Scott Brown, Martha Coakley and the Supermajority

(AP)
Everybody knows that the Democrats control the White House, the House and the Senate. Of the Senate's 100 seats, the Democrats currently control 60 of them (58 elected Democrats and 2 elected Independents who join them) – and 60 is the real magic number, as it gives them a supermajority.

And as you know, the Massachusetts Senate seat, currently held by the Democrats as it was the seat that Ted Kennedy was elected to, is up for grabs in a special election tomorrow. And as you know by now, the race between the Democrat, State Attorney General Martha Coakley, and the Republican, State Senator Scott Brown, is neck and neck, and as you also know, everyone says the entire Obama agenda is at stake.

Why? Because even though a loss in Massachusetts would still leave the Democrats with 59 percent of the votes in the Senate, it takes 60 percent of the votes to stop debate and bring a vote – called Cloture – under Senate rules. In other words, it takes 51 votes to pass a piece of legislation (with the Vice President able to cast a tie-breaker vote in a rare 50-50 vote split), but it takes 60 votes to allow the final vote to even occur.

Follow me? Basically, without 60 votes, under Senate rules, debate could go on forever and ever. This is called the filibuster. So basically, if Brown wins in Massachusetts tomorrow, the Republicans, with 41 votes, would have enough votes as the minority to prevent the Democrats, the majority with 59 votes, from ever bringing a final vote on health care reform or any other legislative priority to the floor. The minority would basically control the Senate.

In a speech last night to supporters in Florida, Vice President Joe Biden, who spent more than half of his life in the Senate, criticized the situation and the need for a 60 vote super-majority to get anything accomplished. "As long as I have served ... I've never seen, as my uncle once said, the Constitution stood on its head as they've done. This is the first time every single solitary decision has required 60 senators," he said.

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"No democracy has survived needing a super majority," added the vice president.

He may be right about the second part, but it is not the first time that the filibuster has been used to stop major pieces of legislation, and it's definitely not a partisan idea -- both parties, when in the minority, have used the filibuster to prevent the majority from passing everything they wanted to.

According to law professors Catherine Fisk and Erwin Chemerinsky in their Stanford Law Review article from 1997, "The Filibuster," the technique was used not only to prevent civil rights legislation from passing for years in the last century, but more recently during the Clinton administration. Senate Republicans, then as now in the minority, used the filibuster to stop economic stimulus, campaign finance reform, lobbying reform and the last attempt at health care reform. When the Democrats were the minority party in the Senate, they used the filibuster to stop much of the GOP's Contract with America.

"Filibusters are so ubiquitous in the contemporary Senate that it is now commonly said that sixty votes in the Senate, rather than a simple majority, are necessary to pass legislation and confirm nominations," wrote Fisk and Chemerinsky.

In fact, during the presidency of George W. Bush, Democrats, with Biden in their ranks, frequently filibustered some of the president's judicial nominees for the federal courts.

According to University of Virginia political scientist Larry Sabato, the mood in Washington makes the supermajority more desirable and the filibuster a more powerful tool than ever.

"This is one of the most polarized situations America's faced in a century," he said. "The two parties have little in common, they don't even talk to one another about most of the issues. And even a new president can't change that dynamic, so it's a problem for the country, it's a bigger problem for Obama."

Chemerinksy and Fisk point out that the filibuster and the 60 votes needed for cloture is Senate tradition -- not written in the Constitution, but in Senate Rule XXII -- and not unconstitutional. While the Senate can change its own rules at any time to change the number of votes needed for cloture or to cut off debate, Chemerinksy and Fisk point out that the Senate rule itself would require a two-thirds vote to change. That, they conclude, is in itself unconstitutional.

Robert Hendin is a CBS News White House producer. You can read more of his posts in Hotsheet here.
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    Robert Hendin is senior producer for "Face the Nation" and a CBS News senior political producer.

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