How the Vice President Limits the Power of Senate Majorities

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.
— Article I, section 3, clause 4

On September 7, 1787, delegates to the Federal Convention meeting in Philadelphia voted to make the Vice President the Senate’s Presiding Officer.

Most of the delegates present supported doing so. Yet among those in opposition was Elbridge Gerry of Massachusetts, who believed that the arrangement would give the President too much influence over the Senate due to “the close intimacy that must subsist between the President and Vice President.” Similarly, George Mason of Virginia asserted during the debate that the Vice President’s role would be “an encroachment on the rights of the Senate” and a violation of the separation of powers.

Notwithstanding these warnings, it is possible that the delegates did not fully appreciate the consequences of their decision at the time. For example, Connecticut’s Roger Sherman suggested prior to the vote that the arrangement was needed to give the Vice President a job to do.

Regardless of the delegates’ reasons, their decision to designate the Vice President as the Senate’s Presiding Officer has had a major impact on the institution’s development. It limits majority power, protects minority rights, and thus continues to shape the Senate and the way that its members make decisions today. In short, the Vice President’s role effectively precludes the Senate from turning into a majoritarian legislative body like the House of Representatives.

Unlike in the House, where a chamber majority can select the Speaker, the Constitution does not allow senators to choose their own Presiding Officer. The House today is organized by a majority party whose members voluntarily delegate significant authority to a powerful Speaker to preside over the institution. But in the Senate, the Constitution makes it unlikely that members will do the same because it charges the Vice President with administering the institution’s rules and ensuring order in the legislative process.

Admittedly, Article I, section 3, clause 5 of the Constitution permits senators to select a President pro tempore to fill in as Presiding Officer when the Vice President is unable to do so.

Despite this, senators have been reluctant to empower the President pro tempore to the extent that doing so would also augment the Vice President’s ability to control their deliberations. This is because they are unable to prevent the Vice President from reclaiming his position as Presiding Officer whenever he wants. In such a scenario, the Vice President would be free to exercise any powers previously delegated to the President pro tempore in a way that could be harmful to senators’ interests.

The result of all of this is that the Senate keeps its Presiding Officer relatively weak. Yet that makes it harder for the majority party to exert control over the legislative process. In general, the Senate’s operations have remained relatively decentralized and its rules permissive while the House has grown centralized and restrictive.

The consequence of this is that Senate minorities have more power to obstruct the majority than their counterparts in the House. While the recent use of the nuclear option in 2013 and 2017 to eliminate the judicial filibuster suggests that majorities may be less likely to tolerate obstruction in the future, the Vice President’s role as the Senate’s Presiding Officer makes it possible for a minority to obstruct the majority, even if the legislative filibuster is eventually nuked.

For example, a minority may object to routine unanimous consent requests to confirm presidential nominations and pass legislation. This would limit the majority’s ability to move its agenda through the Senate by significantly increasing the institution’s workload in terms of time spent conducting recorded votes.

The majority is unable to limit the minority’s ability to use this tactic on a permanent basis. This is because Article I, section 5, clause 3 of the Constitution states “and the Yeas and Nays of the Members of either House on any question shall, at the Desire of one fifth of those present, be entered on the Journal.” In other words, any senator can force a recorded vote on a question before the Senate with the support of a sufficient second, which is defined as one fifth of the members present. As such, any effort by the minority to systematically force recorded votes on nominations and legislation to obstruct the majority would need at least eleven, but not more than twenty, members to be successful.

Theoretically, the majority could ask the Presiding Officer to refuse recognition to a senator for such purposes. But doing so on a repeated basis would require delegating to whomever was presiding over the Senate the discretionary power to recognize members and to determine if a sufficient second is present. And since senators cannot guarantee how the Vice President would use such power in the future, such a delegation of authority is unlikely.

The Vice President’s role also highlights the relative weakness of the Senate leadership compared to its counterpart in the House. In contrast to the Speaker, who is chosen by the entire House membership, the majority leader is not selected via a vote of the full Senate. Rather, the floor leader of the party that controls most of the Senate’s seats becomes the majority leader by default.

The majority leader’s power is derived from the fact that his colleagues defer to him to order the chamber’s deliberations. But the leader’s ability to do that job depends on his being recognized first by the President pro tempore (or the Vice President depending on who is presiding).

Since any member can technically make a motion to consider legislation or a nomination under the Senate’s rules, being the first to do so enables the majority leader to set the schedule and control the agenda to a limited degree.

Priority of recognition also allows the leader to block votes on undesirable amendments. The ability to be recognized first before other members enables the majority leader to “fill the amendment tree,” or offer the maximum allowable number of amendments to legislation, and file cloture on a bill before other senators have a chance to debate the measure and offer amendments.

The right of recognition is thus the foundation on which leadership power is based in the contemporary Senate.

Yet the majority leader’s priority of recognition ultimately depends on the Vice President.

The leader was first granted priority of recognition in 1937 pursuant to a ruling made by Vice President John (“Cactus Jack”) Nance Garner while presiding over the Senate. But the 1937 ruling is not irreversible. Any Vice President presiding over the Senate in the future could just as easily break with past practice and recognize another senator in lieu of the Majority Leader.

The result of the Vice President’s role in the Senate is that the institution is less efficient than it would otherwise be if it had a powerful Presiding Officer like the House. Yet senators have tolerated such inefficiency to the extent that it is the price of their retaining control over the legislative process.

Senate majorities have exhibited an interest in empowering their leadership in recent years as obstruction and the value of floor time have both increased significantly. Nevertheless, it remains unlikely that senators would reevaluate delegating significant authority to the Presiding Officer due to the polarization and partisan conflict in the contemporary environment.

Imagine a Democratic majority allowing Vice President Dick Cheney or Mike Pence, or a Republican majority allowing Vice President Joe Biden, a significant voice in how the Senate sets its agenda and conducts its business!

And if that remains the case, Senate minorities will be able to obstruct the majority, with or without the filibuster.