When a majority is not enough

Nicholas Goldberg is the deputy editor of The Times' editorial pages.

It is one of the many oddities of California law that in order to pass a state budget or raise taxes, the Legislature must win two-thirds approval in both houses. This unusual "supermajority" rule is a big part of the reason the Legislature has missed the legal deadline for a new state budget in 16 of the last 20 years, and why gridlock so often seems to rule the day in Sacramento.

It is another oddity of California law that sweeping constitutional change can be accomplished with nothing more than a simple majority vote at the ballot. Proposition 8, for example, the constitutional amendment that banned gay marriage in the state, passed with just 52% of the vote.

Does it make sense that passing a budget or a tax hike is so difficult while fundamental changes to the state's foundational document can be made so easily? Below, some questions and answers to help understand our unusual system of supermajority voting rules and when they do and don't apply.

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Why do we need supermajorities? Doesn't majority rule?

Not always. Legislatures, parliaments and congresses around the world have long known that 50% plus one isn't the only way to make a democratic decision. Some decisions are so momentous that they ought to be made unanimously (jury convictions, for instance), while others are so minor they require just a plurality.

Supermajority rules are those that call for more than 50% support but less than unanimity. Often they require two-thirds of the voters (the fraction needed to override a veto by the president of the United States); other times it's three-fifths (the votes required to call an end to a filibuster in the U.S. Senate or to pass a substantial matter through the United Nations Security Council).

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Who came up with this idea?

No one you know. Supermajorities go back at least to jury deliberations in classical Rome. A thousand years later, the medieval church adopted a two-thirds supermajority rule for ecclesiastical elections, including the election of a pope (a rule that is still in place despite Pope John Paul II's effort to change it in 1996).

The U.S. Constitution had to be adopted by nine, rather than six, of the 13 Colonies before it went into effect, and amending it is doubly difficult, requiring supermajorities at two stages: There must be a two-thirds vote of Congress to propose an amendment, and then three-fourths of state legislatures must ratify it.

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What's the point of these rules?

Obviously, they make it substantially more difficult to reach a decision. That means some proposals fall by the wayside, but those that ultimately get passed do so with broader support. Most political theorists agree that consensus makes for stronger, more durable law.

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So what's the downside?

For one thing, supermajorities make it harder to achieve good change as well as bad. If you support, say, the federal Equal Rights Amendment, which could never win more than 35 of the 38 states that were necessary for approval, then a supermajority requirement might be a bad thing.

In practice, supermajorities allow a minority to block the preference of the majority. James Madison, the architect of the U.S. Constitution, worried about the tyranny of the majority over the minority, but he recognized that the opposite was also disconcerting. He wrote in the Federalist Papers that supermajorities could cause "the fundamental principle of free government" to be reversed. "It would be no longer majority that would rule: the power would be transferred to the minority," he wrote. "... An interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences."

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How does all this relate to California?

Totally! Directly! Madison might as well have been writing about Sacramento today. The rule that requires two-thirds approval for raising taxes or passing the budget has certainly put power in the hands of a relatively small GOP minority in recent years, allowing them to delay the budget and to extort "indulgences" in return for the three measly votes in each house that the Democrats need to win over.

Last month, for instance, the Legislature found itself paralyzed once again, haggling endlessly but unable to win the necessary two-thirds. In the end, Sen. Abel Maldonado (R-Santa Maria) traded his yes vote for a whole series of promises, including a ballot measure allowing open primaries. The two other Republican votes were bought at a cost of weakening state environmental regulations.

In theory, the two-thirds rule on the budget and taxes should encourage compromise and moderation. But in practice, because of partisanship, the rule has led to long stalemates at great cost to the state. Political scientists who study supermajorities have called this the "holdout" principle.

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So supermajority rules are bad?

That depends on where you sit. Groups in the minority -- Republicans in California, for instance, but conceivably Democrats at some point in the future -- would not want to give up the two-thirds rule.

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When is a supermajority rule desirable?

When you want to discourage change. Which brings us to the subject of the California Constitution.

Constitutions are intended to express enduring, bedrock principles. Though many people believe that they can be interpreted in new ways as the years pass, they're generally not expected to be rewritten on a too-regular basis. Yet the California Constitution, unlike the U.S. Constitution with its double-supermajority requirement, can be changed extremely easily. A constitutional amendment -- even one that changes the most sacred ideas in the text -- can be put on the ballot by gathering signatures equal to 8% of the voters in the last gubernatorial primary. Then, if a simple majority votes for it, it's in. That's what opponents of Proposition 8 were complaining about last month to the California Supreme Court.

The result is that the California Constitution is, as three professors pointed out on The Times' Op-Ed page last month, "a bloated mishmash." It is eight times longer than the U.S. Constitution and marred by "obfuscation, clutter and dysfunction." Article 13, Section 10, for instance, deals exclusively with the tax treatment of nonprofit golf courses.

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So why does California make it so hard to pass a budget but so easy to amend the Constitution?

Because of two conflicting strains in the state's political culture.

One is the turn-of-the-century progressive tradition. The Progressives, led by Gov. Hiram Johnson, believed that the Legislature had been captured by special interests. So they encouraged "direct democracy" by adopting the initiative, referendum and recall in 1911. At the same time, they also allowed the people to pass a constitutional amendment at the polls with just a simple majority.

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What's the other strain?

California's longtime antitax and anti-spending sentiment. We remember it best from the 1970s tax revolt, but the two-thirds requirement for passing a budget actually dates back to 1933. That year -- not long after voting down a new income tax and sales tax -- California voters approved the two-thirds rule to make it harder to increase the budget. The two-thirds requirement for raising taxes was added as part of Proposition 13 in 1978.

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So what's your point?

That maybe the state has gotten it backward. Maybe the Constitution needs to be more difficult to amend. And maybe the budget should be easier to pass. There are currently only two other states that require a two-thirds vote to pass a budget -- Rhode Island and Arkansas.

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Could such changes be made?

After this year's budget fiasco, it's not out of the question. A Public Policy Institute of California poll found that most voters now think the two-thirds rule should be eased. Several bills to do so have been introduced, although some merely reduce the supermajority requirement to 55%.

A similar ballot proposition failed a few years ago because opponents said it would become easier to raise taxes. Which is no doubt true.

As for the California Constitution, the opponents of Proposition 8 have, in effect, asked the state Supreme Court to back a stricter amendment process -- by ensuring that certain significant changes be deemed "revisions" and be passed by two-thirds of the Legislature before being passed by a majority vote of the people.

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