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.