Perspectives: The Hard Math to 60 Votes in Democratic Senate After Kennedy Death

The death of Sen. Edward Kennedy, beyond its tragic weight for his friends, constituents and public admirers, further highlights a basic math problem that his Democratic colleagues in the Senate have been facing. It takes one vote away from Democrats, dropping the number they can muster to 59 -- not a filibuster-proof majority.

But the truth is, they never experienced filibuster freedom.

When Sen. Arlen Specter of Pennsylvania defected to the Democratic Party and Sen. Al Franken,. D-Minn., came out ahead in a post-election legal battle, the headlines announced that Democrats could beat a filibuster. Sixty votes. Enough to push the Republicans around at will. Or so was the fear of the GOP. But the minority party's fear was unfounded. The health reform debate has already been proving how ineffective that 60 was.

If it were just the House of Representatives debating health reform, legislation would probably soon be on its way to the Oval Office. Three bills already emerged from House committees -- all three largely the same. With a 257-178 majority of Democrats there, they don't have to be in the business of looking for Republican cooperation.

But the bottleneck of Congress is the Senate. That's because of the chamber's "Mr. Smith Goes to Washington" procedure: the filibuster. Frank Capra's beloved moment of cinema justice translates to a serious lawmaking obstruction in reality, where 60 votes -- a three-fifths majority -- must generally be rounded up to pass a bill. The 51 votes of a simple majority won't do. Good news for fans of bipartisan bills. Bad news for fans of legislative efficiency.

Technically, the Democrats never had 60 votes at all. There are independent senators to consider. Yes, Sen. Joe Lieberman may call himself an "independent Democrat" and caucus with his former party, but he was elected as an independent and has already pulled back support for major health reform in this session. Sen. Robert Byrd, D-W.V., the oldest member of Congress, has been ill and regularly unable to come to work. And in the months before his death, Kennedy, D-Mass., had already been mostly absent from Capitol Hill.

For health reform, Democrats could really be looking at 57 votes -- or fewer, because of other Democratic senators who don't like the details of the reform push. So, the Democrats need some Republicans -- all of whom are on the side of the insurance industry in opposing the "public option." The need for Republicans is why three Democrats and three Republicans from the Senate's Finance Committee have spent so much time staring at each other across a negotiating table. It's the only bipartisan discussion going on right now, especially as Republicans have ramped up the rhetoric against the reform proposals. The "Gang of Six" keeps talking, and Republican negotiators have said the legislation doesn't include the public option.

The House has been impatient. Some Democrats are saying the party should go it alone, without Republican votes. But there's only one foreseeable way to sidestep the threat of a Senate filibuster: "reconciliation." It's a parliamentary shortcut -- complex and full of its own rules -- designed for unpopular budget votes. Lawmakers used it under the previous administration to pass tax cuts, though it's not often invoked. And this wasn't its original purpose when the procedure was established 35 years ago as a way to slash the deficit.

Senate Democrats would only need 51 aye votes to pass legislation under the reconciliation process, but the reforms would probably have to be chopped into smaller pieces to conform to tight reconciliation requirements. Other components -- like the public option that Kennedy's own bill advocates -- might be left for the Democrats to try to pass with the usual Senate rules.

After a recess month in which debate over reforms grew hotter, Congress returns to work in September. For the first time in decades, they'll return without a Kennedy in the Senate. And the Senate Democrats return with one further vote away from beating a filibuster -- and consequently a greater distance to their goal of a government-run insurer.