Monday, February 21, 2011

Super-majority Quorum Requirements

By Mike Dorf

The walkout by Wisconsin Democratic Senators raises the question of whether it ever makes sense for a legislative body to set a rule that requires more than a simple majority to do business.  According to this useful CNN article on the history of walkouts to deprive the majority party of a quorum, Wisconsin is only one of a handful of states in which a simple majority does not suffice to do business.  The Wisconsin quorum rule requires the presence of 3/5 of the members.

Why set the quorum requirement at a super-majority?  In some legislative bodies and in some contexts, the answer might be because it has no impact.  Thus, in a body like the U.S. Senate, which now effectively requires a vote of 3/5 of the members to end debate (i.e., to break a modern filibuster), a minority party with more than 2/5 of the body's members can simply vote against cloture if it wishes to deny the majority an opportunity to enact legislation.  That's a less painful procedure than leaving the Senate chamber and hiding from the police, and so a state that already permits filibusters based on voting no for cloture could have a quorum rule with the same threshold without thereby empowering the minority to block any more legislation.

But why should a legislature ever have rules requiring a super-majority to do anything?  The standard answer is that such rules foster deliberation and moderation, while biasing policy towards the status quo.  Libertarians sometimes favor super-majority voting rules on the ground that they make it difficult for the majority to enact oppressive laws, but this assumption is not always correct: Where oppressive laws are already on the books, super-majority voting rules also make it more difficult to repeal them.  Still, painting with a very broad brush, it's probably fair to say that small-c (i.e., Burkean or "traditional") conservatives will be more likely to favor super-majority voting rules than progressives will be.  Or to put it differently, conservatives tend to worry more about the risks of too much government action, whereas progressives tend to worry more about the risks of too little government action.

Granting that there may sometimes be sound reasons to favor super-majority voting rules, is there any good reason for a super-majority quorum rule as opposed to other, more direct rules--like "it takes a 3/5 vote on the merits to raise taxes"--or a general super-majority rule--like what the U.S. Senate cloture rule has effectively become?

A superficially appealing justification for a super-majority quorum rule goes something this: The legislature is supposed to be representative of the People, but if only just over half of the People's representatives show up, that will mean that just over a quarter of their representatives will be voting to enact legislation.  When one considers that each representative can be elected with just over half of the voters from her district, and that voter turnout is often in the range of 50% of eligible voters, absent a super-majority quorum rule, legislation can be enacted by legislators representing just over a sixteenth of the electorate. This is undemocratic, and so, one might think, having a super-majority quorum requirement makes the legislative process at least a bit more representative.

But that reasoning strikes me as misguided.  To begin, there are political checks on absentee legislators.  One of the easiest attack ads to run shows the incumbent vacationing in some far-off locale juxtaposed with an empty seat in the legislature.  In addition, on truly contentious issues, we can count on party politics to maximize turnout.  The typical operating rules of legislatures require a majority for a quorum and a majority of those present to enact legislation.  Under such rules, members of each party have an incentive to show up--the majority members to increase the numerator that counts towards passage of legislation and the minority members to increase the denominator.  A super-majority quorum requirement is thus almost always unnecessary on important issues and will only become salient in cases like last week's Wisconsin's escapade, when it incentivizes legislators not to show up.  So long as a legislature has sensible rules about giving all members fair notice about the scheduling of votes, a super-majority quorum rule is either unnecessary or counter-productive.

A super-majority quorum requirement nonetheless may be thought to make sense for issues that do not divide along party lines, and involve asymmetrical concentration of costs and benefits.  Let's say that there is a proposal to adopt or repeal a subsidy for a particular industry.  Public choice theory says that lobbyists for that industry and representatives of the regions in which that industry are concentrated will care intensely about securing or preserving the subsidy, whereas the public at large, even if opposed to the subsidy, will not care enough about it (because the tax is diffused among a very large number of people) to fight it.  We can count on the industry's strongly-motivated proponents to show up for a vote on the subsidy, but not its weakly-motivated opponents.   Thus, a super-majority quorum rule is one sort of procedural measure to impede the enactment or continuation of "rents" for special interests.

The difficulty with the foregoing argument is that the logic of asymmetrical concentration of costs and benefits works pretty cleanly even when everyone shows up to vote.  Agricultural subsidies at the federal level are one example, but we can point to a great many others in which behind-the-scenes logrolling and the use of other procedural levers (e.g., threatened "holds" on unrelated nominations in the Senate) ensure that the legislators with the intense views get the body as a whole to do their bidding.  Thus, while a super-majority quorum rule isn't counter-productive on this front, it's not especially effective either.

Accordingly, I'm left to conclude that there is no very good justification for a super-majority quorum rule for a legislature.  However, I'd be happy to change my mind in response to other arguments I haven't considered.  And needless to say, this post is not in any way meant as a commentary on the merits of the current budgetary debate in Wisconsin.


Joe said...

I wonder how much the 10% additional requirement (50-60) matters in practice.

Overall, yes, other restraints are in place, but in each case, they are only of limited value. The supermajority requirement is an across the board means to require a more diversified group to be present when law is made.

I also again wonder how much it matters. There might be therefore a symbolic purpose at issue here, perhaps a reflection of the state's political traditions.

Margo said...

Obstruction by the minority in Wisconsin is much more visible and costly than obstruction in the Senate is, which may be one reason to prefer the Wisconsin rule to the U.S. Senate supermajority custom.

The minority party in Wisconsin has to pull some crazy shenanigans to obstruct legislation supported by a majority—they have to flee the state, and the majority gets to send the police after them!

For the minority in the Senate, though, there's basically no publicity and therefore no cost to obstructing legislation, at least in recent years.

If we think that forcing Jimmy Stewart-style talking filibusters in the Senate would be good for democracy, maybe it would be even better to force filibustering senators to evade the Sergeant-at-Arms and flee to Canada to obstruct the process!

J Pahnke said...

Dorf: I quite agree for the reasons stated that the supermajority requirements may be superfluous. Of course, old habits die hard and getting such changes through, (especially when the Wisconsin Democrats, not to Mention those in the U.S. Senate, would lose the ability to obstruct the majority). Nevertheless, I grant that such ideas deserve serious consideration.

Joe: On diversity, perhaps, but isn't correction of such matters better left to the voters of Wisconsin who apparently supported the reforms that Walker is trying to implement? (Of course, by attempted too much all at once he also makes himself subject to those same voters if they feel he is exceeding his mandate, time will tell).
Margo: I quite like your idea to enforce a quorum with the Seargant at arms and have to take the floor of the statehouse and engage in debate on the legislation at hand. Such obstructionist tactics can backfire and appear more like lawlessness than standing on principle. (And of course, reference to that favorite of all time Frank Capra political charmers doesn't hurt!) Now if we can just get the U.S. Senate to start acting like adults we'd be all set, (certainly when it comes to reforming secret holds and requiring talking filibusters as opposed to just the "threat." In fact I wrote a blog post on this myself at Great topic post!

Joe said...

"left to the voters of Wisconsin who apparently supported the reforms that Walker is trying to implement"

I am not familiar with local politics but how do we know what the voters supported here? The election of a governor isn't based on one issue. Reporting has even suggested some Republicans in the legislature think the governor is going too far.

The voters elected the legislators and the quorum requirement is one means to further a diversified group to decide such questions over the actions of one man (in this case).

I find your suggestion tenuous.

J Pahnke said...

Joe: Actually, I saw reporting on the issue which showed that very thing, that Walker actually ran his LOCAL (actually statewide) race for Governor with specific reference to reforming such laws governing unions and making state employees pay more of their share for benefits and pensions,(I will try to paste in links if this lets me, which it usually doesn't). Also, according to the reports and research I have heard, Wisconsin's Civil Service law, which would remain intact, is the strongest in the country and already protects teachers, policeman, etc.

On diversity, even were your argument to be accepted, I am not sure just what such "diversity" would accomplish since the Democrats lack the votes to be victorious on this matter in any case.

Indeed, it appears to me that on merely a "strategy" basis they would be smarter to return as it would enable them to better and in a more public way make their arguments and thus enable them potentially to reach the more "moderate" Republicans who they would have to join with in order for a compromise to pass, (i.e., enable the very "diversity" of opinion you ostensibly seek).

In any event, it would certainly be better for the Democratic process than running away and hiding in a tantrum just because you might not get your way. That doesn't sound either very democratic OR very mature and is one of the reasons I support filibuster reform at the National level, (which I presume you support as well?)

Politically, it seems to me we heard a lot about "this is what we have elections for" in 2008, and as I said, if the Governor overplays his hand he will be accountable to the voters come 2012.

Finally, not that this is what you are saying, but I think there is far too much emphasis on a politically- correct-motivated push for "diversity" that emphasizes the differences in society already and would like to see a lot less of it at all levels. In my opinion, such attempts are misguided as they suggest that only "members of our group" can speak for us and can only serve to deepen the already unhelpful divisions in society.

In that light, perhaps it's just me, but throwing the democratic process overboard in favor of "diversity" just doesn't seem like a very good trade, for Wisconsin or the country generally. jp

tjchiang said...

I tend to this of this as analogous to proposals to require filibusters to actually stand and talk for the whole time. It is a way to create a super-majority requirement, but require a holdout minority to demonstrate the intensity of their preference and thus increase the cost of holdout. The usual problem with a pure majority vote regime is that there is no way to account for intensity of preference. Requring holdouts to leave the state and hide is a way to show that intensity.

J Pahnke said...

I don't follow this line of thinking at all, (Is the point of Democracy to "show intensity?) And leaving the state helps the minority or Democracy how? I don't know the rules of the WI statehouse but by taking their marbles and hiding out in IL they uniquely show they are afraid their position LACKS enough "intensity" (i.e. confidence in their own position) to carry the day on the merits OR successfully mount a filibuster. It is obstructionism without a purpose to my way of thinking

tjchiang said...

JP, you are apparently not understanding what I mean by intensity. The usual problem with a pure majority vote regime is that if we have a vote on whether to confiscate 300 million dollars from Bill Gates and give each of us $1, presumably everyone would vote in favor except Bill Gates. The "intensity" is how strongly people like or dislike. Each of us likes getting $1, but only to the benefit of $1. Bill Gates would really, really hate to lose $300 million.

Among the reasons for a super-majority requirement is to prevent this type of diffuse-benefit-concentrated-loss scenario. It turns out that, in most public choice literature, this is not so much of a problem because you already need some threshold intensity of preference to vote in the first place. But the problem is valid at least in theory. Professor Dorf is looking for a possible justification, and this is the one that gets toss around when it comes to similar measures such as why people argue for preserving the filibuster but requiring that the holdout actually talk the whole time--you want to allow a really passionate minority to block a less passionate majority, but you don't want to make it too easy.

Of course, if your philosophy is that majorities should win always, no matter what, even if the majority gains a little while inflicting huge losses on a minority, then you wouldn't support a super-majority requirement in the first place. But the question being debated presupposes there is a valid rationale for a super-majority voting rule. Professor Dorf is asking why we might want a super-majority quorum.

Joe said...

JP, the fact that the people voted for him for the general reasons you stated doesn't mean they only voted him for that reason or would accept any specific policy he decided upon.

The voters also realize, and many vote split ticket just for that reason, the system is a matter of balancing various interests. The diversity of the legislature promotes this.

tj's intensity point is also valid. It is also not just a "Democrat" thing. The cloture rule in the US Senate, e.g., meant before the last election that even if 51 Dems decided on something, it would not pass. This, among other things, gave a voice to more conservative Democrats.

A state like Utah has a tiny Democratic caucus. But, still have various sentiments in the Republican caucus. A supermajority requirement furthers the diversity of views. The value of diversity is not novel affirmative action speak. See, e.g., Federalist No. 10.

J Pahnke said...

Is censorship another example of “diversity”? REPOST FOLLOWS:

Tj: I appreciate the tone of your response trying to "educate" me on what you (and Prof Dorf) were trying to say, but I stand by my comments.

I also think Prof Dorf's comments speak for themselves; He clearly questioned the point of preserving supermajority requirements and I happen to agree with him, (though not always on every issue by any means, as I'm sure he can attest!)

Of course, the whole point of this blog is to stimulate interest and open discussion on such matters, right? Although it is clear you all seem to have established relationships with each other, (most likely from Dorf's position as a professor), by that measure it is clear he has succeeded wildly, (even if my view provides a bit too much of the "diversity" everyone speaks so highly of). I am thrilled to think that my view, as the 'minority' one, could be so valued and protected, (especially since according to Joe this is not about politics).

Joe: You say it is not a 'Democrat' issue, but do you have anything more to offer other than bald assertions? More to the point, can you name any Republican legislators who have walked away from the duties they were elected to perform recently just because they didn't like the way things were turning out? (Say, in the last twenty years of so?) I can recall none, (they certainly didn't do so in the 'Obamacare' debate. Hmmm, now that's an idea!Would you have preferred gridlock to passage? I kindof doubt it. Indeed, if you're honest you will admit that Republicans would have been roundly condemned as no less the obstructionists than Democrats are being now).

On the other side of the balance I seem to recall Democrats using such tactics in Texas a few years ago, (and I expect they will use their filibuster rights liberally if the Republicans retake the Senate in 2012, as is their right).

For the record, I am NOT in favor of the majority steamrolling the minority on ANY issue, (and in fact disagreed with the Republicans not reforming the filibuster in the U.S. Senate, did anyone even read my blog post on this at ?)

However, in this case we have the tyranny of the minority who are holding hostage the political process because they disagree with the policies of the duly elected majority. This is not democracy, but a distortion of the democratic process.

In that regard, while I am certainly in favor of a "diversity" of views in the "marketplace of ideas," the point of my posts, and of "diversity" in general, is to encourage open and full debate on policy issues in service of representative democracy, not to hold it hostage.

To your suggestion that this is just a case of "split ticket" voters "accidentally" electing both a Republican statehouse and Governor with an austerity agenda what are the Dems afraid of? Indeed, establishing the votes of the mean, anti-labor Repubs can only aid the Dems' cause in 2012.

Finally, I am familiar with Federalist number 10, and see nothing germane to your (and Tj's) points therein. Indeed, "If a faction consists of less than a majority, relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote." (Federalist No. 10).

You are apparently unaware of Federalist no 75, in which Hamilton elaborates: "It has been shown, under the second head of our inquiries, that all provisions which require more than the majority of any body to its resolutions, have a direct tendency to embarrass the operations of the government, and an indirect one to subject the sense of the majority to that of the minority... The history of every political establishment in which this principle has prevailed is a history of impotence, perplexity and disorder... Alexander Hamilton, FEDERALIST 75

Unknown said...

A special form of super-majority quorum would require that at least one member from the minority be present to constitute a quorum. That rule would assure a degree of transparency in the process, so that the majority would have to deal with the minority on all action. Of course, it has the drawback of giving the minority a blocking power, but there would be powerful practical and political constraints on its exercise, as the Wisconsin situation shows. Does any state have such a rule?

J Pahnke said...

Usdpwbs: That's a very good question, (and I like your compromise "one member" suggestion). Wish I could say more but unfortunately I don't know the answer.

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