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
The victory of President Obama and the Democrats in passing historic health care legislation has changed the political climate in Washington.
What has not changed is the basic structural problem that American government faces. It is a problem for the Democrats today. It will be a problem for the Republicans in the future if nothing is done about it.
The problem is the Senate.
No matter how great last weeks' victory, the Democrats still need 60 votes in the Senate to pass major new legislative initiatives. They will get little cooperation from the Republicans. We now have the equivalent of parliamentary style parties-- featuring strong party discipline by the party out of power-- in a system that is not a parliamentary democracy.
This combination is unsustainable.
The Senate got to 60 votes on health care in December. That is what made possible the use of House passage plus reconciliation in March.
But that 60 vote majority is now gone. Very soon Americans will figure out that the President and his party can achieve almost nothing. And at that point the President's recently gained aura as a winner who can do great things will dissipate.
The country needs to do a great deal more to deal with the economic crisis. There must be new financial regulations. Legislation to promote economic growth and job creation. And there are also important energy and environmental initiatives.
For each of these measures, the President will need 60 votes in the Senate.
The opposition party has given notice that it will not cooperation with the President and his party on anything. The Republicans will resist not only legislative initiatives, but also basic appointmentsto the Executive branch, as well as judicial appointments. There may be a few exceptions like the recent jobs bill, and we might possibly see minor reforms on financial regulation, but in the months leading up to the 2010 and 2012 elections, it is likely that the Republicans will double down on their policy of virtually complete intransigence.
And things will only get worse after 2010. The Democrats will have even fewer seats in the Senate because of the off year election, when the President's party usually loses seats. Given the state of the economy, it will probably lose more seats than usual. The Democrats are very unlikely to get back to 60 seats in the near future. They are still likely to have majorities in both houses. But those majorities will prove next to useless without 60 votes in the Senate.
The President and his advisers are well aware of these facts. They recognize that the glow of victory on health care will soon give way to the harsh reality that the President and his party may not be able to get anything else done of significance if they cannot do something about the Senate.
That is why the next big task the Administration must take on for itself is the reform of the Senate rules.
The President must get the Democrats in the Senate to do what they were unwilling to do in 2004 and 2005 when the Republicans were in control: reform the filibuster rules and the rules on holds.
If the Republicans are correct that the logical strategy is noncooperation, the Democrats will adopt it the next time that the Republicans gain the White House. Neither party is likely to get to 60 votes in the Senate very often, which means that without reform of Senate rules, it will be very hard for Congress to pass any important legislation in the future. The minority party, whether Republican or Democratic, will use the Senate to prevent reform in any direction, whether liberal or conservative. Congress will continue to vote appropriations to keep the government running, and will be able to make very minor adjustments. But if the President cannot persuade the Senate to reform itself, health care may be the last big reform measure passed by either party for some time.
American government cannot operate like this, especially given the many problems we face.