure all ills, and may not be beneficial when those sorts of circumstances are not present.

I have always appreciated the supermajority concept and found this paper intriguing in its systematic analysis of it. It is interesting to see the concept in action, not only in Iraq, but closer to home. Here in California, a 2/3 vote of the legislature is required to pass a budget. This has been a contentious issue, and in the past several years, especially as the legislature has become increasingly polarized, budgets have been very difficult to pass. The Democrats, who control both houses with solid majorities but not a supermajority, have complained bitterly about "obstructionist" Republicans. And there have been suggestions floated to amend the state constitution to lighten the requirement to a simple majority for the budget. However, application of Rappaport and McGinnis' analysis would suggest that the supermajority requirement for the budget is a good idea, as the critical factors are present. A budget bill, as per their discussion, is the quintessential example of factor 1, where special interests are pushing for pet legislation. Supermajority requirements help defend against pork. Budgets also benefit from a consensus process (factor 4), since by its nature a budget is about reconciling competing interests (each of which may have merits on its own, but all of which must be balanced together). The only counter-argument I can see is that one might claim that the whole state suffers when the legislature fails to enact a budget on time (factor 2b - whether the cost of doing the wrong thing is higher than the cost of inaction), but I don't think the cost of inaction is critically high here. Granted, some are inconvenienced and some functions of the state shut down, but this has the good effect of significantly raising the pressure on the legislature to finally reach consensus. Overall, I think application of this theory would suggest that California has the right idea with its current 2/3 majority requirement for budget bills, and should not be receptive to proposed amendments to water it down.

The other place where we see the supermajority concept in action is the recently heated topic of Senate filibusters, particularly in regard to judicial appointments. The practical effect of the filibuster, a time-honored but contentious Senate tradition, is that 60 (of 100) votes are required to get things done. Some Republican partisans annoyed with Democratic "obstructionists" (and with too-short memories of when the Republicans were the minority "obstructionists") have suggested that the filibuster is unconstitutional (because it is not expressly authorized in the Constitution). This is plainly silly. The Senate is clearly free to set its own rules of procedure, which may include all sorts of details not included in the Constitution. Extra-constitutional does not mean un-constitutional. If the filibuster is unconstitutional, then so too is the two-party system. Now we have this analysis from Rappaport and McGinnis, we can see that the filibuster is well aligned with the guiding principle of the Constitution, and that the founding framers would have given it their wholehearted approval. In fact, with regard to judicial confirmations, I would argue that all four of the supermajoritarian success criteria are at work. In recent history, judicial appointments have been increasingly abused to appoint partisans favored by one special interest or another, so here is factor 1 and 2a. Since judges, once confirmed, serve for life, we clearly have factor 3 (the decision is difficult to undo), and arguably we have factor 2b as well: the cost of appointing a "bad" judge to a life term is surely higher than the "cost" of turning down the appointment of a "good" judge. And since we ought to want our judges to be broadly non-partisan, factor 4 is also present. (The paper also examines the potential costs of supermajority mechanisms. In the instance of judicial confirmations, the administrative and substitution costs are minimal.) Under this analysis, I think we have a good argument not only for preserving the filibuster, but even adding a higher supermajority requirement (e.g., 2/3) for judicial confirmations.

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