Getting from here to there: the rebirth of constitutional constraints on the special interest state.

• Author: Baker, Lynn A.
• Position: Response to article by John O. McGinnis and Michael Rappaport in this issue, p. 365

In Supermajority Rules as a Constitutional Solution,(1) Professors John O. McGinnis and Michael B. Rappaport have said much with which we agree. We share their conception of federal spending legislation as the product of a repeated prisoner's dilemma(2) that steadily increases the amount,(3) and decreases the efficiency,(4) of federal spending over time.(5) We agree that a supermajority requirement for enacting spending (or any other) legislation would increase the various decisionmaking costs, including the holdout costs, of passing such legislation,(6) and therefore decrease the frequency with which it passes.(7) Finally, we agree that "as the percentage of legislators required to pass a bill increases, the percentage of efficient spending bills that are enacted also should increase."(8)

Notwithstanding these central areas of agreement, we are troubled by two important aspects of McGinnis and Rappaport's analysis and proposal. First, we do not believe they have demonstrated that the interest groups that benefit under the existing majoritarian system would in fact support the adoption of a constitutional amendment that required the consent of a supermajority to pass certain spending legislation.(9) In Part I of this Essay, we provide evidence not only that getting from here to there may be more difficult than McGinnis and Rappaport anticipate, but that their chosen destination may well be unattainable under the U.S. Constitution. Second, even if we were persuaded that the McGinnis-Rappaport Amendment could be formally proposed and ratified, we contend in Part II that the Amendment would do little to decrease the aggregate cost to society of the special interest legislation that Congress enacts.

1. THE SMALL STATE BIAS IN CONGRESS AND IN AMENDING THE CONSTITUTION

   In order to be an effective constraint on congressional spending, the supermajority rule that McGinnis and Rappaport propose must be a provision of the U.S. Constitution. Otherwise, of course, a simple majority of both houses of Congress could simply repeal, or create an exception to, the rule whenever it proved inconvenient.(10) Amending the Constitution to include such a supermajority rule, however, is likely to prove much more difficult than McGinnis and Rappaport expect, even though they explicitly "recognize that even beneficial changes in a regime are effectuated only with difficulty."(11)

   McGinnis and Rappaport aptly quote Machiavelli's observation that "innovation in regimes `has as enemies all the people who were doing well under the old order, and only halfhearted defenders in those who hope to profit from the new.'"(12) But they fail to appreciate the potentially fatal implications of Machiavelli's observation for their own proposal, perhaps because of their assumption that "everyone has special interests regarding some kinds of legislation and is a member of the diffuse public for other kinds."(13) From this highly plausible premise, McGinnis and Rappaport go on to conclude that each citizen would be willing to surrender his own subsidy so long as all other citizens agreed to do the same,(14) presumably because all citizens benefit equally under the existing regime.(15) We believe, however, that some citizens systematically benefit much more than others under the existing regime and, therefore, might well not be willing to surrender their own subsidies even if all other citizens would agree to do so.

   In previous articles, we have demonstrated both theoretically and empirically(16) that the existing structure of representation in Congress, combined with the existing rules of majoritarian decisionmaking,(17) affords small population states disproportionately great representation, and therefore also disproportionately great coalition-building power, relative to their shares of the nation's population.(18) This allocation of coalition-building power importantly affects the distribution of gains from any pork-barrel legislation Congress enacts, ensuring small population states a disproportionately large slice, and large population states a disproportionately small slice, of the federal "pie."(19) That is, the existing regime promotes systematic wealth redistribution from the larger states to the smaller states.(20)

   This means that the existing rules governing the enactment of federal spending legislation have a clearly identifiable group of systematic beneficiaries--the small population states that are afforded disproportionately great (because equal) representation in the Senate, and therefore also in Congress, relative to their shares of the nation's population.(21) Based on the 1990 Census, thirty-two states currently are over-represented in the Senate.(22) Each might be expected to oppose the adoption of a constitutional amendment that would adversely affect its continued ability to obtain a disproportionately large share of the federal "pie." Under Article V, the consent of two-thirds of the Senate (or a convention called by two-thirds of the state legislatures) is necessary even to propose an amendment, and ratification by three-fourths of the states is required for adoption.(23) Thus, if the senators (or legislatures) from as few as seventeen of these thirty-two over-represented states opposed the proposal of the McGinnis-Rappaport Amendment, or as few as thirteen states opposed ratification, the continuation of the existing regime would be ensured.

   Thus, in order for the McGinnis-Rappaport Amendment to have any chance at adoption, its authors would need to persuade a substantial number of the states that clearly benefit from the existing regime that they would do even better under the proposed regime. This would require McGinnis and Rappaport to demonstrate not only that aggregate social welfare would increase if their amendment were adopted,(24) but also that at least twenty of the thirty-two states that disproportionately benefit from the existing regime would each experience an increase in aggregate welfare notwithstanding the anticipated loss of federal redistribution in their favor. Moreover, to the extent that particular interest groups might have disproportionately great power within particular states (e.g., farmers in Iowa and Nebraska, the dairy industry in Wisconsin), McGinnis and Rappaport similarly would need to persuade each of these interest groups that they would experience an increase in aggregate welfare notwithstanding the anticipated loss of federal...