Over at Balkinization, Gerard Magliocca talks about the norm of bipartisanship. He notes that supermajority rules, including the filibuster rule, operate to promote that norm.
In my own work (with John McGinnis), I have written a great deal about supermajority rules and how the bipartisanship and consensus that they promote can be essential ingredients of beneficial decisionmaking, especially when the decisions involve basic institutions such as constitutional provisions and key government programs, like Social Security or Obamacare.
While I recommend reading Gerard’s post in full, I do have questions about a portion of it. Gerard writes:
A distinctive feature of the Obama Administration is that there seems to be an extra-constitutional principle developing that says the consent of both parties is required for legitimacy. (There are some precedents for this, but let’s leave that for another post). The lack of bipartisanship is a crucial part of the criticism of the Affordable Care Act (“It was passed only with Democratic votes.”) An anti-partisan norm also explains why Chief Justice Roberts may have felt pressured to vote how he did in Sebelius (in other words, striking down such a law only with GOP votes would have been illegitimate.) Indeed, when I talk to non-lawyers, I’m struck at how important they think bipartisan agreement is as compared to how unimportant it is for lawyers. Hence my attempt in the Washington Post op-ed to translate that into a notion of “settled” law.
Despite my attraction to supermajority rules and bipartisanship in many situations, I am not sure that I think that bipartisanship is a necessary condition of legitimacy. I suppose the question here is how one defines legitimacy. Does it mean acceptance by both parties or all major groups? Or does it mean proper in some public policy or moral sense? Certainly, supermajority or bipartisan enactment is not necessary to legitimacy in the latter sense, since majority rule and enactment by one party may be acceptable in a host of circumstances. Nor is it necessary in the former sense of legitimacy, since the parties will sometimes accept laws that are passed simply by majority rule and the other party.
As for Obamacare, the Democrats who passed fundamental institutional change in the form of Obamacare without any Republican votes certainly had to expect that the Republicans would not simply accept this new program lying down. While the Democrats appeared to believe that it would be accepted and come to be popular as Social Security and other programs were, those programs were adopted with bipartisan support. So the lack of bipartisanship is part of the explanation of the continuing opposition to Obamacare, but that does not mean that any program that is enacted with only one party’s support will always be illegitimate.
Moreover, more than one party enactment was required to keep the Republicans continually opposed to Obamacare. It is also important that the program is unpopular and that its enactment led to a landslide victory in 2010 by the House Republicans. In another paper, I have argued that fundamental institutional change under our existing system depends in large part on the midterm elections — the party seeking to effect radical change must face the voters in two years and be successful. Roosevelt’s party was; Obama’s wasn’t.