Passing Health Care with a Majority in the Senate Isn't "Jamming" It Through -- It's Democracy

03/23/2010 05:12 am ET | Updated May 25, 2011

A new 3-D version of Alice In Wonderland will soon be released into the nation's theaters. But you don't have to wait to enter a world where up is down and, as Alice says: "Nothing would be what it is, because everything would be what it isn't. And contrary-wise, what is, it wouldn't be. And what it wouldn't be, it would. You see?"

All you need to do is to enter the world of Washington Conventional Wisdom, where we have become so used to the notion that 60 votes are needed to pass something in the 100-person Senate, that we are now told that passing a health care bill with a simple majority involves "jamming it through."

Since the Massachusetts special election deprived Democrats of a nominal 60 votes in the Senate, Democratic leaders have pondered how best to enact the health care bill that -- until Tuesday night -- seemed to command the support of a majority of the House and 60% of the Senate.

One option under consideration involves the House passing the Senate version of the bill as well as a second bill that includes the agreements negotiated in the conference between the Senate and House. The second bill would then be considered under the "budget reconciliation" rules that would not be subject to a Senate filibuster and could therefore become law with the support of a majority vote.

But to hear some the Republicans, a few conservative Democrats, and portions of the media, you'd think that the idea of passing something with a majority in the Senate is a grave perversion of the Rule of Law -- and would involve "jamming" the legislation through Congress. That formulation could well have come from the Mad Hatter. In democracies, the majorities get to make laws. In a democracy, the Minority tail should not be allowed to wag the Majority dog.

What is undemocratic is the idea that a minority -- that also happens to represent the insurance industry and other wealthy, vested interests -- can block the will of the majority.

During the last few years we've gotten so used to the idea that all major legislation requires 60 votes to pass the Senate that it now sounds "natural." Some people even believe it is in the Constitution. But of course that's not true. The Constitution assumes that both the House and Senate require a majority to conduct business and pass laws.

Scott Brown was not elected to be the 51st Republican in the Senate. He was elected to be the 41st Republican. That should not entitle Republicans to block every significant piece of legislation -- to block fundamental change.

If we allow them to, shame on us.

In the short term, unless a Republican agrees to join with Democrats to cut off debate and bring the health care compromise to a vote in the Senate, the bill negotiated between the House and Senate leadership should be passed using the budget reconciliation rules.

The use of this procedure is not at all unprecedented. The States' Children's Health Insurance program (SCHIP) was originally passed using reconciliation rules. The Bush tax cuts were all passed with a simple majority vote using budget reconciliation rules. Nobody argued these measures were being "jammed through" because they did not require 60 votes.

And at some point soon, it is absolutely clear that the Senate rules must be changed to assure that if a bill has a majority, it can pass. Senator Tom Harkin has proposed that the filibuster rules be changed so that that first time there is an attempt to cut off debate 60 votes are required, two days later 57 votes are required, two days after that 55 votes, two days later 53 votes, and two days after that 51 votes. That way the minority would get to demand real debate, but couldn't stop a measure that had majority support. That's democracy.

And as we consider major legislation over the next year, we need to remember history. Voters don't remember the the procedures used to pass major pieces of legislation. How many everyday Americans know -- or care -- that the Bush tax cuts, or SCHIP were passed using reconciliation procedures? Does anyone remember the procedure used to pass Social Security or Medicare? How many remember that the House Republicans kept the roll call open for an unprecedented three hours to round up the votes necessary to pass their prescription drug plan, Medicare Part D? Talk about jamming something through!

A month after something is passed, no one remembers or cares about the procedure used to pass major legislation. Major programs are judged by the voters based on their actual effect -- not the procedure that was used to pass them.

The message of the Massachusetts election was not to go slow. Voters are frustrated, angry and anxious. They are not frustrated by too much governmental action. They are frustrated at too little. They want jobs, they want solutions to the health care crisis, they want an end of the Bush era economic stagnation -- they want action. They want government to get it done.

Democrats will succeed if we can deliver health care reform, jobs, economic revitalization, immigration reform, clean energy jobs and an end to the stranglehold of Wall Street over our economy. The operative word here is deliver.

If we propose sound policies, we do not have to worry that voters will punish us for the procedures we use to pass them -- especially if those procedures simply involve getting a majority vote in both houses of Congress. They will punish us if we fail to pass them.

Members of Congress must not be lured by the siren song of those who claim that passing legislation with majority vote involves "jamming" them through -- or that inaction is somehow safer. Frustration is boiling over in America. For the sake of their own political futures, members of Congress need to work with Speaker Pelosi, Majority Leader Reid and President Obama -- to get things done.

Robert Creamer is a long-time political organizer and strategist, and author of the recent book: "Stand Up Straight: How Progressives Can Win," available on