Should 41 = 51?

Senator Evan Bayh of Indiana decided not to run for re-election this fall. In a Sunday Opinion in the New York Times last week, he cited the failure of the United States Senate to conduct business because of the filibuster rule.

"The Senate should reform a practice increasingly abused by both parties, the
filibuster. Historically, the filibuster was employed to ensure that momentous
issues receive a full and fair hearing. Instead, it has come to serve the
exact opposite purpose--to prevent the Senate from even conducting routine
business."

According to the historian of the Senate, the term filibuster has origins from the Dutch word meaning pirate. In the early days of the republic, both houses allowed unlimited debate. As House membership grew it was abandoned, but remained in the Senate. In 1917, senators adopted rule (Rule 22), at the urging of President Woodrow Wilson, that allowed the Senate to end debate with a two-thirds majority vote, a procedure called "cloture". The new Senate rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the treaty of Versailles. The late J. Strom Thurmond of South Carolina holds the record of 24 hours 18 minutes against the Civil rights Act of 1957.

Filibusters are becoming more frequent. Last fall they were used to stall the legislation to extend unemployment insurance. Now the simple threat of a filibuster from one senator can halt progress on any legislation. Today, we have ideological gridlock over health care financing legislation. The 60 vote "supermajority " of the Democrats has been lost with the election of Senator Brown of Massachusetts, so that the threat of filibuster by the Republican minority can stop a vote and eventual passage of bills already passed by both houses of Congress. So a majority does not rule! Forty-one(41)votes obstructs the more than a majority fifty-nine(59) votes.

But is the game over? The answer is fortunately "NO". Again rules can be made to trump rules. There is an arcane rule in the Senate call the "budget reconciliation" rule. The rule will, after differences in the house and Senate bills have removed differences by compromise, allow passage by a simple majority in the Senate and House. This rule was passed in the 1974 Congressional Budget Act. This rule applies in the Senate to all legislation affecting the budget, and the health legislation would certainly qualify. The same act also limited debate in both houses to 20 hours and in the Senate, NO FILIBUSTERS ARE ALLOWED. Somebody was thinking. It should be pointed out that, Congress has used the reconciliation rule to apply to non-budget issues as the Republicans did in 1996 to pass major welfare legislation. In fact it has been used 19 times to get President Clinton's budgetary policies through in 1994, and the tax package cuts of President George W. Bush.

So if 59 can really beat 41, who not do it and do it now? If the people have spoken in the last election and there is a clear majority, why not do what the people's representatives have decided? The argument seems to be that the passage would be bullying the minority and that the majority is not listening to the minority. The idea that the minority can upon occasion be right is being offered as argument. Critics are also harping on the sol-called "sweet" deals. Summing it up at the bipartisan session at Blair House today, using the reconciliation rule, according to Senator Lamar Alexander, would be "jamming through in a partisan way".

What is the prospect? As long as the minority decides to obstruct the majority from governing, as long as campaigning continues after an election, as long as there is no real debate, there will be not only no progress on health care finance legislation, but none on Wall Street reform, none on ending wars, and none on reversing our bankruptcy trajectory.

Please, talk to your legislators about talking to each other. If we are not willing to revoke the filibuster rule, then let us invoke the reconciliation rule and move on.