By Mike Dorf

Watching the maneuvering over the Stupak Amendment in the Senate has me wondering about how to handle unreasonable holdouts.  Here's the setup: Democratic Senator Ben Nelson says he won't vote for the final version of the health bill--and it is assumed that means that he'd join a Republican filibuster against the health bill--unless it contains the language of the Stupak Amendment.  It's entirely possible that he means this sincerely, that is, that his preferences (from most to least preferred) are:

1) Health care reform with Stupak Amendment;
2) Status Quo;
3) Health care reform without Stupak Amendment.

If those really are Sen. Nelson's priorities, then his threat to join a Republican filibuster of a final Stupak-less bill is no idle threat but merely a prediction of his priorities.

Now even if that's true, it's not a foregone conclusion that Sen. Nelson would vote to filibuster a final Stupak-less bill.  He could be cajoled, threatened or bought off by logrolling on some other issue.  Perhaps the increase in troops for Afghanistan could be made to result in a bonanza for the Offut Air Force Base in Sen. Nelson's state.  I'm just saying that if Lyndon Johnson rather than Harry Reid were running the Senate or in the White House, we might expect some very serious hardball behind the scenes.  True, party discipline is harder to maintain these days, but it's not as if LBJ could simply snap his fingers and have Dixiecrats fall into line.

In any event, there is another possibility here.  It's also possible that Nelson's real priorities are:

1) Health care reform with Stupak Amendment;

2) Health care reform without Stupak Amendment;
3) Status Quo.

In other words, he could be bluffing precisely to get the Stupak Amendment in the final bill (because he believes in it and/or his Nebraskan constituents would punish him if he didn't fight hard enough for it), but that if his choices really are the status quo or health care reform w/o Stupak, he'll hold his nose and vote for the Stupak-less reform.  Of course, letting his fellow Senators know that would mean losing his leverage for getting either the Stupak Amendment or some collateral goody.

The problem for Harry Reid and the Dems, of course, is that at this point Nelson would be saying the same thing whether or not he were bluffing.  Threatening him is risky; he could become a Republican, after all.  Paying him off, or paying him off at too high a price, poses a different risk: It will encourage other Democratic Senators with viable exit options to start demanding their own goodies as the price of playing nice.  Yes, I realize that the public choicers out there will say that this is already what's happening all the time, and I don't entirely disagree, but somewhere there are limits to the total amount of spending in which Congress can engage, and so the question of how it gets distributed becomes salient.  If the baseline is that every Senator gets his or her own fair share (however that is defined), then that merely tells us how to measure "special" goodies, and so seeing Nelson getting his, Joe Lieberman, Blanche Lincoln, et al, will demand theirs.

Assuming that the buying-off strategy only works at the margins, all of this means that the most conservative members of the Democratic Senate majority have the most leverage over policy.  And that would be perfectly fine--a triumph of democratic politics as it's supposed to work--were it not for the fact that the median Senator does not typically represent the median voter.  The cloture rule and the enormous over-representation of small states (e.g., Nebraska, population under 2 million) ensure that the median Senator will usually skew to the right on social issues (because of the large number of small population rural states with culturally conservative voters).   Given constitutional protection for Senate control over its own rules (as I discussed recently), and the effective unamendability of the Senate, we appear to be stuck with this awkward system--which is why a few $ billion for military and public works projects in Nebraska may be the best we can do.