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Connecting the Dots on Small State Senators and the Constitution

By Jack M. Balkin

Sandy's last post on health care reform and the Senate points out that the holdup on health care reform (and many other issues, including confirmation of several of President Obama's nominations) stems from the combination of (1) malapportionment in the Senate (each state gets two votes regardless of population) and (2) Senate rules that require 60 votes to a void a filibuster (as well as related Senate rules that allow Senators to hold nominations or otherwise slow down the legislative process).

It's worth noting that only the first of these features is really a defect of the hardwired Constitution. The biggest obstacle is the filibuster, and it is a matter of Senate Rules, which can be changed without a constitutional amendment. Note, for example, that one can already get around these rules through the reconciliation process.

So much of what Sandy complains about can be achieved without a constitutional amendment, much less a new constitutional convention. That is true of many other issues that Sandy finds currently worrisome, for example, the current scope of Presidential power.

I do not wish to understate the importance of Sandy's larger point: Some features of our current system truly are hardwired: two examples are the Presidential veto, and the malapportionment of the Senate. But it is not clear to me that what is really holding up progressive reforms that both Sandy and I support is the hardwired Constitution. Rather, it is a series of constitutional constructions that can be changed by the political branches.

One last point about small state Senators. In part because small state Senators have fewer local constituents to keep happy, they are better able to spend time fighting for leadership positions in the Senate and amassing pork for their constituents. For the same reason, however, they are also more likely-- at the margins-- to be influenced by powerful national interest groups outside their state. (To be sure, all Senators, by virtue of their positions, are so influenced.). So it should come as no surprise that when important reform legislation is being considered, the political effect of small state Senators is magnified. They usually end up being either key votes for or key obstacles to reform. However, this is true both of reforms that liberals would like (and conservatives want to block) and reforms that conservatives would like (and liberals want to block).

The power of small state Senators (and the disproportionate effects of powerful national interest groups on these Senators) would be relieved to a significant degree by changing the Senate's internal rules, for example, by getting rid of the 60 vote rule (reducing it to 55, say) and getting rid of various holds. Many small state Senators will resist any such moves (because it makes them less important), and their ability to do so is enhanced by a hardwired feature: the malapportionment of the Senate. But this does not mean that reform cannot be achieved. Equally important, reform does not require a constitutional amendment. Such a reform would be "constitutional" in an important sense-- it would change basic rules of politics. But not all "constitutional" reforms require Article V constitutional amendments or constitutional conventions.

Full post as published by Balkinization on June 09, 2009 (boomark / email).