Dec 16th 2009

Lieberman Betrayal Illustrates Why Senate Filibuster Rules Must Change

by Robert Creamer

Robert Creamer is a long-time political organizer and strategist and author of the recent book: "Stand Up Straight: How Progressives Can Win," available on amazon.com.
Senator Joe Lieberman's successful maneuver to eliminate any form of public option from the Senate health reform bill makes one thing perfectly clear: to pass the most important elements of the progressive agenda, the Senate must change its filibuster rules.

The current 60-vote requirement to cut off debate empowers a tiny minority of Senators to prevent up or down votes on measures that clearly have majority support in the Senate, and overwhelming support among the American people. It is a fundamentally undemocratic procedure that is now used regularly by the most entrenched economic interests in America to prevent change.

If it is not changed, it will severely limit the ability of President Obama and the Democratic leadership to enact the most important changes that are necessary to build a foundation for long-term prosperity in America.

The 60-vote cloture requirement would not be so problematic if it were actually used only to assure a reasonable debate on a given issue. In practice, it has come to be used over the last several decades as a means of preventing an up or down vote - or allowing the minority to fundamentally constrain the will of the majority; to allow the tail to wag the dog.

In the current case, the public option is supported by 55 of the Senate's Democrats, a majority of the House, and 70% of the American people. It is opposed by the minority Republicans in the House and Senate, the insurance industry, and one key "Independent" Senator: Joe Lieberman.
Let's recall that Joe Lieberman has always been the "go-to guy" for the biggest private insurers. He was defeated in a Democratic primary in Connecticut, defied the will of the Party by running as an independent, and won mainly on the strength of Republican votes. Then he became a turncoat in the General Election - backing McCain over the Democratic nominee Barack Obama - and campaigned against the President throughout America.

Now the Senate rules empower him to limit the scope of health care reform, tax policy, and just about every other item on the Democratic agenda. Why does he have more power than Progressives like Senator Sherrod Brown? Because he could care less if the Senate ever passes health care reform - or any other piece of fundamentally progressive legislation. His best alternative to a negotiated settlement is simply "No." That gives him the same kind of power possessed by a suicide bomber. If he doesn't get his way, he's happy to see the whole place go up in smoke.

The American people did not elect Joe Lieberman - or the candidate he backed as President - but Senate rules have given him an effective veto over legislation. It is one thing for a Senator who would be the 50th vote to have that kind of power. But in a democracy, where the majority is supposed to rule, it is outrageous that he is in a position to call the shots when we now allegedly have an overwhelming Democratic majority of 60 Democrats to 40 Republicans.

The need for change has become more intense over the last two decades, because the polarization of the Senate has substantially increased. Senate comity might have limited the use of the filibuster in the past - but no more. The Republican party of "No" has no intention of using the filibuster simply to assure adequate debate. They intend to use every tool they can to stop the Democratic agenda cold. It is madness for Democrats - who control the Senate - to willingly hand them this powerful weapon.

The Senate rule that 60 votes are needed to cut off debate is not contained in the Constitution. It is an internal Senate rule set by the body and has been changed many times in the country's history.

There was no cloture provision in the rules through much of the 19th Century. In fact, the first Senate filibuster did not occur until 1837, and actual filibusters were used rarely to stop legislation.In 1917, at the urging of President Woodrow Wilson, the Democratic Senate enacted a rule for cloture of debate. From 1917 to 1949 the requirement was two-thirds of those voting.
In 1949 the requirement was changed to two-thirds of the entire Senate membership. In 1959 it was restored to two-thirds of those voting.Finally, in 1975 the rule was changed so that three-fifths of the Senate membership - generally 60 - could cut off debate.

In the last two decades the number of filibusters has exploded. In the 1960s, no Senate term had more than seven filibusters. Since 2000, no term has had fewer than 49 filibusters. In the 110th Congress, when Republicans were in the minority, there were 112 cloture votes.

In practice today, any significant piece of legislation requires 60 votes - not a 51-person majority vote - making the Senate a truly undemocratic institution.
The Senate rules of the 111th Congress require that 67 votes are needed to change the rules again during the session. But there is little question that a majority can set the rules of the body (just as they do in the House) at the beginning of a Senate term. In fact, constitutionally, 51 Senators could probably change the rules during the term as well.

In 1892, the Supreme Court ruled in U.S. v. Ballin that changes in Senate rules could be achieved by a simple majority vote. It ruled in part that:

The constitution empowers each house to determine its rules of proceedings. [...] The power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by the house, and, within the limitations suggested, absolute and beyond the challenge of any other body or tribunal.
The constitution provides that 'a majority of each [house] shall constitute a quorum to do business.' In other words, when a majority are present the house is in a position to do business. Its capacity to transact business is then established, created by the mere presence of a majority, and does not depend upon the disposition or assent or action of any single [144 U.S. 1, 6] member or fraction of the majority present. All that the constitution requires is the presence of a majority, and when that majority are present the power of the house arises.

Of course many Progressives will say, oh…not so fast… what happens when the Republicans are once again in the majority? Won't they undo everything we've accomplished if we don't have a filibuster? Three points:

First, fundamentally Democrats are the party of change and Republicans the Party of the status quo. The Senate rules are mainly used by entrenched defenders of the status quo to keep things the way they are. Over time, the advocates of change will benefit by making the Senate rules more "change friendly."

Second, most major progressive structural changes become very popular once they are in place. Try fundamentally changing Social Security or Medicare - even with 50 Senate votes. We stopped the privatization of Social Security by making it radioactive among the voters. Besides, if we don't change the Senate rules, we won't be able to pass many of the most critical elements in our agenda in the first place.

Third, we don't have to completely eliminate the filibuster to make the Senate more democratic (with a small d). The rule could be set, for instance, so that while it takes 60 votes to cut off debate the first time cloture is invoked, two days later it takes 57 votes, two days after that 55 votes, two days later 53 and finally 51. That would allow a minority to demand a vigorous debate. It would allow a minority to exact a legislative cost for the passage of controversial legislation. But it would not ultimately allow a minority to block the will of the majority - which is the current state of affairs.

Any number of other formulas is possible, but the bottom line is clear. If the voters want fundamental change, the majority of the House and Senate want fundamental change, and the President of the United States will sign a bill creating fundamental change, a tiny minority of Senators - people like Joe Lieberman -- should not be empowered by archaic Senate rules to stop fundamental change.

Robert Creamer's recent book: "Stand Up Straight: How Progressives Can Win," available on amazon.com.

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