Constitutional Quorum Rules

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Sunday, May 21, 2023

Constitutional Quorum Rules

Many state constitutions require a supermajority of a legislative chamber for a quorum. This allows the minority party to block legislation by simply not showing up (or by leaving the state entirely). In recent years, there have been high-profile examples of this sort of minority veto in states like Texas and Oregon. The Federal Constitution is largely free of these requirements. Article I states that only a majority is required for a quorum in the House and in the Senate. Imagine how much worse off we would be if the minority party could block any bill by just not appearing.

There is one curious exception though. The Twelfth Amendment says that two-thirds of the Senate is required for a quorum on a vote to choose the Vice President in the event that no candidate receives a majority in the Electoral College. So this means that in a presidential election that is decided by the House of Representatives, the minority party in the Senate can block the VP election by refusing to show up. (Query whether the newly-elected President, though, can bypass this blockade by nominating his erstwhile running mate as VP under the Twenty-Fifth Amendment, which has no special quorum requirement.)

In general, the Twelfth Amendment probably the most poorly designed amendment. The Framers in 1787 can be somewhat forgiven for not understanding how the Electoral College would evolve. By 1804, though, Congress should have done a lot better.

Posted by Gerard Magliocca on May 21, 2023 at 11:16 AM | Permalink

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