Supermajority Rule Research Articles

A social choice approach to expert consensus panels

This study uses recent theoretical work about group decision-making to assess the quality of decision-making by expert consensus panels. We specifically examine (1) when individual members of panels will divulge their private judgments about the decision to the panel, and (2) when the group judgment is superior to the judgment of individual panelists and will lead to better treatment for patients. We conclude that to maximize the chance of an accurate decision, panels should be made as large as possible, adopt the smallest supermajority rule, and attract members with the highest individual competencies. Furthermore, interdependence among panelists and the goal of reaching consensus can reduce the efficacy of these panels.

Submajority Rules: Forcing Accountability upon Majorities

Legal and political theory have paid a great deal of attention to supermajority rules, which require a fraction of votes greater than 1/2+1 to reach a decision, and thus empower a minority to block change. In this paper I consider the opposite deviation from simple majority rule: submajority rules, under which a voting minority is granted the affirmative power to change the status quo. Among the examples I will consider are: - The Journal Clause, which allows 1/5 of the legislators present in either House to force a roll-call vote; - The discharge rule in the House, which (at various points, although not today) has permitted a specified minority of legislators to force bills out of committee for consideration on the floor; - Senate Rule XXII, under which a cloture petition is valid when signed by sixteen Senators; - The Seven Member Rule, under which a minority of designated committees in the House and Senate can require the executive branch to divulge information; - House Rule XI, which entitles committee minorities to call witnesses at hearings; - The famous Rule of Four that allows four Justices to grant a writ of certiorari and thereby put a case on the Supreme Court's agenda; - Rules governing direct democracy that permit a defined minority of a state's electorate to place a question on the ballot, or to force a recall election; - Rules governing international organizations, which frequently allow a defined minority to call an emergency session or to force a roll-call vote. Submajority rules are rarely discussed, either because they are assumed not to exist, or because they are assumed to lack any institutional virtues, or because submajoritarian decisions are assumed to be chronically unstable in light of the risk that subsequent majorities will reverse the submajority's decision. I will dispute all three assumptions. Submajority rules have important procedural and deliberative virtues: in a range of situations they enable a minority to force public accountability upon a majority, to the benefit of the institution as a whole. The reversibility problem can be, and is, dampened by other institutional rules and norms that protect submajoritarian decisions, or by the simpler expedient of adopting submajority rules only for decisions that are inherently irreversible or costly to reverse, such as decisions that release information into the public domain.

Bargaining in Bicameral Legislatures: When and Why Does Malapportionment Matter?

Malapportionment of seats in bicameral legislatures, it is widely argued, confers disproportionate benefits to overrepresented jurisdictions. Ample empirical research has documented that unequal representation produces unequal distribution of government expenditures in bicameral legislatures. The theoretical foundations for this empirical pattern are weak. It is commonly asserted that this stems from unequal voting power per se. Using a noncooperative bargaining game based on the closed-rule, infinite-horizon model of Baron and Ferejohn (1989), we assess the conditions under which unequal representation in a bicameral legislature may lead to unequal division of public expenditures. Two sets of results are derived. First, when bills originate in the House and the Senate considers the bill under a closed rule, the equilibrium expected payoffs of all House members are, surprisingly, equal. Second, we show that small-state biases can emerge when (1) there are supermajority rules in the malapportioned chamber, (2) the Senate initiates bills, which produces maldistributed proposal probabilities, and (3) the distributive goods are “lumpy.”We thank seminar participants at New York University, the University of Pennsylvania, and the 2002 annual meeting of the American Political Science Association for helpful comments. James Snyder and Michael Ting gratefully acknowledge the financial support of National Science Foundation Grant SES-0079035. Stephen Ansolabehere gratefully acknowledges the support of the Carnegie Corporation under the Carnegie Scholars program. This paper was written while Michael Ting was at the University of North Carolina at Chapel Hill, and he thanks the Department of Political Science there for their support.

Symmetric Entrenchment: A Constitutional and Normative Theory

In this article, we defend the traditional rule that legislative entrenchment, the practice by which a legislature insulates ordinary statutes from repeal by a subsequent legislature, is both unconstitutional and normatively undesirable. A recent essay by Professors Eric Posner and Adrian Vermeule disputes this rule against legislative entrenchment and provides the occasion for our review of the issue. First, we argue that legislative entrenchment is unconstitutional, offering the first comprehensive defense of the proposition that the original meaning of the Constitution prohibits legislative entrenchments. We show that a combination of textual, historical, and structural arguments make a very compelling case against the constitutionality of legislative entrenchment. In particular, the Framers incorporated into the Constitution the traditional Anglo-American practice against legislative entrenchment, as evidenced by early comments by James Madison - comments that have not been previously discussed in this context. Moreover, legislative entrenchment essentially would allow Congress to use majority rule to pass constitutional amendments. On the normative issue, we offer a new theory of the appropriate scope of entrenchment: the theory of symmetric entrenchment. Under our theory, there is a strong presumption that only symmetric entrenchments - entrenchments that are enacted under the same supermajority rule that is needed to repeal them - are desirable. The presumption helps to distinguish desirable entrenchments that would improve upon government decisions from undesirable ones that simply involve legislatures protecting their existing preferences against future repeal. To be desirable entrenchments must generally be symmetric, because the supermajority rule that is applied to the enactment of entrenched measures would improve the quality of these measures and therefore compensate for the additional dangers that entrenchments pose. This theory steers a middle path between a strict majoritarian position, which would prohibit all legislative entrenchments, and a position that would allow legislative majorities to entrench measures.

Symmetric Entrenchment: A Constitutional and Normative Theory

In this article, we defend the traditional rule that legislative entrenchment, the practice by which a legislature insulates ordinary statutes from repeal by a subsequent legislature, is both unconstitutional and normatively undesirable. A recent essay by Professors Eric Posner and Adrian Vermeule disputes this rule against legislative entrenchment and provides the occasion for our review of the issue. First, we argue that legislative entrenchment is unconstitutional, offering the first comprehensive defense of the proposition that the original meaning of the Constitution prohibits legislative entrenchments. We show that a combination of textual, historical, and structural arguments make a very compelling case against the constitutionality of legislative entrenchment. In particular, the Framers incorporated into the Constitution the traditional Anglo-American practice against legislative entrenchment, as evidenced by early comments by James Madison comments that have not been previously discussed in this context. Moreover, legislative entrenchment essentially would allow Congress to use majority rule to pass constitutional amendments. On the normative issue, we offer a new theory of the appropriate scope of entrenchment: the theory of symmetric entrenchment. Under our theory, there is a strong presumption that only symmetric entrenchments entrenchments that are enacted under the same supermajority rule that is needed to repeal them are desirable. The presumption helps to distinguish desirable entrenchments that would improve upon government decisions from undesirable ones that simply involve legislatures protecting their existing preferences against future repeal. To be desirable entrenchments must generally be symmetric, because the supermajority rule that is applied to the enactment of entrenched measures would improve the quality of these measures and therefore compensate for the additional dangers that entrenchments pose. This theory steers a middle path between a strict majoritarian position, which would prohibit all legislative entrenchments, and a position that would allow legislative majorities to entrench measures.

Supermajority Rule in the U.S. Senate

For this occasion, I decided to tackle a topic of, I hope, some historical and theoretical interest, of current policy importance and one that might have interested James Madison.I would like to thank Alan Gerber and Eric Schickler for their help on this work. A useful clarifying point came from Morris Fiorina. Matthew Glassman helped with the references. That topic is supermajority rule in the U.S. Senate—that is, the need to win more than a simple majority of senators to pass laws. Great checker and balancer though Madison was, this feature of American institutional life would probably have surprised him and might have distressed him.

Do Shareholders Vote Strategically? Evidence on the Advisory Role of Annual General Meetings

We analyze how shareholders screen management proposals at annual general meetings. First, we use a simple model of strategic voting to develop a theoretical benchmark of effective information aggregation through voting. Then, we derive testable implications and provide structural estimates of the model parameters. The main conclusions are that shareholders vote strategically and that proposal screening increases value. Shareholders largely neutralize the lock-in effect of supermajority rules, thereby preventing the incorrect rejection of proposals.

Politico-economic transition

Political and economic transitions of non-market economies often go hand in hand. We propose an economic theory of this transition process, which highlights how the success of such a transition depends upon the policies chosen in the new democratic environment. In this paper, economic success is characterized by the continual adoption of new technology (and economic growth), which requires costly human capital investment. The political choice is whether to allow the adoption of new technology. As a non-market economy begins its transition, agents with human capital specific to a particular technology find it in their interest to vote against continued innovation. As such, the transition to a market economy can be choked off. Our theory has the following features: (i) an economic transition is associated with a substantial drop in output; (ii) it is in the interest of large groups in the population to resist laissez–faire, as factor payments equal marginal products in the post–reform economy; (iii) although the joint move to democracy and a market economy does make people better off, it is insufficient for the transition to be successful, as the number of agents with a vested interest against continued innovation grows; and (iv) a temporary\/ restriction on voting rights which ensures a laissez-faire regime is sufficient to produce long-run\/ prosperity. This restriction may not be only one capable of overcoming the anti–innovation interests. Other mechanisms such as supermajority rules on policy changes may also guarantee laissez–faire.

Thayerian Deference to Congress and Supreme Court Supermajority Rule

Over the past eight years, the Supreme Court has been unusually aggressive in its exercise of judicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority; in ten of the eleven cases, the vote was five-to-four. Many scholars have recently considered ways in which Congress can either work within the new doctrinal constraints laid down by the Court, or circumvent those constraints entirely. In this Symposium Essay, I explore a more direct congressional mechanism for tempering the Court's aggressive review: imposition of a supermajority consensus requirement (say, six Justices rather than five) before the Court can invalidate a federal statute on federalism grounds. While virtually unheard-of today, this was a popular congressional proposal at earlier times in our history, especially during the Progressive Era. Indeed, two states that adopted a supermajority protocol during that period still operate under such a rule today. The notion was that such a supermajority requirement would institutionalize the prevailing view (then generally associated with James Bradley Thayer) that the Court shouldn't invalidate a federal statute unless it was perceived to be unconstitutional beyond reasonable doubt. In this Essay I bracket questions regarding the constitutionality and logistical feasibility of such a proposal today, and simply use the supermajority concept as a heuristic lens through which to explore different ways of institutionalizing what today's Court would articulate more loosely as a of constitutionality. Drawing upon the Progressive Era debates, I try to offer new insights into the operation of such a presumption, as well as to remind us of an additional mechanism for consideration by those who would advocate beefing up this presumption in the federalism (or any other) context.

Our Supermajoritarian Constitution

This Article proposes a new theory of the Constitution that argues that the central principle underlying the Constitution is governance through supermajority rules. More specifically, the Constitution embraces supermajority rules as a means of improving legislative decisionmaking in various circumstances where majority rule would operate poorly. We argue that supermajoritarianism inheres in the Constitution in at least three ways. First, the text, structure, purpose, and history of the Constitution all reveal its supermajoritarian orientation. In particular, we maintain that the three basic decisionmaking rules in the Constitution - express supermajority rules, passage of ordinary legislation by two houses and presentment to the President, and absolute constitutional limitations such as the First Amendment - despite their surface dissimilarities, are all essentially supermajoritarian. We also show that supermajority rules were a central part of the legal regimes that preceded the Constitution and were an important part of Madison's vision of a charter that would restrain majority factions while preserving representative government. Second, we examine the different supermajority rules in the Constitution and show that they largely conform to a persuasive model of when supermajority rules can improve government decisionmaking. We argue that supermajority rules can improve quality of legislation by filtering out undesirable legislation produced in circumstances when majority rule functions poorly. We then show that the different supermajority rules in the Constitution - including those governing impeachments, treaties, enactment and amendment of the Constitution, and passage of ordinary legislation - largely conform to this theory, which suggests that the Framers were implicitly following something like the theory. Finally, we explore the normative theory underlying the Constitution and argue that what makes the Constitution attractive as higher law is that it could only be enacted if it secured the support of a large supermajority. The strict supermajoritarian filter through which the Constitution and amendments had to pass produces higher quality provisions than if they had merely been enacted under majority rule and, therefore, justifies using constitutional provisions to strike down ordinary legislation. A recognition of the supermajoritarian origins of the Constitution also helps to respond to complaints about the dead hand of the Constitution, because it shows that the Framers' generation had to satisfy as strict a supermajority requirement to enact constitutional provision as does the present generation. Finally, the supermajoritarian requirement for constitutional provisions supports an originalist methodology for interpreting the Constitution, because it is the original understanding of constitutional provisions that passes through the strict supermajority process for enactment or amendment.

Conjunction and Aggregation

This Article begins with the puzzle of why law does not embrace the “product rule”; a mathematically-inclined judge or jury that thought a defendant .6 likely to have been negligent and .7 likely to have caused plaintiff’s harm might conclude that plaintiff had failed to satisfy the preponderance of the evidence standard. Following some discussion of a number of reactions to this puzzle, the Article advances the idea that the process of aggregating multiple jurors’ assessments overlooks valuable information. First, following the Condorcet Jury Theorem, agreement among jurors might raise our level of confidence beyond what the jurors themselves report. Second, a supermajority’s mean or median voter is likely to have a different assessment from that gained from the marginal juror. As such, a supermajority (or unanimity) rule may take the place of the product rule where there are multiple requirements for liability or guilt. An attempt to extract this inframarginal information more directly would likely generate strategic behavior problems. The analysis is extended to panels of judges, for whom outcome voting may (somewhat similarly) substitute for the product rule.

Conjunction and Aggregation

This Article begins with the puzzle of why law does not embrace the rule; a mathematically-inclined judge or jury that thought a defendant .6 likely to have been negligent and .7 likely to have caused plaintiff's harm might conclude that plaintiff had failed to satisfy the preponderance of the evidence standard. Following some discussion of a number of reactions to this puzzle, the Article advances the idea that the process of aggregating multiple jurors' assessments overlooks valuable information. First, following the Condorcet Jury Theorem, agreement among jurors might raise our level of confidence beyond what the jurors themselves report. Second, a supermajority's mean or median voter is likely to have a different assessment from that gained from the marginal juror. As such, a supermajority (or unanimity) rule may take the place of the product rule where there are multiple requirements for liability or guilt. An attempt to extract this inframarginal information more directly would likely generate strategic behavior problems. The analysis is extended to panels of judges, for whom outcome voting may (somewhat similarly) substitute for the product rule.

Optimal taxation and the stationarity of state tax rates

To minimize deadweight losses, tax rates should vary unpredictably so agents cannot rearrange their work and consumption habits. As a result, optimally set tax rates will be a nonstationary time series or, put differently, changes in the tax rate will be unpredictable. This paper identifies different fiscal policy environments under which groups of states operate and tests whether these commonalities explain the behavior of states' tax rate setting behavior. Results show that only states that must balance less than 50% of their budgets or have a supermajority rule optimally set tax rates.

Bicameralism and Its Consequences for the Internal Organization of Legislatures

Theories of organization of legislatures have mainly focused on the U.S. Congress, explaining why committee systems emerge there, but not explaining variance in organization across legislatures of different countries. To analyze the effects of different constitutional features on the internal organization of legislatures, we adopt a vote-buying model and consider the incentives to delegate decision rights in a game among legislative chambers. We show how presidential veto power and bicameral separation can encourage a legislative chamber to create internal veto players or supermajority rules, while a unicameral structure can encourage legislators to delegate power to a leader. (JEL D72)

Cycling of simple rules in the spatial model

McKelvey [4] proved that for strong simple preference aggregation rules applied to multidimensional sets of alternatives, the typical situation is that either the core is nonempty or the top-cycle set includes all available alternatives. But the requirement that the rule be strong excludes, inter alia, all supermajority rules. In this note, we show that McKelvey's theorem further implies that the typical situation for any simple rule is that either the core is nonempty or the weak top-cycle set (equivalently, the core of the transitive closure of the rule) includes all available alternatives. Moreover, it is often the case that both of these statements obtain.

Sophisticated Voting in Supermajoritarian Settings

Empirical support for sophisticated voting in the legislative setting has been sparse This is due to a number of factors, including the difficulty of identifying the ideal points of legislators in multidimensional spaces Whereas the conflict between sincere and strategic voting typically arises in such multidimensional settings, such conflict can also be found with respect to varied voting rules In this paper, the supermajority rules surrounding vetoes and cloture votes are examined to show their role in producing sophisticated voting outcomes. A single-dimensional model is developed that predicts sophisticated voting in two broad cases An empirical test with regard to votes on the 1989 minimum wage increase in the House of Representatives provides strong support for this theory Sincere voting is rejected, while sophisticated voting is supported, even when costly.

The limits on the Congressional Power of Rule-Making in the United States : Special Reference to the Constitutionality of House Supermajority Rule

The limits on the Congressional Power of Rule-Making in the United States : Special Reference to the Constitutionality of House Supermajority Rule

64% Majority rule in Ducal Venice: Voting for the Doge*

A recent result of Caplin and Nalebuff (1988) demonstrates that, under certain conditions on individual preferences and their distribution across society, super-majority rule performs well as a social decision rule. If the required super-majority is chosen appropriately, the rule yields a unique winner and voter cycles cannot occur. The voting procedure for electing a Doge in medieval Venice, developed in 1268, employed a super-majority requirement agreeing with the Caplin and Nalebuff formula. We present a brief history of the Venetian political institutions, show how the rule was employed, and argue that it contributed to the remarkable centuries-long political stability of Venice.

The Rights of Legislators and the Wrongs of Interpretation: A Further Defense of the Constitutionality of Legislative Supermajority Rules

In 1995, the House of Representatives adopted a rule that requires a three-fifths majority of those voting to pass an increase in income tax rates.' More than two years later, debate continues over a rule whose constitutionality has been controverted in Congress, in the courts, and in academia. Although a majority of the House passed the three-fifths rule again in 1997,2 several Representatives challenged its constitutionality in court.3 In the academic debate, the latest entry is Rights of Passage: Majority Rule in Congress by Jed Rubenfeld.4 Professor Rubenfeld claims that the three-fifths rule

Probabilities of Preferences and Cycles with Super Majority Rules

Balasko and Crès [2] introduce a probabilistic model of population preference profiles onnalternatives. For supermajority voting at any levelτ>.5286... they show that the probability of Condorcet cycles (intransitivity of the aggregate preference) tends quickly to 0 asnincreases. This paper offers an alternative analysis that relates voting outcomes to the behavior of sample medians. Condorcet cycles turn out to be asymptotically rare for allτ>12, but for the disappointing reason that preferences are rare. In contrast, for simple majority voting,τ=12, cycles occur with probability converging to 1 asn→∞.Journal of Economic LiteratureClassification Number: D71.