The US Senate is in Need of Reform--Part II

The 60-vote requirement to get cloture in the US Senate currently makes it possible for a minority of Senators to thwart yes or no votes on legislation that clearly have majority support not only in the Senate, but more importantly, has overwhelming support among the American people. It is an undemocratic procedure that has been hijacked in this current Congress to prevent the one thing that candidate Obama promised: change.

Senator Joe Lieberman of Connecticut has managed to successfully eliminate any form of public option from the current attempts at reforming healthcare in this country and that reality makes the case that if this Congress is to pass legislation that will lead to reform, the Senate will have to change its rules.

If this fails to take place, then the attempts of President Obama and the Democratic congressional leadership to effect change designed to build a foundation for recovery from an economy that has put millions of Americans out of work while causing millions more to lose their homes; that will end a war that has killed thousands of American soldiers and tens of thousands of Iraqis and Afghanis; that has created the most cost burdened healthcare in the world and fostered the worst case of political and social polarization in our nation’s history, are doomed to fail.

Regarding healthcare reform, the public option is supported by 55 of the Senate’s Democrats, a solid majority in the House and most important, 70% of the American electorate. It is opposed by the Republicans in the House and Senate (who are in the minority), the insurance industry and one so-called Independent US Senator—Joe Lieberman.

Joe Lieberman: remember his story? Throughout his legislative career he has always been the one legislator that the US insurance industry could depend on. He was defeated in the Connecticut Democratic primary; he then defied the will of the party by running as an independent and ultimately won the election that sent him back to the US Senate, primarily on the strength of Republican voters. Then, in an inexplicable move, Joe Lieberman became a traitor to the Democratic Party in the last general election by supporting John McCain over Democratic nominee Barrack Obama and in doing so, campaigned all over the United States where on many occasions he stood shoulder to shoulder with John McCain. Not satisfied with that however, he also appeared at the Republican national convention where he reached out to Democrats when he said on national television,” Before I conclude, I ask the indulgence of those in this hall tonight, as I want to speak directly to my fellow Democrats and Independents who are watching……You may be thinking of voting for John McCain, but you’re not sure. Some of you have never voted for a Republican before and in an ordinary election, you probably wouldn’t. But this is no ordinary election, because these are not ordinary times, and John McCain is no ordinary candidate.” If this is an example of party loyalty, then give me Joe McCarthy anytime. At least I can see him coming.

Existing Senate rules make it possible for politicians like Lieberman to weaken the scope of tax and economic policy and reform of the financial sector, prevent dangerous climate change and destroy the more vital aspects of healthcare reform. Why does he have more power than the 55 United States Democratic Senators who supported the public option? Because he is a leader in that group of Republican legislators who have become known as the Party of “No.” He and his Republican colleagues’ response to an attempt at any negotiated settlement of the issues is to simply block compromise by using every parliamentary procedure they can.

Much to Lieberman’s (and McCain’s) chagrin, the American people did not elect either of them for President. However, current Senate rules have provided him with a powerful veto over legislation he does not or would not support.

This could almost be acceptable if the margin between Democratic Senators and Republican ones was slimmer. But where there are 60 Democratic Senators, 39 Republicans and one Independent, it is unfathomable that one Senator can set the agenda. So much for the system of democracy where the majority is supposed to rule.

The increase in the polarization of the US Senate over the past twenty years has made the need for a change in the Senate rules more necessary than ever. The Republican Party has no intention of employing the use of filibuster simply to create an environment that fosters viable debate. Their plan is instead to use every tool, strategy and trick at their disposal to kill the progressive agenda of the Democratic Party, preferably before it ever gets out of committee.

It almost goes without saying that the 60 vote cloture rule appears nowhere in the US Constitution. It is instead, an internal rule and has been changed many times throughout our country’s history. In 1917, in the midst of a raging debate over the proposed Treaty of Versailles, President Wilson was able to get a Democratic Senate to enact a rule for cloture. Until 1949 the cloture requirement was two-thirds of the Senators who were voting. Finally, in 1975, the rule was changed so that three-fifths of the Senate membership (60) could end the debate.

Since 1990, the number of times the Senate has utilized the strategy of filibuster has skyrocketed. During the 1960s, no Senate term had more than seven filibusters and since 2000, no term has had fewer than 49 filibusters. In the 110th Congress, when Republicans were the minority party, there were 112 cloture votes.

It was in 1892 that the US Supreme Court ruled in U.S. v. Ballin that changes in Senate rules could be achieved by a simple majority vote. The Court 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 US Constitution also provides that ‘a majority of each [house] shall constitute a quorum to do business.’ This simply means that when a majority of Senators are present, the body is in a position to conduct business, created by the mere presence of a majority and does not depend upon the action of any single member or fraction of the majority present. All that our Constitution mandates is the presence of a majority, and when that majority is present, the power of the House to function and make decisions is assured.

One of the primary reasons that a change in the filibuster/cloture rule has not happened is because the majority party recognizes that they will not be the majority party forever. They are cognizant of the fact that once a party rises to majority status, it could, without the filibuster, undo everything accomplished by the party across the aisle. There are three reasons why this would not happen:

1. Historically, the Democrats have been the Party of change while the Republicans tend to be the Party of the status quo. Current Senate rules benefit defenders of the status quo because they wish to keep things just the way they are. Over time however, the change agents in the Senate will benefit by making the Senate more agreeable to change.

2. Again historically, most liberal change ultimately becomes very popular once they have been voted into law. Even with 50 Senate votes, fundamentally attempting to change Social Security or Medicare would go down in flames. As an example, President Bush’s attempt to privatize Social Security was met with disdain by the vast majority of Americans.

3. One approach that would prevent the Party coming into power from undoing everything the Party they had just supplanted had accomplished would be to create a rule that would recognize that while a 60 vote majority would cut off debate the first time cloture is invoked, two days later it would only take 57 votes, two days after that 55 votes, two days later 53 and finally the simple majority of 51 votes. This kind of rule would prevent a minority from blocking the will of the majority which is exactly today’s reality.

Of course, there is any number of alternative formulas that could be enacted, but the bottom line is clear. If the American people have voted for change, and the majority of the House and Senate who have been put into office also by the American people want change and the President of the United States will sign into law a bill creating change, then a tiny minority of Senators—such as Joe Lieberman—would no longer have the power to prevent that change from taking place. And that is a true democracy.