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April 20, 2009

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The real villain in this piece is the filibuster. The Founders (remember them?) never intended that a 3/5 supermajority would be required for legislation to pass the Senate. Back in the day, filibusters were used only very rarely, because they required continuous floor speeches and the presence of a quorum, putting enormous burdens on filibusterers and making them appear obstructionist. Then, in the 1970's, Senate Majority Leader Mike Mansfield (D-MT) led the Senate to "reform" the filibuster rule.

Since then, a filibuster doesn't require continuous floor speeches or prevent the Senate from taking up other bills. It is declared simply as a procedural matter, bloodless and without burden. (At the same time, cloture requirements changed from a 2/3 majority to a 3/5 majority.) Not surprisingly, its use has grown enormously.

Reconciliation is simply a way around the easy invocation of a filibuster. The solution isn't to cure the reconciliation process, it's to return the filibuster to a procedure that's difficult, unpleasant and rare.

Wow, that is a completely erroneous reading of what the "Founders" intended. Of course, there is the classic argument about which "Founder" intended what. But, it should go without saying that many "Founders" served in the first House and the first Senate. They created and adopted the rules of procedure for both chambers (as is explicitly required in the Constitution, and as the "Founders" debated and agreed to during the Constitutional Convention).

It is true that the filibuster is more common today than it was in the past -- but so is partisanship. The filibuster results from the Senate tradition that every Senator should be heard, if they desire to be heard, on a measure. From its earliest days, the Senate was a consensus-based body. That's also why the early Senate did not feature filibusters -- with 26 members they literally let everyone talk until they were ready to vote. Obviously, with 100 members that becomes more difficult.

It might surprise you to learn that the House had a form of filibuster too until the late 19th Century. It has been the growing complexity of legislation and the growth of the federal state that has made the rules for Congressional debate a nuisance. It has ABSOLUTELY NOTHING to do with the intent of the Framers of the Constitution -- the men who intended from the very beginning for the Senate to be the saucer that cools the passions of the House of Representatives (Washington to Jefferson).

Parenthetically, you are correct about the outcome about the Reconciliation, but not about its intention. The reconciliation process was invented as a budget tool to allow Congress to have an expedited way to do something very politically painful -- cut programs and raise taxes. Sadly, in recent years, it has been bastardized to circumvent traditional Senate process and undertake all forms of ill-advised initiatives. The Bush tax cuts come leaping to mind, but I throw cap & trade and health care into that basket as well.

The Senate needs to serve its function in the Constutional order. That means, with current membership, you have to convince just two Republicans that your legislation is in their best interest. I do not believe that is too high a bar to climb for something as important as health care reform or global warming.

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