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
Joseph Fishkin, currently a fellow at the Yale Law School, sent me the following post following my own earlier critique of Arkansas Senator Blanche Lincoln, which I share with his permission:
But I think there's another powerful incentive that she and other similarly situated Democrats face: the desire to maintain their own power, through being at or near the crucial fulcrum (now apparently 60 votes!) on which bills teeter between passage and the bottomless pit of endless debate.
In that light, it seems to me hardly an accident or a surprise that Democratic Senators (and Joe Lieberman) situated at spots 55-59 in the current majority would tend to oppose any changes to the running of the Senate that would increase the importance of 50/51-vote thresholds and decrease the importance of 60-vote thresholds. As long as the 60-vote line is the big, important line, people like Lincoln, Landrieu and Nelson, along with Lieberman, Snowe and Collins, run the Senate. They are the key power players. If the Senate abolished today's absurd cloture/filibuster system and moved instead to a 50/51-vote threshold, a different (and slightly more diffuse) cast of characters would become the key power players: those Senators who are around the 51st-most-likely to support a controversial Democratic bill. Maybe Tim Johnson, Claire McCaskill, Mark Begich, etc. Had the health care bill been passed under these different rules, we would have a Senate bill that, instead of buying off Nebraska with extra federal funds, instead contained some hidden giveaway for Citigroup (Tim Johnson) or maybe a special provision for rural clinics in Alaska. It matters a lot who's at the fulcrum of power.
This creates a powerful and important obstacle to reform. Even if mainstream Democrats begin to push hard in our public discourse for changes in Senate rules, Democrats who might not be needed for a 51-vote majority but ARE needed badly for a 60-vote cloture motion face a different set of incentives. Specifically, they have incentives to shoot down proposed changes that would limit their power (thereby providing "bipartisan" cover for opposing any such changes). In a way, all this suggests to me that if you want to make the Senate a more majoritarian institution, it might, perversely, be easier to make this happen if you had a slimmer Democratic majority-- maybe only 52 or 53 seats. Under those conditions, Lincoln, Landrieu, Nelson, and Lieberman would be at the fulcrum of a majority vote, while the 60-vote threshold would make the fulcrum the seventh, eighth, or ninth most moderate Republicans. Then perhaps Blanche Lincoln et al. could be persuaded that the cloture/filibuster system is an antidemocratic Frankenstein's monster that needs to die.
Fishkin raises a lot of obviously interesting points, including the implicit argument, which I suspect is true, that even the most conservative Democrat (Ben Nelson) is to the left of the most moderate (there are no "liberal") Republicans (presumably Susan Collins or Olympia Snowe). So even Nelson, presumably, has no reason to wish any of his Republican colleagues the power to block legislation.
I'd add one further observation. It is an obvious, but important, truth that the more votes that are required, the more power that gives the marginal senator. This also means, by definition, that we move ever farther away from the vaunted "median voter" model of politics by giving inordinate power to the most conservative Democrat or, were the roles switched, the most liberal Republican, either of whom can extort rents that would be unavailable under a different voting scheme. I am put in mind of the Israeli Knesset, where small minority parties of ultra-Orthodox Jews can extort (and I use the word advisedly) all sorts of concessions by providing the vital 60th vote to construct a government. (They are effective extortionists because they generally care about only two issues, lining the pockets of their fellow sectarians and maintaining the hegemony of the Orthodox over such institutions as marriage and declaring "who is a Jew, unlike, one presumes, Sen. Nelson or Sen. Lincoln, who I presume have views about a wide range of issues of interest to their constituents and their own conceptions of what would best serve America.) But just imagine how much worse the Israeli system would be if it required, say, a 60% vote.
In any case, I'm absolutely confident that no sane constitutional designers would look to either the United States or to Israel for models of how to design a well-functioning political order for the 21st century.