Listening to NPR this morning (I know, I know…), they had a story on the “economic stimulus package” and why it was probably not going to pass, and the only issue now was who would take the blame. I listened to Senator Daschle sadly (and smarmily, with crocodile tears) explain that it just didn’t have the sixty votes it needed in the Senate. And then the NPR reporter dutifully repeated that it didn’t have the “sixty votes needed” to pass the Senate in the story wrap up. Anyone listening to the story, who knew no better, would have (mistakenly) concluded that bills cannot pass the Senate without sixty votes.

When I last took a class in government (admittedly many years ago), I was taught that bills passed either house with a majority–not a supermajority. Now I understand that the Senate has established rules of debate that require three fifths to close the debate, and that if even a single Senator wants to continue debate, that the bill will not go to a full vote without the three-fifths cloture vote. But that’s just a Senate rule–it’s certainly not Constitutionally mandated. And in fact, I think that if someone really wants to filibuster a bill, they should actually have to maintain the debate–threatening to do so should not be sufficient, and allowing people to make such threats without requiring them to actually carry it out does mean that effectively a supermajority is required to pass a bill in the Senate.

(Not that I think this a bad thing, mind you–as a minimum-government type, I actually like the idea that it’s hard to pass legislation, but given that legislation is required to undo much of the damage of the past two-plus centuries, it would be nice to be able to fast-track that process…)

So I was curious as to whether this was really something that the founders had intended. I dutifully went back and read Article I, and lo, I couldn’t find any reference to the requirement for bill passage–the Constitution seems to be silent on it. It does stipulate that two thirds is required to overcome a presidential veto, but nothing explicit about what constitutes a bill “passing a house.” I had always thought that simple majority was mandated, but I can’t see it anywhere. Can someone enlighten me?

[Update at 5PM PST]

I finally got an answer to my question from reader John W. Lanius Jr.:

I’m not a constitutional lawyer, just a lawyer who had to take Con-Law in Law School and who has read the document several times. Starting with the text itself, under Article I, Section 5, Clause [2], “Each House may determine the Rules of its Proceedings…”

Seems pretty clear to me. The only real question is whether the cloture rule has to do with the “Proceedings” of the Senate. I think it does, and has the added benefit of being just the type of rule the framers would have loved: i.e., an obstacle to too much governance.

I guess so. That was my interpretation, too, based on my reading this morning, but I thought it was strange. I was aware that they could make up their rules, but I didn’t know that the size of majority required was part of that. I had always thought that the Constitution explicitly stipulated a simple majority for bill passage. Learn something new every day…

Now I wonder if this implies that, if they so chose, they could decide to pass things only by unanimous vote?