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
After much drama and compromise, the Senate has voted to begin to debate health care reform. Not to pass an actual bill, mind you, just to agree to talk about passing a bill. It has taken so long to get to this point because it requires 60 votes even to proceed with debate. Next will come several weeks of amendments on the floor, most of which will require 60 votes. Then there will be a struggle over 60 votes to end debate. Only at that point will there be an up or down vote on the bill requiring a simple majority.
There is nothing in the Constitution that requires that the Senate must have 60 votes to pass anything. This is purely a feature of internal Senate rules, which, in turn, depend for their application on a series of customary practices of cooperation. Those rules and the customary practices that surround them have morphed in the past two decades so that it now takes 60 votes for any significant legislation even to be debated. In addition, the practice of holds has metastasized so that holds are routinely invoked to prevent nominations from reaching the floor, where, of course, it still takes 60 votes to confirm them.
These changes have arisen relatively slowly but their effect by now is clear. They have made the Senate into a place where serious, public spirited government goes to die.
We need a reform of the Senate rules immediately. Even though these rules are not constitutional, they have in effect changed the Constitution, and reforming them is perhaps the most seriously needed change in our governmental system today.
During 2004-2005, Democrats filibustered a handful of President Bush's judicial nominees for the circuit courts. Republicans responded by demanding an end to filibusters of judicial appointments and even contemplated the so-called "nuclear option" that would change the Senate rules by a simple majority vote. Eventually the Republicans backed away and a compromise was reached among the so-called Gang of 14 senators.
In hindsight, it is clear that Democrats should have responded to the Republican threat by seeing the demand for an end to the filibuster and raising it: Both sides should have voted to end all filibusters and reform the practice of holds: first, to abolish anonymous holds and second, to return them to their original purpose of giving Senators a short period of time, say one or two weeks, to think over a particular nomination.
It was an opportunity missed: If the Democrats has been willing to do this, the Republicans might have gotten Miguel Estrada on the D.C. Circuit (and perhaps even the Supreme Court instead of Samuel Alito). But this is a very small price to pay for a procedural reform that makes government possible once again.
Both the Republicans and the Democrats have recognized that the current system is dysfunctional, just at different times.
As it now stands, neither party can get much done, or get many of the Administration's nominees appointed, in part because of the combination of the Senate rules, and in part because both parties now are so deeply polarized that the most elementary forms of cooperation are now out of the question. (Not all, of course: Senators can still bring all business to a halt whenever they choose, but we have not gotten to that point yet.) Congress complains about the proliferation of White House officials who do not require Senate confirmation; but the Senate's own practices encourage this. Why should President's rely on the Senate's confirmation processes when a single dyspeptic Senator can hold up a nomination indefinitely and for any reason?
The change in the Senate's customary rules is not independent of increased polarization and noncooperation. The two feed off of each other. Individual Senators can make themselves politically important by threatening not to cooperate; as a result, they have incentives to push the envelope on customary practices that formally allow individual Senators to block action but in practice have relied on cooperation. As Senators push the envelope on obstructionist tactics, warping custom, they create a desire for payback that further polarizes the Senate, creating a climate in which forms of noncooperation that would have seemed completely inappropriate only a few decades ago now have become routine.
The Senate's rules don't simply hurt the majority party, or the President; they hurt the Senate itself. And by making one branch of government an mindless, arbitrary impediment to government, they hurt democracy itself.