COLUMN RIGHT / JOEL FOX : When Is Majority Rule Too Easy? : A two-thirds requirement fits when the ones who vote and the ones who pay aren’t the same.

In a democracy, when it comes to a vote, majority rules. Except in California when the vote is for increased taxes.

The State Supreme Court has upheld Proposition 13’s provision requiring a two-thirds vote to raise local taxes. The decision comes during a protracted recession when most governments are scrambling for more revenue, thus setting off howls of protest from the bureaucracy.

The section of Proposition 13 dealing with local taxes was designed to protect the taxpayer from losing property tax savings to increases in other kinds of taxes.

A two-thirds vote was also required in the state Legislature under Proposition 13 to prevent new state taxes from replacing the property tax money now kept by the taxpayer.

Considering the nature of legislative bodies, the two-thirds vote requirement was a long time coming. The problem was memorably exposed nearly 200 years ago by John Randolph, a congressman and senator from Virginia in the early days of our republic, when he excoriated his colleagues: “You enjoy the most delicious of all privileges, spending other people’s money.” It is a privilege lawmakers pursue with such zeal that the taxpayer must have a special protection. The two-thirds vote is the taxpayers’ shield.

Since a two-thirds vote makes it more difficult to tax, those interested in higher taxes grumble and attack the supermajority vote as undemocratic. Not only should the majority rule, the argument goes, but there is a tyranny of the minority in blocking the will of the majority with a two-thirds vote. Assemblyman Jack O’Connell (D-Santa Barbara) says one “no” vote should not have the weight of two “yes” votes.

However, the concept of the two-thirds vote has always been part of our democratic republic. The requirement appears 10 times in the United States Constitution. It was designed to give certainty to important decisions: For example, to secure an impeachment; to approve a treaty; to override a presidential veto.

There is no more important function of government than levying taxes. The power to tax is the essence of government; the control of taxation is the control of government. So the two-thirds vote is a buffer against a tyranny of a majority.

It took a visitor to America, Alexis De Tocqueville, to see how the majority could tyrannize the minority when it came to taxation, especially when the minority was required to pay. “As the great majority of those who create the laws have no taxable property, all the money that is spent for the community appears to be spent to their advantage, at no cost of their own.”

Tocqueville’s theory applies to all taxes, for there is a tendency for the voter to try to solve a community problem with someone else’s money. Too many ascribe to the ditty: Don’t tax me, don’t tax thee, tax that man behind the tree.

The way to protect the poor taxpayer behind the tree is to require a supermajority vote. Such a vote allows all to vote on an issue, while demanding an extraordinary vote when only one portion of the public pays the bill.

While a two-thirds vote must remain in place in the Legislature, and should be adopted by other governing bodies, to guard against the “privilege” of raising someone else’s taxes, it may be possible to reach for the ideal or majority rule on the local level while at the same time protecting minority rights.

If all citizens pay a tax then a majority vote may prevail--for the voters will be choosing to tax themselves. Examples would be sales or utility taxes.

However, if only certain segments of the population must pay the tax, then they should be protected by a two-thirds vote. Property-related taxes and excise taxes are good examples.

Every tax must be subject to a vote. Placing a name such as “assessment” or “service charge” on the tax should not remove it from the people’s right of approval. However, if the assessment is on property, and the vote is set up so that only those who pay the tax get a vote, then the majority rule shall prevail. If everyone in the voting district gets a ballot on the assessment district, whether they pay the assessment or not, then a two-thirds margin is required.

In a sense, this system is in place now on one level. A local general obligation bond paid for by property taxpayers, a minority segment of society, requires a two-thirds vote; while a state general obligation bond, paid out of the state general fund, which receives money from all taxpayers, needs a simple majority vote.

Under this system the people could sing a new song: I won’t tax you, you won’t tax me, we’ll tax ourselves reasonably.