The 60 Vote Lie

by: Chris Bowers

Tue Sep 15, 2009 at 16:45


One of the most pernicious lies in our political process has nothing to do with birth certificates or Glenn Beck.  Instead, it is the repeated and blatantly false claim that 60 votes are required to pass most legislation in the Senate.

With the exception of treaties, impeachment convictions, and amendments to the Constitution, anything--not just budgetary reconciliation bills--can pass the Senate with only 51 votes.  Everyone knows this, as we went through a fight over it just four years ago:

(More in the extended entry)

Chris Bowers :: The 60 Vote Lie
The Nuclear Option is used in response to a filibuster or other dilatory tactic. A senator makes a point of order calling for an immediate vote on the measure before the body, outlining what circumstances allow for this. The presiding officer of the Senate, usually the vice president of the United States or the president pro tempore, makes a parliamentary ruling upholding the senator's point of order. The Constitution is cited at this point, since otherwise the presiding officer is bound by precedent. A supporter of the filibuster may challenge the ruling by asking, "Is the decision of the Chair to stand as the judgment of the Senate?" This is referred to as "appealing from the Chair." An opponent of the filibuster will then move to table the appeal. As tabling is non-debatable, a vote is held immediately. A simple majority decides the issue. If the appeal is successfully tabled, then the presiding officer's ruling that the filibuster is unconstitutional is thereby upheld. Thus a simple majority is able to cut off debate, and the Senate moves to a vote on the substantive issue under consideration. The effect of the nuclear option is not limited to the single question under consideration, as it would be in a cloture vote. Rather, the nuclear option effects a change in the operational rules of the Senate, so that the filibuster or dilatory tactic would thereafter be barred by the new precedent.

Any filibuster can be ended with only 51 votes.  There was a huge political fight over this only four years ago, and yet we still all pretend that 60 votes are required to pass anything through the Senate.

Think about this while reading Senator Tom Harkin's recent comments on card-check and the Employee Free Choice Act:

Sen. Tom Harkin (D-Iowa) said to labor activists last Thursday "Card Check" would probably not pass this year.

In the same speech Harkin also said that he had 60 votes as of July, but Sen. Ted Kennedy (D-Mass.) could not be present to cast the decisive vote because of his illness. The Massachusetts legislature is considering an appointment to fill the seat before next year's special election.

With the truth about only needing 51 votes to pass anything in mind, the question should not be how to get a 60th vote in the Senate, but why aren't there 51 Senators willing to pass things like card-check, health care reform, and climate change legislation through the so-called "nuclear option?"

While there are many possible answers to this question, they generally fall into two camps.  One fear is that the party in the majority would end up with too much power, while the other is valuing Senate process over any given piece of legislation.  Neither are particularly strong justifications for continuing to operate according to 60 votes, but the valuing of Senate process over any given piece of legislation is particularly disturbing.

In retrospect, joining the fight to preserve the filibuster in 2005 is one of the worst mistakes I have made in my political life.  We should have jumped at the chance to eliminate it, even if it only applied to judicial nominations at first and even if resulted in a few bad judges.  That could have set a precedent where the filibuster was eliminated in other areas, too.  Instead, the supposed need for 60 votes has become a blanket justification for right-wing Democrats to not deliver on really any of the campaign promises the party made as a collective whole, and simultaneously for the Democratic leadership to claim they are not at fault for this failure.

We don't need 60 votes to pass a public option tied to Medicare, or cap and trade, or card check, or cramdown, or virtually anything at all.  All we need are 51 Democratic Senators who are both in favor of those policies and who are willing to use the nuclear option to change the rules of the Senate.  We could have passed all of those policies this year, but instead our Senate majority decided to value Senate process and a bipartisan image more than they value those policies.  As such, the very least that we can do is start calling them on their lies about the need for 60 votes, and point out that if 51 Senators were willing to do so, almost anything can pass through the Senate with only 51 votes.

When this health care fight is over, I am considering starting a campaign to call out any Senator who lies about the need for 60 votes.  


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The 60 Vote Lie | 40 comments
Exactly! (4.00 / 2)
And note that the Constitution is invoked because the the filibuster as used today is clearly unconstitutional.  There is absolutely no way to argue otherwise.

If I had my druthers, we wouldn't even be talking about reconciliation, we would be talking about this.


My druthers too (0.00 / 0)
Back in 2005, my brother kept telling me that we should let republicans destroy the filibuster. I disagreed at the time.

In 2009, he doesn't miss an opportunity to tell me that he was right back then. I have to agree with him.

The 60-vote rule is used to justify keeping the status quo when Democrats are in power, and rarely if ever invoked when Republicans are in power.  I think it is undeniably the biggest barrier to progressive change right now--even more so than lobbyists or corporate power in general.

i also think that if it was easier for both parties to pass legislation when they were in power, that more Americans would be engaged in the political process. the contrast between the two parties would be much great if they were each passing huge swaths of big legislation once they were in power.


[ Parent ]
I guess the question is... (4.00 / 2)
Is it worth getting shitty legislation when the other party is in power?  If there were no filibuster it's quite possible Social Security would've been destroyed now.  Worth it for health care legislation now?  

[ Parent ]
The Social Security Bill was killed before a fillibuster was relevant (4.00 / 1)


[ Parent ]
Would it have been... (0.00 / 0)
If no filibuster existed?  I'm not sure...

[ Parent ]
An excuse, not a reason (4.00 / 4)
How can 60 votes be required when Democrats are in charge, but only 50 when Republicans are in charge? Because that is what Republicans and Democrats want -- it is an excuse to pass Right-wing legislation and not pass progressive legislation. Since it is an excuse, not a reason, changing the procedure will probably not solve the problem: they'll just come up with another excuse.

The solution is for progressives to wield power and to do that we need a large bloc of progressives truly willing to fight for us and a large movement willing and able to back them up (and pressure them). We're getting there, though we might not be there quite yet. It may still require defeating a few Right-wing wacko Republicans in 2010 and replacing a few ConservaDems with progressives. Or if the progressive movement can equal the Astroturf Right-wing movement in power and media, then we may be able to force change. Let's build a movement capable of mounting a general strike and see what happens.


[ Parent ]
Don't excuse the excuse (4.00 / 1)
Even if that is true, the solution is still to get rid of the filibuster.  By claiming it is just an excuse, you actually give more power to keeping that excuse in effect.

[ Parent ]
Wrong in theory, as well as in practice. (0.00 / 0)
It is appropriate to require a sizable rather than a slim majority to enact legislation (see also Thomas Paine).

And the reality is that it will take 60 votes to bring controversial bills to the desk of the President.

The lie misunderstanding is that there is a certain kind of rational public pressure that can be brought to bear to sway elected officials via the democratic process. That's not how it works. They do what they think is best for them at all times, and the nominal government dutifully dances to whatever number of yeas and nays required. But they can be swayed by the populace, just not rationally.

The elites of today are as elites of any age, they respond only to danger (see also Thomas Paine). They got scared in 2008 when, 7 years into the "War on Terror", Americans elected a black Kenyan named Hussein.

That is why you saw a suspension of economic rules in order to pacify the desperate the masses. Rules exist to rule people, and if they don't facilitate rule, you get new ones ASAP. Now that the people who supported Change™ are pacified, the elite have returned (past tense) to the status quo ante.

After all, the system need only work for them; working being synonymous to "without danger".

God help us when the charade of "recovery" can no longer be maintained.


Even if you think it is wrong (4.00 / 4)
Even if you think the filibuster should be kept, the point is that it can be eliminated with 51 votes.

If you support 60-votes out of principle, that's fine. I'm just tired of being told--incorrectly--that 60 are required not out of principle, but out of an immutable law. The truth is that only 51 are needed.


[ Parent ]
Sizable Sum (4.00 / 2)
The United States already has far more veto points than virtually any other democracy.  To pass legislation you need at least one committee in both the House and Senate, then the House and Senate majorities, and finally the president.  That's five, three of which are constitutionally required.  That is more than enough.


[ Parent ]
Exactly (4.00 / 2)
And veto points are like toll bridges. If there are five veto points, five robber barons have to be paid off.

I've never seen the constitutionalist response to this question. Whatever its intent, our system of checks and balances and the informal procedural rules in Congress all enable corruption (both in the strict sense, and in the looser sense of demanding quid pro quos unrelated to the actual bill). Most constitutionalists pretend to believe that the choke points ensure wise deliberation and prevent hasty action, but in actual practice they just require a series of payoffs to obstructionists.  


[ Parent ]
This is a bit off-topic, but if you (or anyone (4.00 / 1)
else) can explain why we're currently working on the fourth (right?) Senate committee to pass health care, I'd be v. appreciative. I mean, why not seven committees, or two?

[ Parent ]
Jurisdiction (4.00 / 3)
Most bills fall under a single committee on each side.  Health Care is complex enough it falls under 5 committees, three in the House and two in the Senate.  On the House side the three committees teamed up and passed a joint bill.

Theoretically, Baucus is only in charge of how to finance the plan, not the plan itself.  This is all power grab on his part.


[ Parent ]
Baucus was enabled by Obama, as I understand (4.00 / 1)
So was Snowe, if I'm not mistaken. Obama decided on a centrist approach right off at the beginning. Without various things he said Snowe and Obama would be much less important.

I've really come to dislike Snowe, about whom I previously had no real opinion. She's really enjoying her unearned place in the sun, and when I look at her closely she seems absolutely insufferable.

Like about 90% of the Senate, I suppose. But I'd scarcely noticed her before.


[ Parent ]
It occurs to me... (4.00 / 4)
That we need to keep a Senate Progressive Block whip count.  If the Public Option is going to be voted down first because it doesn't have 60 votes then we need to make sure that BaucusCare also doesn't reach 60 votes pre-reconciliation and 50 votes during reconciliation.  Assuming Snowe is likely the only Republican to vote for BaucusCare, that means we need just 11 Democratic Senators to promise to vote no on BaucusCare to ensure that that doesn't get passed during Reconciliation (if we get BaucusCare through Reconciliation, that'd be really pathetic).  

Then, since Reid has promised to use Reconciliation if they can't get a bill any other way, the only option will be to go with the Public Option bill which, seemingly has majority support in the Senate (albeit with some flimsy support).


Thank you, Chris (4.00 / 3)
The 60 vote lie is recent and has distorted things in the direction of gridlock and "compromises" that favor the rich and powerful.

Historically, filibusters were rare, rarely succeeeded, and only took place when a strong and important core belief of a Senate minority took place.

While we are it, let us get rid of the anonymous holds, too.

Real filibusters were not only physically hard to pull off but exposed the venality of the minority in many cases.  It is important for constituents to know who is against the minimum wage, who wants to wreck Social Security, and who wants to enrich insurance companies at their constituents expenses.  A real fillibuster exposes Max Baucus to his constituent as the corrupt, greedy, man that he is.  That is a very good thing because Max Baucus will be less tempted to be the tool that he is.


This is exactly right (4.00 / 2)
I don't mind the fillibuster so much as the fact that it is totally anonymous, and doesn't even require that the opposition get up and express why they want one.

[ Parent ]
reading from phonebook (0.00 / 0)
I thought that historically a filibuster meant some Senator reading from a phonebook for hours while other Senators slept on cots on the Senate floor. Why have Democrats chosen to make the filibuster so much easier now? I can think of no reason other than that they have been bought off by the same wealthy bastards who have bought off the obstructionists. It's quite an amazing little charade.

miasmo.com

[ Parent ]
Thinking outside the box (4.00 / 1)
The Senate could gut much of the power of the filibuster with one tech-based change.

Simply eliminate the rule that a Senator has to be on the Floor of the Senate to cast a vote on Cloture. It would be a trifle to set up a method of secure remote voting for each Senator. If Senators want to exercise their right to unlimited debate let them do so, meanwhile everyone else can go about their business getting things done in their offices or in committee.

You would have to modify some of the Quorum and Adjournment rules but given that for most purposes the Senate operates under unanimous consent where that means one person representing each party plus a presiding office this is more a recognition of current reality than anything.

It would probably be a step too far to open this process to votes on main motions. But it would end the current situation where two or three Senators can effectively compel the physical presence of 60 supporters of cloture while presenting no similar burden on their own side.

If this were in place the Majority Leader could just move to invoke cloture on Thursday afternoon at 2PM and let everybody but some deputy and the presiding officer take off for the weekend while letting the filibusterers kill as much of their weekend as they would like. If they falter Senators could remotely vote to end debate and then to adjourn, at which point the Leader could schedule the vote for final.

I don't see a gap here, then again I am not an expert on parliamentary procedure, particularly under the rather arcane rules of the Senate.
_______________________

Just killing the filibuster outright would be a mistake. I never read any of Bork's opinions but glanced through some of his popular works and was repulsed. That man would have been a clear danger to the Republic. I mean I know where Scalia and Roberts are coming from, and they are menaces in their own way, but putting Bork on the Court would have had some of the same effects as putting Addington or Yoo on.


A technical addition (0.00 / 0)
If a filibuster simply runs out of steam there wouldn't need to be a vote to invoke cloture; I think the sequence would be a Motion to Move the Question which would be ruled in order, then a Quorum call, which would fail, at which point the Senate would adjourn, leaving I think the Majority Leader free to bring up the Motion to Move the Question when next the Senate was called to order. In any event there is some parliamentary solution that would enable this which would be less extreme than the proposed nuclear option..

[ Parent ]
Vote for continuation (0.00 / 0)
Instead of a vote for closure it should be a vote for continuation of debate, requiring the filibustering party to have 40 members present at all time, while the majority would only need one.

At a minimum, we should invoke the "nuclear option" to change this procedure.


[ Parent ]
Or amend the rule (0.00 / 0)
so that cloture succeeds with 3/5 of members present and voting.  

[ Parent ]
If you're going to nuclear option (4.00 / 1)
you might as well just pass Medicare for All, rather than some horribly compromised public option.

We will never pass Medicare for all (0.00 / 0)
As long as the filibuster is in place.

Ever.

That doesn't mean that eliminating the filibuster would result in Medicare for all this year, but it is the only hope for ever passing it.


[ Parent ]
I'm not so (4.00 / 2)
sure, frankly.  Medicare for all could pass under reconciliation, if that's what Obama wanted.  It'd be tight, but it's possible, imo.  But Obama and Reid don't want that.

[ Parent ]
A tad hyperbolic? (4.00 / 2)
In retrospect, joining the fight to preserve the filibuster in 2005 is one of the worst mistakes I have made in my political life.

I'd have to be made out of stone not to see that the filibuster is a major thorn in our side right now, and I too am very frustrated by how things have gone in the Senate.

But aren't we missing a crucial distinction here, namely that it's not the filibuster's fault that Harry Reid has struggled to manage the Senate's business?  I'm no Senate historian, but I think the filibuster has been around for decades without impeding the nation's business like it has these last few years — and furthermore it was only once Harry Reid became majority leader and started accepting the threat of a filibuster in place of the actual thing that it got out of hand.

I also supported preserving the filibuster in 2005, but I don't view it as a mistake.  I see the mistake as allowing mere threats to substitute for the real, Mr. Smith Goes to Washington-style, full-on thing.

Yes we Kang


I wonder about that, too. (0.00 / 0)
Read somewhere that the Mr. Smith style filibuster has always been a Hollywood creation, though, and what's really changed is either a) the freaks in the Senate or b) the freaks in the media, refusing to report on 'a'. That is, this sorta behavior would've been possible under any majority leader, if given this level of shamelessness on the part of the minority party and the media.

[ Parent ]
OK, so Jimmy Stewart isn't really a Senator (0.00 / 0)
Point taken, Hollywood isn't always the most true to life.

But my understanding is that while anyone all along could have been a pest, there's an element of bluff-calling that Harry Reid is not undertaking — just having one cloture vote and moving on rather than making the Republicans sustain something.  Am I wrong?

Yes we Kang


[ Parent ]
It certainly wasn't when (4.00 / 1)
Strom Thurmond gave a 24 hour speech to attempt to kill civil rights legislation.

It might not have been a universal thing that was always done in a fillibuster situation, but it certainly was done sometimes.  

And, more importantly, there would be almost no politicla cost to actually requiring the filibusters to stand up and state their case and to physically talk for forever.


[ Parent ]
Thurmond's filibuster wasn't a serious threat to stop the bill (0.00 / 0)
What Strom Thurmond was a desperate, grandstanding protest that even he knew wasn't going to change anything unless America rose up in a populist uprising against civil rights legislation.

Keep in mind that Thurmond gave his speech because no one else was willing to join him.  Several Southern Senators had even agreed to not filibuster in order to stave off talk of removing the filibuster altogether.


Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both


[ Parent ]
The media have aggressively pushed the 60-vote myth (0.00 / 0)
And weak Democrats love it because they can use it as a copout. (Just because we're on their said doesn't mean they're on our side. And when we lose, often they win.)

Our adversaries include 99% of the Republicans, 90% of the media, and 30-60% of the Democrats (most of the party pros, and a smaller proportion of the elected officials).


Filibuster Empowers Each Senator (4.00 / 1)
Something to keep in mind is the filibuster empowers every single Senator, regardless of their party.  The 60 vote rule makes it that much easier to demand goodies for your own state, for example.

So even if the filibuster is bad for the majority, it isn't actually bad for each member of the majority, assuming they care more about power than results.  At the end of the day, that is why the nuclear option has never been triggered.


Disempowering every single Senator would be well worth it (0.00 / 0)
What a bunch of gas bags. There are a handful of good ones, but I'm pretty sure that the good ones would accept this particular form of disempowerment.

[ Parent ]
Sure (0.00 / 0)
Now get 51 of those gasbags to vote for it. See the difficulty?

[ Parent ]
If it can be destroyed, can't it be recreated? (0.00 / 0)
.
They created the filibuster once, in spite of the Constitution. Why couldn't they just create it again, if they felt a real need for it? In the meantime, let's get the process going. As noted here, there are plenty of other safeguards to prevent the majority from rolling over the minority now. But when the majority is almost all of the American people, in terms of their welfare and their interests, and the minority is a few wingnuts under mind-control by foreign-owned corporate media and the corporations and their toadies, I don't see how the "minority" even gets a vote on anything.

Is it the Legislative vs. the Executive personality? How do we end up with borderline sociopathic Type-A's running the Executive Branch, and weak, wishy-washy Type-B's running the Legislature? Where were the founders on that? Or have we just drifted away from Separation of Powers so far that the system no longer works as originally designed? Magna Carta, anyone? Any disgruntled progressive Nobles out there among the corporate technoserfs?

Here's some other blogs' takes on this, for which we've given them "Cosies."
.


The real lie (4.00 / 1)
is that the Senate is somehow an institution that has any place in a modern democracy.

We are screwed either way.  Without the filibuster, tiny states would have the ability to put minority policies over the top on a 51% vote, that really represented a 30% popular vote.  The fillibuster protects the majority from the tyranny of the minority.  

With the fillibuster, Senators representing a tiny fraction of the electorate can block tremendously popular legislation.  

The Senate is an anti-democratic institution - that means that conservatives always win in the end.  Tweaking the rules won't fix it.  


In the shorter term (4.00 / 2)
Democratic Senators who join filibusters with Republicans to stop legislation that had majority support in the Democratic caucus ought to be at the top of the list of people who are punished both by activists and the party leadership. If the leadership won't do that, they are guilty as well.  

I'm not suggesting that (again in the shorter term) any use of the filibuster should be punished in this fashion.  But there are Senator who routinely do it - which is simply unacceptable even if you believe that the filibuster is warranted.  

Politics is the art of the possible, but that means you have to think about changing what is possible, not that you have to accept it in perpetuity.


The filibuster will die (0.00 / 0)
When progressives use the filibuster effectively.

The reason that they came up with a cloture rule in the first place was because,way back in 1917, Woodrow Wilson was pissed that a filibuster had been used to block a bill arming merchant ships in the face of World War I activity (before the US entered the war).  The filibuster had been led by progressive Republican senator Robert La Follette, who at one time held the record for the longest single-person filibuster in the Senate (surpassed by Oregon populist Wayne Morse to protest oil legislation and then by Strom Thurmond, of course).

Don't kid yourself.  Progressive movement building will require a long-term goal of electing a core of progressive senators who are willing to use filibusters and anonymous holds and similar tactics.  When I see Democrats using tactics like holding up slam-dunk Cabinet nominations just to be dicks and flex their muscles, then I'll feel that progressives just may have the will necessary to get things done.

Things You Don't Talk About in Polite Company: Religion, Politics, the Occasional Intersection of Both


Why wait? Start today. (0.00 / 0)
Call the fuckers out, right now. Carpet bomb 'em with everything you've got.

I railed against the Gang of 12 four years ago (0.00 / 0)
It was a centrist sell-out. Either let them blow up the filibuster, or actually use the damn filibuster. Instead, our centrists in the Democratic party agreed to surrender the use of filibuster when it came to judges, and got absolutely nothing out of it. Oh yes, they preserved the filibuster so that the GOP can now use it to block up Democratic initiatives.

I wish we had a real fighter as Senate Majority Leader. Someone from a deep blue state who doesn't give a damn what the GOP or the Villagers thinks.


The 60 Vote Lie | 40 comments
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