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)
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.