The United States
Senate
has built up many formal and informal procedures over the past 234 years. A number of them now face withering criticism, especially the
filibuster
, by which 40 senators can keep any bill from coming up for a vote.
In a
New York Times
piece
, David Firestone adds to the list. He lambasts certain senators for their use of “holds,” an informal mechanism that allows one legislator to keep a measure from reaching the floor for a vote. He also voices frustration with the Senate as a whole for its response to these holds. Longstanding Senate decorum demands that, when the senator who called for a hold is absent from the chamber, the rest of the Senate cannot use that absence to move forward on the held issue.
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Though Firestone’s critique is mostly in service to progressive policy goals, it points to a more institutional and bipartisan issue with the Senate. To see the deeper problem with this chamber, and with Congress as a whole, we must get back to two basic questions: what is the Senate’s constitutional role and how was it intended to operate to fulfill that role?
Created by Article I, the Senate, along with the House of Representatives, is vested with “all legislative powers herein granted” by the Constitution. The Senate, then, is a lawmaking body exercising the national government’s legislative power. This power is essential to any political community which hopes to act by the rule of law and thus rightly combine effective and free government. By law, our rights are protected by the government’s enforcement of them and by the limitations they place on state actors as well. The rule of law, which must start with creating law, seeks to combine the goal for our Constitution put forward by Federalist 51: a government strong enough to do its job but limited enough to not do more.
Too many senators either forget this purpose or place it far down the list of professional priorities. As noted by
others
, many senators see their institution as a platform to gain greater personal fame and influence. Those goals would be fine if senators focused on gaining such fame and influence through good legislation. Instead, nearly every action taken is performative. Submitted bills are glorified press releases with no serious intention of ever becoming the law of the land. Senators spend more time acting like wanna-be presidents (which for some is at least being honest) than lawmakers by spending more energy investigating the executive branch than debating bills.
These actions all ignore how the Senate was intended to fulfill its legislative role. The Founders thought the quality most needed for a body creating good laws was “deliberation.” Congress was meant to discuss with each other the right policy goals and the proper means to realize those goals. Through that deliberation, bad legislation would be rejected and decent legislation honed to make better final products: laws.
The Founders and subsequent generations saw the Senate as playing a particular, even special role in that deliberation in relation to the House. Its six-year terms were meant to give senators a longer-term view of the legislative necessities facing our country. The fact that only one-third of senators would come up for election at a time also made it a force for calm and stability within our at times chaotic and impulsive popular government. It would be a force for rational discussion about justice and law. In praising its pursuit of these goals, James Buchannan is supposed to have called the Senate, “The world’s greatest deliberative body.”
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Many of the formal and informal procedures of the Senate were built up as means to foster rational, calm, forward-thinking deliberation. The filibuster, for example, originally intended to permit all persons to speak their mind fully, to harness every power and opportunity to persuade each other before making a decision on a bill. Holds, too, had origins that supported trust and thereby good deliberation among men and women in the chamber.
But many of these means no longer get used to foster deliberation that ends in legislation. Instead, they are used to make deliberation useless and legislation impossible. That may leave time for the real priorities of too many senators. But it undermines our constitutional order, making the title Buchanan gave more a sad joke than lofty praise.
Adam Carrington is assistant professor of politics at Hillsdale College.
