Budget & Tax

In Defense of Oklahoma's Tax-Hike Supermajority Requirement

April 1, 2009

Joseph D. Henchman

State legislation is often described as an expression of majority rule. However, the legislative process contains steps that seem designed to hinder spontaneous expressions of majority sentiment.

For a bill even to come up for a vote, it needs to demonstrate a likelihood of success and some measure of approval from legislative leaders. Passage must be agreed to by two separate popularly elected houses. The governor, himself popularly elected, must sign the bill. Simply put, the normal legislative process has an implicit goal of ensuring final products are subjected to extensive consideration over a period of time by several actors, and has incorporated elements that further that goal.

In many states, in order to become law, tax increases must constitutionally survive one additional hurdle beyond the hurdles other legislation must survive. These hurdles can include voter approval, multiple readings, and committee origin requirements (as in the federal government). In 16 states, including Oklahoma, the hurdle rises to a higher threshold of legislative approval. In Oklahoma, taxes cannot be raised without approval from the voters or a three-fourths supermajority in each house of the legislature.

Requiring a higher threshold for taxes has historically been justified on similar grounds as for other matters subject to supermajority requirements. Impeachments and removals from office, constitutional amendments, and ending filibusters are all common examples of matters considered so important that a simple majority vote would not deliver the sought-after public consensus and thorough consideration.

Supermajority requirements for tax increases are common and long-standing in the states. It would be silly to say that these requirements are unusual or have destroyed the states where they exist. It is true that they diffuse the will of a bare majority, but so do many other steps in the lawmaking process.

Opponents of tax increase supermajority requirements make three basic arguments.

First, they say that such requirements are unnecessary given Americans' aversion to taxes. Because of this aversion, they say, tax increases are already scrutinized and rare. But tax increases are not so scrutinized and rare as this argument suggests. Once they have momentum toward passage, tax bills often become a magnet for any number of special-interest provisions that increase the complexity and reduce the neutrality of the tax code. Increasingly, states are shifting tax burdens to unpopular political minorities, such as smokers and high-income earners. With only a simple majority needed, there is little need to slow down and consider concerns shared by, or imposed on, a minority.

Second, opponents say that supermajority requirements empower a minority, which in turn can become obstructionist and demand unrelated favors in return for votes. I will concede that a supermajority requirement empowers a minority; indeed, that is its purpose. This in itself is not a bad thing; much of our constitutional structure and the rules of parliamentary procedure are designed to protect the rights of a minority against an otherwise steamroller majority.

Third, opponents say that many supermajority requirements have led to legal uncertainty, primarily because many cover taxes but not fees. A legal scholarship must then be developed which distinguishes taxes from fees, and this is not always easy. I have two responses. First, some states cover both taxes and fees, which eliminates this uncertainty. Second, such a legal scholarship exists and has come to a remarkable consensus. The Tax Foundation tracks dozens of cases and laws in dozens of states, many of which have developed cogent definitions of what taxes are and when they differ from fees.

When evaluating any tax legislation, lawmakers should consider the principles of sound tax policy. Originally developed by Adam Smith, these principles are the subject of surprising consensus between left and right.

The key principles are four. First, simplicity: is the tax code easy to understand for those who must comply with it? Second, transparency: is the method of changing the tax code visible and open? Third, stability: are taxpayer obligations and state revenues unlikely to change dramatically from year to year? Fourth, neutrality: does the tax code focus on raising revenue for the programs society wants to fund, without picking winners or losers or trying to influence behavior one way or the other?

Requiring additional consideration and empowering a minority when considering tax issues means a greater likelihood that the resulting bill will be the product of consensus and thoughtful consideration.

Joseph D. Henchman (J.D., George Washington University) is tax counsel and director of state projects at the Tax Foundation.