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Can Democrats Have a 50-Vote Senate?

PH2009070604057.jpgOf late, Jonathan Zasloff has been arguing that the traditional objections to the reconciliation process don't apply. According to him, this is all just false consciousness on the part of cowed Democrats. It may be that the rules of the reconciliation process makes much of health-care reform ineligible for reconciliation, and it may be that the Senate parliamentarian will say that explicitly to the chair of the Senate, but the chair of the Senate can simply, for the first time ever, ignore the parliamentarian's rulings and break what everybody understands to be the rules and pass heath-care reform that way!

It won't work.

The problem with breaking the rules -- or, more to the point, using them in unintended ways -- is that anyone can do it. Remember when minority Democrats were threatening to "shut down the Senate" when Bill Frist eliminated the filibuster for judicial nominees? It wasn't an idle threat. They could well have shut down the Senate. Nearly all Senate business requires unanimous consent to proceed. Republicans are no less aware of this fact than Democrats were. If Democrats try to invoke reconciliation and then override the parliamentarian and rewrite the Senate rulebook on the fly, the GOP will quickly and easily close down the chamber.

At that point, you're in a standoff: The government shuts down. Everyone takes to the airwaves. And you wait to see which party breaks -- or gets broken by public anger -- first. In essence, you're exactly where you would've been if you had just broken out the cots and decided to fight out an endless filibuster, but you face the added impediment that the media is kicking the hell out of you for cheating, and Republicans can argue -- accurately -- that you just attempted a thuggish takeover of the Senate.

As a general rule, if there were a foolproof way around the 60-vote threshold, the senators of one party or the other would have thought of it, and at least a couple of radicals would have loudly advocated for it. It would be nice if all that was standing between 51 Democrats and health-care reform was a wisp of spine. But in fact, Zasloff's strategy to overwhelm a filibuster of health-care reform would shut down the United States Senate, which is not a better outcome in any obvious way.

Photo credit: Lauren Victoria Burke -- Associated Press Photo .

By Ezra Klein  |  August 3, 2009; 11:04 AM ET
Categories:  Congress  
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All that stands between democrats and healthreform is Democrats. Seriously... why are people jumping through this many hoops when the Democrats have a filibuster proof majority?

Posted by: spotatl | August 3, 2009 11:34 AM | Report abuse

Many people (even you, Ezra) seem to have a mental block when considering Senate procedure.

The rules that require unanimous consent are themselves parliamentary rules, and can be changed as easily as the rules governing reconciliation.

Of course there are political difficulties involved. And just to be clear, I personally think these rules are in general good things, and do not advocate changing them.

However, if the Democrats wanted, they could pass health reform through reconciliation, and when the Republicans predictably bring the Senate to a halt, the Democrats could wait a few weeks for the Republicans to look more and more like obstructionists. They could spend these weeks talking about "denying the American people and up or down vote" or what-not. And then when the government shutdown looks to actually affect people, they could come to the rescue by changing or just ignoring the rules that require unanimous consent, and get back to the business of governing.

Posted by: clifton_ealy | August 3, 2009 11:46 AM | Report abuse

A majority is free to change the rules. You are just making a political argument, not a procedural one.

And for the record, a minority of 40 cannot shut down the Senate unless the majority of 60 allows it to.

Posted by: andgarden | August 3, 2009 11:52 AM | Report abuse

I think that you can use a "nuclear" option like this if you think the public is totally on your side and the opposition has no legitimate leg to stand on and are only blocking it because they can. In a situation where the nation is pretty split I'd think it would be a disaster for the party to do anything like this. Put it this way- if you can't get your entire party to agree on something then its probably not something you want to shove down the throats of the voters.

Posted by: spotatl | August 3, 2009 11:54 AM | Report abuse

Changing a Senate rule requires a two-thirds vote -- that is to say, a 67-senator majority.

As for the minority being unable to shut down the Senate -- what makes you think that? Why do you think that?

Posted by: Ezra Klein | August 3, 2009 11:54 AM | Report abuse

Their problem isn't the votes. Their problem is that their policy ideas are stupid.

Posted by: fallsmeadjc | August 3, 2009 11:57 AM | Report abuse

Ezra Says:

Changing a Senate rule requires a two-thirds vote -- that is to say, a 67-senator majority.

Response: Not exactly, in particular, it can be done either on the first day of a session by majority vote, or at any time by point of order. Read the CRS on the nuclear option (search for "Nixon")

Ezra Again:

As for the minority being unable to shut down the Senate -- what makes you think that? Why do you think that?

Response: If you have a majority, you probably have a quorum. And if you have a quorum, you can change the rules (see above). Yes, there are lots of procedural games that the minority can play, but they are only possible for political reasons, not procedural ones. (Think back to exactly why it was that the nuclear option was defeated).

Of course, my personal opinion is that the Senate should be eliminated, and given the built-in gerrymander, some minority protection is a very good idea. But the rules of the Senate aren't as difficult to change as some of the institutionalists would have you believe. The problem is that it might look bad.

Posted by: andgarden | August 3, 2009 12:09 PM | Report abuse

But that's actually not relevant here. You're saying you could use a loophole to change the rules on the first day of the next Congress -- that is to say, in early 2011 (and there's some question as to whether that loophole is usable). That's not a big help to health-care reform, which is what Zasloff is talking about. A rule change requires two-thirds at this time.

That goes to your second point, too: You can't change the rules at any given moment. Your argument is that Democrats should try to sustain the popularity of health-care reform until the first day of the 112th Senate then ram through rule changes. Maybe, but that's sort of a different argument.

And it doesn't get away from the thousand methods for delay, all of which would have to be somehow blocked off in that opening gambit. It's not just the filibuster. It's amendments and unanimous consent and everything else. Like you, I've no love for the Senate, and would happily see it totally reconstructed. But that's what we're talking about, and it's not something the majority can easily do, even if it had 51 votes for it.

Posted by: Ezra Klein | August 3, 2009 12:34 PM | Report abuse

You think the public will be up in arms because the US Senate passes health care reform with a 55 vote majority? You think the phone lines will be burning up with support for the minority of senators who will bring the senate to a halt over the filibuster?

Anyway, if the reconciliation option is deployed correctly, it won't have to be used. It's a necessary threat to keep Nelson and Baucus in line and to pull Snow and Collins over it. If they believe that they will be identified forever with DeMint and Inhofe, they can be persuaded to vote for cloture.

But no, we Democrats don't use threats. We walk around with one hand tied behind our backs because that's the civil way to behave.

Posted by: Bloix | August 3, 2009 12:35 PM | Report abuse

You missed my second point. You can sustain a point of order with 50 votes plus the VP. No need to wait until the next Congress. And a sustained point of order is effectively a rule change. The same procedure can be used to shut down Republican theatrics.

It's all a matter of political will.

Posted by: andgarden | August 3, 2009 12:40 PM | Report abuse

Senate rules are stupid.

Why can't we just say if X senators sign onto a bill, it passes? X can be 51 or 60 or whatever you like, but just pick a number and require that many to pass.

Posted by: bluegrass1 | August 3, 2009 12:51 PM | Report abuse

Let's wait and see what the Democrats have to say once they get home and have they are chewed up by their constituents for signing bills they never read, trying to pass an ill-conceived health care reform just because Obama set a dead-line. These morons are going to get an earful and many of them will not be returning in 2010 over their stupidity.

Anyone want to explain how all of the spending already passed is going to be paid for other than taxing the top 1 to 3% or euthanize anyone over 65? Just how many times and how much can we keep taxing the top 1 to 3% for all of this spending?

Posted by: Bubbette1 | August 3, 2009 3:32 PM | Report abuse

I remember the Republicans considered abolishing the filibuster - in the middle of a session - during the battle over some of Bush's appointments. I believe that required only a majority vote. This was averted by the "Gang of 14" deal.

Why, exactly, can Democrats not abolish the filibuster now? They could keep it only for judicial nominations if you're worried about future Janice Rogers Browns.

Posted by: tyronen | August 3, 2009 4:37 PM | Report abuse

what is wrong with the idea of watching the republicans filerbuster a health care reform bill on c-span?

i think it would bring republican oppostion to health care reform out in the open

Posted by: jamesoneill | August 3, 2009 5:25 PM | Report abuse

It is truly funny hos the Republicans were never bothered by such a need to get 60 votes.

And, regarding the specter of a government shutdown, for the 50 million people without health insurance, the government is not presently working anyway.

They have been remarkably passive so far. I wonder how passive they will continue to be if no reform is passed.

Posted by: hugh9 | August 3, 2009 8:59 PM | Report abuse

You make a strong case, Ezra. One thing that Reid *can* do if the Republicans try to filibuster, is not let them use a procedural filibuster and instead have them do it the old fashioned way. This is well within his powers as specified by the current rules, and the Republicans would definitely break first. Why?

#1 No good soundbyte. "Boohoo, Democrats wouldn't let us obstruct government the easy way", doesn't really persuade a lot of people.

#2 Terrible optics. Reading the phonebook in adult diapers really doesn't endear yourself to the public, and its something you can see on TV.

#3 Less manpower. The fewer Senators that you have to speak, the greater the per-senator speaking burden.

Seriously, a *real* filibuster wouldn't last 24 hours.

Posted by: zosima | August 3, 2009 9:59 PM | Report abuse

"if there were a foolproof way around the 60-vote threshold, the senators of one party or the other would have thought of it, "

Bill Frist thought of it -- it involved having spineless lumps of Senate excrement on the other side, such as Mary Landrieu, a woman who would vote for flooding New Orleans again if the GOP put the threateners on her.

Posted by: pseudonymousinnc | August 3, 2009 10:34 PM | Report abuse

Now's the time to really consult the top experts, the lawyers specializing in this area, to forecast and plan for how the parliamentarian would rule, and if there's a Republican shut down of the senate, how the Democrats might respond and whether and how the courts might back them up (especially with disgraceful corruptness shown in Bush vs. Gore, and other rulings)

Ezra, I suggest you quickly utilize any access you have to top experts to learn about the answers to such questions.

Posted by: RichardHSerlin | August 3, 2009 10:42 PM | Report abuse

ditto to the numerous commentors above.

Senate rules are, well, merely rules which can be changed at a whim and are entirely arbitrary checks on the democratic process

You are simply wrong about procedure - in the Senate these rules are cosmetic creations of the body. Reconciliation and the parliamentarian are beltway political problems, not constitutional or even truly hard and fast Senate precedent.

Posted by: dside | August 3, 2009 11:53 PM | Report abuse

Thanks for the link, Ezra, but I still believe that you are quite wrong. Here is my reply:

Posted by: JonathanZasloff | August 4, 2009 12:58 PM | Report abuse

The comments to this entry are closed.

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