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
President Obama seems to have gotten the message that he needs to strike a tougher tone than he did in his limp response after the bad news from Massachusetts. His latest speech, which used the word “fight” more than 20 times, is a good sign.
But none of that matters if the Republicans, who are determined to let him accomplish nothing, have a veto over any legislation via the filibuster. He can fight all he likes, but he will lose, and he’ll keep losing for the rest of his Presidency.
It’s time for him to demand of Democratic Senators that they abolish the Senate filibuster. If he can get 50 of them to agree, then the game will change fundamentally. In a world in which the Senate can act with a simple majority of votes – and remember, that’s the way America was governed for most of its history - the Democrats will have firm control over both houses of Congress, and will be able to pass health care, and address global warming and financial reform as well. Obama will be one of the transformative presidents.
But unless the filibuster is abolished, none of that will happen. If the Senate rules are unchanged, it’s unlikely that there will be any health care bill at all, these other problems will go unaddressed as well, and Obama can look forward to being a minor president in a holding pattern, keeping the Presidential seat warm to make sure a Republican doesn’t get it.
If there ever were a time for Obama to throw all of his personal influence behind a single political measure, this is it.
Democratic Senators love the personal power the filibuster gives them, of course. But they also like the power that comes with being in a majority that is actually capable of enacting legislation. It’s time for Obama to tell them that they have to choose.