Susan Liss is director of the Democracy Program and Mimi Marziani is an attorney at the Brennan Center for Justice at NYU School of Law.
Senate Democrats are poised to use the legislative process of reconciliation to complete healthcare reform. This would involve strictly limiting further debate and then deciding the legislation with a majority vote. Opponents of this move--many of them Republicans--are screaming foul, claiming that this process is illegitimate. It is important not to lose sight of why Senate leaders have decided on this procedural strategy in spite of this (predictable) opposition. The threat of the filibuster--and the concurrent need for a super-majority vote to cut off debate--has ground government to a halt. The increasing use of this old Senate stalling tactic has changed all expectations about how Congress can, and should, work. For nearly all of the country's history, it was assumed that major legislation would need a majority, not a super-majority, to pass the Senate. Yes, there were delays and devices; the World's Greatest Deliberative Body never resembled a Fed Ex office for speed. But if passing legislation by majority vote is now considered off-key, it means that this creeping super-majority requirement has somehow become "normal." The strategic use of delay to block legislative action has increased in frequency by over 90 percent since the start of the new millennium, according to UCLA political scientist Barbara Sinclair. And it's getting worse. From 2001 until 2007, about 50 percent of major legislation was affected by filibuster; in the 110th Congress (2007 to 2009), that percentage rose to 70 percent. Now, the threat of filibuster is so constant that a super-majority vote of 60 (the number of votes needed to invoke cloture and force a substantive vote under Senate Rules) is assumed necessary to conduct any Senate business. Even the press has stopped questioning this new world order. One example: A recent New York Times article reported, "to get the 60 votes needed to pass their bill, Democrats scrapped the idea of a government-run public insurance plan." There is little question that this routine, even abusive use of the filibuster, establishing a de facto 60-vote requirement that inevitably leads to stalemate, defies the intent of those men in powdered wigs who carefully crafted our Constitution. This is not what the Framers had in mind. After witnessing frequent gridlock in the Continental Congress due to the numerous super-majoritarian requirements imposed by the Articles of Confederation, the Framers decided that a super-majority vote was appropriate only in seven, extraordinary situations--which they specifically listed in the Constitution. For example, a two thirds vote is needed to override a presidential veto, to expel a member of the Senate, or to convict a federal officer of an impeachable offense. The Constitution also specifies that a simple majority "shall constitute a Quorum to do Business." Indeed, the Framers were so confident that majority-vote rules would typically be used that they even assigned a tie-breaker: Under article 1, Section 3, Clause 4, the vice president "shall have no Vote, unless [the Senate] be equally divided." Lest the structure of the Constitution leave any doubts of the Framers' intention, Alexander Hamilton provided explicit explanation in Federalist No. 22:
To give a minority a negative upon the majority (which is always the case where more than a majority is requisite to a decision), is ... to subject the sense of the greater number to that of the lesser. ... [I]ts real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. Sound familiar? Opponents of reconciliation eagerly quote another Founder, George Washington. The first president likened the House to a hot cup of coffee; the Senate, he said, was the saucer that cooled down the scalding liquid. But that argues for extended debate and full deliberation, not for a minority veto. Washington wanted the coffee cooled, not tossed in the trash. So while it may not be ideal to use the budget reconciliation process to finish the healthcare reform process--it adds procedural complications to an already-complex legislative package--it will unlock the gridlock and allow the Senate, and the nation, to move on to other pressing problems. Forcing the end of debate to allow a majority vote on substantive legislation is certainly legitimate. On this, the Founders would undoubtedly agree.
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