60 Votes

What about the idea that basically everything except the public option is passed in normal order and the public option is put through via reconciliation? If the public option can be argued to be a way of trimming the budget deficit (since it saves ~$150 billion over 10 years according to the CBO) then perhaps that's a workable route.

My biggest concern about reconciliation is that it gives Republicans an opportunity to try to block the legislation in the courts. We could easily see the bill blocked pending years worth of appeal just to be overturned by the Roberts court because the constitution doesn't say healthcare is a right or whatever pseudo-legal conservative mumbo-jumbo is popular at the moment. Then we start the whole damn process over again, presumably with a more Repblican-friendly Congress.

Do you really think that a Democrat would vote to fillbuster and not allow the bill to be granted an up-or-down vote? I would HOPE that the caucus could exert enough pressure on DINO-democrats to allow the bill to come to the Senate floor for a vote, then vote against it if they think that they could survive such a move. If a Democrat were to do such a thing, would the caucus have enough guts to properly punish the evil-doer? Strip his/her seniority, Committee memberships, etc...?

I would like someone to speculate with me what Democrat would do such a thing....Baucus maybe? He seems spiteful enough, given the pettiness he displayed when progressives ran some commercials in his state....

Kevin,

As you admit, your not an expert on Senate parlimentary rules and laws. Stan Calender is a fine economist with experience in this area, but it's not his main expertise.

Who would know this well?

Political Science Professor Gregory Wawro of Columbia and Government Professor Eric Schickler of Harvard, authors of the 2006 book, "Filibuster".

I suggest you call them; there's a good chance they'll return the calls of a journalist at a well known journal like yourself.

If I might mention something discussed at length in their book that you haven't considered, the so-called nuclear option, which would permanently eliminate the filibuster. It's very do-able if there are 50 commited senators. Here is a slightly modified version of a comment I left on this recently at Ezra Klein's blog:

In my ongoing campaign to better understand bill passing strategy, I'm currently reading the 2006 book, "Filibuster", by Political Science Professor Gregory Wawro of Columbia and Government Professor Eric Schickler of Harvard. It's a fantastic resource for information and explanation that's very important, yet hard to find.

A key question is if the Republicans truly threaten a filibuster, and if reconciliation is ruled against by the parliamentarian, in total, or for important parts of the bill, what can be done?

Suppose, there are not 60 votes for a GOOD bill. What about the nuclear option? which would have the added (I think probably great) benefit of potentially permanently destroying the filibuster.

You wrote recently in your post, "Can Democrats Have a 50-Vote Senate?" (at: http://voices.washingtonpost.com/ezra-klein/2009/08/can_democrats_have_a...):

"As a general rule, if there were a foolproof way around the 60-vote threshold, the senators of one party or the other would have thought of it...But in fact, Zasloff's strategy to overwhelm a filibuster of health-care reform would shut down the United States Senate, which is not a better outcome in any obvious way."

First, Wawro and Schlickler, in fact, argue that an attempt at the nuclear option [simply ignore or disregard the rule for unlimited debate, as it is more tradition than hard and fast law] is quite plausible sometime in the near future, due to changes in the country, in the parties, and in the Senate over time.

Second with regard to the opposing party closing down the Senate in retaliation, they write:

[The party that employed the nuclear option] would then have two choices: either accept the resulting legislative paralysis and hope to win the ensuing public relations war...or push the fight further by using the same revolutionary tactics to curtail or remove the remaining obstructive tools used by [the opposing party]. (page 272)

That last part is crucial; if a majority of Democrats united behind truly destroying non-majoritarian rule, they could disregard all of these obstructing tactics, whether by 40 vote minorities, or one vote minorities – these rules are more traditions than laws – and then we would have a majority rules Senate.

Why hasn't this happened before? The authors give many reasons. In the past these obstructive non-majoritarian tactics were much less of a problem because they were seldom used; there was much more of an honor, civility code that discouraged it. Past crisis involving obstruction were solved with new (soft, non-law) rules to limit obstruction, without fully eliminating it. And the authors list other reasons.

It's a great book. The authors will return your phone calls; I encourage you to pick their brains.