Technically and Constitutionally speaking, 51, but in practical effect, at least 60. Under the US Constitution the Senate passes ordinary legislation with a simple majority vote. That’s the law. (Two-thirds, or at least 66 Senators, are needed for special procedures such as overriding vetoes, convicting an impeached President, etc.). However, the internal procedural rules of the US Senate change the landscape considerably. Theoretically any Senator can talk for as long as he or she wants on any subject, and many have deliberately abused this privilege–ever see Mr. Smith Goes to Washington where Jimmy Stewart starts reading aloud the Constitution so as to prevent a bill from coming to a vote? Well, by internal Senate rules, debate on a topic–and the long-winded speeches of Senators–can be cut off by a procedure called cloture, where debate is ended and the bill being considered comes to a vote.
What does this mean in practice, and how does it affect climate change legislation? Well, the cloture rules means that, if you’re in the minority party in the Senate, such as the Republicans now are, if a bill that you don’t like is coming up for a vote, especially if it’s likely to pass by a majority, you can filibuster it to prevent it from ever coming to a vote. Under the cloture rule 60 Senators can vote to shut down the debate and take a vote on the substantive bill, but if they can’t get 60, it’s pointless because the minority party can just keep filibustering theoretically forever and the bill will never get passed. Remarkable cohesion in the Senate in the minority party, both now when Republicans are the minority (against a Democratic president) and prior to 2006 when Democrats were in the minority (against a Republican president), means that it’s not very hard to get at least 40 Senators to agree not to vote for cloture. Practically speaking, therefore, any controversial issue such as health care reform, energy policy or climate change needs the support of at least 60 Senators to ensure that it even gets a chance to be voted on and passed by 51 of them. That’s why you hear so much talk about 60 being the “magic number” in the Senate, and why one single Senator, if he or she is potentially the 60th vote, can command sweeping changes in legislation to garner his or her support. Olympia Snowe, Arlen Specter and Joe Lieberman are masters at this sort of brinksmanship.
As a practical matter, therefore, I can’t see a climate change bill passing without 60 out of 100 votes. Considering the party balance in the Senate is now 59 Democrats to 41 Republicans, the whole thing is going to be a battle for that last vote, and probably every man and woman in the Senate potentially sees him or herself as that last vote. This is why getting anything done in the Senate is so hard right now.
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