When is a 60% majority required in US Congress?
I wonder when a 60% majority is required in the US Senate. As I write this I see in the news that Obamacare can be "repealed and replaced" with only a 50% majority because it is in a "reconciliation process". A new initiative seems to require 60% majority. This seems quite confusing, as if procedural details determine that different majorities are required to do the same thing at different times.
67% is required to overrun a presidential veto in Congress. Does this mean that 67% is the only useful majority for legislation in the US? If not, why not, why don't presidents veto all laws they dislike? Where does the 60% come in? How often in history has Congress had a party with more than 60% of the seats?
I'd also like to know what laws govern this, how they came about and what is required to change them.
Given the ideal of separation of powers, what is the philosophy behind giving the executive 10% of the votes in the legislature (with the veto)?
You have at least two different issues here: one about what percentage of votes is required for different actions, and the other about the philosophy or strategy of vetoing. You may wish to split those out.
It's basically a cloture vote.
A three-fifths majority (60 votes) is required in the Senate to invoke a cloture in most cases. This's because the Senate reduced the number of votes required for cloture from two-thirds to three-fifths in 1975 since a two-thirds is very difficult to obtain.
However, invoking cloture on a measure or motion to amend the Senate’s standing rules would require a two-thirds majority (67 votes). Overriding a presidential veto still requires a two-third majority (67 votes), not only in the Senate but also in the House.
Also, the cloture vote majority does not apply to the House of Representatives - a supermajority would still require 290/435 votes.
This introduction on senate.gov explains this:
Three quarters of a century later, in 1917, senators adopted a rule (Rule 22), at the urging of President Woodrow Wilson, that allowed the Senate to end a debate with a two-thirds majority vote, a device known as "cloture." The new Senate rule was first put to the test in 1919, when the Senate invoked cloture to end a filibuster against the Treaty of Versailles. Even with the new cloture rule, filibusters remained an effective means to block legislation, since a two-thirds vote is difficult to obtain. Over the next five decades, the Senate occasionally tried to invoke cloture, but usually failed to gain the necessary two-thirds vote. Filibusters were particularly useful to Southern senators who sought to block civil rights legislation, including anti-lynching legislation, until cloture was invoked after a 60 day filibuster against the Civil Right Act of 1964. In 1975, the Senate reduced the number of votes required for cloture from two-thirds to three-fifths, or 60 of the current one hundred senators.
Also, this article titled "Why we need 60 votes for everything, in plain language" explains this in a clear way:
One of the basic rules of the Senate allows for unlimited discussion and debate. As long as someone wants to talk, discussion on a bill must continue. No vote can be held on a bill until all discussion/debate is closed.
If even one person wants to keep talking, debate on a bill continues.
The only way to make that person stop talking is when 60 Senators vote to end debate. This is called a cloture vote (cloture is from a word meaning to close off or bring to an end).
Cloture used to require a two thirds majority. This was back in the days when filibusters were rare. The cloture requirement was reduced from two-thirds to three-fifths in 1975--a more manageable 60 votes.
Regarding the repeal and replacement of the Affordable Care Act (ObamaCare) specifically, this article by The Washington Post describes it quite clearly.
In 1975, the number of votes required for cloture was not **reduced** from two-thirds to three-fifths, but rather **changed** from two-thirds of Senators "present and voting" to three-fifths of Senators "duly chosen and sworn". Whether or not this constitutes a _reduction_ for any given cloture vote depends on how many Senators are present in the chamber.
It takes two thirds to override a presidential veto, not 60%. Two thirds rounds to roughly 67%. And that's of both chambers, not just the Senate. Presidents do veto all or almost all of the legislation that they dislike. The reason that so few bills are vetoed is that presidents like more about most legislation than they dislike. Congress only sends bills that the president doesn't like and will veto to make a political point. Or if they have the votes to override.
It is currently unlikely that the president will veto any legislation that Congress will pass. It would be more likely with a more hostile Congress. Note that the veto power is only negative. A president can block legislation but not enable it.
The 60% in the Senate is the amount needed to invoke cloture over protest. Any Senator can protest cloture. No one outside the Senate can.
Unlike bills to change laws, Congress needs to pass a budget so as to carry on operations. So deadlock is not an option. As a result, during some contentious budget negotiations, they passed a special kind of rule for ending debate (invoking cloture and ending any filibuster) when a budget is involved. So when it comes to spending and revenue, Congress can pass things by majority vote. This is a deliberate exception to the normal procedure.
More recently, a similar change was made so as to allow most appointments to be confirmed by a simple majority. Supreme Court appointments are an exception.
More confusingly, there is an argument that any Senate rule can be changed by a simple majority. So that means that the Senate could always change the rule requiring a 60% supermajority, as that is just a Senate rule.
A veto requiring two thirds is a constitutional rule, not a Senate rule. It can't be changed without a constitutional amendment which requires at least three quarters of the state legislatures to ratify.
I see in the news that Obamacare can be "repealed and replaced" with only a 50% majority because it is in a "reconciliation process". A new initiative seems to require 60% majority.
Other answers have covered the Filibuster and Cloture (which is where the 60% comes in), but I wanted to address this part specifically. The Senate has a special set of rules called Reconciliation. Reconciliation does not allow for Filibusters (so the passage threshold is 50% + 1), but is strictly limited to budgetary items. Specifically, the rules are set forth by the Byrd Rule
Reconciliation generally involves legislation that changes the budget deficit (or conceivably, the surplus). The "Byrd Rule" (2 U.S.C. § 644, named after Democratic Senator Robert Byrd) was adopted in 1985 and amended in 1990 to outline for which provisions reconciliation can and cannot be used. The Byrd Rule defines a provision to be "extraneous"—and therefore ineligible for reconciliation—in six cases:
- if it does not produce a change in outlays or revenues;
- if it produces an outlay increase or revenue decrease when the instructed committee is not in compliance with its instructions;
- if it is outside the jurisdiction of the committee that submitted the title or provision for inclusion in the reconciliation measure;
- if it produces a change in outlays or revenues which is merely incidental to the non-budgetary components of the provision;
- if it would increase the deficit for a fiscal year beyond those covered by the reconciliation measure; or
- if it recommends changes in Social Security.
Any senator may raise a procedural objection to a provision believed to be extraneous, which will then be ruled on by the Presiding Officer, customarily on the advice of the Senate Parliamentarian. A vote of 60 senators is required to overturn the ruling. The Presiding Officer need not necessarily follow the advice of the Parliamentarian, and the Parliamentarian can be replaced by the Senate Majority Leader. The Vice President as President of the Senate can overrule the parliamentarian, but this has not been done since 1975.
This is a particularly arcane system, but it applies to Obamacare because of how Obamacare was passed (which helps explain the current political climate)
- The Senate, with 60 votes, passed the bill that became Obamacare on a strict party line vote (58 Democrats + 2 Independants who caucused with them). Since the House had passed a different version, the two bills had to go to conference. This means the Senate and House meet to agree to a bill that can pass both chambers.
- A special election was held to replace the deceased Senator Ted Kennedy (a Democrat, and whose seat was temporarily filled by an appointed Democrat). Scott Brown, a Republican, won the seat. This meant there would no longer be 60 votes to stop a Filibuster, nor would there be time to conference a new bill that could gain the support of any Republican Senators.
- A concerted effort was then made to gain enough votes in the House to pass the bill that had already been passed by the Senate. The House could not amend the bill in this process, as the two chambers must pass the same bill. It narrowly passed with 216 votes.
- The House then wrote a different bill to change some elements of the passed bill (notably it removed several economic provisions that had been used to gain support of the original bill in the Senate). This was sent to the Senate, where, under Reconciliation rules, it was easily passed by a simple 51 vote majority.
The thinking of Republicans is that they can use #4 to remove portions of both the first and second bill, since it would not be subject to a Filibuster. This process, by nature of the Byrd Rule, cannot be used to remove any of the regulations that go along with them. Thus Republicans would have to have it pass under normal rules, where you need 60 votes for Cloture.