When Consensus Is Not Democracy : Legislature’s Need for Two-Thirds Approval Stymies Majority

A recent vote in the California Legislature revealed two flaws in our state’s legislative process.

The vote concerned insurance legislation. The bill in question was aimed at keeping automobile insurance companies from abandoning the California market. It would have imposed stiff penalties on insurers who arbitrarily canceled auto insurance policies.

The press reported, accurately, that the bill failed, despite the fact that it received 47 “aye” and only 23 “no” votes. The bill failed because it was an “urgency” measure that would take effect immediately, and urgency measures require approval by two-thirds of the full 80-member Assembly.

So 47 votes were not sufficient to win approval, although the total was six votes more than a majority (41) of the full Assembly and more than two-thirds of the votes cast.

Urgency measures are not the only ones requiring a two-thirds vote. So, too, does the budget bill, any bill that contains an appropriation, constitutional amendments (which must also be approved by the voters), and most measures that amend an initiative passed by the voters.

It’s understandable that many voters would support the two-thirds approval requirement. It promotes consensus. At a time when citizens seem wary of government and politicians, the two-thirds rule appears to offer valued protections against intemperate or hasty action by majorities.

But that analysis ignores other impacts. The two-thirds approval rule is heavily biased against government action and, consequently, is likely to promote stagnation and stalemate.

A review of current realities in California politics is illustrative of this conclusion. The hallmarks of our politics today are drift, stagnation and an inability to even address, let alone resolve, critical public- policy problems. Our problem is not--as is so often feared--that government is doing too much; it is that government can barely do anything at all. In one area after another--transportation, long-term health care, political reform, insurance--the Legislature has clearly failed to produce viable public policy. One reason for many of those failures has been the two-thirds vote requirement.

Democracy does not mean consensus. Consensus politics--while perhaps appropriate for compelling agreement on fundamental principles--does not necessarily promote government accountability or responsiveness. In fact, by favoring inaction or compromise, it tends to obscure accountability and stifle responsiveness.

This is especially true in a democratic system such as ours that already is well endowed with protections against potentially irresponsible majorities. For legislation to win approval in California, it must, in most cases, win approval in four committees and two houses. Additionally, it must be signed by a governor who, in many cases, represents a different party, or at least a different political point of view.

Few democratic systems anywhere provide as elaborate a set of protections--we call them checks and balances--against unwise action by majorities. The further protections offered by so many two-thirds vote requirements are clearly excessive.

The second flaw revealed in that 47-23 vote is the current definition of a winning legislative margin. A winning margin is a majority or two-thirds approval of the total membership of the legislative body rather than of those members actually voting. By this definition, an abstention is a “no” vote, and it is all too common for state legislators to avoid responsibility for voting against measures by not voting at all.

On the insurance measure vote that--rightly or wrongly--probably had broad public appeal, only 23 Assembly members voted against the insurance measure. More than two-thirds, 47, of those voting supported it. The bill failed because the 10 legislators who didn’t vote were, in effect, voting “no.” Among other things, their abstentions obscured accountability and denied constituents knowledge on where their representatives stood on the issue.

By way of contrast, the U.S. Congress follows different winning margin rules. Two-thirds votes are required only in specifically defined circumstances including convictions in impeachment proceedings, veto overrides and approval of treaties.

Most of the significant acts taken by Congress, including approval of Supreme Court nominations, all tax and spending bills and even declarations of war require only majority votes, and significantly, majorities not of the full membership, but of those present and voting. Abstentions in Congress are abstentions. Those not voting don’t count. The majority of those voting wins.

Today, public disenchantment with politics and politicians is high. Consequently, it is understandable that there exists broad support for procedural protections that favor inaction and consensus politics. But in fact, those procedures often lie at the heart of modern government’s failure to respond effectively to pressing public policy issues. In a sense, we may be trying to cure our failures by relying on their causes.