the Senate. Just as the Senate is barred from passing laws that conflict with the Constitution, it also cannot pass rules that conflict with the Constitution. So, for instance, the Senate surely could not pass a rule prohibiting Catholics from participating in debate — clearly, such a rule would be at odds with the First Amendment. Sen. Udall will speak more about constitutional limitations upon the Senate’s rule-making power, so I will let him elaborate. But keep this point in mind.
Filibuster fans also regularly claim that the Framers envisioned unlimited debate in the Senate, even if they did not write it into the Constitution. To support this argument, they inevitably tell a certain story about George Washington. According to legend, the first president likened the House of Representatives to a hot cup of coffee. As for the Senate, he explained, “we pour legislation into the senatorial saucer to cool it.”
Practical questions aside (is this really the best way to cool hot coffee?), this metaphor tells us nothing about the filibuster.
There is no question that the Framers intended the Senate to be a thoughtful body. But they sought to achieve this goal through a variety of structural features meant to facilitate deliberation — such as the Senate’s smaller size, longer terms, older members, and egalitarian structure.3 There is no indication that the Framers anticipated for the Senate’s rules to allow unlimited debate.
In fact, the first House and the first Senate had nearly identical rulebooks. Both included what’s called a motion for a “previous question.” Today, the House uses this motion to allow a simple majority to cut off debate. The Senate removed this provision in 1806, not — as far as anyone can tell — due to a desire to promote unlimited debate, but because it was unnecessary. At the time, the Senate was a small, fraternal place with little need to reign in relentless obstruction. Although this move ultimately allowed the filibuster, that was not the original intention. Removing the previous question motion appears to have been nothing more than an administrative decision with unintended consequences.
More importantly, perhaps, today’s filibuster simply does not promote debate. It is a used instead to block substantive decision-making. And it is employed constantly, creating a de facto 60-vote requirement for regular Senate business.
This supermajority requirement was plainly not envisioned by the Framers.
To start, the Constitution itself was largely a response to the failings of the Articles of Confederation, our country’s first set of laws. The Articles of Confederation required a supermajority vote to legislate in several areas — like coining money, appropriating national funds, and determining the size of the army and navy. As a result, gridlock was common. Alexander Hamilton, reflecting on this failure, noted that while supermajority requirements were supposed to add stability to government, “its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure … of an insignificant, turbulent, or corrupt [faction] [for] the regular deliberations and decisions of a respectable majority.”4 Sound familiar?
So in drafting the new Constitution, the Framers decided that a supermajority vote was appropriate only in seven extraordinary situations — which they specifically listed. For example, a two-thirds vote is needed to override a presidential veto, to expel a member of the Senate, or to convict a federal officer of an impeachable offense. For ordinary business, on the other hand, the Framers clearly anticipated the use of majority voting rules.
To be clear, the Constitution does not expressly order the everyday use of majority voting. But there are clues that allow us to be quite confident about the Framers’ intent. For one, the Constitution specifies that a simple majority “shall constitute a Quorum to do Business.” And the Constitution designates a tie breaker — the vice president only has a say when votes are equally divided. A tie vote is only con