"You need to review the Senate Rules" OK
By Byron Tau
And now, the race for the next 60.
Senate Democratic leaders cleared a big hurdle Saturday in their effort to pass a health-care overhaul when they overcame the threat of a filibuster to begin debate on the bill.
Now they need to get 60 votes to end debate on the bill.
Republicans have vowed to filibuster the final bill, and some moderate Democrats are wavering and threatening to join the opposition.
Still, there are a few scenarios where Democratic leaders could try to break the 60-vote threshold. Some are purely theoretical, while others have been attempted in the past to varying degrees of success.
Below, the four alternatives:
1. Reconciliation
Because it's important for Congress to pass a budget in order to keep the federal government running, the 1974 Congressional Budget and Impoundment Control Act allows for a special procedure called "reconciliation" to move a bill forward without it being subjected to a filibuster.
In that case, a simple majority of 51 senators is all that would be needed for passage. Over the years, the majority party has used reconciliation to pass controversial legislation that otherwise might have fallen to a filibuster.
In keeping with that tradition, Democrats have considered using the procedure to advance their health care bill in the Senate.
The problem? An obscure rule named for Sen. Robert Byrd (D-W. Va.), which requires that bills and amendments considered under reconciliation directly apply to the budget.
In the case of health care reform, large swaths of the bill do relate to federal spending, but the bill might have to be broken in two in order to be considered under the reconciliation process.
And though his opinion is nonbinding, Democrats would still probably need political cover in the form of support from the Senate Parliamentarian before using the procedure to pass health care reform.
2. The nuclear option
In the spring of 2005, Republican senators grew weary of Democratic filibusters stalling President Bush’s judicial nominees.
Then-Senate Majority Leader Bill Frist (R-Tenn.) threatened to invoke what he dubbed the "constitutional option" to bypass Democratic filibusters and force a simple majority vote on the delayed nominations.
Democratic lawmakers retaliated by dubbing it the "nuclear option" (though it was Republican Sen. Trent Lott who first called it that in the press) and complained about "changing the rules in the middle of the game."
Frist's plan depended on calling a "point of order" and asking the presiding officer of the Senate to rule on whether filibustering judicial nominees was unconstitutional. The argument was based on the notion that making judicial appointments is a sacred right of the president and while Senators are free to vote against appointments it's an innappropriate use of legislative procedure to prevent them from being considered by the full Senate.
If the chair ruled in their favor, it would only take 51 Senators to uphold his ruling. And because his plan involved raising a "point of order" instead of offering a formal rule change, Democrats would be unable to filibuster .
Ultimately, a group of moderates came to an agreement on judicial nominees that circumvented the showdown in 2005.
But the idea for using this so-called "nuclear option" still remains on the table no matter who controls the Senate.
Liberal bloggers such as Chris Bowers have argued that this same procedure with the Vice President acting as the chair could force a vote on all sorts of issues — not just judicial nominees.
3. Locking the doors
In the Hollywood drama "Mr. Smith Goes to Washington," the filibuster is shown as a brave Senator taking to the Senate floor and talking for hours on end.
In reality, filibusters are more complicated.
A modern filibuster is more about forcing endless rounds of quorum calls (the Senate's version of taking attendance) than forcing Senators to stand up and speak.
In fact, Senate Majority Leader Reid's office studied its options earlier in the year and concluded in a memo that there was no way to force an old-fashioned filibuster drama.
But CQ's Craig Crawford points out an interesting proposal raised by Forbes columnist Bruce Bartlett.
According to Bartlett, Reid can order the Senate sergeant-at-arms to physically drag Senators to the floor and prevent them from leaving. With every Senator present on the floor, a quorum call would be unnecessary and out of order.
Physically dragging senators to the floor could backfire, however. The last time it was attempted, in 1988, Sen. Bob Packwood broke a finger.
4. Throwing out the rule book
Typically, it takes 67 votes (two-thirds) to make changes to the standing Senate rules and those rule changes themselves are subject to a filibuster .
Further, Senate rules carry over from Congress to Congress, unless they’re specifically amended.
However, the possibility remains that, at the start of a new session of Congress, a simple majority could enact an entirely new set of Senate rules that do away with both filibusters and the "cloture" votes that seek to end them.
In short, they could vote to re-adopt all the Senate rules — except those that provide for unlimited debate. Or they could write an entirely new set of rules.
Sen. Byrd raised this possibility in 1979, writing that a new Congress was not "obliged to be bound by the dead hand of the past."
A Harvard Journal of Law and Public Policy raised the possibility that this option could be used at the start of a new Congress to do away with both filibusters and cloture motions — setting a new precedent and only requiring 51 votes.
Still, it's a bit late for Democrats to try this measure, since Congress is already in session.
Byron Tau writes for Roll Call.
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