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.