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BACKGROUNDER

Supermajority rule: good or bad?

Does it prevent a tryanny of the majority, or has it become a tool of obstructionists?

March 22, 2009|Nicholas Goldberg | Nicholas Goldberg is the deputy editor of The Times' editorial pages.

It is one of the many oddities of California law that in order to pass a state budget or raise taxes, the Legislature must win two-thirds approval in both houses. This unusual "supermajority" rule is a big part of the reason the Legislature has missed the legal deadline for a new state budget in 16 of the last 20 years, and why gridlock so often seems to rule the day in Sacramento.

It is another oddity of California law that sweeping constitutional change can be accomplished with nothing more than a simple majority vote at the ballot. Proposition 8, for example, the constitutional amendment that banned gay marriage in the state, passed with just 52% of the vote.

Does it make sense that passing a budget or a tax hike is so difficult while fundamental changes to the state's foundational document can be made so easily? Below, some questions and answers to help understand our unusual system of supermajority voting rules and when they do and don't apply.

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Why do we need supermajorities? Doesn't majority rule?

Not always. Legislatures, parliaments and congresses around the world have long known that 50% plus one isn't the only way to make a democratic decision. Some decisions are so momentous that they ought to be made unanimously (jury convictions, for instance), while others are so minor they require just a plurality.

Supermajority rules are those that call for more than 50% support but less than unanimity. Often they require two-thirds of the voters (the fraction needed to override a veto by the president of the United States); other times it's three-fifths (the votes required to call an end to a filibuster in the U.S. Senate or to pass a substantial matter through the United Nations Security Council).

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Who came up with this idea?

No one you know. Supermajorities go back at least to jury deliberations in classical Rome. A thousand years later, the medieval church adopted a two-thirds supermajority rule for ecclesiastical elections, including the election of a pope (a rule that is still in place despite Pope John Paul II's effort to change it in 1996).

The U.S. Constitution had to be adopted by nine, rather than six, of the 13 Colonies before it went into effect, and amending it is doubly difficult, requiring supermajorities at two stages: There must be a two-thirds vote of Congress to propose an amendment, and then three-fourths of state legislatures must ratify it.

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What's the point of these rules?

Obviously, they make it substantially more difficult to reach a decision. That means some proposals fall by the wayside, but those that ultimately get passed do so with broader support. Most political theorists agree that consensus makes for stronger, more durable law.

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So what's the downside?

For one thing, supermajorities make it harder to achieve good change as well as bad. If you support, say, the federal Equal Rights Amendment, which could never win more than 35 of the 38 states that were necessary for approval, then a supermajority requirement might be a bad thing.

In practice, supermajorities allow a minority to block the preference of the majority. James Madison, the architect of the U.S. Constitution, worried about the tyranny of the majority over the minority, but he recognized that the opposite was also disconcerting. He wrote in the Federalist Papers that supermajorities could cause "the fundamental principle of free government" to be reversed. "It would be no longer majority that would rule: the power would be transferred to the minority," he wrote. "... An interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences."

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How does all this relate to California?

Totally! Directly! Madison might as well have been writing about Sacramento today. The rule that requires two-thirds approval for raising taxes or passing the budget has certainly put power in the hands of a relatively small GOP minority in recent years, allowing them to delay the budget and to extort "indulgences" in return for the three measly votes in each house that the Democrats need to win over.

Last month, for instance, the Legislature found itself paralyzed once again, haggling endlessly but unable to win the necessary two-thirds. In the end, Sen. Abel Maldonado (R-Santa Maria) traded his yes vote for a whole series of promises, including a ballot measure allowing open primaries. The two other Republican votes were bought at a cost of weakening state environmental regulations.

In theory, the two-thirds rule on the budget and taxes should encourage compromise and moderation. But in practice, because of partisanship, the rule has led to long stalemates at great cost to the state. Political scientists who study supermajorities have called this the "holdout" principle.

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So supermajority rules are bad?

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