Tyranny by the super-majority?
Tyranny by the super-majority?
Is it fair to assume the present generation is more competent than future ones?
Democracy is sometimes described as tyranny by the majority. This reflects the idea that a majority, as few as 50%+1 of voters, can impose their decisions on the minority, as many as 50%-1 of voters.1
50%+1 is the normal decision cut-off in democratic systems. This is not the only workable cut-off. Consensus decision-making, for example, relies on unanimous support for proposals. Consensus is sometimes cast as tyranny by the minority, given that just one voter can block a proposal.2
How then should we understand a proposal currently before the New Zealand Parliament to entrench provisions of the Water Services Entities Act, so that future Parliaments could not change those provisions without a super-majority? In that instance at least 60% of future MPs would have to vote in favour of change, reflecting that 60% of current MPs supported the entrenchment.3
The calculus of consent
My go-to source on voting arrangements is the Calculus of Consent by James Buchanan & Gordon Tullock, first published in 1962.4 James Buchanan won the 1986 Nobel Prize in Economics “for his development of the contractual and constitutional bases for the theory of economic and political decision-making”. The prize citation specifically mentioned the Calculus of Consent.
Buchanan & Tullock make the important distinction between the power to make change, and the power to block change.
Under a 50%+1 rule, this power is symmetric. That is, 50%+1 of those voting can make — or block — a specific change. A 60% rule, in contrast, creates an asymmetry. The requirement for 60% agreement to make a change means two things:
a majority of 50%+1, but less than 60%, cannot make a change
a minority of 40%+1 can block a change
This situation could be also characterised as tyranny by the minority, where the tyranny is limited to forcing the retention of the status quo.
What if entrenchment became normalised?
The MPs advocating these specific entrenchments may well believe that this is a special case. But I have no doubt that their passion on this specific issue is likely matched by the passion of others on issues dear to their hearts.
So, here’s my hypothetical. Every bill introduced to Parliament includes a clause saying that that the bill, once enacted, cannot be revoked or modified by a future Parliament without the support of the same or greater super-majority of MPs. So, a bill passed by 55% of MPs would require 55% or more to change, ditto 80%.
Further, having accepted entrenchment in principle, there is nothing to stop parties entrenching existing Acts. The parties controlling say 55% of votes in Parliament could pass a bill requiring a 55% super-majority for changes to, well, anything and everything they though valuable.
Binding future governments in this way is far from ideal. Ultimately, the reason we have governments at all, rather than trusting everything to a rule-book written by the current or a past generation, is that the future is unpredictable. The binds that seem sensible today may be unnecessarily constraining or just plain anachronisms in future.
I realise that I have used a slippery slope argument here; a form of argument that, generally speaking, I’m not fond of.5 In my experience they are over-used, and often lack a convincing argument as to why a particular slope is slippery, that there are not countervailing mechanisms to arrest a slide, or even that there is an actual slope involved.
That said, there are real-life slippery slopes. Mountaineers can tell you they feel a lot more confident with an ice-axe in hand.
I cannot say whether supporting this particular instance of entrenchment will or will not encourage more instances — a fast slide down that slippery slope. But, following through on my hypothetical, I do think the destination at the bottom of this particular slope is particularly unattractive.
Tyranny by past super-majorities
Entrenchment binds all future Parliaments, including ones controlled by the same parties that voted for entrenchment. I think its advocates are making three strong assumptions:
They do not trust the opposition parties to make sensible choices, should those parties gain a simple majority in a future election.
They do not trust future members of their own parties to make sensible choices, should these parties gain a simple majority in a future election.
Ultimately, they do not trust future voters to make sensible choices.
These assumptions are implicit, and not necessarily intentional. But they should give pause for thought. Just as today’s news is tomorrow’s chip wrapper, the best intentions of today’s super-majority are limited by their inability to foretell the future.
To tie back to this substack’s name and common theme, there is an information asymmetry between today’s super-majority and tomorrow’s ordinary majority.
Is it reasonable to assume the present generation is more competent than future ones? I don’t think so. Future ones will have better information about the circumstances they face, and will have to live with the consequences of their decisions. One way or another, we need to trust them to sort out the problems they face in the best way they see fit.
By Dave Heatley
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This depiction relies on the majority’s interests being aligned, and that they act in a coordinated fashion — assumptions that may fail in practice.
Practical consensus decision-making systems often have a fall-back rule, that might (for example) allow for majority voting in the face of persistent blocking.
People who know New Zealand law better than I have pointed out that a simple majority of Parliament should be able to revoke the whole Act, effectively disabling the entrenchment. But clearly those pursuing entrenchment think it has significant power — legal, moral or practical — to bind future parliaments. For the purposes of this post, I have assumed that the entrenchment has a more than symbolic effect.
For an ungated copy See: The Collected Works of James M. Buchanan, Vol. 3. The Calculus of Consent: Logical Foundations of Constitutional Democracy, with a Foreword by Robert D. Tollison (Indianapolis: Liberty Fund, 1999).
Slippery slope arguments take the form of “we can’t allow even one X, because that would open the floodgates to many, many X’s, and that would be bad”.