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Vikram David Amar

What Does It Mean to "Let the People Decide"? California's Proposition 16, Supermajority Rules, and the Unhelpfulness of Political Ads


Friday, June 4, 2010

In this column, I examine the concept of "popular sovereignty" through the lens of California's Proposition 16 (which will appear on next week's ballot), and reflect on the constitutional lessons we can learn from the Proposition and the ad campaign behind it.

As readers of many of my prior popular and academic writings may know, I am a believer in the notion of "popular sovereignty." It is the big idea at the center of the Declaration of Independence — "the right of the people to alter or to abolish" their form of government. And, I would submit, it is the principle underlying the United States Constitution's recognition of the power of "We the People" to "ordain and establish" our particular form of American government, and to enumerate the individual rights that our Constitution safeguards.

With respect to the states, the popular sovereignty idea is enshrined in the so-called "Republican Guarantee" clause of Article IV, which requires the United States to guarantee to each state a "Republican Form of Government." "Republican" here does not, of course, refer to the Grand Old Party. Nor does it mean government purely through elected representatives; the direct-democracy initiative-lawmaking process that is utilized in a number of states is fully consistent with the provisions of Article IV. "Republican," for these purposes, is best read to mean, "consistent with popular sovereignty."

But what exactly does popular sovereignty entail? To answer that, let's look at California's Proposition 16, which would require popular electoral approval before public agencies are allowed to enter the retail power-and-electricity business.

Proposition 16: Requiring a Supermajority, Not Simply a Majority

When I first heard all the ads promoting Proposition 16 — which pointed out that under current law, California's citizens have no right to vote on municipal officials' decisions to invest money in providing electric service — I was open to being persuaded. While I don't think the electorate should necessarily be involved in the approval of every government decision — after all, the reason why we elect people to administer government on our behalf is that we don't want to have to be involved in all day-to-day decisions — sometimes popular-approval requirements make sense.

So the relentless "Let the Voters Decide" refrain of the "Yes on 16" ad campaign had some intuitive theoretical appeal for me when I first heard it. Letting the voters decide is, in the end, what popular sovereignty means. And the question posed by the "Yes on 16" campaign website —"Do you think voters deserve the right to have the final say on how our money is spent?" — seemed one well worth thinking about in this area.

But when I looked at the details and saw that Proposition 16 does not simply require popular approval, but rather a two-thirds vote by the people, before municipal power can be permitted, I became very angry at the way in which the Proposition was being sold. Popular sovereignty — or letting the people decide — is very different from a supermajority requirement.

Indeed, supermajority requirements prevent the currently-expressed will of the people by letting a minority of the people decide; if 65% want X, and 35% don't want X, and we have a two-thirds supermajority requirement before X can happen, then "the people" haven't decided to reject X — a 35% subset of them has.

To be sure, the folks in that 35% minority are also "people," but so too are the CEO and COO of Pacific Gas & Electric, and an initiative that gave those two officers the ultimate say-so over whether municipal power could go forward could hardly be justified under the mantra of letting "the people" decide. For the "will of the people" to have any coherence as a concept, it must mean the will of a simple majority of the entire voting public.

When Might a Supermajority Requirement Make Sense?

None of which is to say supermajority requirements are un-American. As long as the supermajority requirements are themselves adopted — and repealable — by a simple majority, popular sovereignty can be fully respected. This, then, brings us to the question of when a simple majority ought to tie its own hands by adopting a supermajority requirement, to be applied until such time as the supermajority requirement is repealed.

I think there at least two kinds of situations in which supermajority requirements do warrant consideration. First, there may be certain policy issues where the status quo is generally to be preferred to any change, and where a majority of people, at a moment of clear and dispassionate thinking, believe that they might be tempted to betray their own best lights, in the heat of the moment, at some time down the road.

So, for example, when the Constitution requires a supermajority of Senators in order to convict and remove an impeached President, this reflects the belief by a majority of founders that removing the President is a big thing, to be done only when the case for removal is clear-cut and that, when in doubt, sticking with an elected President for the remainder of his term is preferable to ousting him.

California's requirement of a two-thirds majority before the legislature can raise taxes is another example. A majority of Californians might believe that, as a general matter, raising taxes is a bad thing, to be reserved only for clear, exceptional instances that will command a supermajority of support.

A third illustration might be the two-thirds requirement for congressional approval of federal constitutional amendments. In general, the founders might have distrusted their elected representatives and believed that much of the constitutional change they would seek might be self-aggrandizing, such that a supermajority requirement, which privileges the status quo, could make sense.

The other kinds of situations I want to mention — in which supermajority may also be worth using — are those where a supermajority requirement may be thought to encourage discussion, deliberation, compromise and harmony, things that in the end produce a better result and one that all persons can live with more easily. The filibuster rule in the Senate (which I have argued in an earlier column no longer seems to be working) might have been originally justified on that ground, in the same way that supermajority or unanimity requirements for juries might be thought to promote deliberation (and also to privilege the status quo against the deprivation of a defendant's liberty.)

In either of these two general categories of situations, a supermajority requirement — either in lieu of or in combination with other checks and balances in the legislative process — can slow things down or make the status quo harder to change for reasons that may be in society's long-term interests.

Why Proposition 16 Seems to Fail to Fit Either of the Categories of Laws as to Which a Supermajority Requirement May Be Justified

It is not clear to me that Proposition 16 falls easily into either of the categories I have outlined here. As to the latter category, surely, Proposition 16's two-thirds requirement does not seem to be designed to guarantee a good dialogue between the voters who are asked to approve a municipal power proposal. Thus, if the supermajority requirement in the measure can be justified at all, it has to be on the first ground — that we have a general reason to think municipal power is a bad or wasteful thing, and that we therefore want to reserve its use for clear instances in which it makes so much sense that a supermajority of voters can see its virtues.

I have no views at all on whether municipal power is to be feared, and whether we need to protect ourselves from ourselves by making it harder to adopt, by means of a supermajority requirement. But I do know that the debate regarding Proposition 16 should be based on questions like these — not on insulting and misleading slogans like "Let the People Decide" and offensive self-proclaimed Proposition titles like the "Taxpayers Right to Vote Act."

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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