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Fiddlers on the Hill


Washington. -- David Skaggs, a thoughtful Democratic congressman from Colorado, has filed a lawsuit charging that virtually the first thing the House of Representatives did on January 4 after its members swore to defend the Constitution was to violate the Constitution. And not in a peripheral matter, but by overthrowing the constitutional principle of majority rule.

There is no such explicit constitutional principle, and it is problematic extracting even an implicit principle. But if his constitutional reasoning is unpersuasive, his prudential reasoning deserves attention.

On its hectic opening day Congress performed the usual housekeeping chore of readopting, with some amendments, the rules that would govern legislative proceedings. But several amendments were unusual. For example, the House decided that no legislation containing "an income-tax rate increase shall be considered as passed" unless it receives the votes of three-fifths of the members voting. (The House also voted that it cannot even consider a retroactive tax increase.)

Mr. Skaggs argues that this unconstitutionally empowers a minority to defeat legislation. He says that because the Constitution contains some supermajority provisions (consent to treaties, impeachment and so on), this implies that a simple majority is mandatory wherever the Constitution is silent. And he notes that the Constitution says that "a majority of each [house] shall constitute a quorum to do business."

Defenders of the new supermajority rule argue that the framers who wrote the quorum clause clearly assumed that in the absence of such a stipulation, Congress could do as it pleased. And there is no stipulation that all legislation shall be passed by simple majorities. Furthermore, the Constitution says "each house may determine the rules of its proceedings." And the Supreme Court has held that "congressional practice in the transaction of ordinary business is of course none of our concern."

However, the new supermajority rule's supporters, most of whom are Republican, are in a weak position to wax indignant about Mr. Skaggs and others taking the rule to court. When in 1993 the Democratic majority in the House voted to permit delegates from the territories and the District of Columbia -- all Democrats, of course -- to vote in the House when it is ZTC functioning as the Committee of the Whole, Republicans challenged this in the D.C. Court of Appeals. There they lost, but not because the court declined to review the House action. And that court said "there are limitations to the House's rule-making power."

Still, no court has ever held a rule of either house unconstitutional. Even in this age of judicial overreaching it would be an unusually rash judge who would put courts into the business of examining House and Senate procedures (the Senate three-fifths requirement to limit debate, the "holds" senators can place on bills, the restrictive rules under which legislation can come to the House floor, various powers of committees and subcommittees) that can impede a majority eager to act.

There is nothing anti-constitutional about giving protective empowerments to minorities, or about complicating the way majorities work their wills. A supermajority requirement is one way of building into democratic decision-making a measurement intensity of feeling as well as mere numbers. Furthermore, such requirements are devices for assigning special importance to particular matters, and perhaps taxation is properly so regarded.

However, everyone considers something, and not always taxation, especially important. Mr. Skaggs worries that supermajority provisions will multiply as various factions use them to give imprimaturs of moral seriousness to this or that. Indeed, already the House has voted to require a three-fifths vote to repeal rules and regulations on the new "correction days" devoted to such repeals. Some of the people who opposed the supermajority provision regarding taxation wanted the super- majority provision for "corrections."

What a House majority has done regarding supermajorities and taxation, a subsequent majority can undo, but perhaps not easily. From now on congressional candidates will be asked how they will vote on the supermajority rule. A majority of each new Congress may come to office committed to keeping the rule.

Conservatives' pleasure about this should be, but does not seem to be, tempered by concern about the damage that may be done to future defense budgets by measures like the House supermajority rule that institutionalize today's particularly acute taxaphobia. The world is still a dangerous place, full of things more unpleasant than taxes.

George F. Will is a syndicated columnist.

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