Biden says every Senate decision now requires 60 votes

In case you haven't heard, the traditionally blue state of Massachusetts just elected Republican Scott Brown to take the seat of the late Edward Kennedy, a standard-bearer for the the Democratic Party.

A lot of ink has been been dedicated to what this means for Democrats in the midterm elections, the party's strength and, of course, the health care reform plan in the Senate. The upper chamber needs 60 votes to prevent a Republican filibuster on the bill, and with Brown's election, Democrats have lost their supermajority.

Vice President Joe Biden lamented this obstacle in a speech just days before Brown defeated Democratic Senate candidate Martha Coakley.

"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," Biden said at a Florida fundraiser Jan. 17, 2010, according to a White House pool report. "This is the first time every single solitary decision has required 60 senators."

We're going to check the second part of Biden's statement, that this is the first time in his political career that every decision in the Senate has required 60 votes.

But first, some Senate history.

Once upon a time, senators could stall debate indefinitely by reading from cookbooks or reciting Shakespeare (think Jimmy Stewart's impassioned speech in Mr. Smith Goes to Washington). In 1917, new rules allowed Senate leadership to end debate so long as it had support from two-thirds of the Senate. In 1975, the Senate reduced that to three-fifths, or 60 of the current 100 senators.

Around this time, the old-school filibuster started to become less popular. With only 60 votes needed to prevent a filibuster, the majority party would simply file cloture motions -- the technical term to set up a vote to stop debate -- and get on with it, said Senate historian Don Ritchie.

Of course, both the minority and the majority have benefited from the tactical tool. The minority can unify and oppose a cloture motion, effectively stalling a bill. And the majority, knowing it has no chance of winning on a vote, can file a cloture motion and then blame the opposition for holding things up.

But back to Biden's statement. He won his Senate seat in 1973, just two years before the Senate adopted its new cloture rules, and served until Jan. 15, 2009, shortly before he was sworn in as vice president.

The Senate historian's office provided us with a list of cloture votes since 1919, which have been on the uptick in the last three decades. The 110th Congress, which spanned from 2006 to 2008, boasts the most with 112 votes. There were 54 such votes from 2004 to 2006, and 49 vote from 2002 to 2004. There have been 39 cloture votes so far this session, which has been under way since January 2009.

Is the increasing use of cloture an example of pure obstructionist politics, as Biden's statement would imply? It's more complicated than that, said Ritchie.

In the early '70s, when Biden first came to the Senate, the membership of both the Democratic and Republicans parties were more ideologically diverse and, as a result, party-line votes were scarce, Ritchie said.

"In the late '80s, the two parties became more internally coherent and cohesive," he said. "As a result, leadership was invoking cloture a lot more."

This dynamic has come to a head in recent years when the Senate leadership, whether Republican or Democratic, has had such narrow majorities, Ritchie said. The minority is more likely to unify against legislation, effectively filibustering a bill. As a result, the majority is essentially forced to round up 60 votes to keep the process going.

Sarah Binder, a congressional expert teaching at George Washington University and a fellow with the Brookings Institution, echoed Ritchie.

In the early 1970s, senators "were less likely to vote with fellow partisans, so there was a less partisan use of cloture," she said. "Today, there's no ideological overlap between the parties."

Binder also pointed out that the size and scope of the leadership's agendas has grown dramatically in recent years, but it has little time to get big things done. Invoking the 60-vote rule is one way to keep the agenda moving.

Back to Biden: His overall point -- that the Senate more frequently requires 60 votes to get things done these days -- has some truth to it. According to Senate experts, there have been more and more cloture votes as the upper chamber becomes increasingly split along party lines.

But he said "every single solitary decision has required 60 senators," which is an exaggeration. In 2009, for example, there were 397 roll call votes. According to the Senate Historian's office, only 39 of them were cloture votes. Indeed, we found plenty of major bills that did not require 60 votes to start or end debate, including a bill meant to give more children health insurance and a bill to prevent mortgage foreclosures. Furthermore, the Senate frequently passes noncontroversial bills unanimously, so there are countless pieces of legislation such as post office namings and resolutions that don't require 60 votes.

As we like to say at PolitiFact, words matter; if Biden had said every "major" decision requires 60 votes, he would have been on more solid ground. As a result, we rate his claim False.

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