The Power of One

A financial reform bill is finally coming to President Obama's desk for his signature.  Yet, according to a recent article by the New York Times, the bill lacks protections against three notorious lending practices from auto dealers that should have been addressed by the new law. For my purposes, the actual exemptions themselves are irrelevant.  The obvious question is why the bill exempted these practices. The answer is an abject lesson in the power of one, and centers on one of our most undemocratic of institutions.

I am not referring to the Supreme Court and the power of judicial review.

Rather, this is a case study in the power of the Senate, and particularly on the power vested to individual Senators to mold bills as they see fit.  In this particular instance, efforts by Senator Sam Brownback, Republican of Kansas, ensured that auto dealers would gain concessions from Congress against some very troubling lending practices.  Senator Brownback justified his position by stating that on his Web site that “auto dealers are a part of Main Street, not Wall Street.” Maybe so.  But the real question is how many other Senators agreed with him, and how, assuming that not many others did, he was able to exact these concessions.

Examples like this one lend credence to the argument about the undemocratic nature of the Senate.  It is one thing to believe in the importance of checks and balances in the abstract, but quite another to look at the modern Senate as an institution that can perform the role ascribed to it by the model.  All you need in the way of proof is one quick glance at the recent Kagan confirmation hearings.  If the men and women of the Senate are placed in charge of checking anyone or anything, the Republic is in deep trouble.   

It is easy to understand why reform efforts in this area falter.  What is far more difficult to understand is why we spend so much time in our law schools talking about the so-called "countermajoritarian difficulty," and so little time talking about Congress and the Presidency, not to mention states and local governments.