House treads thin constitutional ice by requiring three-fifths vote for tax hikes
Quin Hillyer
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A new rule adopted by the new Republican House majority that would make it harder to raise taxes is arguably unconstitutional. But the House could still tweak it.
Before I explain, please let me make clear that I am a Reagan-Kemp supply-side, low-tax advocate through and through. I have never in my life supported a bill raising federal income tax rates. The objection here is rooted in law and process, not in the desired result.
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Still, the large weight of solid legal reasoning leads to the conclusion that the House cannot require a supermajority for final passage of any bill raising income taxes. Except where the Constitution specifies otherwise, the House is a majoritarian body. Alexander Hamilton and James Madison made that clear in Federalist Papers number 22 and 58, respectively. Plus, the history and founding understandings of “the republican principle” of government all point to a simple-majority requirement being the norm unless specifically superseded by specific language in a nation’s founding charter.
The rule at issue reads, in relevant part, as follows: “A bill…carrying a Federal income tax rate increase may not be considered as passed or agreed to unless so determined by a vote of not less than three-fifths of the Members voting, a quorum being present.”
A brilliant and exhaustive 2012 academic paper by conservative scholar Dan T. Coenen in the Northwestern University Law Review concluded that “foundational principles — rooted in text, structure, parliamentary practice, republican governance, practical problem solving, and hard-won compromise — on which the entire legislative edifice was built,” all show that a simple majority vote is the only requirement for ordinary congressional legislation.
Coenen also suggests that this principle probably, but not necessarily, gets in the way of the Senate’s “filibuster” rule requiring a three-fifths vote to end debate. There, though, an important if small distinction makes a big difference, whence the “probably.” The Senate filibuster is a rule of proceedings on debate, not on final passage of any bill or approval of any executive or judicial nomination. Once three-fifths of the Senate has agreed to end debate, a simple majority is all that is needed for final approval.
That’s why, for example, it was possible for Clarence Thomas and Samuel Alito to be confirmed to the Supreme Court, even though Senate rules (but not tradition) at the time technically might have allowed a filibuster to block their paths. Neither one enjoyed support from 60 of 100 senators, but each was confirmed by simple majority — Thomas by a 52-48 vote, Alito by 58-42.
Granted, the way the filibuster is practiced today, the three-fifths requirement to end debate is almost always used as the equivalent of a three-fifths requirement for final passage. Again, almost. The fact that there are rare-but-real exceptions speaks to the subtleties of the political process.
Such subtleties and the Constitution’s original assumptions could be respected, while still serving the goal of making it more difficult to raise taxes, if the House merely made a slight change to its new rule. If the House wanted to require a three-fifths vote to end debate on a federal tax hike, it could impose this without raising serious constitutional concerns. But to require three-fifth for passage of the bill itself is arguably a violation of Madison’s and Hamilton’s design.
A supposedly constitutional conservative party should get the Constitution right. It should amend its new rule forthwith.
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