Variable Supermajority Legislative Rule

What if, when a majority passed a bill in the legislature, they could optionally make it so that whatever percentage of the legislators voted to pass the bill was required to overturn it? For tamper-proofing, the percentage of all legislators, even those abstaining or not voting (i.e. if only 60% voted, and all of them voted to pass a law, the percentage for overturning would be 60%, not 100%), could be taken instead. This seems to make it a lot easier for there to be a more flexible constitutionalism, and would give more meaning to a party winning larger or smaller majorities. As an additional feature, a second vote could be taken alongside or after the first vote, asking legislators if they want the law to be “locked in” with a supermajority or not. The number of legislators who say yes to this question would be the one used to calculate the percentage required to overturn the law instead. I think this might be the answer to solving the dispute between those who prefer to always go with simple majority rule versus those who prefer to have a lot of supermajority rules on the board to restrict a majority. In addition, one could introduce the use of scoring in this legislative rule by letting legislators decide “how much” they want a law to be locked in, or using scoring to pass a law then taking that percentage of points into account as the percentage of “votes” used to pass the law.
As a final tamper-check, the maximum possible supermajority could be capped at 2/3rds, to prevent a rogue/careless legislature from passing something horrible unanimously and making it near-impossible to repeal.
An even more interesting application of this might be to an election. What if voters could “lock in” a candidate they voted for? To reduce tampering, the question on the ballot could be a negative one, “Do you not want the candidate you voted for, if they win, to be ‘locked in’ in the next election?” I suppose it wouldn’t take off in governmental elections, but it could be an interesting twist in organizational elections. There currently really is no bonus for winning a larger majority, either in your election or when passing a law, unless you have a 2/3rds majority capable of altering your Constitution. Making the voters in between valuable might mean more inclusive elections, rather than “tyranny of the majority” (again, scoring could be included as well.)
Another thing is that a legislator might individually have a preference for how many votes should be required to overturn i.e. they would vote to lock in if it made the overturning percentage 60% but not 70%. Perhaps there’s a way to let them show their preferences on that final number in a way that’s simple yet doesn’t require people to collaborate to settle on a final number. Perhaps simply requiring that legislators vote at least twice to ensure they have reached a satisfactory final number would allow for the negotiation and security required.

You’d have to be wary of creating a “dictatorship of the past.”

In a worst-case scenario, it might be possible for a 2/3rds majority to just wipe out all the lock-ins via constitutional amendment.
A rather complicated solution is to let voters decide whether or not their representative has lock-in power somehow. That might make your concern less likely, and would also probably allow more democratic input into the system. Maybe it would even encourage parties to field better candidates in a way, so that they can tempt voters to granting lock-in powers to further advance their goals. Of course, that could be used negatively too, but maybe it’s worth a look in some form.
A much better solution for your concern is to cap the lock-in to a 30-year period, and have the overturn percentage tick down over the years. You can experiment a lot with the parameters, but something like that would prevent, say, some 100-year old law that most people (less than a 2/3rds majority necessarily) disagree with from sticking around. For something like free speech, I think there could be an argument made that there ought to be a way to go past that 30-year limit, but perhaps this is a way for every generation to relock in principles they care about, a la “living Constitution” that Jefferson envisioned. Although actually, you could just pass a regular Constitutional Amendment with a 2/3rds majority for that.

The problem with any form of this lock-in system is that it could be used by a legislature that has lost popular support to entrench their agenda before they are voted out of office. (State legislatures have already found ways to do this sort of thing when their party loses the governor’s seat by passing laws to transfer power from the governor to the legislature in the lame duck session. They don’t need another tool!) If this gets enacted in a non-PR system, it could also make ending gerrymandering a tougher sell as the only way to repeal a law locked by a gerrymandering-inflated supermajority is with your own gerrymandering-inflated supermajority.

While the Constitution is often commended for the protections of the bill of rights, the aspects of the Constitution the framers opted to give the strongest protections to are also some of the least cherished: Article V prohibited until 1808 any sort of amendment to a clause protecting the slave trade and to one prohibiting Congress from levying “direct taxes” in a manner that would not require states to pay in proportion to their population. Both clauses have since been amended. Article V also requires unanimous consent among the states to change the system of equal representation in the Senate. Today, this system is one of the more frequently criticized structures of the federal government. So be careful about entrenchment: the values of today may become outdated or even discredited tommorow.

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The interesting thing, though, is that some form of lock-in might be usable for actually preventing that sort of thing from happening. Maybe if used in conjunction with a ballot measure lock-in system, there would be ways to enact tougher laws that don’t rise to constitutionally-strong levels to prevent that kind of takeover by a simple majority.
I definitely agree this shouldn’t be used without some kind of significantly better voting method in place.
Another thing to keep in mind is that most parties win <60% majorities most of the time, meaning that lock-in would usually only require the opposite party to win maybe about 55% of the seats within a few years time to overturn. That’s the price of putting a bonus to earning a larger, more inclusive majority; the outcomes have to be harder to overturn somehow. But maybe the time period for the lock-in can be reduced even further; if a 2/3rds majority is considered to be the maximum possible supermajority under this system, then maybe the maximum time period ought to be 17 years, because 67% is 17% more than 50%. Each year, 1% ticks off automatically, and this way a party with say, a 56% majority would only have 6 years to keep any form of lock-in. Maybe the parameters need to be changed to make the incentives greater, but this way the danger is very significantly reduced.

Define repeal vs. amend. Almost nothing gets actually repealed. There are some awful consequences that aren’t readily apparent at passage that get tweaked all the time. You don’t want to make it impossible to tweak, but the opposition might call sabotage a tweak. They might also realize they lost that battle and have moved on but still need to do a non-sabotage tweak. Who decides when it is or isn’t sabotage?

If it was a tweak, presumably they could get the same percentage of legislators together that passed the bill originally to come together to amend/repeal the bill. If 60% passed the bill, then 60% would be required to amend, going down over a 30-year or shorter period.

Then what happens if you have:

  • 2/3 support a bill that includes X and Y.
  • 2/3 then decides the bill would be better off without Y.
  • 2/3 then decides that X without Y is useless, and repeals the bill.
  • 2/3 then decides to pass the original bill.
  • Ad infinitum.

How is this even possible? How can 2/3rds support X but not Y, then suddenly 1/2 of the affirmative majority says “actually X is useless without Y?” That sounds like last-minute deliberation rather than any problem with the Variable Supermajority Legislative Rule.

Did you follow the ACA fight at all?
After it passed and Democrats blamed passing it for getting wiped out in 2010 (much easier than admitting Obama was an awful president who paid wall street to keep foreclosing on poor people and handed them get out of jail free cards for blowing up the world’s economy). Between 2010 and 2016 I doubt you could get half the dem caucus to vote to fix it even though it was riddled with mistakes. The GOP house was never going to take it up. It was essentially drafting errors that let states opt in (or not) to medicaid expansion leaving people who would qualify for medicaid unable to get the free care they were entitled to or the subsidized rates on the exchanges. If we elect a corporate sell out like Biden or Mayor Pete who promise to do nothing to help anyone but the oligarchy except for minor tweaks, this wouldn’t even let them do that unless they get the massive once in a lifetime wave caused by a huge economic collapse.

What if we elect Bernie and he pushes Medicare for All. But he can’t, without making virtually all of the ACA redundant.

If anything we need to make it easier to pass and improve laws. There is already an electoral price for repealing legislation that people rely on. ACA repeal didn’t pan out that well for the GOP.

The Dems could’ve chosen to pass the ACA initially with a simple majority if they thought they might amend it later. On top of that, voters themselves would’ve hesitated to give the Dems a large supermajority in the first place, making more votes matter than just those of the majority.

It was the Supreme Court ruling in National Federation of Independent Business v. Sebelius that caused Medicaid to need to be expanded state by state; originally it would have been mandatory. Are you suggesting that the ACA could have been written in a way that would have prevented the court from overruling mandatory expansion?

The point is that almost all legislation needs tweaks. It still leaves the party that is ideologically committed to proving government doesn’t work with an advantage. They just need to ban everything while they are at their strongest. Or pass a healthcare law that does next to nothing and then the other side has to get a bigger majority to fix it. If you want government to actually do something you need to pass it with small majorities to be able to amend it.

And nothing about legislation that gets superseded? What about the tax code?

These arguments are both addressed primarily by parties choosing how small or large a majority they want to go with to pass a law. If they go too big, they will bear the blame when nobody can amend the law later.

This is why voters would need to be careful about how big a majority they give to a party. If they’re choosing a party that is anti-government and choosing to give them a large supermajority, they can only blame themselves when that backfires. The party that wants to entrench big government has a comparably big advantage, since their opponents would need to get some bipartisan agreement to amend or shrink anything. Note that this means this idea would only work in conjunction with voting methods where voters have strong control over who gets elected, like in PR or cardinal/Condorcet methods. Also, for best effect, perhaps a 10-year period, after which the supermajority requirement disappears, would work best. Maybe the parties themselves could choose anywhere from 1 year to 10 years for the period of time.

I’m not sure I understand your point here. Wouldn’t the parties be able to either pass laws with smaller majorities in those areas, or cobble together bipartisan consensus to supersede? The idea to some extent here is to encourage people to work together to have bigger advantages for the policies they pursue, so it doesn’t seem wrong to expect some consensus when it comes to removing previously consensus-passed laws. That’s the idea behind Constitutional amendments too. Perhaps various sections of the law can be given differing sized supermajority backing, so some sections are harder to amend or supersede versus others later.

I guess my language was unclear.
Group A (1/3): X = -10, Y = +20
Group B (1/3): X = +20, Y = -10
Group C (1/3): X = -10, Y = -10

Groups A and B propose the X+Y bill.
The B’s then amends the bill to exclude Y, which the C’s support.
The A’s then decide that X without Y is useless, and repeal the bill with C’s support.
Ad infinitum.

That’s a very interesting point. Let’s see what the utilities are when we combine each 2/3rds-backed option:
Group A & B: 10 + 10 - 20 = 0
Group B & C: -10 + 10 - 10 = -10
Group C & A: 0 + 0 + 0 = 0

So essentially, the only equilibrium scenarios here are passing X and Y, or passing nothing at all. If X and Y pass, 2/3rds gain utility while 1/3rd lose a lot of utility, while if nothing passes, nobody gains or loses any utility. I’d say A and B would have to evaluate how much they might have to work with Group C in the future; if either of them think they want a partnership with C, their best bet is to avoid passing anything. If they’re happy to take the utility for themselves, their best bet is to stick to X and Y, which is the only way to keep a 2/3rds majority together.

Oh you didn’t mention that this was never intended for the real world. Voters are not rational utility maximizes who think deeply about policy. Or at least there aren’t enough of them that are to stop the ones that aren’t from ignoring politics entirely until a week before the election and voting on how much they like the person. (which isn’t to say that those people aren’t entitled to their vote, but a system that requires them to be policy wonks or even think half a step ahead is doomed.

And nothing about legislation that gets superseded? What about the tax code?

I’m not sure I understand your point here. Wouldn’t the parties be able to either pass laws with smaller majorities in those areas, or cobble together bipartisan consensus to supersede? The idea to some extent here is to encourage people to work together to have bigger advantages for the policies they pursue, so it doesn’t seem wrong to expect some consensus when it comes to removing previously consensus-passed laws. That’s the idea behind Constitutional amendments too. Perhaps various sections of the law can be given differing sized supermajority backing, so some sections are harder to amend or supersede versus others later.

And nothing about legislation that gets superseded? What about the tax code?

I’m not sure I understand your point here. Wouldn’t the parties be able to either pass laws with smaller majorities in those areas, or cobble together bipartisan consensus to supersede?

We already have a tax code, is all tax legislation amendments?
We passed the ACA, If we want to go to single payer do we need a big enough majority to amend?

Amendment or totally new law, either way you’d need a supermajority.

You’d have to get rid of the filibuster for this to make sense, since the ACA required a 60% supermajority to begin with. But yes, the idea would be that if legislators wanted the ACA to stick, not only would Republicans have a harder time repealing it, but Democrats would have a harder time going even further. If legislators wanted to make changes in future, they could just pass it with 51%.