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
Democrats won big last year, running on a platform that put health reform front and center. In any other advanced democracy this would have given them the mandate and the ability to make major changes. But the need for 60 votes to cut off Senate debate and end a filibuster — a requirement that appears nowhere in the Constitution, but is simply a self-imposed rule — turned what should have been a straightforward piece of legislating into a nail-biter. And it gave a handful of wavering senators extraordinary power to shape the bill.
Now consider what lies ahead. We need fundamental financial reform. We need to deal with climate change. We need to deal with our long-run budget deficit. What are the chances that we can do all that — or, I’m tempted to say, any of it — if doing anything requires 60 votes in a deeply polarized Senate?
Even assuming there are no last minute defections in the health care bill (due to the results of the House-Senate conference, for example), Obama still has a great deal ahead of him: financial regulation, climate change, energy reform-- not to mention controversial social issues like ENDA and Don't Ask Don't Tell. He has to restock the federal judiciary and finally get some of his nominees (like the head of the OLC) appointed.
It is very unlikely he can do all this if he needs 60 votes for every significant piece of legislation and every significant appointment. And make no mistake, the members of the opposition party-- the Republicans-- have made clear that they will oppose him on everything, because they believe that either he fails miserably or they do.
The American legislative system is broken. It worked passably well when the two parties were not ideologically polarized, when there were many cross party friendships and ways to deal across the aisle, and when filibusters were reserved for comparatively few situations and not threatened routinely. But those days are gone. They are not coming back anytime soon. The Republican Party understands this. The Democratic Party needs to.
What ails the system does not require a constitutional amendment (pace my dear friend Sandy Levinson). It needs a change in the Senate rules. But the Senate is jealous of its prerogatives. Senators in the middle like being able to hamstring the legislative process; Senators on the ideological fringes like to be able to issue secret holds; Senators with big egos (isn't that all of them?) like to feel important by holding up either legislation or appointments.
If the president and his party want to succeed, they will have to force the issue and find a way to get the Senate to reform its rules. Perhaps a series of crises like the one we have just been through with health care will convince the president that he needs reform of the Senate before he can take on any other reform, indeed, before he can actually finish appointing the members of his government.
This is a time of crisis in American politics: not a crisis created by danger or emergency but by the gradual decay of government institutions. Americans need a Senate that works. The President and the Democrats have an obligation to resolve this crisis, not only for themselves, but for the benefit of the later administrations of both parties.
A government that can do nothing, and is perpetually held hostage to selfish men and women, will lose legitimacy and the confidence of the public; it will weaken and decay, and, sooner or later, find itself unable to respond to crises when they occur. Then the public will demand emergency measures from the executive, acting alone without the consent of Congress, further weakening republican government. A desperate or unscrupulous president will be only too happy to comply. Either we make Congress capable and responsive, or we will eventually lose the republic.