A Theory About the Senate

Senate Majority Leader Bill Frist's campaign trip to South Dakota to defeat his Democratic counterpart brought to mind a question a friend asked me recently: Did I think there was a case to be made that something had fundamentally gone wrong with the U.S. Senate? (And, no, this has nothing to do with the extracurricular activities of young staffers, which have always involved what they will always involve.) This follows on several comments on this weblog about unbelievable comments by Senators such as Rick Santorum, a member of the majority party leadership who, a few months after equating committed gay relationships to "man-on-dog" sex declared that one of his colleagues "doesn't have the understanding of how government works" -- perhaps a mild insult in the blogosphere, but pretty much unheard of in the U.S. Senate as I know it. The more recent declaration by Senator Inhofe that he is "outraged by the outrage" at torture and abuse by U.S. personnel in Iraq shows that Santorum is not alone.

However, there is always peril in assuming there was a golden age of the Senate in which civility ruled and every man (and, if there is one notable positive change in the Senate, it is that the number of women has increased by more than 900% in a decade) was a statesman. As pointed out in comments here earlier, Joe McCarthy was a Senator, and so were many other mentally and morally compromised individuals. A recent obituary reminded me of Senator William Scott of Virginia, who in the 1970s topped a list of "Dumbest Senators" compiled by New Times magazine -- and the next day held a press conference to deny the charge. Robert Caro's Master of the Senate, while chronicling Lyndon Johnson's rise to dominate the institution, also shows that other figures who are considered titans of the 1950s Senate, such as Paul Douglas of Illinois or Herbert Lehman of New York, were most often pretty marginal gadflies in an institution dominated by less gifted or less honorable men.

But without romanticizing the quality of the actual Senators of the past

-- and if you want to lose any illusions about the "World's Greatest Deliberative Body," go even further back, to before direct election of Senators, and find an old copy of The Treason of the Senate by the muckraking journalist and novelist David Graham Phillips -- there is still something unbelievable that has occurred in the interaction between Senators, and in the general institutional culture. Frist's campaigning against Daschle is unprecedented for a good reason. The benefits of a Senate leader making campaign appearances in a state where he is barely known cannot possibly offset the cost in terms of a good working relationship on the mundane daily problems of managing the insitution, scheduling votes, or asking routine favors such as holding a vote for a Senator who is coming in on a delayed flight. And then there is the very real possibility that the Senate Republicans will attempt this year to declare that the Senate rules do not permit a filibuster on judicial nominations, or on any nominations, in order to deprive Democrats of the means of blocking the worst Bush judges. Since the Senate rules emphatically do not exempt judicial nominations from filibuster, this will require over-ruling the Senate Parliamentarian, or, more likely, firing the Senate Parliamentarian and replacing him with someone who will provide the rulings they wish.

If this seems outrageous to you, you should know that this would actually be the second time the Republicans have fired their own Parliamentarian because they didn't like his rulings. They call this "The Nuclear Option," but, if it happens, it is Nagasaki, not Hiroshima.

How did the institution come to this point? It's not because the Senators of today are lesser individuals than in the past, although that may be true also. Rather, I think, it is the way the Senate goes about its business that brings out the worst in those individuals, whereas there are things about the Senate in the past that brought out the best democratic and deliberative capacities of its members.

It took me a while to grasp that the Senate is not a rule-driven institution. It has rules, but they don't drive the process. They are more like a toolbox made up of procedures and tactics to be used for certain conditions at certain times. For example, when I worked in the Senate, cloture votes -- which would determine whether there were enough votes to end a filibuster -- were the main tool being used to drive the business of the Senate, although filibusters themselves were infrequent. There was a period when a tactic known as "filling the amendment tree" was used often to block an unwelcome amendment -- I remember when Senator Byrd did it in 1993 in an attempt to salvage Clinton's now-forgotten "stimulus package," most of my senior colleagues had never seen the tactic used, but by 1995, Senator Dole was filling the tree daily. At the same time, the rules that exist can be broken or bypassed at will: Senator Byrd once pointed out that every rule of the Senate could be waived by consent, except for the rules governing who is a Senator.

That makes the Senate a kind of improvisational theater, rather than a formalized process, and while power is not distributed equally within it, every Senator has the power to initiate action (offer an amendment) or block action. Outside of the legislative process, many Senators also have the power to, for example, launch investigations (which is how John Kerry made his mark) and at any given time, a dozen or so are national figures who can shape the debate by appearing on Meet the Press, by helping to build outside organizations, or making visits to other states. (There's probably never been a Senator who understood this outside-in role as well as Hilary Clinton.) That engenders a kind of respect or acknowledgement of each colleague. My former boss, Senator Bradley, once said something in a campaign debate early on in the period when I worked for him: "You hold power, but you must never claim power." I didn't fully understand what he meant until a few years later -- it means that whatever power you have derives entirely from your ability to influence others, create coalitions, form alliances, be entrepreneurial, etc. No one in the Senate, not the Majority Leader, not the chair of the Finance or Appropriations Committees, holds even a fraction of the actual power of their counterparts in the House of Representatives, because the power they have, if they "claim" it without consent, is so easily undermined.

Combine these factors with four other facts: Senators generally expect that they will serve for a long time and so will their colleagues. But they don't expect their party's tenure in or out of power to last nearly as long; control of the Senate has changed five times since 1980, and most Senators have seen it change at least three times. Finally, because of the filibuster and other rules, nothing can generally be done without forming a bipartisan coalition. Senator Dole used to say every day, "you need 60 votes to do anything around here," which isn't quite true, but we'll get to that in a minute. Finally, party affiliations don't correspond exactly with ideology, so bipartisan coalitions will always be the rule and the Majority Leader does not control a reliable bloc.

You can't argue that the Senate is a good representative body, but within the boundaries of the institution, these factors can create the ideal conditions for deliberative democracy. Participants know that their interactions will be repeated, that their reputations in those interactions will matter, that they may not be in the same power relationship next time as today. When I worked in the Senate, I saw plenty of partisanship, but an intense, constant effort to put together the bipartisan coalitions that would be able to get something done. Sitting behind the dais of the Senate Finance Committee, one saw a group of Senators across both sides of the center part of the horseshoe-shaped table who respected one another, had learned to like each other, and were accustomed to working together to get something accomplished. One of the best examples, though it was unsuccessful, was the "centrists group" that formed after the failure of the Clinton health plan, around Senator John Chafee in particular, which met constantly over a period of weeks in 1994 in an effort to salvage something that could pass.

So what has gone wrong with the Senate: First, party affiliation is no longer on a different axis than ideology. The Republican Party is now the right-wing party, the Democrats the liberal party, with only a few outliers. That was not something that could be said in the Reagan era, when Phil Gramm was still a Democrat, or even ten years ago, when Richard Shelby of Alabama was a Democrat. The only such "Dixiecrat" today is the retiring Zell Miller of Georgia, a very strange case because he did not come from the same tradition, and his estrangement from the Democrats seems best explained as a matter of psychology or allergic reaction to Washington, as Ed Kilgore of the Democratic Leadership Council has argued. And this means that the Majority Leader can usually command the votes of a majority without reaching out at all.

And some of the other conditions, such as the fact that every Senator can find a way to exercise some power, are no longer true either. That's because the majority of the important business of the Senate is now conducted through the process known as Reconciliation. Reconciliation is a provision of the budget rules under which Congress sets a budget, and then can put through a sweeping piece of legislation intended to bring spending programs in line with budget goals, that is, to "reconcile" the programs with the budget. Reconciliation gives Congress a way to force itself to make decisions about entitlement programs, where spending is determined not by how much Congress appropriates, but by the rules of the program, such as the age requirements of Social Security and Medicare, or the eligibility requirements and bank subsidy of the Guaranteed Student Loan program, as well as taxes and tax breaks. Reconciliation bills are governed by special rules that strictly limit the time for debate and prohibit almost all amendments.

Reconciliations used to be infrequent; the process was not used at all for several years after it was created in 1974, and there was one every two or three years between 1979 and 2001. Usually they were the results of long, tortured "budget summits," such as the one at Andrews Air Force Base in the first Bush administration or the balanced budget agreement reached in 1997, and thus leave everyone a little dissatisfied but knowing they did what had to be done. But when one party controls both Houses of Congress and the White House, the process can be used as an exercise in unilateral power, if the party can hold together. Clinton could barely hold his party together in 1993, but did manage to get through Congress, using the reconciliation process, the sweeping budget bill of 1993. This bill not only raised taxes and cut spending; it also reduced taxes for the working poor and created various new programs, such as Empowerment Zones to encourage jobs in poor urban and rural areas, and the Direct Student Loan program, which also saved money. Because no Republicans would support the bill, they were completely cut out of the process, and as a result, much of what was in the bill did not get much public scrutiny, and in the end, the decisions were being made by must a half-dozen or so Senate and House chairmen. But at least that reconciliation lived up to the basic purpose for which the process was created -- improving fiscal discipline.

Bush/DeLay have taken full advantage of the power of reconciliation and pushed through both their giant tax cuts under this process, along with much else. That means that much of the Senate, most Republicans as well as all Democrats are essentially passive bystanders to a process that reverses the normal rules of the Senate. And then, on bills that are not pushed through the reconciliation process, a different tactic is used: the Republicans push through the Senate a bill that they have no intention of fighting for in conference, and then they force the votes on the conference report. So, for example, the Republicans had the Senate pass an energy bill last year that was the same bill that had been passed by the Democrats when they controlled the body. Democrats had voted for it before, so they felt they had to again; Republicans voted for it on the explicit assurance that it would come back from conference in different form. Which it did, of course, the lobbyists and conferees having quietly written the "compromise" as they wished. A conference report can be filibustered but it cannot be amended, and with just a day to go before the end of the congressional session, a filibuster was equivalent to a "no" vote. So the Senate never got an opportunity to deal with anything on the energy bill other than to vote yes or no on a bill they had seen only hours earlier.

When most of the Senate's business is done under these conditions, the problem is that Senators get no opportunity to be Senators. They never learn to form bipartisan coalitions. They never learn to compromise. They don't get to figure out creative ways to at least get a vote on their pet idea. The majority of them are pawns, in the same way that the majority of House members of both parties are pawns, biding their time. The only mystery is why Senators put up with this.

And with so much of the Senate's business closed off to normal debate, there is increasingly just one area where Senators get to exercise some of their rights: nominations. But with all the focus of the Senate on nominations, matters only get worse, because nominations are, always, an ugly scene. You can block them, you can research the hell out of them, you can harass them in committees, you can create a media firestorm, but that's all. You can't amend a nomination or find a compromise or offer an alternative. If the president does not seek the "advice and consent" of minority-party Senators, and makes hugely controversial nominations, then the ugly dimension of the Senate gets far worse, and that's what we're seeing today.

The good news is that the Senate is an adaptable institution, and the current climate was created by deliberate choices by Senator Frist, who, like the president, seems to think he's some kind of CEO. Those choices can be undone, and probably will be.