There are few, if any, Americans that can deny that our Founding Fathers were shrewd in providing checks and balances to protect individuals against government power in the Constitution.
They saw our two-house legislature as reflecting the will of the people, but with checks and balances to prevent “the tyranny of the majority” (James Madison).
While the House with its 435 members representing the popular opinion of the nation’s voters, the Senate, with its two members per state, was visualized as a thoughtful and reflective body, like a modern think tank, where heated issues could cool somewhat and consequences could be considered before new laws were enacted.
The Constitution provides for both houses to pass legislation with a simple majority vote of those present. To prevent the “tyranny of the majority,” it also provides a method for the minority to delay a majority vote and gather support for its point of view. That method is called the ‘filibuster.’
The Constitution allows each house to set its own rules. Each piece of legislation allows a debate on the subject. Senate rules allow a Senator, or series of Senators (each yielding the floor to the next), to speak for as long as they wish on any subject they choose. The filibuster can be ended by a 3/5 or 60-Senator vote for cloture (end debate).
The 60-Senator vote is known as a supermajority.
It is also possible to end debate through a legal maneuver known as the Nuclear Option, where a Senator brings up a point of order, reminding the Senate that its rules are not being followed with the filibuster. If the presiding officer makes a ruling to uphold the point of order, and if a simple majority of the Senators vote to uphold the ruling, the debate is ended and a vote on the issue is held immediately.
Without the threat of filibuster, the Senate needs only a simple majority of 51 votes to pass legislation and uphold rulings. But when filibuster is threatened on major bills and issues, 60 votes are needed to move past debate to the vote.
The party-line divisiveness of the modern Senate has made almost all legislative issues require a supermajority to pass. Although the supermajority vote to end debate is not a bad thing, its use as a weapon in the trench warfare between parties has left the voters as victims.
An additional use of the 60-Senator vote is used to modify budgeting, authorization, as well as appropriation guidelines and restrictions.
Each year by October 1, Congress must construct a budget it can stick to, considering government income as well as expenses. It must authorize new and ongoing programs and agencies that come into being as the result of bill passage or already exist, with non-binding recommended spending levels to carry out the program’s policies. And it must pass appropriation funding bills, providing the legal authority to use funds from the U.S. Treasury.
The annual Congressional budget is simply an outline of anticipated federal spending for the coming year, setting limits on discretionary spending if everything works out according to plan. It also allows procedural points of order for bills that exceed their spending caps.
When a bill, chugging its way through the enactment process, generates a program or agency budget that will violate its Congressional appropriation, a Senator may raise a point of order. That appropriation point can be waived by a 60-Senator vote.
On the saving side of the government ledger, the Congressional budget resolution may include a “reconciliation” figure. This is assigned to a congressional committee with directions to produce legislation that lowers spending by that amount.
Passage of a reconciliation bill is an express train with a limit of 20 hours of debate and only a majority of Senate votes for enactment.
We may learn more about reconciliation in the near future, with pressure building in Congress to pass a health reform bill and the recent upset in Massachusetts, where Republican Scott Brown was elected to serve out the remainder of Senator Ted Kennedy’s term, ending in 2012. Although a proponent of health care reform, Brown has come out against President Obama’s health care plan in its present form as fiscally unsound.
With the health care reform bill now in the merging process between House and Senate, we can be sure the 60-Senator rule will be in place, and the Democrats are now one Senator short of the necessary 60 votes for their plan.
Options for passage of the health care reform bill in some form include
- convincing at least one Republican to vote their way
- scaling down or revising the plan to make it more agreeable to opponents
- requesting the House to pass the Senate bill intact
- using the reconciliation process to pass budget item portions of the bill (that will expire in either five or ten years)
As aggravating and as slow as the Senate process is using the 60-Senator hurdle, perhaps James Madison was right. Perhaps it does protect us.
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