The constitutionality of legislative supermajority requirements: a defense.

• Author: McGinnis, John O.

Introduction

On the first day of the 104th Congress, the House of Representatives adopted a rule that requires a three-fifths majority of those voting to pass an increase in income tax rates.(1) This three-fifths rule had been publicized during the 1994 congressional elections as part of the House Republicans' Contract with America.(2) In a recent Open Letter to Congressman Gingrich, seventeen well-known law professors assert that the rule is unconstitutional.(3) They argue that requiring a legislative supermajority to enact bills conflicts with the intent of the Framers. They also contend that the rule conflicts with the Constitution's text, because they believe that the Constitution's specific supermajority requirements, such as the requirement for approval of treaties, indicate that simple majority voting is required for the passage of ordinary legislation.(4)

Despite the prominence of its signers, we believe that the Open Letter seriously misconstrues the Constitution. Under the Rules of Proceedings Clause, the House may enact a rule governing its internal operations so long as the rule does not violate another provision of the Constitution. The Open Letter fails to identify a constitutional clause that prohibits the three-fifths rule. The Open Letter's attempt to establish a constitutional requirement of majority rule fails because the only inference that can be drawn from the provisions requiring supermajorities in certain instances is that the Constitution itself does not require a supermajority for the passage of legislation. Thus, the Constitution's silence on the proportion of legislators necessary to pass bills is not the result of inattention to the issue. Rather, it reflects the Framers' intent to permit the houses of the legislature to decide the question. When the Constitution mandates a legislative majority, as it does for quorums, or a supermajority, as it does for treaties, it does so explicitly.

The Open Letter's arguments based on the intent of the Framers fare no better. The Framers' discussions cited in the Open Letter address only the issue of whether the Constitution imposes a supermajority rule rather than whether the Rules of Proceedings Clause authorizes a house to pass a supermajority rule. Far better evidence of the Framers' intent regarding that clause is the unbroken tradition, stretching from the early Republic to the present day, of rules, such as those sustaining the filibuster and the committee system, whose objective has been the same as the three-fifths rule-to frustrate legislative majorities and promote other values. Invalidating the three-fifths rule would also require use of a subjective standard that could create chaos because legislators and citizens would not be sure what rules were valid and thus which enactments were law.

In contrast, the appropriate standard - that standing rules of the legislature are valid so long as the rules are themselves subject to repeal or emendation by majority vote - is easily applied and best comports with the text of the Constitution and our legislative traditions. The Open Letter argues that the three-fifths rule would run afoul of even this standard because the rule cannot be waived or amended by a majority of the House. The Open Letter, however, seriously misunderstands the mechanisms by which the House of Representatives passes legislation: A simple majority of the House can waive or amend the three-fifths rule.

In addition to being wholly constitutional, the three-fifths rule for income tax increases is also good policy. For the last fifty years the Republic has been beset by a difficult problem: Concentrated interest groups can successfully obtain benefits for themselves and place the costs on a diffuse, and therefore legislatively ineffective, popular majority. Rather than being criticized, the rule should be celebrated because it is a modest attempt to restore the effective power of popular majorities without taking the more radical step of amending the Constitution.

1. The Constitution Authorizes the Three-Fifths Rule

   The Constitution grants each house the authority to "determine the Rules of its Proceedings."(5) Rules of proceedings are rules that govern the operations of a house of the legislature.(6) On its face, the three-fifths rule is a rule of proceeding. The rule provides that "[n]o bill... carrying a Federal income tax rate increase shall be considered as passed... unless so determined by a vote of not less than three-fifths of the Members voting."(7) The rule governs how the House may pass an increase in income tax rates. The passage of bills and other measures is one of the most important functions that legislatures perform. A legislature must be able to issue rules that determine whether a bill will be deemed to have passed the legislature, including rules on permissible voting methods and the number of votes required. It is difficult to imagine that the Framers would have deprived the houses of the authority to pass rules of this kind. Although legislative rules usually require only a majority to pass a bill, nothing in the Rules of Proceedings Clause prevents the houses from using nonmajority rules.(8) Thus, just as the text of the Rules of Proceedings Clause authorizes the House to issue a rule providing that bills pass by majority vote, it also authorizes the issuance of a rule providing for a supermajority. A supermajority rule would be illegal only if it conflicted with some other clause of the Constitution or some implicit constitutional principle.(9) In this part, we show that nothing in the Constitution requires majority voting for all legislation and that the Rules of Proceedings Clause does not distinguish between rules that promote debate and those that do not.(10)

   1. The Constitution Does Not Mandate Majority Voting for Bills

      Although the Open Letter asserts that the Constitution forbids the House from requiring a supermajority to pass a bill, the Constitution simply does not contain such a prohibition. The Open Letter tries to derive the prohibition on the basis of arguments drawn from the text of the Constitution, the intent of the Framers, and Supreme Court precedent, but none of these claims are persuasive.

      1. Text

         The Constitution addresses the power of each house to pass bills principally in the Presentment Clause, which provides that "[e]very Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States."(11) Additionally, the Orders Presentment Clause states that "[e]very Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary... shall be presented to the President."(12)

         Neither clause specifies the proportion of a chamber necessary to pass a bill. Rather, the clauses simply refer to a bill's passage by a house or an order's receipt of the concuffence of a house. The Constitution's failure to specify a proportion necessary to pass a bill, combined with the delegation of authority to each house under the Rules of Proceedings Clause, suggests that the Constitution permits each house to decide how many members are necessary to pass a bill.

         The Constitution's silence on the number necessary to pass a bill stands in stark contrast to other provisions that specify the requisite number to undertake particular actions. Most significantly, the Quorum Clause states that "a Majority of each [house] shall constitute a Quorum to do Business."(13) The Quorum Clause shows that, when the Framers thought it important, they could expressly establish a majoritarian requirement in the Constitution. The Clause rebuts the argument that the Constitution silently incorporates majoritarian rules of parliamentary procedure. Thus, the Quorum Clause strongly supports the conclusion that, when the Constitution does not specify a proportion, each chamber may determine the number of members necessary to take action."(14)

         Other provisions of the Constitution similarly undermine the claim that there is an implicit requirement of majority voting. Their language reveals that the Framers did not leave constitutional voting requirements to speculation, but made them explicit where there would otherwise be doubt about their content. For instance, the Constitution is clear when it requires less than a majority, as when it states that "one fifth of those Present" in either house may insist that there be a roll call vote recorded in the journal.(15) Likewise, the Constitution is explicit in the many places where it requires a supermajority.(16) Indeed, the Presentment Clause itself states that two-thirds of each house are necessary to override the President's veto.(17)

         Oddly enough, the Open Letter relies principally on these supermajority requirements as the textual basis for its conclusion that the three-fifths rule is unconstitutional.(18) According to the Open Letter, it is telling that the Constitution specifically imposes supermajority requirements in seven places, but not as to ordinary bills. Thus, the argument goes, because the Constitution "never places any special obstacles in the way of the enactment of ordinary legislation," the House may not do so.(19)

         This argument is wholly misdirected. That the Constitution elsewhere expressly imposes supermajority requirements would be a strong argument against the claim, if anyone made it, that the Presentment Clause implicitly requires a supermajority to pass a bill. The existence of seven supermajority requirements in the Constitution, however, provides no support for the conclusion that the Constitution forbids the houses from passing other supermajority rules. There is nothing strange about the Framers refusing to impose a supermajority requirement but permitting the legislature to do so.(20) The problem with the Open Letter's argument is that it assumes a prohibition on legislative supermajority rules simply because...