Winning by Losing

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America. In this article, Zelinsky argues that President-elect Barack Obama should hope that Democrats do not obtain the sixty U.S. Senate seats which would enable them to shut down a Republican filibuster. A filibuster-proof Senate will make it more difficult for Obama to hold together the disparate coalition which elected him.

One important question remains from the 2008 election: Will Democrats occupy the sixty U.S. Senate seats which would enable them to shut down a Republican filibuster? Two Republican incumbents, Coleman of Minnesota and Stevens of Alaska, are still locked in tight battles for re-election. One Republican incumbent, Chambliss of Georgia, must win a run-off election in December to retain his Senate seat. Independent Senator Lieberman of Connecticut has reportedly indicated that he will join the Republican caucus if the Democrats punish him for his vocal support of Senator McCain’s presidential candidacy. Democrats now occupy fifty-seven Senate seats including Lieberman and independent Sanders of Vermont, who caucuses with the Democrats. If the closely-contested seats in Alaska, Minnesota and Georgia all go Democratic and if Lieberman stays in the Democratic caucus, the Senate Democrats would have the magic sixty votes to squelch a Republican filibuster.

One person in particular should hope that the Senate Democrats don’t reach this talismanic number: President-elect Barack Obama. A filibuster-proof Senate will make it more difficult for him to hold together the disparate coalition which elected him.

As James Madison famously noted, a majority in a large democracy invariably consists of different interests (what Madison called “factions”) assembled into an inherently unstable, tension-filled coalition. President Bush’s Republican majority included social conservatives, economic conservatives, libertarians, neo-conservatives – all of whom had some things which united them but many things which did not.

Similarly, the Obama coalition includes unions, minorities, social liberals, and economic moderates who agree on some things but not on others. Holding that majority together will require careful balancing. If the Democrats hold a sixty seat majority in the Senate, elements of the Obama coalition will credibly demand measures which other parts of that coalition oppose. In contrast, if the Republicans can sustain a filibuster, Mr. Obama can better finesse the tensions in his coalition by pinning failure on the G.O.P.

Consider, for example, the union demand that federal labor laws be changed to require recognition of unions without secret votes by the affected workers. No less a Democratic icon than Senator George McGovern has made clear that many Democrats oppose this proposal. If the Senate Democrats have the sixty votes which can stop the Republicans from filibustering this measure, the unions will demand that the new president deliver for them on this issue.

This, however, will alienate those parts of the Obama coalition who were persuaded that he is an economic moderate. If, in contrast, the Republicans can sustain a Senate filibuster, the President-elect has the perfect out: He can support the unions’ demand while counting on the Republicans to successfully filibuster and thereby save him from his commitment.

Or consider gay marriage. The voting results from California reflect the tension on this issue within the Obama coalition. As Californians voted overwhelmingly for Mr. Obama, they also voted against same-sex marriage. This result indicates the fissure between, on the one hand, those social liberals who supported Mr. Obama and favor gay marriage and, on the other, minorities and economic moderates who also supported Mr. Obama but oppose gay marriage. After their California defeat, gay marriage advocates may seek federal action to advance their cause. Mr. Obama can finesse this issue which divides his majority if he can point to the filibustering Senate Republicans as the barrier to federal recognition of gay marriage.

It may be true that to the victor belongs the spoils. But, under our system, to the victor also belongs the problem of holding together his winning coalition. And if the victor is too victorious, that problem can be severe.

The President-elect cannot openly say that he is better off with a Senate which the Republicans can successfully filibuster. But the political reality is that he is. Mr. Obama can control his unruly coalition more easily with external opposition in the form of a Republican minority capable of sustaining a Senate filibuster. President-elect Obama should want the Senate Republicans wounded, not down for the count.