Legal Commentary

Jack Balkin (among several other commentators) argues that we are in the midst of an emerging constitutional crisis, over the rules and norms of the Senate and the uses to which they are being put.* The routine filibuster--in which the GOP speaks, acts, and is perceived as controlling the Senate by having 41 out of 100 seats--was the start. The latest is Sen. Richard Shelby (AL) placing holds on 80 executive-branch nominations unless several Alabama-earmarked projects are restored in the budget. Another is the ongoing talk about using reconciliation (not subject to filibuster) to make changes to the Senate bill once passed by the House (what some bloggers are calling the "Pass.The.Damn.Bill" Campaign) and the somewhat Orwellian response that a simple-majoritarian process is undemocratic.

I agree that we are in an unprecedented and precarious spot that may be something of a tipping point. But it is notable that this crisis is entirely procedural and I wonder how that may cause it play out differently.

The current crisis centers entirely around the efficacy of the lawmaking process, unmoored to any particular substantive issue. I do not believe any previous constitutional moment has been procedure-only crisis. There always has been some particular substantive hook (slavery, the National Bank, the New Deal, Brown and desegregation, maybe the 2000 Election if we get dramatic) underlying prior crises, even those that played out in a procedural context and raised procedural questions. The criticisms or praise of the process typically depended on where one stood on the underlying substantive issue. But the crisis here (from one perspective) is that the Senate no longer can function as a lawmaking body and we must change the Senate's rules (its procedures), immediately perhaps, or the constitutional system for making law and policy will fail. It is not tied to any one substantive issue. I suppose we could say that health care reform is the flashpoint for all this, but I am pretty sure we would be having the same conversation over any major Democratic legislative initiative.

A constitutional crisis, it seems to me, typically entails both high stakes and an engaged, informed, and informable public. We have the former here; if the Senate cannot function because of a de facto 3/5 supermajority requirement for all legislative activity and a minority that benefits and is rewarded politically from a stalemate, governance is impossible. But I am not sure how one engages or informs the public, which is not interested in or attuned to procedure. The public cares about substantive issues and results (particularly those policy outcomes they believe will make their own lives better), not Senate rules of procedure. And they do not necessarily see (or care) that dealing with the latter enables the majority to deal with the former. The only argument is the one from (majoritarian) democracy--the Republicans won't allow a simple up-or-down vote on these important substantive matters. But the Republicans tried the same thing over Democratic filibusters of President Bush's nominees back in 2005, without gaining any real public traction.

The procedural nature of the crisis affects the response to, and likely the outcome of, the constitutional showdown. A showdown over Senate procedure--whether on Shelby's holds, reconciliation, the routine filibuster, or even the esoterica of the Senate as continuing body--will not play with the public, which likely will just be angered that the Senate and the President are wasting time with "technicalities" and will take it out on the President and the majority. So we have an urgent situation from a constitutional standpoint, but over a subject that likely will not generate public heat or public support.

Balkin and Gerard Magliocca both have argued that for Obama to be a realigning/transformative/reconstructive president, he must confront and overcome pre-existing political structures and assumptions, usually by playing constitutional hardball and rallying the public behind that hardball. But if the hardball is solely over the structure and rules of the Senate per se, unattached to the wisdom of any particular policy, I am not sure the public will show the patience or interest for that game to play out without simply turning on Obama and the Democrats before they are able to push the showdown to a "transformative" resolution through a dramatic change in Senate rules that will, in turn, enable them to actually govern.

Actually, it may be worse than that for Democrats. The only procedural narrative that ever really resonates with the public is that it is unfair to change rules mid-game. Unfortunately, that is what much of the public will perceive is going on if the Democrats do go down this route.

• And I suppose everyone is just channeling Sandy Levinson, who has been arguing for several years that the Senate is a democratically abhorrent institution that undermines everything the federal government can or wants to do.