The supermajority requirement undermines the constitutional principles of Article I and separation of powers. Rule XXI is not merely a rule of internal procedure; it determines when bills get presented to the Senate and the president

Bloch, Susan Low

English

Georgetown Law Scholarly Commons

Georgetown University Law Center Scholarship @ GEORGETOWN LAW 1997 Commentary, At Issue – House Rules: Is a Supermajority Requirement for Tax Hikes Constitutional? – No, The Framers Had Only a Simple Majority in Mind Susan Low Bloch Georgetown University Law Center, bloch@law.georgetown.edu   This paper can be downloaded free of charge from: https://scholarship.law.georgetown.edu/facpub/1564  Susan Low Bloch, Commentary, At Issue – House Rules: Is a Supermajority Requirement for Tax Hikes Constitutional? – No, The Framers Had Only a Simple Majority in Mind, 83 A.B.A. J., 79 (Mar. 1997) This open-access article is brought to you by the Georgetown Law Library. Posted with permission of the author. Follow this and additional works at: https://scholarship.law.georgetown.edu/facpub  Part of the Constitutional Law Commons, and the Law and Politics Commons - AT ISSUEHouse RulesIs a supermajority requirement for tax hikes constitutional?In 1995, on the first day of the 104th Congress,the House of Representatives amended House RuleXXI, which governs the consideration of bills, torequire a three-fifths majority vote to pass anyincrease in income tax rates. Anyone who had doubtsabout the new Republican majority's determination torein in taxes, the action seemed to say, need not have.But voices were raised immediately, and criticscontinue to decry the measure as unconstitutional.Some contend that by restricting the rights of themajority, such a requirement undercuts our entiresystem of government. Others look to the text of theConstitution and find no prohibition against adding anew supermajority requirement (to those alreadyconstitutionally mandated to impeach officials andratify treaties, for example).John 0. McGinnis, a professor at Benjamin N.Cardozo Law School of Yeshiva University in NewYork City, and Michael B. Rappaport, a professor atUniversity of San Diego School of Law, have pub-lished articles on supermajority-rule constitutionalityand written about separation of powers. They arguethat the rule change passes constitutional muster.Opposing them is Susan Low Bloch, a constitu-tional law professor at Georgetown University LawCenter who clerked with Justice Thurgood Marshall.She says such a change represents a threat to thebalance of power among the branches of government.Yes: Each chamber can adopt its own proceduresAlthough opponents of this three-fifths rule have brought a lawsuit chal-lenging its constitutionality, we believethe rule is wholly constitutional.The Constitution gives each house theauthority "to determine the rules of its pro-ceedings." The three-fifths rule is a rule ofproceeding because it governs the internaloperations of the House of Representatives.Thus, the House may enact the three-fifthsrule so long as it does not violate anotherprovision of the Constitution.Opponents of the rule fail to identifya constitutional clause that prohibits thethree-fifths rule. The Constitution does notspecify the proportion of legislators neces-sary to pass a bill. Rather, it simply statesthat bills must "pass" each house.The silence of the Constitution on thetype of majority required to pass a bill isnot the result of inattention to the issue.Instead it reflects the framers' intent topermit the houses of the legislature to de-cide the question. When the Constitutionactually mandates a legislative majority,as it does for quorums, or a supermajority, as it doesfor treaties, it does so explicitly.Other venerable rules, such as the filibuster andthe committee system, support the constitutionality ofthis rule. Like the three-fifths rule, these rules temperthe power of legislative majorities in order to advanceother values such as legislative deliberation. If the fil-ibuster and the committee system are constitutional,so is the three-fifths rule.Opponents of the three-fifths rule often chargethat it is antidemocratic, but the rule is entirely con-sistent with majority control. A majority ofthe House of Representatives voted for therule, and a majority can waive or repeal itat any time. A legislative rule that could notbe repealed by a majority would be uncon-stitutional because it would function like aconstitutional amendment. But the three-fifths rule does not suffer from this defect.Another argument that has beenraised against the three-fifths rule is thatit somehow aggrandizes the role of theHouse of Representatives in the legislativeprocess. The three-fifths rule, however,completely conforms to the constitutionalseparation of powers.First, it is even odd to describe thethree-fifths rule as expanding the authorityof the House; the rule limits the House'spower to pass bills. More fundamentally,the Constitution gives each house the powerto refuse to pass legislation for virtually anyreason. Thus, the Senate cannot complainif the House refuses to pass legislation theSenate proposes. Similarly, the Senate maynot object to rules that make it harder forthe House to pass such legislation.In addition to being constitutional, the three-fifthsrule is also good policy. For the last 50 years the re-public has been beset by a difficult problem: Concen-trated interest groups can successfully obtain benefitsfor themselves and place the costs on a diffuse, legisla-tively ineffective popular majority.The three-fifths rule should be celebrated as amodest attempt to restore the power of popular ma-jorities without taking the more radical step of amend-ing the Constitution.78 ABA JOURNAL / MARCH 1997 ARAI PHOTOS BY LAUREN SHAY AND DWIGHT VALI ELYTaxation TallyRecent federal income tax rate increases and the votes by which they 71RR7passed the House of Representatives:111 Bill number: HR. 58350 Raised income taxes on high-income taxpayers by setting the,nius Budget top bracket at 31% instead of 28%."' ,ecnciation~ - N Passed Oct. 27,1990; 228-200.,ct 1990 N Voting ye!: 181 Democrats and 47 Republicans.U Voting no: 74 Democrats and 126 Republicans.NE Bill Number: H.R. 2264.N Raised income taxes on high-income taxpayers by setting~mnibus Bud el new top brackets of 36% and 39.6% (up from 31%)._econiliakon r__ I Passed Aug. 5, 1993:218-216F, U Voting yes: 217 Democrats and one independent.1 99 Voting no: 41 Democrats and 175 Republicans.Unde e th  ne rules. a tnree fifths majorit-261 memi ers-must approe an)bill increasing ircome taxesSources ' Major Deficit Reduction Measures Enacted in Recent Years.' CongressionaiResearch Service. and Congressional Quarterify s Guide to [IS Electons, Third EditionSince the 63rd Congress (1912-1914)-the first with435 members-17 Congresses have been ruled by athree-fifths majority of either major party:Congress102nd98th96th95th94th89th87th86th81st77th76th75th74th73rd71st67th63rdElectionyear19901982197819761974196419601958194819401938193619341932192819201912PartyDDDDDDDDDDDDDDRRDMajoritymembers267269277292291295263283263267262333322313267300290No: The framers had only a simple majority in mindThe supermajority requirement under-mines the constitutional principles of Arti-cle I and separation of powers. Rule XXI isnot merely a rule of internal procedure; itdetermines xxhen bills get presented to theSenate and the president.Article I, § 7 provides that "every Billwhich shall have passed the House ... andthe Senate, shall, before it becomes a Law.be presented to the President of the UnitedStates." The presumption is that '-passed" BY SUSmeans "ag-eed to by a majority of a quo- LOW Brum." The question is whether either housecan change that meaning and insist that"passed" requires more than a majority.While the Constitution does not explicitly deny ei-ther house the power to require a supermajority, thatis true of many limits we infer from the structure of theConstitution. Article 1, § 7 is a carefully crafted mech-anism that struck a balance between large and smallstates, the House and the Senate, and Congress andthe president. By adopting the three-fifths rule, theHouse upsets this balance and unconstitutionally in-trudes on the powers of the Senate and the president.The framers knew how to say they wanted a su-permajority and, in fact, said so in several contexts.Proponents of the supermajority rule argue that thefr-amers may have meant this list to be simply the min-imal list of occasions that require supermajorities, andthat they intended to allow Congress to add to the list.Considering the distorting impact that supermajor-ity requirements can have on the other branches, I con-clude that when the framers did not specify a superma-jority for bill passage, they not only presumed a majoritywould be sufficient, they in fact intended not to allow ei-ther chamber to increase the number of votes required.ABeaj PHOTO BY PET Soi ;ZA GRAPHIC 0' jEt DO SEAIA(There is no limit on the supermajorityrule. Thus, the House could require evenmore than a 60 percent majority for se-lected topics or even for all legislation.Even if most representatives and a majori-ty of senators want a particular bill, thebill could not get presented to the presi-dent and could never become law. If theHouse can do this, it has the power unilat-erally to enhance its power vis A vis theN Senate and the president.OCH Furthermore, if the House can adopta rule like this, so can the Senate. Article I,§ 5 provides that "each House may deter-mine the Rules of its Proceedings." Thus, the Senatecould say: "No judge or cabinet official, once nominat-ed by the President, shall be considered as confirmedexcept by a three-fifths vote."If the Senate were allowed to adopt such a rule, itwould be able singlehandedly to upset the carefullycrafted rules concerning appointment of both executiveofficials and judges, and to unilaterally limit the powerthe Constitution gives to the president in the appoint-ment process. The Senate would thus be able to ag-g-randize its own role and unconstitutionally distort thebalance of powers established by the Constitution.Defenders of the rule say: "Don't worry; a simplemajority can repeal the rule." But I see nothing in theirlogic that stops the House fi'om requiring that repeal ofthe supermajority rule itself requires a supermajority.When a chamber of Cong-ess by its rules goes be-yond internal housekeeping and affects the relationshipamong the other institutional players, it aggrandizesits powers and unconstitutionally distorts the "single,finely wrought and exhaustively considered, procedure"carefully crafted by the framers. UABA JOURNAL / MARCH 1997 79

Commentary, At Issue – House Rules: Is a Supermajority Requirement for Tax Hikes Constitutional? – No, The Framers Had Only a Simple Majority in Mind

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Commentary, At Issue – House Rules: Is a Supermajority Requirement for Tax Hikes Constitutional? – No, The Framers Had Only a Simple Majority in Mind

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