Senate Democrats Have 60 Votes … Now What?

by Paul Hogarth on July 6, 2009

Tomorrow, Al Franken will finally be sworn into office – giving the Democrats a 60-seat “filibuster-proof” majority in the U.S. Senate. Of course, there was never a need to wait eight months for Norm Coleman’s ego to concede. Senate Majority Leader Harry Reid could have agreed to provisionally seat Franken in January, as there is precedent for such disputed election results. But now that the Minnesota Supreme Court has completed its process, Reid can no longer claim that Democrats lack the votes to block a hypothetical G.O.P. filibuster – and there are no excuses for the U.S. Senate to remain the place where progressive legislation goes to die. Last week, however, Reid minimized the importance to a reporter about a sixty-vote supermajority, said the Democratic caucus was “diverse” and the leadership would not start “flexing their muscles.” Reid may have tried to avoid sounding cocky, but his rhetoric was dangerous. It empowers conservative Democrats to now grab the spotlight by playing obstructionist, as they threaten to filibuster their own Party and their own President. It will embolden Republicans to maintain their fleeting relevance by recruiting these anti-progressive Senators to oppose Obama’s agenda. And another reason why Harry Reid must go as Majority Leader.

Mr. Franken Goes to Washington

Our long national nightmare is over. The Minnesota Supreme Court unanimously ruled last week that former Senator Norm Coleman’s contest of the November election has no merit. Within 24 hours of the decision, Coleman – who had vowed to appeal in federal court if necessary – conceded the race. Paul Wellstone’s seat has rightfully returned to a liberal Democrat, one who campaigned explicitly on preserving the late Senator’s proud legacy. After six months, the Gopher State finally has full representation in the U.S. Senate.

But it didn’t have to take this long. The Franken-Coleman race was excruciatingly close, and the outcome actually switched from the electronic vote count on Election Night – to an exhaustive hand re-count two months later. But by the time the Senate was scheduled to convene in January, the re-count was complete – and it appeared Al Franken had legitimately won. The only thing preventing his swearing in was a Republican Party that feared Democrats inching towards 60 seats, and a weak-willed Majority Leader who let them bully him.

There is a precedent for seating Senators who have apparently won close elections that are still in legal dispute. In 1996, Louisiana Democrat Mary Landrieu won by a razor-thin margin – and her G.O.P. opponent alleged voter fraud. The Republican-controlled Senate agreed to “provisionally” seat Landrieu in January, while the Rules Committee pursued its investigation that lasted for several months. In the end, no evidence was found that the election was improper – and Senator Landrieu is now in her third term.

Of course, seating Franken right away would have given Democrats a 59-seat majority in January (moderate Arlen Specter did not switch parties until April) – an extra vote to pass President Obama’s ambitious legacy in the crucial first few months. But why were sixty votes so important for Democrats, and why were Democrats waiting for that 60th seat?

Sixty Votes: An Unnecessary Illusion

Democrats like Senate Majority Leader Harry Reid have been out of power for so long, that they don’t know how to use it after voters hand it to them. When Republicans had 55 votes in the Senate, Democrats claimed to be powerless in blocking the confirmation of ultra-conservatives John Roberts and Samuel Alito to the U.S. Supreme Court. After Democrats took back the Senate in 2006, Reid explained that their 51-49 edge was the “narrowest of majorities” – and frustrated by Joe Lieberman’s votes on Iraq. It is true that Democrats needed more seats to be effective, but Reid insisted that a wider majority was not enough. Only a 60-vote majority, he said, was essential to implementing change.

Why sixty votes? Because that’s how many Senators are needed to end debate, and to bring legislation up to a vote. But the Senate only needs a “cloture” vote when a Party chooses to filibuster a bill – which means talking for hours on end, and refusing to end debate. The filibuster hearkens back to the U.S. Senate of the 1950’s and 60’s, when Southern segregationists killed civil rights legislation. Reid and other Democrats have complained that since they took control, Republicans have made the largest number of filibuster threats in history. Therefore, they argued, only 60 votes would break the deadlock.

The important word here is “threats.” Republicans have threatened to filibuster most legislation, but they have not done the marathon sessions we saw in the civil rights era. That’s because they never have to. Harry Reid is the first Senate Majority Leader in history to count any preemptive threat as a “filibuster” that kills legislation, unless we get sixty Senators to invoke cloture. It’s not like Democrats are powerless if Reid called the Republicans’ bluff on their threats. A Senator can only speak twice during a filibuster, so the majority just has to remain equally committed. Eventually, Republicans will run out of speakers.

After the 2008 elections, Democrats had 58 seats in the Senate – but were still unable to pass legislation like the Employee Free Choice Act. It didn’t matter that Senate Republicans with a mere 55-vote majority had blocked Democratic filibusters, and even threatened to invoke the “nuclear option” in 2005 to end the filibuster altogether. Reid said they needed 60 votes.

With Al Franken being the sixtieth Senator in the Democratic caucus, the long elusive goal has been attained. With a Democrat in the White House and a Democratic majority in the U.S. House, Republican obstructionism is irrelevant. But when a reporter asked Reid last week about their new power, he minimized its significance. “We have 60 votes on paper,” said Reid. “But we cannot bulldoze anybody. My caucus doesn’t allow it. And we have a very diverse group of Senators philosophically. I am not this morning suddenly flexing my muscles.” In other words, the Senate Majority Leader has given his own Democrats permission to join forces with Republican filibuster threats.

Do Democrats Have “Weak Links”?

Some have argued that Senate Democrats can’t really count on 60 votes, because two of their members – Ted Kennedy and Robert Byrd – have missed votes due to health conditions. In early 2001, Senate Republicans expressed the same concern about Strom Thurmond – who was 98 years old. But at the time, Republicans only controlled the U.S. Senate by a 51-49 majority – not a 60-vote “supermajority” – making this a pretty weak analogy. And if God forbid Senators Kennedy or Byrd were to pass away, Massachusetts and West Virginia both have Democratic Governors – who would appoint successors.

An obvious “weak link” is Pennsylvania’s Arlen Specter – a former Republican who switched parties in April when it became obvious he would lose a G.O.P. primary fight in 2010. After being a co-sponsor of EFCA in 2007, Specter now says he will oppose it – and Reid’s statement gives him carte blanche to join Mitch McConnell in a nasty filibuster. Specter has drawn a Democratic primary challenge – Congressman Joe Sestak – which already pressured him to endorse a “public option” for health care. Whether a Sestak challenge makes him a loyal Democrat to save his hide is an open question.

Then there’s Joe Lieberman, Connecticut’s “independent” Democrat. We all know that Lieberman has been a neo-conservative hawk on the Iraq War, but his anti-progressive streak has driven him to oppose the public option. Lieberman has always delighted in attacking the Left, which reliably gets him numerous invitations on Sunday morning talk shows. He supported John McCain for President, but even that didn’t get him kicked out of the Democratic caucus. Now, Harry Reid tells him it’s okay to join Republican filibusters.

Finally, we have Nebraska’s Ben Nelson – who opposes EFCA and the public option for health care. Nelson has cultivated an image in his red state as a Democrat In Name Only, and believes that openly attacking his own Party in Washington gives him plaudits back at home. Harry Reid tells him it’s okay to support Republican filibusters.

Harry Reid is up for re-election next year, and his approval ratings in Nevada are not very high. If he loses, Democrats could lose the “sixty-vote majority” they worked so hard to attain. But progressives should ask if that’s a small price to pay for getting a new Senate Majority Leader who will not make excuses, and work closely with Speaker Nancy Pelosi and President Barack Obama at implementing change. Illinois Senator Dick Durbin is the Senate Majority Whip, which is often “next in line” to the Majority Leader. If Reid goes, I believe Durbin would be a more assertive and effective Senate Majority Leader.

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