Via Greg Sargent, here’s a summary of the reforms:

Clear Path to Debate: Eliminate the Filibuster on Motions to Proceed

Makes motions to proceed not subject to a filibuster, but provides for two hours of debate. This proposal has had bipartisan support for decades and is often mentioned as a way to end the abuse of holds.

Eliminates Secret Holds

Prohibits one Senator from objecting on behalf of another, unless he or she discloses the name of the senator with the objection. This is a simple solution to address a longstanding problem.

Right to Amend: Guarantees Consideration of Amendments for both Majority and Minority

Protects the rights of the minority to offer amendments following cloture filing, provided the amendments are germane and have been filed in a timely manner.

This provision addresses comments of Republicans at last year’s Rules Committee hearings. Each time Democrats raised concerns about filibusters on motions to proceed, Republicans responded that it was their only recourse because the Majority Leader fills the amendment tree and prevents them from offering amendments. Our resolution provides a simple solution — it guarantees the minority the right to offer germane amendments.

Talking Filibuster: Ensures Real Debate

Following a failed cloture vote, Senators opposed to proceeding to final passage will be required to continue debate as long as the subject of the cloture vote or an amendment, motion, point of order, or other related matter is the pending business.

Expedite Nominations: Reduce Post-Cloture Time

Provides for two hours of post-cloture debate time for nominees. Post cloture time is meant for debating and voting on amendments — something that is not possible on nominations. Instead, the minority now requires the Senate use this time simply to prevent it from moving on to other business.

Jonathan Bernstein is thoroughly underwhelmed:

The specific details . . . promise no significant change from the newly-instituted 60 vote Senate.

Secret holds? If holds are a problem (and in general I’m only really concerned about them on nominations), then the problem is the hold itself, not secrecy. Making holds public won’t change anything. There’s also a strange, from my point of view, emphasis on forcing “live” filibusters, which (without further rules changes) will also change nothing. Minority party Senators are, in most cases, perfectly happy to be identified with their opposition to what the majority wants. Assuming otherwise, as these reforms seem to do, is a real misunderstanding.

The reform proposal avowedly does not change the 60-vote cloture threshhold. Even under reforms much more aggressive than these, an intense and determined minority would retain the ability to obstruct the majority’s agenda. It is a big disappointment for reformers that the Udall proposal does not include a requirement, such as was included in previously floated proposals, that the minority must continually occupy the floor with some minimum number of Senators (say, twenty) to stave off cloture.

But even some modest reforms might influence behavior on the margins. At least it is possible that Senators in the minority will find it personally inconvenient to bear the opportunity cost of occupying the floor, which might in turn cut down on obstruction of trivial matters. As David Waldman writes:

If the price is high enough, it can discourage the obstructionist strategy of blanket filibusters on nearly all legislation just to waste time by shifting the burden a filibuster places onto the Senators who want to conduct one, rather than putting it on those who’d seek to stop it.

The problem is, the price just isn’t high enough under the Udall resolution. It is not a great burden for the minority if only one Senator at a time must be on the floor to keep the filibuster alive. But the cost for the majority in terms of lost time is much greater. Not to mention the fact that the minority will always win in the end.

As for ending secret holds, it might be the case that making individual Senators own up to their holds would impose some extra cost on them in the form of being increasingly pestered by journalists, constituents, and colleagues over particularly obnoxious and unjustifiable holds. But requiring Senators to go on the record with holds isn’t very likely to curtail their use. After all, it is already the case that someone who is a U.S. Senator must stand up and publicly object in order to place a hold on proceedings. Ultimately, the problem for this kind of limited reform, it seems, is that the obstructionists are not ashamed of their obstruction. They are proud of it. And they probably won’t get any flak from their supporters for it, even if they have to dodge a few more annoying questions than before.

It seems to me that the package has two purposes: (1) to “prove the concept” that reform is possible by establishing a precedent that the majority may change the rules and thereby implicitly threatening the minority that, if they continue with blanket obstructionism, the majority may respond by ending the filibuster altogether; and (2) to test whether changing marginal incentives on individual Senators’ behavior has any effect on the degree of minority obstruction. If it does, then that would point the way to future rule changes that could preserve the filibuster as a last resort for intense and unified minorities, while deprecating it as a tool of ordinary obstruction and delay.

I wouldn’t go so far as to say I think it will work. But I do think it’s reasonable to try.

Time to wrap this thing up. In this final post, I want to mention a couple of options for reforming the filibuster which could be achieved with 60 votes in the Senate. Not much here to discuss, really, but these 60-vote options deserve mention as potential routes for reform. They could well end up serving as the mechanism for a compromise—especially if under pressure of a credible nuclear threat—such as the one reached in 1975 (see previous post), when the cloture requirement was lowered to 3/5 (from 2/3, except for cloture on amendments to the rules, which still requires 2/3).

Standing Orders and Rulemaking Statutes

Two mechanisms which could create exceptions to Rule XXII and effectively modify cloture requirements are worthy of note: rulemaking statutes and standing orders.

A rulemaking statute is a statute which, like any other statute, is passed by both houses, and which establishes special procedures for certain congressional business. Rulemaking statutes are typically used to “fast track” certain priority legislation which does not get sufficiently timely consideration under the “regular order.” The best example is the Congressional Budget Act of 1974, which created the budget reconciliation process and its famous exemption from the Senate’s 60-vote cloture rule.

To tell you about standing orders, here’s the Congressional Research Service:

Standing orders are regulations that have the force and effect of a rule, but are not contained in Standing Rules. Senate standing orders continue in force until they are altered or repealed, and may be adopted by simple resolution or by unanimous consent. Existing Senate standing orders govern a wide range of chamber business from the simple (the annual public reading of George Washington’s farewell address) to the complex (the creation and operation of the Senate Committees on Ethics and Intelligence). Senate standing orders are printed in a specific section of the Senate Manual.

So…standing orders are less formal than rules, but have the same effect as rules. What are the potential advantages of rulemaking statutes or standing orders for reforming cloture? CRS is glad we asked:

A potential advantage of using a rulemaking statute or standing order over some other parliamentary approaches to limiting consideration is that invoking cloture on these measures would require the votes of only three-fifths’ of those chosen and sworn (60 Senators if there are no vacancies), rather than the two-thirds present and voting (67, if all Senators vote) needed to get cloture on amendments to the Senate’s standing rules. The higher threshold for invoking cloture on rules changes is understood to apply only to direct amendments to the Senate’s Standing Rules, not to other measures having the effect of rules. In addition, in contrast to proposals to amend standing rules, consideration of a bill creating an expedited procedure statute or of a simple resolution creating a standing order would not require a day’s written notice.

CRS also notes that this approach would provide more flexibility than the nuclear option, which could only be launched under fairly specific parliamentary conditions. A rulemaking statute or standing order could also be targeted at, say, presidential nominations. The nuclear option, on the other hand, would probably be impossible to contain in such a targeted area—the precedent established for dodging Rule XXII cloture would inevitably be expanded into other contexts. At which point, the republic would be lost and all hell would break loose, as majority rule was visited upon the United States Senate.

Well, that does it for filibuster reformology. I’m planning to post some links to resources, including those I’ve relied on in this series, soon.

We need to tie up some loose nukes from last time before moving on to the 60-vote options for filibuster reform in the final post. Here’s a quick summary of the important steps in the 51-vote scenario, the launch sequence, as it were, for the nuclear option:

1. Majority moves to break with Senate rule or precedent (e.g., by raising a point of order that the supermajority-cloture requirement is unconstitutional, or that further debate on a certain pending measure would be “dilatory”).
2. Chair (VP or president pro tem) breaks with precedent and issues ruling to close debate on the pending measure.
3. Minority moves to appeal the chair’s ruling; the question is presented on appeal to the whole Senate; debate begins on the appeal.
4. Majority moves to table the appeal from the chair (a.k.a., moves the furniture). No debate; straight to up-or-down vote on tabling motion.
5. Majority votes to table the appeal, upholding the ruling of the chair, ending the filibuster.
6. Majority proceeds to up-or-down vote on pending measure, setting new precedent for breaking filibusters with a simple majority of senators.

Last time I mentioned that there could be many variants on this basic design, and that the key to all of them was in step 4, the motion to table the appeal from the chair, since that motion is not debatable and is decided by simple majority. Now I’ll say a little about a few of the variants.

The Constitutional Option

In my estimation, most of the distinctions between 51-vote variants do not make all that much difference. If you understand how moving the furniture (tabling the appeal from the chair) determines the result, you can see that it will work in pretty much any context where the necessary ingredients are operative. It really boils down to the intensity of the majority’s commitment to ending the filibuster era. But that’s strategy talk—you can read about that elsewhere.

So what about those distinctions? The phrase “constitutional option” is sometimes used interchangeably with “nuclear option,” and sometimes distinguished from it. I think the phrase “constitutional option” is best reserved for a scenario in which a majority of senators invokes the Constitution to claim its right to change the rules or depart from an established Senate precedent, or to claim that 60-vote cloture is unconstitutional.

Raising the constitutional question has some (relatively slight) consequences for procedure. According to the Congressional Research Service (pdf), “Under Senate precedents, the presiding officer may not rule on a constitutional point of order and instead must submit the point of order to the full Senate for a vote.” Thus the constitutional question could hop over step #2 in the launch sequence, straight into the filibuster-loving arms of the full Senate, before the furniture is laid out for the pivotal event, the tabling motion. The only thing to table at this stage would be the majority’s own motion. You want to table the other team’s motion, not your own.¹

But even so, it would be relatively simple for the majority to rearrange the furniture in their favor. The Chair would only need to break two rules/precedents instead of one. The Chair could rule that the supermajority-cloture rule did not apply to consideration of constitutional points of order; or that in this narrow context, the Chair was permitted to decide the constitutional question. The minority could appeal either ruling, but the appeal could then be tabled by the majority. At that point, we’d be back to step #1, and the Chair could decide the actual constitutional question, followed by appeal, followed by tabling. Isn’t this fun?

The Opening Day Gambit

The “opening day” 51-vote variant is probably now the most actively discussed scenario for filibuster reform. Maybe that’s because there have been several such attempts in Senate history. Of course, they’ve all failed. Reformers came really close in 1975, tabling a point of order that had been raised against a proposal for majority cloture. But—as part of the deal that lowered the cloture requirement to 3/5—it reversed itself on reconsideration the following week and never voted on the proposal for majority cloture.

There is some dispute about whether this sequence of events somehow established a precedent in favor of majority cloture, even though the tabling vote that implicitly supported the majority cloture position was reversed. So…that’s an implicit precedent, explicitly reversed. Seems pretty weak to me. I suppose it creates room for argument, which creates some political cover for the majority. But ultimately, there is not, and could not be, any precedent in the world sanctified enough to protect the majority from accusations that it is betraying the republic.

Strategic considerations aside, the whole rationale behind the opening day gambit is a bit contrived. Its proponents argue that, on the first legislative day of a new term of Congress, the Standing Rules of the Senate have no effect, because they have not been adopted by the new majority. And so the new majority (or an old majority reconstituted) could adopt new Standing Rules, including reformed cloture rules.

The problem is, it has never been Senate practice to re-adopt its rules with every new term. Rather, the Senate has conducted itself as a continuous body, just as it was designed to do. And, though I don’t think it would help to point this out in any kind of formal setting, the whole reason they’re called “Standing Rules” is exactly this. They don’t expire at the end of the term. See also Rule V (“The rules of the Senate shall continue from one Congress to the next Congress unless they are changed as provided in these rules.”).

In my estimation, there’s nothing constitutionally special about opening day in the Senate. But it’s as good as any other day, and I don’t doubt there are good strategic reasons for reformers to act on it—but that’s a matter for another blog.

1. As usual, there are different ways this could shake out. E.g., the minority might be the one to raise the constitutional point of order. There are several important precedents from Senate history that I’ve decided not to get into. They’re related succinctly in this CRS report (pdf), though, and I’ll discuss their significance another time, if anyone asks about them in comments.

Now we’ll start looking at ways around Rule XXII‘s 67-vote cloture requirement for amendments to the rules. A second option (or family of options) for filibuster reform could be achieved with the support of a simple majority—51 votes if all senators are present—and the Senate’s presiding officer.¹ This option has attained almost mythical status in the political culture. It is radical, obscure, and conspiratorial, and it goes by many names. Most notoriously, due to its power and potential for devastating fallout, it has been called the “nuclear option.”

There are many variants of the 51-vote option. Some of them vary by the grounds on which they are justified (i.e., whether on constitutional or other grounds); some vary by their timing (i.e., opening day or mid-session); and some vary by their scope (whether they affect only judicial nominations or all Senate business). See CRS (pdf) for more background. I’ll have a few things to say about some of these variants, and the distinctions they rest on, in the next post.

So there are many variants and many contexts in which they may develop. But there is something common to them all: a single, distinctive procedural device that shows up in every scenario and that, in every scenario, is the decisive step in breaking with established Senate practice. That device is called “tabling the appeal from the chair,” and once you’ve sufficiently rearranged your mental furniture to grasp its significance, you will understand the nuclear option and all its kin.

When a piece of legislative business is tabled, it is set aside, removed from present consideration—in a word, dead. If an appeal of a ruling by the chair is tabled, then the chair’s ruling stands. 

So, let’s say the presiding officer (the chair) makes a ruling that somehow breaks with Senate rules or precedent—e.g., by declaring the 60-vote cloture requirement unconstitutional. Generally, breaking with precedent is not something the chair is supposed to do, and some senator is sure to appeal the ruling (“appeal from the chair”). To appeal a ruling in the Senate is to ask that the question be put to the whole Senate for a vote. And in the United States Senate, if there’s a vote, there’s nearly always debate; and if there’s debate, there’s more debate. And more debate, and more debate, until cloture. And so it might seem that we are stuck: even if the chair ruled to strike down the 60-vote cloture requirement, you’d still need 60 votes to uphold the ruling, right? Well, no, actually. Not necessarily. Enter the motion to table the appeal from the chair—or, as I call it, moving the furniture. If the majority tables the appeal, the appeal is dead, and the chair’s ruling stands. “But,” you’re probably thinking, “can’t the minority filibuster the tabling motion, too?” Good question. No! It can’t! And this is why the furniture motion is so important: it is (a) not debatable and (b) decided by simple majority.² And so, with a favorable ruling from the presiding officer, a simple majority of senators can have its way, even when breaking with the rules, precedents, and traditions of the Senate.

Let’s walk through it again, with some contextual detail—though, remember, there are many variants that work in different contexts, so the detail here is just illustrative, not limiting.

Imagine that Democratic Majority Leader Harry Reid has brought the Kerry-Lieberman climate bill to the floor, debate has dragged on for a month, and Reid files for cloture (by submitting a petition signed by 16 senators). At the beginning of the second day after Reid files the petition, pursuant to Rule XXII, the Senate votes on the cloture motion. The motion gets just 53 votes, 7 shy of the 60 needed to close debate. Debate resumes, and Vice President Biden takes the chair to preside. Biden recognizes some Democratic senator, John Kerry perhaps, who raises a point of order, asking that further debate on the bill be ruled “dilatory,” and that the bill should proceed to a final vote in spite of the failure to invoke cloture. Biden agrees and rules that the Senate should proceed to a final vote on the bill. Minority Leader Mitch McConnell, shocked that the majority would even consider such skullduggery, objects. McConnell appeals the chair’s ruling to the whole Senate. The question is then put before the Senate, which begins debate on Biden’s ruling. Republicans (rightly) argue that the ruling departs from precedent. And what do Democrats do? Move the furniture. Some Democratic senator, Joe Lieberman perhaps (you never know!), moves to lay the appeal on the table. Without debate, the Senate votes on Lieberman’s motion, and the appeal is tabled by a vote of 53-47. Biden’s ruling stands, and the Senate proceeds without further debate to a vote on the Kerry-Lieberman bill, which passes, saving the planet.

So that’s one variant of the 51-vote option. What’s the key maneuver? Moving the furniture—tabling the appeal from the chair. What’s so special about that? You can’t debate the furniture. So put your chairs on the table and go home. The game’s over.

1. The presiding officer could be the president pro tempore or the president of the Senate, a.k.a. the Vice President of the United States. It is likely that the Vice President would have to be on board for the whole scheme to work.
2. See Rule XXII, paragraph 1 (motion to lay on the table “shall be decided without debate.”).

To filibuster is to insist that a bill or nomination needs 60 votes to pass.  A filibuster is a requirement that a bill or nomination takes 60 votes to pass.

The term filibuster predates the cloture rule from which the 60-vote requirement derives. But since the advent of the cloture rule, adopted in 1917¹, it has become possible to divide filibusters into two categories: the unbreakable, Big-F, full monty Filibuster with enough support to survive cloture; and the mere hindrance, little-f, small fry filibustering, in which the opposition knows it cannot survive cloture, but impedes the bill anyway with whatever parliamentary tactics are available.

Bernstein asks us to embrace the Big F as The Filibuster proper; the rest is just “stalling” or “delay.” But at the same time, Bernstein says, the distinction is not about whether the obstructionists actually succeed in blocking the bill or nomination. A filibuster can fail, after all, if it can’t garner 41 votes. “The decision that matters—the one that makes it a filibuster—is the decision to try to find 41 votes to block the bill or nomination,” he writes.

The sad fact is, the Senate minority is basically in perpetual pursuit of those 41 votes. And it’s a rare event for a senator to make a distinction between merely opposing a measure, and filibustering it. All of which means we are living in…the Era of Permanent Filibuster.

1. Senate Rule 22, adopted in 1917, established a 2/3 majority requirement for ending debate. The rule was modified in 1975 to require just 3/5, or 60 of 100.

Okay, so I get the tenor of the metaphor, but the vehicle baffles me. How is this supposed to work exactly? You pour the coffee or tea out of your cup onto the saucer. Hmmm…already foreseeing problems. Ever tried to pour just a little bit of liquid from a full cup without a spout? Well, anyway, imagine you pull that off. Then what? You’ve got a saucer full of drink. Now where do you put the cup? Okay, say you have two saucers. You put the cup down on saucer no. 2, the dry one.

Time for a drink! But, well, er…the beverage—now admittedly cooler—is in a shallow pool on saucer no. 1. Seems like it might be difficult to pick up the saucer and bring it slowly to your lips for a sip without spillage. And surely President Washington will be horrified if you lean over and stick your face in the saucer. This is highly awkward. Moreover, Rule #96 of Washington’s forbidding Rules of Civility & Decent Behaviour in Company and Conversation: a Book of Etiquette is clearly analogous here:

96th It’s unbecoming to Stoop much to ones Meat[.] Keep your Fingers clean & when foul wipe them on a Corner of your Table Napkin.

But say the father of our country is understanding of this predicament, and the bend-over maneuver is sanctioned by the ROCDB in these narrow circumstances. What’s the plan now? Slurp? Oh no. Definitely not. Rule #99:

99th Drink not too leisurely nor yet too hastily. Before and after Drinking wipe your Lips breath not then or Ever with too Great a Noise, for its uncivil [sic].

Lap it up with your tongue? Not while Rule #16 is in effect:

16th Do not Puff up the Cheeks, Loll not out the tongue rub the Hands, or beard, thrust out the lips, or bite them or keep the Lips too open or too Close. [sic]

Loll not out the tongue, you see. We’re swiftly running out of options here, Mr. President. Well, it turns out, according to the Memorial Hall Museum Online, there was a technological solution: deep saucers.

In the 1770′s and 1780′s it became fashionable to drink tea from the saucer, perhaps to allow the tea to cool. One consistent characteristic of tea wares at that time was the deep saucer, borrowed from China. Later in the century, cup plates became part of the tea set and allowed the tea drinker to “park” her cup on the small cup plate while she sipped tea from the saucer….

And there you have it. Deep saucer illustrated below. I’m still not sure how you’re going to negotiate the pouring from the cup to the saucer…unless you bypass the cup altogether and pour directly from the pot into the saucer. In which case: why the cup? But there are limits to one’s curiosity.

Cup and saucer, circa 1725

But, as Jonathan Bernstein says in this authoritative take-down, Friedman and Martin are wrong. For two reasons. First, when a multi-senator filibuster is supported by at least 41 senators who will vote against cloture, the cost of maintaining a live filibuster is mostly borne by the majority, who must stay in or near the chamber at all times to answer potential quorum calls by the hijackers. Without fifty present, there’s no quorum and the Senate closes shop—no phonebook reading required. The hijackers themselves need only plan to have two or so senators on the floor at a time (gabbing senator & bathroom-break senator). Second, the political/electoral consequences of failure to accomplish the government’s important business fall on the majority and on the president. If the government is broken, the voters are going to blame the party in power for breaking it.

Friedman and Martin don’t say otherwise, but it’s worth remembering that there is no way for the majority to beat a filibuster without 60 votes for cloture.

Bernstein:

On tracking, the bottom line is that it is a tool of the majority party for the convenience of the majority party.   It does not make filibusters easier; it is a response by the majority to the fact that filibusters are easy under Senate rules.  Both parties, under a variety of Majority Leaders, have used it, because it helps the majority.  If you don’t like the 60 vote Senate, then you should support a change in Senate rules to end the 60 vote Senate, because that’s where the filibuster gets its strength, not from the tactics that majority parties have adopted to deal with it.

The larger point here is that we need a government that works. “Making them filibuster” is supposed to be a way to make the minority pay a political price for obstruction while at the same time preserving the tools of that obstruction. But ultimately, the reason we shouldn’t bother with this approach is that the filibuster itself is simply not worth preserving. It is a fluke of the rules—a bug, not a feature. Bugs should be fixed, not accommodated.

[W]e have developed polarized parliamentary-style parties in a constitutional system not designed for parliamentary government. So if Congress cannot be reformed to become more parliamentary, perhaps the party system will dissolve and become more consistent with the constitutional structures we do have. Perhaps the political parties will become less polarized and less ideologically cohesive. I would not bet on this possibility happening in the short run, however. Our current political polarization is supported by many features of American politics, including the primary system, first-past-the-post rules in elections, and our current system of campaign finance.

It is worth clarifying, again, that neither the Senate’s 60-vote cloture rule, nor the campaign-finance system, nor first-past-the-post elections, nor the vast majority of the many veto gates in the federal legislative process is a feature of the constitutional design of our government. Those are all things that can be changed by statute or by a change of the Senate rules. Balkin is perfectly cognizant of this, of course. His concern is what happens if we fail to achieve institutional reforms:

Either the Senate’s rules are reformed soon, or Congress becomes increasingly irrelevant to governance. It must still pass appropriations bills, but it will be increasingly unable to direct domestic policy because neither party will be able to form supermajorities in favor of major policy changes. Earmarks and minor programs remain possible, but not major ones. And if Congress becomes irrelevant, the institution of the presidency is strengthened in the long run, whether or not Barack Obama wins reelection. If the President cannot reform Congress through political exertion, he is likely to strengthen his own ability to decide matters on his own. A strengthened Presidency moves us ever closer to rule by executive decision in American politics.

Here, I would just note that it is not necessarily the case the scope of presidential power would be augmented by congressional decline. The Supreme Court is still a potent check on the administration’s assumption of powers not granted to it by legislation. It might turn out that congressional decline would only result in more administrative independence, without congressional guidance. That might lead to accretion of executive power in many areas, but it would not leave the President a free hand to simply tackle health care, climate change, and financial reform all on his own. The relevant regulatory agencies do not necessarily have the authority needed to craft policies adequate to these undertakings. And in many areas, power left derelict by Congress will devolve to the states, rather than to the administration.

Except politics is a zero-sum game. [...] Democrats lost from [Sen. Evan] Bayh’s retirement and Republicans won, which is why they’re celebrating.

Now, public policy isn’t a zero sum game. But to expect politicians to put aside their political interests for the good of the country is wildly unrealistic. A well-designed system is supposed to align politicians’ interests with the greater good, to the highest degree that’s possible. The best way to do that is to give the majority the power to implement its agenda in the belief that this agenda will create positive real-world conditions that the voters choose to reward it with continued support. You can’t count on the minority party to lay down its most powerful weapon so that the majority party can rack up bipartisan achievements.

The belief that the filibuster is okay, but minority parties should just use it less often and start acting nicer is the equivalent of the belief that the financial system was totally fine, there just needs to be less greed and more caution. Of course, there are people on Wall Street who believe that, too — you don’t need to change the incentive structure that rewards taking on systemic risk, they say, you just need people to listen to their better angels. This sort of misguided notion is probably endemic to people who sit on the inside of any institution and see it in personal rather than systemic terms. The belief among official Washington that moral restraint can persuade politicians from ignoring their political interests is exactly such a fallacy.

I don’t think it makes much sense to treat institutional problems with anything less than institutional solutions. You can change the rules of the Senate, or you can change the two-party system. Good across-the-aisle relationships among individual senators will not reliably produce bipartisanship unless undergirded by systemic forces (like southern racism in the mid-20th century) strong enough to outweigh partisan ideology on election day.

It’s a peculiar thing—a kind of Sartrean bad faith, if you ask me—that people get so worked up over a few little deals favoring one state or another, or even a whole bunch of deals, yet don’t seem to recognize or show any concern about the deep, structural inequity built into the constitutional design of the national legislature¹ : its bias toward the less populous states and against the more populous ones.

That bias is real and has measurable effects on federal spending in the states. Research by Brown University economist Brian Knight (pdf) has demonstrated a strong relationship between per capita federal spending in a state and the per capita size of the state’s congressional delegation. Simply put, federal spending favors the less populous states.

The 2008 Census data represented on the map below (compiled here) provides a telling illustration. (But note that this is just a snapshot and doesn’t independently prove the thesis.)² In a state-by-state ranking of per capita federal spending, the top 25 states are home to 91.5 million people; the bottom 25 represent 211.9 million people. The top 10 states include Wyoming (50th in population), Alaska (47), Vermont (49), North Dakota (48), Montana (44), and Maine (40). The bottom 10 states include Florida (4th in population), Georgia (9), Texas (2), and Illinois (5). And it looks like 2004 data tell much the same story.

Per capita federal spending in the states — from datamasher.org

Also puzzling to me is all the indignation we’ve seen over “back-room deals.” I can understand fretting over deals that are made in secret and that affect the legislation in undisclosed ways to bestow undeserved benefits on powerful interest groups. It really is essential that we know, or have a chance to know, what are representatives are voting on before they vote on it. But I don’t really see the problem with a deal made between legislators, the product of which is drawn up in black-and-white language that, um, everybody knows about.

“Back-room dealmaking” is seen as symptomatic of a kind of moral degradation of the public sphere. Yet we celebrate the Constitution’s exaltation of the arbitrary geography of statehood as a Great Compromise. Which reminds me: you know what else was a back-room deal? The Constitution of the United States of America.

1. And not only the legislature. The same structural bias is built into the electoral college.
2. Also note that this datamasher map is not associated in any way with Brian Knight’s academic research.