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Constitutional Amendments!

August 26, 2009

I’ve been asking people, “if your were with the constitution and suddenly everyone was distracted and looked away, and you had a chance to write in your own amendment, what would it be?” (of course, we’re assuming this amendment will be followed, though perhaps only to the same extent that the rest of that document is followed). Feel free to add your own answer.

Here’s my current answer:

“In order to pass any legislation, whatsoever, congress shall require a majority vote of 85% in the House of Representatives and 85% in the Senate, with or without the President’s signature. In order to repeal any past legislation, congress shall require a majority of 35% in the House of Representatives and 35% in the Senate, with or without the President’s signature.”

I’m open to a bit of change on the exact numbers. The key is that to pass new legislation requires a super-majority and to get rid of old legislation requires a sub-majority.

Now, here’s why:

People will first respond with one or both of the following criticisms: “35% is too low!”, “85% is too high!” To both I say, “exactly!”

An 85% requirement requires a good deal of support. That means that stupid laws will only get passed if most people really wants them. It also means that it will take a lot more convincing to pass controversial laws. Of course it raises the cost of passing new laws (absent overwhelming evidence in favor of them) most of which, as far as I can tell, are pointless and/or wasteful. Think of some of the laws that have been passed recently: the bailout, the Patriot Act, tax increases… Wouldn’t you be glad to see these things go? How many laws (that congress is likely to pass) do you think we will actually lose because of the 85% requirement?

Tullock discusses the “optimal majority”, examining the trade off between bargaining costs and the costs of legislation. His example is a group of farmers who need to have their roads repaired. Five farmers live on each road, but the cost will be shared by farmers on other roads. If the number of votes required to repair a road is only one, then any time a farmer wants, he can have his road repaired and pay only a fraction of the cost. Naturally there will be an inefficient (excess) amount of road work done. If a unanimous decision is necessary, it will be very difficult to get the roads repaired because of the transaction costs of assembling a 100% majority (there will be a hold-out problem as well as other problems).  At some point (and Tullock hypothesizes somewhere greater than 50%)  the combination of bargaining costs and the average cost of road repairs is minimized and the optimal amount of road repair occurs.

Granted, my 85% figure may be higher than the optimal majority, but that reflects the bias of my personal beliefs. For example, I don’t believe that there is a real justification for public ownership of free-ways, an 85% requirement means that 85% of those with a say have to be convinced to keep funding the inter-state system. I believe they still would, but I think they would be less likely to build more free-ways because I don’t think that the justifications for state owned free-ways are very strong and before too long, any free-way really worth building just might be built privately. Although it doesn’t deal directly with free-ways, I recommend you read Myth of the Robber Barrons, especially Ch 2 on James Hill where Burton Folsom discusses the history of transcontinental railroads in America.

35% ensures stupid laws can be gotten rid of when everyone comes to their senses. It enables us not only to prevent new wasteful legislature (with the 85%) but to get rid of the old stupid laws. The cost of getting rid of laws is very low. The political cost of getting rid of good laws is still high (you don’t want to be the one who voted to let slavery be legal!), but if the law is really that great, it will be easy to pass it again, even with the 85% rule.

Tullock glosses over the sub-majority (mind you, I’m waiting for my Collected Works of Gordon Tullock so that I can read more of his writing), but I believe in this case a sub-majority will be very positive.

Another favorite answer to the original question (I heard this first from Professor Rudy Gonzalez at SJSU): Anyone who is paid by the government (e.g. post office workers, senators, etc.) gives up their right to vote as long as they’re being paid by the government. This is because they have an obvious conflict in interest.

Another amendment (that would have little effect on its own) that would be fun: Any public servant (e.g. police, air-traffic controllers, etc.) who decide to strike will have their citizenship revoked and will be deported. This would reduce the effectiveness of bureaucratic lobbying because there would be little possibility of threatening to strike. Currently police strikes are illegal, but the cost of striking is still pretty low. Combined with Rudy’s amendment, bureaucracies (including and especially those who provide critical services) would lose a significant amount of rent-seeking power.

And some thoughts on majority decision:

If the 50% threshold is increased to 66%, I hypothesize that we would depart from a two party system. A two party system will tend to eventually split the electorate right down the middle. As a result, there will be approximately two voices heard. There will be the Republican platform and the Democratic platform. To a great extent, Median Voter Theorem (MVT) will result in those two voices sounding pretty similar (I believe it was Klein at Cato who discussed an alternative, remind me).

Why would we see such a split? Because with a 50/50 split, both parties would be dead-locked. They would have to form coalitions with moderate members of the other party. With coalitions being the norm and the impossibility of one party getting a majority anyways, the cost of splitting from the fold would be lowered. Savvy politicians would gain by joining a party that more accurately reflects the views of their constituents and would no longer face the cost of being outside the organization that controls the purse-strings (i.e. the majority party), because there wouldn’t be a majority party.

More voices mean more discussion as well as better representation. I think both parties are terrible, I would much rather have a (viable) alternative. I suspect many people would. If the two parties split into three, we’d probably see the Dems and the GOP shift left and right respectively, and see a centrist party arise. MVT would, however, predict that the centrist party simply get squished on either side by the other parties pushing toward the center to maximize their popular appeal.

A similar requirement for the selection of president would also likely result in a more representative voice. If the margin required to become president were raised from 48% to 75%, neither McCain or Obama would have been viable candidates. 50+% loved Obama, the rest  hated him and so voted McCain (I’m aware it’s an over simplification). A 75% requirement would require a candidate that was at least minimally distrusted by much of the population. Deciding between two (or more) popular candidates would, of course, require further mechanisms, but the cost just might be worth the benefit (i.e. no more of your least favorite president).

Please feel free to comment. I would like to incorporate your criticisms into my hypothetical proposal. As always, if you don’t understand something, please ask me to clarify and I will do so happily.

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