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Why not hang for a sheep?

By Jack M. Balkin

Jack endorses Paul Krugman's altogether correct call for a national movement to change the operating rules of the Senate to limit, if not outright eliminate, the filibuster. I, of course, concur, though, ironically, perhaps the most defensible occasion for a filibuster is with regard to lifetime judicial appointments and the potential packing of the judiciary with people committed to the President's political/constitutional agenda. Perhaps I shouldn't admit that in a situation where mad-dog Republicans are likely to froth at Obama's next nomination, whoever it might be, especially in the unlikely event that the next vacancy will be created by the necessity to replace one of the current conservative Republican majority. But, I agree, better no filibuster at all than the system we have now.

That being said, I think the odds of modifying the Senate rules are close to 0%, unless the Democrats are really willing to confront the oldest continuing myth of the Senate, which is that it is a continuing body whose rules can be amended only in accordance with pre-existing rules, which, as my previous post indicated, requires a 2/3 vote. It is literally inconceivable that Republicans would acquiesce in such a move while the Democrats hold power or, frankly, that Democrats would acquiesce if the situation were reversed. Now perhaps Joe Biden will rule that rules can be changed by a straight majority vote. I still would be extremely doubtful if 50 Democrats would vote for that, simply because they can envision being back in the minority when they will want to torpedo Republican legislation. (After all, the Senate can't even cure the absolutely pernicious custom of "holds," which allow single senatorial tyrants to tie up nominations, presumably because each senator envisions the possibility that he/she will want to exercise that bit of petty tyranny him/herself.)

So, if one is going to embark on fundamental change, then why not try to steal the sheep instead of settling for the lamb? You'll hang in either case if caught. So why should Jack be so insistent on confining his critique to the filibuster, and calling only for its elimination? To be sure, even more fundamental change is unlikely to occur, but confronting the deeper structural problems inflicted on us in 1787 because of the felt necessity to submit to the extortionate demands of Delaware and other small states would generate a more cogent conversation than one focusing only on the filibuster, as important as that might be.

Consider, for example, today's story spelling out the location-specific benefits buried in the Senate bill. ?'This process is not legislation,' said Senator Tom Coburn, Republican of Oklahoma, referring to a variety of special-interest provisions. 'This process is corruption. It?s a shame the only way we can come to a consensus in this country is to buy votes.'? Is he really wrong? Isn't this exemplification of the kind of "factionalism" that Madison was so worried about in Federalist 10 (and which he absolutely wrongly believed would be cured by elite representative government)?

And look at the particular skews of the particular provisions, which seem overwhelmingly to benefit small states, including Nebraska and the whole panoply of upper-Midwest states whose entire population doesn't come close to equalling any of half-dozen largest American states. Obama adviser David Axelrod "said the provisions benefiting specific states, like Nebraska, and favored constituencies were a natural part of the legislative process.
'Every senator uses whatever leverage they have to help their states,? Mr. Axelrod said on the CNN program ?State of the Union.? ?That?s the way it has been. That?s the way it will always be.'? He is right, of course, but not all senators are created equal. The beneficiaries tend to be small-state senators not because they are necessarily better bargainers, but as much, frankly, because they can be bought off so much more cheaply than a large-state senator, who has millions rather than simply a few hundred thousand constituents to worry about. According to the Times, "[a]nother item in the package would increase Medicare payments to hospitals and doctors in any state where at least 50 percent of the counties are ?frontier counties,? defined as those having a population density less than six people per square mile. And which are the lucky states? The bill gives no clue. But the Congressional Budget Office has determined that Montana, North Dakota, South Dakota, Utah and Wyoming meet the criteria." How nice!

To be sure, Pennsylvania also seems to have received one of the "earmarks," no doubt to assuage Sen. Casey in his willingness to vote for a bill that leaves a little bit of daylight (though not much) for insurance that will cover abortions, and fighting Joe Lieberman was able to get something for a Connecticut hospital. But what's really interesting is that, at least according to the story, there are no particular payoffs to California, New York, Florida, Texas, or Illinois.

Perhaps getting rid of the filibuster would lessen such corruption, but it would merely transfer the bargaining power to the 50th instead of the 60th senator. And you could bet the ranch, if you had one, that small states would be left with lots of both lambs and sheep because of the "affirmative action" that is built into the system for the residents of such states (many of whom, no doubt, view themselves as ruggedly independent sorts who oppose "affirmative action" for other groups). The Brits ultimately were able to defang both their rotten-borough House of Commons and then the House of Lords, though it took many decades to do so. Getting rid of the filibuster in its present form is an essential first step in a similar American defanging. But it is only a first step. Sooner or later, the Constitution itself will have to be confronted.

Full post as published by Balkinization on December 21, 2009 (boomark / email).