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V. Conclusion . ... make a normative case for the use of certain supermajority rules, such as a supermajority rule ... because transaction costs may block reallocation.9. Thus ... can be superior to majority rule when special interests use their leverage to ... 223 (1986), and Frank H. Easterbrook, The State of Madison's Vision of.
UNIVERSITY OF SAN DIEGO SCHOOL OF LAW LEGAL STUDIES RESEARCH PAPER SERIES PAPER NO. 07-100 ~and~ NORTHWESTERN UNIVERSITY SCHOOL OF LAW LAW & ECONOMICS RESEARCH PAPER SERIES PAPER NO. 07-22

MAJORITY AND SUPERMAJORITY RULES: THREE VIEWS OF THE CAPITOL

JOHN O. MCGINNIS NORTHWESTERN UNIVERSITY – SCHOOL OF LAW MICHAEL B. RAPPAPORT UNIVERSITY OF SAN DIEGO – SCHOOL OF LAW

This paper can be downloaded free of charge from the Social Science Research Network at: http://ssrn.com/abstract=982733

Majority and Supermajority Rules: Three Views of the Capitol John O. McGinnis* & Michael B. Rappaport** I.

The Economic Preference Model...................................................... 1122 Introduction................................................................................... 1122 Buchanan and Tullock .................................................................. 1122 Critique of Buchanan and Tullock ................................................ 1125 1. The Need to Focus on Legislation Blocked by Supermajority Rules .................................................................................................. 1125 2. The Need to Consider Substitution and Administrative Costs .. 1126 D. A Simple Economic Preference Model......................................... 1126 1. The Simple Preference Model with No Agency Costs............... 1127 2. The Simple Preference Model with Agency Costs in the Form of Special Interests........................................................................ 1128 E. Applying the Theory to Annual Appropriations and Regulations 1137 F. Unequal Intensities of Preference, Vote Trading, and Universalism ...................................................................................................... 1140 G. Administrative Costs, Substitution Costs, and Holdout Costs...... 1144 II. The Spatial Model............................................................................. 1146 A. Introduction................................................................................... 1146 B. The Basic Structure of Spatial Models ......................................... 1147 1. A Simple Model Without an Agenda Setter............................... 1148 2. A Model with an Agenda Setter ................................................ 1150 C. The Normative Implications of the Model.................................... 1152 D. The Status Quo and Supermajority Rules ..................................... 1155 1. The Status Quo and the Preferences of Legislators.................. 1155 2. The Status Quo and the Structure of Supermajority Rules ....... 1156 III. The Accuracy Model ........................................................................ 1159 A. Introduction................................................................................... 1159 B. Building the Model ....................................................................... 1160 1. From Truth and Falsity to Goodness and Badness .................. 1162 2. Independence and the Number of Decisionmakers................... 1162 3. The Distribution of Accuracy Rates.......................................... 1164 A. B. C.

* Professor of Law, Northwestern Law School. ** Professor of Law, San Diego University School of Law. We thank Robert Bennett, Lynn Baker, Kiwi Camara, Tonja Jacobi, Mark Movsesian, and Dennis Murashko for their comments. We are grateful to each of our law schools for financial support.

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C.

The Prevalence of Bad Bills.......................................................... 1165 The Percentages of Bad and Good Bills Voted Upon............... 1165 The Reasons for the Predominance of Bad over Good Bills..... 1166 D. Risk Reduction.............................................................................. 1168 IV. Entrenchment .................................................................................... 1170 A. The Nature of Entrenchment......................................................... 1172 B. The Accuracy Model..................................................................... 1172 1. Compensating Factors for the Low Accuracy Rate for Entrenchment ............................................................................ 1173 2. Correcting for Partisanship...................................................... 1175 3. Factors that Make Supermajority Rules Appropriate with Accuracy Rates over Fifty Percent ........................................................... 1176 C. The Preference Model................................................................... 1177 1. Partisanship.............................................................................. 1178 2. Encouraging Consensus ........................................................... 1180 3. The Veil of Ignorance ............................................................... 1181 4. Avoiding a Majoritarian Threat Game ..................................... 1181 V. Conclusion ........................................................................................ 1182 1. 2.

Introduction Legislators act under voting rules that require widely varying proportions of the legislature to agree to pass a law. Sometimes legislators act under simple majority rule. At other times they act under express and stringent supermajority rules, as for instance under the two-thirds rule required for each house to propose constitutional amendments.1 Still at other times, the legislature acts under requirements that may appear to be majoritarian but actually create an effect similar to a mild supermajority rule. Such, for instance, are the rules of “tricameralism” that govern the passage of ordinary legislation in Congress, requiring bills to receive the approval of the House, the Senate, and the President.2 Despite this diversity of voting rules, scholars have spent relatively little time explaining or justifying the patterns that we observe in real world legislatures. In this Article, we attempt to make progress on this important task by exploring the choice between majority and supermajority voting 1. U.S. CONST. art. V. 2. Id. art. I, § 7, cls. 2–3. The stringency of these supermajority requirements can also be strengthened by legislative supermajority rules, like the filibuster rule, which can be adopted by either house of Congress. See id. art. I, § 5, cl. 2 (stating that “[e]ach House may determine the rules of its proceedings,” which suggests that either house can enact filibuster rules or any other rules to control the length of debates); see also Dara Kay Cohen et al., Crisis Bureaucracy: Homeland Security and the Political Design of Legal Mandates, 59 STAN. L. REV. 673, 702 (2006).

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rules. In particular, we attempt to match the voting rule with the circumstance in which it would be desirable. For example, we argue that supermajority rules make sense for the enactment of annual appropriation bills and for constitutional provisions, but not for ordinary legislation that is not subject to special infirmities in the political process. This analysis has both positive and normative aspects. It helps to explain why constitutions often assign different voting rules for the passage of different kinds of legislation, such as requiring a relatively substantial supermajority to enact or amend constitutional provisions. It also helps to make a normative case for the use of certain supermajority rules, such as a supermajority rule for spending legislation.3 This Article, then, attempts to do for the choice of legislative voting rules what the law and economics literature has sought to do for the choice of entitlement rules—to justify which voting rules should be used in different situations much as the law and economics literature has justified which entitlement rules to apply in different situations. The decisions in public law about what legislative voting rule to use are analogous to the decisions in private law about whether to use property or liability rules to protect entitlements and to whom to assign the entitlement. Just as the choice of entitlement rules generates the actions and bargaining that dominate social and economic life, so the choice of legislative voting rules generates the actions and bargaining that dominate political life. More than thirty years ago, Guido Calabresi and Douglas Melamed in a groundbreaking article drew attention to the fundamental choice between property rules and liability rules in protecting private entitlements.4 A bevy of other legal scholars have refined their analysis to take account of complexity and nuance.5 Yet legal scholars have rarely mentioned the no-less-fundamental choice between majority and supermajority voting rules in public law. As Calabresi and Melamed observed, it is transaction costs that raise the stakes as to the choice of entitlements rules.6 In the absence of transaction costs, the assignment of entitlements and the method for protecting them would not matter, since individuals would reallocate the entitlements

3. Some proposals for constitutional reform are actually about the appropriate voting rule and therefore can be illuminated by our analytic approach. For example, the proposed balanced budget amendment seeks to curb deficit spending by requiring a supermajority vote to run a deficit. See Theodore P. Seto, Drafting a Federal Balanced Budget Amendment That Does What It Is Supposed to Do (and No More), 106 YALE L.J. 1449, 1531 (1997). 4. See Guido Calabresi & A. Douglas Melamed, Property Rules, Liability Rules, and Inalienability: One View of the Cathedral, 85 HARV. L. REV. 1089, 1106–10 (1972). 5. Their article has been cited 1,065 times. (Westlaw search, Jan. 10, 2007). It would be impossible to list all the important articles that have built on this seminal work, but two of the most significant are James E. Krier & Stewart J. Schwab, Property Rules and Liability Rules: The Cathedral in Another Light, 70 N.Y.U. L. REV. 440 (1995), and Carol M. Rose, The Shadow of the Cathedral, 106 YALE L.J. 2175 (1997). 6. Calabresi & Melamed, supra note 4, at 1096.

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efficiently.7 Regardless of who was initially assigned the entitlement and what type of protection was employed, individuals would make trades to assure that the entitlement would go to the highest valuing user.8 But the presence of transaction costs turns both the initial assignment of the entitlement and the rule by which it is protected into critical decisions, because transaction costs may block reallocation.9 Thus, scholars have developed many different methods to determine which user should be assigned the initial entitlement and which would be the best rule for protecting that entitlement in order to maximize net benefits.10 In that manner these scholars potentially provide a positive explanation and normative justification of both the assignment of entitlements and their protection by either property or liability rules. Transaction costs also make the choice of the right legislative voting rule fundamental. In the absence of transaction costs, it also does not matter from an efficiency perspective what proportion of the legislature is required to enact a law. For example, if a majority is empowered to enact a law that imposes greater costs on the minority than the benefits it confers on the majority, the minority can simply make side payments to get the majority to agree not to pass this piece of legislation. As with entitlement rules, distributional consequences flow from the initial assignment to the majority of the right to make law,11 but in a world of zero transaction costs society can still obtain efficient legislation. In the presence of transaction costs, the choice of the correct legislative rule can make all the difference. If a majority is likely to be benefited by inefficient legislation, transaction costs may impede the minority from making side payments to block that inefficient legislation. Transaction costs may be even more omnipresent in the public than in the private sphere, because while laws and social norms generally permit free payment for private entitlements they prohibit side payments for the votes of legislators.12 It thus may be even more important to choose the correct legislative voting rule 7. This proposition was first adumbrated in Ronald Coase, The Problem of Social Cost, 3 J.L. & ECON. 1 (1960). 8. See Calabresi & Melamed, supra note 4, at 1095 (“In such a frictionless society, transactions would occur until no one could be made better off as a result of further transactions without making someone else worse off.”). 9. See Daniel A. Farber, Parody Lost/Pragmatism Regained: The Ironic History of the Coase Theorem, 83 VA. L. REV. 397, 416–21 (1997). 10. For variations on Calabresi and Melamed see, for example, Ronen Avraham, Modular Liability Rules, 24 INT’L REV. L. & ECON. 269 (2004), and Abraham Bell & Gideon Parchomovsky, Pliability Rules, 101 MICH. L. REV. 1 (2002). 11. Cf. Calabresi & Melamed, supra note 4, at 1098–1101 (noting the distributional consequences of entitlement rules). 12. See, e.g., 18 U.S.C. § 201(b)(1)(A) (2000) (stating that any person who corruptly gives or offers anything of value to a public official with the intent of influencing an official act has committed bribery of a public official); TEX. PENAL CODE § 36.02(a)(1) (Vernon 2003) (stating that it is a criminal offense to intentionally or knowingly confer, solicit, or accept any benefit as consideration for a public official’s vote or any other exercise of discretion as a public official).

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initially than to choose the correct location and type of protection for a private entitlement. As Calabresi and Melamed demonstrate that the structure of transaction costs is crucial to the optimal assignment of entitlements, we show that it is no less crucial to legislative voting rules. To take account of the complexities of the political world, however, we consider the choice between voting rules from multiple perspectives. We discuss three models of voting rules—an economic preference model, a political science (or spatial) preference model, and a public interest model that focuses on the accuracy of legislative judgments. Part I offers an economic preference model that is familiar from the discussion of private entitlements and from the law and economics literature generally—a model that predicts the behavior of actors based on their preferences and evaluates an institution based on the benefits and costs it produces. We initially review the leading economic preference model, that of Buchanan and Tullock in The Calculus of Consent,13 but then we build on Buchanan and Tullock to construct our own simple preference model. In our model, the structure of a particular kind of transaction cost—agency costs—are a central consideration in determining the optimal voting rule. Agency costs are the costs created by the difficulty citizens have in monitoring and controlling their legislators.14 These costs will be especially high when there are special interests—concentrated groups with substantial leverage—which can obtain programs that are beneficial to them, but not desired by voters.15 We argue that for ordinary legislation, majority rule works better than supermajority rule in the absence of special interests, but supermajority rule can be superior to majority rule when special interests use their leverage to pass legislation. In these latter circumstances, supermajority rule can operate to restrain the additional influence of special interests by making it harder to enact legislation. By contrast, supermajority rule is inferior to majority rule when special interests act to block the passage of legislation. Supermajority rule will then exacerbate the distortions that special interests create. We then provide a concrete example of our analysis by showing that there is a strong case for applying supermajority rule to annual appropriation laws, but a much weaker case for applying it to regulatory laws. Part II employs a spatial model drawn from political science to provide additional insights into legislative voting rules from a preference perspective. Spatial models allow us to compare the operation of different voting rules when legislators possess a range of different viewpoints on legislation. They 13. JAMES M. BUCHANAN & GORDON TULLOCK, THE CALCULUS OF CONSENT (1962). 14. See RANDALL G. HOLCOMBE, THE ECONOMIC FOUNDATIONS OF GOVERNMENT 98 (1994) (noting that agency costs prevent perfect monitoring of legislators by the citizens they represent). 15. The seminal work is MANCUR OLSON, THE LOGIC OF COLLECTIVE ACTION (1965). Classic works on the importance of special interests in the legal literature include Jonathan R. Macey, Promoting Public-Regarding Legislation Through Statutory Interpretation: An Interest Group Model, 86 COLUM. L. REV. 223 (1986), and Frank H. Easterbrook, The State of Madison’s Vision of the State: A Public Choice Perspective, 107 HARV. L. REV. 1328 (1994).

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also allow us to take account of legislative institutions, like committees and other agenda-setters. While spatial models do not speak directly to efficiency concerns, they are amenable to another plausible normative standard—the preferences of the median voter. Viewed under this standard, supermajority rules will be beneficial when special interests favor additional laws, but will be undesirable when they oppose them. That the spatial model reaches recommendations for voting rules similar to economic preference model shows that our conclusions remain robust both when we vary the normative framework and add other structures, like agenda setters. The spatial models also bring into bold relief the importance of the status quo—the situation that arises if the legislature does not pass legislation—in shaping the decisions of legislators. Because of this influence, the status quo can be an important consideration in choosing the optimal voting rule. The status quo, for instance, explains why the California Constitution’s requirement that spending pass with a supermajority rule has not been a clear success.16 Because the status quo—the failure to pass a budget—results in zero spending, the supermajority rule has less effect and imposes more costs than it would with a more attractive status quo. Part III of the Article offers an accuracy model for voting rules. An accuracy model begins with the assumption that legislators vote for legislation based not on their preferences but on their assessment of the public interest and evaluates their collective accuracy in reaching public interest determinations. Our model of this conception of the legislative process is based on the Condorcet Jury Theorem, which explores group decisions made when the decisionmakers are attempting to make accurate judgments. The Theorem suggests that majority rule is best if the accuracy rate of each legislator is greater than 50 percent. We show, however, that in certain circumstances supermajority rule can be better than majority rule under an accuracy model. While our accuracy model assumes that legislators generally seek the public interest, we also assume that biases affect their judgments, such as biases created by the influence of special interests. This more complicated accuracy model generates additional insights that guide the choice between supermajority and majority rule. For example, the model suggests that the legislature is likely to vote on more bad than good bills—itself a significant result. Moreover, to the extent that the legislature votes on more bad than good laws, this makes it more likely that supermajority rule will be superior to majority rule. Supermajority rules block legislation, and the more bad laws that are voted upon, the more likely that the supermajority rule will block such laws. The accuracy model also highlights an insurance rationale for supermajority rule. Citizens who are not sure of the accuracy rates of 16. See CAL. CONST. art. IV, § 12(d) (“Appropriations from the General Fund of the State, except appropriations for the public schools, are void unless passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring.”).

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legislators may experience risk. If those accuracy rates are greater than 50 percent, beneficial laws on average will pass; otherwise, harmful laws on average will pass. Risk averse citizens may prefer supermajority rules, because such rules will reduce the risk of low legislative accuracy rates causing harmful effects. Part IV discusses the choice between supermajority rule and majority rule in the context of entrenchments—provisions such as constitutional clauses that are protected against repeal by the ordinary legislative process. We use the framework we have developed to explain and justify stringent rules for entrenching legislation. This analysis constitutes a major result for our understanding of the nature of constitutionalism. Although the United States Constitution and many other constitutions mandate that their constitutional provisions and amendments be passed by strict supermajority rules, there is no accepted explanation for this pattern. Some scholars have even argued that it is not desirable to require the legislature to overcome a supermajoritarian hurdle before they can entrench a rule.17 Here we argue that the long-term nature of entrenchment makes stringent supermajority rules beneficial under both the preference and accuracy models. Under the preference model, allowing majorities to entrench their preferences would result in partisan pressures leading each party to engage in a race to entrench its program before the other party did. Similarly, while voters are likely to have a strong preference for consensus constitutional provisions, majorities are unlikely to realize this preference, unless they can be sure that other voters will also be required to take consensus into account. Supermajority rule, in contrast, is more likely to require entrenchments to have the support of a consensus and better allows the policy to enact its preferences, free from the distortions of excessive partisan influence. Our accuracy model provides complementary justifications for the application of stringent supermajority rules to entrenchment. For a variety of reasons, including the difficulty of making long-term predictions, legislators are likely to have particularly low accuracy rates for entrenchment. Strict supermajority rules raise the accuracy rates by restricting the agenda of what is considered, thereby increasing the attention given to each proposal. Such rules also help to establish the conditions for a beneficial veil of ignorance that forces individuals to consider the public interest more than parochial biases. Thus, from the perspective of an accuracy model, supermajority rule for entrenched legislation would also be beneficial. Accordingly, our multiple perspectives combine to show why our Constitution has strict supermajority rules for generating our fundamental law.

17. See, e.g., Eric A. Posner & Adrian Vermeule, Legislative Entrenchment: A Reappraisal, 111 YALE L.J. 1665, 1666 (2002) (“[T]he rule barring legislative entrenchment should be discarded; legislatures should be allowed to bind their successors, subject to any independent constitutional limits in force.”).

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The Economic Preference Model

A. Introduction In this Part we offer an economic preference model. We begin with a critique of the most important economic preference model of voting rules— that of James Buchanan and Gordon Tullock. While their model contains many insights, it fails to focus sufficiently on the principal cost of supermajority rules—the good laws that are blocked by more stringent voting rules. Buchanan and Tullock also neglect the administrative costs and substitution costs of voting rules, which are potentially substantial in a legal regime, like that of the United States, with different rules for different categories of legislation. Buchanan and Tullock’s theory has also not proved very useful as a practical heuristic for determining in which circumstances majority and supermajority rule should be deployed. In an effort to avoid these defects, we offer our own simple model for assessing the choice between supermajority and majority rule. Under our model, majority rule is superior when the political process is not afflicted by special interests. When there are special interests, the beneficence of supermajority rules will turn on the array of special interests. We conclude that it is presumptively beneficial to employ a supermajority rule for categories of legislation in which special interests promote the passage of legislation, but it is not advisable to apply a supermajority rule to categories in which special interests oppose the passage of legislation. We also consider how administrative and substitution costs affect the choice between supermajority and majority rule. We then show that our basic results will not be changed by complicating our model with vote trading or unequal intensities of preferences. Finally, we discuss one policy implication of our theory. We suggest that annual appropriation bills are prime candidates for the application of supermajority rules, while the case for applying supermajority rules to regulation is more equivocal. B. Buchanan and Tullock In The Calculus of Consent, Buchanan and Tullock begin with the assumption that political actors, legislators, and citizens alike, are selfinterested and therefore vote to maximize their preferences.18 They initially analyze a direct democracy, in which each individual votes on legislation and therefore all citizens are legislators. Buchanan and Tullock then analyze different voting rules in terms of two kinds of costs—external costs and decisionmaking costs. External costs are the costs legislation imposes on individuals in society, such as the cost of complying with regulations.19

18. See BUCHANAN & TULLOCK, supra note 13, at 17–30. 19. Id. at 63–68.

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Under a voting rule that requires unanimous consent, there are no external costs, because individuals can veto the legislation unless they are compensated for the costs.20 Less inclusive voting rules, like majority rule, however, permit external costs, because a coalition of individuals can impose measures that benefit the coalition at the expense of others. As a voting rule becomes less inclusive, the external costs are likely to rise.21 The second kind of costs are decisionmaking costs.22 Decisionmaking costs include the costs of the time spent by legislators in reaching decisions on legislation.23 More subtly, decisionmaking costs would appear to include the costs of laws foregone, because the benefits of legislation that a voting rule blocks must also be counted as a cost of that voting rule. As a voting rule becomes more inclusive—that is, as it approaches unanimity—it becomes harder to reach decisions under the rule.24 It thus increases the time legislators must take to reach agreement and the likelihood that desirable laws will not be passed. We can illustrate external and decisionmaking costs with the example of a pollution control law. The external costs of the law are the costs it imposes on private individuals, such as the costs of buying pollution abatement equipment. The decisionmaking costs include the time that legislators deliberate in passing the law. Decisionmaking costs also include the lost benefits from a law controlling pollution that an inclusive voting rule would block. For instance, under a unanimity rule, polluters could block the law, generating substantial social costs. Buchanan and Tullock thus see voting rules in terms of a trade-off between external and decisionmaking costs. External costs will start high at less inclusive voting rules and will slope downward until zero at unanimity rule. Decisionmaking costs, by contrast, start low at less inclusive voting rules and slope upward to their highest point at unanimity rule.25 Buchanan and Tullock recommend choosing the voting rule that would minimize the sum of these two kinds of costs.26 In a world without transaction costs, all voting rules are equally efficient, because those who oppose a rule can be compensated by those who 20. Id. at 64. 21. Id. at 65. 22. Id. at 68–69. Buchanan and Tullock sharply distinguish between rules for agreeing to rules for governance—the constitutional stage—and rules for the operation of government. While they appear to recommend unanimous or near-unanimous rules for constitutional decisionmaking, they recognize that unanimity rules may not be optimal for ordinary legislative decisionmaking. Id. at 69–72. 23. See id. at 68 (discussing time and effort involved in decisionmaking). 24. Id. at 68–69. 25. Buchanan and Tullock’s approach is somewhat unorthodox since they do not compare the costs and benefits of different voting rules, but rather frame the issue as minimizing two different types of costs. Id. at 45. While they have their reasons for this approach, we prefer the more usual costs and benefits approach when building our model. Infra subpart I(D). 26. BUCHANAN & TULLOCK, supra note 13, at 69–72.

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will benefit. Thus, all legislation with net benefits will pass.27 For instance, in our pollution law example, if the law provided net overall benefits, those benefiting could compensate those who were forced to bear costs installing pollution control equipment. Compensation could take the form of side payments or of log-rolling agreements to vote for other legislation desired by the polluters. This result is analogous to the Coase Theorem, which holds that in the absence of transaction costs individuals will trade entitlements to the highest valuing user. Our political world, however, is plagued by transaction costs. In fact, laws and social norms generally prohibit legislation from being bought and sold with side payments.28 Therefore the voting rule chosen will make a difference, creating both external and decisionmaking costs. Buchanan and Tullock initially apply their theory to direct democracy, but they also use their theory to justify and analyze representative democracy. They argue that representative democracy is justified because it reduces the very high decisionmaking costs of direct democracy in a large society.29 The trade-off, though, is that representative democracy raises external costs (in the form of agency costs), as it permits legislators to impose external costs on ordinary citizens to benefit themselves.30 As a legislative voting rule becomes more inclusive, it reduces external costs, because legislators tend to represent varying interests.31 At the extreme, the requirement of unanimity makes it very difficult for any legislation to trench on the substantial interests of any group in society.32 On the other hand, as a legislative voting rule becomes more inclusive, it increases decisionmaking costs because it is harder to get the requisite number of legislators to reach agreement. The Calculus of Consent contains many great insights, three of which should be at the core of any legislative preference model. First, Buchanan and Tullock show that despite the obeisance often expressed to majority rule, this rule will not always be better than other voting rules. Second, they show that in the real world of transaction costs the choice between different voting rules represents trade-offs among external and decisionmaking costs. Finally, because the optimal voting rule turns on a trade-off, it must be selected depending on the circumstances, including the subject matter of the legislation under consideration.

27. There still may be distributional consequences of rules. 28. Akhil Reed Amar, The Case of the Missing Amendments: R.A.V. v. City of St. Paul, 106 HARV. L. REV. 124, 141 (1992). 29. BUCHANAN & TULLOCK, supra note 13, at 213. 30. Id. at 214–17. 31. Id. at 214–15. 32. Id. at 215–16.

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C. Critique of Buchanan and Tullock 1. The Need to Focus on Legislation Blocked by Supermajority Rules.—The largest cost from inclusive or supermajority voting rules is the lost benefits from legislation that these voting rules block. Blocking legislation can impose large costs on society—costs that are potentially larger than the external costs that the more inclusive voting rule prevents. For instance, under a stringent supermajority rule a small number of polluters may block efficient pollution control legislation. Because this legislation is efficient, the costs from not passing it (that is, the lost benefits to the public) will be greater than the costs imposed on the polluters from passing it. Government inaction as well as government action can be a source of societal costs. Buchanan and Tullock’s approach obscures this essential cost of more inclusive voting rules.33 Their placement of costs of foregone laws in the category of decisionmaking costs has the capacity to mislead. First, decisionmaking costs conjure up simply the costs of lawmakers taking longer to decide. Such costs seem relatively insubstantial, but the costs of blocked legislation are potentially huge. Second, Buchanan and Tullock reinforce this impression of decisionmaking costs as simply involving more discussion time by their seeming optimism that vote trading and side payments are often available to allow efficient legislation to be passed. But where side payments are legally proscribed, vote trading is limited, and legislatures have scarce time to debate matters, inclusive voting rules will block much beneficial legislation.34 Our discussion, unlike that of Buchanan and Tullock, focuses on both the laws that pass and the laws that do not pass under inclusive voting rules. This emphasis will correct for the bias—or at least impression of bias—that Buchanan and Tullock’s analysis has toward supermajority rules and against majority rule. Moreover, this focus helps us provide concrete rules of thumb

33. One reason it may be obscured is their assumption that we already have good substantive rules in place. But the world can change, necessitating new substantive legislation. For instance, a new kind of pollution can appear. In those circumstances, the cost of blocking rules will be very relevant. Douglas W. Rae, The Limits of Consensual Decision, 69 AM. POL. SCI. REV. 1270, 1292 (1975). 34. A less fundamental criticism involves Buchanan and Tullock’s attitude toward majority rule. We sympathize with their position that majority rule is not sacrosanct, but still believe that majority rule has some very desirable characteristics. As Dennis Mueller has noted, majority rule requires the smallest possible proportion of individuals to pass a law without leaving open the possibility of contradictory legislation simultaneously passing. DENNIS C. MUELLER, PUBLIC CHOICE III 76–78 (2004). With voting rules that require less than a majority, a submajority can pass a proposal only to have a different submajority repeal it on the next vote. This result can occur even if all legislators vote consistently. For example, under submajority rule, a legislature could pass a law banning a certain kind of pollution one day, and then repeal the ban the next day without any legislators changing their position. Thus, given that passing contradictory laws creates very high decisionmaking costs, the decisionmaking costs are lowest at majority rule and rise again as the vote rule becomes more inclusive. This kink in the decisionmaking curve makes majority rule attractive, other things being equal.

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for the choice among these rules. As innovative as Buchanan and Tullock’s abstract analysis was, it has not provided much traction for theorists and policymakers to make the practical choice between majority and supermajority rule in specific circumstances. 2. The Need to Consider Substitution and Administrative Costs.— Buchanan and Tullock also do not take account of the costs of multiple decisionmaking rules. These costs are important in any governmental system, like our own, that applies different legislative voting rules to different kinds of decisions. Once different voting rules govern different kinds of government actions, two additional costs appear. The first is administrative costs—the costs of identifying and applying the correct rule governing the legislative action and the costs from mistakenly applying the wrong rule. The second is substitution costs. If different voting rules apply to different kinds of legislation, those who find themselves blocked by a supermajority rule in one legislative area will have incentives to try to achieve similar results in another area governed by a less inclusive voting rule. For instance, if spending laws were subject to a supermajority rule but regulatory laws were not, interest groups would try to substitute regulatory programs to obtain the rents that they would otherwise obtain through spending programs. D. A Simple Economic Preference Model Here we build on Buchanan and Tullock to create a model that avoids the drawbacks of their analysis. This model looks at the number of good and bad laws passed under majority rule and supermajority rule to determine which voting rule produces a greater net number of good laws. Then it considers administrative and substitution costs, which can also bear on the optimal voting rule. Our model is a simple one, but it captures some essential aspects of the legislative process. The model assumes that legislators act based on their preferences. It initially assumes no special interests, but then introduces such interests. In the absence of special interests, the preferences of legislators reflect those of their constituents.35 When there are special interests, 35. One way to operationalize this assumption is to assume that all constituents in the legislator’s district are identical and have the same preferences. Thus, if the legislator favors a bill, all of his constituents will benefit equally. In this world, the social value of legislation will be proportional to the number of legislative votes it obtains. In the real world, though, the preferences of constituents may conflict. When they do conflict, we assume that the legislators act to further the preferences of a majority of their constituents. But even with this assumption, there are still two circumstances in which a majority of legislators may vote for a bill even though the bill does not provide net benefits. First, this may occur if legislators in the majority have constituencies where narrow majorities favor the legislation and legislators in the minority have constituencies where overwhelming majorities oppose it. To avoid this problem, we assume that constituents are randomly distributed on all issues. While this assumption is unrealistic, there is no particular reason to assume any particular distribution, and thus we choose an

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however, legislators act to further a combination of the preferences of their constituents and of special interests. The model makes certain simplifying assumptions. First, in the absence of special interests, it assumes that there are no agency costs. Agency costs are entirely the result of special interests. Second, the model assumes that legislators and citizens have equal intensities of preferences. In other words, the benefit that each legislator and citizen derives from a bill they support is equal to the harm that each legislator and citizen suffers from a bill they oppose.36 We subsequently relax this assumption.37 1. The Simple Preference Model with No Agency Costs.—We can represent this model with very simple arithmetic. In a 100-member legislature, legislation will receive one positive mark (+1) for each supporting vote and one negative mark (-1) for each vote in opposition. Thus, a bill with 51 votes in support and 49 in opposition can be styled 51(+1), 49(-1) (or 51(+1) for short). This piece of legislation will generate positive net benefits for the polity of 2. We term laws that produce net benefits “good” laws and laws that produce net costs “bad” laws. Under the simple model with no special interests, majority rule is efficient—only passing laws that produce net benefits.38 In fact, the legislature operating under majority rule will always pass good laws and will never pass bad ones.39 All laws that can secure a majority of the legislature will produce net benefits. Only laws that do not produce net benefits will fail to

assumption that will make the distribution irrelevant to the choice between majority and supermajority rule. Second, constituents may have preferences of unequal intensity. But, as discussed in the text and notes, we address this issue by initially assuming equal intensity of preferences and then relaxing the assumption later. 36. Under equal intensities, legislators can be represented as receiving +1 for a bill that advantages their constituents and -1 for a bill that disadvantages them. Under that assumption, the bill that gets the most votes will produce net benefits. But if a bill provides +1 to legislators to whom it is an advantage but -2 to whom it is disadvantage, legislation that produces a net loss can pass. For example, a bill with 60 legislators voting in favor and only 40 against will produce a net loss of 20. Conversely, if legislators in the minority receive +2 in benefits and those in the majority receive -1, a bill with 40 legislators voting in favor and 60 against will have net benefits of 20 and nevertheless will not pass. 37. See infra subpart I(F). 38. We define good legislation as that which produces net benefits for society. Bad legislation produces net costs. More generally, we assume here an efficiency standard for assessing legislation. Under the Kaldor–Hicks definition, which we employ, a movement from one state of the world to another is efficient if those benefitting from the change can compensate those who lose and still be better off. JEFFRIE G. MURPHY & JULES L. COLEMAN, PHILOSOPHY OF LAW: AN INTRODUCTION TO JURISPRUDENCE 186 (rev. ed. 1990). The well being of people is measured by their own preferences. These preferences, in turn, are measured by willingness to pay. See Nicholas Kaldor, Welfare Propositions of Economics and Interpersonal Comparisons of Utility, 49 ECON. J. 549, 549–50 (1939). 39. The reason is that only laws that secure 51 votes or more produce net benefits and only such laws pass.

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pass. Moreover, the more votes a piece of legislation obtains, the higher net benefits it will have, because it will have a greater surplus of +1s to -1s. Supermajority rule, however, does not work as well in these circumstances. In comparing majority to supermajority rule, we will assume a 60-vote supermajority rule, although the model applies to supermajority rules of differing stringency. Under the 60-vote supermajority rule, while no bad laws will pass, some good laws will fail to pass. More specifically, laws that can secure between 51 and 59 votes will not pass under supermajority rule, yet they would have produced net benefits. In these circumstances, supermajority rule blocks good laws. The simplest way of understanding when supermajority rule will be better than majority rule is to focus on a concept we call “marginal legislation.” Marginal legislation is the legislation that can pass under majority rule but cannot secure enough votes to pass under a supermajority rule. Legislation passed under majority rule consists of both marginal legislation and legislation that can secure a supermajority. Legislation passed under supermajority rule consists only of legislation that can secure a supermajority. Thus, it is the marginal legislation—the legislation blocked by supermajority rule—that differentiates majority from supermajority rule.40 When comparing majority to supermajority rule in this simple model, one need only consider the marginal legislation. If supermajority rule blocks more good than bad legislation, marginal legislation has positive net benefits and supermajority rule is not desirable. Conversely, if supermajority rule blocks more bad than good legislation, marginal legislation has negative net benefits and supermajority rule is desirable.41 When there are no special interests, the marginal legislation—the legislation receiving between 51 and 59 votes—is all good. In that case, supermajority rule is undesirable. 2. The Simple Preference Model with Agency Costs in the Form of Special Interests.—While the above version of the model assumed that legislators are faithful agents of their constituents’ preferences,42 we now focus on the inability of citizens to monitor and control their legislative agents. In particular, we consider the effect of special interests on the comparison between majority and supermajority rule. 40. We complicate this model and the test for the desirability of supermajority rules below. See infra text and accompanying notes 42–61. 41. In determining whether marginal legislation has positive net benefits or negative net benefits, one must evaluate the net benefits of each piece of legislation. For instance, legislation with 51(+1), 49(-1) and legislation with 59(+1), 41(-1) are both pieces of good legislation, but the latter is better than the former because it has 18 net benefits compared to 2 net benefits. To simplify matters in the text, we will assume, unless otherwise specified, that all the good legislation has the same average positive net benefits and all bad legislation has the same average negative net benefits. But this assumption is a shorthand for ease of exposition. 42. We abstract away from complications such as the proposition that legislators may, because of their expertise or position, have a better understanding of the preferences of their constituents than their constituents do.

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We define special interests as those interests that have more influence on legislation than ordinary citizens.43 Such special or concentrated interests can overcome free-riding problems and thus be well positioned to lobby and deliver material support to legislators. Special interests promote legislation through a variety of mechanisms. They can provide campaign contributions that legislators need for elections.44 They can fund experts who will support their position.45 And they can generate publicity campaigns that will put legislators in a favorable light.46 Conversely, the diffuse citizenry does not have these incentives to lobby and contribute to legislators.47 Indeed, they are rationally ignorant of legislation, because their knowledge is unlikely to bring them any direct benefits.48 As a result of the agency costs faced by citizens in a world where special interests have substantial leverage, legislators are likely to systematically favor legislation that benefits special interests at the public’s expense.49 While the introduction of agency costs into the model means that special interests will have undue influence, their power does not permit them

43. It bears emphasis that under our definition, special interests do not necessarily promote inefficient projects. The problem is not necessarily the nature of the projects they promote, but their disproportionate influence in promoting those projects. 44. See Daniel H. Lowenstein, Political Bribery and the Intermediate Theory of Politics, 32 UCLA L. REV. 784, 826–28 (1985) (explaining that financial contributions by special interest groups are intended to influence, and likely do influence, the official actions of the recipient legislator). 45. See Louis Kaplow & Steven Shavell, Fairness Versus Welfare, 114 HARV. L. REV. 961, 1322 n.873 (2001) (stating that special interest groups may “fund experts to present analyses favorable to one side of a question”). 46. See William Dubinsky, Book Note, 90 MICH. L. REV. 1512, 1514 (1992) (reviewing DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE (1991)) (explaining that special interests can generate powerful publicity campaigns). 47. See ANTHONY DOWNS, AN ECONOMIC THEORY OF DEMOCRACY 253–56 (1957) (explaining that few citizens attempt to influence legislative action because of the great cost of obtaining the information required to effectively lobby for or against a particular policy). Because of the very low significance of any single vote, there is a vanishingly small payoff to acquiring political knowledge in order to vote accurately. See William H. Riker & C. Peter Ordeshook, A Theory of the Calculus of Voting, 62 AM. POL. SCI. REV. 25, 29–34 (1968). Even if a voter makes a tremendous effort to become highly informed, there is almost no chance that his or her wellinformed vote will actually swing the electoral outcome in favor of the “better” candidate or party. Id. 48. “Rational ignorance” describes the systematic tendency of diffuse citizens to pay little attention to political information. This phenomenon occurs because acquiring political information is both costly and unproductive. It is costly because to acquire such information, individuals must invest time they could be using for other more lucrative or pleasurable enterprises. It is unproductive because the principal instrumental use of such information is to guide voting, but the vote of any individual is unlikely to influence the outcome of an election. See DENNIS C. MUELLER, PUBLIC CHOICE II 205–06 (1989). 49. See MICHAEL T. HAYES, LOBBYISTS AND LEGISLATORS: A THEORY OF POLITICAL MARKETS 90 (1981) (explaining that “pressure groups [may be regarded] as the fundamental actors in the legislative process” and that social science theorists “have attributed great influence to highly organized, well-informed pressure groups at the expense of apathetic, largely ignorant mass publics”).

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to obtain any legislative result that they want. General interests, such as ordinary citizens, continue to have influence, just less influence per person than special interests do. Hence, our model mirrors the real world. The power of special interests can help to explain why supermajority rule is sometimes superior to majority rule for the passage of ordinary legislation. In our model, it is the attitude of special interests toward passing or blocking legislation that is crucial. We show that when special interests promote the passage of ordinary legislation, supermajority rule can be more desirable than majority rule, because the supermajority rule provides a counterweight to the special interests. By contrast, when special interests oppose ordinary legislation, supermajority rule will be worse than majority rule, because supermajority rule then exacerbates the harmful effects of special interests. For analytic clarity, the case of special interests supporting legislation is usefully divided into two different specifications of the model. In the first specification, special interests only benefit from, and therefore only promote, bad legislation. In the second specification, they benefit from both good and bad legislation. We explore these different specifications, because we are uncertain which is more likely to match reality. One might think that special interests focus on passing bad laws, because the laws that provide them with significant benefits tend not to be beneficial to the public overall. On the other hand, one might believe that even good laws provide benefits to special interests. a. Special Interests Benefiting from the Passage of Only Bad Legislation.—First, we consider the situation in which special interests benefit only from bad legislation. We focus here on spending legislation and assume that special interests benefit only from pork barrel spending but nothing else. This tendency will make majority rule worse than it would otherwise be, because legislators would pass a substantial amount of bad legislation. To gauge the effect of special interests, we assume that special interests buy 10 votes for bad legislation. As a result, some bad legislation will now pass. For instance, bad legislation that had 49(+1), 51(-1) and failed under majority rule without special interests will now pass with 59 votes, despite the fact that it produces more harm than good. More generally, bad laws which produce benefits of between 41(+1) to 49(+1) will now pass.50 Thus, under majority rule, special interests cause too many bad laws to be passed. Under supermajority rule, however, these bad laws will be blocked. For example, even with an additional 10 votes from special interests, a law with 49(+1), 51(-1) will still fail to pass, since it does not secure the necessary 60 50. In our legislature of 100 members, passage under majority rule requires 51 votes. If a bill receives only 50 votes, it will not pass. Moreover, that bill will neither be beneficial nor harmful, as it produces benefits and costs of 50.

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votes. This blockage of bad legislation from 41(+1) to 49(+1) is an important benefit of supermajority rule, because it counteracts the influence of special interests. Supermajority rule thus prevents special interests from securing bad laws. Nevertheless, it does not follow that supermajority rule is desirable, because it will also have another effect—blocking good legislation from 51(+1) to 59(+1), which special interests have not influenced. Whether supermajority rule is beneficial turns on whether the marginal legislation— the legislation that secures between 51 and 59 votes—contains more bad than good legislation. In this first situation, marginal legislation is likely to include more bad than good legislation and thus supermajority rule is likely to be beneficial. First, our model suggests that all bad legislation that passes is marginal legislation.51 We recognize that this phenomenon is in some measure an artifact of the numbers that we have chosen for our example, because the 10 additional votes added by special interest support of bad legislation are perfectly counterbalanced by the 10 additional votes required by the 60-vote supermajority rule. But it also captures a larger truth about special-interestdriven legislation. Special interests will generally spend just enough to pass special-interest legislation. In political science, this is called forming “a minimum winning coalition.”52 Gaining additional votes beyond those required to secure a majority will require additional expenditures and therefore be a waste of money. Consequently, a disproportionate amount of bad legislation is likely to have just enough support to pass under majority rule. Special interest legislation is thus highly vulnerable to being eliminated through the introduction of supermajority rule. Second, marginal legislation as an empirical matter is unlikely to contain much good legislation.53 In contrast to bad legislation, there is no reason to believe that most good legislation will obtain the minimum number of winning votes under majority rule, because it is not assembled by special interests creating a minimum winning coalition. Indeed, one would expect legislation for certain core public goods, like defense and law enforcement,

51. In the model, the bad legislation that is passed—41(+1) to 49(+1)—would all be blocked under the supermajority rule and therefore is marginal. 52. See WILLIAM H. RIKER, THE THEORY OF POLITICAL COALITIONS 42–46 (1962) (explaining that coalitions often limit the number of members in their coalition to the number necessary to achieve the desired result). This idea is originally used to suggest that members of the coalition want, at a minimum, a winning coalition so that each member can capture the greatest amount of benefits for itself. Id. at 42. Similarly, special-interest-driven legislation will seek only the minimum number of votes necessary so that they can maximize their benefits. 53. In other words, we believe that good legislation will not be equally distributed from 51(+1), 49(-1) to 100(+1), 0(-1). An equal distribution would mean that an equal amount of good legislation would be passed at each vote total. If both the amount of good legislation and the amount of bad legislation were equally distributed, then the combination of a special interest that can influence 10 votes and a 60 vote supermajority requirement would lead to no change in result from majority rule, because for every nine units of bad legislation blocked by the supermajority requirement, nine units of good legislation would be blocked as well.

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to enjoy widespread support. Thus, a very substantial portion of good legislation would be able to surmount a modest supermajority hurdle and gain more than 60 votes. This last observation highlights an important premise of supermajority rule’s beneficence under the preference model. In some measure, it is predicated on the belief that most good legislation is designed to address human needs that citizens have in common and will enjoy widespread support. Because most bad legislation is marginal and most good legislation is not, supermajority rule will be beneficial.54 Yet, it might be thought that this simple analysis does not take into account the reaction of special interests to the introduction of supermajority rule. Perhaps special interests will buy more votes under supermajority rule, thus reducing the amount of bad legislation that is blocked. To the extent that special interests are able to pass bad legislation by purchasing additional votes under supermajority rule, the more inclusive voting rule becomes less desirable. But the higher costs of putting together a supermajority coalition reduce the incentives of special interests to buy legislation under supermajority rule as compared to majority rule.55 First, it is likely to be more expensive to assemble a larger number of legislators to reach agreement at supermajority rule. Second, given that the special interest coalition already contains at least 51 legislators, special interests will likely have a smaller pool of legislators from which they can add votes than they did in forming the original coalition. Third, buying votes from the legislators in this pool will be more expensive, because special interests would have already secured those legislators who were least expensive as part of their original coalition.56 As a result, special interests will have to spend much more money to obtain the additional votes necessary under a supermajority rule. In other words, the higher price of legislation under supermajority rule will likely reduce the amount of legislation that special interests will be inclined to promote. Presumably special interests under majority rule have 54. But because the absolute, rather than relative, amounts of marginal legislation are relevant, it is important to be sensitive to the absolute amounts of marginal good and bad legislation. The more bad legislation special interests purchase under majority rule, the better supermajority rule will be. The more good legislation marginal legislation contains, the worse supermajority rule will be. Supermajority rule works best in a world where special interests create substantial amounts of marginal legislation and citizens provide widespread support to public interest legislation so that it is not marginal. 55. It might be thought that if the demand for rents is completely inelastic, special interests will simply buy as much rent-seeking legislation as necessary, regardless of whether the price rises. This inelasticity is theoretically possible, but we believe unlikely. In a free society, individuals have many sources of return for investments. Thus, as the price of rent-seeking rises, more individuals will choose other investment opportunities. An inelastic demand for rents is more plausible in a society where other opportunities for productive activity are sharply limited. Thus, we would hypothesize that the more free the society is in terms of private investment opportunities, the more effective supermajority rules are likely to be. 56. We discuss the reasons special interests will minimize the cost of their winning coalition above. See supra note 52 and accompanying text.

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already bought special interest legislation up to the point where the marginal cost of obtaining that legislation equals the marginal benefit. Thus, when the price becomes higher, special interests will buy less of the legislation they obtain under majority rule.57 Accordingly, in this first specification of the model, the amount of additional bad legislation that special interests will buy should be substantially reduced. Marginal legislation is likely to include a substantial amount of bad legislation and a relatively insubstantial amount of good legislation. Under those circumstances, supermajority rule will be beneficial.58 b. Special Interests Benefiting from the Passage of Both Good and Bad Legislation.—Now consider the situation where special interests benefit 57. If special interests lobby for less legislation because the price of legislation rises, another beneficial effect will be the elimination of lobbying and other special interest promotional expenses. These are deadweight losses to society. 58. One possible objection to the completeness of our analysis is that it ignores the possibility that, when a supermajority rule would block legislation that would have passed under majority rule, special interests will change the legislation in order to pass it. In those circumstances, marginal legislation will no longer be the sole determinant of whether supermajority rule is better than majority rule. Instead, we will need to compare the marginal legislation to the new legislation that is proposed under the supermajority rule—what we will call redrafted legislation. Marginal legislation is passed under majority rule but blocked under supermajority rule. Redrafted legislation is passed under supermajority rule, but not under majority rule. Thus, supermajority rule will be better than majority rule if the redrafted legislation is better than the marginal legislation. In comparing supermajority to majority rule, one can ignore all of the other legislation, since it is passed under both voting rules. There is good reason to believe the redrafted legislation will be better than the marginal legislation. Since the marginal legislation will not pass under supermajority rule, that legislation needs to be made more popular in order to secure the votes for passage. The most likely way to make it more popular would be to make the legislation more desirable. If the benefits exceed the costs, then the legislation will be more popular and likely to get more votes. It might be thought that in certain circumstances, the introduction of a supermajority rule would lead to additional bad legislation. For example, suppose that due to agency costs, the legislature, under majority rule, passes a package of pork barrel spending that benefits a majority coalition of legislators. If a supermajority rule were introduced, one might wonder whether that might lead the majority coalition to add more pork in order to get supermajority support. While it is not possible to fully address this concern here, the following argument explains why we believe this undesirable result is unlikely. If we assume that general taxes fund the pork and that the majority coalition keeps all the pork for itself, then the coalition will continue to pass pork so long as each coalition member receives more than $1 worth of political benefits from each dollar of pork. Because members of the minority receive no benefits, the benefits from the last dollar of pork spent will be $.51. By contrast, under supermajority rule, the supermajority coalition will pass pork up to the point where the benefits from the last dollar of pork will be $.61 (since additional coalition members insist on benefits). If we assume that political benefits are correlated with social benefits, so that pork that produces more political benefits, on average, also produces more social benefits, then one of the following results should occur. First, it is possible that the supermajority rule will reduce the amount of pork. Second, it is possible that the supermajority rule leads to more pork, but the pork is more desirable (or less undesirable) than under majority rule, and this increased desirability outweighs the increase in pork. Both of these are beneficial results. Finally, it is only if the supermajority rule leads to more pork, and the costs of that additional pork outweigh the improvement in the quality of the pork, that the supermajority rule is undesirable.

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from both bad and good legislation and therefore promote the passage of both. It is easy to see how special interests might benefit from both bad and good spending. For example, defense contractors benefit from spending on weapons systems, regardless of whether a weapons system is needed. Similarly, prison guard unions benefit from prison construction regardless of whether new prisons are necessary. In this situation, we show that majority rule allows special interests to pass bad laws, while supermajority rule blocks such legislation without blocking good laws. Under this version of the model, special interests operating under majority rule will promote the passage of bad laws by purchasing up to ten votes. Special interests will be able to use their influence to pass laws that provide benefits of only 41(+1) to 49(+1). In contrast, because all good legislation will pass without special interest help (since such laws will receive 51 votes), special interests have no reason to promote good legislation. Thus, the result under majority rule is the same as under the version of the model where special interests benefit only from bad laws: special interests end up causing too many bad laws to pass. This version of the model, however, has a different result under supermajority rule. The supermajority rule will, of course, block the bad legislation that passed under majority rule. But the supermajority rule will, happily, not block the passage of any good legislation. Under supermajority rule, special interests will have incentives to shift from promoting bad legislation to promoting good legislation. Under a 60-percent supermajority rule, special interests cannot pass bad legislation by buying just 10 votes, because even the bad legislation closest to passage can only obtain 49 votes on the merits and thus 10 votes would secure only a total of 59 votes. On the other hand, good legislation that has benefits from 51(+1) to 59(+1) can now be passed under supermajority rule, because special interests can provide 10 additional votes for it. Thus, for any given piece of good legislation that initially has between 51 and 59 votes, supermajority rule is not likely to eliminate it, because special interests will promote it under supermajority rule.59 Supermajority rule under these circumstances acts like an invisible hand to make special interests work for the public interest. As a result, supermajority rule functions even better when special interests seek to promote both bad and good legislation than when special interests promote only bad legislation. We should note that the full advantages of supermajority rules are realized only when the stringency of the supermajority rule is equivalent to the power of special interests. For instance, in our model the supermajority

59. It is true that under supermajority rule special interests may also consider buying more votes to pass additional bad legislation as well as good legislation. But they face a greater expense of putting together a supermajority coalition that we have discussed above. See supra notes 54–57. Thus, they are likely to buy less bad legislation as they did under majority rule. See supra note 55 (discussing elasticity of demand for rents).

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rule of 60 is equivalent to the 10 vote strength of special interests, because the 10 votes special interests can call on is perfectly matched by the 10 additional votes that a 60 vote supermajority rule requires as compared to majority rule. The 60 vote requirement prevents all bad legislation from being enacted, but permits all good legislation to surmount the hurdle, when special interests rationally switch their support from bad to good legislation. This point shows that information about the strength of special interests is important in designing optimal supermajority rules. But one need not have perfect information to craft beneficial supermajority rules. In the margin we show that the favorable results of supermajority rules will still generally hold if the special interests are not equivalent to the stringency of the supermajority, but are either stronger or weaker.60 The one circumstance in which a supermajority rule is detrimental is when its degree of stringency is much larger than the power of special interests. Because very stringent supermajority rules are not desirable on other grounds, this merely provides an additional reason to not adopt such stringent rules. c. Special Interests Benefiting from the Failure to Pass Good Legislation.—We now turn to the situation where special interests oppose legislation. Here, special interests would be harmed by legislation and therefore use their influence to defeat it. Examples of such laws include the pollution control regulation discussed earlier or a law that would deregulate an industry protected from competition by the government. Just as legislation promoted by special interests can be divided into two specifications within our model, so can legislation opposed by special interests. The first occurs when special interests benefit only from the failure to pass good

60. First, we look at the situation where the supermajority rule is less than optimally stringent. Assume that the supermajority required only 55 votes for passage. In that case bad legislation from 41(+1), 59(-1) to 44(+1), 56(-1) will be blocked but bad legislation from 45(+1), 55(-1) to 49(+1), 51(-1) will still pass under supermajority rule. No good legislation will be blocked, because the additional 10 votes special interests provide will permit good legislation to gain the 55 votes. More generally, as the supermajority rule is weakened from its optimal point, its benefits will fall, but it will remain beneficial, because it will block some bad legislation and not any good legislation. Second, we look at the situation where the supermajority rule is more than optimally stringent. Assume that the supermajority rule required 65 votes for passage. All bad legislation would be blocked, because the 10 additional votes provided by special interests would not be able to surmount the 65 vote hurdle. But some good legislation would be blocked as well, because legislation from 51(+1), 49(-1) to 54(+1), 46(-1) would not pass the supermajority rule even with 10 additional votes. Nevertheless, the supermajority rule would work a net improvement, because a substantial portion of good legislation would pass and all bad legislation would be blocked. If we assume an equal distribution of good legislation, see supra note 53, a supermajority rule would remain beneficial until it required 70 votes. But for reasons we suggested in the situation where special interests favor only bad legislation, see subsection I(D)(2)(a), this analysis understates the advantages of a supermajority rule. As we argue there, good legislation will tend to bunch in areas where it gets a very high number of votes. Under those more realistic circumstances, even a stringent supermajority rule is likely not to block much good legislation. Thus, the strength of the supermajority rule would have to be much larger than the strength of special interests to do more harm than good.

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legislation. The second occurs when special interests benefit from the failure to pass both bad and good legislation. In both cases, there is a mismatch between supermajority rule and the array of special interests: a supermajority rule will block legislation and therefore reinforce the power of special interests. While majority rule will have defects due to special interests, supermajority rule will make the situation worse. We begin with the situation when special interests benefit only from the failure to pass good legislation. When special interests benefit from the failure to pass good legislation, they will attempt to block legislation rather than promote it. In our model under majority rule, special interests will purchase 10 votes and assure that good legislation from 51(+1) to 60(+1) is blocked. Under supermajority rule, this legislation will be blocked without their efforts. Instead, supermajority rule allows special interests to use their influence to block additional good legislation, thereby preventing the passage of laws from 61(+1) to 69(+1). Thus, supermajority rule leads to more good legislation being blocked. Supermajority rule will not affect the amount of bad legislation in this specification of the model. Indeed, no bad legislation is passed under majority rule or supermajority rule, because special interests are by assumption indifferent to such legislation. Thus, the sole effect of supermajority rule is to block good legislation and therefore supermajority rule is worse than majority rule.61 d. Special Interests Benefiting from the Failure to Pass Good and Bad Legislation.—In this specification of the model, supermajority rule will also be detrimental. Indeed, the same results occur here as when special interests benefit only from the failure to pass good laws, although the reasons are slightly different. Here, supermajority rule again will result in more good laws being blocked. While under majority rule special interests will block good laws from 51(+1) to 59(+1), under supermajority rule special interests can devote themselves to blocking laws from 60(+1) to 69(+1). Supermajority rule also will not have any effect on bad laws. No bad laws will pass under either majority rule or supermajority rule, because special interests do not seek to promote such laws. Overall, then, supermajority rule is worse

61. The degree by which supermajority rule is worse than majority rule in a situation where special interests oppose good legislation is likely greater than the degree by which majority rule is worse than supermajority rule in a situation where special interests promote bad legislation. Where special interests promote legislation, supermajority rule produces benefits by blocking legislation from 41(+1) to 49(+1), and even this benefit must be reduced by the additional good legislation that the supermajority blocks. By contrast, where special interests block legislation, supermajority rule causes harm by blocking legislation from 60(+1) to 69(+1). This latter legislation produces more net benefits than the bad legislation blocked by supermajority, 41(+1) to 49(+1), produces net costs. (While we do not develop the point here, a similar conclusion emerges in the model where special interests benefit from, or are harmed by, both good and bad legislation: the harm from applying a supermajority rule to a situation where special interests benefit by blocking both good and bad legislation is likely to be greater than the benefits from applying a supermajority to a situation where special interests benefit by promoting both good and bad legislation.)

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than majority rule, because supermajority rule blocks the passage of some good laws that majority rule would pass. E. Applying the Theory to Annual Appropriations and Regulations In this subpart we look at some practical examples of supermajority rules that may be desirable. Our relatively simple rules for evaluating the choice of majority and supermajority rule in terms of the array of special interests help us assess the optimal rule for two important kinds of legislation—annual appropriation laws and regulatory laws. We show that annual appropriation laws present a relatively compelling case for supermajority rules, whereas regulatory legislation is a more complicated matter. We consider two important factors bearing on the beneficence of supermajority rule—the array of special interests in the category of legislation covered by a voting rule and the possibility that legislation in that category will need to be repealed. The first consideration is the extent to which a particular area of legislation is well captured by one of our categories regarding special interests. If there are no special interests, majority rule will be superior. If there are special interests, the superior voting rule will depend on how special interests are arrayed. Sometimes special interests will be arrayed largely in favor of one kind of legislation. At other times, they will be arrayed largely against another kind of legislation. At still other times, however, the situation in a particular area will be more mixed with some special interests favoring legislation and others opposed. In those circumstances, the choice between supermajority and majority rule may be more difficult, depending on the relative number of cases when special interests are in favor or against the legislation.62 Annual appropriations laws are a relatively clear case, because special interests are likely to promote spending programs and not to oppose them.63 Special interests generally favor spending laws because they often provide concentrated benefits and diffused costs.64 By contrast, special interests are

62. While we employ special interests to explain failures of the political process, other accounts of the political process are possible that would also be compatible with the desirability of supermajority rules. For example, one interesting theory argues that voters are subject to certain systematic biases, such as an anti-market bias and an anti-foreign bias. See BRYAN CAPLAN, THE MYTH OF THE RATIONAL VOTER (forthcoming 2007). If these biases plague the political process, then laws promoted by these biases would pass too often. Requiring laws within this category to pass with a supermajority could potentially improve the operation of the political process. 63. See Thomas O. Sargentich, The Future of the Item Veto, 83 IOWA L. REV. 79, 120–23 (1997) (discussing special interest focus on obtaining additional spending). 64. See GEOFFREY BRENNAN & JAMES M. BUCHANAN, THE POWER TO TAX: ANALYTICAL FOUNDATIONS OF A FISCAL CONSTITUTION 6–7, 136, 152 (1980) (noting that the tendency of special interests to promote spending needs to be counteracted); cf. Stanley S. Surrey, The Congress and the Tax Lobbyists—How Special Tax Provisions Get Enacted, 70 HARV. L. REV. 1145, 1164– 70 (1957) (noting that the majority of special interests favor tax expenditures and that there are very few countervailing groups protecting the general revenue and tax fairness).

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unlikely to oppose spending programs. Unlike spending programs which redound to the benefit of special interests, the failure of a spending program is generally shared with the general public in the form of lower taxes. Special interests receive no concentrated benefit and thus have few incentives to lobby against the spending. Thus, annual appropriation spending should clearly fall in the favorable category for supermajority rules where special interests use their influence to pass laws and not to oppose them. There is even a reasonable case to be made that these spending laws fall into the most favorable category where special interests benefit from both good and bad spending.65 After all, special interests will often benefit from spending in an area relevant to them, whether or not that spending is desirable. Regulation, in contrast, is a more mixed case. Certain kinds of special interests clearly favor regulation. Bureaucrats tend to support regulation because it gives them larger budgets and powers.66 Large companies may also favor cross-cutting regulations as a means of restraining competition from small businesses, since large companies can comply with the regulations more cost-effectively by distributing the compliance costs over a larger number of products.67 But other special interests will oppose some kinds of regulation.68 Small business owners will lobby against cross-cutting regulations for the same reasons that big businesses favor it. And some businesses and unions will oppose regulations specifically targeted at their industries. For instance, steel companies opposed emissions standards that affected them.69 This more mixed picture can require nuanced judgments in determining whether supermajority rule would be better than majority rule. One has to consider whether the forces of special interests taken as a whole are arrayed in favor of legislation or against it. If special interests are much more arrayed in favor of regulation than against it or promote a far greater range of regulations than they oppose, regulatory legislation may generate more net 65. See HAYES, supra note 49, at 91. 66. See Jonathan R. Macey, Administrative Agency Obsolescence and Interest Group Formation: A Case Study of the SEC at Sixty, 15 CARDOZO L. REV. 909, 913–16 (1994) (noting that bureaucrats favor additional, complex, and changing regulation so as to increase the need for their monitoring services). 67. See James L. Huffman & Elizabeth Howard, The Impact of Land Use Regulations on Small and Emerging Businesses, 5 J. SMALL & EMERGING BUS. L. 49, 69 (2001) (noting that large businesses often favor regulations because their size gives them a competitive advantage over small businesses for dealing with the costs of compliance and supporting regulation tends to improve the public image by displaying corporate responsibility). 68. See, e.g., Daniel C. Esty, Toward Optimal Environmental Governance, 74 N.Y.U. L. REV. 1495, 1530 (1999) (discussing special interest opposition to environmental laws). 69. See Robert F. Blomquist, In Search of Themis: Toward the Meaning of an Ideal Legislator—Senator Edmund S. Muskie and the Early Development of Modern American Environmental Law, 1965–1968, 28 WM. & MARY ENVTL. L. & POL’Y REV. 539, 615 (2004) (noting that over forty steel companies opposed the creation of a national emissions standard for air pollution).

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benefits under supermajority than under the majority rule.70 But if the array of special interests is more evenly balanced, supermajority rule would not be beneficial, because the harm from the good laws that are blocked would probably be greater than the benefits from the blocked bad laws.71 Sometimes, however, a regulatory supermajority rule might still be beneficial if it can be applied to a sub-area where the array of special interests is favorable. For instance, imagine that special interests predominantly favor health care regulation, but not other kinds of regulation. Then one would apply a supermajority rule to health care regulation and majority rule to other types of regulation. As discussed below, such reticulated voting rules may create administrative and substitution costs that must be balanced against the advantages of their greater precision.72 The second consideration in the choice between majority and supermajority rule is whether legislation in a particular area needs to be repealed. When special interests promote a piece of legislation, they are likely to oppose its repeal. Thus, even if an area has a substantial predominance of special interests favoring the passage of laws, those same special interests will also oppose legislation—the repeals of those laws. Thus, the case for supermajority rules is no longer unambiguous. Regulations again provide an example of this complication. Regulations endure and therefore may need to be repealed. Assume that a supermajority rule should apply to all laws that impose regulations because special interests are disproportionately arrayed in favor of such regulatory laws. Nevertheless, if the regulatory supermajority rule also applies to laws that deregulate, the supermajority rule may be counterproductive, because special interests that favor regulations would presumably oppose their repeal.73 Thus, special interests would both favor and oppose laws covered by the supermajority rule. On these assumptions, one possible solution is to apply supermajority rule to regulatory legislation and majority rule to deregulatory legislation. This strategy has the advantage of applying the voting rule most appropriate to the array of special interests. As discussed below, the possible disadvantage is an increase in administrative costs. In contrast, some laws avoid this problem because they do not need to be repealed. For example, annual appropriations last only a year and therefore do not normally need to be repealed. Thus, a supermajority rule

70. See supra notes 59–60 and accompanying text. 71. See supra note 61. 72. See infra notes 91–94 and accompanying text. 73. See Peter L. Kahn, The Politics of Unregulation: Public Choice and Limits on Government, 75 CORNELL L. REV. 280, 281–83 (1990) (offering reasons why deregulation is often employed to limit the power of special interests).

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can be applied to annual appropriations free from the concern that it will impede repeal of legislation that should be open to repeal.74 F. Unequal Intensities of Preference, Vote Trading, and Universalism We have proceeded so far on the assumption that legislators (and citizens) have equal intensities of preference.75 We now relax this assumption and explore the results for the choice between majority and supermajority rule. We first consider a world without vote trading and then a world with vote trading and show that neither case substantially changes the considerations governing the choice between majority and supermajority rule. In the absence of special interests, majority rule works well when legislators have equal intensities of preference. Under this assumption, legislators who gain from a law receive a benefit equal to the loss suffered by legislators who are harmed by the law. Our model has reflected this assumption by describing legislators as receiving either +1 or -1. As a result, under majority rule legislation that passes even by a narrow margin produces net benefits. For instance, legislation with 51 votes in favor and 49 against generates net benefits of two. Unequal intensities of preference can sever the connection between legislation that passes and efficient legislation, especially if there is no vote trading. If legislators in the minority suffer more harm from a bill than legislators in the majority receive benefits, bad legislation can pass, even without special interests. For instance, if legislators who benefit from a bill receive +1, but legislators who are harmed by it suffer -2, a law with 51 votes in favor and 49 against will have net costs of 47.76 Conversely, unequal intensities can lead to a good bill not being passed. If 49 legislators receive +2 and 51 legislators suffer -1, then a bill with net benefits of 47 will not be enacted. Without the assumption of equal intensity of preferences, we can no longer be confident that majority rule will function well in a world without vote trading. Supermajority rule might actually address this problem if we knew the array of unequal intensities. If we were confident that members of the minority in a legislative area were likely to suffer more harm than

74. Under certain circumstances, supermajority rules applied to annual appropriations can create another kind of problem: holdout costs. We address this issue below. See infra notes 95–97 and accompanying text. 75. Intensity of preference questions arise for both legislators and citizens. Because the issues are similar for legislators and citizens, this subpart will focus on the preferences of legislators to keep matters simple. In thinking about the intensities of preferences of citizens, the reader may want to assume that the legislators’ intensities of preferences reflect those of the citizens in their districts. For example, if one legislator has a stronger intensity of preferences than another legislator, then the citizens in the former legislator’s district have stronger intensities than those in the latter’s district. 76. The arithmetic is as follows: 51 – (2 x 49) = -47.

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members of the majority were to receive benefits, a supermajority rule would be desirable.77 By contrast, if members of the majority in a legislative area were likely to gain more benefits than the members of the minority were to suffer harm, supermajority rule would be counterproductive. Without knowing the array of preference intensities, we cannot be confident that supermajority rule will function better. Nonetheless, the argument for supermajority rules based on the array of special interests is largely unaffected. If special interests promote the passage of laws, for example, a supermajority rule will address that, even if it does not respond systematically to unequal intensities of preferences. The introduction of vote trading changes the analysis. Vote trading occurs because of unequal intensities of preferences. For instance, legislators who are harmed substantially by a bill will have incentives to trade their votes on other bills that they care about less in exchange for votes against this bill. If they suffer -1 from another bill but prevent a -2 loss on this bill, they will be better off. Vote trading thus tempers the problem of unequal intensity of preference and many scholars believe it is therefore beneficial.78 If vote trading is beneficial, supermajority rule will retain its benefits. On this view, vote trading under majority rule has the advantage of reflecting the intensity of preferences, because legislators with intense preferences on a subject can prevail by trading their votes on subjects where they have less intense preferences and others have more intense preferences.79 It has also long been recognized that vote trading under unanimity rule forces legislators to trade votes among themselves to alter an omnibus agreement until it makes everyone better off, thus taking account of the different intensity of preferences among legislators.80 Thus, there is no reason to believe that supermajority rule—a rule between majority and unanimity—will not elicit beneficial vote trading as well.81

77. This analysis may provide justification for using supermajority rule in areas of individual rights where members of a minority tend to suffer harm from majority legislation. For instance, members of a religious minority are likely to suffer a very substantial harm if their religious practices are banned. Members of a majority that would prefer to ban the religious practice as distasteful would gain relatively mild benefits. 78. For a good discussion of the different views of vote trading, see Thomas Stratmann, Logrolling, in PERSPECTIVES ON PUBLIC CHOICE 322, 322–41 (Dennis C. Mueller ed., 1997). 79. See BUCHANAN & TULLOCK, supra note 13, at 133–34 (noting that a minority group that feels intensely about an issue will trade votes on other issues to achieve its goals). For a general defense, see James S. Coleman, The Possibility of a Social Welfare Function, 56 AM. ECON. REV. 1105, 1111–16 (1966). 80. See Stratmann, supra note 78, at 326 (“Were society to decide to use a unanimity rule on allocative efficiency issues, vote trading would lead to an optimal allocation of resources.”). 81. Some commentators, while acknowledging these kinds of possible gains from vote trading, also suggest there can be losses. Basically, the problem is that while traders in the prevailing coalition can gain, these gains can come at the expense of nontraders, who are made worse off by the bargains. Id. at 324. But whatever the likelihood of these losses under majority rule, supermajority rule is likely to make them smaller for the simple reason that there are likely to be fewer nontraders not benefiting from the legislation, because coalitions to pass bills must be larger.

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Other scholars, to be sure, think vote trading is harmful because it adds to legislative instability.82 The argument is that vote trading may make any majority coalition more unstable, because it increases the number of potential coalitions that can replace the majority coalition, making majority rule subject to “cycling.” Cycling is a process by which legislative majorities change among different and inconsistent policies.83 Such instability and inconsistency obviously undermine sound public policy.84 But whatever the validity of these concerns about vote trading, supermajority rules are more likely to ameliorate than exacerbate this problem. The political science literature suggests that supermajority rule will reduce cycling, because it decreases the number of possible winning coalitions and thereby limits the number of possibly inconsistent policies.85 Thus, the principal cost that has been associated with vote trading will likely decline with supermajority rule. The one plausible specific objection to our analysis based on vote trading might appear to come from a political science theory called universalism.86 Under this view, legislators will vote for special interest spending by large supermajority consensus rather than by narrow majority coalitions.87 Even under majority rule, legislators eschew mere majority coalitions in spending legislation because as risk-averse actors they recognize that sometimes they will be left out from a narrow majoritarian coalition and their districts would then lose out on spending.88 When the norm of universalism is present in the legislature, individual legislators are unlikely to vote against special interest spending, because they recognize it will pass anyway. If universalism described all or most legislative action, supermajority rules might appear to have little effect, since legislation would be passed with close to unanimous support.

82. Id. at 328–32. 83. Cycling occurs when there is no majority victor—that is, where no one proposal can defeat others in pairwise contests. Consequently, proposal A may defeat B, B may defeat C, and C may defeat A. As a result, there may be no majority victor. See Saul Levmore, Voting Paradoxes and Interest Groups, 28 J. LEGAL STUD. 259, 264–65 (1999) (giving example of potential for cycling involving five legislators and three issues, where a minimal majority favors each issue and some are willing to make deals). 84. See David Luban, Social Choice Theory as Jurisprudence, 69 S. CAL. L. REV. 521, 536 (1996) (expressing concern about the social costs of such inconsistency). The danger of inconsistent proposals encourages political systems to give substantial power to agenda setters, i.e., institutions that determine the order of voting on proposals and thus avoid cycling. The problem with this solution is that it gives undue power to those who control the agenda setting institutions. In the next subpart, we show that supermajority rules can constrain the power of agenda setters. See infra subpart I(G). 85. See DENNIS C. MUELLER, CONSTITUTIONAL DEMOCRACY 109 (1996). 86. For discussion of universalism, see generally Barry R. Weingast, A Rational Choice Perspective on Congressional Norms, 23 AM. J. POL. SCI. 245 (1979). 87. Id. at 219. 88. Kenneth A. Shepsle & Barry R. Weingast, Political Preferences for the Pork Barrel: A Generalization, 25 AM. J. POL. SCI. 96, 108–10 (1981) (conceptualizing universalism as a hedge against being left out of a minimum winning coalition).

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We believe that any legislative tendency toward universalism does not mean that supermajority rules will have little effect. First, not all specialinterest legislation is spending legislation. Second, some spending legislation passes with narrow majorities and supermajority rules will have an effect in those circumstances.89 Third, and perhaps most importantly, even if special-interest bills pass with nearly unanimous support under majority rule because of a universalism norm, that does not mean that passage is assured under a supermajority rule. Supermajority rule changes the incentives of legislators. Under majority rule, even a legislator who does not get much from special interests or is ideologically opposed to them might support special-interest spending because he cannot hope to block the legislation under the lenient voting rule. But under supermajority rule, his defection is more likely to block the special-interest legislation. He is therefore more likely to defect. Thus, supermajority rule may well decrease special-interest legislation even in legislatures that follow universalism under majority rule.90

89. House approval of the conference committee report on the appropriations for the Departments of Labor, Health and Human Services, Education, and related agencies in the 109th Congress, for example, came on a 215–213 vote. 151 CONG. REC. H11552 (daily ed. Dec. 14, 2005); see also The Departments of Labor, Health and Human Services, Education and Related Agencies Appropriations Act, H.R. Res. 3010, 109th Cong. (2005). 90. Matthew McCubbins opposes supermajority rules for spending for two reasons other than those we have discussed in the text. First, he believes that they detract from accountability. See Mathew McCubbins, Putting the State Back in State Governments, the Constitution and Budget, in CONSTITUTIONAL REFORM IN CALIFORNIA 353, 366–68 (Bruce E. Cain & Roger G. Noll eds., 1995) [hereinafter McCubbins, Putting the State Back]. Especially because supermajoritaran rules tend to require bipartisan support, it becomes harder for voters to discern which party is responsible for particular spending. As a result of these increased monitoring costs, legislators may have an even greater tendency to indulge in the vice of recklessly spending other people’s money. We certainly recognize that decreased accountability can be a cost, but we are skeptical that even in a world of political parties it is as much of a cost as McCubbins alleges. Parties can advertise their desired levels of spending and priorities even if they compromise on actual votes. And voters are likely to be able to understand that electing more members of that party will move them toward that party’s ideal. Second, even if a supermajority rule decreases accountability in some measure, this cost must be balanced against the substantial benefits derived from the weakening of special interest power that we have described. McCubbins has also argued that that supermajority rules are likely to lead to higher spending because the bipartisan compromise required will result in the spending of money on both the priorities of Democrats and Republicans rather than only the majority’s priorities. See, e.g., Mathew D. McCubbins, Party Governance and U.S. Budget Deficits: Divided Government and Fiscal Stalemate, in POLITICS AND ECONOMICS IN THE EIGHTIES 83 (Alberto Alesina & Geoffrey Carliner eds., 1991). But this analysis fails to consider the marginal net value of spending. If a party must agree to a unit of the other party’s spending for every unit of its own preferred spending, its preferred unit becomes less valuable, because its constituents will have to pay more taxes to get that unit. Thus, a party will demand less spending if it has to agree to other spending as a result. Consistent with this view, other social scientists have shown that divided government (where one party controls at least one house of the legislature and the other the Presidency) results in less, not more spending. See William A. Niskansen, A Case for Divided Government, CATO POL’Y REP., Mar.–Apr. 2003, at 2, 2, available at http://www.cato.org/pubs/policy_report/v25n2/cpr-25n2.pdf.

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G. Administrative Costs, Substitution Costs, and Holdout Costs Our previous discussion suggests that the optimal legal system may have multiple voting rules, applying different voting rules to different areas depending on the array of special interests. But a system with multiple voting rules rather than a single voting rule applicable to all legislation requires matching rules to particular legislation. Such matching generates administrative costs. The substantiality of such costs will depend on the clarity of the definitions that guide application of the appropriate rule. The most important component of administrative costs is error costs. Either the legislature or the judiciary may make a mistake and apply the incorrect voting rule to a particular bill.91 This error can be a type I or type II error.92 With a type I error, the legislature or court fails to apply a supermajority rule when one is required. With a type II error, the legislature or court applies a supermajority rule where one is not required. Either kind of error decreases the benefits from a multiple rule system. Because of the importance of administration costs, an inevitable tradeoff exists between the clarity of the legal definition that governs the application of a voting rule and the degree to which that definition identifies a category of legislation that is appropriate to a particular voting rule.93 A clear definition may unfortunately capture substantial legislation that is not well matched with a voting rule. Conversely, a definition well matched with the legislation that should be subject to the voting rule may not be clear. For instance, consider a supermajority rule that would apply to all legislation in which special interests predominantly favor legislation. This rule would attempt to perfectly capture the areas where supermajority rule should apply under our simple preference model. But this definition would not be desirable, because the judiciary would be unlikely to successfully apply this definition on a case-by-case basis. It would be preferable to choose a bright-line rule that the judiciary could easily follow even if that rule did not perfectly capture all the situations to which a supermajority rule would ideally apply. A second cost of multiple rules is substitution costs. One might think that special interests could negate altogether the benefits of supermajority rule simply by shifting their efforts toward legislation covered by majority rule. Assume, for instance, that a supermajority rule applies to spending but not to regulation. Special interests may try to obtain the rents blocked by the 91. One less important cost is that of staffing the judiciary for this work. 92. See Richard A. Posner, An Economic Approach to the Law of Evidence, 51 STAN. L. REV. 1477, 1504 (1999) (defining type I and type II errors). 93. The trade-off between administrative costs and rules that provide perfect incentives for human behavior is a recurrent theme in all of law. See RICHARD A. EPSTEIN, SIMPLE RULES FOR A COMPLEX WORLD 32–33 (1995) (“[T]he social function of law is to minimize the sum of the administrative (including error) costs and the costs associated with the creation of poor incentives for individual action.”).

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supermajority rule for spending through additional regulation. For example, unions stymied in obtaining government-provided health care may lobby for regulations mandating companies to provide it. These costs are different from administrative costs, because by hypothesis the law that special interests propose is regulatory, not spending legislation, and thus even an accurate judicial assessment will apply majority rule to its passage. The amount of substitution costs will depend on facts peculiar to the area of the legislation to which a supermajority voting rule applies. But it is very unlikely that special interests will be able to eliminate all or most of the gains of an otherwise desirable supermajority rule. The reason special interests choose to promote legislation in a particular area that is now subject to a supermajority rule is that the benefits the special interests desired were easiest to obtain in that area. Thus, they are likely to buy less substituted legislation in an area they did not originally choose. For instance, if supermajority rule applies to spending in a particular area because special interests rarely oppose spending,94 it may be difficult to achieve rents through regulations because more special interests will oppose regulations. Thus, while few interest groups oppose health care subsidies, companies that oppose being ordered to pay for health care will constitute a powerful interest group opposed to health care mandates. Moreover, not all rent seeking can be easily translated from one area to another. It is difficult to imagine how a pay-asyou-go social security program could be enacted as a regulation-mandating provision by employers as opposed to a government spending program. It might be thought that administrative and substitution costs are costs imposed by the use of supermajority voting rules but this is not the case. If we applied a single supermajority rule to all legislation, we would have no more substantial substitution or administrative costs than if we applied majority rule to all legislation. Administrative and substitution costs are the costs of multiple rules. A final category of costs to be considered is holdout costs.95 Holdout costs are substantial decisionmaking costs caused by the strategic behavior of legislators. For instance, a unanimity rule would give leverage to each

94. See Anthony S. McCaskey, Comment, Thesis and Antithesis of Liberty of Contract: Excess in Lochner and Johnson Controls, 3 SETON HALL CONST. L.J. 409, 460–63 (contending that “direct beneficiaries of . . . particular legislation have strong reasons to lobby for the enactment” even though the regulation does not benefit the majority). 95. Professor Reza Dibadj has suggested that holdout problems are linked to an anticommons problem. Reza Dibadj, Regulatory Givings and the Anticommons, 64 OHIO ST. L.J. 1041, 1050 (2003); see also John Armour & Michael J. Whincop, An Economic Analysis of Shared Property in Partnership and Close Corporations Law, 26 J. CORP. L. 983, 999 (2001) (“During the firm’s solvency, it makes sense for creditors to be able to exercise their rights unilaterally, but once they become residual claimants this gives rise to severe hold-up or anticommons problems.”). Under certain circumstances, majority rule can lead to a commons problem as legislators under pressure from special interests overspend the public’s money. But voting rules that are too inclusive can lead to an anticommons problem as legislators waste the opportunity to provide useful public goods through strategic behavior.

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legislator to refuse to support a law unless he was given undue benefits.96 Under majority rule, in contrast, individual legislators have little leverage to extract benefits because there are so many other legislators available who can form the majority coalition. Although holdout costs have the potential to frustrate the benefits of supermajority rules, they are not likely to be present in well designed supermajority rules. So long as the supermajority rule is of moderate stringency, like a three-fifths or even three-quarters requirement in a single chamber, there are still substantial alternative coalitions. Thus, legislators cannot easily holdout. The one exception may be on matters where there is great time urgency, like current appropriations, which may be necessary to fund core government functions.97 The next part, though, draws on political science models to show how supermajority rules can be designed to largely solve this holdout problem. II.

The Spatial Model

A. Introduction We now move from an economic preference model to a preference model popular in political science—a spatial model. Our spatial model expands the analysis of the economic preference model in two ways. Whereas our economic preference model posited that legislators either opposed or supported legislation in a bimodal manner, the spatial model helps us explore the effects of diverse preferences of legislators on the choice between majority and supermajority rule. It confirms that supermajority rules are useful where special interests promote legislation and harmful when special interests oppose legislation. Our spatial model also enables us to add elements of political realism to the analysis. First, the spatial model shows that supermajority rules have similar effects even if an agenda setter, like a committee, chooses the legislation that will be put to the vote of the entire legislature. Second, the model draws attention to the importance of the status quo in legislative voting. Legislators’ preference for legislation can be profoundly affected by what the status quo is in the absence of the legislation. If the status quo is sufficiently unattractive, supermajority rules will have no beneficial effect, because legislators will prefer passing even quite bad legislation to maintaining an even more unattractive status quo. We then use our analysis of the status quo to consider further the application of supermajority rules to annual appropriation legislation. We show that the inclusion of mechanisms to improve the

96. See Clayton P. Gillette, The Exercise of Trumps by Decentralized Governments, 83 VA. L. REV. 1347, 1350 (1997) (noting that unanimity rules are subject to “holdout problems and abuse by fanatics”). 97. See Alan L. Feld, Shutting Down the Government, 69 B.U. L. REV. 971, 981 (1989).

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status quo can improve the effectiveness of supermajority rules in limiting the excessive spending demanded by special interests. B. The Basic Structure of Spatial Models Spatial models have been widely used in the political science literature98 and are increasingly used in the legal literature.99 Like other models, spatial models make certain simplifying assumptions in order to help us understand the essential features of a more complicated reality. This subpart develops a spatial model for supermajority and majority rules. Our principal spatial model is one-dimensional, consisting of a one-dimensional ideological preference for legislation.100 The one dimension we will use for illustration consists of spending levels: legislators in the model prefer different levels of spending.101 The model views these preferences in spatial or geographic terms. Legislators are generally thought to have an ideal or most preferred point in the policy space in which legislation is passed.102 A legislator will vote for legislation if it moves him closer to that ideal and against legislation if it moves him further away.103 We assume the absence of strategic voting because we have no reason to believe that strategic voting generally favors either majority or supermajority rule. We do address strategic voting at the end of this subpart in a specific situation where strategic considerations might lead legislators under a supermajority rule to approve good legislation. The spatial model has been used in political science for positive analysis. Here it predicts the effects of moving from majority to supermajority rule. The model itself, however, does not lend itself to a normative comparison of 98. See, e.g., Keith Krehbiel, Spatial Models of Legislative Choice, 13 LEGIS. STUD. Q. 259, 273–94 (1988) (discussing the development of the successor models to the spatial model of structure-induced equilibrium). 99. A good example in the law review literature is a famous article exploring Chadha. See William Eskridge & John Ferejohn, The Article I, Section 7 Game, 80 GEO. L.J. 523, 527–28 (1992) (applying an analysis of Article 1, Section 7 as a sequential game as a way to evaluate contemporary constitutional cases and criticizing Chadha); see also John O. McGinnis & Michael B. Rappaport, The Judicial Filibuster, the Median Senator, and the Countermajoritarian Difficulty, 2005 SUP. CT. REV. 257, 261 (2006) [hereinafter McGinnis & Rappaport, Judicial Filibuster]. 100. The term “dimension” in the literature of spatial models is used to describe a particular axis of policy choice. See Thad Kousser & Mathew D. McCubbins, Social Choice, CryptoInitiatives and Policymaking by Direct Democracy, 78 S. CAL. L. REV. 949, 951 n.8 (2005). If a political actor considers only one kind of policy choice in making a decision, then the model will be one-dimensional. If he considers two or more policy variables, the model will be multidimensional. 101. One important characteristic of such one-dimensional policies is that they preclude cycling. As discussed above, cycling is the phenomenon in which a legislature with stable preferences nevertheless passes in sequence inconsistent legislation. Supermajority rule will tend to reduce cycling. Thus, it may well be that focusing on one-dimensional policies understates the attractiveness of supermajority rules because in multidimensional policy spaces, they are likely to help foster stability. 102. Krehbiel, supra note 98, at 262. 103. Id. at 263 (arguing that under any of several possible preference models, the utility of a vote decreases as it moves away from a legislator’s ideal).

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voting rules. In order to assess the normative results produced by the model, we make such adjustments to the model in subpart C below. 1. A Simple Model Without an Agenda Setter.—To illustrate the analysis of supermajority and majority rule in spatial models, we assume a legislature consisting of 5 members. Each member has an ideal point that indicates his preferred amount of spending: Member a prefers 0 spending; member b prefers spending of 1; member c prefers spending of 2; member d prefers spending of 3; and member e prefers spending of 4. Consistent with the tenets of a spatial model, members prefer spending that is closer to their preferred point than other spending. Thus, member c prefers spending of 3 to 0, because 3 is closer to 2 than it is to 0. We assume further that a member will not vote for a bill, but rather abstain, when he is indifferent between the bill and the absence of the bill, i.e., the status quo. For example, if b’s ideal point is 1, the bill provides for 2, and the status quo is 0, legislator b abstains.104 In this five-person legislature, majority rule requires a bill to pass by at least three votes. A supermajority rule will require passage by at least four votes. We can visualize the preferences of the legislature with the following line graph: 0 a

1 b

2 c

3 d

4 e

Ideal points of members Members

To make the determination of what will happen under supermajority rule and majority rule, two more matters need to be specified. First, one must define the status quo, because each legislator’s choice is between the bill presented and the status quo. Here, we initially assume 0 spending results if no legislation is enacted and thus the status quo is 0. Second, one must determine what bills are voted upon and in what order that voting occurs. Different results can obtain depending on the bills that are voted on and the order on which they are voted. While most legislatures have agenda setters to determine what bills will be voted upon, we assume initially that all bills desired by any member will be voted upon. To avoid the effects of the order in which bills are voted upon, we assume the bills are voted upon in a random order. In this way, we are able to evaluate the tendencies of majority and supermajority rule, without introducing an agenda-setting mechanism. We further assume that all bills that have support from at least one member will be voted upon, in this case bills 0, 1, 2, 3, and 4. In this model, the first bill chosen must compete against the status quo, in this case 0. Suppose then that bill 2, chosen at random, is considered

104. As noted above, we also assume no strategic voting.

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against 0, the status quo. The winner (by simple majority under majority rule and by a majority of at least four-to-one under supermajority rule) will then compete against the next randomly chosen bill, say bill 3. To prevail, a bill must defeat all rivals. In this model under majority rule, bill 2 will prevail, no matter what the order of voting is. Any bill will defeat 0, because a majority supports any bill in preference to 0.105 If bill 1 prevails, at some point it must compete against bill 2. Bill 2 will defeat 1, because a majority prefers 2 to 1. Similarly, bill 2 will defeat bill 3 and bill 4, because a majority will prefer 2 to either of those two bills. This result reflects the famous median voter theorem.106 That theorem provides that where there are unidimensional preferences, the bill preferred by the median voter will prevail under majority rule.107 We next consider which bills can beat the status quo of 0 under supermajority rule. Bill 1 can, since it is preferred by b, c, d, and e. But bill 2 cannot, since it is preferred only by c, d, and e.108 Nor can bills 3 or 4 pass. So if bills 2, 3, or 4 compete against bill 0, they will each lose. Only bill 1 can prevail against 0. Thus, under a supermajority rule, the result will be bill 1. This first result from the model underscores two important differences between majority and supermajority rule. First, while majority rule tends to reach a centrist result—the result that the median voter prefers— supermajority rule tends toward the status quo result. Because it takes four voters rather than three to depart from the status quo, the status quo enjoys an advantage. Second, in cases like this one where the status quo involves low spending, the supermajority rule will tend to produce lower spending than majority rule. Thus, a supermajority rule would result in spending of 1, while majority rule would produce spending of 2. Now consider the same model with a status quo of 4 rather than 0. The status quo involves high spending. Based on the above analysis, a supermajority rule will have a result that is closer to the status quo than majority rule, which in this case involves additional spending. And that is exactly what happens here. Under majority rule, bill 2 will prevail, for the same reasons that it prevailed above. The median voter prefers bill 2 and it can beat any other bill that is considered. Under a supermajority rule, by contrast, bill 3 will

105. For example, if spending of 1 is considered, members b through e will prefer it and vote for it. 106. The theory was originated by Duncan Black. See DUNCAN BLACK, THE THEORY OF COMMITTEES AND ELECTIONS 19–24 (Iain McLean et al. eds., rev. 2d ed. 1998). 107. JAMES M. ENELOW & MELVIN J. HINICH, THE SPATIAL THEORY OF VOTING: AN INTRODUCTION 12–13 (1984). 108. Legislator b is indifferent between 2 and 0, because his ideal point is 1, which is equidistant between 2 and 0.

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prevail. For similar reasons as above, bills 0, 1, and 2 cannot beat 4. Only bill 3 can, since it secures the votes of all members except for e. Thus, in this situation, a supermajority rule will increase spending compared to majority rule, because the status quo has higher spending than the median voter desires. Finally, we consider the situation with a status quo that is very unattractive. As in the original model, the status quo is 0, but here the legislators prefer spending at much higher levels: 0

1

2

3

4

5 a

6 b

7 c

8 d

9 e

Ideal points of members Members

In this situation, as usual, majority rule leads to the result favored by the median voter, 7. While one might expect supermajority rule to shift the result toward the status quo under this model, it does not do so. The reason is instructive: The status quo here is not attractive enough. In this model, even a, the member with the preferences for the least spending, does not view the status quo spending as attractive. In fact, a prefers the highest spending, of 9, to the status quo amount of 0. Indeed, under supermajority rule each of the bills would beat the status quo in a head-to-head contest.109 Thus, a more careful evaluation of the spatial model shows that a supermajority rule will not simply promote the status quo. Instead, it will do so only to the extent that the status quo is more attractive to a sufficiently large number of members than higher spending. We have thus looked at the choice of majority rule and supermajority rule in three situations. When the status quo is low spending, majority rule will result in a bill with the ideal point of the median legislator, while supermajority rule will move the result down toward the low-spending status quo. When the status quo is high spending, majority rule will again result in a bill with the ideal point of the median legislator, while supermajority rule will move the result upwards toward the high-spending status quo. When the status quo is unattractive, majority rule will still result in a bill with the ideal point of the median legislator, and supermajority rule will be unlikely to change this result. 2. A Model with an Agenda Setter.—We can modify the model to make it more realistic. In general, bills are introduced in Congress through

109. The decisive factor is the result of competition between different bills. The two weakest in this competition are 5 and 9. In each case, those extremes will be beaten by the bill closest to it. Thus, 6 can get a supermajority over 5, and 8 can get a supermajority over 9. As a result, supermajority rule limits the results to 6, 7, and 8. Moreover, 6 and 8 will occur twice as many times as 7 because they will result when 5 and 9 initially beat the status quo, and when 6 and 8 do so. So the possible results are 6, 6, 7, 8, and 8. This array has an average of 7, like majority rule, but permits more departures from the median voter’s preference.

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congressional committees.110 A bill must secure the approval of the substantive committee in order to be considered on the floor.111 And in some legislative bodies, like the House of Representatives, the substantive committee, in conjunction with the Rules Committee, will also prescribe what amendments are allowed to be considered by the legislature as whole.112 In this model, we therefore give a committee significant power over legislation.113 First, the committee can decide whether to allow a bill to be voted on at all. It could simply prevent any bills from being considered and preserve the status quo. Second, the committee can decide to allow only one bill to be considered, which is the most likely result, because in that way it can most easily obtain the outcome it desires. Finally, the committee could allow more than one bill to be considered but control the order of voting. Suppose then that we have the arrangement of preferences under the first specification of our model in which the status quo is 0. Legislators are thus arrayed as follows: 0 a

1 b

2 c

3 d

4 e

Ideal points of members Members

In this arrangement, under majority rule, the committee has substantial discretion to get a bill enacted that reflects its desires. It can have any bill enacted except for 4. For example, suppose that it prefers bill 3 to be enacted. It simply votes bill 3 out of committee. Bill 3 will be able to obtain a majority as against 0, the status quo, because c, d, and e will support it. Thus, the possible results are 0, 1, 2, and 3.114 Under supermajority rule, by contrast, there are only two possibilities. First, the committee can block all bills, thereby securing the status quo of 0. Or it can release bill 1, which would prevail over 0. Bills 2, 3, or 4 would not pass with a supermajority over 0. Thus, under the supermajority rule, the results are only 0 and 1, which suggests lower spending than under the majority rule results of 0, 1, 2, and 3. The reason is that the status quo is 110. See John Yoo, Laws as Treaties?: The Constitutionality of Congressional-Executive Agreements, 99 MICH. L. REV. 757, 846 (2001) (describing normal legislative procedure). 111. Also, especially in the House, the Rules Committee must agree to scheduling the bill. See CHARLES TIEFER, CONGRESSIONAL PRACTICE AND PROCEDURE 252 (1989). 112. Some bills will be introduced with a closed rule, which will not allow any amendments to be introduced. WILLIAM N. ESKRIDGE, JR. ET AL., LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 32 (3d ed. 2001). Others will be introduced with a limited open rule, which will allow only certain specified amendments. Finally, others are governed by an open rule, which will allow any amendments to be considered. Id. Especially with closed rules, these arrangements indicate that the committee will determine which bills and which amendments will be voted upon, and in what order. 113. For a discussion of the realism of such models, see, for example, Arthur Denzau & Robert Mackay, Gatekeeping and Monopoly Power of Committees: An Analysis of Sincere and Sophisticated Behavior, 27 AM. POL. SCI. REV. 740, 745–48 (1983). 114. Zero can occur because the committee can refuse to allow bills out of committee.

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sufficiently attractive to counterbalance some of the power of the agenda setter to achieve its preferred outcome. A parallel analysis applies to a situation where the status quo is 4: The possible results under majority rule are 1, 2, 3, and 4, while the possible results under a supermajority rule are 3 and 4. Thus, the results tend toward the status quo—in this case, high spending. Finally, when the status quo is very unattractive, the committee’s recommendation can always prevail. An unattractive status quo does not have the force to counterbalance the power of the agenda setter. Thus, a situation where the status quo is 0 but the preferred bills are 5–9 will result in the range of bills, 5, 6, 7, 8, 9, under both majority and supermajority rule. The model with an agenda setter reaches results similar to a model in which all legislators have the ability to introduce bills. Both show that a supermajority rule will move the result toward the status quo, except to the extent that the status quo is so unattractive that legislators prefer all of the possible outcomes to it. But with an agenda setter the supermajority rule also has the ability to counterbalance the power of the agenda setter. Under majority rule the agenda setter has greater discretion than under supermajority rule. As discussed below, that supermajority rule imposes greater constraints on the agenda setter than majority rule is a normatively attractive result if one believes that agenda setters have too much unaccountable power. C. The Normative Implications of the Model In this subpart, we explore the normative implications of our spatial model. While the normative theory that we employ in this Part is quite distinct from the efficiency theory employed in the previous Part, the normative implications are nonetheless similar: supermajority rules are normatively attractive when special interests seek to pass legislation that voters do not want. Because the spatial theory does not lend itself to an efficiency analysis, we here employ a different normative theory. We assume that the best normative results are those that accord with the preferences of the median voter in the legislature when representatives perfectly represent their constituents. In this world, the decisions made by the legislature will be those supported by a majority both of the legislature and of the citizens.115

115. As we did in the economic preference model, we assume that legislators perfectly represent their constituents when all constituents have the same preferences and legislators share or promote those preferences. If all constituents in equally sized legislative districts (such as those represented by members 0–4) have the same preferences as their representatives, then the median voter of all the citizens will have the same preferences as the median voter in the legislature. This assumption of perfect representation is, of course, quite unrealistic. But there is no reason to assume any particular relationship between the preferences of citizens and those of legislators and thus we assume this simple relation for reasons of convenience. Moreover, it should be noted that the median voter in the legislature will also mirror the median voter among citizens under other circumstances. For example, if the legislator shares the

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To take account of special interests in this model, we assume here that special interest promotion leads to more spending than voters prefer. As we discussed above, special interests generally tend to favor spending because they can obtain the benefits of spending for themselves while diffusing the cost of spending over the entire population.116 Thus, we assume that special interests increase by one unit the amount legislators are willing to spend beyond what would be optimal for their constituents. As a result, while the ideal points for the citizens in each legislator’s constituency would remain the same, legislators themselves would have a new set of ideal points that would be higher by one than those of their constituents. As in our basic model, the status quo is 0. Here we provide a spatial model that shows the new set of ideal points for legislators as well as the ideal points of their constituents. The latter are shown in parentheses: (0) 1 a

(1) 2 b

(2) 3 c

(3) 4 d

(4) 5 e

Ideal points of members’ constituents Ideal points of members Members

Under majority rule without an agenda setter, bill 3 would be passed. This result again reflects the preferences of the median legislator, but this result does not appear normatively attractive, since the median legislator’s constituents (and the median citizen) prefer bill 2. Supermajority rule would move the result toward a normatively attractive one. Without an agenda setter, supermajority rule would result in either bill 2 or 3. The ambiguous result occurs because either 2 or 3 can muster a supermajority to beat the status quo. Legislators b, c, d, and e all prefer 2 to the status quo. But they also prefer 3 to the status quo. The reason for this result is that b, with ideal point of 2, prefers 3 to the status quo of 0.117 Thus, whichever of bills 2 and 3 is introduced first will prevail.118 Overall the results under supermajority rule are closer to the preferences of the median voter in the legislature than they are under majority rule. Now we consider the normative implications of the results with an agenda setter. When legislators are influenced by special interests, the

preferences of a majority of the citizens in his district and the minority in all of the districts have preferences that are in proportion to the representatives in the legislature (that is, for the example of the legislature with members 0–4, the voters in the minority have preferences that are equally distributed between 0 and 4), then again the median voter of the legislature will have the same preference as the median voter of the citizens. 116. For discussion of this point, see supra note 65 and accompanying text. 117. Thus, the result here is different from the single result for supermajority rule in our basic model, see supra text accompanying note 108, because b’s ideal point of 2 is two units from the status quo of 0 rather than one unit. Thus, b prefers 3 as well as 2 to the status quo. 118. Obviously, 4 or 5 cannot muster a supermajority because a and b do not prefer them to the status quo.

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agenda setting committee will have a very substantial amount of discretion. It can refuse to release any bill and get 0 or it can choose any of bills 1, 2, 3, 4, or 5 and these will pass, because a majority of legislators will prefer these bills to the status quo. It is entirely possible that the agenda setter under the influence of special interests will choose bills 4 or 5.119 A supermajority rule would limit the agenda setter to only four possibilities. The committee could still release no bill and therefore get 0. It can pass 1, 2, and 3. It cannot, however, pass 4 or 5 because a supermajority of members will not prefer these results to 0. This result provides a very substantial normative improvement, because it eliminates bills 4 and 5, which are most distant from the preferences of the median voter. It is particularly attractive because it is entirely possible that the agenda setter will choose to exercise its discretion to release a bill with a high level of spending in accordance with the wishes of special interests. Under those circumstances, supermajority rule is likely to move the result from the possibility of bills with spending as high as 4 or 5 to bills with spending of 2 or 3—a clear movement toward the median voter of the legislature. Thus, supermajority rule may make even a more important normative improvement when an agenda setter chooses the bill on which the legislature votes. The reason is that agenda setters subject to special interest influence can exercise their discretion to obtain a result quite distant from that desired by the median voter. A supermajority rule constrains both the power of the agenda setter and the power of special interests. One can readily see that supermajority rules will not be at all attractive, however, when special interests oppose legislation that voters prefer. In that case in our spatial model, special interests will reduce the spending level desired by each legislator by one unit. We again display a spatial model with the preferences of legislators influenced by special interests printed without parentheses and the preferences of the legislators’ constituents with parentheses. Since negative spending is not possible, legislator a’s preference remains at 0. (0) 0 a

(1) 0 b

(2) 1 c

(3) 2 d

(4) 3 e

Ideal points of members’ constituents Ideal points of members Members

Under majority rule, legislators will vote for spending of 1—less than the amount voted for without special-interest influence. Under supermajority

119. One might even think that an agenda setter’s decision to release bills 4 or 5 is the most likely result, because it would cost less for special interests to influence the relatively small numbers of members on a single committee as opposed to the entire legislature, and thus special interests would promote the high-spending bills they most desire.

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rule, however, even 1 would not receive the 4 votes necessary to beat the status quo of 0. Supermajority rule would thus be normatively unattractive. D. The Status Quo and Supermajority Rules In this subpart we further explore implications of the status quo for supermajority rules. First, we illustrate that what is important about the status quo is its relation to preferences of legislators, not its absolute value. Second, in drafting supermajority rules that will be effective, it is necessary to design them so that the status quo is attractive when legislators vote under supermajority rules. 1. The Status Quo and the Preferences of Legislators.—Consider regulatory laws as an example of laws that persist over a period until repealed.120 Under a model for regulatory laws, we will describe the amount of regulation in ascending numbers, much as we have described spending. Thus, 0 represents no regulation and each subsequent number marks a higher amount of regulation. Thus, we have our typical spatial model. 0 a

1 b

2 c

3 d

4 e

Ideal points of members Members

If Congress had passed no previous regulations, the status quo would be 0. Under that circumstance, supermajority rule would result in less regulation than would majority rule, because as we have seen, supermajority rule moves the result back toward the status quo. That result would be normatively attractive if special interests support more regulation than the median voter. But more realistically, Congress would normally have already passed some regulation. The status quo would not then be 0. For instance, one might assign a relatively high status quo, such as 4, to substantial regulation already in place. If the status quo were 4, then a supermajority rule that governed all laws touching on regulation would have the effect of making it more difficult to decrease regulation, because supermajority rule moves the result toward the status quo.121 For instance, a, b, and c could decrease regulation to level 2 under majority rule, but a supermajority rule would prevent them from doing that. On this analysis, a supermajority rule might well seem more likely to prevent deregulation than to prevent additional regulation. Supermajority rule would be counterproductive on the assumption that special interests are arrayed in favor of regulation.

120. Another example is entitlement spending that continues automatically until modified. 121. This observation is consistent with the economic preference model. See supra sections I(D)(1)–(2).

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But this analysis is dependent on the fact that in our example, legislators desire either less regulation or the same amount of regulation as that which exists. Their ideal points are 0, 1, 2, 3, and 4—either less than or equal to the status quo. But even if a substantial amount of regulation has been passed, Congress may well desire to regulate even more now or in the future. Imagine the same status quo for regulation as discussed above, but now change the members’ preferences so that most members envision additional regulation. Thus, the status quo is 4 and the members have ideal points of 4, 5, 6, 7, and 8. In this situation, a supermajority rule would not make it harder to deregulate, because deregulation is not in the cards. Instead, it would actually serve to constrain additional regulation. What this example shows is that in assessing the beneficence of a supermajority rule, it is not the absolute value of the status quo, but its relation to the preferences of the legislature that is key. But what if we are uncertain of Congress’s preferences for regulation in the future? They could be either 1, 2, 3, and 4, or 4, 5, 6, 7, and 8. If our objective were to make regulation harder without making deregulation harder, we could have two different voting rules. The first would be a supermajority rule for departures upward from the status quo of 4—in other words a supermajority rule applied to additional regulation. The second would be a majority rule for departures downward from the status quo of 4— in other words a majority rule applied to deregulation.122 2. The Status Quo and the Structure of Supermajority Rules.—Now we will consider the importance of the status quo in drafting appropriate supermajority rules. We apply a supermajority rule to laws that authorize discretionary spending.123 This legislation involves spending that is authorized for a one-year period.124 Every year, Congress authorizes a certain amount in expenditures. After the year for which it is authorized, however, the spending authority runs out and without new spending authority, no additional money can be expended. This situation involves a legislative arrangement where the status quo is 0—no spending. Our spatial models suggest that a supermajority rule as applied to a status quo of 0 would have only a limited effect in restraining spending. The reason that a supermajority rule would have no effect is that most legislators want to spend at least some money. We can map their preferences as follows:

122. As discussed above, such a rule might have more administrative costs, as judges would have to decide whether the bill was regulatory or deregulatory. See supra notes 73–74 and accompanying text. 123. See Naomi Caiden, The New Rules of the Federal Budget Game, 44 PUB. ADMIN. REV. 109, 112–14 (1984) (discussing the difference between discretionary spending, which is done through annual appropriations, and permanent entitlement spending). 124. Id.

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2

3

4

5 a

6 b

7 c

8 d

9 e

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Ideal points of members Members

In this situation, the legislators all prefer spending of much greater amounts to 0. In fact, they prefer spending of 9 to 0.125 Thus, at least initially, it might be thought that supermajority rule’s tendency to shift spending toward the status quo will have no effect.126 The unattractiveness of the status quo will significantly constrain the ability of supermajority rule to reduce spending. This kind of status quo problem may explain why the California Constitution’s rule requiring a supermajority rule to authorize any spending appears to have been less than completely successful.127 Because the status quo of 0 is unattractive, the supermajority rule may not lead to lower spending. Now consider what we might call the “simple 90 percent supermajority rule.” Under this 90 percent rule, a failure to pass an appropriation law results in the automatic enactment of an appropriation of 90 percent of the previous year’s appropriation. If we assume that the lowest spender in the legislature has as his ideal point of spending of 5, which is 90 percent of the previous year’s appropriation, then the legislature can be modeled as follows: 5 a

6 b

7 c

8 d

9 e

Ideal points of members Members

This model, in which the status quo is 5, is similar to our first model (the model with a status quo of 0), except that the member’s ideal points range from 5–9 rather than 0–4. As with our first model, the supermajority rule

125. Under the model without an agenda setter, the results under a supermajority rule will be 6, 7, or 8, depending on the order in which bills are voted upon. For example, 6 will prevail if it is voted upon first (because no other bill can beat it) or if 5 is voted upon first and then 6 is voted upon next (because 6 can beat 5). 126. While this model suggests that the status quo involving 0 spending reduces the ability of low spenders to take advantage of the supermajority rule, the real world differs in an important way from the simple model. In the real world legislators can refuse to support a new spending bill, knowing that after the government closes down, a new bill will be negotiated. This deal could be better or worse than the current bill, which would depend on whom they believe would win the public relations battle when the government shuts down. Thus, members would take account of the possibility of this new deal in deciding whether a bill was sufficiently close to their ideal point to warrant their support and might let the government shutdown, if they believe a new deal would be better for them than the current one. This modified model suggests that sometimes there will be government shutdowns, even though the simpler model with an extremely low status quo suggests spending will always be passed. Still, the basic result of a model with an unattractive status quo remains. The costs of the government shutdown (plus the fact that in general there is no reason to believe that one will prevail in the negotiations following the shutdown) suggest that members will usually prefer the proposed bill to a government shutdown. 127. For criticisms of the results of this rule, see McCubbins, Putting the State Back, supra note 90.

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results in less spending. For instance, in the model without an agenda setter, supermajority rule will result in 6 as opposed to 7. The cause of the reduction in spending is the supermajority rule’s tendency to shift results toward the status quo when the status quo is sufficiently attractive.128 Thus, the simple 90 percent supermajority rule should reduce spending more than an ordinary supermajority rule for appropriations laws. Now we consider a more sophisticated version of a 90 percent rule. Here the majority can enact spending up to 90 percent of last year’s spending on its own. Again the ideal points range from 5–9, and 90 percent of last year’s spending is 5. 5 a

6 b

7 c

8 d

9 e

Ideal points of members Members

We will consider the question in our first version of the model without an agenda setter, which involves each bill being voted upon in a random order. To determine whether a bill can win now, one does not merely compare it to the status quo of 0, but also to what the member believes a majority will enact if no bill is passed. Under majority rule, a majority can enact 5. In fact, all members will vote for 5 over 0 because they prefer it. Given the status quo generated by the majority, the members will vote under supermajority rule as follows: If 6 is proposed, it will pass with the votes of b, c, d, and e who prefer it to 5, which would be sure of passing under majority rule. If 7 is proposed, it will not pass because b is indifferent between 5 and 7. Neither 8 nor 9 will pass. Five will pass as well, although the story there is more complicated: If 5 is proposed, it will pass under the supermajority rule or perhaps under majority rule. Thus, the result is that only 5 and 6 can win under the sophisticated version of the 90 percent supermajority rule with its majority fallback, but 6, 7, and 8, can win under an ordinary supermajority rule with no majority fallback.129 The sophisticated 90 percent rule is accordingly more effective at reducing spending than an ordinary supermajority rule. The key result here is that effective supermajority rules need to play off against an attractive status quo. Drafting a supermajority rule with an attractive status quo that is fixed or one that can be set by a majority helps improve the performance of supermajority rules. 128. The supermajority rule in this model resembles the Gramm–Rudman deficit reduction legislation. See Gramm-Rudman-Hollings Act of 1985, Pub. L. No. 99-177, 99 Stat. 1038 (codified as amended in scattered sections of 2 U.S.C.). Under that legislation, deficits that exceeded a predetermined deficit amount were automatically cut back through a sequester that reduced government spending. Although the spending cut was opposed by many in Congress, it was still far more attractive than closing down the government and the gamesmanship that such an event caused. While Gramm–Rudman operated in different forms for several years, it eventually was replaced by the Budget Enforcement Act. 129. See supra note 125.

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III. The Accuracy Model A. Introduction We now move from preference models to consider an accuracy model of legislative voting. Preference models begin with the assumption that legislators vote on the basis of preferences. Depending on the model, the relevant preferences are their own, their constituents, or some combination of the two. An accuracy model, by contrast, begins with the assumption that legislators vote primarily on the basis of their sincere assessment of what is in the public interest.130 In a previous article, we showed that, despite the different approach taken by an accuracy model, the introduction of special interests into that model creates results similar to those we derive here from the preference model.131 In particular, we showed that, within an accuracy model, when special interests are interested in promoting only bad legislation, supermajority rule can improve upon the results under majority rule. Under these circumstances, supermajority rule discourages special interests from spending resources to distort the information flow to legislators or otherwise bias their judgments so as to pass bad legislation. When special interests are interested in promoting both bad and good legislation, supermajority rule is even more beneficial, because it encourages special interests to shift from promoting bad legislation to promoting good legislation. In contrast, just as in the economic and political science preference models, when special interests oppose the passage of good legislation or the passage of both bad and good legislation, supermajority rule is detrimental. In this Article we focus on the additional insights that an accuracy model can provide. First, an accuracy model shows that the choice between majority and supermajority rule depends on the percentage of bad legislation within the total amount of legislation presented to the legislature for a vote. The more bad legislation that is presented, the better supermajority rule is because supermajority rule blocks more legislation. Once again we have a somewhat counterintuitive finding to present: we show in some detail that on plausible factual assumptions legislatures are generally likely to vote on substantially more bad than good legislation. This fact operates as a kind of tailwind for supermajority rule, making it more desirable than might otherwise be thought. Second, we analyze the choice between majority and supermajority rule in terms of insurance against risk. An accuracy model shows that in an

130. For a discussion of the reasons for taking this view of democracy seriously, see David Estlund, Beyond Fairness and Deliberation: The Epistemic Dimension of Democratic Authority, in DELIBERATIVE DEMOCRACY 173, 194–98 (James Bohman & William Rehg eds., 1997). 131. See generally John O. McGinnis & Michael B. Rappaport, The Condorcet Case for Supermajority Rule, 16 SUP. CT. ECON. REV. (forthcoming 2008) (manuscript on file with authors).

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uncertain world supermajority rule may provide citizens insurance against the passage of undesirable legislation. While majority rule is better than supermajority rule when legislators’ accuracy rates are over 50 percent, it is worse when the accuracy rates are under 50 percent. Citizens may be uncertain of legislative accuracy rates. Even if they believe it is more likely than not that accuracy rates are over 50 percent, they may also believe that there is a substantial possibility that these accuracy rates may be under 50 percent. Under those circumstances, supermajority rule may be better than majority rule because it reduces the risk of really bad results B. Building the Model While we believe, on balance, that preference models capture more of the behavior of legislators, an accuracy model does describe an essential part of the complicated picture of legislative voting. Legislators usually claim to be voting in the public interest and, at least at times, incur such substantial costs and indeed opprobrium for their votes that this view should be counted as a partial explanation.132 Moreover, even to understand where their interests lie, legislators must attempt to accurately assess states of the world, such as the consequences of the legislation for which they vote. Thus, in considering the choice between majority and supermajority rule it is important to choose the rule that, other things being equal, will best aggregate the judgments of legislators. To claim that legislators sometimes attempt to accurately assess the public interest does not mean, however, that they are not subject to biases.133 Analogously, jurors and judges are thought generally to pursue the public interest, but are recognized to be subject to biases. Thus, we build into our accuracy model a consideration of the biases legislators may have. These modifications have the advantage of making the model more realistic, and thus its results are likely to tell us more about the world than an accuracy model with no biases. To keep the focus on accuracy, however, we add these biases only as supplementary considerations in a world where legislators primarily seek the public interest. To provide a framework for our accuracy analysis we turn to the Condorcet Jury Theorem. The theorem is often thought to show that majority rule is the best decisionmaking rule. Some theorists have extrapolated from the theorem to suggest that majority rule is the best voting rule in

132. See DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE 31 (1991) (describing evidence that “one factor in determining how a legislator votes is simply that legislator’s view of the public interest”). 133. See William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135 U. PA. L. REV. 1479, 1515 (1987) (stating that although it is the aspiration of the government to implement and expand the common good, often times legislation will represent nothing more than the triumph of a special interest faction).

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legislatures.134 We too use the Condorcet Jury Theorem as the basis of our analysis, while recognizing its limitations. By offering a more realistic representation of the legislative world, we explore the conditions in which supermajority rule will be superior to majority rule as well as those in which majority rule will be superior. The Condorcet Jury Theorem is the most famous proposition modeling the accuracy of group decisionmaking.135 The theorem assumes that the two alternatives from which voters choose have an equal a priori chance of being true.136 It then holds that when individuals in a group make decisions independently of one another about the truth of propositions and each has a greater than 50-percent accuracy rate, the decision reached by the majority is likely to assess the truth of the proposition correctly.137 Moreover, it shows that as the number of decisionmakers in the group increases, their collective judgment becomes more accurate.138 It is relatively easy to give an intuitive sense of what drives the Condorcet Jury Theorem.139 Let us assume we have a weighted coin that is designed to come up heads 55 percent of the time and tails 45 percent of the time. If we flipped the coin only eleven times, it would be quite possible that more tails than heads would occur because of chance. But if we flipped the coin 1,001 times we would be much more likely to get a result closer to 55 percent heads and even more likely to get a result with more than 50 percent heads. So it is with the Condorcet Jury Theorem. If each individual has a chance of being correct—which we call the accuracy rate—of 55 percent and only eleven individuals make a decision about the truth of a proposition, it is quite possible that a majority of the individuals (in this case it takes only six) will nevertheless be inaccurate. With 1,001 individuals in the decisionmaking pool, it is very unlikely that more than a majority of the individuals (in 134. Prominent among legal theorists are Frank Michelman and Jeremy Waldron. See, e.g., David Estlund et al., Democratic Theory and the Public Interest: Condorcet and Rousseau Revisited, 83 AM. POL. SCI. REV. 1317, 1317–18 (1989) (applying the Condorcet Jury Theorem to Rousseau’s theory of the general will in order to justify majority rule); Frank I. Michelman, Why Voting?, 34 LOY. L.A. L. REV. 985, 996 (2001) (stating that, in an epistemic theory of justice, the Condorcet Jury Theorem serves as justification for majority rule). 135. See MUELLER, supra note 34, at 129 (describing the Condorcet Jury Theorem). 136. The Condorcet Jury Theorem has been generalized to analyze more than two alternatives. See Christian List & Robert E. Goodin, Epistemic Democracy: Generalizing the Condorcet Jury Theorem, 9 J. POL. PHIL. 277, 285 (2001) (extending Condorcet Jury Theorem to a case with k options). We look at two alternatives in this subpart to simplify the analysis. It has been argued that legislative choices can be broken down into pairwise alternatives and analyzed by the traditional Condorcet Jury Theorem. See H.P. Young, Condorcet’s Theory of Voting, 82 AM. POL. SCI. REV. 1231, 1242 (1988) (noting that legislative judgments are binary in that they require legislatures to vote yes or no on particular measures). 137. MUELLER, supra note 34, at 129. 138. Id. 139. This example is adapted from List & Goodin, supra note 136, at 285–87, although we change the example to one more suitable to a discussion of legislatures.

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this case 501) will be inaccurate. Thus, as the number of decisionmakers who are more accurate than not becomes larger, it becomes increasingly likely that their collective judgment will be accurate. 1. From Truth and Falsity to Goodness and Badness.—We need to make some slight modifications to the Condorcet Jury Theorem to make it more applicable to the legislature. While in the theorem decisionmakers traditionally evaluate the truth or falsity of litigation, under the modification we apply to the legislature, legislators evaluate legislation not as a matter of truth or falsity, but of goodness or badness. The analytic framework of the theorem can be adapted to the situation where decisionmakers evaluate whether a measure is good, rather than whether a proposition is true. For instance, we can assume that legislators consider whether a particular piece of legislation is efficient.140 Whether legislation is efficient depends on an assessment of facts—the costs and benefits of legislation as measured by an individual’s willingness to pay to obtain or avoid the consequences of the legislation.141 If we further assume that efficiency coincides with the public interest, we can use the Condorcet Jury Theorem as a model to assess decisionmaking about an aspect of whether bills are in the public interest.142 2. Independence and the Number of Decisionmakers.—For a Condorcet approach to apply, decisionmakers must be independent, but the legislators for a variety of reasons do not vote completely independently from one another. First, some legislators share particular information sources. Republicans are influenced by the Wall Street Journal’s Editorial Page and Democrats by the New York Times. Second, they will be influenced by other members of their party, both because members of the same party influence

140. By efficiency we mean to suggest an independent, objective metric for the evaluation of legislation. For instance, the Office of Management and Budget undertakes a kind of efficiency review when it engages in cost–benefit analysis of regulations. See Elena Kagan, Presidential Administration, 114 HARV. L. REV. 2245, 2277–83 (2001). Under our assumptions, one might think of members of Congress as engaging in a similar kind of analysis of legislation, voting for legislation where benefits would exceed costs and voting against legislation where costs would exceed benefits. 141. Willingness to pay does not require normative judgments but objective assessments of what individuals are willing to pay under various circumstances. It involves the evaluation of facts, not moral principles. See Avery Wiener Katz, Positivism and the Separation of Law and Economics, 94 MICH. L. REV. 2229, 2248 (1996) (arguing that willingness to pay is an observable fact that is “empirically measurable and hence objective”). 142. We are not arguing and do not believe that legislators consider only the efficiency of legislation in deciding whether to vote for a bill. But we do believe that considerations of efficiency are an aspect of almost any legislator’s vote. Thus, we are deploying an accuracy model to consider only an aspect of legislative voting. Of course, it may well be that the legislators have some other metric by which all evaluate legislation, like increasing equality of incomes. Given any agreedupon criterion which can be measured objectively, the Condorcet framework can be used to assess the accuracy rates of legislators in determining whether legislation meets this criterion.

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one another and because members voting with their party brings them some benefits. There are a variety of ways to adapt a Condorcet approach to this situation, but we choose the one that is simplest.143 We reduce the number of decisionmakers to approximate the real number of independent decisionmakers in the legislatures of advanced democracies. In a proportional representation system, like that of Germany, there are about a half-dozen parties among those elected to the legislature. In the United States, with its first-past-the-post system, there are only two formal parties, but each of these parties is made up of a few factions.144 For our purposes, the exact number of independent decisionmakers is much less important than the fact that the number is much reduced from the formal number of legislators. In our examples in this Article, the choice between supermajority and majority rule would be the same if the number of decisionmakers were 10 or fewer. We take the numerical examples from a more specialized and technical article that we have written about the Condorcet Jury Theorem and will reference these results in the rest of this subpart.145 Reducing the number of decisionmakers to more realistically reflect the measure of independence in a legislature has direct implications for the choice between majority and supermajority rule. According to the Condorcet Jury Theorem, as the number of decisionmakers who are more likely than not to make an accurate decision increases, decisionmaking under majority rule becomes more accurate, growing ever better than supermajority rule.146 But, conversely, as the number of decisionmakers declines, so too does the superiority of majority rule. Thus, if the nominal number of members of the legislature were the real number of independent decisionmakers, majority rule would have a decided advantage over supermajority rule. With a hundred-person legislature where everyone decided independently, that advantage would be pronounced

143. Commentators have also modified the mathematics of Condorcet to take account of correlated votes. See Dhammika Dharmapala & Richard H. McAdams, The Condorcet Jury Theorem and the Expressive Function of Law: A Theory of Informative Law, 5 AM. L. & ECON. REV. 1, 7 (2003) (suggesting that reducing the nominal number of legislators to a smaller number may help the operation of the Condorcet Jury Theorem reflect the reality that legislators vote in blocs rather than independently); see also Krishna Ladha, Condorcet’s Jury Theorem in Light of de Finetti’s Theorem: Majority-Rule Voting with Correlated Votes, 10 SOC. CHOICE & WELFARE 69 (1993). 144. The Republican Party can be thought of as consisting of social conservatives, libertarians, and old-line moderates. Similarly, the Democratic Party can be conceived of as traditional liberals, members of minority groups, and moderate Democrats. 145. See McGinnis & Rappaport, supra note 131 (manuscript passim). 146. This point is explicit in our discussion of the Condorcet Jury Theorem, but it has also been specifically made in the law review literature. See Lewis A. Kornhauser, Adjudication by a Resource Constrained Team: Hierarchy and Precedent in a Judicial System, 68 S. CAL. L. REV. 1605, 1627 n.43 (1995).

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indeed. But if we understand the number of independent decisionmakers to be much smaller, that advantage is much less substantial. Because majority rule enjoys a more modest advantage over supermajority rule in the real world legislature, other factors, like special-interest influence and the ratio of bad to good legislation, may reorder the choice between supermajority and majority rule. 3. The Distribution of Accuracy Rates.—Under our accuracy model, the accuracy rates of legislators determine whether they will vote for a bill. For instance, if legislators have an accuracy rate of 55 percent, each will vote 55 percent of the time for a good bill when good legislation is voted upon. If they have an accuracy rate of 55 percent for bad legislation, each will vote against a bad bill 55 percent of the time. Assume, as we will in this section, that one hundred good and bad bills are voted upon. Under majority rule with seven decisionmakers these accuracy rates would result in an expected 58 good bills passing and an expected 42 bad bills passing.147 A complication of an accuracy model is that it is difficult to determine the exact accuracy rate of legislators.148 Thus, in our analysis, we will assume initially that legislators are equally likely to have an accuracy rate of between 50 and 100 percent. We make this assumption because it is a premise of the Condorcet Jury Theorem and the epistemic theory of democracy that accuracy rates are over 50 percent.149 We thus compare supermajority and majority rule against a range of accuracy rates. In comparing majority to supermajority rule, we again assume a 60-vote supermajority rule. When accuracy rates run the range between 50 and 100 percent, majority rule should work better than supermajority rule. That result again follows directly from the Condorcet approach.150 Thus, under these circumstances majority rule is certainly preferable to supermajority rule. But, as discussed above, the advantage of majority over a mild supermajority rule is relatively modest because of the small number of actually independent decisionmakers.151

147. As noted, we take these from calculations in McGinnis & Rappaport, supra note 131 (manuscript at 17). 148. It is important not to make ad hoc assumptions about the accuracy rates, because as we have shown elsewhere, see id. (manuscript at 12), one can make either supermajority or majority rule superior by choosing particular accuracy rates. Second, it seems to us a fairer test of the beneficence of supermajority and majority rule if we assume that legislators are generally accurate, but not make further assumptions about just how accurate they are. It might be argued that legislators will not have accuracy rates in the very high range approximating 100 percent, but we believe they might have such accuracy rates when the legislative issue is very easy. Therefore, we leave such rates within the range of our model. 149. See supra notes 134–39 and accompanying text. 150. MUELLER, supra note 34, at 129. 151. See supra notes 143–45 and accompanying text.

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C. The Prevalence of Bad Bills 1. The Percentages of Bad and Good Bills Voted Upon.—In our accuracy model the relative beneficence of majority rule in comparison to supermajority rule is directly dependent on the percentage of bad bills in the total number of bills voted upon in the legislature. As more bad than good bills are voted upon, supermajority rule becomes more desirable, because more bad bills pass under majority rule than is blocked under supermajority rule. As the percentage of bad bills becomes substantially higher than 50 percent, supermajority rule may become better than majority rule.152 The importance of the percentage of bad bills can be made clear by a simple example. Assume that the accuracy rates of legislators are between 50 and 100 percent. If the legislature votes on 100 good bills and 100 bad bills, one would expect approximately 86 good bills and 13 bad bills to pass, resulting in net benefits of 73.153 Under supermajority rule, one would expect 76 good bills and only 6 bad bills to pass for net benefits of 70. Consistent with the Condorcet Jury Theorem when accuracy rates are over 50 percent, majority rule is superior. We summarize this relation in Table 1: Table 1 Legislation

Majority rule

Supermajority rule

No. good bills

86

76

No. bad bills

13

6

Net benefits

73

70

But if we double the number of bad bills voted upon to 200 and still permit only 100 good bills to be voted upon, we will come to a result more favorable to supermajority rule. Under majority rule one would expect 86 good bills to pass, but also 26 (2 times 13) bad bills to pass, for net benefits of 60. Under supermajority rule one would expect 76 good bills to pass, but also 12 (2 times 6) bad bills to pass for net benefits of 64. The supermajority rule has become better than majority rule. Because there is more bad legislation, the supermajority rule’s effect of blocking more bad legislation outweighs the Condorcet or aggregation benefits of majority rule. We summarize this in Table 2:

152. This point is recognized in the technical Condorcet literature. See Shmuel Nitzan & Jacob Paroush, Are Qualified Majority Rules Special?, 42 PUB. CHOICE 257, 271 (1984) (suggesting that supermajority rules may be advantageous if decisionmakers have accuracy rates above 50 percent, but that most proposals presented to decisionmakers are unlikely to improve the status quo). 153. The numbers in this section are taken from a technical analysis in McGinnis & Rappaport, supra note 131 (manuscript at 20).

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Table 2 Legislation

Majority rule

Supermajority rule

No. good bills

86

76

No. bad bills

26

12

Net benefits

60

64

This example shows the importance of the percentage of the total number of bills that are bad. It is to the determinants of that percentage which we now turn. 2. The Reasons for the Predominance of Bad over Good Bills.—In this section, we argue that it is plausible to believe that more bad than good legislation is voted upon in general and probable that more bad than good legislation is voted upon in certain categories of legislation. We thus provide another reason that supermajority rules may be better than majority rule under certain real world circumstances. In doing so, we show that an accuracy model offers a way to conceptualize what legislation is voted upon, making such a model more coherent and comprehensive than it would otherwise be. To see what legislation is voted upon, we look at the stages that legislation must pass through to obtain a final vote of the legislature. First, a piece of legislation must be introduced.154 Second, it must be passed out of a committee.155 We conclude that individual members of Congress introduce a substantially greater number of bad than good bills. Moreover, we explain that committees are not likely to filter out a sufficiently high percentage of bad bills to ensure that more good than bad bills are actually voted on. a. The Introduction of Bills.—Here we offer a theory concerning the introduction of bills that is based on the assumption of the accuracy model: Legislators introduce a bill mainly based on their view that it is in the public interest. Assuming that each legislator’s accuracy rate is greater than 50 percent, legislators would introduce more good than bad bills, if an equal number of bad and good bills were available to be introduced. That forces us to consider what bills are available to be introduced. Certainly, the pool of available bills would include all bills that are mentioned in the public sphere by the media, academics, special interests, and lobbyists. But the percentage of good bills in that pool, in turn, will depend on the percentage of good bills in the pool from which these opinion leaders draw their proposals. But to 154. See WALTER J. OLESZEK, CONGRESSIONAL PROCEDURES AND THE POLICY PROCESS 76– 79 (6th ed. 2004). 155. See JAMES VAN DER SLIK, AMERICAN LEGISLATIVE PROCESSES 208 (1977) (describing the basic committee process in which “bills get their closest scrutiny”).

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ascertain the percentages in that larger pool, we would need to look at even larger numbers of proposals from which those proposals are drawn and so on until in fact the universe of proposals is even larger—all proposals that might one day be seriously entertained in the public sphere. We believe that the set of all bills that might be seriously entertained in the public sphere are in fact mainly bad bills. After all, it requires some intellectual effort to come up with a good bill, whereas a random process would result in disproportionately bad proposals. Moreover, many of those whittling down the proposals for consideration by politicians, such as special interests and lobbyists, are likely to have systematic biases that lower their accuracy rates. Thus, we believe that legislators are likely to choose from a pool of substantially more bad than good proposals. The percentage of bad bills should be particularly high in some categories, such as possible constitutional amendments, because so few provisions would be desirable amendments. As a result, the pool of bills from which a member of Congress selects is mainly bad. Because each member of Congress can decide to introduce a bill on his own, this decision does not depend on the large number of decisionmakers that raises the collective accuracy rate under the Condorcet Jury Theorem. Thus, even if members have a modestly good accuracy rate themselves for recognizing the appropriate bills to be introduced, this can easily be overwhelmed if the pool of bills from which they select has a substantially higher percentage of bad than good bills. For instance, if a legislator considers twice as many bad as good proposals and has an accuracy rate of 60 percent, he will introduce 80 bad bills and 60 good bills for every 300 proposals he reviews. b. Substantive Committee Review.—We believe that substantive committee review of these proposals is likely to improve the mix of legislation considered by the legislature but not to dramatically transform it. There are several reasons that a committee provides only a weak screen against bad legislation. First, committee members generally choose to be on a committee in part at least to benefit themselves politically.156 They may be particularly susceptible to special-interest influences on the matter within their jurisdiction. Second, special interests are likely to have more influence over committees than the legislature at large, because there are fewer people on the committee to influence.157 Thus, they will likely concentrate substantial spending to get the bill through the committee and thus available 156. Thus, for instance, members from agricultural districts and states may have disproportionate representation on the agricultural committee. See KENNETH A. SHEPSLE, THE GIANT JIGSAW PUZZLE: DEMOCRATIC COMMITTEE ASSIGNMENTS IN THE MODERN HOUSE 259 (1978) (suggesting members of committees are unrepresentative of preferences of the entire House on issues before the committee). 157. Committees in Congress vary in size, but none comes close to being as numerous as the members of the legislature as a whole.

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for passage. Third, because a committee has fewer members than the general legislature, this reduced number will make the Condorcet aggregation effect, by which large numbers of decisionmakers improve the accuracy of the collective decision, less powerful, even if members’ individual accuracy rates are above 50 percent.158 Against these disadvantages, one might think members may develop expertise in the subject of their committee, improving their accuracy rates over time. Thus, it is certainly a judgment call to assess how accurate the substantive committee will be.159 Because of the greater special interest group influence and the narrower range of committee members, we believe it is unlikely that committees will be accurate enough to compensate for the larger number of bad bills introduced. Such high accuracy will be particularly unlikely in areas of legislation where special interests are powerful. Therefore, we believe that the percentage of bad bills voted upon by the legislature may frequently favor supermajority rule. It is useful to note the interaction of this factor with our previous discussion of agency costs. At times, the array of special interests may be sufficient in itself to justify a choice between supermajority and majority rule. If special interests are pervasively on the side of promoting a category of legislation, both our preference model and accuracy model suggest that supermajority rule may be preferable. Of course, if special interests predominantly oppose legislation, it is even more obvious that supermajority rule will be undesirable. But at other times the factors in favor of supermajority rule and those in favor of majority rule might be arranged so that the choice is a close one. Under those circumstances, a high percentage of bad legislation provides an additional factor in favor of supermajority rule and may result in our concluding that supermajority rules are desirable. In sum, the percentage of bad bills voted upon may provide a general force favoring supermajority rules, although of course it will not always be present or strong enough to be decisive. D. Risk Reduction In this Article, we have compared supermajority rule to majority rule on the basis of which rule produces the greater net number of good as opposed

158. Cf. Jonathan T. Molot, Reexamining Marbury in the Administrative State: A Structural and Institutional Defense of Judicial Power over Statutory Interpretation, 96 NW. U. L. REV. 1239, 1291 (2002) (suggesting that committees have less demographic diversity than Congress as a whole and are less likely to reach good decisions). 159. We recognize that this is yet another stage in the legislative process—the scheduling of bills on the floor. In the Senate, the majority leader is responsible for scheduling. In the House, the majority leader is responsible in conjunction with the Rules Committee. See OLESZEK, supra note 154, at 31–32. These institutions are by their nature quite partisan and we believe that they are unlikely to have high accuracy rates. In addition, the majority leader is a single individual and thus does not have the collective judgment that drives high accuracy rates under the Condorcet Jury Theorem.

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to bad laws. But one might also look at how much risk a voting rule imposes on the public. Risk-averse citizens might prefer a voting rule that led to fewer good laws if it imposed less risk.160 In this way, a voting rule may operate like an efficient form of insurance. Under an accuracy model citizens may experience risk because the accuracy rates of legislators may not be known. If legislators had a single, known accuracy rate, then one could predict the net number of good laws that they would generate under different voting rules. By contrast, if the legislators’ accuracy rate may lie anywhere in a range, there will be far more uncertainty about what the result of the voting rule will be. Moreover, if that range includes accuracy rates that are both above and below 50 percent, the risk would even be more pronounced, because the voting rules might then potentially produce either desirable or undesirable results. Supermajority rule, however, has the ability to reduce this risk. While supermajority rule may decrease the expected net number of good laws passed as compared to majority rule, the benefits provided by its risk reduction might outweigh the costs of its reduction in the net number of good laws. Thus, supermajority rule may serve an insurance function. We can illustrate how a supermajority rule might be beneficial, even though it reduces the net number of good laws passed, by considering the following situation. We assume that the accuracy rate of legislators (for both good and bad laws) is equally likely to be anywhere between 44 percent and 60 percent. Further, we assume that an equal number of good and bad laws are voted upon. From these assumptions, we can ascertain the number of bad and good laws that will be generated.161 In this situation, both majority rule and supermajority rule will produce more good than bad laws, but majority rule will produce a greater net number of good laws.162 Majority rule does better than supermajority rule when the accuracy rate is more than 50 percent, but does worse when the accuracy rate is less than 50 percent. Because there are more situations when the accuracy rate is above 50 percent, the expected net number of good laws will be greater under majority rule than under supermajority rule.

160. Risk-averse people would rather face a certain smaller loss than risk the possibility of a greater loss, even if the probability of that loss times its value is smaller than the certain loss. Individuals purchase insurance for that reason. See RICHARD A. POSNER, ECONOMIC ANALYSIS OF LAW 75–76 (2d ed. 1976) (explaining that “the insured exchanges the possibility of a loss for a smaller, but certain, cost”—the insurance premium—because to the risk-averse, risk itself is a cost). 161. We have generated the actual numbers in this section using the binomial distributions of the Condorcet Jury Theorem. We show the equations by which we do so elsewhere. See generally McGinnis & Rappaport, supra note 131. We emphasize that the actual numbers we generate in this example are much less important than the qualitative results we show: majority rule may generate more net good laws than supermajority rule, but with uncertainty supermajority rule may reduce risk better. 162. If both majority and supermajority rule produced more bad than good laws, society would be better off with a prohibition of legislation in the area where the balance was unfavorable.

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While majority rule produces a higher net number of good laws, supermajority rule reduces risk. The simplest way to illustrate this is to consider the range between the best (at an accuracy rate of 60 percent) and worst results (at an accuracy rate of 44 percent) under the different voting rules.163 Table 3 below describes the results for each of the two accuracy rates. Table 3 Majority rule

Supermajority rule

Accuracy

Good

Bad

Net

Good

Bad

Net

44

34

60

-26

21

42

-21

60

67

28

+39

50

16

+34

The table makes clear that the results under majority rule are more extreme than under supermajority rule. Under majority rule, the range is between net benefits of 39 and net costs of 26, whereas under supermajority rule the range is between net benefits of 34 and net costs of 21. Most significantly, the worst result under supermajority rule is better than the worst result under majority rule (-21 versus -26). Given that supermajority rule reduces risk, it is quite possible that citizens would prefer a supermajority rule to majority rule in a situation like this one. That supermajority rule eliminates the worst results produced by majority rule might be very valuable as insurance. Whether any particular supermajority rule will be preferred on these grounds will depend on how the trade-off between the net number of good laws and risk is valued. That will depend on various features, including the degree to which voters are risk-averse, the degree of risk that majority rule and supermajority rule involve, and the degree to which supermajority rule reduces the net number of good laws. In particular, as we argue below, the entrenchment of norms through the passage of constitutional provisions is one situation in which one cannot be certain the accuracy rates are over 50 percent. Moreover, because in entrenchment the stakes are higher, insurance is all the more desirable. Thus, the risk reduction characteristic of supermajority rules is particularly desirable for entrenched as opposed to ordinary legislation. IV. Entrenchment This Article has employed multiple perspectives to explore the choice between supermajority rule and majority rule to govern the passage of

163. The numbers are taken once again from calculations in McGinnis & Rappaport, supra note 131 (manuscript at 43–44).

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ordinary legislation. We now use this framework to explore which of these voting rules should apply to the passage of entrenchments. Entrenched provisions are the extraordinary kind of enactments, like constitutional provisions, that cannot be repealed by ordinary democratic processes. Stringent supermajority rules tend to apply to their passage. We show here that considerations from both the accuracy and preference models help justify the choice of supermajority rules for entrenchment. We thus explain a crucial aspect of constitutionalism—the generation of fundamental law by supermajority rules.164 One aspect of the accuracy model that supports supermajority rules for entrenchment is the low accuracy rates that legislators are likely to have for entrenched legislation under majority rule. Many factors produce these low rates, including both the difficulty of predicting the long-term results of entrenchments and the biases caused by partisanship. When accuracy rates are below 50 percent, majority rule is undesirable. Supermajority rule operates to raise these accuracy rates. It does so by increasing the attention that entrenchment proposals receive. It also helps to create a beneficial veil of ignorance under which citizens evaluate these proposals. Even if accuracy rates for entrenchment turn out to be over 50 percent, other factors may nevertheless make supermajority rule desirable. In the entrenchment context, the percentage of bad legislation voted upon is likely to be particularly high and supermajority rules may be beneficial under that circumstance. Supermajority rules also provide insurance against really bad results, and the possibility of low accuracy rates combined with the high stakes of entrenchment make insurance peculiarly desirable in this situation. The preference model also justifies the need for stringent supermajority rules for entrenchment. Within a preference model, partisanship can lead citizens themselves to choose to entrench policies they would not prefer because of the advantages to them of helping their party. Partisanship also moves legislators to favor entrenchments that citizens do not prefer because, as representatives of their party, they want to entrench their program before the other party does. Because of a similar kind of prisoner’s dilemma, a current majority is unlikely to give as much weight to consensus as it would like if it cannot be confident that other majorities will do the same. But a

164. This element of constitutionalism has generated vigorous debate. Compare Posner & Vermeule, supra note 17, at 1698–99 (suggesting that majoritarian entrenchment is advisable and constitutional), with John C. Roberts & Erwin Chemerinsky, Entrenchment of Ordinary Legislation: A Reply to Professors Posner and Vermeule, 91 CAL. L. REV. 1773, 1777 (2003) (suggesting majoritarian entrenchment is neither constitutional nor advisable), and John O. McGinnis & Michael B. Rappaport, Symmetric Entrenchment: A Constitutional and Normative Theory, 89 VA. L. REV. 385, 417 (2003) (same).

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stringent supermajority rule counteracts these effects, requiring entrenchments generally to enjoy bipartisan and consensus support.165 At times in this Part we discuss similar phenomena, such as partisanship and the veil of ignorance, under both the preference and accuracy models. We are not repeating ourselves but are instead looking at how similar factors affect the choice between majority and supermajority rule in very distinct models of the legislative process. That both the preference and accuracy models support the same result profoundly strengthens the case for entrenchment supermajority rules. A. The Nature of Entrenchment Entrenched enactments are not subject to repeal by the ordinary democratic processes. Constitutional provisions are the most important example of entrenchments. Once they are enacted into law, Congress cannot repeal them by passing a law. They can be repealed only by a constitutional amendment. Given that entrenchments cannot be easily repealed, one of their salient features is that they endure. This feature distinguishes them from ordinary legislation which is frequently repealed or amended. Their longevity also is a recurrent factor in understanding why supermajority rule is superior to majority for entrenchments. As we will explain, it is the enduring nature of entrenched legislation that makes majority rule work less well than it does for ordinary legislation both under the preference model and the accuracy model. We show that stringent supermajority rules are suitable to the enduring nature of entrenchment, because these rules can make the long-term nature of entrenchments work in favor of good enactments.166 We thus attempt to justify the decision to impose stringent supermajority rules for the passage of the original Constitution and constitutional amendments. B. The Accuracy Model Under the accuracy model, a stringent supermajority rule is desirable for entrenchments for three reasons. First, under majority rule several factors, including the weak ability of legislators to predict the future, are likely to reduce accuracy rates for entrenchments below 50 percent. While 165. We do not offer an analysis of entrenchment from the perspective of the spatial model because we do not believe that it adds substantial insights that cannot be drawn from the economicpreference model. 166. We are here considering entrenchments that can be repealed only by stringent supermajority rules, such as constitutional amendments. If entrenchments were subject to easier repeal, we would not recommend stringent supermajority rules for enactment. We have in fact suggested elsewhere that there should be a presumption that the voting rule for enacting an entrenchment should be symmetric with the rule applicable to its repeal. See McGinnis & Rappaport, supra note 164, at 426 (asserting that a symmetry requirement balances the costs of entrenchment, thereby increasing the quality of entrenching legislation).

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supermajority rule will not directly address these problems by, for example, improving legislators’ ability to predict the future, it will compensate for these defects by promoting a different set of factors, such as the veil of ignorance, that will raise entrenchment accuracy rates. Second, political partisanship also reduces accuracy rates under majority rule. Here supermajority rule will not merely compensate for this problem but directly correct it by requiring enough votes for the passage of legislation that only bipartisan legislation can be passed. Third, even if accuracy rates for entrenchment under majority rule are over 50 percent, the high percentage of bad proposed constitutional amendments presented to the legislature and the substantial need for insurance against bad results make supermajority rule desirable. 1. Compensating Factors for the Low Accuracy Rate for Entrenchment.—The accuracy model suggests that under majority rule, legislatures will have sharply lower accuracy rates for entrenchment than they do for ordinary legislation, quite possibly lower than 50 percent. If legislators have accuracy rates below 50 percent, more bad than good entrenched legislation will be passed. With such low accuracy rates, legislators would decide more often than not both to entrench legislation that should not be entrenched and not to entrench legislation that should be entrenched. Several factors will lead to a much lower accuracy rate for entrenchment than for ordinary legislation. First, individuals have a heuristic problem in evaluating the future: They are too disposed to believe that existing patterns will continue long into the future.167 This error can obviously reduce the accuracy rate for bad entrenchments—norms that should not be entrenched. Legislators are too likely to believe that a provision that provides current benefits will provide benefits in the future. For instance, citizens in 1789 might have thought it obvious that Congress’s power should be limited to “coining money,” not recognizing that paper money might in the future be a more suitable alternative.168 More subtly, this heuristic re167. The “representativeness” heuristic tends to make people extrapolate overconfidently about predicted characteristics of a class based upon a small sample size of which they happen to be aware. See AMOS TVERSKY & DANIEL KAHNEMAN, BELIEF IN THE LAW OF SMALL NUMBERS (1971), reprinted in JUDGMENT UNDER UNCERTAINTY: HEURISTICS AND BIASES 23, 24–25 (Daniel Kahneman et al. eds., 1982). If the sample consists of events rather than objects, the heuristic should tend to make people extrapolate in a similarly irrational manner from events of which they are aware to uncertain future events. Thus, individuals will tend to think that future events will resemble past events more than probability warrants. See Kenneth J. Arrow, Risk Perception in Psychology and Economies, 20 ECON. INQUIRY 1, 5 (1982) (suggesting that in the context of bond and stock markets, people tend to react excessively to current information when attempting to predict future events). For an important present-day application, see ROBERT J. SHILLER, IRRATIONAL EXUBERANCE 144 (2000), which uses work on the representativeness heuristic to suggest that people will think stock market patterns today will be those of tomorrow. 168. U.S. CONST. art. I, § 8, c1. 5 (providing Congress only with the “authority to coin money”).

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duces the accuracy rate for good entrenchments—norms that need to be entrenched. Legislators will be too likely to believe that entrenchment of a norm is not necessary because there are no current threats to the norm. For instance, in a period of financial stability, legislators might not recognize that pressures for destructive debt abrogation legislation may grow in the future.169 Second, the public can rarely appropriately assess the beneficence of entrenched legislation until their legislative representatives are long gone.170 The desirability of entrenched legislation does not turn merely on its immediate effect, but also on its longer run effects in changed circumstances. If the public cannot determine the accuracy of their legislators’ decisions until they are out of office, the legislators will be under less pressure to reach good decisions and their accuracy rates will fall for both good and bad entrenchments.171 Under the accuracy model, supermajority rule will operate to compensate for the low entrenchment accuracy rates. To begin with, supermajority rule for entrenchment helps to establish the conditions for a beneficial veil of ignorance. Because entrenched provisions cannot easily be repealed and therefore endure for long periods, citizens cannot readily know how these provisions will affect them in the future.172 Instead, they are more likely to consult the public interest in evaluating these considerations. For example, because people will not know whether the President will be from one party or the other, they will not favor or oppose presidential powers based on their belief that he will support or combat their interests. Instead, they will be forced to actually think about the allocation of powers that will support the overall public’s interests. While majority entrenchment will create a limited veil of ignorance because a supermajority is necessary to repeal the entrenchments passed under majority rule, this veil of ignorance will not function nearly as well as

169. Cf. id. § 10, cl. 1 (prohibiting states from “impairing the obligation of contracts,” whereas in modern America there exist justifiable reasons to impair the obligations of contract). 170. See WILLIAM A. NISKANEN, STRUCTURAL REFORM OF THE FEDERAL BUDGET PROCESS 6 (1973) (noting that, because information is expensive, people operate in “rational ignorance”). 171. Here we posit that there is an optimal level of accountability that promotes the highest accuracy rates for legislatures. The legislative process for entrenching measures, however, departs from that optimal level. Too little accountability lowers accuracy rates, because legislators, being only human, will be less disciplined in their judgments and make more errors. On the other hand, too much accountability can lower accuracy rates as well, as legislators will no longer exercise independent judgment on the basis of the better information that is available to them for fear that citizens will not reelect them on the basis of their inferior information. Thus, the best accuracy rate comes when legislators are neither let loose by the voters nor are kept on too short a leash. The long-term effects of entrenchment make it much harder for the legislative system to achieve this happy medium with entrenchment than with ordinary legislation. 172. See Michael A. Fitts, Can Ignorance Be Bliss? Imperfect Information as a Positive Influence in Political Institutions, 88 MICH. L. REV. 917, 922–23 (1990) (explaining that less information can help overcome stalemates by avoiding politically contentious issues and reducing self-interest in the decisionmaking process).

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the veil of ignorance does under a supermajority for entrenchments. As we discuss below, majority entrenchment rules would permit a majority to repeal entrenchments by threatening to entrench other matters even more unwelcome to the minority. This strategy of majoritarian threats would both weaken the veil of ignorance and also have undesirable side effects.173 A supermajority rule is also likely to raise accuracy rates by restricting the legislative agenda.174 Because of the higher hurdle for supermajoritarian passage, fewer entrenchments will be seriously considered and put up for a vote.175 But those that gain a place on the legislative agenda will consequently receive more attention from legislators, press, and the public.176 This greater scrutiny should raise accuracy rates as well.177 As a result of these compensating forces, supermajority rule may raise entrenchment accuracy rates to above the 50 percent level that legislators generally possess for ordinary legislation. If supermajority rules have this effect, they will deliver net benefits because more good than bad legislation will pass, even when majority rule would produce more bad than good legislation. 2. Correcting for Partisanship.—Under majority rule, partisanship can cause legislators to become biased and thereby depress their accuracy rates. Partisanship can have this effect for both rational and nonrational reasons. First, decisions made on the basis of partisanship may get high returns because they provide long-term benefits to the legislator and his party colleagues by increasing party cohesion and party competitiveness. It is this aspect of partisanship that introduces a rational bias in favor of bad entrenchments. Second, partisanship releases nonrational antipathies that may decrease accuracy rates as well. When legislators often vote on a party 173. See infra section IV(C)(4) (discussing the majority threat game). 174. It might be said that this argument proves too much because if the accuracy rates of legislators will be improved by more public deliberation, all legislation should be subject to a stringent supermajority rule that promoted deliberation. But within many categories of legislation, legislators already have high accuracy rates. Only because legislators have otherwise low accuracy rates in entrenchment do we need to improve them to assure that the legislative process has net benefits. 175. In fact, under the U.S. constitutional system, “only thirty-three proposals have been approved and sent to the states for ratification.” See CONGRESSIONAL QUARTERLY’S GUIDE TO CONGRESS 360 (2000). 176. See George Sutherland, Address Before the American Bar Association: The Courts and the Constitution (Aug. 1912), in S. DOC. NO. 970, at 6 (1912) (extolling the virtues of “sober reflection” encouraged by a “comprehensive system of checks and balances”). 177. In fact, one might think that the double supermajoritarian rule that exists in our Constitution increases the power of this effect. The Constitution requires that constitutional amendments be proposed by either two-thirds of both houses of Congress or by two-thirds of the legislatures of the states and be ratified by three-quarters of the legislatures or by conventions in three-quarters of the states. U.S. CONST. art. V. Very few constitutional amendments are proposed by Congress and sent to the states for ratification. This restricted agenda assures substantial scrutiny of the proposals and a rich stream of information about their merits, raising the accuracy rate of the state legislators who are to consider them.

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basis, an attitude of “us versus them” can develop that leads legislators to support legislation on the basis of the identity of its supporters rather than on its merits. This partisan bias lowers the accuracy rates for both legislation that should be entrenched and for legislation that should not be entrenched.178 Aberrational elections are likely to reinforce this partisan bias and to have an especially harmful effect on legislators’ entrenchment accuracy rates. A party may take office because of a scandal, like Watergate, or some other unique event, and proceed to entrench legislation on matters that are unrelated to the reason for its election.179 From the perspective of the accuracy model, aberrational majorities are likely to have a bias in favor of entrenching bad legislation. Because they recognize that they may lose their majority in the future when the fallout from the scandal subsides, they are likely to be biased in favor of entrenching matters that support their interests.180 This effect is particularly likely to reduce their accuracy rates for rejecting bad entrenchments. A stringent supermajority rule should directly correct for the reduction of accuracy rates caused by partisanship. First, it should be able to counteract the rational type of partisanship, because the more inclusive voting rule will make it almost impossible for one party to entrench without the assistance of legislators in the other party. Thus, it should raise the accuracy rate for bad entrenchments as the pressure to make bad entrenchments is tempered. A supermajority rule may even substantially increase the accuracy rate for good entrenchments by reducing nonrational partisan sentiments. If legislators recognize that they need members of the other party to make entrenchments, they are less likely to indulge in “us versus them” attitudes. As a result, they are more likely to cooperate in entrenching good norms. 3. Factors that Make Supermajority Rules Appropriate with Accuracy Rates over Fifty Percent.—Thus far, we have discussed reasons why legislators under majority rule may have accuracy rates less than 50 percent. While we believe that such low accuracy rates are quite possible, we recognize that it is impossible to be certain about the exact accuracy rate for entrenchment, even if we can be certain they will be lower than accuracy rates for ordinary legislation. But even if entrenchment accuracy rates turn out to be more than 50 percent under majority rule, other considerations may support a more inclusive voting rule for entrenchment.

178. It is true that partisanship may affect the accuracy rates with respect to ordinary legislation, but the effect will be more pronounced in the context of entrenchment. The stakes in entrenchment are so much higher than ordinary legislation that partisanship will be greater. 179. See Nathaniel A. Persily et al., The Complicated Impact of One Person, One Vote of Political Competition and Representation, 80 N.C. L. REV. 1299, 1321 (2002) (suggesting that a legislature may be unusually unrepresentative because of presidential coattails or other factors). 180. Legislators elected in such circumstances may also not reflect the views of the populous on a wide variety of issues. We do not take account of this aspect of aberrational elections here because it reflects a preference rather than accuracy model of legislative voting.

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The first consideration is the insurance rationale. As we discussed, citizens may be uncertain of the accuracy rates for a particular category of legislation, like entrenchment.181 If they believe the accuracy rates are on average likely to be higher than 50 percent but believe there is a nonnegligible chance that they will fall below 50 percent, they will employ supermajority rule to reduce the risk of very bad results in the latter circumstances.182 For instance, if the accuracy rate for entrenchment were equally likely to be any point between 44 percent and 60 percent, we have shown that supermajority rule would substantially reduce the risk of a very undesirable result. The risk experienced by citizens regarding the enactment of constitutional provisions and the corresponding need for insurance is likely to be higher in the entrenchment context than in the context of ordinary legislation for two reasons. First, problems such as predicting the future and partisanship contribute are greater for constitutional entrenchment than for ordinary legislation. Thus, citizens face a more substantial risk that the entrenchment accuracy rate will be below 50 percent and thus a correspondingly greater need for insurance. Second, these downside risks are exacerbated by the importance of entrenchment decisions. Entrenched constitutional provisions are difficult to eliminate. As a result, entrenched provisions are generally more important and have a greater effect than ordinary statutes. Thus, the passage of a bad entrenchment will be worse than the passage of a bad statute just as the passage of a good entrenchment will be better than the passage of a good statute. The higher stakes increase the range of results and the risk. Therefore, those stakes provide an even stronger rationale for citizens to obtain the insurance provided by supermajority rule for entrenchment than for ordinary statutes. The second consideration is the high percentage of bad entrenchment proposals that are voted upon by the legislature. This factor also favors entrenchment supermajority rules even if accuracy rates of legislators are over 50 percent. The entrenchment process is especially likely to generate more bad than good proposals to be voted upon, because so few proposals should be entrenched against changing circumstances. Thus, this factor also suggests that a supermajority rule for entrenchment is more likely to be warranted than for ordinary legislation. C. The Preference Model We now turn to the preference model. This model offers complimentary reasons for why an entrenchment supermajority rule is desirable and thus strengthens the overall case for the rule. First, within the

181. See supra note 160 and accompanying text. 182. See supra notes 161–63 and accompanying text.

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preference model, supermajority rules correct for ill effects of partisanship by making it extremely difficult to entrench partisan provisions. Second, they promote the consensus constitutional provisions that citizens tend to prefer by assuring that only entrenchments with substantial consensus can be enacted. Third, by perfecting a veil of ignorance, they encourage citizens to take account of intense minority preferences, leading to more efficient entrenchments. In particular, they frustrate a strategy by which majorities under majority rule would likely threaten minorities with the entrenchment of legislation that neither the majority nor the minority truly want. 1. Partisanship.—The first reason within the preference model for stringent supermajority rules lies in the effect of partisanship, which is pervasive in our political system.183 While partisanship reduces accuracy rates within the accuracy model, within the preference model it causes citizens to support policies they would not substantively prefer. Because political parties make it easier for citizens to further their political preferences, citizens will often support their party’s goals out of strategic party loyalty, even when they would oppose those goals in the absence of parties. This phenomenon should not be classified as an agency cost, because partisanship becomes part of the preferences of citizens. But it is not a primary preference, only a strategic one. Citizens would be better off if the political process were structured so that they could achieve their primary preferences rather than their strategic preferences. Indeed, they adopt strategic preferences only as a means of achieving their primary political preferences. Partisanship also creates agency costs, because legislators are influenced to vote for the interests of their party rather than the interests of their constituents.184 Just as obtaining the support of special interests brings

183. The problem of partisanship entrenchment has been recognized in the legal literature largely in the context of stacking the Court with partisans of one party. See, e.g., Michael Gerhardt, The Constitution Outside the Courts, 51 DRAKE L. REV. 775, 789 (2003). We agree that this is a problem. To correct it, we have recommended a supermajority confirmation rule for Supreme Court appointments. See McGinnis & Rappaport, Judicial Filibuster, supra note 98, at 280 (predicting that a supermajority confirmation rule would result in the confirmation of more centrist candidates). But majoritarian entrenchment by the legislature would present a more extreme version of the same problem, because it is likely easier for legislators to coordinate on a present entrenchment than for the President and his party to assure that judges they appoint will do so in the future. 184. To be clear, we recognize that partisanship may decrease agency costs overall. As we have noted, citizens are rationally ignorant of politics and may need simple signals to guide their voting. Parties provide these. See Rick A. Swanson & Albert P. Melone, The Partisan Factor and Judicial Behavior in the Illinois Supreme Court, 19 S. ILL. U. L.J. 303, 305–09 (1995) (showing that partisan identification of judges helped voters cast a more informed vote). But if parties reduce agency costs by packaging information in understandable form, parties also introduce agency costs, because the interests of parties and their leaders, like any institution and its leaders, are different from the people they represent. Thus, we may reduce agency costs both by encouraging parties and introducing voting rules that control the pathologies of parties.

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advantages to a legislator, so does retaining the support of his party.185 Partisanship thus facilitates the passage of legislation that is helpful to his party, regardless of whether it benefits the legislator’s constituents.186 Under a majority entrenchment rule, legislators and citizens alike will have partisan reasons for supporting entrenchment because of a race to entrench: Each party fears that the other will entrench its agenda unless it entrenches its own agenda first. If one party entrenches its agenda under majority rule, the other party cannot repeal those entrenchments when it comes to power. This race will cause citizens and legislators to support entrenchment proposals that are not in accord with the primary preferences of citizens. For instance, legislators from one party might decide to entrench low taxes and low debt to make it harder for the other party to entrench entitlements, even when, in the absence of the strategic considerations created by partisanship, their constituents would prefer the entrenchment of neither low taxes nor entitlements. Thus, there will be systematically more votes in favor of entrenchments than citizens would prefer based on their primary preferences.187 As a result, majority rule will not translate entrenchment preferences into entrenchment votes.188 Supermajority rule would be able to counteract the costly tendency to partisan entrenchment, because it will make it almost impossible for one party to entrench without the support of some members of the other party. In fact, a strict supermajority rule resembling the double supermajority rule for amendments in our own Constitution might be justified, because it achieves that end. One party may achieve a 60 percent majority in both houses of Congress, but it will be rare that a party will achieve a two-thirds majority in both houses of Congress. It will be rarer still to achieve that feat and control

185. Just as special interests have disproportionate influence from their organizational structure, so do party organizations. As a result, legislators take party politics into account as much as the objectives of special interests groups. See generally GARY W. COX & MATHEW D. MCCUBBINS, LEGISLATIVE LEVIATHAN: PARTY GOVERNMENT IN THE HOUSE 125 (1993) (discussing the role of party leaders in determining legislative votes). 186. See ROGER H. DAVIDSON & WALTER J. OLESZEK, CONGRESS AND ITS MEMBERS 271–82 (2000) (discussing various forces on legislators to vote with their constituency and their party). 187. It might be argued that parties could avoid the prisoner’s dilemma created by majoritarian entrenchment simply by entrenching a prohibition on matters that the other party would entrench when it came to power. One difficulty with this strategy is that a party cannot necessarily predict the full range of measures the other party will want to entrench and thus faces far more uncertainty in determining what entrenchments to prohibit than in determining what entrenchments to make. For instance, one party may seem to be interested in entrenching health care entitlements. While that entrenchment could be prohibited, when that party comes to power it might desire to make a different entrenchment. Given the difficulty in blocking the other party’s desired entrenchments, the majority party may decide it is more attractive to entrench an item central to its own party’s ideology. 188. In the context of ordinary legislation, partisanship will still be present, but the strategic considerations it creates will not distort the preference model as much as it does in the context of entrenchment. Ordinary legislation can be repealed much more easily than entrenched legislation. As a result, there is less of a premium on passing legislation.

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three-quarters of the state legislatures. Thus, a stringent supermajority rule should largely prevent partisan entrenchments. Of course, it is true that, as in the case of our preference model for ordinary legislation, the supermajority rule will block good entrenchments— entrenchments that reflect the preferences, on balance, of their constituents. But as with ordinary legislation, a high proportion of good entrenchments are likely so obviously good that they can get the overwhelming support needed to be entrenched. Examples of provisions that have been generated by the supermajority rules of our constitutional system include rights of due process and free speech.189 2. Encouraging Consensus.—Another reason for stringent supermajority rules is that they help to ensure that the Constitution is supported by a consensus of the people. A broad consensus for the Constitution helps to foster legitimacy, allegiance, and even affection as citizens come to regard the entrenched norms as part of their common bond.190 Consensus support is especially important in a pluralistic nation like the United States, since a constitution with consensus support helps individuals transcend their differences, like ethnicity or geography, making them citizens of a single nation.191 In contrast, constitutional provisions that lack consensus can create divisions within the polity. Substantial minorities opposed to constitutional provisions will be distressed that the fundamental principles they oppose are placed beyond the reach of ordinary democratic politics and therefore are unlikely to be repealed. Supermajority rules guard against this minority alienation and thus also protect the majority from the possible disharmony caused by it. For these reasons, substantial majorities of citizens and legislators alike are likely to prefer constitutional provisions that represent consensus judgments. But majorities face a prisoner’s dilemma in expressing this sensible preference. If the current majority refrains from entrenching a norm that has majoritarian but not consensus support, it cannot be confident that a different majority in the future would be similarly restrained. Even if the majority believes that it would be better off entrenching only those provisions it favors that also have a consensus, such self-restraint could lead 189. One reason that good entrenchments tend to command overwhelming support under both the preference and accuracy models is that they are passed under a veil of ignorance. The veil of ignorance militates against the kind of parochial interests that oppose even good legislation in the public interest. 190. See Andrew Arato, Forms of Constitution Making and Theories of Democracy, 17 CARDOZO L. REV. 191, 224–26 (1995) (noting the advisability of consensus in constitution making and its existence in the United States and various foreign constitutions). 191. See Christopher L. Eisgruber, Is the Supreme Court an Educative Institution?, 67 N.Y.U. L. REV. 961, 1019, 1032 (1992) (describing the educative function of constitutional interpretation and the symbolic importance of Supreme Court decisions capable of helping people “realize what republican government can do” and settling disputes that concern the “meaning of American identity”).

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to the worst of all possible worlds if other majorities did not exercise similar restraint. Under those circumstances, the only provisions entrenched would be those that the prior majority opposed. Supermajority rule, however, permits the entrenchment of legislation only with consensus, avoiding this prisoner’s dilemma.192 3. The Veil of Ignorance.—The veil of ignorance perfected by supermajoritarian entrenchment has the ability to cure another defect of majority rule in the preference model. In our preference model, while we first assumed that legislators (and their constituents) had the same intensity of preferences, we also considered the effect of the more realistic view that legislators (and their constituents) sometimes had different intensities of preference.193 For instance, a majority may find some religious practices distasteful and mildly prefer that they be banned. But the minority that engages in these practices may intensely prefer that they be permitted. In this circumstance, permitting majority entrenchment would lead to inefficient legislation.194 The advantage of a veil of ignorance is that it makes it harder for citizens to know what their preferences will be in the future. They may therefore not know whether they will be in the intense minority or the mild majority. As a result, in the supermajoritarian entrenchment process citizens are likely to take the intense preferences of minorities into account because they recognize that they may have minority preferences at some point during the lengthy period an entrenched provision will last. Accordingly, provisions that emerge under a supermajority entrenchment rule are likely to reflect minority interests, such as provisions protecting the rights of religious minorities. It is no accident that the process for producing constitutional provisions in the United States has generated rights for religious, economic, and political minorities. 4. Avoiding a Majoritarian Threat Game.—The central reason that supermajoritarian entrenchment is necessary to perfect the veil of ignorance lies in the majoritarian threat game that would occur under majoritarian entrenchment. Majoritarian entrenchment would allow majorities to engage in an undesirable practice of making strategic threats. Assume that a 192. Even in the absence of a prisoner’s dilemma, it would be a naive view of human political psychology to believe that members of a majority would choose to refrain from entrenching positions without being given confidence that subsequent majorities would be similarly restrained. They would think such unilateral restraint unfair to themselves. 193. See supra notes 75–90 and accompanying text. 194. For ordinary legislation, this assumption of equal intensity of preferences may still be workable because of vote trading. As we have noted, vote trading permits individuals to trade their votes on matters where they have mild preferences to obtain the votes of others on matters where they have intense preferences. See supra note 78 and accompanying text. But for entrenched legislation, vote trading is less likely to temper differential intensity of preferences. This is in part because there are many fewer constitutional provisions and less room for vote trading.

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majority lacks the supermajority of votes needed to repeal an entrenchment. The majority could find some issue that the minority would dislike even more than repeal of the entrenchment and threaten to entrench that legislation. This is a particularly powerful kind of threat given the high stakes of entrenchment. The majority might then gain support for repealing the entrenched provision as the price for giving up its threat of entrenchment. The majoritarian threat game would have three unfortunate results. First, to keep their threats credible the majority might have to entrench some legislation that they did not desire. Second, when their threats were successful, entrenched legislation would be repealed without real consensus support. These threats would undercut the benefits of entrenchment, such as the reliance and stability they can promote. Third, it would erode the veil of ignorance under which citizens evaluate entrenchments because citizens would not be as certain they would endure. Supermajority rule eliminates the majority threat game that would flourish under majority rule and so makes it more likely that entrenchments will prove beneficial. V.

Conclusion

The choice between supermajority and majority rule confronts the designers of any constitutional system. This Article has offered guidance about this fundamental choice. For ordinary legislation, a key consideration is the influence of special interests. When special interests use their influence to pass legislation, some form of supermajority rule is likely to be beneficial. But when special interests oppose the passage of legislation, supermajority rule is likely to be detrimental. These results derive from all three of our models. The accuracy model also highlights that the quality of the bills legislatures vote upon is also important. When they vote on more bad than good bills, supermajority rule tends to be beneficial. Stepping back from the details of these models, one can also draw broader conclusions about the relative roles of majority and supermajority rule. For ordinary legislation, supermajority rule is beneficial when there are systemic biases in the legislative process that, on balance, favor the passage of legislation that is undesirable, whether desirability is defined in terms of preferences or some more objective metric. In the preference world, special interests introduce bias by virtue of the additional leverage they enjoy compared to the average citizen. In the accuracy world, bias is introduced when the legislature gets a greater stream of bad than good legislation to vote upon. In both situations, supermajority rule can counteract bias and return us to a position more equivalent to majority rule in an unbiased world. While the same framework of analysis applies to ordinary and entrenched legislation, the factors that influence the choice of voting rules for entrenchment differ. The principal considerations favoring supermajority rule for entrenchments are uncertainty and the encouragement of cooperation. The relative permanence of entrenched legislation would en-

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courage majorities to entrench partisan and controversial legislation even against their real preferences unless they could be sure that subsequent majorities would be prevented from doing the same thing. Supermajority rule prevents parties from enacting their partisan agendas and assures that constitutional provisions have the consensus support necessary to obtain the allegiance that makes them a fit framework for government. Supermajority rule with respect to entrenchment is also related to uncertainty. Because citizens are less certain that their legislators will make sound judgments concerning entrenchments, they have more reason to obtain the insurance that supermajority rule provides against the really bad results that could occur under majority rule. Supermajority rule also creates a beneficial kind of uncertainty in the entrenchment process, because citizens will be less able to predict how entrenched provisions will affect them in the long run. This veil of ignorance increases the chances that entrenchments will not represent parochial concerns but rather the long-term interests of the nation. It is a great mistake to believe that the quality of government lawmaking is fixed. Getting the choice between supermajority and majority rule right improves the output of government no less than getting the choice between property and liability rules right improves the efficiency of private transactions. A structure of voting rules that better responds to the central features of modern democracy, like special interests, will foster a superior government and a more prosperous society.