Super-Majority Votes in the Senate

Super-Majority Votes in the Senate

Order Code 98-779 GOV
Updated February 20, 2001
CRS Report for Congress
Received through the CRS Web
Super-Majority Votes in the Senate
Walter J. Oleszek
Government and Finance Division
The Senate has long been known for its emphasis on minority rights, for it provides
extensive procedural protections to individuals and minority coalitions. Yet most issues
in the Senate are decided by a simple majority vote: one-half-plus-one of the Members
voting, assuming the presence of a quorum. For instance, if all 100 Senators vote, the
winning margin is at least 51— one more than half the membership of the Senate. Under
Senate precedents, “[a] tie vote on a question defeats it.”
Some super-majority votes, however, are explicitly specified in the Constitution;
implicitly, they also inhere in authority granted in Article I, section 5, which says, “Each
chamber may determine the Rules of Its Proceedings.” Under this affirmative
constitutional power, the Senate has imposed on itself a number of additional super-
majority (sometimes called “extraordinary majority”) requirements. Worth review, then,
are the constitutional and Senate procedural-based exceptions to the general principle that
Senators commonly decide issues by simple majority vote.
Constitutional Super-Majority Requirements
In the judgment of several of our Founding Fathers, among the infirmities of the
Articles of Confederation was a super-majority requirement for deciding such questions
as coining money, appropriating funds, and determining the size of the army and navy. As
Alexander Hamilton declaimed in Federalist No. 22, “To give a minority a negative upon
the majority (which is always the case where more than a majority is requisite to a
decision), is, in its tendency, to subject the sense of the greater number to that of the
lesser.” Overall, the Framers generally favored decision-making by simple majority vote.
This view is buttressed by the grant of a vote to the Vice President (Article I, section 3)
in those cases where the Senators are “equally divided.”
On the other hand, the Framers also recognized the virtue of super-majority votes in
certain circumstances. In Federalist No. 58, James Madison (like Hamilton a proponent
of majority voting for most things) noted that super-majority votes could serve as a “shield
to some particular interests, and another obstacle generally to hasty and partial measures.”
Hamilton, too, in Federalist No. 73 highlighted the benefits of requiring an extraordinary
majority of each chamber to overturn a president's veto. “It establishes a salutary check
upon the legislative body,” he said, “calculated to guard the community against the effects
of faction, precipitancy, or of any impulse unfriendly to the public good, which may
happen to influence a majority of that body.”
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The original Constitution requires a two-thirds vote of either the House, the Senate,
or both in five situations. They include: (1) overriding presidential vetoes, Article I,
section 7, clause 2; (2) removing federal officers through impeachment proceedings with
conviction by two-thirds vote of the Senate, Article I, section 3, clause 6; (3) ratifying
treaties by two-thirds vote of the Senate, Article II, section 2, clause 2; (4) expelling
members from the House or Senate, Article I, section 5, clause 2; and (5) proposing
constitutional amendments, Article V. In addition, the Fourteenth Amendment to the
Constitution, ratified in 1868, disallowed anyone who engaged in “insurrection or
rebellion” from holding any civil or military office unless each house removed this disability
by a two-thirds vote. The Twenty-Fifth Amendment, ratified in 1967, addresses the issues
of presidential succession and inability. In the case of an Acting President, the House and
Senate, by a two-thirds vote of each chamber, may determine that “the President is unable
to discharge the powers and duties of his office.”
Super-Majority Requirements Specified in Senate Rules and
Precedents
The Senate has a number of rules or precedents that require either a two-thirds or a
three-fifths vote. The super-majority requirements include:
To Invoke Cloture. Under Senate Rule XXII, a three-fifths vote of all Senators
(60 of 100) is required to invoke cloture (the closure of debate) on most questions.
However, a two-thirds vote of the Senators present and voting is required to invoke
cloture on measures or motions to amend Senate rules. Once cloture has been invoked,
the 30 hours of debate available during post-cloture consideration may be extended by a
three-fifths vote of all Senators duly chosen and sworn.
Suspend the Rules. Senate precedents stipulate a two-thirds vote of the Senators
present, a quorum being present, is required to suspend the standing rules of the Senate.
Postpone Treaty Consideration Indefinitely. Senate Rule XXX states that
a motion to postpone treaty consideration indefinitely “shall be decided by a vote of two-
thirds.”
To Make A Bill A Special Order. The Senate has an antiquated precedent (still
listed in the modern compilation of precedents) which states that “a two-thirds vote is
required to make a bill a special order.” On April 1, 1884, the chair noted that a Senator
moved that further consideration of S. 1448 be postponed until a specific date and time,
“and that it be made the special order for that time. The question is on agreeing to the
motion..., which requires a two-thirds vote.”
Waivers of the Congressional Budget Act of 1974. The 1974 Budget Act,
as amended, contains provisions which operate as rules of the Senate. To set aside budget
process procedures, a three-fifths vote of all Senators is sometimes necessary. Similarly,
if a Budget Act provision establishes a three-fifths waiver requirement, then any appeal
to overturn the chair's ruling regarding that provision also requires a three-fifths vote of
all Senators. See CRS Report 97-865 GOV, Points of Order in the Congressional Budget
Process.