Still a solution: in further support of spending supermajority rules.

• Author: McGinnis, John O.

We are gratified by the responses to our article because they suggest that supermajority rules are a constitutional idea whose time has come. All of the responses agree with our view that simple majority rule can result in inefficient outcomes, including excessive spending.(1) The responses also agree either explicitly or implicitly that the usual solution to a substantial constitutive problem--giving more power to judges to resolve it--seems clearly inadequate or ill-advised in this case.(2) Two of the responses also acknowledge that structural changes in legislative voting rules on spending may be needed.(3) Although each response raises questions about the particular supermajority rules that we propose, we are grateful for this criticism. Supermajority rules will become familiar and effective implements in the constitutional toolbox only if they are sharpened through serious debate.

Our reply to these commentators first takes note of Professor Lino Graglia's reservations about judicial review and suggests that such reservations may argue for an even broader scope for supermajority rules. We then turn to two important criticisms of the consequences of our proposed rule. First, Professor Elizabeth Garrett as well as Professor Lynn Baker and Dr. Samuel Dinkin suggest that spending supermajority rules may cause interest groups to substitute private interest regulatory or tax preference legislation for private interest spending legislation.(4) Although our original article discussed the problem of substitutability at length, we return to that very important subject here to offer additional reasons for believing that interest groups will find tax preferences and regulation very imperfect substitutes for spending. Second, Professor Garrett contends that our proposal actually may lead to more inefficient spending because legislators may spend additional funds to form the larger coalitions necessary under supermajority rules.(5) We show that such a scenario is very unlikely to occur, because it will be hard to assemble a coalition that wants to spend more than the coalition already formed under majority rule. We next counter various claims that our proposal suffers from design defects: both Professor Graglia's contention that holdouts will remain a problem under our supermajority rules,(6) and Professor Garrett's questions about the accounting baseline on which those rules are based.(7)

We then address suggestions that we have made errors of omission as well as of commission. Professor Garrett asks that we provide more empirical support for our proposal.(8) We are receptive to empirical work, but are not persuaded that her outline of subjects for investigation would have been so fruitful as to merit inclusion in our already lengthy paper. Finally, we conclude by replying to the claim of Professor Baker and Dr. Dinkin that our proposal, however meritorious, will never pass because it would harm small states that both obtain disproportionate shares of private interest spending by virtue of their overrepresentation in the Senate and can protect this advantage from being eroded by constitutional amendment.(9) This contention offers us the opportunity to show that the supermajority rules embedded in the constitutional amendment process also constrain the power of special interests and therefore should ease the passage of our proposed supermajority rule.

1. ANOTHER WORD ON MAJORITARIANISM

   Professor Graglia is characteristically trenchant in criticizing judicial excesses and praising democracy.(10) Our support for supermajority rules, however, is premised in no small measure on many of his own concerns. They motivate our own rejection of individual rights solutions to the problem of excessive expropriation, such as Professor Richard Epstein's suggestion that judges should hold much of the modern welfare state unconstitutional under the Takings Clause.(11) Indeed, one way of understanding our position is that supermajority rules offer a third path toward sound governance--a path between that embraced by those like Professor Graglia, who uncompromisingly celebrate majority rule, and that embraced by those like Professor Epstein, who have very substantial confidence in the judicial protection of individual rights.(12) Supermajority rules avoid excessive expropriation and rash decisionmaking--the characteristic defects of majority rule--and also skirt the dangers of judicial usurpation and ultimate frailty, the characteristic defects of structures based on individual rights.

   Indeed, if, as Professor Graglia asserts, no principles are worthy of absolute protection,(13) we would invite him to consider whether he would prefer (at least as compared to the current regime) an even broader use of supermajority rules than we propose. A First Amendment cast as a supermajority rule would permit society to address matters that Professor Graglia believes the judiciary has wrongly removed from political debate.(14) For instance, under a supermajority rule, Congress could ban indecency on the Internet because such laws pass with overwhelming majorities.(15) Yet, a supermajority requirement would generally prevent Congress from passing laws that suppress core categories of speech because such laws tend to be less popular.

2. THE SCOPE OF THE SUPERMAJORITY RULE

   Professor Baker and Dr. Dinkin, as well as Professor Garrett, criticize our argument that a supermajority rule should apply only to spending measures. Professor Baker and Dr. Dinkin contend that a supermajority rule also should govern regulatory laws,(16) while Professor Garrett questions our reasons for excluding tax preferences from the supermajority rule.(17) We anticipated these criticisms. Like all constitutional structures, supermajority rules force us to trade off advantages against disadvantages and therefore determining their optimal scope is difficult.(18) Nonetheless, we continue to maintain that persuasive reasons support applying the supermajority rule only to spending--reasons that the commentators fail to answer effectively.

   We begin with a discussion of why the supermajority rule should not govern regulatory legislation. The efficiency of a regulatory supermajority rule--as with any supermajority rule--depends on whether it prevents the enactment of more efficient or inefficient legislation. The legislation that a regulatory supermajority rule will impede falls into two categories. The first category involves ordinary regulatory legislation--legislation that would take the form of regulatory legislation under any regime, including the existing regime, that applies the same voting rule to spending and regulatory measures. Regarding this type of regulatory legislation, we believe that a regulatory supermajority rule would prevent the enactment of more desirable than undesirable regulatory legislation. Indeed, we will argue that a regulatory supermajority rule ironically and quite harmfully would impede the passage of laws that deregulate. We recognize, however, that under a supermajority rule that applies only to spending, special interests will have an incentive to convert undesirable spending bills that cannot secure a supermajority into regulatory bills. This would be a second category of legislation that a regulatory supermajority rule might impede. Nonetheless, these benefits of a regulatory supermajority rule would be small because only a limited number of converted regulatory bills would pass. We thus conclude that on balance a regulatory supermajority rule would be undesirable.

   Professor Baker and Dr. Dinkin question our arguments about both categories of legislation that a regulatory supermajority rule would impede. First, they assert that ordinary regulation is "more often enacted with enthusiastic interest group support" than in opposition to it, suggesting that a regulatory supermajority rule would tend to prevent the enactment of undesirable legislation.(19) Professor Baker and Dr. Dinkin, however, fail to confront the primary reason we gave for distinguishing between regulatory and spending legislation. Although spending legislation normally is funded by broad based taxes that do not fall on any special interest group, regulatory legislation often imposes obligations on a particular group that will be more organized in the political process. As a result, undesirable regulatory legislation is less likely to pass under majority rule than undesirable spending legislation.(20)

   The most significant problem with Professor Baker and Dr. Dinkin's proposal to extend a supermajority rule to laws involving regulations, however, is that the rule would impede the passage of laws that deregulate. If, as they suggest, regulatory laws are usually special interest legislation, then requiring a supermajority to eliminate such laws would be extremely harmful. Professor Baker and Dr. Dinkin might try to redesign their supermajority rule to exempt deregulatory laws by applying the rule only to laws that impose obligations but not to laws that eliminate them. Although this would be an improvement, the problem is that virtually any law that deregulates a previously regulated area will also impose obligations.(21)

   Professor Baker and Dr. Dinkin also question our view that special interests will find it too difficult to convert spending laws into regulatory laws. They contend that "any spending legislation that benefits a particular interest group can be reformulated as regulatory or other legislation that is equally beneficial to the interest group."(22) Again, they do not fully confront our arguments. In our Article, we explained that when special interests design their benefits in the form of spending rather than regulation, they do so because it is easier to enact them in this form. If a special interest were forced to convert its subsidy into the form of regulation, that would make it harder for the special interest to obtain its benefits.

   The very example that...