COUNTING THE MANY: THE ORIGINS AND LIMITS OF SUPERMAJORITY RULE
by Melissa Schwartzberg. New York: Cambridge University Press, 2014. 248pp. Paper $29.99. ISBN: 978-0-521-12449-2.
Reviewed by G. Alan Tarr, Department of Political Science, Rutgers University-Camden, tarr[at] camden.rutgers.edu.
COUNTING THE MANY is divided into two parts, each of which can stand on its own. In the first part of the book, Professor Schwartzberg discusses the origin of supermajority rules, which she traces back to ancient Greece, and shows how the arguments in favor of such rules developed over time, with particular emphasis on the contributions of Condorcet and Rousseau. In the second part of the book, she critically assesses the arguments offered in favor of supermajority rules, particularly as an alternative to majoritarian decision-making. Her broad conclusion is that supermajority rule in an institution, by weighing unequally the votes on opposing sides of a contested issue, “is an affront to members’ dignity” because “it fails to treat members with equal respect” by presuming that their judgments are not of equal merit (p.7). She recognizes that the desirability and defensibility of supermajority rules may vary depending on context, noting in particular their usefulness in jury decision-making. But she disputes many of the arguments in favor of supermajoritarianism and insists that there are alternative means for attaining the ends it is designed to serve.
Schwartzberg finds, interestingly, that supermajoritarianism arose as an alternative to unanimous rule, not majority rule. She notes that “the choice among majority, supermajority, and unanimity rule only emerges after a prior decision to count votes” (p.19). The earliest political decision-making was consensual, decision by acclamation rather than aggregation, and sought to discover the sense of the community rather than the views of the various persons within it. But consensual decision-making provided no mechanism for dealing with disagreement, prompting a shift to voting that began with the Spartan gerousia (council of elders) and later was found in the jury and assembly in ancient Athens. Having determined that votes were to be counted, the question arose as to what sort of majority would be required to authorize action. Super-majority requirements first appeared with the jury in republican Rome, but Schwartzberg suggests that “their true golden age began in the twelfth century”(p.49). In religious elections during that era, voters came together so that the will of God might be expressed through them. This encouraged unanimity as a decision-rule, but in practice divisions and consequent schisms led to the adoption of super-majority rules, exemplified in the decision to institute a two-thirds rule for the election of popes. This shift to supermajoritarianism acknowledged that “a rule capturing the attractively communal nature of the unanimous decision while acknowledging human fallibility needed to be implemented” [*389] (p.61). Thus once again supermajority rule emerged as an alternative to unanimity rule, not majority rule.
Since the eighteenth century, however, supermajority rule has required a defense against majority rule as well. In support of supermajority rule, Condorcet argued that supermajoritarianism elevated the quality of citizen decisions by ensuring adequate deliberation and that it was particularly crucial in contexts in which the consequences of one choice were far graver than the consequences of the other choice (e.g., in jury deliberations in a criminal trial). More recent proponents of supermajority rule have argued its usefulness in stabilizing institutions, ensuring broad-based consensus for important changes, and protecting vulnerable minorities. Schwartzberg critically examines each of these arguments in the second part of her book.
Schwartzberg admits the benefits of institutional stability, such as providing a security of expectations and an entrenchment of rights, and acknowledges that supermajority requirements may promote greater stability than would simple majority rule. However, she notes that there are costs to stability as well, that some changes might promote a more just society, and that supermajority requirements might block such changes. As examples, she points to the senatorial filibuster, which was used to block civil rights legislation, and to the supermajority requirement that prevented ratification of the Equal Rights Amendment. Moreover, she notes that there is no guarantee that supermajority requirements will impede unwise changes but allow wise ones.
Schwartzberg also challenges the notion that supermajority requirements ensure that more fundamental changes are undertaken only with widespread societal agreement. She rightly questions how far one is to take this search for agreement, noting that there is simply no principled basis for deciding what sort of supermajority (two-thirds? three-quarters?) is to be required. Furthermore, the aim of broad agreement is better served by promoting deliberation than by mandating a level of agreement for the adoption of proposals. She also questions, citing the research of Bruce Ackerman and others, whether supermajority requirements have in fact produced constitutional amendments reflecting a societal consensus or rather amendments reflecting dominant but hotly contested views in the society.
Finally, Schwartzberg disputes the claim that supermajority requirements are justified because they protect vulnerable minorities, arguing that such requirements are more likely to protect the “wrong minorities” – that is, those that are already powerful. This is so, she contends, because “there is little reason to think that supermajority rules will emerge to protect disadvantaged minorities, unless they are sufficiently powerful to get a seat at the bargaining table during the design of constitutional or legislative institutions” (p.143).
Schwartzberg’s alternative to supermajoritarianism is what she calls complex majoritarianism. This might include the development of political conventions that discourage transient majorities from seeking to advantage themselves at the expense of their political opponents. It definitely includes [*390] procedural requirements that encourage delay, deliberation, and a sober second look before the majority will becomes law. Schwartzberg notes that multiple votes on proposals – for example, requiring proposed amendments to be approved in two legislative sessions and then submitted to the people for their ratification – ensure greater stability than supermajority rules, citing the research of Donald Lutz and others on constitutional amendment in support of her conclusion.
There is much to be learned from Schwartzberg’s volume, but some questions require a more developed response than she provides. First, why is it an “affront to members’ dignity” to operate under supermajoritarian rules if those rules have been adopted by the members themselves as a check on themselves? Second, is the strong distinction she seeks to draw between supermajoritarianism and complex majoritarianism really a difference in principle? Whether one requires for enactment a supermajority or simple majorities at two points in time, the result is that the majority at the first point in time is unable to enact its will into law. Moreover, insofar as the two majorities requirement operates for some decisions but not for others, the conclusion one might draw is that a simple majority of “members” is to be trusted in some contexts but not in others. That certainly seems as much of an “affront to members’ dignity” as does supermajoritarianism. Yet if “supermajoritarity rules are not normatively unproblematic” (p.205) but simply, with majority rules, an alternative mechanism for promoting just and effective government, then the choice between these decision-rules is a prudential one, depending on circumstance, not freighted with the concerns Schwartzberg identifies. It may be, as Schwartzberg argues, that complex majoritarianism can solve many of the problems that lead constitutional drafters to adopt supermajoritarian rules. But that is different from her conclusion that “if the core of democracy is a set of institutions designed to resolve disagreement, then the democratic threshold must be majority rule” (p.216).
Copyright 2014 by the Author, G. Alan Tarr