The Democrats' chances of getting 60 seats in the Senate next week has lately become a hot talking point for Republican candidates because of what that magic number means: a filibuster-proof majority that could mean relatively smooth passage of Democratic legislation and appointments.
The Democrats now have 51 seats, but they seem likely to gain a half dozen seats, and perhaps more, on Election Day.
With Republican-held seats seeming to be in jeopardy, such as that of Sen. Saxby Chambliss here in Georgia, you’re bound to hear the number 60 a lot more in the days remaining until Election Day.
Under the Senate’s rules, any bill or presidential nomination can be debated — and debated and debated, until every senator has had his or her say on the matter.
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That is the filibuster.
Some tax changes can be legislated with fewer than 60 votes through a budget process called "reconciliation," but most of the next president's initiatives and all of his nominations must get 60 votes to survive.
Once a senator stands up on the floor and asks to speak on a matter, he or she “cannot be forced to cede the floor, or even interrupted, without their consent,” according to a report by the Congressional Research Service.
60 votes needed to end debate
Under Senate rules, it takes a vote of 60 senators to end debate, or, in Senate parlance, “to invoke cloture.”
This means that 41 senators can stop a nomination or a bill from being brought to a vote, effectively killing it.
From the 1930s until the passage of the 1964 Civil Rights Act, Southern Democrats used the filibuster to kill legislation to ban lynching, abolish poll taxes, and extend civil rights to black citizens.
The longest filibuster speech: South Carolina Sen. Strom Thurmond who spoke for 24 hours and 18 minutes against the 1957 Civil Rights Act.
Such feats of endurance are rarely necessary. The mere threat of a filibuster is often enough to get the majority of senators to agree to a compromise with the minority.
Forcing bipartisan compromise
Due to the filibuster, “a bill’s supporters have good reason to write it in a way that will attract the support of at least three-fifths of all Senators. Since 1980, neither party has ever held 60 percent of all the seats in the Senate. Thus, as long as this situation persists, every bill that the Senate passes must enjoy at least a minimal degree of bipartisan acceptance.”
But of course that will no longer be true if the Democrats do win 60 seats in next week's elections.
The filibuster is starting to get attention on the campaign trail.
In Mississippi last week, GOP Sen. Roger Wicker warned his supporters that Democrats would use a filibuster-proof majority to pass a law giving amnesty to illegal immigrants, allowing them to become citizens.
In fact, the Democrats would not even need 60 on some bills and nominations: with even 57 or 58 Democratic senators, Republican senators from Democratic-leaning states, such as Sens. Olympia Snowe of Maine and Arlen Specter of Pennsylvania, might join the Democrats on some cloture votes.
(Specter faces a re-election battle in 2010.)
Scuttling judicial nominees
Compromise on a bill is possible, but with a nomination to the Supreme Court or lower courts, it’s a different matter. A nominee is who she is — she can’t be forced to change her record or beliefs.
Since President Bush’s election in 2000, the most contentious filibusters have been over his judicial nominees.
Democratic senators used filibuster threats to prevent several of Bush's appeals court nominees from getting confirmation votes, even though those nominees had enough votes to be confirmed.
On repeated votes in 2003 to end debate on Bush’s nomination of appeals court nominee Miguel Estrada, for instance, 44 Democratic senators voted no, in effect killing his nomination.
Both Democrats and Republicans have used filibusters and the majority party has complained bitterly when its presidents' nominees were scuttled.
In 1968, 24 Republican and 19 Southern Democratic senators joined forces to block a vote on Democratic President Lyndon Johnson’s nomination of liberal Justice Abe Fortas to be chief justice. Johnson withdrew the nomination.
In 2000, a few GOP senators including Sen. Bob Smith of New Hampshire, used filibusters and other delays to block President Clinton’s nomination of Richard Paez to the Court of Appeals for the Ninth Circuit and other nominees.
“Don't tell me we haven't filibustered judges and that we don't have the right to filibuster judges on the floor of the Senate. Of course we do. That is our constitutional role," Smith declared.
Defying the Constitution?
“We had an intervening election after the (Paez) nomination was first made, and President Clinton won (in 1996),” complained Sen. Russ Feingold, D-Wis., on March 8, 2000. “It is indefensible to hold a nomination hostage for his entire second term. It defies the clear constitutional prerogatives of the duly elected president to choose nominees to the bench and the duty of the Senate to say yes or no.”
“I plead with my colleagues to move judges with alacrity, vote them up or down,” said Sen. Charles Schumer, D-N.Y. during the Paez saga. “This delay makes a mockery of the Constitution.”
Eventually the Republicans relented and Paez won confirmation.
But both Feingold and Schumer voted to filibuster ten of Bush’s judicial nominees in 2003 and 2004.
By 2005, Democrats were saying they regarded the 60-vote requirement as the new threshold for judicial nominations, even though the Constitution has no such super-majority requirement.
Sen. Barbara Boxer, D-Calif., explained to a rally held by the group Moveon.org in 2005: “We think you ought to get nine votes over the 51 required. That isn’t too much to ask for such a super-important position. There ought to be a super-vote, don’t you think so?”
Finally in 2005, a bipartisan group of 14 senators, seven from each party, including Republican presidential nominee Sen. John McCain, reached an accord in which they agreed to not use filibusters to block judicial nominees, except in “extraordinary circumstances,” a phrase left undefined.
Democratic nominee Sen. Barack Obama did not join the bipartisan compromise.
In fact, Obama voted to continue filibusters of Bush judicial nominees Janice Rogers Brown and William Pryor in 2005 — but this was after the bipartisan compromise, so only 31 Democratic senators joined with Obama in that losing cause.
If Obama wins the presidency, Republicans might want to filibuster some of his judicial nominees, but of course they’ll be powerless to do that if the Democrats get that magic 60.