February 12, 1997

[Updated and Revised February 20, 1997]

Some opponents of the super-majority requirements in the Balanced Budget Constitutional Amendment (BBCA) must suffer from an irony deficiency. Only the irony-deprived could complain about BBCA's super-majorities while trying to cobble together a minority of Senators (just 34) to defeat the proposed amendment.

Super-Majorities in the BBCA. S.J.Res. 1 requires "three-fifths of the whole number of each House of Congress" to "unbalance" the budget (section 1) and to increase the debt limit (section 2). It requires "a majority of the whole number of each House" to increase revenues (section 4) and to permit a waiver because of a threat to national security (section 5).

Super-Majorities in the Constitution. Framers of the original Constitution and framers of its amendments regularly called for super-majorities. Congress has used super-majority votes hundreds and hundreds of times for seven purposes in three general areas:

Area One: To Change the Laws. Super-majority votes are required sometimes to enact laws. These laws become the "supreme law of the land." See Art. VI.

• A two-thirds vote is required to override a presidential veto. Art. I, Sec. 7, cls. 2 & 3. Congress has overridden a veto 105 times (averaging once every Congress).
• Treaties require a two-thirds vote of the Senate. Art. II, Sec. 2, cl. 2. The Senate has voted on an estimated 2,000 treaties (averaging about ten every year).
• Constitutional amendments require a two-thirds vote in Congress (and ratification by three-fourths of States). Art. V. The Constitution has been amended 27 times; there were 17 votes on those successful amendments. There were another five votes on proposed amendments that cleared the Congress but were never ratified by the States.
• Certain persons who "engaged in insurrection or rebellion" against the United States are prohibited from holding public office, but that disability may be removed by a two-thirds vote of Congress. Amend. XIV, Sec. 3. By our count, Congress legislated under this provision 191 times from 1868 through 1898 (averaging about six per year).

Area Two: To Remove from Office. There is a second category of constitutional provisions requiring a super-majority, namely those that allow Congress to remove a person from office.

• Conviction on impeachment requires a two-thirds vote of the Senate. Art. I, Sec. 3, cl. 6. Seven persons (all district court judges) have been convicted by the Senate after impeachment. Seven others (including an associate justice of the Supreme Court, a Secretary of War, and President Andrew Johnson) were tried and acquitted.
• Expulsion from the Senate or House requires a two-thirds vote of the body. Art. I, Sec. 5, cl. 2. Fifteen Senators and four Representatives have been expelled from Congress (the great majority for disloyalty to the Union).

(A President may be removed by a two-thirds vote of Congress for inability to discharge his duties. Amend. XXV, Sec. 4. This particular provision has never been used, however.)

Area Three: To Elect to Office. If election of the President should fall to the House or election of the Vice President should fall to the Senate, the 12th Amendment has special super-majority rules with respect to quorums and voting. (These requirements supersede Art. II, Sec. 1, cl. 3 which also contained super-majority requirements.)

• After adoption of the 12th Amendment in 1804, the House has had to act once (in 1825, electing John Quincy Adams) and the Senate has had to act once (in 1837, electing Richard M. Johnson to serve with Martin Van Buren).

An Additional, Unique Super-Majority. The Constitution itself provided that it would not go into effect unless ratified by nine of the original 13 States. Art. VII.

BBCA Is Consistent With Constitutional Text & Practice. The Framers put super-majority votes within the four walls of the Constitution, and throughout the years Congress has regularly and unremarkably operated under those super-majority requirements. In fact, the Senate acts by super-majority vote about once every month. Super-majority votes are reserved for matters of special importance; they are not daily events, but they are not rarities either. They are about as rare as a new moon.

Like the constitutional policies described above, spending our children's inheritance is a matter of special significance that should require an occasional super-majority vote.

Note on Estimate of Treaties. Counts of Senate action on treaties vary widely because of differing methods and judgments. In the original version of this paper we used an estimate of 2,500. That number was based on data in Lyn Ragsdale, Vital Statistics on the Presidency: Washington to Clinton, Tables 7-1 & 7-2 (1996) (showing 1,955 treaties, protocols, and conventions issued from 1789 through 1984 [all of which appeared to require Senate action] and 1,542 total international agreements from 1985 through 1993). After our first version of this paper was released, CRS provided us with an estimate of 1,704 treaties approved by the Senate through 1996.