< Is 60 the Magic Number?


Friday, January 22, 2010

BOB GARFIELD: While Scott Brown’s victory gave pundits an opportunity to punditize about narratives that may or may not exist, the special election in Massachusetts had one piece of political reality at stake that couldn't be simpler: the 60th vote for the Democrats in the Senate.

MALE CORRESPONDENT: You will recall, of course, that the Senate needed 60 votes to pass their bill.

MALE CORRESPONDENT: - leaving Democrats with less than the necessary 60 votes to push through health care reform.

MALE CORRESPONDENT: In the U.S. Senate, as you know, you need basically 60 votes to get anything done.


FEMALE CORRESPONDENT: Fifty-nine votes is close, right, but close only counts in horseshoes.

BOB GARFIELD: But with all the attention on what that 60th vote means for the Democrats, there’s been very little coverage of why that magic number is 60. In fact, a bill needs only 51 votes to pass the Senate, a simple majority. Sixty votes refers to the number of senators needed to end the debate and stop a filibuster. If you've seen the movie Mr. Smith Goes to Washington, you know how a filibuster works. Essentially a small number of senators, sometimes just one, can stop legislation in its tracks by going into the well of the Senate and talking until the bill dies. It’s an old procedure and a part of Senate tradition, though the exact rules have changed over the years, including, most critically, the fact that the senators no longer have to actually stand up and talk. But usage of the filibuster has skyrocketed in recent years. In the 1960s, a filibuster, or the threat of one, prevented just 8 percent of major legislation from becoming law. In the '80s, that percentage rose to 27. After the 2006 elections, it went up to 70 percent, and in 2009, Republican senators used the threat of a filibuster on almost every piece of major legislation. James Fallows, national correspondent for Atlantic magazine, says this cripples the legislative process and that the media need to do a better job of pointing out the change. He joins me now. Hey Jim, welcome back to the show.

JAMES FALLOWS: Thank you very much, Bob. Nice to talk to you.

BOB GARFIELD: We all learned in civics class that a simple majority was all that was required in each House of Congress for a piece of legislation, but I want to play a piece of tape from The David Letterman Show where a man, with whom you may be familiar, had this to say:


PRESIDENT BARACK OBAMA: Being a senator has been terrific. We are now in the majority, which means at least we can stop some bad things from happening. In the Senate you need –

[APPLAUSE] In the, in the Senate though you need 60 votes to get - to actually get a bill passed.



BOB GARFIELD: Now, that must have surprised many Americans, contradicting, as it did, what we've been taught since about the third grade. How did a procedural rule of the Senate come to be a de facto requirement for getting legislation through the Congress?

JAMES FALLOWS: There were two really significant dates in the modern history of the filibuster. One was in 1975, when the proceeding practice for many, many decades, which is that it took 67 votes to break a filibuster but it had to be a real one, with people giving real speeches, that was replaced by a kind of gentleman’s agreement where it only took 60 votes to break a filibuster, but the opponents didn't have to actually do anything. They could just file a little notice saying, we oppose this coming to the floor.

BOB GARFIELD: So no need for a Jimmy Stewart, Mr. Smith Goes to Washington stem-winder on the floor of the Senate.

JAMES FALLOWS: Yes. And like Strom Thurmond, when filibustering against the civil rights legislation in the '50s and the '60s, he would get out there and have this big histrionic effort, and that is the filibuster as we knew it, until 1975. The other significant date really was just in 2006, when the Democrats took control of the Senate again under George Bush and the Republicans were in the minority, and then suddenly there was a dramatic historic increase in the number of filibusters. And it’s become de facto and applied to every single nomination, every single piece of legislation and, of course, as we've seen, with the health care bill.

BOB GARFIELD: It seems that not only the President of the United States but the media themselves have accepted the filibuster as fundamental political reality without questioning, it seems to me, whether this is good or bad or indifferent for the Republic.

JAMES FALLOWS: It’s been interesting to me the way press coverage has more or less followed political positioning on this issue since Bill Clinton’s first term in office. You'll often find even The New York Times, even The Washington Post, even The Wall Street Journal just kind of slipping in and saying, since it takes 60 votes to pass this bill, blah, blah, blah. You can understand why they do that because it’s easier than writing, since it will take 60 votes to break the filibuster and bring this to a vote, but it is sort of projecting a reality that way. It also is interesting to me that when the shoe was, was momentarily on the other foot, that is, during the Bush administration when the Democrats had a minority in the Senate and they were blocking some judicial nominations, the Republicans made a big deal of this in talking about the need for a clear up or down vote. And during that time, the press was more attentive to that positioning of it and sort of the obstruction than they've been in the recent past where the Republicans have been doing it. I suggest that the Republicans are simply better at positioning this for the press than the Democrats have proven to be.

BOB GARFIELD: So in contextualizing the fairly Byzantine procedural issues here, do you think the press needs to be talking more about the 60-vote majority, less about it?

JAMES FALLOWS: Well, I think the press has done an effective job in getting across the idea you need 60 votes to get things done. What it hasn't done, or very rarely, is explain that this 60-vote requirement is not something handed down by Moses or Madison or George Washington or anybody else, but it’s a development of recent history. I think whether it’s talking about the filibuster or whether it’s talking about up or down votes, whether it’s talking about procedural obstacles, I think it would be useful to make clearer to people that the 60-vote requirement is something new, artificial and perhaps not desirable for the Republic.

BOB GARFIELD: Jim, as always, thanks so much.

JAMES FALLOWS: My pleasure. Thank you, Bob.

BOB GARFIELD: James Fallows is a national correspondent for The Atlantic.

[MUSIC/MUSIC UP AND UNDER] Coming up, the supermarket tabloid that keeps us posted on whether Angie has dissed Jen -thinks it deserves a Pulitzer. This is On the Media from NPR.