The failure of health care reform has renewed disgust with interest in Senate Rule 22, which allows allows any Senator to require 60 votes as a condition of bring a bill to a vote. In the 19th Century there were less than two dozen filibusters.
The the 60 vote rule, it is a remnant of a more civil time, when filibusters were rare, and reserved for the most ominous issues. In entire 19th centuty there were less than 2 dozen fillibusters. In the 1950s, there was about one fillibuster every two years. In 2009, there were over 100 fillibusters (or actually threats of fillibusters, which is now sufficient to cut off debate).
An interesting comparison to today's political environment in the US is shown in a letter by one of Lyndon Johnson's staff members in 1964. The letter predicted that Medicare would prevail in the Senate by a vote of 55-45. In today's world, medicare could not be enacted because such a vote would be insufficient. Here is a link to an article by Ezra Klein in the Washington Post discussing (and providing a picture of) the 1964 letter.
Given the necessity of health care reform, its remarkable to me that the Democrats have failed to threaten revoking the 60 vote rule. There have been several recent articles raising questions about whether it is constitutional, (e.g. NYT Op-ed by Thomas Geogehan ) and discussing options for revoking iincuding reconciliation or the so-called "nuclear option.").
My favorite discussion, however, is in a 2003 article by senator John Corwyn (R-Tex) in the Harvard Journal of Law and Public Policy. In the article, Senator Corwyn quotes Senator Lieberman, who helped kill reform proposals he had supported when running for VP by flexing his senatorial fillibuster muscle to protect his buddies in the insurance industry. In 1995, Senator Lieberman declared:
“For too long, we have accepted the premise that the filibuster rule is immune. Yet . . . there is no constitutional basis for it. . . . [I]t is, in its way, inconsistent with the Constitution, one might almost say an amendment of the Constitution by rule of the U.S. Senate. . . . [I]t seems to me to be inconsistent with the Constitution that this body, by its rules, has essentially amended the Constitution to require 60 votes to pass any issue on which Members choose to filibuster or threaten to filibuster.” [141 CONG. REC. 38 (1995)]
and
“The Constitution states only five specific cases in which there is a requirement for more than a majority to work the will of this body: Ratification of a treaty, override of a Presidential veto, impeachment, adoption of a constitutional amendment, and expulsion of a Member of Congress. In fact, the Framers of the Constitution considered other cases in which a supermajority might have been required and rejected them. And we by our rules have effectively amended the Constitution—which I believe, respectfully, is not right—and added the opportunity of any Member or a minority of Members to require 60 votes . . . .” [141 CONG. REC. 642 (1995)]
I suppose, though, it is unrealistic to expect any Sentor nowadays to act in accordance with his principles or to have enough integrity to challenge a rule magnifies his power at the expense of constitutional government.
