The Reasons for Extramajoritarian Rules
posted by Gerard Magliocca
The other day I discussed my interest in extramajoritarian rules, which are extraordinary procedures that a majority with a high preference intensity can invoke to overcome minority obstruction. Before I describe some additional examples, I want to explain why these rules exist but are used infrequently.
One answer is that large institutions need to delegate authority to function. Take a familiar example–a federal circuit court of appeals. Circuits work better if they hear cases in panels of three. Having the entire court hear every case would be highly inefficient. Using panels, though, raises the possibility that a panel will issue a decision that a majority of the court disagrees with. Up to a point, this will be tolerated. At a certain point, though, a majority will invoke the en banc machinery. How often this happens varies from circuit to circuit depending on its peculiar culture. The Ninth Circuit takes this one step further by delegating en banc decisions to a larger panel, subject to a “super en banc” hearing of the entire court, which is really rare.
Congress adopts a similar practice with respect to committees. Legislation generally needs to be approved by the relevant committee or committees before it can proceed to the floor. Once again, this is a structure that promotes efficiency. But there can be outlier committees or committee chairs. If that deviation from the median preference is too great, then the majority can use a discharge petition or (through the majority party leadership) force the bill to the floor. To the extent that the majority party requires a majority of its caucus to approve anything that goes to the floor–the Hastert Rule–the discharge petition also ensures that too great a deviation from the median preference will not stand. In that case, though, party discipline acts as a powerful constraint, which explains why you don’t see many discharge petitions in the modern Congress.
A second answer is that an institution wants to protect minority rights. The structure of the Senate is the classic example. Requiring unanimous consent for many actions is a way of protecting each Senator’s right to speak and receive due consideration. (The filibuster does the same thing for the minority party.) But this too has a limit if the perception develops that the minority is abusing its rights. Hence, the nuclear option. A more extreme case would be state legislators walking out out the chamber to prevent a quorum (when more than a majority is required), which can be answered by keeping the body in session or making efforts to compel attendance. (Or in the case of Texas, calling a special session when the minority runs out the clock on legislation in the prior session).
Next time I’ll talk about set of examples that involve federalism concerns and the power of a national majority to override local minorities.