In his Washington Post column today (2/25/10), George Will writes in defense of the filibuster, arguing that Democrats' talk of using budget reconciliation rules to pass a healthcare bill demonstrates their contempt for the Constitution.

He has been perfectly consistent on the question of minority rule--it depends on who the minority is. Back when Republicans filibustered a Clinton economic stimulus bill in 1993, he cheered them on in a column headlined "The Framers' Intent" (Washington Post, 4/25/93). Will defended "the right of a minority to use extended debate to obstruct Senate action" and praised "the generation that wrote and ratified the Constitution" for properly establishing "the Senate's permissive tradition regarding extended debates."

When the Democratic minority attempted to block a Bush judicial nominee, he was suddenly, without explanation, against the principle that the minority party should have such powers--in a piece headlined "Coup Against the Constitution" (Washington Post, 2/28/03). As Steve Rendall wrote in Extra! (9-10/03):

Concerned that "41 Senate Democrats" might succeed in stopping the confirmation of Miguel Estrada, nominated by George W. Bush to the U.S. Court of Appeals, Will wrote: "If Senate rules, exploited by an anti-constitutional minority, are allowed to trump the Constitution's text and two centuries of practice, the Senate's power to consent to judicial nominations will have become a Senate right to require a supermajority vote for confirmation."

Well, today, in a column headlined "For Liberals, the Filibuster Is Now the Enemy," Will sees it differently.  Now when he thinks back on Republicans attempts to junk the filibuster to confirm Bush's judicial nominees, he recalls that that was a bad idea:

In 2005, many Republicans, frustrated by Democrats blocking confirmation votes, wanted to ban filibusters of judicial nominees. They said such filibusters unconstitutionally prevent the president from doing his constitutional duty of staffing the judiciary. But this is not just the president's duty; the Senate has the constitutional role of consenting--or not--to nominations.

So the George  Will Constitutional Theory goes something like this: Filibusters are good when Republicans do them, and bad when Democrats do them. And he has the chutzpah to mock both parties as "situational ethicists regarding filibusters."

Writing about the Employee Free Choice Act, Melanie Trottman and Brody Mullins of the Wall Street Journal write (3/10/09):

At least six Senators who have voted to move forward with the so-called card-check proposal, including one Republican, now say they are opposed or not sure--an indication that Senate Democratic leaders are short of the 60 votes they need for approval.

It really is worth being specific on this: It does not take 60 votes to pass an ordinary bill in the Senate; it takes a majority of the senators voting. If everyone is present, it takes 51 votes, or 50 votes if the vice president votes to break the tie. Under the current rules of the Senate--which can be altered by a majority vote--it takes 60 votes to proceed to a vote on a bill when some senators want to continue debate forever, or filibuster.

It has not traditionally been the custom that every bill gets a filibuster and so requires 60 votes in order to pass; plenty of bills in the past have passed the Senate with fewer than 60 votes. In recent years, the filibuster has changed from an occasional gambit to a more routine part of the process. Since  the Democrats took back the Senate after the 2006 elections, it has become almost a matter of course that a bill opposed by most of the minority party will have to overcome a filibuster in order to pass.

But that doesn't mean that a bill needs 60 votes to be approved; it means 41 senators can keep a bill from being voted on.  The distinction is worth making, particularly since the ability of the minority to obstruct is dependent on the willingness of the majority to be obstructed.

You see it all the time: You need 60 votes to pass a bill in the Senate.

Not exactly.  Under Senate rules--which can be changed by a majority vote--you need the consent of 3/5ths of the Senate to close debate on an issue; that's 60 votes. To pass a bill, you need a majority of those present. Since Ted Kennedy is sick and Al Franken has not yet been seated, that's 49 votes.

Is that an academic distinction?  No, not really.  Politically, voting against an emergency stimulus bill is very different from voting to block a vote on an emergency stimulus bill.  Particularly if Majority Leader Harry Reid required filibusterers to actually hold the floor, Mr. Smith Goes to Washington-style, Republicans might find it a great deal harder to keep a 41-vote bloc together.

In any case, Americans are generally under-informed about the way their complex system works. Spelling out what's going on, even if it takes an extra sentence, is preferable to a misleading and sometimes inaccurate shorthand.

Update: jhm in comments is correct in saying that it is not the debate cloture rule, but rather a Senate rule against deficit spending, that required a 3/5ths majority vote to pass the stimulus bill.  Both are self-imposed requirements, adopted through majority vote, but the politics of standing up against deficit spending are different from standing up against the Senate voting.