Bipartisanship, Supermajority Rules, and Legitimacy

Over at Balkinization, Gerard Magliocca talks about the norm of bipartisanship.  He notes that supermajority rules, including the filibuster rule, operate to promote that norm.

In my own work (with John McGinnis), I have written a great deal about supermajority rules and how the bipartisanship and consensus that they promote can be essential ingredients of beneficial decisionmaking, especially when the decisions involve basic institutions such as constitutional provisions and key government programs, like Social Security or Obamacare.

While I recommend reading Gerard’s post in full, I do have questions about a portion of it.  Gerard writes:

A distinctive feature of the Obama Administration is that there seems to be an extra-constitutional principle developing that says the consent of both parties is required for legitimacy. (There are some precedents for this, but let’s leave that for another post).  The lack of bipartisanship is a crucial part of the criticism of the Affordable Care Act (“It was passed only with Democratic votes.”)  An anti-partisan norm also explains why Chief Justice Roberts may have felt pressured to vote how he did in Sebelius (in other words, striking down such a law only with GOP votes would have been illegitimate.)  Indeed, when I talk to non-lawyers, I’m struck at how important they think bipartisan agreement is as compared to how unimportant it is for lawyers.  Hence my attempt in the Washington Post op-ed to translate that into a notion of “settled” law.

Despite my attraction to supermajority rules and bipartisanship in many situations, I am not sure that I think that bipartisanship is a necessary condition of legitimacy.  I suppose the question here is how one defines legitimacy.  Does it mean acceptance by both parties or all major groups? Or does it mean proper in some public policy or moral sense?  Certainly, supermajority or bipartisan enactment is not necessary to legitimacy in the latter sense, since majority rule and enactment by one party may be acceptable in a host of circumstances. Nor is it necessary in the former sense of legitimacy, since the parties will sometimes accept laws that are passed simply by majority rule and the other party.

As for Obamacare, the Democrats who passed fundamental institutional change in the form of Obamacare without any Republican votes certainly had to expect that the Republicans would not simply accept this new program lying down.  While the Democrats appeared to believe that it would be accepted and come to be popular as Social Security and other programs were, those programs were adopted with bipartisan  support.  So the lack of bipartisanship is part of the explanation of the continuing opposition to Obamacare, but that does not mean that any program that is enacted with only one party’s support will always be illegitimate.

Moreover, more than one party enactment was required to keep the Republicans continually opposed to Obamacare.  It is also important that the program is unpopular and that its enactment led to a landslide victory in 2010 by the House Republicans. In another paper, I have argued that fundamental institutional change under our existing system depends in large part on the midterm elections — the party seeking to effect radical change must face the voters in two years and be successful.  Roosevelt’s party was; Obama’s wasn’t.

Mike Rappaport

Professor Rappaport is Darling Foundation Professor of Law at the University of San Diego, where he also serves as the Director of the Center for the Study of Constitutional Originalism. Professor Rappaport is the author of numerous law review articles in journals such as the Yale Law Journal, the Virginia Law Review, the Georgetown Law Review, and the University of Pennsylvania Law Review. His book, Originalism and the Good Constitution, which is co-authored with John McGinnis, was published by the Harvard University Press in 2013.  Professor Rappaport is a graduate of the Yale Law School, where he received a JD and a DCL (Law and Political Theory).

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  1. Gerard says


    I agree with you. On most matters, bipartisanship is not necessary for legitimacy. On major matters, though, it probably is. That could happen over a period of years or at the point of enactment. Maybe I’ll follow up on this with another post.

  2. gabe says

    Here is an interesting take on partisanship and institutional considerations; from and essay by George Carey:

    In light of this, we may ask: Does institutional interest play the role that Madison, and presumably the Framers, believed it would? I think the answer to this question is both “yes” and “no.” In my judgment, institutional interest is alive and well within the presidency and the Court, but dormant, if not dead, within Congress. The reason for this is to be found largely in the conjunction and inter-play of two factors: the enormous growth of presidential powers and the president’s role as leader of his political party. What we have witnessed, increasingly in modern times, is that when the same party controls Congress and the presidency, Congress is more or less compliant with presidential requests, even those involving institutional prerogatives. In short, in this circumstance, party considerations trump institutional interest. This, it should be noted in passing, is not all surprising. Suffice it to say, sublimating institutional interest to partisan considerations serves the individual interests of the members of Congress.[19] By the same token, when Congress resists executive encroachments—and this, usually, only when there is divided government, i.e., where one party does not control the presidency and both legislative chambers—partisanship, not institutional interest, would clearly seem to be the motivation.

    Remember there were no cries for bipartisanship (by democrats when they passed O-care. It is only now when they do not control BOTH houses that they are suddenly interested in “bi-partying”

  3. says

    Moreover, more than one party enactment was required to keep the Republicans continually opposed to Obamacare. It is also important that the program is unpopular and that its enactment led to a landslide victory in 2010 by the House Republicans.

    Exactly. Both the New Deal and the Great Society enjoyed American consensus, and thereby “consent of the governed.” By contrast, Obamacare enjoyed a bare political majority, and nowhere near a popular consensus.

    I’ve been following the discussions at Volokh on your work. Well done, sir. Under President Obama, we have crossed the line from republican consensus to democratic majoritarianism, and from the rule of law to the rule of men–via executive branch edicts and waivers, Obamacare is whatever the Obama administration says it is, no more or less.

    This isn’t good.


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