The Constitutionality of Legislative Supermajority Requirements: A Defense
McGinnis, John O., Rappaport, Michael B., The Yale Law Journal
On the first day of the 104th Congress, the House of Representatives adopted a rule that requires a three-fifths majority of those voting to pass an increase in income tax rates.(1) This three-fifths rule had been publicized during the 1994 congressional elections as part of the House Republicans' Contract with America.(2) In a recent Open Letter to Congressman Gingrich, seventeen well-known law professors assert that the rule is unconstitutional.(3) They argue that requiring a legislative supermajority to enact bills conflicts with the intent of the Framers. They also contend that the rule conflicts with the Constitution's text, because they believe that the Constitution's specific supermajority requirements, such as the requirement for approval of treaties, indicate that simple majority voting is required for the passage of ordinary legislation.(4)
Despite the prominence of its signers, we believe that the Open Letter seriously misconstrues the Constitution. Under the Rules of Proceedings Clause, the House may enact a rule governing its internal operations so long as the rule does not violate another provision of the Constitution. The Open Letter fails to identify a constitutional clause that prohibits the three-fifths rule. The Open Letter's attempt to establish a constitutional requirement of majority rule fails because the only inference that can be drawn from the provisions requiring supermajorities in certain instances is that the Constitution itself does not require a supermajority for the passage of legislation. Thus, the Constitution's silence on the proportion of legislators necessary to pass bills is not the result of inattention to the issue. Rather, it reflects the Framers' intent to permit the houses of the legislature to decide the question. When the Constitution mandates a legislative majority, as it does for quorums, or a supermajority, as it does for treaties, it does so explicitly.
The Open Letter's arguments based on the intent of the Framers fare no better. The Framers' discussions cited in the Open Letter address only the issue of whether the Constitution imposes a supermajority rule rather than whether the Rules of Proceedings Clause authorizes a house to pass a supermajority rule. Far better evidence of the Framers' intent regarding that clause is the unbroken tradition, stretching from the early Republic to the present day, of rules, such as those sustaining the filibuster and the committee system, whose objective has been the same as the three-fifths rule-to frustrate legislative majorities and promote other values. Invalidating the three-fifths rule would also require use of a subjective standard that could create chaos because legislators and citizens would not be sure what rules were valid and thus which enactments were law.
In contrast, the appropriate standard - that standing rules of the legislature are valid so long as the rules are themselves subject to repeal or emendation by majority vote - is easily applied and best comports with the text of the Constitution and our legislative traditions. The Open Letter argues that the three-fifths rule would run afoul of even this standard because the rule cannot be waived or amended by a majority of the House. The Open Letter, however, seriously misunderstands the mechanisms by which the House of Representatives passes legislation: A simple majority of the House can waive or amend the three-fifths rule.
In addition to being wholly constitutional, the three-fifths rule for income tax increases is also good policy. For the last fifty years the Republic has been beset by a difficult problem: Concentrated interest groups can successfully obtain benefits for themselves and place the costs on a diffuse, and therefore legislatively ineffective, popular majority. Rather than being criticized, the rule should be celebrated because it is a modest attempt to restore the effective power of popular majorities without taking the more radical step of amending the Constitution. …