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
This just in from ostensibly Democratic Senator Blanche Lincoln of Arkansas:
“I am opposed to and will fight against any attempts to push through changes to the Senate health insurance reform legislation by using budget reconciliation tactics that would allow the Senate to pass a package of changes to our original bill with 51 votes," she said in a statement. "I will not accept any last-minute efforts to force changes to health insurance reform issues through budget reconciliation, and neither will Arkansans."
She is, of course, entitled to her view, as is the case with every citizen in this great country of ours. But why in the world should we care that she will huff and puff (in the name of her her constituents, a full third of whom are basically without health insurance)? If, of course, nine other other craven Democratic senators join her, that's another matter, and it will further prove that we have a basically ungovernable country, given the ability of the Republicans, together with collaborators like Sen. Lincoln, to prevent anything from happening.
Of course, given my own hobbyhorse, I don't really "blame" Sen. Lincoln, any more than I blame any other senator besides the raving narcissist Joe Lieberman. They are all behaving "rationally." Republicans learned from Teddy Kennedy the costs of helping an opposite party president achieve anything from his agenda; i.e., Teddy was as responsible as Karl Rove for electing Bush in 2004 by providing the essential cover to make No Child Left Behind and Prescription Drug coverage possible, however flawed each bill was. Why should any Republican help Obama be-relected in 2012? This is, of course, why the filibuster has become so pernicious, since, as Mark Tushnet has noted, it has almost literally nothing to do with genuine differences over policy and everything to do with destroying the ability of the president to implement any of his agenda, including even making appointments to the Executive Branch. (When, oh when, will Dawn Johnson be allowed to become head of the OLC?) We have managed to create a "parliamentary mindset" within a Madisonian separation-of-powers system.
Lincoln, I gather, is worried about a mad-dog Republican (assuming there are any other kinds these days) challenging her for re-election this year, and we know from David Mayhew that ultimately the only thing members of Congress care about is their re-election. She will do what she "has" to do, the rest of the country (and her party) be damned. But that's precisely why she shouldn't be taken seriously. If 50 Democratic Senators are willing to go through reconciliation (with VP Biden providing the 51st vote), then they have an obligation to do it. If it means sacrificing Blanche Lincoln's vote (and even threatening her re-election chances), so be it.
It is time to "blow up" the Senate, not literally (of course), but in almost every other way. James Madison was correct in 1788 to label in the 62nd Federalist the equal voting power a "lesser evil" to having no Constitution at all, just as others decided that collaborating with slavemasters was a similar "lesser evil." It is time to realize that the Senate, in its modern configuration and self-imposed rules and practices (including filibusters and holds), is, if not "equally" as illegitimate as slavery, is almost equally able to destroy the country and render us ever less a "more perfect Union." Ironically, if a minority faction of Democratic Senators were doing to a Republican majority what the Republicans are doing to Obama, then the Tea Party crowd, led by Glen Beck, would almost literally be marching on the Senate (with good reason). Democrats, however, remain supine, hoping that maybe in 2011 Joe Biden will declare the Senate not to be a continuing body. I'm all for that, but it will work if and only if the electorate has been prepared for it, which means that Democrats, led by our suddenly ineloquent President, take the lead and talk about a democratic (and not only Democratic) government fit for the 21st century and persuade ordinary Americans that, almost literally, their lives may depend on changing the way the Senate operates.