In November 2010, voters across Wisconsin sent a message to their state government that the status quo wasn’t acceptable. Now that legislative majorities have switched in both the Senate and Assembly, legislators are looking for new ways of structuring state government to turn the state’s economic fortunes around.
Among the changes being considered by lawmakers is a constitutional amendment to require a two-thirds majority in the Legislature to raise taxes. Currently, 16 states have such a requirement, although the specifics vary greatly.
The arguments in favor of using supermajorities to pass legislation of heightened importance go back to the founding of our nation. The supermajority concept was endorsed by James Madison, the author of the bill of rights and the namesake of Wisconsin’s capital city.
This report argues in favor of Wisconsin implementing a constitutional amendment requiring a two-thirds majority in order to increase taxes. The permanent nature of taxation merits a heightened standard from the Legislature.
For instance, the Legislature first passed an income tax in 1911 — Wisconsin was the first state to do so — and few changes have been made to the tax since then. Other taxes have been passed under the guise of being “temporary” taxes, but few have been repealed. Since taxes tend to last, it is important to give more voice to the future taxpayers who will be footing the bill. A supermajority standard will enforce an intergenerational equity — taxpayers will not be able to reap the benefits of taxes collected today while requiring future generations to pay for them. Slowing tax increases now will guard our children from being saddled paying for entrenched programs.
Furthermore, Wisconsin already uses the supermajority requirement for legislation it deems important. When the Legislature wants to override a governor’s veto, it requires a two-thirds vote in both the Senate and Assembly. Perhaps the most famous supermajority is the 60-vote requirement needed in the U.S. Senate to pass most legislation.
Not surprisingly, income, sales, and corporate taxes in states with supermajority requirements tend to be lower. One study was able to attribute an 8 to 23 percent reduction in a state’s tax rate to the supermajority requirement. In looking to improve Wisconsin’s jobs climate and to increase business opportunity, implementing a supermajority requirement would be a prudent action for the Legislature to undertake.
Our founding fathers took great pains to ensure that no one faction of society would ever gain absolute power. For each branch of government, they created checks and balances. For the minority, they instituted universal rights that no vote could erase. And for the majority, they granted the power to elect leaders and make decisions within the Legislature. Yet in certain instances, they recognized that a simple majority of the population was not meaningful enough to enact an enduring policy. These instances called instead for the will of the supermajority of the people.
Some supermajority requirements are spelled out explicitly in the Constitution. Overriding a presidential veto, impeaching a federal officer, ratifying a treaty, expelling a member of Congress, and amending the Constitution all called for, in their opinion, a mandate that was stronger and less subject to fleeting whims than a simple majority vote from Congress.
A review of the Federalist Papers reveals deep concern for the integrity of the legislative vote. In Federalist No. 58, James Madison expressed his hope that a supermajority would be both a “shield to some particular interests, and another obstacle generally to hasty and partial measures.” Madison believed in the power of a supermajority to temper the influence of organized interest groups as well as any impulsive tendencies in the electorate.
Yet not all of the founding fathers were convinced that a supermajority was a worthy idea. Some, like Alexander Hamilton, needed time to consider the idea. However, the Federalist Papers showcase how even he came to believe that a supermajority requirement had a place in a democracy. Eventually, Hamilton wrote of its merits in Federalist No. 73: “It establishes a salutary check upon the legislative body…calculated to guard the community against the effects of faction, precipitancy, or of any impulse unfriendly to the public good, which may happen to influence a majority of that body.” Hamilton saw the supermajority as a way to also guard the public against any sentiment that might disproportionately affect the majority of the Legislature.
Supermajority requirements have been built not only into the U.S. Constitution, but into state constitutions as well. Often, they stem from the same philosophical basis as the federal requirements. States, however, have been more willing to add supermajority requirements after the original drafting of their constitutions, addressing issues including overturning governors’ vetoes and passing state budgets.
With the constitutional basis that exists for the use of the supermajority requirement, these types of heightened majorities have been enacted in federal and state constitutions and included in legislative rules and statutes.
In 1995, the 104th Congress, under Republican leadership, established House Rule XXI(5)(c), which required three-fifths of the House of Representatives to raise the federal income tax.1 Those who opposed the change contended that the founding fathers did not intend for any other issue to require more than a simple majority vote.
These opponents brought their case to the U.S. District of Columbia Court of Appeals in Skaggs v. Carle. Their argument, as summarized by then-Circuit Judge Ruth Bader Ginsburg, stated that the rule was “repugnant to the principle of majority rule they see embodied in the presentment clause of Article I, § 7 of the Constitution (‘Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States’).”
In Ginsburg’s majority opinion, though, she found that the appellants “lack standing to challenge Rule XXI(5)(c),” since they could prove no concrete injury that resulted from the rule (Ginsburg, 1997).
The Senate, too, has instituted additional supermajority voting requirements, most notably to invoke cloture. The American public was recently able to witness a great deal of debate on cloture during the debate over health care, which was passed with less than the requisite 60 votes in the U.S. Senate.
Under Senate Rule XXII, three-fifths of the Senate is required to end debate on most matters. This same percentage of the Senate can also, in post-cloture consideration, vote to extend the time allowed for consideration of the measure.2 While the Senate filibusters are often politically charged and controversial, the rule for invoking cloture was broadly supported in the belief that open debate and discussion were paramount to a thoughtful democracy.
Among state governments, Arizona is the only state that included a supermajority requirement to approve tax increases (two-thirds of both houses are required). An additional 15 states with a supermajority requirement to raise taxes enacted the requirement after the creation of their constitutions. In 1934, Arkansas became the first to amend its constitution to require a three-fourths majority to increase only those taxes that existed at the time, leaving new taxes exempt from any additional vote requirements. Most recently, in 2000 Kentucky enacted an amendment requiring a three-fifths majority to raise taxes in odd-numbered years.3
The Supermajority Requirement to Raise Taxes
But what would lead states to consider additional voting requirements for the specific issue of raising taxes? By harking back to the original intent of a supermajority requirement, some states have decided that the logic behind its use coincides with the idea of taxation. When the founding fathers decided to raise the voting standard for amending the Constitution or overriding presidential vetoes, they focused on ideas that would be central to the function of the Legislature and have lasting effects on the nation.
Taxation at the state level meets them as well. The power of the purse is often referred to as one of the most important powers of both state and federal legislatures. This ability to extract and redistribute the resources of the people is a responsibility that should meet the higher standard.
The effects of any tax increase on citizens tend to be enduring. For example, Wisconsin became the first state to institute an individual income tax when it created it in 1911, and, after 100 years, there are no signs that this tax will be repealed in the near future. Given this, the fact that many states increased their tax rates in 2009 to help deal with revenue shortfalls can be cause for great concern.4 For example, Illinois recently increased its state income taxes by 67 percent to deal with a temporary decline in revenues. Given past experience, it is likely these “temporary” taxes are here to stay.
Special Interest Influence
As WPRI polling attests5 the public is convinced that special interest lobbying dominates the public policy agenda within government. Given the fact that no fewer than 600 state government lobbyists were registered in the last legislative session, a strong case could be built to support the public’s suspicion. Nowhere is the work of lobbyists more pronounced than in the shaping of Wisconsin’s tax code.Special interests are more likely to get involved in the legislative process when tax creation or exemptions are being considered. As John O. McGinnis and Michael B. Rappaport point out: “One of the fundamental problems of democratic politics is that concentrated interest groups have more influence with legislators than diffuse groups, even if the diffuse groups represent a numerical majority.”6 The concern that naturally follows is the plausibility of a special interest group using its influence to enact a policy that taxes it lighter than the rest of the electorate, who must compensate for its exemption.
Taxation is a central function of the state and federal legislatures. It has far-reaching effects on almost every entity in society, and can be subject to the specialized interests of certain members in society. It not only collects and redistributes the resources of the people, but can create incentives that influence them as well. Given the significant and lasting impact of changes to tax policy, combined with the influence of special interests, it is reasonable to consider whether a supermajority requirement might not mitigate the potential influence of a narrow special interest.
Arguments for a Supermajority Requirement
Currently, 16 states require a supermajority of their legislature to raise taxes, though the rules and application of this requirement differ by state. Those with some form of a supermajority requirement to increase taxes include Arizona, Arkansas, California, Colorado, Delaware, Florida, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Nevada, Oklahoma, Oregon, South Dakota, and Washington.7
Table 1: States With Supermajority Requirements to Raise Taxes
Type and Year
Constitutional, Created in Constitution
Constitutional, Enacted 1934
Constitutional, Enacted 1979
Constitutional, Enacted 1992
Constitutional, Enacted 1980
Constitutional, Enacted 1971
Constitutional, Enacted 2000
Constitutional, Enacted 1966
Constitutional, Enacted 1994
Constitutional, Enacted 1970
Constitutional, Enacted 1996
Constitutional, Enacted 1996
Constitutional, Enacted 1992
Constitutional, Enacted 1996
Constitutional, Enacted 1996
Statutory, Enacted 1993
Source: Center for Fiscal Accountability
Other states are at present considering similar legislation, such as the Illinois House Joint Resolution Constitutional Amendment 28.8
The arguments for enacting a supermajority requirement to raise taxes in the state of Wisconsin are both theoretical and empirical. While some of these concerns stem from the same philosophical basis that has been used to justify the same standards written into the constitution, present-day observations offer other causes to consider their use in the Wisconsin State Legislature.
In the U.S. Senate, the use of a supermajority filibuster has tempered the “counter-majoritarian problem.” The counter-majoritarian issue arises from the fact that unelected judges can overturn decisions and legislation crafted by a popularly elected legislature. This is particularly seen in the process of confirmation of Supreme Court justices. The presence of the filibuster means that it would take a supermajority of 60 senators to confirm a judicial nominee. Since the Senate is more likely to represent a spectrum of political ideology, a supermajority of that spectrum crosses over from one political ideology to the moderate members of the other.
Essentially, the supermajority requirement for filibuster and, by extension, judicial confirmation, has the effect of forcing presidents to nominate somewhat more moderate judges.9
The same logic can be extended to proposed tax increases. The supermajority requirement of the filibuster moves the level of politicization towards the center, requiring votes from a broader ideological spectrum. This essentially stabilizes the level and impacts of taxation, both by appealing to the center of the population and by ensuring that change will only occur when there is sufficient political will to do so. Yet the political spectrum is not the only one moderated by this standard.
A supermajority requirement’s ability to stabilize decisions against a particular ideology can also work to temper special interests. As was previously noted, small but well-organized groups can often exert greater influence than a diffuse numerical majority of the electorate. By requiring these interests to win over a much higher percentage of legislators, a higher standard naturally serves to block any attempt to influence taxation.
There is also evidence to suggest that supermajority requirements to raise the tax rate can prevent tax increases and even lower the rate of taxation within states. In his study comparing individual states’ tax rates, Brian G. Knight found that supermajority requirements produced a “statistically significant” effect. Namely, he was able to attribute an 8 to 23 percent reduction in the tax rate to the presence of a supermajority requirement.10 The effects of the study, published in 2000, were stronger than those found earlier. The results show that the mechanism is indeed an effective way to control the tax rate at the state level.
But did this decreased tax rate come at the expense of the budget or the debt of states? In times of economic recession, this is an especially relevant concern, as states struggle to deal with decreased revenue. Further evidence suggests that this is not in fact a byproduct of supermajority requirements. During the summer of 2003, these higher standards against raising taxes forced state governments to use other measures to balance the state budget.
Michael New, writing for the Cato Institute, explains: “Eight of the nine states that enforced comprehensive supermajority limits balanced their budgets without raising taxes. The spending-cut-to-tax-increase ratio in these states was an astounding 137 to 1. Conversely, in the rest of the country, tax increases exceeded spending cuts.”11
New makes the distinction between states that did and did not enforce supermajority limits on tax increases. However, under this qualification, he proves that supermajority requirements to increase taxes do not create a hole in the state budget, but rather encourage reduced spending.
Arguments Against a Supermajority Requirement
Opponents to a supermajority requirement come from a philosophical and an empirical base. Some opponents attack the very ideology behind a supermajority requirement, while others believe that the costs outweigh the benefits once these measures are put into place.
The sharpest attacks against supermajority requirements come from those who believe them to be unconstitutional. These opponents fall into two camps. In one camp are those people who accept the supermajority requirements already written into federal and state constitutions as legitimate. In the camp are those who see the very concept of a supermajority as undemocratic.
Those in the first camp argue that if the founding fathers had wanted taxation to be an issue of greater deliberation, they would have made it so. Retroactively applying the supermajority requirement to taxation runs counter to the framers’ intent.
Those in the second camp insist that a supermajority requirement perverts the ideology of rule by the people because the majority no longer has the power to change government. Rather, they contend that the minority is overly empowered in its ability to block legislation that the majority has crafted.
Others, however, purport the exact opposite: that supermajority rules are in accordance with democratic principles. The first of these principles is that of self-governance. McGinnis and Rappaport argue that it is entirely democratic to allow government to impose rules upon itself as it sees fit.12 While the Constitution spelled out voting requirements for certain issues, it left vague the type of majority required for others.
Additionally, they state that even the framers of the Constitution “understood that legislative majorities were but an imperfect reflection of the majoritarian will of the people as a whole.”13 A supermajority requirement does change the influence a minority has to block legislation, but it also increases the chance that the concerns of the minority will be considered in the legislative process.
Ultimately, this reaffirms the idea that government can then determine its own majority requirements based on the advantages and disadvantages it wishes to accept. Finally, they point out that supermajority requirements do not pervert the principle of majority rule more so than any other feature of our government. Because there are a multitude of obstacles that block any one majority from ever gaining total control, such as the Bill of Rights, bicameralism, and the entire system of checks and balances, supermajority rules can be seen as a feature befitting a balanced democracy.14
Enacting a supermajority requirement after the original ratification of a constitution holds the prospect of entrenching tax codes and structures, exemptions, penalties, restrictions, and other special considerations that legislatures have enacted over time. According to Minzer, “Depending on the extent to which they can be waived…supermajority requirements allow a current majority to lock in the status quo, inflating their power with respect to future majorities.”15
If enacted as a statute, it will take a simple majority to enact a supermajority, but also a simple majority to waive the rule. The ultimate effectiveness of such a method of enactment is doubtful. Statutory requirements, such as the requirement to maintain a budget reserve, have proven unreliable in Wisconsin.
The empirical effects of supermajority requirements have also attracted criticism. The first claim made by opponents is that supermajority requirements to raise taxes just shift where legislatures attain their funding. The evidence to support this claim is mixed.
There is evidence to suggest that, in some states, loopholes have been exploited and fees have been raised when taxes were not.
Louisiana provides an example of how the wording of a supermajority requirement can leave loopholes. As Minzer points out, “In 1993, by less than a two-thirds margin, the legislature authorized the recovery district to waive a sales tax exemption on certain items, effectively imposing a new tax. The vote was a last-ditch solution to another financial crisis when the legislature was unable to attain a two-thirds majority for a direct tax increase.”16 Indeed, wording is of utmost importance if loopholes are to be avoided. When fees are excluded from the wording of the requirement they can become another area of revenue shifting in times of need.
Many of the loudest cries against a supermajority requirement have come from residents of California, where a supermajority is needed to pass a budget. Fears that a supermajority will lead to holdouts in exchange for pork-barrel legislation have been realized, and delays in passing the budget have worsened budget deficits.
The San Jose Mercury News editorialized against the state’s most recent budget:
As the Legislature then argued over budget shortfalls, the need to find a two-thirds majority again worked against a responsible budget. Democrats blocked spending cuts, and Republicans refused to raise taxes. The result was a budget that deferred expenses, fudged and borrowed to get by….
The two-thirds rule is a case where suspicion of government has made government worse. While in theory it requires legislators to find the prudent middle ground, in practice it produces last-minute budgets with goodies for everybody, instead of a sober, coherent plan of action.
Additionally, spending in the state has increased just as often as it has decreased, largely depending on the party of the minority voting bloc and the governor.17 It is worth pointing out, however, that many of the studies that have confronted the problems with California’s budget process have made the distinction between the supermajority needed to pass the budget and that needed to raise taxes, noting that the latter is “not the problem at hand.”18
Defining the Details of a Supermajority Requirement
The wording of any supermajority requirement to raise taxes is crucial. Vague or incomplete language can leave room for unintended loopholes. Uncertainty in the details, wording, or implementation of a supermajority requirement poses just as great a threat to its success as any of the arguments against it.
One of the seemingly smaller yet significant details is whether or not to include raising fees in the heightened voting requirements. Many states do include fees in the amendments and statutes requiring a supermajority, and in the last session, Illinois considered legislation that included the two. These states have decided that it is much easier to define the two equally and avert getting lost in definitions and litigation. These states may have also held in high regard the goal of reining in government spending by limiting government revenue.
However, if a state chooses to exclude fees from strict voting regulations, a bright line between taxes and fees must be declared.
Additionally, the method by which a supermajority requirement is enacted affects its effectiveness. Fifteen of the 16 states that use the standard enacted it as a constitutional amendment. Only Washington passed it as a statute. As a statute, Washington can invalidate the requirement with a simple majority vote, and did so in February 2010 to aid in closing its $2.6 billion budget gap.
In November 2010, voters passed an initiative to reaffirm the two-thirds supermajority that had been suspended by the Washington legislature. Washington’s experience suggests that if a state is serious about this approach to tax regulation, it must be willing to add it in the form of a constitutional amendment.
If Wisconsin were to enact a supermajority requirement, it should:
- Be enacted as a constitutional amendment, so it would take another constitutional amendment to undo.
- Set the supermajority threshold at a two-thirds vote in both the Senate and Assembly, to match it up with the same level as other supermajority rules in the state constitution (veto overrides, etc.).
Defining what fits under the two-thirds supermajority requirement is somewhat tricky. If fees are included, then it would take a two-thirds supermajority for the Legislature to raise small fees, like hunting and fishing license fees. Yet if these fees are not included, then the Legislature could raise them greatly and begin funding programs with fee revenue instead of tax revenue, which would be capped. Traditionally, Wisconsin has been a low-fee state, but that could change if there are no limits placed on fee increases once taxes are limited.
If a two-thirds supermajority is enacted, the Legislature could address the fee problem by also passing an accompanying constitutional amendment that protects segregated funds (generally funded with fees) from being used for purposes normally reserved for general fund taxes. This would allow for flexibility with fees, but would make sure those fees are used in the intended manner for which they are raised, rather than serving as a substitute for general fund tax revenues. (Such a proposal is currently circulating in the Wisconsin Legislature.) Again, this would need to be a constitutional amendment, as the Legislature could invalidate it whenever they wished if it were merely in the statutes.
If Wisconsin had implemented a supermajority requirement to increase taxes a number of years ago, the state budget would currently look very different.
Given the thin margins by which recent tax increases passed in both the Assembly and Senate, it is unlikely many of the tax increases enacted in recent budgets would have made it into law.
Table 2 shows the narrow margins by which the past three budgets have passed each house of the Legislature.
Table 2: Final Passage Budget Votes, 2005-2009
Percent Yes Assembly
Percent Yes Senate
Source: Wisconsin Legislature
In those three budgets that have been passed since 2005, taxes and fees have been increased by over $2 billion in the span of six years. Table 3 demonstrates the tax, fee, and “revenue enhancement measures” implemented in the state budget over the past six years:
Table 3: Tax and Fee Increases in the Prior Three Wisconsin State Budgets
Total Tax, Fee, and
Source: Legislative Fiscal Bureau
Thus, in the absence of strong bipartisan agreement, this report’s recommendations likely would have thwarted over $2 billion in new taxes, fees, and “revenue enhancements” (including things like hiring more Department of Revenue agents to collect more taxes) over the last three budgets.
In each of these budgets, the governor and Legislature were dealing with significant budget deficits. The deficit in 2009-11 alone reached over $6 billion before it was “fixed” with a combination of tax increases, federal money, and one-time fund lapses (which simply pushes much of the deficit into the next biennium).
Limiting the Legislature’s ability to raise taxes would have significantly changed the budgeting process during these biennia. The state would have utilized any number of the following strategies, all of which have been used in the recent past:
- Spending cuts
- Receiving more federal money
- Financing ongoing operations with debt
- Fund transfers
- Delaying spending obligations until the next biennium
So while a supermajority requirement to raise taxes and fees would have saved taxpayers $2 billion over the past three budgets, the public would still need to be vigilant in demanding honest budgeting from their elected officials.
In fact, while many legislators were bemoaning the state’s deficits as a byproduct of a bad economy, tax increases authorized by legislators themselves certainly exacerbated the problem. The $2 billion in increased taxes and fees allowed lawmakers to prop up unsustainable spending levels. When revenues began to retract, the spending was there, but the funds to pay for it suddenly weren’t.
By creating a higher threshold to raise taxes, spending will have to remain at sustainable levels. Thus, when revenues begin to fall off, shortfalls should be more manageable — although tax increases will be less available as an option to close imbalances.
From the drafting of the U.S. Constitution to the current debate, supermajority requirements have a long history in both U.S. and state governments, where they tempered the whims of a simple majority and protected the minority. Though they present tradeoffs for majority and minority members of legislatures, they fall within the principle of creating adequate checks on all parties of government.
Wisconsin has much to gain by enacting a constitutional amendment requiring a two-thirds majority to raise taxes and fees. Its citizens would be further insulated from a government all too willing to fix deficits with rate increases, and its legislators would need to learn to balance budgets through more sustainable measures. Those increases that did pass would likely be the result of a compromise bill that reaches out to the minority, rather than a last-minute attempt to balance the budget.
While it is advisable for the state to consider enacting this supermajority requirement, it must first ensure that the tax codes it would be entrenching are without major flaws, inequities, or other undesirable provisions. The state should also contemplate enhancing the performance of the supermajority requirement by enacting measures that would help protect its integrity, such as stricter balanced budget requirements or bans on the raiding of specific funds for general use. Once the state has made these adjustments, a supermajority requirement imposed upon votes to raise taxes and fees can help prevent the $2 billion increase in taxes and fees that we have seen in the past six years from escalating in the future.
Minzer, Max. “Entrenching Interests: State Supermajority Requirements to Raise Taxes.” Akron Tax Journal. Vol. 14. 1999. p. 43-89. 2
Congressional Research Service. “CRS Report for Congress: Supermajority Votes in the Senate.” February 20, 2001. 3
Center for Fiscal Accountability “States with a Supermajority Requirement to Raise Taxes.” Americans for Tax Reform. September 4, 2008. <http://www.fiscalaccountability.org>. 4
Pound, William T. “State Tax Update: National Conference of State Legislatures. July 2009.” National Conference of State Legislatures. July 2009. <http://www.ncsl.org>. 5
Wisconsin Policy Research Institute 2010 Survey of Public Opinion, /polls/March2010/March2010Poll.html 6
McGinnis, John O., and Rappaport, Michael B. . “The Constitutionality of Legislative Supermajority Requirements: A Defense.” The Yale Law Journal. Vol. 105, No. 2. The Yale Law Journal Company Inc. November, 1995. <http://www.jstor.org>. 7
Center for Fiscal Accountability. 8
Illinois General Assembly Website “Bill Status of HJRCA0028.” 2010. <http://www.ilga.gov/legislation/ >. 9
McGinnis, John O., and Rappaport, Michael B. . “In Praise of Supreme Court Filibusters.” Harvard Journal of Law and Public Policy. Vol. 33, No. 1. <http://www.heinonline.org>. 10
Knight, Brian G. “Supermajority Voting Requirements for Tax Increases: Evidence from the States.” Journal of Public Economics. 2000. p. 41-67. 11
New, Michael. “Fiscal Strategies for the States.” Cato Institute. September 7, 2003. <http://www.cato.org>. 12
McGinnis, John O. and Rappaport, Michael B. . “Majority and Supermajority Rules: Three Views of the Capitol.” Texas Law Review. Vol. 85: 1115. 2007. 13
McGinnis . 14
McGinnis . 15
Minzer, Max. “Entrenching Interests: State Supermajority Requirements to Raise Taxes.” Akron Tax Journal. Vol. 14. 1999. p. 43-89. 16
California Citizens Budget Commission. “Reforming California’s Budget Process.” Center for Governmental Studies. Los Angeles, CA. 2005. 18
Rosenberg, Kevin S. “Enacting the California State Budget: Two-Thirds is Too Much.” Pacific Law Journal. Vol. 25. 1993.