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, [email protected] 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 ISSUE House Rules Is a supermajority requirement for tax hikes constitutional? In 1995, on the first day of the 104th Congress, constitutionally mandated to impeach officials and the House of Representatives amended House Rule ratify treaties, for example). XXI, which governs the consideration of bills, to John 0. McGinnis, a professor at Benjamin N. require a three-fifths majority vote to pass any Cardozo Law School of Yeshiva University in New increase inincome tax rates. Anyone who had doubts York City, and Michael B. Rappaport, a professor at about the new Republican majority's determination to University of San Diego School of Law, have pub- rein in taxes, the action seemed to say, need not have. lished articles on supermajority-rule constitutionality But voices were raised immediately, and critics and written about separation of powers. They argue continue to decry the measure as unconstitutional. that the rule change passes constitutional muster. Some contend that by restricting the rights of the Opposing them is Susan Low Bloch, a constitu- majority, such a requirement undercuts our entire tional law professor at Georgetown University Law system of government. Others look to the text of the Center who clerked with Justice Thurgood Marshall. Constitution and find no prohibition against adding a She says such a change represents a threat to the new supermajority requirement (to those already balance of power among the branches of government. Yes: Each chamber can adopt its own procedures Although opponents of this three- sistent with majority control. A majority of fifths rule have brought a lawsuit chal- the House of Representatives voted for the lenging its constitutionality, we believe rule, and a majority can waive or repeal it the rule is wholly constitutional. at any time. A legislative rule that could not The Constitution gives each house the be repealed by a majority would be uncon- authority "to determine the rules of its pro- stitutional because it would function like a ceedings." The three-fifths rule is a rule of constitutional amendment. But the three- proceeding because it governs the internal fifths rule does not suffer from this defect. operations of the House of Representatives. Another argument that has been Thus, the House may enact the three-fifths raised against the three-fifths rule is that rule so long as it does not violate another it somehow aggrandizes the role of the provision of the Constitution. House of Representatives in the legislative Opponents of the rule fail to identify process. The three-fifths rule, however, a constitutional clause that prohibits the completely conforms to the constitutional three-fifths rule. The Constitution does not separation of powers. specify the proportion of legislators neces- First, it is even odd to describe the sary to pass a bill. Rather, it simply states three-fifths rule as expanding the authority that bills must "pass" each house. of the House; the rule limits the House's The silence of the Constitution on the power to pass bills. More fundamentally, type of majority required to pass a bill is the Constitution gives each house the power not the result of inattention to the issue. to refuse to pass legislation for virtually any Instead it reflects the framers' intent to reason. Thus, the Senate cannot complain permit the houses of the legislature to de- if the House refuses to pass legislation the cide the question. When the Constitution Senate proposes. Similarly, the Senate may actually mandates a legislative majority, not object to rules that make it harder for as it does for quorums, or a supermajority, as it does the House to pass such legislation. for treaties, it does so explicitly. In addition to being constitutional, the three-fifths Other venerable rules, such as the filibuster and rule is also good policy. For the last 50 years the re- the committee system, support the constitutionality of public has been beset by a difficult problem: Concen- this rule. Like the three-fifths rule, these rules temper trated interest groups can successfully obtain benefits the power of legislative majorities in order to advance for themselves and place the costs on a diffuse, legisla- other values such as legislative deliberation. If the fil- tively ineffective popular majority. ibuster and the committee system are constitutional, The three-fifths rule should be celebrated as a so is the three-fifths rule. modest attempt to restore the power of popular ma- Opponents of the three-fifths rule often charge jorities without taking the more radical step of amend- that it is antidemocratic, but the rule is entirely con- ing the Constitution. 78 ABA JOURNAL / MARCH 1997 ARAIPHOTOS BY LAURENSHAY AND DWIGHTVALI ELY Taxation Tally Recent federal income tax rate increases and the votes by which they 71RR7 Since the 63rd Congress (1912-1914)-the first with passed the House of Representatives: 435 members-17 Congresses have been ruled by a 111Bill number: HR. 5835 three-fifths majority of either major party: 0 Raised income taxes on high-income taxpayers by setting the Election Majority Congress year Party members at 31% instead of 28%. ,nius Budget top bracket 102nd 1990 D 267 "' ,ecnciation~- N Passed Oct. 27,1990; 228-200. 98th 1982 D 269 ,ct 1990 N Voting ye!: 181 Democrats and 47 Republicans. 96th 1978 D 277 U Voting no: 74 Democrats and 126 Republicans. 95th 1976 D 292 94th 1974 D 291 NEBill Number: H.R. 2264. 89th 1964 D 295 N Raised income taxes on high-income taxpayers by setting 87th 1960 D 263 ~mnibus Bud el new top brackets of 36% and 39.6% (up from 31%). 86th 1958 D 283 _econiliakonr__ I Passed Aug. 5, 1993:218-216 81st 1948 D 263 77th 1940 D 267 F, U Voting yes: 217 Democrats and one independent. 1 99 76th Voting no: 41 Democrats and 175 1938 D 262 Republicans. 75th 1936 D 333 74th 1934 D 322 Unde thee ne rules.a tnree fifths majorit-261memi ers-must approean) 73rd 1932 D 313 billincreasing ircome taxes 71st 1928 R 267 Sources'Major Deficit Reduction Measures Enacted in RecentYears.' Congressionai ResearchService. and Congressional Quarterify s Guide to[IS Electons,Third Edition 67th 1920 R 300 63rd 1912 D 290 No: The framers had only a simple majority in mind The supermajority requirement under- There is no limit mines the constitutional principles on the supermajority of Arti- rule. Thus, the House could require even cle I and separation of powers. Rule XXI is more than a 60 percent majority for se- not merely a rule of internal procedure; it determines lected topics or even for all legislation. xxhen bills get presented to the Even if Senate most representatives and a majori- and the president. ty of senators want Article I, § 7 a particular bill, the provides that "every Bill bill could not get presented which shall have passed to the presi- the House ...and dent and could never become law. the Senate, shall, before it becomes If the a Law. House can do this, it has the power unilat- be presented to the President of the United erally States." to enhance its power vis A vis the The presumption is that '-passed" BY SUS AN Senate and the president. means "ag-eed to by a majority IA( of a quo- LOW B OCH Furthermore, if the House rum." The can adopt question is whether either house a rule like this, can change that meaning so can the Senate. Article I, and insist that § 5 provides that "each House "passed" requires more than a majority. may deter- mine the Rules of its Proceedings." Thus, the Senate While the Constitution does not explicitly deny ei- could ther say: "No judge or cabinet official, once nominat- house the power to require a supermajority, that ed by is the President, shall be considered as confirmed true of many limits we infer from the structure of the except Constitution. by a three-fifths vote." Article 1, § 7 is a carefully crafted mech- If the anism Senate were allowed to adopt such a rule, it that struck a balance between large and small would be able singlehandedly states, the House to upset the carefully and the Senate, and Congress and crafted rules concerning appointment the president. By adopting of both executive the three-fifths rule, the officials and judges, and to unilaterally limit House upsets this balance and the power unconstitutionally in- the Constitution gives to the president in the appoint- trudes on the powers of the Senate and the president. ment The process. The Senate would thus be able to ag- framers knew how to say they wanted a su- g-randize its permajority own role and unconstitutionally distort the and, in fact, said so in several contexts. balance of powers Proponents established by the Constitution. of the supermajority rule argue that the Defenders of the rule fr-amers may say: "Don't worry; a simple have meant this list to be simply the min- majority can repeal the rule." imal list of occasions But I see nothing in their that require supermajorities, and logic that stops the House fi'om requiring that they intended to that repeal of allow Congress to add to the list.