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2020: The Year the Senate Died?

03 Aug 2020

Pity the history teachers of the future who must deal with the calamities of 2020. But the year’s politics may not be defined by a pandemic or the potential end of a shambling presidency; instead, the United States Senate is leaping toward the gaping maw of democracy, and our government may never recover.

Former President Barack Obama, speaking at Rep. John Lewis’s funeral, called on those who admire Lewis’s legacy to enact additional protections for voting rights. Unremarkable, in a way, except for the means that Obama endorsed. “If all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that’s what we should do,” said Obama.*

Obama’s desire, to erode one of the defining characteristics of the Senate, is shared by a range of progressives. Twitter erupted in support. None of this is surprising. After all, it was the Democrats (in 2013), under Harry Reid’s (D-NV) leadership, who altered the Senate’s rules, with a simple majority vote, to decide the filibuster does not apply to executive branch appointments and judicial nominees outside the Supreme Court. This fits well with the progressive narrative, that the institutions of our founding need at least updating, if not eradicating.

“Conservative” Republicans discovered their own version of progressivism when it suited their short-term political interests. Mitch McConnell (R-KY) extended Reid’s arguments and, through a simple majority rules process, removed the possibility of a filibuster to confirm Supreme Court nominee Neil Gorsuch in 2017. The filibuster’s application to legislation has been dangling by a thread ever since. If Republicans had something resembling a legislative agenda during the past three years, and a willing partner in the U.S. House, they would have likely done the deed themselves.

If Democrats seize control of the White House, House, and Senate in November, the pressure to repeal the filibuster will be intense. To make the point, let us assume the first two happens. How likely is the third? Of the 35 Senate seats up in the Fall, Republicans hold 23, which means they have more territory to defend. The Democrats only need to flip 3 seats to gain a 50-50 tie in the chamber, and if they win the presidency, that will be enough with the Vice President’s vote. Republican seats in Arizona, Colorado, Iowa, Maine, Montana, and North Carolina are vulnerable, while the Democrats expect only to lose in Alabama. There is a reasonable chance Democrats will have unified government in 2021. The mood of the nation will create an appetite for change. Ending the filibuster will be a priority.

If it happens, Republicans will decry the end of the institution. They will quote Federalist Papers. They will do their best Buckley impressions, standing athwart Gadsden flags, with sparklers dangling from every orifice. They will likely never admit their own role in the end of the Senate, as they cheered on McConnell, inflamed by jurisprudential lust. Of course, Democrats did much the same when McConnell led the charge in 2017. Any idea of fighting for the Senate, as a chamber, regardless of partisan control, would require a bit of sacrificial statesmanship that seems in short supply in Washington, D.C.

If you ran all of the U.S. Senators from the past decade through a cartoony sausage grinder, their collective parts could be assembled into one statesman, perhaps. That is being overly optimistic. You may be able to glue together a thumb of principle, an elbow of prudence, or possibly a kidney of constitutionalism. Of those elected to the highest chamber, who has, no matter the political winds, stood for the deliberative design of the Senate? Who has lauded the supermajoritarian brake on the people’s passions? Who has celebrated the few members sometimes willing to take the lonely walk over to the other side of the aisle to get things done?

The Senate, with its six year terms, longer residency requirements, stiffer age restrictions, and appointments by state legislatures, was not intended to bend a knee to democracy. It was intended to foster an aristocratic approach to policy, where decisions are made not with the hope of a slobbering interview on FoxNews or MSNBC, or the largesse of a presidential retweet, but for the good of the people, their children, and their grandchildren. The Senate was made to untangle complicated problems with expertise and oversee solutions unfolding over decades. This is, admittedly, an idealistic conception that actual Senators have only sometimes impersonated.

The filibuster, or the tradition of extended debate, is not necessarily required for all the above, but it helps. Forcing Senators into a 60 vote threshold typically moderates the body and empowers Senators willing to negotiate with other parties. This limits the chamber’s responsiveness to popular whims. While appointments by state legislatures was a better insulation from the public, the Seventeenth Amendment eliminated that check, which makes the filibuster possibly more vital than ever.

If the legislative filibuster is removed, what happens? Only 51 votes (or 50 if the Vice President is in favor) will be needed to make radical changes to American law. Elections will drive agendas even more fully. It is possible this will be positive. H.L. Mencken famously defined democracy as “the theory that the common people know what they want, and deserve to get it good and hard.” Once they get it this way, maybe the people will rediscover electoral accountability and responsible government will ensue. Perhaps killing the musty filibuster will unleash our next golden age. (Yeah, I could barely type that last sentence with a straight face.)

The genius of the constitutional recipe is the sprinkling of various political ingredients. There were dollops of democracy, aromas of aristocracy, and mixtures of monarchy, all stirred into a gumbo of government. The dish was imperfect, but durable, flawed, yet fixable. Democracy, though, has upset the balance of flavors. It is now overwhelming the dish. Apple pies are delicious because they twist apples in flavorful, sweet ways by adding a host of other elements. A baking dish filled exclusively with uncut, unseasoned, hot apples is far removed from a pie, no matter how good the apples might be.

Our founders, also flawed, yet wise, understood democracy to be unstable and ruinous. Their creation has since veered closer to democracy over time, shedding its essentially republican elements along the way. This was predicted by Tocqueville, who believed democracy was insatiable, with a waistline ever expanding. If the Senate is the next nugget of nutrition, Democracy will claim yet another victim, and we all will begin to get it, good and hard–at least until the next election, when everything just done will be undone. Imagine the joy.

*Obama’s language suggests the filibuster was the product of a the Jim Crow era. This is false. While the device was used to perpetuate Jim Crow, along with a host of other legislative, legal, and political devices, it predates the era by decades. The committee system was also abused during the era, but it is hard to imagine a legislature functioning without them.