One of the oft’ repeated GOP comments on the DREAM Act is that it could have passed on December 18, 2010 because “the Democrats had a super-majority in the Senate and could have broken the Republican filibuster of the bill.”
What was the situation at 11:09 AM, December 18, 2010 in the 111th Congress as the Senate met for a cloture vote?
The bill, H.R. 5281, failed to get enough votes to close debate — 55-41, with 4 members of the Senate not voting. The 111th Congress had 57 Democrats, 2 independents caucusing with Democrats, and 41 Republicans.
The four not voting were Bunning (R-KY), Gregg (R-NH), Hatch (R-UT), and Manchin (D-WV). There were some cross-over votes. Republicans voting in favor of the bill were Bennett (R-UT), Lugar (R-IN), and Murkowski (R-AK). Democrats who voted against the bill were Baucus (D-MT), Hagan (D-NC), Nelson (D-NE), Pryor (D-AR), Tester (D-MT).
If ALL the Democrats had voted in favor of the bill, and both Independents who caucused with the Democrats had joined them, that would have given the Democrats 59 votes on a straight party line roll call. In other words, Democratic solidarity alone would have been one vote short of the super-majority needed to pass H.R. 5281 (111th).
There were three Republican votes in favor of the bill. Assuming Democratic solidarity and the three GOP votes, the bill would have achieved a total of 62 votes (two more than necessary to break the filibuster).
Presidential candidate Mitt Romney is wrong to state that the Democrats controlled a super-majority of the 111th Congress, they actually controlled a maximum 59 votes. [CongResService pdf]
Another argument has been offered that if President Obama wanted to get the 60 votes necessary he could have “strong armed” those Democrats who ended up voting against the bill. “If wishes were horses, beggars would ride?” The bill attracted 55 votes (including the votes of 3 Republicans), had the five Democrats joined their colleagues the measure could have presumptively broken the filibuster on a 60 vote count.
However, we’d have to ask at this point if President Obama — or any other moderate to progressive Democratic president — could have moved Senator Ben Nelson (NE) onto the “yes” side of the tally. We’d need to remember that while Senator Nelson often voted with his Democratic colleagues, during this time period he’d also voted against allowing states to limit credit card interest rates, against the confirmation of Justice Elena Kagan, and voted in favor of a balanced budget amendment. [PVS]
Senator Mark Pryor (D-AR) also has a more conservative voting record than many of his other Democratic cohorts, as does Senator Hagan (D-NC), who was elected in 2008 and was serving in her first term. Both represent southern states with more conservative views on social issues like immigration policy. Forcing a pro-vote from either of these may have been detrimental to their re-election prospects.
That leaves the Montana contingent, Senators Baucus and Tester. As in the case of Pryor and Hagan, Baucus and Tester represent fundamentally more conservative regions than many of the proponents of the DREAM Act.
However, all this leaves the numbers unresolved. Even if all 59 Democratic and Democratic leaning Senators in the 111th Congress had voted in favor of the bill, without Republican support it would have failed to break the filibuster. The next hypothetical question might be: What of the four non-voting senators? We’ve already included Senator Machin (D-WV) in the total Democratic count.
It’s probably reasonable to assume that Senators Bunning and Gregg, both with very conservative reputations would not have voted in favor of breaking the filibuster of H.R. 5281. Senator Hatch (R-UT) had been in favor of a DREAM Act in the past, but his one vote would only have yielded a total of 56 to achieve cloture.
Thus we’re back to the numbers from the CRS directory: The 111th Congress had 57 Democrats, 2 independents caucusing with Democrats, and 41 Republicans. No matter how we play with the numbers, if the matter had been one of a straight party line vote the filibuster could not have been broken. What would have been necessary is not Democratic solidarity, although that would have been nice — but more Republican support for the bill.
Perhaps more to the point: What if there had been no filibuster in the first place?