A fiscal Constitution with supermajority voting rules.

• Author: Anderson, Elizabeth Garrett

The objective of Supermajority Rules as a Constitutional Solution(1) is a laudable one: eschewing the court-centrism of most legal scholarship, Professors McGinnis and Rappaport emphasize the role of procedures in improving legislative outcomes and enhancing the quality of congressional deliberation.(2) This perspective is not a new one for these authors. Both have written extensively on supermajority voting rules in Congress,(3) and Professor Rappaport has studied other political procedures that implicate structural constitutional issues.(4) Although their conclusions in Supermajority Rules are incomplete because they neither examine supermajority requirements that have operated for years to shape congressional deliberation nor assess the mechanics of the modern budget process, their approach is one that other scholars would do well to consider. The work of courts--the traditional focus of legal scholarship and teaching--is only a small part of the work of modern lawyers. The issues addressed by legal scholarship must expand to account for this shift.(5)

Professors McGinnis and Rappaport identify several questions relevant to an institutional analysis that appropriately recognizes the role that all branches of the federal government play in furthering constitutional and policy norms.(6) First, given the strengths and weaknesses of the various institutions, which one is better situated to vindicate particular constitutional values or to construct solutions to specific policy problems? The authors argue convincingly that certain "political" decisions, such as those concerning the nation's fiscal policies, are ill-suited for judicial resolution and ought to be left primarily with the democratically accountable branches.(7) Enhanced procedures may be required, however, to ensure that the legislative and executive branches act consistently with constitutional principles in the absence of aggressive judicial enforcement.

Second, can particular structures of decisionmaking work to ameliorate deliberative failures that we observe in legislatures? The authors identify several problems affecting congressional budget process that can be addressed through procedural reforms. First, the influence of interest groups can lead to legislation benefitting a small part of society at great expense to the diffuse mass of taxpayers who pay for the subsidy.(8) Legislators facilitate such rent-seeking because they can capture some of the rents; lawmakers know that their other constituents are unlikely to discover the existence or magnitude of such deals.(9) At the least, this kind of interest group activity skews the distribution of public resources away from the public interest. Policymakers can work to devise procedures that either reduce interest group influence, or, more realistically, harness interest group activity to produce more public-regarding outcomes.(10)

The authors further contend that multi-member bodies are often subject to collective action problems.(11) For example, the budget context is plagued by a prisoners' dilemma. In short, members of Congress who individually think that "the public interest is best served by reduced federal spending" also realize that "most of their colleagues will not resist the temptation to spend."(12) Indeed, it would not be rational for the individual members to resist such a temptation: "The cost of government programs is spread among millions of taxpayers, while the benefits of federal spending can be concentrated on a few who will reward their benefactors."(13) Even if voters choose to use elections as the appropriate mechanism to solve this problem, these "voters are likely to hold all members responsible for increased taxes or a higher deficit--not just the big spenders."(14) Procedural frameworks can provide coordination to solve this dilemma.

Another way to frame this problem is as one of competing priorities. Lawmakers and constituents have preferences concerning the size of the federal budget, the method of financing government programs, and the larger objectives of the government. They may consistently undermine those objectives, however, when they make micro-level decisions about particular programs. Procedural frameworks work as precommitment devices to make it more difficult for lawmakers to defect from their primary preferences to satisfy conflicting subsidiary ones.(15)

Finally, procedures can provide legislators an opportunity to deliberate important constitutional and policy issues in a way that is transparent to the electorate. For example, procedures requiring congressional entities to produce particular information before floor debate may highlight issues that lawmakers would otherwise overlook.(16) Of course, procedures cannot guarantee that deliberation will occur, or that the delay they produce will be used solely to improve public discourse rather than to block legislation for other reasons. Procedures may operate to emphasize particular issues and decisions for the electorate, however, and the discussion such procedures spark may lead to policies that are more consistent with public values and priorities.(17)

A third question that the authors pose in their institutional analysis, and a question that any study of congressional procedures must consider, is one of fit. If we are to apply enhanced procedures to particular kinds of legislation, perhaps because we believe the consideration of these bills is susceptible to one or more of the pathologies described above, how do we define the universe of laws that such procedures will govern? As the authors note, they are concerned with reducing the amount of private interest legislation; thus, in an ideal world, they would impose greater burdens, perhaps even absolute prohibitions, only on such proposals.(18) But, it is difficult to sort out private interest bills from those serving the public interest, a situation that makes absolute bans unappealing. The authors argue that spending programs, other than those taking the form of tax expenditures, unfunded intergovernmental mandates, or regulations, comprise the set of proposals most likely to fall victim to the process failures they list.(19) Thus, they believe that greater procedural hurdles are justified in this context.

We may not be convinced that the authors' definition adequately fits their objectives--indeed, I argue that their category is at least under-inclusive, and they admit it is over-inclusive--but my point here is a more limited one. Their argument that any procedural response should be tailored in part according to the closeness of the fit is persuasive. In fact, their discussion only begins to identify the variety of procedural protections available. They emphasize two procedural responses: absolute prohibitions and constitutional supermajority voting requirements.(20) One can think of procedural protections as lying along a spectrum with the two identified by Professors McGinnis and Rappaport as among the strongest. The constitutional supermajority requirement itself can be strengthened or weakened depending on the threshold demanded for passage. Congressional rules that can be changed by the House or Senate with a majority vote offer less durable protection than constitutional provisions.(21) Such rules can create any number of hurdles for legislation. Congressional rules can directly, or indirectly, require that supermajorities support enactment of particular laws.(22) Less stringent rules can require separate majority votes on particular provisions in a bill to disaggregate parts of a logrolled deal.(23) Where along the spectrum one locates the amount of procedural protection in a particular case depends, among other things, on the interests at stake, the flexibility required, and the closeness of the fit between the kinds of bills affected and the relevant values. If one is not sure how to calibrate the level of protection with the values, choosing a congressional rule allows for easier modification than is possible with constitutional provisions.

Having applauded the authors' approach, I must take issue with the analysis of their proposed reform of our "fiscal constitution."(24) Their application of the analytical framework might have been more convincing had they more closely studied and discussed the myriad supermajority voting rules, as well as other countermajoritarian features, that currently shape congressional decisionmaking, particularly in the budget context. More broadly, a sophisticated awareness of budget rules reveals gaps in their analysis and obstacles that could stand in the way of their proposal's reaching its desired outcomes. In the remainder of this Essay, I will provide more detailed information about supermajority rules and the federal budget process, and I will suggest how this data might affect the authors' conclusions.

I.

The most curious aspect of Professors McGinnis and Rappaport's lengthy treatment of supermajority voting requirements for some spending bills is the virtual absence of discussion of the plethora of supermajority voting rules governing congressional deliberation and the many other countermajoritarian aspects of legislative organization. I will not detail the latter, but they are familiar to even the most casual observer of Congress. For example, in virtually all cases, a committee comprising only a few members must approve bills before floor consideration.(25) In the House of Representatives, the Rules Committee must also agree to schedule the bill for consideration.(26) Furthermore, as Lynn Baker and Samuel Dinkin have discussed, the current allocation of representation in the Senate essentially results in supermajoritarianism because of the disproportionate power accorded to small states.(27)

There are more obviously relevant examples of supermajority voting requirements, very similar to the amendment proposed by Professors McGinnis and Rappaport, save for the latter's status as a...