The media's health care filibuster


It's time for the media to press Senate opponents of health care reform on whether they'll filibuster the bill.

All year, the media have told us that passage of health care reform requires not just the 51 Senate votes that would constitute a majority, but the 60 votes required to invoke cloture and shut off debate. It's such a common refrain, the media often employ the shorthand that health care reform needs the support of 60 senators to pass.

That isn't actually true. Even assuming Senate Democrats do not try to pass a health care bill using reconciliation or another procedure that would get around the filibuster, they still only need 50 votes (plus Vice President Joe Biden's tie-breaking vote) to pass health care reform. They need 60 votes to invoke cloture and bring the bill to a floor vote.

The media's habit of shortening that to a variation on "60 votes are needed for passage" works in favor of the opponents of reform, as it normalizes the filibuster, glossing over the undemocratic nature of the tactic and obscuring the fact that for most of American history it was an extreme measure, not standard operating procedure.

That's bad enough. What's worse is the subtle sleight of hand at play in news reports about senators who oppose or express skepticism about the health care reforms being debated. After regularly telling us that cloture is the key vote, these reports almost invariably ignore the question of whether the senators in question will filibuster a health care bill, seeming to take it as a forgone conclusion that if a senator opposes a bill, he or she will vote against cloture.

That isn't a forgone conclusion. Not by a long shot. There is a history of senators voting for cloture but against final passage -- and a recent history, at that.

For example, when the Senate was considering Samuel Alito's nomination to the Supreme Court, 16 senators voted for cloture but against confirmation -- several of whom may be key votes when it comes time to vote on health care, including Joe Lieberman, Mary Landrieu, and Max Baucus.

In 2005, Lieberman voted against passage of controversial bankruptcy legislation, calling it a "seriously flawed bill" and insisting he was "disappointed at its passage." That led conservative activist Marshall Wittmann (who is now Lieberman's communications director) to "salute" Lieberman for his "strong stand against this flawed legislation." But guess what? Lieberman voted for cloture on the bankruptcy reform bill, despite opposing it.

And yet, when Lieberman was on CNN last Sunday, saying President Obama should drop his efforts to dramatically reform the health insurance system and instead take an incremental approach, host John King never got around to asking Lieberman if he would filibuster a comprehensive bill or one that included a public option. (Nor did he ask Lieberman if he would insist on a bill that was exactly what he wanted, at risk of getting nothing, as he asked Democratic Sen. Ben Cardin. Such questions seem to be directed only to liberals.)

Lieberman's Sunday comments on CNN drew wide media attention. The New York Times headlined one article "Lieberman Suggests Health Care Reform May Have to Wait," while a USA Today headline announced "Rising deficit frames health care debate; Sens. Lieberman, Conrad say overhaul plan needs paring." The Los Angeles Times reported:

Sen. Joe Lieberman (I-Conn.) warned that Obama should scale back his healthcare push in light of persistent concerns about the economy. In particular, Lieberman said on CNN's "State of the Union," Obama should delay his effort to make sure every American has health insurance.


Lieberman, an independent who caucuses with Democrats but endorsed Republican Sen. John McCain in last year's presidential election, is in a key position. He and the other independent senator, Bernie Sanders of Vermont, are needed to give Democrats the 60 votes required to cut off debate and prevent a filibuster.

But nobody thought to ask Lieberman or his staff if he would actually vote against a comprehensive health care bill, much less whether he would filibuster one.

That's par for the course. The media, which continually emphasize the difficulty of getting 60 votes to break a filibuster, treat every expression of unease as an indication a senator will vote to sustain one. And that plays into the hands of those who oppose reform.

Consider Joe Lieberman and John McCain.

Would Joe Lieberman really filibuster health insurance reform favored by Obama and the overwhelming majority of Senate Democrats after Obama and those same Senate Democrats did Lieberman the favor of allowing him to continue to chair the Government Affairs Committee after Lieberman ran against the Democratic nominee for his seat, endorsed the Republican presidential candidate, and attacked Obama in a speech at the Republican National Convention? Remember, he didn't even filibuster the "seriously flawed" bankruptcy bill he opposed in 2005.

Would John McCain really filibuster health insurance reform favored by a majority of the U.S. Senate just a year after voters chose Obama's approach to health care over his own?

Maybe. It's certainly possible. But isn't it odd that nobody has asked them? That the news media, which insist over and over that cloture is what matters, don't ask senators who express skepticism about, or opposition to, health care reform whether they will filibuster it?

I suspect there is some universe of senators -- I have no idea how many -- who want to kill health care reform (or at least large parts of it, like the public option) but who aren't willing to have its blood on their hands. So they calibrate their public statements in an effort to scare off advocates of a public option, hoping that, as a result, they never have to cast a vote against it.

Because if it comes to a vote, they'll have an awfully hard time filibustering legislation that would make health care available to all and more affordable for those who already have it. They'll have an awfully hard time casting a vote to deny a floor vote to legislation that enjoys the support of the majority of both houses of Congress and is the top legislative priority of a president elected on a promise of health care reform just last year.

I understand why they would take this approach. They want to avoid taking a definitive position on a contentious issue -- particularly on the question of whether they'd filibuster health care reform. That's completely understandable, if not admirable. And they're trying to shape health care reform through their vague-but-ominous statements. That's understandable, too -- it's a basic element of negotiation.

What is harder to understand is why so many reporters would help politicians avoid taking a stand. The Senate itself is structurally rigged against reform as it is -- with the filibuster added to the fact that Wyoming's 500,000 residents have as many senators as California's 36 million, it's a fundamentally undemocratic institution. The last thing we need is for the media to help a small handful of senators kill reform by merely hinting that they might filibuster it. But that's what reporters do when they simultaneously treat the filibuster as routine and fail to press reform opponents on whether they'll support a filibuster.

They are, in effect, working to keep senators from having to take a position on cloture, just like reform opponents are working to keep senators from having to cast a vote on final passage.

Jamison Foser is a Senior Fellow at Media Matters for America, a progressive media watchdog and research and information center based in Washington, D.C. Foser also contributes to County Fair, a media blog featuring links to progressive media criticism from around the Web as well as original commentary. You can follow him on Twitter and Facebook or sign up to receive his columns by email.

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