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Supermajority Rules, Submajority Rules, and the Regulation Freedom Amendment

Before John McGinnis and I started collaborating on originalism, we wrote a significant number of pieces on supermajority rules together. Much of constitutional government appears to involve simple individual rights or prohibitions on government power—lets call them categorical provisions. But some provisions involve supermajority rules—a requirement that a provision can pass, but only if it receives more than a majority of votes. For example, the Constitution allows treaties to be made but only with the approval of both the President and two thirds of the Senate. When would a supermajority rule be superior to a categorical provision? We argued that supermajority rules could be employed in a variety of circumstances, such as for spending laws (or for debt and tax laws), to good effect.

A similar type of provision is a submajority rule—a provision that requires only a minority of a house to take an action. As with their cousin supermajority rules, submajority rules have certain advantages.

The Madison Coalition has been promoting a constitutional amendment that would adopt a submajority rule that would restrain regulation. The provision, known as the Regulation Freedom Amendment states:

Whenever one quarter of the Members of the U.S. House or the U.S. Senate transmit to the President their written declaration of opposition to a proposed federal regulation, it shall require a majority vote of the House and Senate to adopt that regulation.

The provision is an alternative to the REINS Act, which requires the approval of a majority of both houses of Congress (and the approval of the President, as in the case of an ordinary statute), for major rules.  Such major rules are defined by their effect on the economy (such as the requirement that they have more than a $100 million annual effect).

So which is better – the REINS Act or the Regulation Freedom Amendment? I’m not sure, as they each have advantages.

The Regulation Freedom Amendment is clearer as to which provisions it applies to: all rules to which 25% of either house declare their opposition. By contrast, the REINS Act is uncertain here.  It depends on an OMB determination of the effect of the regulation on the economy—a determination which is open to manipulation. (For my proposed reform of this aspect of the REINS Act, see here.)

But the other aspect is whether the Amendment or the REINS Act will do a better job of requiring the problematic regulations to be voted on by Congress. Under the REINS Act, the most consequential regulations will have to be voted upon. By contrast, under the Amendment, those regulations which are identified by 25% of a house will have to be voted upon. In the latter case, the most extreme members of both parties—the more extreme conservatives and the more extreme progressives—might attempt to block not just major rules, but perhaps all rules that they do not like (regulations for conservatives and deregulations for progressives). In that event, a large number of regulations (much larger than the 50 to 100 rules likely to be major rules under the REINS Act) would have to receive a congressional vote. And that is very likely to be far too many rules for Congress to be able to vote upon given their limited time.

Another problem is that the REINS Act requires that major rules be considered under procedures that are expedited and that prevent committees from blocking an up or down vote on the bill.  The Regulatory Freedom Amendment does not employ that feature. However, it would be possible for the houses to adopt such procedures, although nothing requires them to do so.

In the end, it is not clear which of these arrangements is better. But in my view, both would be likely to be better than our existing system.

Reader Discussion

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on March 15, 2018 at 14:22:32 pm

Interesting thoughts, especially regarding submajority rules. But as an initial matter, I'd note that the devil is in the details.

Rappaport speculates that "the most extreme members of both parties—the more extreme conservatives and the more extreme progressives—might attempt to [use new procedures to] block not just major rules, but perhaps all rules...." Indeed, we know they would. The Senate already has submajority rules. And during the Obama Administration, Senate Republicans filibustered almost everything just to achieve delay. They'd use dilatory tactics on judicial nominees who they would then confirm unanimously. So, yes, it's fair to conclude that the most extreme members of a party might want to exploit such tactics--and that the Republican Senate is composed entirely of extreme members. Given this precedent, I see no reason to think that the Democrats wouldn't respond in kind. Thus, any procedural mechanisms must be scrutinized, first and foremost, for how they could be exploited simply to achieve delay.

A secondary consideration would be default status--that is, would a regulation take/remain in effect after 25% of legislators voice their objection, but before a vote of the chamber? If not, then we could certain expect the process to be exploited. Say 25% of the chamber doesn't like the repeal of the Net Neutrality rules. They object to the first word of the replacement regulation. So the old rules remain in place until the chamber can be organized to vote down this objection. The 25% then object to the second word. And so on. The minority could drag this out almost forever. Maybe there are ways to draft around this problem, but as I say, the devil is in the details.

But alternatively, if the regulation does take/remain in effect while the process unfolds, then the Speaker/Majority leader may look for opportunities to avoid holding a vote on any objections by the 25%. One remedy would be to grant to any objection the parliamentary status of a point of privilege, thereby taking precedence over other business of the chamber. But now we're back in situation where parties might use the process simply for delay.

Alternatively, the new procedure could say that if 25% of people object, the new regulatory change lapses within 30(?) days unless a majority votes votes to uphold it.

But what happens when you push the first domino? Imagine that 25% object to the new telco rules (repealing Net Neutrality) and, given gridlock, the chambers can't organize a vote to defend them. So those rules lapse and the old Net Neutrality rules take effect. But now a different 25% object to those. So we peel away that layer of regulation to reveal the prior regulations. And a different 25% object to those. And so on. Maybe this would lead to a desirable outcome, but it's hard to say.

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nobody.really
on March 15, 2018 at 15:53:27 pm

Nobody's comments above demonstrate the insufficiency of all these *tepid* attempts to ameliorate the problems resulting from the shift of "lawmaking' from the duly authorized Legislative Branch to the Executive Branch; even that is somewhat misleading as it is often "lawmaking' without either the knowledge or approval of the Chief Executive. Let us give credit to our elected Representatives for their *cleverness* and their ability / willingness to game the system as so ably noted by nobody.

Hey, kiddies, here is a thought:

Require EVERY SINGLE regulation to be approved by a majority of the Legislative Branch.
Provide that the Legislative may amend / modify / delete and fold-spindle-mutilate to it's hearts content ANY AND ALL regulations, irrespective of the OMB's rather fanciful determinations.
Provide that the Legislative may review and rescind ANY AND ALL previous approved regulations.
Provide further that any such regulations under review by the Legislative be put on hold until such time as the Legislative makes a determination. (Yep, clever folks may *game* this also; but so what, as it seems as if the net effect would be to reduce the burdens imposed by regulations anyway).

Hey, isn't that what the Legislative Branch WAS supposed to do?
Or am I reading the wrong COTUS?

In other words, let the Legislative "grow some [add the organ of your choice and one that is gender appropriate].

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gabe
on March 18, 2018 at 01:59:06 am

I would also require Congressional approval before any regulation takes effect. To wit:

“No Federal Regulation shall take effect or be enforced until approved by both houses of the Congress .

Whenever one quarter of the Members of the U.S. House or the U.S. Senate transmit to the President their written declaration of opposition to a Federal Regulation in effect more than o e year, it shall require a majority vote of the House and Senate for the Federal Regulstion to remain in effect.”

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I Am Who I Am
on March 19, 2018 at 21:56:45 pm

Its not entirely clear to me why this Submajority Rule would require a Constitutional Amendment to bring into effect, and the massive degree of delegation did not. If the branches would just work within the confines of the Constitution they swore to uphold, there would be no, or minimal, delegation, and no judicial deference, and no need for REINS or Submajority Rules.

What makes anyone so confident that the branches will adhere and uphold this amendment anymore than the ones already in existence that they have been more than willing to disregard or subvert?

Simply put, I do not support amending the Constitution but in the rarest of circumstances, and then only after all other options have been exhausted; in my view, it already contains more than enough ink.

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Paul Binotto

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