Academic journal article William and Mary Law Review

Still a Solution: In Further Support of Spending Supermajority Rules

Academic journal article William and Mary Law Review

Still a Solution: In Further Support of Spending Supermajority Rules

Article excerpt

We are gratified by the responses to our article because they suggest that supermajority rules are a constitutional idea whose time has come. All of the responses agree with our view that simple majority rule can result in inefficient outcomes, including excessive spending.(1) The responses also agree either explicitly or implicitly that the usual solution to a substantial constitutive problem--giving more power to judges to resolve it--seems clearly inadequate or ill-advised in this case.(2) Two of the responses also acknowledge that structural changes in legislative voting rules on spending may be needed.(3) Although each response raises questions about the particular supermajority rules that we propose, we are grateful for this criticism. Supermajority rules will become familiar and effective implements in the constitutional toolbox only if they are sharpened through serious debate.

Our reply to these commentators first takes note of Professor Lino Graglia's reservations about judicial review and suggests that such reservations may argue for an even broader scope for supermajority rules. We then turn to two important criticisms of the consequences of our proposed rule. First, Professor Elizabeth Garrett as well as Professor Lynn Baker and Dr. Samuel Dinkin suggest that spending supermajority rules may cause interest groups to substitute private interest regulatory or tax preference legislation for private interest spending legislation.(4) Although our original article discussed the problem of substitutability at length, we return to that very important subject here to offer additional reasons for believing that interest groups will find tax preferences and regulation very imperfect substitutes for spending. Second, Professor Garrett contends that our proposal actually may lead to more inefficient spending because legislators may spend additional funds to form the larger coalitions necessary under supermajority rules.(5) We show that such a scenario is very unlikely to occur, because it will be hard to assemble a coalition that wants to spend more than the coalition already formed under majority rule. We next counter various claims that our proposal suffers from design defects: both Professor Graglia's contention that holdouts will remain a problem under our supermajority rules,(6) and Professor Garrett's questions about the accounting baseline on which those rules are based.(7)

We then address suggestions that we have made errors of omission as well as of commission. Professor Garrett asks that we provide more empirical support for our proposal.(8) We are receptive to empirical work, but are not persuaded that her outline of subjects for investigation would have been so fruitful as to merit inclusion in our already lengthy paper. Finally, we conclude by replying to the claim of Professor Baker and Dr. Dinkin that our proposal, however meritorious, will never pass because it would harm small states that both obtain disproportionate shares of private interest spending by virtue of their overrepresentation in the Senate and can protect this advantage from being eroded by constitutional amendment.(9) This contention offers us the opportunity to show that the supermajority rules embedded in the constitutional amendment process also constrain the power of special interests and therefore should ease the passage of our proposed supermajority rule.

I. ANOTHER WORD ON MAJORITARIANISM

Professor Graglia is characteristically trenchant in criticizing judicial excesses and praising democracy.(10) Our support for supermajority rules, however, is premised in no small measure on many of his own concerns. They motivate our own rejection of individual rights solutions to the problem of excessive expropriation, such as Professor Richard Epstein's suggestion that judges should hold much of the modern welfare state unconstitutional under the Takings Clause.(11) Indeed, one way of understanding our position is that supermajority rules offer a third path toward sound governance--a path between that embraced by those like Professor Graglia, who uncompromisingly celebrate majority rule, and that embraced by those like Professor Epstein, who have very substantial confidence in the judicial protection of individual rights. …

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