One Additional Point Regarding a Vice President’s Tie-Breaking Vote
David Weisberg
Prof. Ramsey has commented on Prof. Laurence Tribe’s opinion that the Constitution permits the vice president to break Senate ties only with regard to proposed legislation and not with regard to appointments, including appointments to the U.S. Supreme Court. Prof. Ramsey isn’t persuaded; nor am I. He states: “[Article I, Section 3] does not say that the Vice President has this [tie-breaking] voting power only as to Article I matters. Rather, the Vice President has this voting power whenever the Senators are equally divided. Article I, Section 3 is about how the Senate operates -- not just as to powers in Article I, but generally.” I agree completely.
It is also instructive to consider the relevant provisions of Article II, Section 2, in a slightly larger context:
[The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court[.]
The “advice and consent” role of the Senate with respect to treaties includes the explicit provision that “two thirds of the Senators present concur.” There is no congruent provision, with respect to appointments, that “a majority of the Senators present concur.” But that provision is precisely what one would expect if the v.p. is to have no tie-breaking vote with appointments. Are we to believe that the drafters simply forgot that, in Article I, they had given the v.p. a facially unqualified tie-breaking vote?
Thus, if the drafters meant to limit the v.p.’s tie-breaking vote only to proposed legislation, thus excluding appointments, there were two different places—in Art. I, Sec. 3, which could have stated: “…but shall have no Vote, unless they be equally divided, with respect to a Bill,” or words to that effect; in Art. II, Sec. 2, which could have stated: “…and by and with the Advice and Consent of the Senate, shall appoint…Judges of the supreme Court,… provided a majority of the Senators present concur”—where that explicit limitation would very naturally fit. No such limitation appears anywhere. The only reasonable conclusion is that the v.p. may preside and break ties with respect to both legislation and appointments.