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
Abbe Gluck abbe.gluck 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 msl46 at law.georgetown.edu
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
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The "constitutional" impediment to passing health care reform is the 60 vote requirement for passing bills in the Senate. I use the term in quotes because it is merely a matter of internal Senate rules and could be changed at any time. But it is "constitutional" in another sense because it has come to be understood as a basic rule of politics. In fact the regular use of the threat of the filibuster routinely to require 60 votes for any kind of legislation is relatively recent, perhaps less than two decades old.
Going around the filibuster in this way will anger Republicans because it prevents their veto. It will especially anger moderate Republicans like Olympia Snowe because it makes them far less powerful because far less necessary. And it will even discomfit moderate Democrats because their power is also reduced, and because the 60 vote requirement gives them political cover to oppose legislation (when supporting it might create political problems in their states) when they know moderate Republicans will also oppose it.
Finally, routing around the filibuster will weaken the power of small state Senators. Small state senators are advantaged in the Senate anyway, so a supermajority requirement simply gives them an incremental advantage over what they already enjoy.
It is likely that the reason why the filibuster has metastasized from a rarely invoked possibility into a routine and serious constitutional impediment is that it benefits so many important groups: minority party senators (of whichever party happens to be in the minority), moderates of both parties, and small state senators. Increased political polarization between the parties in Congress probably also has contributed to the current predicament. (Note that although political polarization has reduced the number of Republican moderates, it has also made the remaining moderates of both parties even more powerful in producing or blocking 60 vote majorities when the parties are closely competitive.)
During the first George W. Bush the Republicans, then in control, contemplated getting rid of the filibuster in order to stock the lower federal courts with particular conservative candidates. Senate Majority leader Bill Frist argued for abolishing it only with respect to judicial appointments. Democrats opposed the idea then, but probably now wish they had provoked the Republicans not only to support Frist's proposal, but to abolish filibusters generally.
The fight over health care reform may give Democrats sufficient incentives to set a precedent that weakens the filibuster (without getting rid of it) through a more regular use of the reconciliation process. This will meet with considerable resistance for the reasons stated above, but if it is successful, it may create a more regularly used method of going around the filibuster as it currently exists. This would be a constitutional change of some significance.
Routing around the filibuster might not be a "constitutional moment" in Bruce Ackerman's sense, because one might argue that the Democrats have not yet won a succession of strong majorities in Congress as they did during the New Deal, representing overwhelming popular support for change. Whether or not it is a constitutional moment in Ackeman's sense, it would still be an important constitutional reform. In this sense, we face a constitutional moment of potential constitutional change that would have long-lasting consequences.
Such reforms rarely happen simply out of an interest in good government. Rather, they occur because mobilized majorities want to get a particular substantive issue resolved in a particular way, and they take a position on structural features of the Constitution in order to achieve their reforms. The kinds of reforms they propose are often calibrated to achieve a short term effect but often have long term-consequences, both substantively and procedurally.
In hindsight, I believe that the Democrats should have agreed to get rid of the filibuster in 2003 and 2004. It was very hard for them to do so because they did not believe they would be in the majority for many years. Perhaps Miguel Estrada would have gotten on the D.C. Circuit and perhaps he might even have become the first Latino Supreme Court Justice. But so what? Democrats got Sam Alito instead. It's not clear why standing up for the filibuster got them very much.
There are far better reasons for the Republicans to resist weakening the 60 vote requirement now than the Democrats had in 2003. If the Democrats pass health care reform, this may disadvantage the Republicans for a decade. This is true even though the Republicans will eventually get behind health care reform just as they eventually learned to live with the New Deal, the welfare state and Medicare, indeed, even turning this expansion of government powers and programs to their own political purposes in later years. Even so, in the long run, the Republicans will come back to power, and they may realize once again that the filibuster, as it has developed in recent years is a Frankenstein monster that undermines democratic self-government. If we are to have a constitutional moment that ends (or at least weakens) the filibuster, it should come as soon as possible. Posted
by JB [link]