THE BLOG
03/18/2010 05:12 am ET | Updated May 25, 2011

Why 60 Senate Votes? Why Should 10% Veto 90%?

Who elected Joe Lieberman the president of health care? Abuse of the filibuster and special interest money may still combine to stop health care reform and stop America from becoming a 21st century society. This perfect storm requires big changes.

As the Senate begins its historic floor debate on health care this week, let's glance at history.

To reach unanimity at the Constitutional Convention, the 1787 "Connecticut Compromise" created a House of Representatives allocating seats by population (favoring big states) and a Senate allocating seats by state (favoring small states). That was one thing when states were somewhat similar in populations, not now when California is 68 times the size of Wyoming. So today each California senator represents 68 times the number of people as a Wyoming senator. Or 10 times that of each Connecticut senator, like, say, Lieberman.

At the same time, the filibuster is nowhere in the Constitution and is merely a rule of the Senate. To end debate and allow a majority vote on a bill used to require 67 votes, which changed to 60 votes in 1975. But this rule violates at least the spirit of the Constitution which specifies those very few instances -- treaties, impeachment, among others -- that alone require a two-thirds super-majority vote. And it used to be invoked sparingly in less partisan times -- an average of once a year in the 1950s but 139 times by Republicans in 2008.

The result? Only 10% of Americans living in 20 small states have nearly the votes needed to continue a filibuster and kill any essential health care reform - or any policy reform for that matter. 10% can, in effect, veto 90%, something the Founders never desired or expected.

It gets worse than that.

The campaign finance system (notwithstanding 1974 post-Watergate reforms and the McCain-Feingold soft money restrictions) still allows special interest money to flow to special friends in the Congress -- like the insurance industry's affection for Lieberman -- to make sure that such members throw monkey wrenches into the legislative process on big ticket items as health care.

So today any one grandstander -- given that the Democratic Caucus has exactly the 60 votes necessary to invoke cloture -- can make up any justification to become a George Wallace standing in the school house door successfully saying "no!" Lieberman, for example, has adamantly opposed any public option saying that it would add to the deficit and waste taxpayer dollars, although the non-partisan Congressional Budget Office has shown that it won't. Economically, a public option is no more radical than the "yardstick competition" of public power companies since the 1930s or Medicare and Medicaid in the 1960s. Running out of plausible arguments, Lieberman now just asserts that it's "an unnatural and dangerous appendage to health care reform."

The problem is not the hollowness of his arguments but the political fact that he has the power to sink the public option or other popular reforms because of an Achilles heel in our system -- two of them really. The only thing worse than the tyranny of the majority is a tyranny of the minority.

While most Americans are riveted either by the debates on Afghanistan and jobs -- or perhaps by Tiger Woods and the White House party-crashers -- the far more consequential problem represented by No-Joe goes without much notice. But a democracy tied down by the double Gordian Knots of money and filibuster threatens to assure that America fails to keep up with modern trends and needs. For only one example: how many more jobs will we lose to countries whose workers have their health care subsidized by the state? That should be part of any Jobs Summit.

Since there's no possibility that small states will ever agree to a constitutional amendment to weaken their power in the U.S. Senate, what options exist for Majority Leader Harry Reid on the health care bill in particular or in the Senate generally?

Campaign Finance Reform? One is radical campaign finance reform so that big corporate interests don't compound the problem of the filibuster. Unfortunately it appears that, if anything, America is headed in the opposite direction given the imminent Supreme Court decision in Citizen's United, which I will discuss in a separate blog post next week.

Reconciliation? Second, if health care fails this go-around with "only" 58 or 59 votes, Reid should consider using the so-called Reconciliation route next year which allows budget bills to be enacted by simply majority vote. This would eventually require the Senate Parlimentarian to rule on what parts of the current health care bill qualify as in effect budget bills. That would be legislatively problematic but still possible.

55 not 60? Third, by agreement between the Senate leader and the vice president sitting as presiding officer, the Senate at the start of the next session in January, 2011 could reduce the number required to cut off debate ("vote cloture") from 60 to 55, which would be the difference between minority rule and minority rights.

Republican critics will loudly complain that Reconciliation would violate Senate tradition and reforming the filibuster would be a "nuclear option" risking a breakdown in Senate business. But isn't their recent incessant use of the filibuster an undemocratic violation of tradition and a slow-motion nuclear option that, in effect, vetoes the results of the '06 and '08 elections? If 67 votes for cloture could shrink to 60, why not to 55? And speaking of tradition, what was wrong with an era in which, when Senators say they want to keep debating, they would have to keep debating, like the filibuster of Mr. Smith Goes to Washington?

This month's health care debate is about not only the health care of Americans, but also the health of the American democracy itself.