The Senate: An Overview

The Senate: An Overview
Walter Oleszek
Senior Specialist in American National Government
Government and Finance Division
Summary
Decisions made at the Constitutional Convention about the Senate still shape its
organization and operation today. Several of these features merit discussion, because
they highlight important and enduring characteristics of the Senate. These aspects
include constituency, size, term of office, and special prerogatives. In addition, this
report identifies a major constitutional change that the Founding Fathers could not
foresee: the direct election of Senators.
On July 16, 1787, the 55 Founding Fathers at the Constitutional Convention in¹
Philadelphia reached what is commonly called the “Great Compromise.” The
compromise emerged after a struggle between the large and small states over the system
of representation for the House and Senate. The Framers readily accepted the principle
of bicameralism — a two-house national legislature. After all, the British Parliament was
bicameral as were most state legislatures. However, the Framers encountered sharp
divisions in grappling with these two questions: should representation (the number of
Members) in both chambers be apportioned according to each state’s population, or,
instead, should representation in the House be determined by population and in the Senate
on state equality? Under the first approach, the large states would dominate both
chambers; under the second plan, the large states would be advantaged in the House while
all states, regardless of their population, would be represented equally in the Senate.
This clash between proportional versus equal representation provoked the most
contentious debate at the Constitutional Convention and nearly led to its end. Delegate
Luther Martin of Maryland wrote that differences over the issue “nearly terminated in a
dissolution of the Convention.” George Washington wrote to Alexander Hamilton that he²

“almost despaired” that the small and large states would ever resolve their differences.
¹ The Great Compromise is sometimes referred to as the “Connecticut Compromise,” because it
was advanced by that state’s delegates during the Constitutional Convention. Roger Sherman was
the original sponsor of the proposal.
² The Martin and Washington quotes are from Catherine Drinker Bowen, Miracle At
Philadelphia: The Story of the Constitutional Convention, May to September 1787 (Boston:
(continued...)

In the end, the Great Compromise granted each side in the dispute a chamber where their
interests could be protected and guaranteed.
House seats would be apportioned among the states based on population, with each
state guaranteed at least one Member; Representatives would be directly elected by the
people. By contrast, the Senate would be composed of two senators per state —
regardless of population — indirectly elected by the state legislatures. As James Madison
wrote in Federalist No. 39, “The House of Representatives will derive its powers from
the people of America .... The Senate, on the other hand, will derive its powers from the
States, as political and co-equal societies; and these will be represented on the principle
of equality in the Senate.”³ The principle of two Senators from each state was further
guaranteed by Article V of the Constitution: “no State, without its Consent, shall be
deprived of equal Suffrage in the Senate.”
Decisions made at the Constitutional Convention about the Senate still shape its
organization and operation today, and make it one of the most distinctive legislative
institutions in the world. As William E. Gladstone, four-time British Prime Minister
during the 19^th century, said about the American Senate, it is a “remarkable body, the most
remarkable of all the inventions of modern politics.”⁴ Plainly, the Framers did not want
the Senate to be another House of Representatives.
The institutional uniqueness of the Senate flows directly from many of the decisions
made at the Constitutional Convention. Several of these features merit discussion,
because they highlight important and enduring features of the Senate. These features
include constituency, size, term of office, and special prerogatives.⁵ The one modification
to the plan not foreseen by the Framers was the direct election of Senators.
Constituency. The “one state-two Senator” formula means that most senators
represent constituencies that are more heterogeneous than the districts represented by
most House members. One result is that Senators must accommodate a larger diversity
of interests and voices in their representational roles. For example, a House member
might represent a district that is overwhelmingly agriculture in character. The Senators
from that state focus on agriculture, too, but they must also be responsive to a wider array

² (...continued)
Little, Brown and Co., 1966), pp. 185-186.
³ An oft-told story is about Thomas Jefferson’s meeting with President George Washington.
Jefferson was in France during the Constitutional Convention and upon his return went to visit
Washington. During the meeting, Jefferson asked Washington why he had agreed to the creation
of a Senate. Washington’s reply: “Why did you pour that coffee into your saucer?” Jefferson
answered, “To cool it.” “Even so,” responds Washington, “we pour legislation into the senatorial
saucer to cool it.”
⁴ Quoted in George H. Haynes, The Senate of the United States: Its History and Practice, vol. 1
(Boston: Houghton Mifflin Co., 1938), Preface. The original source is: W. E. Gladstone, “Kin
Beyond Sea,” North American Review, September-October 1878, pp. 191-192.
⁵ See Richard F. Fenno, Jr., “Senate,” in Donald C. Bacon, Roger H. Davidson, and Morton
Keller, eds., The Encyclopedia of the United States Congress, vol. 4 (New York: Simon &
Schuster, 1995), pp. 1784-1789.

and diversity of interests. The bottom line is that Senators represent an entire state, not
a part of it.
Because the votes of Senators are equal, balloting power in the Senate is not
apportioned by population. As various scholars have pointed out: “The nine largest states
are home to 51 percent of the population but elect only 18 percent of the Senate; the
twenty-six smallest states control 52 percent of the Senate but hold only 18 percent of the
population.”⁶ The disparity in the voting strength of Senators from lightly versus heavily
populated states prompted the late Senator Daniel Moynihan, D-N.Y., to predict that
sometime “in the twenty-first century the United States is going to have to address the
question of apportionment in the Senate.”⁷
Size of the Senate. From the outset the Senate’s membership was relatively small
compared to the House. When the Senate first convened in 1789, there were twenty-two
Senators. North Carolina and Rhode Island soon entered the Union to increase the
number to twenty-six. As new states entered the Union, the Senate’s size expanded to the

100 that it is today.

The Senate’s size significantly shapes how it works. For example, it operates in a
generally informal manner, often relying on the unanimous consent of all 100 senators to
function. There is large deference to minority views — either those of the minority party,
a small group of lawmakers, or a single senator. The Senate’s formal rules and precedents
are less comprehensive than the many detailed rules and voluminous precedents of the
larger House of Representatives. Viewed as “ambassadors” from the several states, the
seed was planted early that senators should have few restraints placed on their
parliamentary rights. For example, in 1789, the Senate informally “adopted a policy of
keeping formal rules to a minimum,” agreeing to twenty short rules. Further, in framing
its rules, the Senate “quite naturally put a great premium on ease and dignity of speech.”⁸
The Senate grants every Member two parliamentary freedoms that, so far as is
known, no other lawmaker worldwide possesses. These two freedoms are unlimited
debate and an unlimited opportunity to offer amendments, including non-relevant
amendments. Both prerogatives are, of course, subject to certain constraints. As two
Senate parliamentarians wrote, “Whereas Senate Rules permit virtually unlimited debate,
and very few restrictions on the right to offer amendments, these [unanimous consent]
agreements usually limit debate and the right of Senators to offer amendments.”⁹

⁶ See Gary C. Jacobson, The Politics of Congressional Elections, 7^th ed. (New York: Pearson
Education, Inc., 2009), p. 16.
⁷ Quoted in Judith Havemann, “Moynihan Poses Question of Balance,” The Washington Post,
August 14, 1995, p. A15. For an excellent analysis of the many effects of Senate apportionment
on representation, legislation, and leadership, see Frances E. Lee and Bruce I. Oppenheimer,
Sizing up the Senate: The Unequal Consequences of Equal Representation (Chicago: University
of Chicago Press, 1999).
⁸ Roy Swanstrom, The United States Senate, 1787-1801 (Washington: GPO, 1985), pp. 188, 191.
This dissertation was published as a Senate Document (99-19) during the 99^th Cong., 1^st sess.
⁹ Floyd M. Riddick and Alan S. Frumin, Senate Procedure: Precedents and Practices
(Washington: GPO, 1992), p. 1311.

Unanimous consent agreements establish a tailor-made procedure for considering virtually
any kind of business that the Senate takes up. They are commonly drafted by the parties’
floor leaders and managers and, to be implemented, must be agreed to by the entire Senate
membership (that is, not objected to by any senator.) Two fundamental objectives of
these accords are to limit debate and to structure the amendment process.
It was the smaller size of the Senate that no doubt encouraged these parliamentary
traditions to emerge and flourish. Not until 1917 did the Senate even adopt a method for
ending extended debate (called a “filibuster” if employed for dilatory purposes.) It was
called cloture (closure of debate) and its procedural requirements are spelled out in Senate
Rule XXII. So from 1789 to 1917 there was no way for the Senate to terminate extended
debates except by unanimous consent, compromise, or exhaustion.¹⁰
Term of Office, Qualifications, and Selection. A key goal of the Framers, as
noted earlier, was to create a Senate differently constituted from the other chamber so that
it could check the popular passions that might overly influence legislation emanating from
the directly elected House. To foster values such as deliberation, reflection, and
continuity, the Framers made three important decisions. First, they set the senatorial term
of office at six years even though the duration of a Congress is two years. The Senate is
a “continuing body” with only one-third of its membership up for election at any one time.
As Article I, section 3, states: “Immediately after they shall be assembled in consequence
of the first election, they shall be divided as equally as may be into three classes.”
Consequently, the electorate that chooses the one-third up in November 2008 is different
in various ways — in regard to the array of salient issues that may influence peoples’
choices, for example — from the voters who selected the other two-thirds of the Senate.
These lawmakers were influenced, respectively, by the public mood of the voters in
November 2004 and 2006; thus, some of them might act collectively as a “brake” and
block or slow down floor consideration of issues debated during the 2008 campaigns.
Second, to be a Senator, individuals must meet certain constitutional qualifications.
For example, to hold office, Senators must be 30 years of age and nine years a citizen;
House members are to be 25 years of age and seven years a citizen. The Framers expected¹¹
Senators to be more seasoned and experienced than House members. Whether this
expectation has been met is problematic, even in Congress’s earliest years when the likes
of James Madison and Albert Gallatin served in the House. Unlike House members, the
selection of senators was done by the state legislatures, which bolstered the states’ role
as a counterweight to the national government and insulated the Senate from popular
pressures.¹²

¹⁰ See, for example, Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering
in the United States Senate (Washington: Brookings Institution Press, 1990).
¹¹ Gouverneur Morris of Pennsylvania, a delegate to the Constitutional Convention, stated: The
Senate “ought to be composed of men of great and established property — an aristocracy .... Such
an aristocratic body will keep down the turbulency of democracy.” Quoted in Robert Dahl,
Pluralist Democracy in the United States: Conflict and Consent (Chicago: Rand McNally, 1967),
p. 35. Wary of unchecked popular rule, the Framers wanted the Senate to provide a sober
“second look” at legislation sent to it by the popularly elected House.
¹² From a strategic viewpoint, election by state legislatures “increased the likelihood that the
(continued...)

Special Prerogatives. The House and Senate share lawmaking authority, but the
Framers assigned special “advice and consent” prerogatives exclusively to the Senate.
Under Article II, section 2, the Senate functions as a unicameral body when it considers
(1) the ratification of treaties, which require approval by a two-thirds vote, or (2)
presidential nominations for high governmental positions such as Federal judges,
ambassadors, or Cabinet officers (all of whom require Senate consent by a majority vote).
The Framers assigned the advice and consent responsibilities to the Senate (but not the
House) because of certain characteristics embedded in that institution, such as stability,
a longer time perspective, and its smaller size. As one of the Framers (Pierce Butler of
South Carolina) noted, treaty negotiations “always required the greatest secrecy, which¹³
could not be expected in a large body” like the House. The Senate’s role in the
appointments process, wrote Hamilton in Federalist No. 65, would serve as “an excellent
check upon the spirit of favoritism in the President, and would tend greatly to preventing
the appointment of unfit characters from State prejudice.”
The Constitution (Article I, section 3) also grants the Senate the “sole Power to try
all Impeachments.” The House possesses the constitutional authority to decide by
majority vote whether to impeach (or indict) executive or judicial officials while the
Senate, by a two-thirds vote, determines whether to convict the indicted public officials,
which could even include the president. “Where else,” wrote Hamilton in Federalist No.
65, “than in the Senate 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 unawed and uninfluenced the necessary impartiality between
an individual accused, and the representatives of the people, his accusers?” (Italics in the
original.)
The Senate, like any legislative institution, constantly changes in big and little ways.
If the Framers returned today to visit the Senate, they would surely recognize that it
remains the preeminent legislative forum for protecting minority rights and for debating
and refining the great issues of the day. They would continue to find that many of their
fundamental principles — two Senators from each state, the advice and consent role, or
the impeachment prerogative — continue to govern the Senate’s composition and activity.
To be sure, they would likely be awe-struck by the country’s many changes: the
demographic diversity among the 50 states; the size and reach of the federal
establishment; the rise of presidential power; the cost of campaigns; the role of political
parties; the extent of the nation’s international obligations; and numerous other societal,
technological, or medical developments. They would soon discover a significant change
to their handiwork, however: today’s Senators no longer are elected by state legislatures.
The Direct Election of Senators. In 1913 the Seventeenth Amendment to the
Constitution was ratified providing for the direct election of Senators. The Framers

¹² (...continued)
Constitution would be accepted when submitted to the state ratifying conventions.” Robert C.
Byrd, The Senate, 1789-1989 Addresses on the History of the United States Senate (Washington:
GPO, 1988), p. 390.
¹³ See Treaties and Other International Agreements: The Role of the United States
Senate(Washington: GPO, 1984), p. 30. This committee print was prepared by the Congressional
Research Service for the Senate Committee on Foreign Relations.

would probably view this as the most significant constitutional change affecting the
Senate. The election of Senators by state legislatures lasted for more than 125 years until
the two institutions that were vested politically in the procedure — the U.S. Senate and
the state legislatures — opted for the popular election of Senators. Why? Two words
epitomize the fundamental drivers of the change: democracy and deadlock.
The direct election of Senators was triggered by the Progressive movement of the
1890s and early 1900s which advocated an agenda of democratic reform, such as
women’s suffrage, the direct primary, and the direct election of senators. Progressive
leaders wanted to end the influence of powerful special interests, especially corporations,
over state legislatures; block the purchase of Senate seats; blunt the influence of party
bosses in determining who state lawmakers should select; and make senators directly
answerable to the people for their actions or inactions. For example, the spread of direct
primaries in many states “led to voters expressing their choice for senator on the primary
ballot. Although not legally binding on the legislatures, the popular choice was likely to
be accepted.”¹⁴
The second major stimulus for the Seventeenth Amendment involved the often
contentious state legislative deadlocks in electing Senators. Various factors provoked the
deadlocks, such as different party control of the two chambers, and lengthy contests
among as many as 80 or more senatorial candidates, with balloting extending over several
weeks. As a scholar of the Senate reported, the “record of senatorial elections for the
fifteen years, 1891 to 1905, shows forty-five such deadlocks — from one to seven in each
of twenty states.”¹⁵ The combination of these two forces — the democratic impulse and
disgruntlement with deadlocks — led to congressional passage of a direct election
constitutional amendment in May 1912. Ratification by three-fourths of the state
legislatures occurred a year later.
To close, as British Prime Minister Gladstone said, the Senate is a “remarkable
body.” Many senators throughout history have shared his view. As Senator Claude
Pepper, D-FL, said in 1939, on the occasion of the Senate’s 150^th anniversary:
The varied and extraordinary functions and powers of the Senate make it, according
to one’s view, a hydra-headed monster, or the citadel of constitutional and democratic
liberties. Like democracy itself, the Senate is inefficient, unwieldy, inconsistent; it
has its foibles, its vanities, its Members who are great, the near great, and those who
think they are great. But, like democracy also, it is strong, it is sound at the core, it
has survived many changes, it has saved the country from many catastrophes, it is a
safeguard against any form of tyranny which ... might tend to remove the course of
Government from persistent public scrutiny. In the last analysis it is probably the¹⁶

price we in America have to pay for liberty.
¹⁴ Guide to Congress, 5^th ed., vol. 1 (Washington: CQ Press, 2000), p. 109.
¹⁵ Haynes, The Senate of the United States: Its History and Practice, vol. 1, p. 86.
¹⁶ Cited in Tributes To The Honorable Robert C. Byrd (Washington: GPO, 1988), p. xxi.