The Supreme Court might top the list of institutional villains in progressive thought, but the Senate isn’t far behind. Ever since Democrats lost their commanding majority in the upper chamber in 2011, liberal politicians and intellectuals have mounted an impassioned case that the body is obstructionist and antidemocratic — a “graveyard” of needed legislation and reform.
This week’s gun agreement ought to puncture this mythology. Ten Democrats, led by Sen. Chris Murphy of Connecticut, and 10 Republicans, led by Sen. John Cornyn of Texas, agreed to a “framework” for firearms legislation. It would include more-searching background checks for young gun buyers, federal regulation of more firearms dealers and money for states that implement red-flag laws.
The agreement is an outline, and it could fall apart if partisan crafters of legislative language go beyond its spirit. But the blessing from Minority Leader Mitch McConnell (R-Ky.) means that 11 Republicans, and possibly more, are prepared to support incremental legislation to put additional obstacles in the way of would-be gun buyers who are a danger to themselves or others.
Even if it holds, isn’t this agreement a one-off exception to a pattern of Senate Republican obstruction? Not really. The principal pattern of the past five years is that no matter which party has a majority, the Senate resists being operated like a redundant House of Representatives, in which the minority party has no control over the direction of transformative legislation. That was evident when Republicans tried to overturn the Affordable Care Act in 2017, as well as when Democrats tried to pass a massive entitlement expansion in 2021 and radically alter America’s election system in 2022. All those partisan efforts failed.
When the Senate drives toward legislation in a good-faith, bipartisan process, common ground is sometimes identified. In 2018, the Senate voted 87 to 12 to moderate some criminal sentences. Last year, 19 Senate Republicans voted for a trillion-dollar infrastructure plan, including climate measures, following a negotiation process with many of the same members who signed on to the gun agreement. News reports suggest that another overlapping group of senators could be close to an agreement to reform the 1887 Electoral Count Act on the certification of presidential elections.
For partisans, these possibilities are frustratingly limited — a ban on so-called assault weapons, for example, was always out of reach in the current negotiations. But at a time when partisan control of Congress is flipping back and forth at a historically fast rate, the Senate is playing a crucial stabilizing role. Party-line rewrites of American election law, such as the one attempted by Democrats this year, would be catastrophic for political legitimacy.
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The one major bill this Senate Democratic majority was able to pass without seeking Republican buy-in — the $1.9 trillion American Rescue Plan — helped propel inflation that is eroding the value of Americans’ paychecks and destroying Democrats politically.
The stirrings of Senate bipartisanship don’t necessarily point to an institution at full health. Yuval Levin of the American Enterprise Institute has argued that Congress is increasingly controlled by party leadership, while committees that are supposed to have expertise in particular areas have been diminished. The groups that have hammered out bipartisan agreements this Congress have operated outside the committee system.
The gun framework wasn’t announced by the Senate Judiciary Committee, just as the infrastructure framework wasn’t announced by the Environment and Public Works Committee. Instead, political imperatives require the formation of an unofficial “committee of moderates,” blessed by leadership, to prove a piece of legislation can get the 60 votes needed to overcome a filibuster.
As for the filibuster, it’s true that its precarious political standing has probably put pressure on Republican leadership to be more solicitous of Democratic negotiators. But it has also provided a layer of protection to GOP interests that makes negotiation possible.
“Getting something done,” including on a bipartisan basis, is not itself a barometer of the Senate’s effectiveness. The budget sequestration deal of 2011 was bipartisan but hollowed out the military and may have slowed the economic recovery. Nor was the bipartisan Patriot Act of 2001 a model of effective legislating. Partisan scrutiny can be an effective check on centrist dogmas.
The Senate’s incremental approach to legislative change reflects the reality of American polarization — and the perils of a narrow majority aggressively imposing its will on a large minority, especially when the two sides might soon switch places. The Senate is designed to consider policy on a longer time horizon.
It’s not a coincidence that the Republican House conference is more procedurally radical than the Senate’s: More than half of House GOP members voted against certifying some of the 2020 presidential election results, compared with just eight senators. We’ll see if progressive views of the upper chamber as the great obstacle to democracy remain as entrenched if Republicans take control of the more “democratic” lower chamber this fall.