Internet Explorer 11 is not supported

For optimal browsing, we recommend Chrome, Firefox or Safari browsers.

How Did the Senate End Up With Supermajority Gridlock?

The Constitution meant for Congress to pass bills by a simple majority. But the process has changed over the decades, turning the Senate’s cautious view on legislation into a major obstacle that can only be fixed by reform.

OPED-DEBTLIMIT-EDITORIAL-ABA
U.S. Senate Minority Leader Mitch McConnell (R-Kentucky) has become the face of the Senate's supermajority troubles. But its origin can be traced back to Aaron Burr and Senator John C. Calhoun, who popularized the filibuster prior to the Civil War. (Yuri Gripas/Abaca Press/TNS)
Yuri Gripas/TNS
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.
Dr. Lindsay M. Chervinsky is an expert in the cabinet, presidential history, and U.S. government institutions. She can be found on Twitter at @lmchervinsky.
Special Projects
Sponsored Stories
Sponsored
In recent years, local governments have been forced to adapt to a wildly changing world, especially as it pertains to sending bills and collecting payments.
Sponsored
Workplace safety is in the spotlight as government leaders adapt to a prolonged pandemic.
Sponsored
While government employees, students and the general public had to wait in line for hours in the beginning of the pandemic, at-home test kits make it easy to diagnose for the novel coronavirus in less than 30 minutes.
Sponsored
Governments around the nation are working to design the best vaccine policies that keep both their employees and their residents safe. Although the latest data shows a variety of polarizing perspectives, there are clear emerging best practices that leading governments are following to put trust first: creating policies that are flexible and provide a range of options, and being in tune with the needs and sentiments of their employees so that they are able to be dynamic and accommodate the rapidly changing situation.
Sponsored
Service delivery and the individual experience within health and human services (HHS) is often very siloed and fragmented.
Sponsored
In this episode, Marianne Steger explains why health care for Pre-Medicare retirees and active employees just got easier.
Sponsored
Government organizations around the world are experiencing the consequences of plagiarism firsthand. A simple mistake can lead to loss of reputation, loss of trust and even lawsuits. It’s important to avoid plagiarism at all costs, and government organizations are held to a particularly high standard. Fortunately, technological solutions such as iThenticate allow government organizations to avoid instances of text plagiarism in an efficient manner.
Sponsored
Creating meaningful citizen experiences in a post-COVID world requires embracing digital initiatives like secure and ethical data sharing, artificial intelligence and more.
Sponsored
GHD identified four themes critical for municipalities to address to reach net-zero by 2050. Will you be ready?