Monday, February 1, 2021

What To Do About the Senate?

Our Founding Fathers famously feared the dangers (in particular a seemingly inevitable decline into populist tyranny) which classical political theory and experience had identified with direct democracy. They accordingly advocated the traditional remedy recommended by both classical political theory and experience, namely, a "mixed constitution," incorporating monarchical, aristocratic, and democratic elements. One such quasi-aristocratic element was the Senate, which, James Madison suggested, would serve "as a defence to the people against their own temporary errors and delusions" (The Federalist 63). George Washington is said to have told Thomas Jefferson that they had created the Senate to "cool" legislation just as a saucer was supposedly used to cool hot tea.

According to the original constitutional arrangement, the House of Representatives represented the people, who elected the members for two-year terms directly by popular vote (that is, the votes of those then entitled to vote in that state). At that time, the Senate instead represented a decidedly different constituency - the States themselves, equally represented by two senators each, elected one-third at a time for six-year terms, not by the people but by the state legislatures. In that regard, it was possible to see the Senate as an American House of Lords, the "dignified" branch as opposed to the "popular," democratic branch of Congress. By the early 20th-century, however, the march of modern democracy had reached both the House of Lords, which had its legislative powers reduced by the 1911 Parliament Act, and the U.S. Senate, which was turned into a popularly elected body in 1913 by the 16th Amendment to the U.S. Constitution.

Popularly elected it may be, but the Senate is still an obvious obstacle to democratic governance. The original constitutional context was a collection of 13 sovereign former colonies coming together to form a union. That hardly describes the contemporary situation of 50 states, most of which were actually created by the federal government and never had any authentically independent history. And the 18th-century disparity in size between large and small states (Virginia vs. Rhode Island) is now dwarfed by the much greater disparities between, for example, California (almost 40 million people) and Wyoming (almost 570,000), a degree of difference which makes a mockery of any American aspiration to be a "government of the people, by the people, and for the people." While a good "mixed constitution" case can be made for a Senate and for its smaller size and its longer and spread-out terms of office, no morally convincing case can be offered today for the equal representation of the states in the modern Senate.

There is, however, nothing to be done about that destructive disparity, since Article V of the Constitution explicitly limits our ability to amend the constitution in this one respect: no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. 

In any case, a country that has lost its interest in legislating has likewise long ago lost its appetite for amending the constitution - something that we used to do rather regularly but no longer seem capable of even considering. The 20th-century constitutional amendments 16 through 26 were all passed by Congress and subsequently ratified by the states between 1909 and 1971 - a period that ended exactly 50 years ago.  Since then, apart from the bizarre 27th Amendment (originally passed in 1789 and belatedly ratified in 1992), the country has gone this long length of time without any serious attempt to amend the constitution, notwithstanding the many evident needs for such amendments.

So that leaves reform within the Senate itself as the only possibility. And that, of course,  brings us to the infamous Filibuster.

That the filibuster is not in the constitution and was never intended by it is clear enough from the fact that the constitution went out of its way to provide for a vice-presidential vote to break a tie in that originally small and perpetually evenly numbered body. An incidental rules change (often blamed on Vice President Aaron Burr, as if he didn't suffer enough opprobrium already) allowed debate to continue without the "previous question" being called. It was 31 years, however, before what is now seen as the Senate's first filibuster occurred in 1837. In fact, for most of American history, senators' obstructing legislation by prolonging debate was relatively rare - associated mainly in the modern Senate with Southern segregationists' blocking civil rights bills and that famous "little group of willful men" who opposed Woodrow Wilson's warmongering in 1917. That latter incident led, only a few days later, to the adoption of the cloture rule, which enshrined the filibuster but made it possible to close debate by a 2/3 vote. That was reduced to 3/5 in 1975. Hence, the familiar 60-vote threshold we constantly hear about all the time now. Meanwhile traditional filibusters have largely disappeared, having been replaced by the mere threat of one, which now triggers that 60-vote threshold, a situation which was never the norm prior to this century and which, more than anything else, has reinforced partisan polarization and hence gridlock in the Senate.

Many politicians and pundits (particularly senators and former senators and at times apparently President Biden) have become too attached to this odd senatorial practice, investing it with a significance which it does not have, as if it somehow promoted bipartisan deliberation, debate, and compromise. In fact, it does the very opposite at present, promoting partisan intransigence. This in turn has made the Senate less, not more, effective as a legislative body and accelerated the wholesale de facto transfer of power away from Congress to the other two branches of government, the Executive and the Judiciary. Traditional "conservatives," who lament our increasingly imperial presidency and our increasingly imperial judiciary, should favor ending the filibuster as a first step to restoring the Senate to its supposed status as "the world's great deliberative body" and Congress as the "first branch" of our government.

Certainly when it comes to judicial law-making, I think that as a society we are always better off when social change comes with the democratic legitimacy that only congressional legislation can convey.  In her somewhat mean and angry book, Boomers: the Men and Women Who Promised Freedom and Delivered Disaster (Penguin, 2021), Helen Andrews tells how "if Congress had not passed the Civil Rights Act of 1964, Chief Justice Earl Warren was prepared to step in with a Supreme Court decision that would have accomplished much the same thing." Two cases Bell v. Maryland and Barr v. City of Columbia concerning sit-in protests at private lunch counters "hinged on whether the owners’ actions in removing the protesters were unconstitutional under the Fourteenth Amendment the way they would have been if the restaurants had been government property." Chief Justice Warren "believed the public/private distinction collapsed the moment the owner called the police to eject the protesters from his store." Warren, however, "deliberately withheld the Court’s decisions on the sit-in cases until Congress acted on the civil rights bill, at which point the cases became moot." By doing so, Andrews argues, Warren gave the American people "the chance to make a democratic statement on segregation. The give-and-take of legislative negotiations left the 1964 bill with some flaws that civil rights advocates were unhappy with, like its weak enforcement provisions (later strengthened in 1972). Those had been the price of getting moderates to vote yes. But to have a law with democratic legitimacy, it was a price worth paying." Obviously race relations are still very problematic in this country, and much remains unresolved, but it was manifestly better for the country that the 1964 Civil Rights Act was overwhelmingly passed by Congress, rather than imposed on the country by an over-reaching Supreme Court. Notably, the 1964 Civil Rights Act could be passed only because cloture was successfully invoked to end a filibuster.

With regard to the obsessively invoked chimera of bipartisanship, that itself is a somewhat romanticized holdover from the special situation that obtained in mid-20th-century America, when the two parties themselves were more internally diverse, when party control of Congress did not change so frequently (hence reducing the stakes of every election), and when there was widespread consensus on many major issues (other than race).

Without the filibuster, there are still plenty of counter-majoritarian mechanisms built into our constitutional system. Most obviously, we have the Bill of Rights and its protections of individuals and minorities in such taken-off-the-table matters as religion speech, assembly, and due process, etc. Likewise, the "mixed" character of the constitution is intended to preclude a short-term majority from running roughshod over other competing constituencies. Even so, every element in that "mixed" constitutional arrangement is intended to be subject to at least some more majoritarian check. Every veto is at least potentially balanced. Thus, for example, the president's veto can be overridden and the Judiciary's jurisdiction can be limited by Congress.

Ours is a limited government, intentionally so. Within those prescribed limits, however, government is intended to be able to act - and act effectively - to "establish Justice, insure domestic Tranquility, provide for the common defense, promote the general Welfare," etc. (It was, after all, to remedy the ineffectiveness of the Articles of Confederation with a more effective government that the current constitutional system was created.) When all is said and done, the fundamental basis of constitutional legitimacy must be its democratic legitimacy. Or, as Alexander Hamilton himself, wrote: "The fabric of American Empire ought to rest on the solid basis of the Consent of the People. The streams of national power ought to flow immediately from that pure original fountain of all original authority" (The Federalist 22). 

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