Friday, March 5, 2010

That's not what it says....

Jonathan Bernstein, a guest blogger for Andrew Sullivan, has an extremely off-base post about the alleged supermajority needed to pass anything, and why California's supermajority-to-pass-the-budget is a particularly bad idea.

His basic point, of course--that requiring a supermajority to pass the budget has caused all sorts of gridlock, the ability of a committed minority to hold the majority hostage, etc. And he's right. But he seems to think Congress also requires a supermajority for almost everything:

While most things are subject to a supermajority in the Senate...

No. Not correct.

The Constitution specifies that legislation passes by simple majority. The filibuster and the 60-vote rule to cloture aren't in the Constitution; they're Senate rules, and only apply if invoked. As has been discussed in earlier posts, this week, on the same blog, the "filibuster everything" approach of this Congress is an historical aberration. The historical norm was to filibuster only on major issues of principle; starting in the early 90s the filibuster was used more, but this Congress is on track to shatter all records, with triple the record number of filibusters of previous Congresses already.

But that indicates that the GOP has determined its best electoral chances lie in causing total gridlock. I'm not sure I agree with them on that, but that's another question. Back to Bernstein:

There's a reasonable argument that Congress should need a supermajority to pass ordinary bills.

As much as I enjoy Heinlein's "The more impediments to legislation the better" outlook, I'm not sure I agree. At any rate, while such an argument might exist, Bernstein hasn't made it, and it's not what the Constitution envisioned. Simply assuming that "of course Congress needs a supermajority to pass most legislation" indicates a depth of historical ignorance that Bernstein's other writings didn't suggest.

Again, his point that even if you need a supermajority for most things, the budget is the worst place to require the supermajority, because the budget simply must be passed, is correct in my view. (And I'm sure he'll sleep better knowing he has my approval...) But the "supermajority" isn't a requirement on the federal level at all, at least not in the sense he seems to be using it. As a practical matter, in the face of a GOP that's going to maintain lockstep even if it drives the country over the cliff? Yes. But that's an argument for changing Senate rules.

[sigh] Of course, changing the Senate rules requires an even bigger supermajority of Senators...

Update: A followup post indicates that his first post wasn't quite what he meant (possible), that I misinterpreted it (more likely), or that he had a sudden epiphany (listed for the sake of completeness). At any rate, he points out, correctly, that the 60-vote rule isn't included in the Constitution and probably wasn't forseen by the Founders.

But to extrapolate [...] to the idea that the Senate was intended to have a 60 vote filibuster rule is...well, Yglesias calls it abject nonsense, and that seems fair to me.