Rules of Order, Jimmy Stewart and the Supermajority, Constitution Article 1 §5.2

It’s not exactly great literature, but like a lot of literature, the Constitution is a simple text people are still arguing about centuries after publication. Unlike most literature, the outcomes from those arguments affect our lives every day, even if we aren’t aware of them. I like to know about the things that affect my life, when I can.  That’s why on Wednesdays we study the Constitution.

Next up, Article 1, Section Five, Clause 2. You’re going to love this one. It’s sexy.

Article 1 §5.2

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.

Oh, wait, sorry, I was thinking about something else. The Constitution is never sexy. (I guess Congress could come up with some interesting punishments for disorderly behavior but they’d probably just end up being criminally disgusting.) No, the Constitution is pedantic and procedural. It’s easy to forget that there are fundamental human values behind it. But you can’t run a country if you can’t get through a meeting, and the Framers didn’t have Roberts’ Rules to fall back on. They didn’t have time to work out the minutia, so they let each house establish its own rules of order, including punishments, but made it explicit that any member who got too out of line could be expelled.

I like the two-thirds majority rule a lot. It’s one of those simple, clever ways to protect fairness when you don’t have trust, like “you cut and I’ll choose.” There were no political parties when the Constitution was being written, but on any important issue, you’re likely to end up with two camps. Most of the time, when the stakes are low and emotions are under control, a simple majority vote is a great way to make a decision. But the Framers were really concerned with protecting the underdog. I also think that for all their talk of equality in the abstract, they were pretty elitist (and not entirely wrong in that way of thinking – let’s face it, most people are dumb), so it wasn’t hard for them to imagine the minority opinion being the correct one, especially when the issues are complicated.

By requiring a supermajority on tricky issues like booting a member, you are far less likely to get the majority group running roughshod over the minority one. You’re not likely to get 2/3 without pulling in people from both sides of the divide du jour. Only a member who is legitimately out of line is going to get booted.

This is the first time we’ve run across the supermajority requirement in the Constitution, but it comes up on a lot of important issues. I can see how the supermajority can be used to create gridlock, but to me, it’s still a valuable protection against partisan politics, and to me, removing a supermajority requirement on a contentious issue is a big red flag that somebody is trying to shove something nasty down our throats.

The supermajority is responsible for filibuster, and there’s always someone willing to game the system. Jimmy Stewart’s famous filibuster as Mr. Smith may have influenced my youthful mind in favor of it, so here’s a more neutral statement from the Annotated Constitution (p135):

Constitution provides that “Each House may determine the Rules of its Proceedings,” and the Senate has enacted a cloture rule requiring a supermajority vote (60 votes) to close debate on any matter pending before the Senate. Absent the invocation of cloture or some other means of ending debate, matters can remain before the Senate indefinitely. The practice of preventing closure is known as a filibuster. Although no provision of the Constitution expressly requires that the Senate or House act by majority vote in enacting legislation or in exercising their other constitutional powers, the framers of the Constitution were committed to a majority rule as a general principle. These facts have given rise to disagreement as to the constitutionality of the filibuster as applied to judicial nominees— disagreement over whether the “Advice and Consent” of the Senate means the majority of the Senate and not a super-majority. The constitutionality of the filibuster has been challenged in court several times, but those cases have never reached the merits of the issue. More recently, the Senate interpreted its rules to require only a simple majority to invoke cloture on most nominations.

Of course, those nominations felt like something nasty shoved down our throats.