The U.S. Senate badly needs to be reformed.
I said that when Republicans were in charge and Democrats were using the rules to thwart them. I say it now that Democrats are in charge and Republicans are the ones doing the thwarting.
I say it even though I am an ardent opponent of the Democratic health care plan.
That plan currently cannot pass the Senate because it doesn't have the support of 60 of the 100 senators, and under the rules of the Senate 60 votes are usually required to pass anything of substance.
Democrats, however, think they may have 51 votes, and so are contemplating using the budget reconciliation process for which a simple majority suffices.
That's an abuse of the budget reconciliation process, which is intended to pave the way for tax and spending measures that comport with and fulfill a budget resolution Congress had previously adopted, not to enact broad new policies or programs.
But the extraordinary majority requirement for the passage of legislation is itself an abuse.
Technically, the 60 votes aren't necessary to pass a bill but to stop debate on a bill to get to the vote, a step called cloture. It began life as a way to cut off a filibuster.
True filibusters, where one or a few senators seize the floor and yak away, have gone the way of the buggy and whip. These days, the Senate assumes that it is in a continuous filibuster, even though no one is actually reeling from sleep deprivation or going hoarse. And the vote to cut off debate has become conflated with approval of the legislation itself. Hence there is, as a practical matter, an extraordinary majority requirement to pass any legislation of substance through the Senate.
Conservatives are saying that is good and in keeping with the role the framers intended the Senate to play in checking rash rushes to judgment. Of course, they were saying something entirely different when Democrats were threatening to impose a 60-vote requirement on the approval of President George W. Bush's judicial nominees.
Conservatives also cite the number of instances - impeachment, expulsion of a member, overriding vetoes, approving treaties and constitutional amendments - in which the Constitution explicitly requires an extraordinary majority, in all cases a two-thirds approval.
The framers certainly did design the Senate to play a tempering role, with longer terms for members, two from each state rather than based on population, and initially selection by state legislatures. But the fact that the Constitution specifies instances in which an extraordinary majority is required actually cuts against the conservative argument. By inference, the framers intended for the Senate to act by a simple majority in other matters.
The greater degradation of the framers' intent is the "hold" individual senators can place on executive nominees. The "hold" is used by members of both parties, to prevent action on a nominee to whom they object or to hold nominees hostage to executive branch concessions on other matters. And members of both parties even do it to a president of their own party, not just to one from the opposition.
This gives individual senators in effect veto power over executive appointments. The framers gave advice and consent power to the Senate as a whole, not to individual senators. Given the framers' view that the energy in their new government was to repose in the executive, they would be aghast at the notion that a single senator could prevent a president from staffing his government.
And of course, the country has been treated to the spectacle of one senator, Jim Bunning of Kentucky, preventing the Senate from voting on broadly supported legislation to extend assistance to the unemployed.
Simply put, the rules of the Senate confer far more power on individual senators and a minority of the body than the framers intended.
That's not good, even if it inhibits the passage of a very bad health care bill.
