From Southwest Ledger
In July of 2022 U.S. Rep. John B. Larson (D-Conn.) wrote an op-ed in which he called the Senate “the most debilitating threat” to our nation. He was writing about Rule 22 in the Senate which requires 60 votes to take up a House bill. Larson claimed that the Constitution did not require 60 votes and filibusters (hourslong marathon speeches) cannot be found in the Constitution, meaning that both were unconstitutional. While Larson was correct about not appearing in the Constitution, he clearly misunderstood one very important clause.
Article I, Section VI, Clause II of our Constitution reads, “Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member.” In other words, everyone else should stay in their lane when it comes to how each chamber of Congress does its job.
This clause is best explained by the 1892 Supreme Court case of United States v. Ballin. The background of this case was that New York decided to classify woolen cloths as worsted cloth so they could collect higher tariffs (Don’t worry, I have no idea what the difference is between the two either). The Ballin Company sued for a refund claiming the law was unconstitutional as the new law violated Article I, Section 5 because the clause states that a quorum was required for Congress to conduct any work.
Up until that time a quorum was counted as voting members and not present members who did not vote. Yet the House of Representatives had recently changed that rule to count all present members, voting or not. Ballin argued that the House could not change the rule. The Court disagreed; it ruled that each chamber of Congress has broad constitutional authority to make its own procedural rules — as long as they don’t violate an explicit constitutional requirement. It went on to say that once a rule is passed, it is binding in that chamber until it is officially changed. In other words, Congress makes and changes its own rules.
This does not mean Congress can do anything it wants. Remember back to an earlier Constitution 101 where the House tried to stop newly elected members from taking their seats by adding new requirements but the requirements are set by the Constitution so that rule was overturned by the Court? In 1949 there was a similar ruling where a witness before Congress was convicted for perjury. The witness sued that a full quorum was not present when he perjured so it did not count. The Court agreed in Christoffel v. United States when it said Congress can make its own rules as to how to form a committee (count those present or only voting) but it cannot act without a quorum as it did in this case because that is a requirement in our Constitution.
What we see today is that our Constitution is limited on how Congress goes about its business. There are some rules — at least a simple majority is required to pass a bill and two-thirds majority to override a veto — but all the behind-the-scenes work in committee and how committees are formed are all rules that each chamber has established for themselves. A great example is the filibuster and Senate Rule 22.
Because of the Rules Clause, the Senate originally decided to allow debates to last as long as needed whereas the House set a limit. Beginning with the very first Senate, senators used this rule to delay voting by filibustering. A filibuster is not mentioned in the Constitution but is allowed because the Senate makes its own rules.
By 1917, Senate-crippling filibusters had become so common that the Senate passed Rule 22, which allowed for cloture, or a stopping of debate if two-thirds of the Senate agreed. While Rule 22 did not stop all filibusters — because two-thirds is a large number to reach — the practice continued to cause issues in the Senate. In 1975 Rule 22 was changed so that only three-fifths or 60 senators were now required, making cloture easier.
Today we rarely see filibusters. Even though the longest one in history just occurred back on March 31, when Sen. Cory Booker (D–N.J.) spoke for 25 hours to protest Trump’s immigration policies, the speech was merely for show because in today’s Senate there is no need to actually filibuster. Knowing anyone can filibuster any bill unless it’s a budget bill, the Senate has basically agreed to pass any legislation with a 60% majority instead of the simple majority required by the Constitution.
As I wrote in the opening, this rule has often been controversial but no more so than under the Biden administration. At one point Democrats held the presidency, the House and a 50/50 split in the Senate with the tiebreaker going to the democratic vice president. Yet even with control over both houses many of the Democrats’ bills were killed in the Senate because they lacked 60%. There were cries from Democratic leaders to invoke what is known as the ‘nuclear option’ on issues like gun control. What is meant by that is for the Senate to use procedural loopholes and pass a bill with a simple majority instead of 60%. The reason this was never done is that Democrats in the Senate knew that if they changed the rule then they could no longer take advantage of it the next time the Republicans took control of the Senate. Because of the Rules Clause, what we see in today’s government is much more complicated than set forth in the Constitution. The Constitution does not mention committees, parties or filibusters, yet they are all major parts of how our government now works. Our founders knew there had to be leeway and flexibility or the document could not grow with the times and the Rules Clause is one of the major ways this occurs.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at HistoricallySpeaking1776@gmail.com.
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