an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
My colleague Bruce Ackerman's theory of "constitutional moments" is designed to explain how large scale constitutional change occurs. This theory is actually a collection of different mechanisms, which, together, show how a mobilized public gives its support to constitutional change.
One of these components is the idea that politicians, in desperate political circumstances, engage in what Ackerman calls "unconventional adaptation" to political impasse, leading to a "switch in time" by a recalcitrant institution that is threatened by the unconventional adaptation. If the unconventional adaptation succeeds, if the recalcitrant institution backs down, and if the public supports reform in subsequent elections, a new set of constitutional customs and understandings is created.
We are at such a moment now. The political impasse is over health care reform. The institution is the United States Senate.
The question is whether the Democratic Party led by Barack Obama, will threaten unconventional adaptation so that the Senate (in this case, a small number of moderate Democratic Senators) will back down and allow passage of health care reform by a simple majority, creating a new precedent for Senate practices.
If Obama does not make this threat credibly, opponents of reform will succeed and the Senate-- and particularly the power of the Republican minority and Blue Dog Democrats in the Senate-- will become more powerful than ever.
It is, in other words, a match to the death between Obama's promise of a new politics and the existing forms of politics.
The Senate played a similar role in the 1964 Civil Rights Act. As before, the filibuster held up passage. But in 1964 the filibuster was rarely used (usually only on civil rights measures) and it was far easier to wait out because the opponents had to keep debate going.
Since 1964, however, the Senate's practices have turned into a de facto 60 vote requirement for all legislation, enforced by the ability of Senators to use the Senate's many unanimous consent procedures to bring Senate business to a halt.
Following two strong Congressional showings in 2006 and 2008, the Democrats face a third election in 2010. They fear that if they do not pass health care, they will be punished at the polls. In off-year elections, the President's party usually loses seats anyway, even greater losses mean that they will certainly lose their working majority in the Senate and may lose much of their majority in the House.
Obama's promise of reform depends on the Democrats' enjoying a "little constitutional trifecta", i.e., control of the Presidency and both houses of Congress--including 60 votes in the Senate--as opposed to the "big constitutional trifecta" which involves control of all three branches of government, which is more difficult to obtain.
The 2010 elections threaten the continuation of this constitutional trifecta.
Previously, moderate Democrats like Ben Nelson and Joe Lieberman and moderate Republican Olympia Snow have threatened to prevent the Democrats from reaching 60 votes and used their leverage to demand concessions. Repeated appeasement of these politicians has now led Democrats on the left side of the party to threaten leaving the reform coalition. The President's candle is burning at both ends, and may not last the night.
Thus, time is of the essence. Obama must win big or he will surely lose bigger.
It is time, in short, for unconventional adaptation.
There are at least two possibilities. One is the use of the reconciliation process. The other is the nuclear option that the Republicans themselves threatened (with respect to judgeships) in 2004-2005.
No doubt both the Senate's leadership and the President are considering these options right now. The only question is whether they will try to implement them. That depends on political will and political resources. It is not yet clear whether Obama has either.
Previously, the President and the Senate Leadership took reconciliation off the table, in part because President Obama wanted to try a new post-partisan form of politics. This politics has failed miserably. The Republican Party in Congress has a unified and single minded focus on his political destruction, to make health care, in the words of the Senator from South Carolina, his "Waterloo." The Republican Party's hope is that weakening Obama will increase their gains in the 2010 election.
Obama and the congressional leadership have been pushed against the wall. They must win now or be decimated politically.
It is precisely these desperate circumstances that lead to unconventional adaptations in American politics.
If Obama can route around the 60 vote requirement through unconventional adaptation, and pass health care reform, he can go to the American public for ratification of his actions in the 2010 and 2012 elections. If he cannot do this, then he puts himself at the mercy of Joe Lieberman and Ben Nelson, which means a very watered down bill that may not pass because of opposition from his left.
The question is whether this will be Obama's greatest victory or his political Waterloo.