About Us
Congress: The Context
Betty K. Koed, Associate Historian
United States Senate Historical Office
betty_koed@sec.senate.gov
Major Themes:
Senate as a deliberative body
Senate as protector of minority rights
Senate as promoter of compromise
Senate as “cooling factor” in legislative process
Senators as “states’ ambassadors”
Senate as advisory body
1. Why are there 100 senators?
The quick answer to this question is that there are two senators for each of the 50 states, but the importance of the number 100 goes well beyond that simple fact.
As decided by the Great Compromise of 1787, each state is represented by two senators; therefore each state has an equal voice in the Senate. In the House, large states enjoy a numerical advantage in representation, but in the Senate every state—large or small—has equal representation.
In creating the Senate, the framers were careful to provide a safeguard against majority rule. Giving the small state of Delaware the same voting power as the large state of Virginia, for example, provided protection for the voice of the minority.
Knowing this is crucial to understanding the framers’ design for the Senate, but of equal importance is the number itself. Why two senators? Why not three or four per state? The framers wanted the Senate always to be a comparatively smaller body than the House. This smaller size has allowed the Senate to maintain its more deliberative nature and to persist in its tradition of unlimited debate, including the use of the filibuster, long after the House abolished that privilege in its chamber. Having a smaller body has allowed for flexibility in Senate rules and procedures, and has accommodated the need for secrecy in deliberations on sensitive matters, such as foreign policy.
Having a smaller body has meant that each member’s voice can be heard.
In Federalist No. 10, James Madison commented that one of the problems to be solved by a new government was “that measures are too often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an overbearing majority.”
As part of the solution, the framers designed a small, deliberative Senate where even a minority of one must be heard.
2. Why do senators serve six-year, overlapping terms?
Why six years? Why not two years, like the House of Representatives? The six-year Senate term represented a compromise between those framers who wanted a strong, independent Senate, and those who feared the possible tyranny of an aristocratic Senate. Framers who favored longer terms argued that it would help the Senate check the democratic impulses of the House. James Madison suggested a term of seven or nine years to hamper such influences. Alexander Hamilton argued that only lifetime terms could check the “amazing violence and turbulence of the democratic spirit.”1 Others wanted shorter terms to keep the Senate accountable. In the end, they compromised on a six-year term.
Facing election every six years instead of every two years insulated the Senate from the pressures of public opinion. This protection from the whims of the populace was further fortified by having senators elected not by direct popular election but by the state legislatures. (This part of the framers’ design was changed in 1913 with the ratification of the 17th Amendment to the Constitution, which established direct election of senators.)
The Senate is divided into three classes for election purposes. Every two years, one-third of the Senate faces election. What’s the flip side of that equation? Every two years, two-thirds of the Senate continues in office with no break in service.
By 1787, having endured the trauma of revolution and war and the failures of the Articles of Confederation, the framers were very concerned about stability and continuity in the new government. Those concerns are reflected in the design of the Senate. The Senate serves as a continuing body—it has been in continuous operation since 1789. Unlike the House, the Senate does not have to reelect its officers every two years, nor is it required to re-adopt its official rules with each new congress. Theoretically, every two years the entire House of Representatives could turn over, depriving Congress of knowledge and experience. That cannot happen in the Senate.
What does this mean to us today?
3. Why do senators have different qualifications for office than representatives?
These qualifications for office—must be 30 years old, a citizen for at least nine years, and a resident of the state at time of election—reflect the framers’ desire that the Senate be an older, more experienced body.
The Senate, James Madison said, would provide “a necessary fence” against sudden shifts in public opinion.2 “The use of the Senate,” he wrote, “is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch.”3
There is an old story about the deliberative nature of the Senate and the important role it plays in legislation. Known as the “saucer and teacup story,” it may be apocryphal (we have not been able to document it prior to the 1850s), but it’s a good, illustrative story and is worth telling.4
It is said that on his return from France after the framers had completed the U.S. Constitution, creating two houses of Congress, Thomas Jefferson called Washington to account for having agreed to a second chamber, the Senate, in the U.S. Congress.
“Of what use is the Senate?” he asked Washington, as he stood before the fire with a cup of tea in his hand. As he asked the question, Jefferson poured some of the tea into his saucer, swirled it around a bit, and then poured it back into the teacup.
“You have answered your own question,” Washington replied.
“What do you mean?” Jefferson asked.
“Why did you pour the tea into your saucer?”
“To cool it,” said Jefferson.
“Just so,” said Washington, “that is why we created the Senate. The Senate is the saucer into which we pour legislation to cool.”
The Senate as the “cooling factor”—the House boils the water and makes the tea, but the Senate allows it to cool. This is a concept that students understand, and it is an idea that is completely consistent with the framers’ view of the Senate.
Is the Senate often slow-moving? Yes.
Does the Senate slow down the legislative process? Yes.
Does the Senate often force compromise to gain legislative success? Yes, and that’s just what the framers designed it to do.
4. Why was the Senate chosen as the High Court of Impeachment?
In Federalist 65, Alexander Hamilton wrote: "The subjects of [impeachment's] jurisdiction are those offenses which proceed from the misconduct of public men, or in other words from the abuse or violation of some public trust. They are of a nature which may with peculiar propriety be denominated POLITICAL, as they relate chiefly to injuries done immediately to the society itself...." He also noted that impeachment is “the bridle in the hands of the legislative body upon the executive servants of the government.”
Impeachment is one of the most important and powerful elements of our constitutional system of checks and balances. To the legislature is given the ability to charge, try, and remove from office a president, a judge, or other civil officers.
Impeachment also provides a useful example of the differing institutional roles of the House and the Senate. To the House is given the ability to charge an official, to impeach, by a simple majority vote—and to react to public outrage over wrongdoing by a government agent. To the Senate, however, is given the task of deliberating upon those charges and voting to convict or acquit. To achieve this purpose, all of the elements already discussed—the smaller, continuing body of older and more experienced members that is insulated from public pressure—come into play.
The “cooling factor” of the teacup story is also evident here. Whereas the House is allowed to react to public anger, the Senate must step back, consider evidence, hear testimony, and then vote to convict only if it can achieve a two-thirds majority to do so. The Senate’s distance from pressures of public opinion—senators may not have to face election for another four or six years—promotes a more judicious action.
Since the Senate is a continuing body, impeachment proceedings can continue from one two-year congress to the next without the need to reissue warrants and summons. The stability of the Senate’s election cycles assures that two-thirds of its members will be informed and ready to act on impeachment proceedings, even if an election intervenes.
The framers also had in mind the smaller body when considering impeachment trials. Imagine trying to manage a quasi-judicial proceeding in the large and boisterous House of Representatives.
Impeachments are rare, but of grave importance. As Hamilton predicted, however, they cannot be removed from the political process. Impeachment, he commented in Federalist 65, “will seldom fail to agitate the passions of the whole community, and to divide it into parties more or less friendly or inimical to the accused.” An impeachment trial—despite its legal trappings—is a political process, not a legal process.
Knowing that partisan politics would play a role, the framers built safeguards into the system. To convict and remove an official, a two-thirds majority of the Senate is required. Only by transcending partisan politics through compromise could such a vote be attained.
The framers believed that only the Senate had the ability to accomplish this task. “Where else than in the Senate,” wrote Hamilton in No. 65, “could have been found a tribunal sufficiently dignified, or sufficiently independent? What other body would be likely to feel confidence enough in its own situation” to preserve the necessary impartiality.
For all of these reasons, the framers made the Senate the high court of impeachment.
5. What is the significance of the Senate’s “advice and consent” powers?
Many of these same considerations went into the framers’ decision to give to the Senate “advice and consent” power over treaties and nominations. Perhaps in no other aspect of the framers’ design for the Senate is their concept of the Senate as an advisory body more evident.
Let us focus on the Senate’s advice and consent role in treaty-making. Why look at treaty-making, rather than the high-profile, political world of presidential nominations? Giving the Senate the sole power to approve treaties tells us much about how the framers viewed the Senate’s role in the federal government?
What was the status of American foreign policy in 1787? Other than a shaky peace agreement and lingering frustrations with Britain, and remnants of a war-time alliance with France, essentially there was no foreign policy in place. Beginning in 1789, the new nation had to build its foreign policy, region by region, country by country, and the principal means of establishing foreign relations was by treaty.
What does this tell us about the Senate? The framers were not willing to trust the president with sole governance of establishing agreements with foreign nations, and they expected the House to be simply too large, too partisan, and too unwieldy to manage the delicate and often secret deliberations of foreign policy. But the smaller, older, more experienced, more deliberative Senate seemed well suited to the task.
The framers envisioned senators as “states’ ambassadors.” With each state having an equal voice in the Senate, and with each senator elected by the state legislature, the Senate served as the primary link between the state and federal governments. By giving the power to approve treaties to the Senate, the framers were recognizing the needs of the individual states to have a say in America’s foreign relations, and particularly to look after state needs when it came to commercial treaties governing fishing, shipping, and imports and exports.
Of course, this is another aspect of our system of checks and balances, but exactly what is meant by “advice and consent.” Consent is self-evident—either the Senate approves or rejects a treaty. But what about advice? At what point in the treaty-making process should the Senate advise the president—prior to the creation of a treaty, during negotiations, or only at the conclusion of the process when it’s up to the Senate to reject to accept?
This question has been debated for more than 200 years.
When George Washington first sought approval of a treaty, he hand-delivered it to the Senate and asked for immediate consent. When the Senate told him to go away, and give them time to debate its provisions, Washington was not happy—but he went away.
Woodrow Wilson also hand-delivered the Treaty of Versailles following World War I, and asked for a quick consent. Again, the president was disappointed. The long debate that followed is a lesson in American treaty-making. The president ignored the Senate during the negotiating process. The Senate was unable to reach the necessary compromise to approve the treaty. Wilson’s efforts to establish a U.S. presence in the League of Nations failed. Whether that failure helped or hindered American foreign policy is still debated by historians, but the Senate exercised its constitutional prerogative and rejected the treaty.
Had the Senate been consulted earlier, had senators been involved in negotiations, the outcome might have been very different. There was room for compromise in the debate over the Treaty of Versailles.
In the more modern Senate, presidents have often sought the Senate’s advice early in the process, and some difficult hurdles have been passed to approve controversial treaties. A good example is the debate over the Panama Canal treaties in the 1970s. In that case, the Senate and the President worked closely together to bring about a successful conclusion to those controversial treaty discussions.
Again, the Senate exists, in part, to promote compromise among competing parties.
6. Why is the Vice President the constitutional “President of the Senate,” and is he a legislative officer or an executive officer?
According to Article 1, Section 3 of the Constitution, “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.” Beyond that, the framers gave little attention to the role of the vice president in the new government.
Why make the vice president the presiding officer of a legislative body? Well, frankly, the framers were looking for something for the vice president to do. Rather than just waiting for the president to die, he could preside over the daily sessions of the Senate.
The one power given to the vice president by the Constitution is the ability to break a tie-vote in the Senate. Our very first vice president, John Adams, still holds the record with 29 tie breakers. His successor, Thomas Jefferson, broke only three tied votes. Ten vice presidents never got the chance to break a tie, and the average is five. Most recently, Dick Cheney broke eight tied votes during his two terms in office.
Is the vice president an executive or a legislative officer? To this day, the vice president’s salary is paid by the Senate. In reality, however, the office has evolved over the years from a primarily legislative officer to a mostly executive position.
In the 19th century, vice presidents had little to do with executive action. Typically chosen to bring regional balance to the ticket, frequently they worked in opposition to the president. In the 20th century, vice presidents began attending cabinet meetings. After World War II, they served on the National Security Council. Until the 1960s, the vice president continued to preside routinely over the Senate. Vice President Richard Nixon was the last vice president to spend a good portion of his time in the Senate Chamber. In 1961, Vice President Lyndon Johnson made a physical move towards the executive branch, establishing an office in the executive office building. Spiro Agnew established an office in the West Wing in 1969, but it didn’t last (Agnew quickly made enemies), and Walter Mondale established the permanent vice president’s office in the White House. Mondale also held weekly luncheons with the president, a tradition followed by most of his successors. Today, the vice president is usually seen as an integral part of a president’s administration and presides over the Senate only on ceremonial occasions or when a tie-breaking vote is needed.
In other words, the vice president has one foot in each camp. As recent comments from Vice President Cheney and others illustrate, there is confusion over just where the modern vice president belongs. Since the Senate still pays his salary, however, we feel justified in claiming him for the legislative branch.
7. Why does the Senate have different leadership than the House?
It has been said that “the Senate is ruled from the floor, not from the chair.”
The Constitution specifies that the House will have a Speaker, but it does not designate a leader for the Senate. It does note the role of the vice president as presiding officer, but does not give him the power to vote except in the case of a tie. Why didn’t the framers’ give the Senate a Speaker?
The framers did not see the need for a Speaker of the Senate. The small nature of the Senate (when it met in 1789, there were just 22 senators) suggested that no speaker would be needed to manage the business of the day. The vice president, in his constitutional role, could keep the order.
During the opening days of Congress, Vice President John Adams hoped to participate in debate and perhaps even shape policy from his seat at the presiding officer’s desk, but the Senate rejected his attempts to direct Senate action. Elected members of the Senate had no interest in the vice president’s experience or advice, and did not hesitate to tell him so. In the end, his only voice in the Senate came through his tie-breaking vote. It became clear that the vice president would not become the leader of the Senate. In the absence of a designated constitutional leader, such as a speaker, leadership in the Senate evolved gradually and often reflected the greater concerns of the era.
As the Senate emerged as the principal forum for national debate during that era generally known as the Golden Era of the Senate, leaders emerged from regional factions in the Senate. The Great Triumvirate of Henry Clay, Daniel Webster and John C. Calhoun were great orators, talented legislators, and strong party men, but what brought them to the pinnacle of leadership was their regional identification. Clay of Kentucky represented the western frontier. Calhoun of South Carolina spoke for the slave-holding agrarian south. Webster of Massachusetts was spokesman for the industrializing urban north.
In the post-Civil War Senate, power shifted away from regional leaders to senators who understood and had strong connections to big business, reflecting the growing influence of the barons of industry. In the Senate, power became concentrated in the hands of those who controlled the major committees such as Finance, Appropriations, and Foreign Relations. By the 1890s, a group of senators known as the Senate Four (William Allison, Nelson Aldrich, John Spooner and Orville Platt) led the most powerful committees.
As the two political parties solidified in the late 19th century, party leaders emerged in the Senate, first as chairmen of the two party conferences and eventually as floor leaders. Not until the 1920s, however, did the Senate elect its first majority and minority leaders.
In the modern Senate, these two positions hold much power. In particular, the majority leader controls the legislative calendar. In the Senate, however, with its emphasis on minority rights, the role of the minority leader is equally important. The minority leader cannot only obstruct and stall the majority’s agenda; the minority leader must provide an alternative vision. The minority leader must find the path to compromise that assures legislative success without losing sight of that vision—a very difficult job!
These leadership roles are not institutional positions—you will not find them listed in the Constitution or the Senate rules—they are party leaders who have a powerful voice in the modern institution.
8. Why does the Senate permit filibusters?
The Senate’s tradition of unlimited debate is rooted in its constitutional origins. It is true that the words “unlimited debate” do not appear in the Constitution, but the Senate as created by the framers is uniquely suited to this ongoing practice. Only a small legislative body, deliberative in nature, and designed as a protector of minority rights, could sustain the tradition. When Congress opened for operation in 1789, both chambers enjoyed this privilege. Whereas the House found it necessary to limit debate within a few years, this remains a key element of the modern Senate.
Unlike the House, where a simple majority can control the number of amendments and the amount of time allotted to debate, the Senate gives voice to the minority—even the minority of one. A single senator can object to a unanimous consent agreement, and a single senator can hold the Senate floor for as long as his or her endurance allows.
Sometimes, the filibuster seems like an arcane legislative practice that is better suited to the 1840s than to the 21st century, but old techniques like the filibuster continue to serve a purpose in the modern Senate. The filibuster is the ultimate expression of the framers’ view of the Senate as a guardian against majority rule.
There is no official definition of a filibuster. It could be a lone senator holding the floor for hours—Strom Thurmond still holds the record at 24 hours and 18 minutes—a dramatic event, capturing press attention and a public audience, or it might be as quiet as a senator placing a hold on a bill. Regardless of the form it takes, a filibuster is a means of delaying a vote.
Many might describe that as obstruction, but is it necessarily bad? Of course, in the Senate every voice is heard, but let’s step back for just a moment to take a broader view. Let’s consider the filibuster against the Civil Rights Act of 1964.
Yes, the filibuster delayed the cloture vote and final passage of that bill for weeks, but it also provided a useful educational tool. As the filibuster proceeded, the American public enjoyed many chances to hear the arguments for and against the civil rights act. With each passing day, public opinion polls showed growing support for the bill.
When the filibuster began in the spring of 1964, many polls showed slightly less than majority support for the bill. By the time cloture was voted in the summer, bringing about a final vote on the bill, support had moved to a clear majority. This might not have been the purpose intended by the bill’s opponents, but the filibuster became an educational process that helped gain congressional support and sway public opinion in favor of final passage.
In the modern Senate, the filibuster can still serve a purpose.
9. Is it proper to call the Senate the “upper body”?
In our constitutional system, there is no upper or lower body in the U.S. Congress. The two houses of Congress were designed as equal partners in the legislative process. Each institution is distinct, with unique powers and privileges, but the framers designed them as equal bodies.
Why do people refer to the Senate as the “upper body”? The term has been used to describe the Senate for a variety of reasons, including its superficial similarities to the British House of Lords. Another reason is the stricter constitutional qualifications for office. While it is quite common for a member to serve first in the House and then the Senate, it is unusual for that course to reverse direction, so moving to the Senate has been described as a step up to the upper body. One notable exception to that pattern was John Quincy Adams who served as senator and then as president before achieving his greatest success in the House of Representatives. In the U.S. context, the term “upper house” may have a literal connotation as well, dating back to the 1st Congress (1789-1791), when the Senate chamber was literally the upper house—the Senate chamber being located on the second floor, a floor above the House chamber, in New York’s Federal Hall and Philadelphia’s Congress Hall.
No doubt, many senators think of it as the “upper house,” but the framers designed the House and Senate as equal partners, just as the three branches of government are equal branches.
10. Why is the Senate Chamber so empty when I watch C-SPAN?
Perhaps one of the reasons the Golden Era of the Senate was so “golden” was that the Senate had nowhere else to work at the time. On any given day, you’d find most of the senators at their desks in the chamber … writing, listening, debating, laughing, sleeping, franking mail. They were all present. No doubt, this was conducive to debate and resulted in some great discussions and arguments. The crowded chamber also provided a great show for the visitors in the gallery.
Today, we have the Capitol, three Senate office buildings, and the Capitol Visitors Center. Senators are dispersed among committee rooms, hearings facilities, press briefings, and various offices. They come to the chamber to vote, to propose a bill, and to make a speech. The heart of the action today takes place on the periphery of the Senate Chamber rather than in the Senate Chamber—usually out of view of the C-SPAN cameras.
1 Hamilton, June 18, 1787, quoted in Adrienne Koch, ed., Notes of Debates in the Federal Convention of 1787 Reported by James Madison (Athens: Ohio University Press, 1966/1984), p. 135.
2 Madison, June 25, 1787, quoted in Adrienne Koch, ed., Notes of Debates in the Federal Convention of 1787 Reported by James Madison (Athens: Ohio University Press, 1966/1984), p. 194.
3 Madison, June 7, 1787, quoted in Adrienne Koch, ed., Notes of Debates in the Federal Convention of 1787 Reported by James Madison (Athens: Ohio University Press, 1966/1984), p. 83.
4 One source for the story: J. Pope, Memoirs of the Rt. Hon. Sir John Alexander Macdonald, [Ottawa, 1894] vol. II, p. 233.
