God saves the queen. He saves this honorable court. But who will save the United States Senate?
The venerable institution that Democrats control and Republicans covet has lately been something of a circus. The Senate majority leader, Harry Reid (D-Nev.), prevents amendments and pursues an unhinged vendetta against the Koch brothers, private citizens engaged in lawful political activity. The Senate minority leader, Mitch McConnell (R-Ky.), is under political siege from right and left in his own state. Conservative populists gain presidential buzz by blowing up or shutting down Senate processes.
Since the Senate is America’s pinnacle of institutional self-regard — “the world’s greatest deliberative body” — its reputation has always had a long way to tumble. Even the Senate of Webster and Clay was also the Senate of Know-Nothings, Doughfaces, Hunkers, Hard-Shells and secessionists, picking their teeth and missing the spittoons.
But the gap between constitutional calling and institutional infirmity has seldom been greater than it is today. One long-serving senator recently told me, “The Senate has lost its soul.” He means that the institution has lost its defining, deliberative function. It is becoming circus-like in certain modern and destructive ways.
The first, bear with me, concerns Senate procedure. In the not-too-distant past, a few senators — say, an odd pairing of a Democrat and a Republican — might have gotten to push for a creative or unexpected amendment. This is how much of the agenda of compassionate conservativism, for example, was carried out when I worked as a Senate staffer in the 1990s. Amendments were an opportunity for innovation. They could also, of course, be used to force political opponents into clarifying and embarrassing votes, which is also part of the deliberative process.
But the amendment process is increasingly and purposely blocked in the Senate. Reid often writes major legislation in his office, bypassing the hearings and markups through which senators outside the leadership get their say and where the political opposition can become more invested in bills as they move forward. And Reid employs a maneuver called “filling up the amendment tree” — which blocks amendments on the Senate floor outside his control — as the norm rather than the exception. None of these practices is unprecedented; they have just become commonplace.
Reid blames Republican obstructionism for such stern procedural measures. His actions, not coincidentally, also protect vulnerable Democrats from having to take awkward votes. But whatever the justification, the routinization of this approach — passing leadership-written bills without a real amendment process — is a highly partisan shift in the traditions of the Senate. It is difficult to imagine, say, Sen. Ted Kennedy meekly accepting up-or-down votes on legislation written by Majority Leader George Mitchell. And Robert Byrd, the great Senate historian and institutionalist, would have been provoked to long-winded apoplexy by such a diminution of privilege.
Republicans are now highly critical of these procedures. But they will, almost certainly, employ them if they gain the majority. Partisans will not accept the voluntary renunciation of established advantages. Procedural ruthlessness seems to be a one-way ratchet.
The second source of Senate dysfunction concerns the nature of modern political movements. In particular, social media and conservative media have created a powerful avenue of influence outside of party structures, and this empowers ideological purists and intimidates other conservative legislators. A senator such as Ted Cruz (R-Tex.) or Rand Paul (R-Ky.) does not need to work his way up to influence by persuading his Senate colleagues; he gains prominence by using populist issues (unrealistic attempts at Obamacare repeal or imaginary domestic drone threats) to criticize the weakness or perfidy of his colleagues.
I wonder if conservative “constitutionalists” have any idea how odd and disturbing the Founders would have found the whole idea of the Senate as a populist platform. According to Federalist 63: “There are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn.” The Senate is specifically designed to minimize, not multiply, such moments.
Many senators I talk to, Republican and Democrat, are frustrated by this multifronted attack on the possibility of deliberation. Both partisans and ideologues are impatient with institutional restraint, which they see as an obstacle to progress or purity. It should bother them, and us, that the Founders were institutionalists to the core and for good reason: because a democracy must deliberate somewhere.
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