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In the US Senate, the current filibuster rules mean that, with a few specific exceptions, all Senate business requires an effective 60-vote super-majority to pass. Many people treat this as an important and longstanding tradition, but as Brythan describes in their excellent answer to another question on the filibuster, the modern filibuster is an unintended artifact of the Senate rules and today's hyper-partisan environment:

To summarize, the filibuster started as an accident of the Senate rules. It grew into a way for minorities to block contentious legislation. When it really gets in the way, the majority tends to reduce its power. And that's where we are now: a supermajority of sixty votes is required for legislation and important nominations.

Despite its unintentional creation, there are many who strongly defend it and consider it an important defense of the rights of the minority party. This made me wonder whether there was any discussion, particularly in the early days of the US, of creating a similar super-majority requirement for Congress.

Did the Founding Fathers, or similar early political figures in the US, consider creating something similar to the filibuster? Were there any discussions about this, or similar issues?


To clarify, the question I'm trying to get at is whether the current role of the filibuster, namely preventing the majority party from exercising full control over the Senate, was a) overlooked, b) was considered unnecessary, or c) considered undesirable. Put another way, was the lack of a constitutionally protected role for the minority party in Senate business due to: 1) to desire for the Senate to be run by majority rule, 2) a belief that compromise would take place without any rules, or 3) it was simply overlooked.

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    As to the close vote for "speculation": the founding fathers were not shy about their beliefs and there are lots of writings and documentation of debates from that time. If it was considered, there will almost certainly be multiple writing sources arguing for or against this idea. And if there aren't, then the answer would be: "no, it doesn't seem to have been considered".
    – divibisan
    Jan 21 at 18:46
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    I voted to keep the question open but edited it to focus not on speculation but on actual evidence.
    – Alan Dev
    Jan 21 at 19:06
  • I assume you only want ideas that didn't make it into the Constitution, as there are quite a few supermajority provisions that did (treaty ratification, impeachment, proposing constitutional amendments, etc.).
    – Kevin
    Jan 21 at 19:50
  • @Kevin Yeah. I'm specifically asking about a supermajority requirement for legislation and confirmations. Essentially, I want to know why a supermajority requirement was included in the Constitution for treaties and impeachment etc. but not for legislation – was it considered and decided against? Was there concern about the rights of the Senate minority or any discussion of limiting the ability of a bare majority of Senators to control the Senate?
    – divibisan
    Jan 21 at 19:56
  • Both chambers of the house only needed a majority to end all debate before the 1805 and the super majority didn't happen until the 1900's
    – Joe W
    Jan 21 at 20:47
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Actually, upon further research, it seems that a supermajority requirement to pass legislation was discussed and dismissed in several of the Federalist Papers.

In FEDERALIST NO. 22, Alexander Hamilton argues that such supermajority requirements were one of the flaws in the Articles of Confederation, and that they are "a poison" to democracy:

This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. ... If a pertinacious minority can control the opinion of a majority, respecting the best mode of conducting it, the majority, in order that something may be done, must conform to the views of the minority; and thus the sense of the smaller number will overrule that of the greater, and give a tone to the national proceedings. Hence, tedious delays; continual negotiation and intrigue; contemptible compromises of the public good. And yet, in such a system, it is even happy when such compromises can take place: for upon some occasions things will not admit of accommodation; and then the measures of government must be injuriously suspended, or fatally defeated. It is often, by the impracticability of obtaining the concurrence of the necessary number of votes, kept in a state of inaction. Its situation must always savor of weakness, sometimes border upon anarchy.

James Madison similarly argues against this in FEDERALIST NO. 58, which concludes by briefly mentioning a proposal to require more than 50% of the votes to pass legislation in order to protect the rights of the smaller states. He argues against that idea, for reasons that are immediately recognizable to the modern reader:

It has been said that more than a majority ought to have been required for a quorum; and in particular cases, if not in all, more than a majority of a quorum for a decision. That some advantages might have resulted from such a precaution, cannot be denied. It might have been an additional shield to some particular interests, and another obstacle generally to hasty and partial measures.

But these considerations are outweighed by the inconveniences in the opposite scale. In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule: the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves from equitable sacrifices to the general weal, or, in particular emergencies, to extort unreasonable indulgences.

Lastly, it would facilitate and foster the baneful practice of secessions; a practice which has shown itself even in States where a majority only is required; a practice subversive of all the principles of order and regular government; a practice which leads more directly to public convulsions, and the ruin of popular governments, than any other which has yet been displayed among us.

Hamilton and Madison identified the main arguments made in favor of the filibuster: that it would promote unanimity and compromise, slow down governance, and protect minority interests. Both, however, argued that such a system would lead to minority rule and enable a small group to, essentially, hold the country hostage in order to "extort unreasonable indulgences", resulting in "contemptible compromises of the public good". They also argue that it would eventually end up crippling the government by leading to gridlock in cases where government action is necessary.

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The founding fathers didn't have an idea of a filibuster because when the house and senate started all you needed was a simple majority to end debate. However it was at a later date that it got changed in the Senate but not the House.

In reality it was created as an unintended consequence of trying to simplify the rules and everything was run by majority vote. It should also be remembered that back when the country was founded it was not as hyper partisan as it is today and there was more time to settle things as well.

https://www.brookings.edu/testimonies/the-history-of-the-filibuster/

Originally the rule books where pretty much the same when it came to ending debate

The House and Senate rulebooks in 1789 were nearly identical. Both rulebooks included what is known as the “previous question” motion. The House kept their motion, and today it empowers a simple majority to cut off debate. The Senate no longer has that rule on its books.

In 1805. Aaron Burr wanted to simplify the rules and suggested dropping some

What happened to the Senate’s rule? In 1805, Vice President Aaron Burr was presiding over the Senate (freshly indicted for the murder of Alexander Hamilton), and he offered this advice. He said something like this. You are a great deliberative body. But a truly great Senate would have a cleaner rule book. Yours is a mess. You have lots of rules that do the same thing. And he singles out the previous question motion. Now, today, we know that a simple majority in the House can use the rule to cut off debate. But in 1805, neither chamber used the rule that way. Majorities were still experimenting with it. And so when Aaron Burr said, get rid of the previous question motion, the Senate didn’t think twice. When they met in 1806, they dropped the motion from the Senate rule book.

Much later after those rules where dropped the filibuster started.

Once the rule was gone, senators still did not filibuster. Deletion of the rule made possible the filibuster because the Senate no longer had a rule that could have empowered a simple majority to cut off debate. It took several decades until the minority exploited the lax limits on debate, leading to the first real-live filibuster in 1837.

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  • This doesn't answer the question. I know there was no filibuster when the Senate was created. The question is whether something like it was considered and rejected. Was there any debate on whether there should be a higher threshold? Was there any discussion of protections for the minority party? Obviously they ended up choosing a simple majority, but I'm asking about the thinking and debate that led to that.
    – divibisan
    Jan 21 at 23:25
  • @divibisan Why would you think there was a debate about being a higher threshold if there is evidence that the filibuster wasn't even used for 30+ years after it became possible? The philosophy used to be solving issues with votes and not to stop everything with a debate. The majority vote to stop a debate didn't even become a thing until WW1 when senators used the filibuster in order to prevent war related measures from happening and it was initially proposed to be stopped by a simple majority but the compromise with people who wanted no stop was a 2/3rd majority.
    – Joe W
    Jan 21 at 23:54
  • @divibisan I would also think that if it was discussed by the founding fathers it would be discussed in the places where the history of the filibuster is discussed and I have found no such mention.
    – Joe W
    Jan 22 at 0:00

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