Constitution Daily

Smart conversation from the National Constitution Center

Constitution Check: Is legislative gridlock unconstitutional?

September 8, 2011 by Lyle Denniston


In a continuing series of posts, Lyle Denniston provides responses based on the Constitution and its history to public statements about the meaning of the Constitution  and what duties it imposes or rights its protects.  Today’s topic: the powers of the minority to block action in the U.S. Senate.

The statement at issue:

“Forty four Republicans [in the Senate] have announced that, in disregard of their constitutional duty to consider nominations on the merits, they will not confirm anyone [as head of the new Consumer Financial Protection Bureau] until the Senate reverses itself [and reduces the Bureau’s powers]….Senate Republicans are not entitled to use the confirmation power as a bludgeon to get their way when they cannot do so through the normal legislative process.”

  • Massachusetts Democratic Rep. Barney Frank, ”An Abuse of Senate Power,’The Washington Post, September 2, 2011

We checked the Constitution and…

Congressman Frank’s statement does not square with what the Constitution requires for the Senate when it reacts to presidential nominations to fill government positions.  There is no duty in the Constitution’s Article I for any Senator to consider, debate about, or vote on the merits of any nominee, nor is there any duty for the Senate as a whole to vote up or down on a nomination.  There also is nothing in Article I that prevents the minority in the Senate from resistance in order to get “its way,” even when it lacks the votes to prevail.

U.S. Capitol (Flickr image from cliff1066)

It is important to stress that the kind of legislative process that the Constitution created does assume – as a general rule -- that the democratic custom of majority rule will control, and that lawmakers on all sides of an issue will act in good faith to help make that process work to get actual, real-world results to make the federal government work and, perhaps, to work better.  But constitutional ideals or aspirations are not always backed up by constitutional mandates of right and wrong.  And that is especially true in the United States Senate.

If majority rule were, in fact, a constitutional duty, the very composition of the Senate would be invalid.  Since the great compromise at the Philadelphia Convention in 1787, resolving the competing demands of small and large states, the Senate’s majority has never represented an actual majority of the people.  Each state gets two Senators , regardless of its size – Montana, in that sense, is fully equal to California.

Congressman Frank, of course, serves in the House of Representatives, where the size of a state’s delegation is based on its actual population, and a majority of the House does reflect a majority of the Nation’s population – reinforced by the constitutional principle of “one person, one vote” that assures roughly equal size of House districts.

But what most distinguishes the Senate from the House of Representatives (aside from how many people each member represents) is the Senate’s tradition of unlimited debate, and the custom of jealous protection of the rights of the minority of senators on any given issue.   If, at any point, the Senate bogs down in gridlock or minority resistance, the Senate itself has it within its power to return rule to the majority: it would only have to change its own rules.  The Constitution gives both houses of Congress the discretion to write their own rules.

The Senate has chosen, since at least 1917, to have a rule – Rule XXII – that protects the right of a minority of senators to keep the Senate from acting on a given issue.  That, of course, is the rule governing the “filibuster.”  There has long been an argument, based upon constitutional theory, that Rule XXII is unconstitutional, because it permits a minority to impose a “super-majority” requirement (60 votes out of 100) in order to shut off debate and end a filibuster.   But it remains a theory only, and, in fact, there is no assurance that anybody could get into court to try to get Rule XXII struck down.

With the Senate now closely divided between Democrats and Republicans, it is often very difficult to get 60 votes for anything controversial.  So, despite Rep. Frank’s lament, the fate of the new consumer bureau does depend, in a real sense, upon the Republican minority.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work. Celebrate Constitution Day with the National Constitution Center on Sept. 16. Click here for more information.

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