Welcome to Washington, where 60 is the new 51.As important legislation from health care to climate change moves through Congress, the conventional wisdom is that "you need 60 votes'' to get anything through the 100-member Senate. In fact, most bills can still pass with 51 votes. But a supermajority of 60 votes is needed to avoid a filibuster, a last-ditch option supposedly reserved for matters of deepest principle.
Indelibly associated with Jimmy Stewart in "Mr. Smith Goes to Washington'' - or, less profoundly, with Louisiana's Huey Long reciting recipes for fried oysters and potlikker in 1935 - the filibuster was designed to be a marathon test of wills, with the truly committed undergoing punishing conditions to prevent odious schemes from becoming law.
Not anymore. Because of a 1975 rules change that allows 41 or more senators to hold up legislation merely by expressing their intention to filibuster, the tactic has become almost routine, cheapened beyond recognition by the Beltway's new math. A filibuster that doesn't actually disrupt the Senate's business doesn't cost anything, so it's easy to pull the trigger.
This so-called gentleman's filibuster - all of the obstruction with none of the inconvenience - gives inordinate power to a few fence-sitters. Right now, it's Joseph Lieberman of Connecticut and Ben Nelson of Nebraska. Both are considering joining Republicans in a filibuster if they don't get their way on health reform.
"I've got to use the right I have as a senator to stop something that I think is going to be terrible for our future, which is the public option,'' said Lieberman, representing his constituents in Hartford (that is, the insurance companies). Nelson's issue is abortion: the conservative Democrat doesn't want subsidized insurance plans offering the procedure, even if women pay for the coverage themselves.
Because Democrats have only the most tentative hold on 60 seats (including Lieberman, who ran as an independent but caucuses with the Democrats), party leaders and the Obama administration are scrambling to accommodate their apostates. But what Lieberman and Nelson are threatening is not a filibuster - it's a filibluster. Why not call their bluff? Force a real filibuster, make Lieberman bring the business of the Senate to a screeching halt in order to defend insurance industry interests, and see how the American people respond. Show Nelson holding up his party's most important legislation in a generation. And put the 40 Republicans on display as the party of No.
There's some precedent for this approach. In 1995, House Speaker Newt Gingrich's move to shut down the government in a high-stakes budget dispute with President Clinton backfired badly. When veterans couldn't get their benefits and American families on vacation found the national parks shuttered, Gingrich discovered people liked their government after all. He withdrew.
It wouldn't be easy. Under current rules the filibustering party can doubt the presence of a quorum (50 members) at any time, forcing a roll call vote. That means the filibustering party only needs to keep one person droning away in the chamber at any time, while the defending party needs to keep 50 members on the floor, or at least nearby. So the burden would be heavier on the supporters of health care reform than on the filibustering few.
But this is a momentous piece of legislation. Americans have waited 60 years since President Truman first tried to enact universal health care; surely their senators can withstand a few days or weeks of hearing the phone book read aloud. Meanwhile, calls to get on with the people's business would rise to a crescendo and opponents would concede, letting progressive, meaningful health care reform come to a vote.
Of course it's a risk. But the alternative is no bill at all, or one so watered down as to be a hollow victory.
The filibuster is an important democratic tool, a hedge against the tyranny of the majority. It shouldn't be dumped, just restored to its former glory. It would be a boon for democracy, with more of the people's business dragged out of clubby caucus rooms and onto C-Span. And more senators being called on to stand and deliver.
Renée Loth's column appears regularly in the Globe.