Seth Barrett Tillman on the Voting Power of the Senate President Pro Tempore [Updated with Comment from Andrew Hyman]Michael Ramsey

At the New Reform Club, Seth Barrett Tillman: Tillman on Volokh on the Senate President Pro Tempore (commenting on this post by Eugene Volokh, noted here).  From the introduction:

On August 23, 2021, on the Volokh Conspiracy, Professor Eugene Volokh wrote:

Now I suppose one could argue that the Senate President pro tempore would be able to cast two votes, when the VP is Acting President of the U.S.: One in his capacity as Senator, and one in his capacity as Vice-Vice-President. But apparently that has never been the understanding.

The issue of multiple voting by a Senate President Pro Tempore has certainly been discussed over the years. The most relevant Constitution text is not entirely clear on this point.

U.S. Const. Article I, Section 3, Clause 4: The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they [the senators] be equally divided.

U.S. Const. Article I, Section 3, Clause 5: The Senate shall choose their other Officers, and also a President pro tempore, in the Absence of the Vice President, or when he shall exercise the Office of President of the United States.

There are two ways to read Clause 4:

The Vice President of the United States shall be President of the Senate, but [the Vice President] shall have no Vote, unless they [the senators] be equally divided.

The Vice President of the United States shall be President of the Senate, but [the President of the Senate] shall have no Vote, unless they [the senators] be equally divided.

In other words, does the ostensible grant of a vote on equal division apply exclusively to Vice Presidents (or to Vice Presidents when acting as Senate President), or does it apply more generally to all Senate Presidents, including Senate Presidents Pro Tempore? ...

Followed by some surprising history (to me anyway).

COMMENT FROM ANDREW HYMAN:  There are other pertinent clauses aside from Article I, Section 3.  For example, there is this clause in Article V:

[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Allowing the President Pro Tem to have two votes would mean that his state has a total of three votes, thereby depriving all the other states of equal suffrage.  And there is also this clause in the Seventeenth Amendment (which was copied from the original unamended Constitution).

[E]ach Senator shall have one Vote.

These two clauses explain why the President Pro Tem of the U.S. Senate has never voted twice on any motion or measure.