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BY AVI FRISCH

NEWJERSEYNEWSROOM.COM

Now that the health care bill is up for debate in the Senate and passed in the House, Democrats in the Senate will need 60 votes to shut off debate and move on to an up or down vote.

The result of such an up or down vote should be a foregone conclusion, as the bill could lose ten Democrats and still pass. But we understand that there is a threat of filibuster that could keep the Senate from casting that vote.

Is this a minor technicality? Many of the reform's puzzled supporters out in the country – a ready majority if polls are to be believed – are left to wonder.

So here is some history. The filibuster is embedded in the rules of the Senate, which allow for unlimited debate. This particular Senate rule was originally conceived as a way to allow the upper chamber to ensure that matters were appropriately debated and to cool the passions of the more representative branch of Congress, the House of Representatives. George Washington referred to the Senate as the saucer and the House of Representatives as the hot cup of tea.

Over the course of time, the filibuster was used primarily to prevent passage of some very controversial bills -- in particular, bills designed to end segregation. It became the tool of hatred and bigotry and helped mightily to prevent Congress from passing a single Civil Rights bill between the 1870's and 1957.

The landmark Civil Rights Act of 1964 was filibustered for 57 days, when the votes were finally found to end debate and vote on a bill. Strom Thurmond's 1957 filibuster against that year's civil rights legislation remains legendary.

As is clear, the filibuster was long a tactic used only to block very controversial and important legislation. Recently, however, the filibuster has been converted from a right of unlimited debate into a "supermajority requirement" of sixty votes.

This development is due to the fact that the majority typically caves in to the threat of a filibuster, rather than fight against one by forcing the minority to actually keep the debate going.

Shutting off debate is allowed by a 3/5 vote of the Senate, in a procedure known as invoking cloture. Prior to 1975, cloture required 2/3 of the Senate, but the rules were changed then as the successful passage of civil rights legislation during the previous decade made the filibuster less crucial. One development that has occurred over the past 35 years is the use of the "procedural filibuster."

This is a concept not contained in the rules of the Senate, but one that has made it much easier to filibuster. Once a sufficient number of Senators show that they intend to filibuster, both sides move on to other business, rather than take the time to fight it out. This makes life easier for everyone if those who wish to enact the law the filibusterers oppose do not actually have the votes to invoke cloture.

Fortunately (though you would hardly know it from much of the recent discourse), the procedural filibuster is just an accommodation, and the majority leader may, at his discretion, force the minority to actually engage in a true filibuster.

Under the current rules, Senators may speak at any length, but no more than twice during a legislative day (a legislative day lasts from when the Senate begins a session until it adjourns). If the majority wants to force the minority to fulfill its filibuster threat, then the minority must take the floor and continuously speak/read as part of debate.

For if they cease to talk the majority may call a vote immediately, and that vote is decided by a simple majority.

The rule against speaking twice in a legislative day is the only real limit on the debate. Thus, as long as the majority refuses to adjourn, the filibusterers must keep talking without sitting down; otherwise they might run out of people entitled to speak. If a Senator hopes to read out of a phone book as her part in the filibuster, she had best get an old one, current phone books having gotten anorexically slim.

One maneuver that had worked to assist Senators bent on blockage from having to engage in a true filibuster while still bottling up legislation had long been to demand frequent quorum calls, which means that business stops to check that at least 51 senators are present.

Unchecked, a minority party could do this constantly, and with only one member of her party. So, when faced with a filibuster situation, the majority had to be nearby, cots at the ready, to ensure a quorum.

The answer to this is Rule VI of the Senate rules, which allows a majority of senators present at a session to order the sergeant at arms to round up the missing senators and force them to attend the session. After this the debate can begin, and go on and on and on.

Eventually, as long as the Senate does not adjourn, the minority will run out of speakers and the filibuster can be defeated.

Or – merely a thought – we could just have the Senate break the saucer by rearranging the rules to allow a majority to do the work of legislating.

Avi Frisch is a lawyer in Paramus and Manhattan. He can be reached at This e-mail address is being protected from spambots. You need JavaScript enabled to view it .