By Britton Masback
Which would The Founders see as more remarkable, that the Kavanaugh Judiciary Committee hearings devolved into vituperative comments by the nominee and Senators from both parties or the fact that the proceedings were witnessed live by 20 million Americans via television? The hearings and eventual confirmation vote further revealed and exacerbated the dysfunctional nature of the modern U.S. Senate, a harsh reality that underlines how the Senate has evolved in ways The Founders never anticipated. The Senate requires urgent attention to some of its basic flaws if we want it to fulfill its role as “the world’s greatest deliberative body.”
Like much of the original U.S. Constitution, the Senate resulted from a spirit of compromise. Enamored of Great Britain’s bi-cameral legislature, which featured a “lower” House of Commons and “upper” House of Lords, The Founders saw value in balancing the popularly-elected House of Representatives with a more elite body chosen by state legislatures. As Alexander Hamilton and James Madison argued in Federalist 62, they wanted the Senate insulated from “the impulse of sudden and violent passions.” Or, in George Washington’s words, The Founders wanted to pour House legislation “into the senatorial saucer to cool it.”
The Founders found other ways to make the Senate different. In an effort to further remove Senators from public pressure, they were chosen for six-year terms, four years longer than the House, and Senators had to be 30 years old, five years older than the House (the average lifespan was 35 at the time). The Senatorial terms were staggered, so that unlike the House the entire body didn’t turn over every two years, providing for increased continuity and collegiality. The most significant difference and reason for the “Great Compromise of 1787” came when The Founders agreed to equal state representation in the Senate regardless of population, meaning that big states such as Massachusetts, Pennsylvania, and Virginia had the same number of Senators, two, as small states such as Connecticut, Delaware, and New Jersey.
In the early decades of the Senate, it fulfilled its role as a more sober, deliberative body, choosing not to convict Supreme Court Justice Samuel Chase after the House impeached him in 1804 and finding compromises that delayed the onset of the Civil War. Over time, the Senate established unique practices, such as the filibuster, which allowed a single Senator to block Senate action, and cloture, a rule under which 60 Senators could end a filibuster. Practices like these provided the Senate with important safety valves for working through divisive issues.
Unfortunately, some of the Senate’s unique attributes and quirky rules, and the exigencies of modern politics, began to undermine the Senate’s deliberative spirit. Corruption in state selection of Senators led to the 17th Amendment, which ushered in popular election of Senators in 1913, an important departure from The Founders’ vision. Also, encouraging minority power in the Senate went too far. One rule prevented committees from holding hearings after 2:00 pm in the afternoon without the unanimous consent of all Senators, giving a single Senator the ability to stall important committee action. Senate staffs exploded in size, with staff members often far more partisan than the Senators, which inexorably promoted division. The need to constantly raise money for their next campaign meant Senators spent less and less time in Washington, undermining the formation of friendships among the Senators. Lobbyists, many of whom were former Senators, discouraged compromise. The Senators gradually became more distant from one another, more political, and more partisan.
Finally, the concept of equal representation has become increasingly anachronistic in modern times. While the population of the largest state was only ten times larger than the smallest state in 1787, today California is 70 times bigger than Wyoming. The majority of the Senate represents just 18 percent of the nation’s population and by 2040, 70 percent of the U.S. population will live in 15 states. The Senate was designed to protect the interests of small states and minorities, but now the minority, representing states that are more rural, less diverse, and more conservative, has wildly disproportionate power.
For the reasons outlined above, Senators have lost the ability to compromise. Thirty years ago, Antonin Scalia, an overt Conservative ideologue, was confirmed 98-0 for his Supreme Court seat, while Brett Kavanaugh was just confirmed 50-48, the smallest margin since 1881.
Three remedies can save the Senate. First, we need Senators of courage. In 1950, Maine Senator Margaret Chase Smith issued her “Declaration of Conscience,” denouncing Joseph McCarthy four years before the rest of her party and country turned on the demagogic Senator. Republican Lisa Murkowski took a brave stand on the Kavanaugh confirmation, but where are the other Senators of courage from both sides of the aisle? Second, columnist David Brooks has called for the creation of a new kind of “environmental” movement that polices and improves our “civic environment.” Senators should take a pledge to lead and support such a movement. Finally, while moving away from equal representation is impossible (such an amendment would require unanimous support from the states), the Senate could overhaul its rules, looking for ways to encourage deliberation and compromise while protecting the rights of the minority.
The Founders created a Senate that has largely stood the test of time. However, dynamics they never anticipated have become the enemy of civility and have undermined bipartisanship, and comprehensive work needs to be done to return the Senate to its original role.
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