It's Time to End Supermajority Rules In California

by Brian Schrader

Supermajority requirements are bad, they break democracy, and our founders knew that.

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At their core, functional democracies rely on a fundamental assumption: it is the right of the majority to rule. Broad consensus is good, but when push comes to shove, majority rules. The ideal institutions of democracy should allow for those out of power to voice their opposition and make their case for alternatives, but those same institutions should also allow the majority to enact their agenda in a timely manner.

Supermajority requirements are, broadly speaking, anything that prevents a simple majority from taking action. A simple majority is defined as 50% + 1, so a supermajority could be any threshold higher than that, from a 2/3rds majority to total unanimity.

California has long been a place where incredibly impactful laws come with dangerous supermajority requirements attached, and those requirements make amending, repealing, or improving said law virtually impossible. Used in this way, supermajority requirements hamper progress and they impose the will of a political minority over the preferences of everyone else. Put simply, supermajority requirements break democracy, and we should get rid of them.

We Were Warned

Some people believe that supermajority requirements build consensus. The thinking goes that since they require people to work together, supermajority requirements ensure popular outcomes, but this is just wrong. We know this now, and we've known it for over 200 years. The founders of this nation were very familiar with the problems of supermajority requirements and their impact on the American government under the Articles of Confederation, so they chose to largely omit them from their new Constitution. Over time we've added them back, and the result has been gridlock and a perpetuation of the status quo.

Alexander Hamilton actually addressed the issue of supermajority requirements directly in Federalist Paper #22, when he wrote:

...what at first sight may seem like a remedy, is in reality, a poison...

The necessity of unanimity in public bodies, or of something approaching towards it [a supermajority], has been founded on a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent or corrupt [minority], to the regular deliberations and decisions of a respectable majority…

The United States has a bad habit of trying to legislate by supermajority which, as Hamilton predicted, paralyzes our government and prevents it from taking action. At the federal level, the most famous culprit is the filibuster. But this is not a piece about the U.S. Senate and the filibuster. For an excellent discussion on that, go read Kill Switch by Adam Jentleson. It's really good.

This piece is about California, and our long history of imposing supermajority requirements on ourselves.

Super Problematic

Way back in November of 2020, Californians passed Proposition 22. The proposition classifies app-based drivers, like those who work for Uber, Lyft, and DoorDash, as independent contractors, not employees.

Now, drivers weren't employees at the time anyway, but according to a new California law they were supposed to be. Controversially, Uber, Lyft, and others were waiting for the results of the November election before complying with the law as it stood.

Anyway, the proposition passed, and voters granted an exception to app-based driver companies. What does this have to do with supermajorities? Well, buried in the proposition was a clause that reads (emphasis mine):

7465. (a) After the effective date of this chapter, the Legislature may amend this chapter by a statute passed in each house of the Legislature by rollcall vote entered into the journal, seven-eighths of the membership concurring, provided that the statute is consistent with, and furthers the purpose of, this chapter.
- Proposition 22, Ballotpedia

You read that right. According to the law as enacted, amendments would require a 7/8ths majority in both the Assembly and State Senate to become law.1

I think I can safely assume that everyone reading this knows that 7/8ths is more than a simple majority, but I think it's helpful to visualize just how much more it is. Here's what a 7/8th majority looks like compared with a 51% majority.

Visualization of a 7/8ths majority

And remember, ammending Prop 22 requires the same 7/8ths majority in both houses of the state legislature. With such a ludicrous threshold, it's almost surprising that the law doesn't simply require votes to be unanimous.

Achieving such consensus on any bill, let alone a controversial labor provision like Prop 22, is an impossible task. Even the most popular programs in American history don't enjoy an approval rating that high. That means that even incredibly popular federal programs like Medicare—with a 75% approval rating—wouldn't be popular enough to amend in California under this rule.

With the passage of Prop 22, companies like Uber and Lyft have gained a near-permanent exemption from California's labor law, and no imaginable shift in public opinion will ever change that. Even if you agree with the goals of Prop 22, it should be immediately obvious to you that democracy cannot work this way.

Supermajorities & Apple Pie

Instead of framing supermajorities through the abstract world of ballot measures, let's pause for a minute and think about apple pie. This quintessential American dessert is consistently one of the most beloved in the country, but when polled "only 81 percent [of Americans] have a favorable opinion of apple pie."

This means, if Americans used a 7/8th threshold to determine which desserts were legal in the country, not even apple pie could garner enough support. It also means that in order for Proposition 22 to be amended today, the amendment would need to be significantly more popular in the legislature than apple pie. Let that sink in.

Conveniently, the Huffington Post reported that roughly 67% of Americans have a favorable opinion of baseball, America's pasttime. So, for the remainder of this piece, think of a bill that breaks a 2/3rds supermajority requirement as being as popular as baseball, and one that breaks a 7/8ths supermajority as being more popular than apple pie.

Apple Pie

Fun fact: Moms have an 88% approval rating which is shockingly close to 7/8ths.

How did we get here?

Proposition 22 isn't California's first venture into imposing supermajority requirements on future reform. In fact, it's just the most recent chapter in a very long and tragic history.

In 2010, Californians passed Prop 26 which, according to Ballotpedia, increased "the vote requirement needed to impose certain new taxes and fees by the state legislature and local governments from a simple majority to a two-thirds supermajority vote." This initiative, further prevented the state and local governments from raising funds for specific purposes.

Prop 26 came to be as a result of efforts to circumvent the supermajority thresholds created by Prop 218, passed in 1996, which required local government special tax proposals to garner a 2/3rds majority of voters.

And Prop 218 can trace its legacy all the way back to 1978, to Prop 13, where all of these supermajority shenanigans began.

According to Wikipedia:

[Prop 13] requires a two-thirds majority in both legislative houses for future increases of any state tax rates or amounts of revenue collected, including income tax rates. It also requires a two-thirds vote majority in local elections for local governments wishing to increase special taxes.
- 1978 California Proposition 13, Wikipedia

Again, whatever you think of the specific taxes, proposals, and ideas put forth in these measures, the supermajority requirements they contain are dangerous for democracy.

A 2/3rds (66.67%) supermajority is less than the 7/8ths "super-duper majority" that Prop 22 requires, but it's just as anti-democratic.

Remember, these laws require future changes to be more popular than baseball and apple pie.

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Restoring Democracy, Baseball, and Apple Pie

It's almost convenient that California is so brazen with its use of supermajority requirements to thwart future democratic reform. It certainly allows us to avoid the arguments that plague the national filibuster debate. There's no defenders of Prop 22's supermajority requirement boldly claiming that it promotes bipartisanship or helps ensure robust debate—which is nice because we get to see these requirements for what they are: anti-democratic policies designed to prevent legitimate reform.

Supermajority requirements don't foster compromise or broad consensus, they preserve the status quo. They prevent change and jam up the workings of democracy. They ensure that those without power never gain it, and they ensure that those with power cannot lose it.

In a democracy, the power to make law is a necessary one, but laws should not be made that prevent future generations from unmaking them. We should never consider ourselves to be more wise, or more enlightened, than those that will come after us. What we decide is best for us will not be best for them—nor for ourselves in the future. By imposing supermajority requirements on our democracy, we cement the preferences of the past, we reject the power of the future, and we limit our own power going forward.

In California we’ve seen the effects of this paralysis. If Democrats did not control supermajorities in the legislature, a lot less would get done. Even now these requirements prevent popular bills from becoming law as Californians of today are held to the whims and preferences of those from decades past.

It’s time for Californians of all stripes to come together and acknowledge that supermajority requirements are detrimental to our state and to its people. Competent and effective government is essential for democracy and for the stability and progress of our society. As long as these requirements remain in effect, California will be left trying to solve its most pressing problems with one hand tied behind its back. We cannot address Climate Change, a changing labor environment, or a polarizing society if we cannot change our laws as we see fit. Democracy is a feedback loop, and ours is broken so long as we let supermajority requirements dictate what can and cannot be done.

In the same essay I quoted earlier, Hamilton wrote, "The public business must, in some way or another, go forward." Supermajority requirements work to ensure the public business stays put.

As long as we let supermajority requirements infect our laws and our constitution, we hold ourselves hostage to the status quo. California badly needs a constitutional amendment to end supermajority requirements once and for all.

1 Prop 22 is fairly unique in that it offers the legislature any opportunity to amend the law. Most ballot measures don't include any such provision and can only be amended by another ballot measure. That said, the 7/8ths supermajority requirement doesn't really improve on that situation.

(fin)

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