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The 60-vote requirement that U.S. Senate Democrats keep bemoaning? It's a ritual, not a rule

Some of the most polarizing issues of the era have been approved by narrow votes in the U.S. Senate.

The war over Kuwait was authorized by the Senate in 1991 on a 52-47 vote. Clarence Thomas' nomination to the U.S. Supreme Court was approved 52-48 that same year. Two years later, President Clinton's economic program won approval with 51 votes—including a tie-breaking vote by Vice President Al Gore—against 50 in opposition.

But that was then. Today, those simple majorities would doom their measures.

In the second year of George W. Bush's administration, 56 of the 100 senators voted for an economic stimulus package, which therefore failed to pass. In 2008, 51 senators voted for a windfall profits tax on oil, which failed to pass.

The reason is the U.S. Senate's devotion to a procedure called the imaginary filibuster. It has undercut the body's ability to legislate, but senators seem unwilling to drop it.

The filibuster—the real one—has been with the Senate for 203 of the nation's 233 years. Though Senate Majority Leader Harry Reid and others like to describe it as a tradition established by the founders, that's nonsense.

Both the founding Senate and House both could cut off debate with a simple majority vote. But in 1806, the Senate dropped the procedure that made it possible to operate that way. Thereafter, senators could talk as long as they wanted to, and there was no way to stop them.

During World War I, when appointed senators were giving way to popularly elected senators, and there was progressive sentiment for more democratic processes, a rule was finally adopted under which filibusters could be ended with a two-thirds vote. All during the 1950s, 1960s and 1970s, Democratic Party leaders tried to reduce that threshold or do away with filibusters altogether.

That sentiment is still strong at the Democratic grassroots around the nation, where the filibuster is identified with racism. In 1964, a Senate filibuster against the Civil Rights Act lasted for 57 working days. But Democratic congressional leaders have made their peace with the procedure, though they did succeed in reducing the threshold to three-fifths, which in today's 100-member Senate is 60 votes.

A real filibuster can be dramatic. Senators who want to hold the floor have been known to use catheters. Cots may be brought in so senators can sleep near the hall.

But all that applies to actual filibusters. What's clogging up the Senate these days is threatened filibusters that don't actually happen. This is the imaginary filibuster, also called the trivialized filibuster (by scholar Jean Edward Smith) and the phantom filibuster (by scholar David RePass).

In 1975, party leaders in the U.S. Senate adopted a new procedure to deal with filibusters: In order to keep the Senate floor clear for other business, if senators merely threatened to filibuster, the body would automatically impose a 60-vote limit on cutting off debate. For the price of a threat, the votes needed to pass a bill could be raised from 50 to 60.

It's not clear why no one foresaw what would eventually happen, but soon, the number of alleged "filibusters" was rising. Today, as abuse of the 1975 system grows, the number of alleged filibusters each year is routinely in double digits—and in the last Congress, the number rose to three digits.

These were, remember, filibusters that didn't actually happen; they were filibuster threats.

Senators respond that the founders also allow the Senate to write its own rules. But when we tried to find the rule covering imaginary filibusters, we discovered it doesn't exist. According to the Senate Historical Office, the rules have never been changed to reflect the 1975 innovation: "The only rule that the Senate has regarding filibusters and cloture is Rule 22, which sets a 3/5ths vote for cutting off debate, which was adopted in 1975. The 'two-track' process is simply a leadership tactic and is not codified in the rules."

In other words, the imaginary filibuster is not a Senate requirement; it can be ended simply by Harry Reid announcing that he is discontinuing the tactic. If he had done so at the start of this Congress, the Democratic program would already be enacted.

Others say Reid, if he does not want to act that directly, has another option: Require actual filibusters.

But as of now, the U.S. Senate remains a parliamentary Skull and Bones, worshipping pointless ritual instead of serving the public's needs.

An expanded version of this piece originally appeared in the Reno News & Review.

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