Republished with permission from Governing Magazine, by Lindsay Chervinsky
As Democrats in Congress debate and attempt to pass the reconciliation and infrastructure bills, many Americans are wondering why it seems so hard for Congress to legislate. The gridlock is the product of decades of legislative machinations and not what the Constitution, nor the framers, intended.
Article I of the Constitution crafted the legislative branch of the federal government and outlines the authority delegated to Congress. Perhaps most important, “All legislative Powers herein granted shall be vested in a Congress of the United States.” Section 7 explains the process: “Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States.” Meaning, both the House and Senate must pass the proposed bill by a simple majority. How do we know? Just a few sentences later, the text specifies that a two-thirds majority is required to override a presidential veto — a higher measure than the simple majority required for the first pass.
The framers hoped that the Senate might serve as a check on partisan passions they anticipated would dominate the House of Representatives. They included two key provisions to ensure the Senate would withstand political motivations and lead with more long-term vision. First, senators would fill six-year terms, so they were less likely to be voted out of office for one potentially unpopular decision. Second, the framers arranged for state legislators to select their senators, rather than untrustworthy voters.
Despite the framers’ expectations that the Senate would be the more cautious body, they did not intend for it to prevent all legislation. In “Federalist No. 10,” James Madison pondered the influence of faction and insists on the right of majority rule: “Relief is supplied by the republican principle, which enables the majority to defeat its sinister views by regular vote.”
So, the framers intended for a majority vote to secure the passage of legislation. Then how did we get to where we are now? The process began, inadvertently, in 1805, when Vice President Aaron Burr made a suggested change to the rules. The Senate rule book was an ongoing project and often quite repetitive. At the time, senators utilized several provisions to end debate and proceed to a vote. Burr suggested that they remove the rule that allowed a simple majority vote to end debate, since the senators rarely used it anyway. The senators agreed.
Although this rule change opened the door for the filibuster, no one employed this new measure until 1837, when a group of Whig senators held the floor to prevent Andrew Jackson’s allies from expunging his censure from the Senate record. Over the next decade, John C. Calhoun made the filibuster famous, by routinely using the “talking filibuster” to obstruct measures that attacked the economic and political influence of the South.
Filibusters increased in frequency over the course of the 19th century until 1917, when the Senate adopted a new rule that “allowed the Senate to invoke cloture.” Under this new rule, the Senate could end debate with a two-thirds supermajority and move onto the official vote on the proposed legislation.
While President Woodrow Wilson first advocated the use of cloture to force the Senate to pass key defensive measures during World War I, segregationists seized upon this legislative tool to protect their worldview just a few years later. They turned the cloture vote into a vote on the legislation itself, rather than just a vote to end debate. As a result, legislation that once required 51 votes to pass now took 66. In 1975, the Senate passed a revision reducing the cloture rule to a three-fifths supermajority, or 60 votes, to override the filibuster, instead of the original two-third limit.
Even with the regular usage of the filibuster on civil rights legislation, the Senate continued to function as a majority-rule institution for most matters. For example, Adam Jentleson, author of Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy, shares an illuminating example from 1964. As President Lyndon B. Johnson campaigned for Medicare, an aide shared the news that the bill would pass because his whip count placed support at 55 votes, enough to pass. In other words, only a majority vote was required.
The remaining vestiges of majority rule have evaporated over the last few decades with the adoption of a new process that allowed senators to simply announce their intention to filibuster a bill. Today, senators no longer stand on the Senate floor for hours or days to obstruct legislation. Instead, they can just send an email. As a result, the ruling party now must effectively obtain 60 votes to introduce a bill.
Since its inception, both parties have employed the filibuster. However, the Center for American Progress has documented every usage of the filibuster and found that Senate Republicans have utilized the filibuster roughly twice as much as their Democratic counterparts since the 1980s.
Article I, Section 7 of the Constitution is unchanged since its adoption in 1788, and the House of Representatives still passes legislation by a simple majority. The Senate is the main obstacle to legislative productivity. The principle of majority rule outlined in the Constitution therefore remains subverted until the cloture rules are reformed or abandoned.
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