This item by Ed Kilgore is cross-posted from The New Republic, where it first appeared on September 7, 2009.
In all the debate over public opinion polls, town hall protests, and “bipartisanship” (or the lack thereof), not to mention the complex details of this or that plan, it is easy to forget that the key obstacle to enactment of health care reform remains the threat of a filibuster in the Senate. Since 60 votes are required to “invoke cloture” and proceed to a vote, the White House strategy on health reform has oscillated between efforts to pull a few Senate Republicans across the line (shoring up “centrist” Democrats as a byproduct) to get to 60, and schemes to use budget reconciliation procedures, which prohibit filibusters.
This latter possibility has aroused dire threats of Armageddon from conservatives, most notably from New York Times columnist David Brooks, who said use of reconciliation for health reform would be “suicidal,” and would “permanently alienate independents.” Brooks cleverly conflated public misgivings about health reform with support for a filibuster, and equated a simple majority vote with an effort to “ram health care through” Congress. There is zero evidence at this point that voters are versed in the intricacies of Senate procedure, or cherish the right of 41 senators to dictate national policy.
There are, however, other problems with the use of reconciliation for health reform. The loophole is vulnerable to an adverse parliamentary ruling, which can stop items that don't really have anything to do with the budget; this ruling can only be waived by a three-fifths vote, defeating the whole purpose of reconciliation. Also, reconciliation places certain structural limitations on the scope and duration of reforms. Politically, it will be used by Republicans and High Broderist pundits to hammer Obama as a partisan dictator (though the former are somewhat constrained by the use of reconciliation to enact the 2001 Bush tax cuts).
That leaves Democrats searching for a way to reach the 60 votes needed to overcome a filibuster, which has proven quite difficult for them. Democrats understandably need to allow for some amount of political diversity within their caucus. But the time has come--and in fact, it is long overdue--for them to begin forcefully making the case that being a member in good standing of the party’s Senate caucus means supporting cloture motions on key legislation even if a given senator intends to vote against it.
This case was, in fact, briefly made in July by Senate Democratic Whip Dick Durbin--but it gained little traction. Durbin’s argument should be revived in and outside the Senate. Right now, progressive groups around the country are in the midst of efforts to agitate for a “public option” as an essential feature of health reform, and eventually will devote enormous efforts to support final passage of health reform, if we ever get to that point. Wavering Democrats have been targeted for ads and other communications, with mixed results. A significant fraction of that pressure should be devoted to a very simple message: Democrats should not conspire with Republicans to obstruct a vote in the Senate on the president’s top domestic priority. Vote your conscience, or your understanding of your constituents’ views, Ben Nelson, but don’t prevent a vote.
There are those who would respond to this suggestion by arguing that a senator voting for cloture but against the bill could be accused of flip-flopping or deviousness. Let them provide the evidence that voters understand or care enough about Senate procedures to internalize that charge. When John Kerry got into so much trouble in 2004 by saying that he “actually did vote for the $87 billion before I voted against it,” he was the one trying to explain arcane Senate procedures. “I voted against ObamaCare, but I didn’t try to keep the Senate from voting” should be a pretty easy sell for any Democrat, particularly since the contrary argument requires an explanation of cloture, not exactly a household word.
The harder question is whether public pressure to support one’s party and president on a cloture vote could be supplemented by more tangible sanctions against senators who won’t at least let health reform or other critical legislation get to the floor--such as withholding choice committee assignments or party committee funds. But until Democrats begin to question the right of certain Democratic senators to maintain their tyranny, possible sanctions are beside the point.
In any event, this is a project that progressives should embrace sooner rather than later, and even if a “bipartisan” 60 votes are rounded up for health reform, or the reconciliation route is pursued. The same problem will bedevil Democrats on other legislation. The constitutional structure of the Senate will always tend to produce a more conservative body than the House, and than the national body politic.
There’s no real “down side” for Democrats to a campaign for party discipline on cloture votes, because Republicans already largely have it on legislation that matters. Democrats need to stop kowtowing to “moderates” who see a vote for cloture as the same thing as voting for the actual bill. These moderates can show their centrist bonafides by voting against the actual bill--and Democrats, free of the 60 votes needed for cloture, can finally pass the bill with the simple majority it deserves.