Balkinization: Extramajoritarian Rules

Extramajoritarian Rules

Gerard N. Magliocca

The recent clash in the Senate over the nuclear option is an excellent example of what I am calling an "extramajoritarian rule" in a draft paper. An extramajoritarian rule is something that a majority with a strong preference can use to work its will. Such a procedure is legal, but it is rarely used because it is inconsistent with other practices that are designed to protect minority rights or structure political debate. We spend a lot of time in constitutional theory arguing about supermajority rules, but they only measure the breadth of support. Extramajoritarian rules, by contrast, measure intensity and are often triggered by what we might call extraminoritarian obstruction.

Below the fold are some examples:

1. A discharge petition in the House of Representatives. A majority of House members can force any bill to the floor. So why doesn't that happen all the time? Part of the answer is deference to the role of House committees, which have a powerful gatekeeping function. Discharge petitions also undercut the House leadership (no matter which party is in charge). Nevertheless, this device was used to pry key civil rights legislation from committees chaired by segregationists, which was seen as unreasonable. The same could be said about any legislation that commands broad support in the House but is opposed by the Leadership of the majority party.

2. The Nuclear Option in the Senate. In practice, a majority of Senators can change the rules. Why doesn't that happen all the time? Largely because both parties have a vested interest in reserving the right to unilaterally block things (unless one party has a lopsided majority). In the case of President Obama's executive nominees, though, the majority concluded that the GOP was abusing its rights (in part because the filibuster of executive nominees is a recent development, and because so many of them were being held up).

3. Lords-Packing in Britain. When the House of Lords blocked the Reform Act of 1832 and the Parliament Act of 1911 despite successive general election victories in the House of Commons for the party supporting those measures, the Prime Minister asked the King to create enough new Peers to pass the legislation. Faced with that threat, the Lords backed down. Why wasn't that done every time the House of Lords refused to pass a bill? The answer is that the British Constitution was not seen as fully democratic then. When a clear mandate was given by the voters, though, the Lords were expected to back down. (FDR's Court-packing plan in 1937 is a comparable example.)

4. Calling a Special Session. We just saw an example of this in Texas with the abortion legislation. A minority can hold the floor until a legislative session expires and kill a bill. But the Governor (or the President) can call another session to overcome that kind of resistance under many circumstances.

These are just some examples. When I have the paper drafted, I'll get it posted.

Posted 4:24 PM by Gerard N. Magliocca [link]