The wisdom, and genius, of majority rule

Some perceive that a two-thirds vote is required for passage of Maine state budgets. This is incorrect and I’m glad it is incorrect.

One of my favorite books is Ralph Ketchum’s biography of my hero, James Madison, primary author of what I consider the most holy document of all history: the Constitution of the United States of America.

People make fun of us lawyers, but at least we can claim Madison as one of our own. Weighing in at 100 pounds, Madison was 5 feet 4 inches of legal genius.

Madison had almost no courtroom experience, but he went beyond rhetoric – crafting (and drafting) the architecture of the greatest form of government ever known, our government.

Madison believed, and I believe, that a majority can – and should – exercise the authority it earned at the polls – but do so in a way that is entirely honorable and respectful to the minority.

Aspiring to the highest Madisonian standards is the best way to fulfill that role. Therefore I:

1. Encourage Democratic caucus members to judiciously consider the collective wisdom of our caucus, but then vote their carefully considered conscience – sometimes even against the views of our caucus; and

2. Reach out to the other party as there is more that unites us than divides us.

I do not say this out of mere courtesy (though that’s important). I mean it literally.

Most legislative decisions should NOT be the result of a two-thirds vote. They should be unanimous. That’s right, unanimous. Most of our work is done in committee. Whether it’s Inland Fisheries and Wildlife or Appropriations, the GOAL is unanimity.

I am proud to serve as Democratic majority whip, but I like my Republican colleagues and enjoy their company and ideas. I want to work toward unanimity with them.

Those honestly held feelings of good will in no way translate to conceding veto power to a minority.

Anyone who tells you Maine now has – or should have – a two-thirds vote REQUIREMENT for budgets is wrong about Maine’s Constitution and wrong about the nature of our Republic as set forth by Madison and the founders.

Republicans agree. From 1994 to 2006 Republicans controlled the U.S. Congress. Not once did Republicans seek a two-thirds vote requirement for passing budgets or any other legislation. A two-thirds vote requirement means minority rule. Not heard a single Maine Republican call for minority rule in Congress during the years 1994 to 2006.

Nor should they have done so. The U.S. Constitution (like Maine’s Constitution) requires a majority vote for budgets.

So what did Madison say about majority rule and minority rule?

In “Federalist 58” Madison wrote that if “more than a majority” were required for legislative decision, then “in all cases where justice or the general good might require new laws be passed … the fundamental principles of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority.”

In fact, Madison, in leading creation of our Constitution, was leading us away from the inferior Articles of Confederation, which required super-majorities for appropriations.

Maine’s Constitution, wisely Madisonian, does not require a two-thirds budget. The misconception is one of timelines. In the early 20th century, Maine adopted a July 1 fiscal year instead of a calendar fiscal year (Jan. 1). Maine requires 90 days between passage of a law and its “effective date.” If a budget is passed by April 1 (so as to take effect July 1) a majority vote is required. A budget passed after April 1 cannot go into effect at the beginning of the July 1 fiscal year (less than 90 days later) thus requiring “emergency status”

The right thing to do, under Madisonian principles, is move the fiscal year start-date to more than 90 days after the session is over, so that majority rule remains strong, clear and easily administered. Until then, it is entirely appropriate to pass a budget by majority vote then return to conduct any other business as needed.

The goal of any legislation should be unanimity, but the founders wisely abhorred minority rule. The proposed joint rule was but the pointy edge of a wedge on which Maine would slide backward to the 1700s and the minority rule of the Articles of Confederation.

This antiquated proposal would have empowered a small minority – 12 senators of 186 legislators! – and handed them the ability to veto a law passed by a majority of elected representatives in both houses. This small Senate elite could say, “Yes, there’s the money for your domestic violence program. Yes, there’s a budget surplus, yes a Senate majority supports the measure, yes a House majority supports the measure, yet we 12 voices (of 186) will impose a tyranny of 12 and our 12 are the only voices that will count.”

A Maine law on the books – passed by majority vote – already sets limits on spending. The Legislature has repeatedly complied with that spending cap.

Some may be enticed by the minority rule of pre-constitutional America, but the rest of us must get down to the practical modern business of Madisonian government. We must rely – not on the tyranny of 12 – but the good will and statesmanship of our entire Legislature working together for the common good. Unanimity is the goal, but majoritarianism is the rule. Whether by rule, statute or constitutional amendment, many have advocated for a two-thirds vote rule on budgets. Bad idea.

When the Maine House votes down the tyranny of minority rule, it votes for the ideals of James Madison – a proud moment.

Sean Faircloth, D-Bangor, is a lawyer and the majority whip in the Maine House of Representatives.