11/17/2011 06:16 pm ET Updated Jan 17, 2012

Is the 60-Vote Norm Paralyzing the Senate?

The statement at issue:

The constitutional and historical norm of decision-making by simple majority has been replaced by a routine requirement [in the Senate] to assemble a supermajority of 60.... This supermajority barrier has fueled the politics of paralysis. Getting anything done in the Senate is like wading through knee-deep molasses.

- Comment by Sen. Jeff Merkley, an Oregon Democrat, in a Washington Post op-ed column, "Why 'supermajority' no longer works in the Senate," November 4, responding to a Post column on October 21 by Sen. Ron Johnson, a Wisconsin Republican.

We checked the Constitution, and...

It is often true that, to find out what the Constitution means, one has to read its silences: in other words, if those who wrote the basic document or its amendments did not say something specific, it is a fair assumption that the Constitution does not include it, and certainly does not require it. Sen. Merkley, therefore, is wrong in reading those silences to support a "constitutional norm" for Senate to act by majority vote.

The Constitution, as he pointed out, only specifies a "supermajority" for a limited list of Senate actions. Some of them are: ratification of treaties, conviction of a President in an impeachment trial, overriding presidential vetoes, approving constitutional amendments, and barring a disabled President from regaining power if the President objects to staying on the sidelines.

Nowhere in the Constitution is there a requirement that, to get anything controversial done in the Senate, the votes of 60 senators are necessary. And nowhere is there a requirement that a simple majority has to be sufficient. The 60-vote requirement results from the Senate's "cloture rule," which sets that number as the minimum needed to shut off debate and move to a final vote on a bill or nomination.

The Senate has been checking its tendency to talk at length by some such rule since 1917, but the insistence on 60 votes with great frequency is a thoroughly modern phenomenon and probably reflects, to a significant degree, the partisan polarization of American politics today. Since the Constitution gives the Senate clear authority to write its own rules, and that is all that it says about votes needed for routine legislative activity, it is the Senate itself that shapes its own procedures.

The debate in the newspaper op-ed column by Sen. Merkley and, previously, by Sen. Johnson, is not really about what the Constitution requires, or even what it prefers. It is about the effect of a "supermajority" requirement, or of its absence. Sen. Merkley says going beyond a simple majority to act makes the Senate virtually unable to get anything done -- at least anything of consequence. Sen. Johnson says the failure to impose a "supermajority" requirement even more often is what has caused the growth of the federal government.

Those are certainly debatable points, but the senators are not having a constitutional debate, except in the sense that, rhetorically, each of them is sure that his own view is closer to the Constitution's traditions and aspirations.

Both senators, no doubt, are serious in their concerns about how the Senate operates these days. Sen. Merkley obviously believes that a majority can be trusted with the awesome responsibility of solving the present era's grave governmental problems. Sen. Johnson just as sincerely believes that a majority cannot be trusted to keep the colossus of government in Washington from growing ever larger.

It very likely is true that both senators could find a good many voters out there who would agree with their differing perceptions. But the senators won't find conclusive support for their views in the Constitution itself. The Constitution, indeed, trusts the Senate to find its own way to work it out.

This post first appeared on Constitution Daily, the blog of the National Constitution Center in Philadelphia.