March 15, 2010
How Biden Could Fix the Senate—A Commentary by Bruce Ackerman ’67
The following commentary was posted on Prospect.org on March 15, 2010.
How Biden Could Fix the Senate
By Bruce Ackerman ’67
The question of whether Congress will fulfill the dream of every modern Democratic president and pass health reform now rests on the intersection of two of the most complicated bits of congressional procedure -- the Senate's filibuster rule, which has become a 60-vote supermajority requirement, and the budget reconciliation process, which sets time limits for debate and thus can be a way around the filibuster. The current plan is to avoid the filibuster by having the House pass the bill that passed the Senate last year and then using reconciliation to make changes.
This complex, but entirely legitimate, approach makes an unelected employee of the Senate, the parliamentarian Alan Frumin, a critical figure in the weeks ahead. The parliamentarian polices the procedural rules governing the filibuster as well as what can be legitimately included in reconciliation.
But the parliamentarian doesn't have the last word on Senate procedure -- that power belongs to the vice president, Joe Biden, in his constitutional role as president of the Senate.
If Biden is willing to exercise the power granted him in the constitution, he could do more than pass health care. He could establish a precedent that would later help him limit the filibuster rules that threaten to deadlock our system of government. He would not be the first vice president to use his power for good in this way.
Consider the history: It now takes 60 Senators (three-fifths) to end a filibuster, but for most of the 20th century, a full two-thirds majority was necessary. Worse yet, unanimous consent was required by Senate rules to change this. The two-thirds provision seemed cemented into the system beyond repair.
Until Richard Nixon came along. When the Senate opened for business in 1957, he took the chair as vice president and urged the chamber to rethink the very foundations of its rules. The Senate traditionally considered itself a continuing body, which automatically inherited its old rules without any formal action.
This was a mistake, Nixon said. Since one-third of its membership is renewed every two years, the Senate should explicitly vote on its rules when it organized itself at the beginning the session. If a simple majority wanted to reduce the two-thirds rule, it was free to do so.
Nixon's ruling was a bombshell. If his view were accepted by the Senate, 51 Senators could impose a strong civil-rights bill on the South.
This put Majority Leader Lyndon Johnson in a tough spot. He was willing to join a broad effort for a weak civil-rights measure, but he was unprepared to sacrifice his Southern colleagues by campaigning against the filibuster. He refused to support Nixon's pronouncement. Instead, he asked the Senate to table any vote on its rules and follow its traditional practice of simply inheriting the existing rule book in a passive fashion. When Johnson's motion won the day, he frustrated Nixon's effort to use the Senate presidency as an engine for filibuster reform.
But not forever. Hubert Humphrey took up Nixon's cause when he was Senate president in 1969, ignoring the contrary opinion expressed by his parliamentarian. Once again, however, his initiative went down to defeat in the Senate.
Finally Nelson Rockefeller broke the log-jam when serving as Gerald Ford's vice president. Both majority leader Mike Mansfield and the parliamentarian opposed the Senate president's rulings. But Rockefeller refused to budge, and this time, the Senate backed him up by a vote of 51 to 42.
Mansfield arranged a face-saving compromise, under which the Senate adopted the current three-fifths rule without explicitly accepting the propriety of Rockefeller's action. But there's no avoiding the fact that the current filibuster rule is the product of the bipartisan campaign by Nixon, Humphrey, and Rockefeller to overcome the opposition of parliamentarians and majority leaders to change.
This constitutional point should not be obscured by the short-term politics of health care. Vice President Biden has served 36 years in the Senate -- longer than the parliamentarian. While he should listen to Frumin's advice about the complex Senate rules, he can and should make his own decisions. And the current majority leader, Harry Reid, who supports filibuster reform, will not stand in the vice president's way this time. Biden should establish that the Constitution gives him independent authority and thereby preserve his ability to lead a new round of filibuster reform in 2010 and beyond.