08/06/2009 05:12 am ET Updated May 25, 2011

The Franken Factor (and Counting to 60)

As America celebrates its 233rd year of independence, many of us are engaging in political discourse for the first time and turning towards pundits to explain and contextualize current events. Despite advances in the technology used to support the political process, the traditional keys to individual engagement remain the 3 R's (Reading, Writing and Arithmetic) learned in school as the basic building blocks of a solid educational foundation. So what happens when the political pundits forget how to count?

To better explore this alarming possibility and its implications, I've invited Frank Askin, Distinguished Professor of Law and founding director of the Constitutional Litigation Clinic at Rutgers School of Law-Newark to give us a crash course in reading, writing and counting to 60.

The talking heads are all busy analyzing the impact of Al Franken's pending seating as the 60th Senator on the Obama political agenda. The big question is: do the Democrats now have a filibuster-proof Senate. As a result, the focus is now on the ten or so moderate Democrats like Ben Nelson of Nebraska, and whether the Obama Administration can keep them in line.

But I think the pundits need a review course in mathematics -- U.S. Senate-style.

The number 60 is relevant for only one purpose in the Senate -- the votes needed to invoke cloture and allow legislation to be brought up for a vote by majority rule, i.e. 50 votes plus that of the Vice-President in case of a tie.

Obama does not need 60 Democrats to pass any of his major pieces of legislation -- health care, energy reform, Employee Free Choice, repeal of DOMA. He only needs the moderate Democrats to allow the bills to come up for vote -- that is no vote to end debate. They can vote against the bills on final passage, if they think it necessary to protect their chances of re-election. It is hard to be attacked for the passage of a bill one voted against. The worst they can be accused of is that they allowed the democratic process to work its will. Such a scenario should not be a difficult sell for Rahm Emanuel when the wavering Dems raise their political vulnerability as an excuse to oppose the President.

It seems to me the more difficult problem for the President is the health status of two of the Democratic Senators who Obama can generally rely on -- Ted Kennedy and Bobby Byrd. When push comes to shove over cloture, Obama needs both of them on the Senate floor. Especially in Kennedy's case, that is highly problematic as he battles brain cancer.

As harsh as this may seem, maybe it is time for Ted Kennedy to resign from the Senate and let the Democratic Governor of Massachusetts appoint a healthy successor. (Depending on his mobility, Byrd might consider doing the same.) If all the Republicans hold solid behind a filibuster, 59-40 (or 58-40) just won't cut it. On the other hand, once the filibuster is broken, even a 50-50 vote on the merits will allow Joe Biden to break a tie.

Frank Askin spent 6 weeks on the floor of the Senate as special counsel to the Senate Labor Committee during the Republican Dixiecrat filibuster of Labor Law Reform the summer of 1978. Cloture failed by one vote.

Juliette Powell is an author, entrepreneur and integrated media specialist. Her first book33 Million People in the Room (Financial Times Press, 2009), covers the Obama campaign's successful online strategy and how to apply its lessons in business. Powell is co-founder of the Gathering Think Tank Inc., an innovation forum at the intersection of media, business, advertising and technology. You can connect with her on Twitter and Facebook.