In the wake of Senate action last week to restore the Senate practice that nominees receive an up or down vote, there has been a great deal of hyperventilating about whether the rules change is consistent with the intent of the Founders and what it means for the future of the Senate.
Some have called it “tyranny.” Others, a “naked power grab.” In reality, the action taken by the Senate last week is consistent with both the Constitution and the Senate rules and two centuries of Senate tradition, and is fully aligned with the intent of the Founders as well.
Both Alexander Hamilton and James Madison indicated in the Federalist Papers a clear belief in majority rule, with Hamilton stating that “the fundamental maxim of republican government requires that the sense of the majority should prevail.” Nonetheless, the Founders left the matter of House and Senate procedure undetermined in the Constitution, choosing instead to let Congress determine its own rules. Article I, section 5 of the Constitution, the Rules and Proceedings Clause, states that each House may determine the rules of its proceedings.”
That is exactly what the Senate did. In fact, the original Senate rules placed no time limit on debate, but also allowed any Senator to make a motion “for the previous question,” which permitted a simple majority to halt debate on the pending question and bring the matter to an immediate vote. This motion for the previous question was eliminated in 1806 at the suggestion of Vice President Aaron Burr, largely because it was deemed superfluous.
Even with the elimination of the motion to end debate, filibusters were hardly a defining part of the Senate. Across the entire 19th century, there were only 23 filibusters. And from 1917, when the Senate first adopted rules to end a filibuster, until 1969, there were fewer than 50, less than one per year.