Is the U.S. Senate Obsolete–I?

Today begins a two-part analysis of our broken United States Senate.


As I pointed out on October 1, the decision of the founders to create a bicameral first branch was the product of a long and contentious debate, and an uneasy compromise.

Smaller states agreed to a popularly-elected House of Representatives only on condition that each state be represented equally, by two appointed delegates each, in a Senate with unique, defined powers.  In his 1833 Commentaries Joseph Story summarized the intended benefits of this balancing act i:

No system could, in this respect, be more admirably contrived to ensure due deliberation and inquiry, and just results in all matters of legislation.  No law or resolution can be passed without the concurrence, first of a majority of the people, and then of a majority of the states.  The interests, and passions, and prejudices of a district are thus checked by the influence of a whole state; the like interests, and passions, and prejudices of a state, or of a majority of the states, are met and controlled by the voice of the people of the nation.  It may be thought, that this complicated system of checks may operate, in some instances, injuriously, as well as beneficially.  But if it should occasionally work unequally, or injuriously, its general operation will be salutary and useful.  The disease most incident to free governments is the facility and excess of lawmaking; and while it never can be the permanent interest of either branch to interpose any due restraint upon the exercise of all fit legislation, a good law had better occasionally fail, rather than bad laws be multiplied with a heedless and mischievous frequency.  Even reforms, to be safe, must, in general, be slow; and there can be little danger, that public opinion will not sufficiently stimulate all public bodies to changes, which are at once desirable, and politic.  All experience proves, that the human mind is more eager and restless for changes, than tranquil and satisfied with existing institutions.  Besides; the large states will always be able, by their power over the supplies, to defeat any unreasonable exertions of this prerogative by the smaller states.

So—how’s that working out, 179 years later?

Here’s a short list of legislative initiatives that have failed in the Senate since President Obama was inaugurated, despite demonstrable majorities in both bodies at the times of their consideration:

  • A market-based system to control carbon emissions, which would limit the damage from global warming, vitalize the clean technology sector, and challenge other large polluters like China and India to do the same.
  • Along with state health insurance exchanges, a public coverage option in the Affordable Care Act.
  • Citizenship for children of undocumented immigrants who’ve served two years in the military or who’ve enrolled in college.
  • Broader legal recourse against their employers for women paid less than their male colleagues, because of their gender.
  • Disclosure and accountability for billionaires who seek to use their wealth to affect the outcome of federal elections, to nullify the free pass given them by the Supreme Court in Citizens United v. FEC.
  • Elimination of the carried-interest tax break, which would have compelled Mitt Romney to pay $1,480,000 more in income taxes for 2010, the one year for which he’s released an actual return.

From our British cousins, during the last “Gilded Age”

That’s legislation.  How about the upper body’s unique constitutional responsibilities, using its “advise and consent” power to ratify treaties and approve judicial and executive appointments

  • Nine months after the renegotiated START nuclear-arms limitation treaty with Russia was signed—and over a year after its predecessor had expired—the 2010 lame-duck Senate set aside its wrangling to muster the required 67 votes to ratify it last December 22, despite virtual consensus in support among allies and former and current leaders and officials in the field.
  • The current backlog of 79 vacant federal judgeships would be much smaller, if not nonexistent.  Thirty-two of the existing vacancies are in courts so overburdened that they have been designated “judicial emergencies” by the Administrative Office of the U.S. Courts.  (Fun Fact: According to the Chairman of the Senate Judiciary Committee—which hears and reports to the floor all such nominations—nearly half our total population lives in districts for which nominations to vacant judgeships are pending.)
  • Between January 1, 2008, and March  2010 (when President Obama recess-appointed Craig Becker), the National Labor Relations Board could not issue binding rulings because the Senate could not confirm enough nominees to create a quorum.
  • Despite the economy’s deepest crisis since the Depression, it’s been a struggle to keep a full complement on the Federal Reserve’s seven-member Board of Governors.  Thanks to partisan opposition, Nobel Prize-winning economist Peter Diamond was never given serious consideration.
  • But for determined political opposition, Elizabeth Warren would be directing the Consumer Financial Protection Bureau, and enforcing relevant provisions of Dodd-Frank consumer finance reforms, rather than running against Scott Brown for Ted Kennedy’s old Senate seat.

I spent the last two years of my six-year Capitol Hill stint as a counsel to the Senate Judiciary Committee, in the last year of Sen. James O. Eastland’s tenure and the first two years of the current Vice President’s service as Chairman.  It seems almost quaint—if not painful—to say it now, but at that time the only Senators who were permitted to exercise any influence over a judicial nomination were the two representing the state in which the nominee resided.  (To be sure, politics entered into it, but it was understood that those Senators had the last word.  Call it self-interested noblesse oblige.)  I also served the late Sen. Paul Hatfield (D-MT), who left his post as Chief Justice of the Montana Supreme Court to serve out the late Lee Metcalf’s unexpired term.  He was called upon to cast the deciding vote on ratification of the Panama Canal neutrality treaty on April 4, 1978—58 days after he took the oath.  It was a true exercise in courage, since it sealed his political fate back home. His guiding principle: “Do the right thing.”  And—as I’ve also written—it was beyond question that it was our first responsibility, members and staff alike, to do the people’s business.

What’s changed since then?  Filibusters—utilizing the threat of “unlimited (floor) debate” to block action—and invocation of cloture, to end them, have gone from sparing use as disease-remedy deterrents to majority legislative tyranny, to routinely-used weapons to enforce minority-party tyranny.  (Jimmy Stewart as “Mr. Smith,” standing strong against corruption, is the romantic vision of filibuster; Strom Thurmond (R-SC), against the Civil Rights Act of 1957, is the ugly reality—up until recently, that is.)


Next FridayFixing the filibuster: the “Nuclear Option?”

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