Think it Through

Why is it that Senators, lobbyists, and the news media who cover Congress take as an article of faith that Democrats need 60 votes to pass their legislation in the Senate and the Republicans only need a simple majority?

The press has been reporting the need for 60-vote majorities as if it has always been a given – because 60 votes are needed to close down debate if the minority objecting decides to filibuster. Under Majority Leader Harry Reid, the idea of upsetting the Senate by daring the Republicans to actually carry through on their threats to filibuster is out of the question. When I asked a 30-year veteran Senate staff person this week how this phenomenon has come about, he said, “comity in the Senate is valued more than taking a stand for something.”

The Democratic leadership anticipates the Republicans will filibuster everything, so we read in the press that “under an agreement in the Senate, the bill needs 60 votes to pass.” But when the Republicans ran the Senate (many days it seems they still do), they passed something as important as Samuel Alito’s Supreme Court nomination with just 58 votes. No Democrat filibustered the nomination, and Alito took his long record of siding with large institutions against individual rights with him to the Supreme Court bench for the next 30 years.

Convinced by their pollsters and consultants that Americans do not want controversy, Democratic Senators cowered whenever then-Senate Majority leader Bill Frist called them obstructionists. This misreads the American people. We have found in our research that voters can discern between taking a stand on a controversial issue and bickering like school children.

For example, Americans view the filibuster as an appropriate tool for senators to use to make a point. In focus groups we conducted a few years ago we heard strong support for filibusters as a “check on the majority view,” part of our system of “checks and balances,” and a way to hear a diversity of views. If you lose public support after staging a filibuster, it be because voters disagree with you, not because you tied up the Senate business.

This Senate under the leadership of Harry Reid has seen no real filibusters, but has been limited by more 60-vote agreements than any in the history of the Senate. Some commentators have looked at this sorry situation and concluded the remedy is to eliminate the filibuster altogether, so there would be no need for cloture votes. I disagree. I think the voters in our focus groups had it right – the filibuster is a check on some extreme action that may be proposed by the majority party. It is not intended to be invoked on every vote – and if Reid challenged the Republicans to go ahead and filibuster, it would not be used that way.

The Democratic leadership in the Senate should force the Republicans to stand and defend their opposition to Democratic initiatives – dare the Republicans to filibuster. On issue after issue – on aid to cities and states, on taxes, on health care, on education and transportation funding – if the Republicans want to dramatically demonstrate their differences with Democrats by way of the filibuster, the Democrats should let them. This would require the Democrats having the ability to defend their own positions. Right now, neither side needs to engage too much – they simply “have an agreement that it will require 60 votes to stop debate and pass the legislation.”

Amplifying attention to issue differences between Democrats and Republicans would mean that the winners and losers would be more clearly defined. When Senator Strom Thurmond staged a filibuster to block civil rights legislation in the 1957 he heightened the attention of the nation on the issue of racial equality. Ultimately, his position failed.

As soon as the Democrats learn not to fear the filibuster, there will be fewer threats to the filibuster and the Senate will get back to majority rule.

Update: edited for clarity