Living Father, revive the Senate. Infuse it with new life. Dissolve the frustration, the disappointment, the disenchantment. Ignite the fire that burned in the Senators’ hearts when first they convinced the people to send them here. Restore the faith, the sense of purpose, the enthusiasm, the dream, the vision. Mighty God, from whom comes all authority, the world waits for the Senate to be the powerful, intelligent, deliberative, legislative leaders so desperately needed today in the Nation and the world. Let it be true, dear Lord. Let it be true. In Jesus’ name. Amen.
—THE REVEREND RICHARD C. HALVERSON, Senate chaplain, opening prayer, July 11, 1994
The Reverend Halverson’s prayer was never answered. Although it sought a renewed sense of purpose, enthusiasm, and vision from senators as individuals, his supplication asked for an institution that never was and never could be. In the years following this prayer, things only got worse for the Senate, and that was no accident or act of God.
In the wake of everything that has happened since, it is easy to forget that in July 1994—when the chaplain prayed for the Senate as he did—the government was, despite the initial promise of a Clinton presidency bolstered by strong Democratic majorities in both houses of Congress, in the throes of legislative gridlock, and the nation was experiencing the kind of brook-no-compromise, take-no-prisoners partisanship that would become commonplace. The Clinton presidency and the 103rd Congress were collapsing under the Republicans’ use of the Senate, despite a solid Democratic majority, to prevent bills from becoming law—something that would become a more or less fixed and bipartisan feature of the political landscape. By the mid-1990s, the Senate had become a citadel from which to thwart or impede what the other party, the House, or the president sought to accomplish.
Since at least 1994, when the Republicans, led by House Minority Whip Newt Gingrich, took control of Congress in the elections that fall, the United States has dealt with and debated its crisis of governance. With divided government, hyperpartisanship, and policy gridlock in especially sharp contrast with a dynamic environment of economic and technological change, Americans have faced increasing doubts about the capacity of their eighteenth-century political institutions to lead the nation into and through a twenty-first-century world. General uncertainties and concerns have found expression in a variety of not particularly harmonious or consistent criticisms, criticisms that too often fluctuate with partisan electoral fortunes. There is too much government or not enough government. Excessive partisan polarization or not enough party control. Dangerous presidential power or perilous congressional gridlock and paralysis. An imperial judiciary. Too much power in Washington; too much power in state capitals. Regardless, the core of the problem is a crisis of governance, an inability of our institutions to address and solve problems. This is a self-perpetuating crisis, moreover, as failure produces frustration and more political polarization.
Americans have devoted most of their attention, however, to changing the people in charge rather than the institutions themselves, their powers, or their relations to each other. If Americans want a better politics and better governance, they must consider whether their ongoing efforts to change politicians, or to grow or shrink the electorate, have done anything to alleviate the crisis. They must carefully consider how the political institutions that govern the country—rather than simply the people who temporarily occupy positions within them—have failed, and why. And in this age of extreme partisan polarization, they must look beyond the results of the last election and which party controls the House, Senate, presidency, or even the Supreme Court to think about the institutional changes and reforms that could benefit us all, regardless of which party wins the next election.
With the crisis of national governance a near constant in American life, this book is an argument about the Senate—the institution itself, rather than the senators who serve in it—but in relation to the other institutions of government, the constitutional system as a whole, and that crisis. Just as the Senate was the crux of the Constitutional Convention’s decisions in 1787, so it is at the center of our contemporary constitutional crisis. Should we blame the Senate for the crisis? No, that would be going too far. But if not the main flaw in the American system, the Senate is certainly one of its central defects. It is a principal cause of some problems; it exacerbates others; it solves nothing. Presidential power: has the Senate tamed it? No. Has the Senate reined in a runaway House? No. Instead, it is the Senate that has run away—from democracy—and taken governance with it. It is past time for the people of the United States to look beyond the current politicians and policy problems that must be solved to the governmental structures and relationships that not only are failing to solve those problems but also are alienating the citizens whose support and confidence are essential to successful government. Many things should be on the table. This history and analysis of the Senate’s constitutionalism and behavior put that institution front and center—but hardly alone—in a reconsideration of the American system.
Part of the problem with the Senate is something it shares with the nation it represents: its lofty self-image often distorts a clear-eyed analysis and diagnosis of the problems it confronts. Even if by the early years of the twenty-first century the Senate was increasingly subject to criticism and its reputation as “the world’s greatest deliberative body” had grown tarnished, the Senate throughout its history has promoted a grandiose self-conception of its special place and purpose. The Senate’s constitutional imaginary, widely shared by citizens and commentators, brings to mind a more familiar and encompassing self-conception: the belief that the United States is an “exceptional” nation. If the United States is an exceptional nation, then the US Senate must be an exceptional institution, and in much the same way.1 American exceptionalism is the belief in the political superiority of the United States, such that the nation stands apart from and above the other nations of the world.2 In this view, “America” was special even when it existed only as a collection of largely unrelated colonies of settlers seeking freedom and creating forms of self-government. The country’s founding, from the Declaration of Independence through the drafting and approval of the Constitution, made the United States the first nation based on collective choice and self-conscious constitutional construction rather than on some combination of conquest and culture. Since then, the United States has been the model for constitutional popular government. And the United States has had, from this perspective, a special duty to lead the family of nations and foster world order.
Alexis de Tocqueville notably was among the earliest to capture this American belief: “For fifty years the inhabitants of the United States have been repeatedly and constantly told that they are the only religious, enlightened, and free people. They see that democratic institutions flourish among them, whereas they come to grief in the rest of the world; consequently they have an immensely high opinion of themselves and are not far from believing that they form a species apart from the rest of the human race.”3 For some, American exceptionalism is part and parcel of a laudable civil religion—those beliefs, rituals, and symbols that unite Americans—but it is also an object of criticism, if not outright ridicule.4 For our purposes it does not matter whether the exceptionalist doctrine is, like America itself, right or wrong. As many have argued, it has elements of historically undeniable facts, but it can be and has been exaggerated or distorted into a form of unreflective or even mindless nationalism.5 And, like nearly everything else, it has been sucked into the vortex of partisan polarization.6
The Senate’s exceptionalism parallels the nation’s quite closely. Just as the United States was a unique creation as a political nation defined by its Constitution, Senate exceptionalism sees that body as the special institution created by the founding. The Senate stands apart from and above other legislative bodies both at home and abroad. More than any other invention of the Constitution, the Senate defines what is special about American government and politics. If the United States is the “indispensable” nation, in Madeleine Albright’s turn of phrase, the Senate is the indispensable institution of American government.7 Even though the presidency, the Supreme Court, and the House of Representatives were thoroughly innovative constructs, none of these bodies has garnered the kind of encomiums and tributes inspired by and directed at the Senate. And if, as Tocqueville noted, Americans all but considered themselves another species, senators have tended to see themselves as a special, even exceptional, form of public servant.
As early as 1805, in his farewell speech as vice president, Aaron Burr said that the Senate “is a sanctuary; a citadel of law, of order, and of liberty; and it is here—it is here, in this exalted refuge; here, if anywhere, will resistance be made to the storms of political phrenzy and the silent arts of corruption; and if the Constitution be destined ever to perish by the sacrilegious hands of the demagogue or the usurper, which God avert, its expiring agonies will be witnessed on this floor.”8 A few decades later, Daniel Webster reminded his colleagues that “this is a Senate, a Senate of equals, of men of individual honor and personal character, and of absolute independence. We know no masters, we acknowledge no dictators. This is a hall for mutual consultation and discussion, not an arena for the exhibition of champions.”9 Toward the end of the nineteenth century, Senator David Turpie added this familiar and often repeated characterization: “The universal law and genius of language have given a name to this body derived from its principal attribute. It is a deliberative body—the greatest deliberative body in the world.”10
Another late nineteenth-century tribute came from the British prime minister William Gladstone, who called the Senate “that remarkable body, the most remarkable of all the inventions of modern politics.”11 Writing in the mid-twentieth century, journalist William White “felt that the one touch of authentic genius in the American political system, apart, of course, from the incomparable majesty and decency and felicity of the Constitution itself, is the Senate of the United States.”12 And to cite just one of many possible examples from more recent senators, Robert Byrd deemed Senate service “the highest political calling in the land,” with the Senate itself “the central pillar of our Constitutional system,” even “hallowed ground.”13
These flattering quotations about the Senate, however, can and should invite skepticism in much the same way unrefined American exceptionalism has. Both exceptionalisms are similarly misleading or disingenuous. Behind or beneath the lofty rhetoric and imagery of each is a more complicated and at times sordid reality. The Senate’s exceptionalism parallels the denial and duplicity of American exceptionalism, if for no other reason than that the Senate often played a particular role in many of the same events that trouble the typically pollyannaish national self-conception, including slavery, the Civil War, Gilded Age corruption and inequality, Jim Crow, segregation, and Cold War hysteria. Both forms of exceptionalism raise suspicions that the rhetoric is overblown precisely to obscure, overcome, and excuse the rather profound shortcomings and tragedies that are as much a part of the historical record as the triumphs and achievements. Just as American exceptionalism can interfere with a sober assessment of the nation’s past and its relationship to present and future decisions about how to employ governmental power at home and abroad, Senate exceptionalism has clouded our assessment of the behavior, purpose, and value of that institution.
I offer a critical analysis and assessment of the Senate’s relationship to American democracy. Distinct from the volumes of work that analyze various aspects of the Senate from a purely historical or empirical perspective—that is to say, from an explicitly or implicitly value-neutral perspective—this book is a normative evaluation of the Senate. My central question is not “How does the Senate operate and what are the measurable consequences of its unique characteristics?,” even if this book contributes to our empirical understanding of the Senate. Instead, I ask “How do we evaluate and judge the Senate as one of the central institutions in American democracy, both past and present?” What is the relationship of the Senate to the Constitution and the American system of government? Does the Senate’s relative power and purpose, along with the ideas that support them, help or hinder democratic government in the twenty-first century? As part of this inquiry, what is the relationship between the Senate and the contemporary crisis in American governance? And if constitutional changes to our institutions are necessary for better governance, then how should the Senate be altered to be part of the solution rather than part of the problem?
These are important questions, but scholars have tended to address them at best indirectly. Most empirical studies of the Senate, which dominate treatments of that institution, have little to offer as far as normative or constitutional evaluation,14 while normative studies drawing on democratic theory tend not to study or apply their analysis to real institutions.15 Scholarship in the area of American political development, with its emphasis on changes in institutions and power over time, has certainly concerned itself with questions of constitutionalism, sometimes quite directly. But only a few modern works have touched on Senate constitutionalism.16 A limited but important segment of legal scholarship comes closest to addressing my set of questions, usually by taking on a particular feature of the Senate, but not in the comprehensive fashion I do here.17 For the student or citizen seeking an understanding of the Senate’s role with an eye toward evaluating its contribution or need for reformation, this book offers a historical argument that explicates and critiques the Senate’s role in the American system of government.
In the pages that follow, I advance three interrelated arguments. First, the Senate, with the help of various commentators and the citizenry as a whole, has produced a constitutional mythology about its place and purpose. Across the generations, the Senate has constructed important distinctions for itself—an exceptional role in the American system of government—that have no firm foundation in the Constitution. Second, these ideas about the Senate are part and parcel of its problematic role in the governmental process, a role shaped primarily by the combination of equal representation and the power given to political minorities by Senate rules of procedure. Third, while Senate mythology and the dysfunction are general in their origins and impact, the Senate has been uniquely related to the history of race in America, from the depravity of slavery, through the protracted era of racial subjugation, to the post–civil rights decades of inequality and underrepresentation.18 I tease apart the Senate’s constitutional self-image, exposing the particular relationship of the “world’s greatest deliberative body” to the maintenance of white supremacy, and explain the Senate’s broader clash with modern democracy and effective government. In short, the contemporary Senate is neither as the framers intended it to be nor in harmony with the values and needs of a twenty-first-century democracy or republic. No small part of the institution’s dysfunction is because it claims to be operating as the founders wanted, when in fact it is not. The Senate’s architecture, self-conception, and resulting behavior distort rather than complement or complete, as many senators would like to think, modern republican governance.
The problematic ideas about the Senate’s constitutional place and purpose, and the governmental problems they entail, including the relationship to white supremacy, have evolved primarily from four core features of the Senate and the relationships between and among them. They are:
Smaller membership, equal representation, six-year staggered terms, and the relative power of political minorities in the Senate are independently important components of the Senate, but each is often as misinterpreted as it is significant. I show their relationship to the evolution of the Senate’s constitutional and political roles, to each other, and to the problems they have produced. The interpretation of each, separately and in combination, produced a kind of constitutional mythology about the Senate, a misunderstanding and distortion of the Senate’s place and purpose. And, to different degrees, the four have evolved to produce profound and irreconcilable conflicts with contemporary notions of democratic equality and practice, and even with the Constitution itself.
In particular, I emphasize how the confluence of equal representation, the filibuster, and the Senate’s view of itself as a continuing body fostered the misleading idea that the Senate is the Constitution’s explicit safeguard of “minority rights.” The irony is that the principal effect of the Senate’s combination of representation and rules was to thwart or degrade the human rights of African Americans. It would be easy to portray what follows as a story of myth versus reality, and in part it is just that. But this is a story of constitutional complexity—the social construction of belief, of partial truths that obscure less flattering realities—rather than simply fact versus fiction.
Not surprisingly, our story begins with the 1787 Constitutional Convention. Chapter 1 makes a series of points about the design of the Senate in relation to the other bodies and branches of government. With respect to the Senate’s constitutionalism, the smaller membership was for almost every delegate at the Constitutional Convention the essence of a deliberative upper house of older and wiser statesmen elected for long terms. A limited number of such senators would foster and protect the collective quality of deliberation. Senatorial deliberation would be the product of its composition, not the rules of procedure senators might write to govern debate. The kind of debate fostered by its small size was complicated, however, by the fraught compromise that resulted in equal representation, or two senators per state. If the Senate was exceptional, it was for the manifest tension and outright contradictions between its role as a body comprising far-sighted and detached national statesmen and a structure based in equal representation of states and consisting of two-person delegations sent by self-interested state legislatures. Moreover, by creating state equality in the Senate, the founders did not intend that body to be the Constitution’s shield for minority rights against majority tyranny. The system as a whole would protect against the abuse of power. And that system was composed of institutions—the presidency, the judiciary, and even the House of Representatives—that were as innovative as or more exceptional than the Senate in their form and function.
Chapters 2 and 3 explore and critique equal representation of states in the Senate. Chapter 2 analyzes the politics of equal representation from the founding to the early twentieth century and focuses on the role of the Senate in protecting the slaveholding interests of the southern states prior to the Civil War. After the Civil War, equal representation evolved into a tool for regional and partisan combat as the two parties fought for control of the branches of the national government and new western states were added to the union, to be duly represented in Congress. Ironically, in light of equal representation’s prominent role in magnifying the power of both slave states and states of the former Confederacy, a structure put in place in a political compromise to represent states equally regardless of population became the main basis for the social construction of the Senate as the protector of minority rights in general.
In the second half of the twentieth century the original relevance of equal representation all but disappeared as its distortion of other values became increasingly pronounced. Chapter 3 focuses on equal representation’s conflict with the fundamental tenet of modern democratic theory, which is also the primary principle of democratic citizenship in modern constitutionalism here and abroad: one person, one vote, or a fundamental equality among citizens in their ability to choose their government. Once the Supreme Court interpreted the Constitution’s equal protection clause to create this central standard of modern democracy—one person, one vote—states’ equal representation in the Senate lived on as the glaring violation of this principle. And as partisan polarization emerged to dominate American politics in the twenty-first century, two senators per state not only increasingly distorted the voting power of citizens across states but also magnified the power of rural white voters over urban minority voters. The Senate cannot escape its inherent violation of political equality in general and its bias against racial equality in particular.
As the impact of equal representation evolved, the Senate developed a notion of itself as the unique “continuing body” intended by the founders, which is the subject of chapter 4. Much as equal representation of states led to the more general idea that the Senate was designed to protect minority rights in general, senators distorted the rationale for the institution’s longer, staggered terms into a constitutional doctrine that the Senate was an immortal continuing body. In turn, this conceit became one of the foundations for the Senate’s exaggerated self-image in general and for the immutable, Olympus-like status of its rules of procedure, especially those that empower what we think of as the filibuster. This conception of the continuing body helped to protect the rules of the Senate that empowered filibusters, a weapon employed most prominently and persistently in defense of white supremacy. Equal representation and the continuing body doctrine combined to foster the idea that the Senate has a unique—indeed, constitutionally essential and sanctioned—deliberative function tied, again, to a misleading and ironic conception of minority rights.
Beyond the constitutional mandate of equal representation, the Senate creates minority power through its rules of procedure. Chapter 5 analyzes the evolution and impact of the filibuster as a product of those rules. As the Senate grew and the nation changed, the emphasis on the collective quality of debate gave way to norms and procedures that emphasized the individual right to hold the floor—the potentially unlimited quantity of debate—regardless of quality. Senate rules of procedure create minority power to delay or prevent decisions by majority rule, making it possible for a minority of senators to delay, obstruct, or prevent what the majority of legislators would like to accomplish. The word most often associated with minority obstruction in its various forms is “filibuster.” The filibuster is the use of procedural tactics to delay or prevent a majority decision. Supermajority cloture—the main Senate rule, first adopted in 1917, that empowers filibusters—requires, when any number of senators object, three-fifths of all senators (a supermajority rather than a simple majority) to close debate on a pending measure. The power and use of this rule eventually created the “sixty-vote Senate,” the near requirement of three-fifths of all senators to do anything of importance. Along the way, from the late nineteenth century through the 1960s, the filibuster and the use and abuse of supermajority cloture were associated with one issue: opposition to the civil rights of African Americans and the defense of southern white supremacy. And even as the triumph of civil rights law eroded that tight relationship, the rise of the sixty-vote Senate made clear the filibuster’s sizable contribution to policy gridlock, diminished deliberation, and congressional incapacity.
As potent as any provision in the Constitution, supermajority cloture became a minority veto that cannot be found in the Constitution or justified by it, even though, as we shall see in chapter 6, many senators and commentators claimed just the opposite. In fact, the sixty-vote Senate is an affront to the document as crafted and explicated by the framers. Over the past century, and despite its intimate connection to white supremacy, the filibuster or supermajority cloture became so important, so central and vital to the Senate’s constitutionalism, that many of its supporters have come to think of it as the sine qua non of the institution itself. It is the core, essence, or even “soul” of the Senate.20 For many, the filibuster is what makes the Senate supposedly the greatest deliberative body in the world, rather than, as has been the case, its near antithesis. Chapter 6 shows how supermajority cloture contradicts the Constitution by upsetting, among other things, the delicate balancing act that defines the system of separated powers combined with checks and balances.
The tortured relationship of the contemporary Senate to the filibuster and the power of minorities to thwart Senate decisions, especially as the two parties and congressional representation became increasingly polarized, generated controversy and calls for reform, even as many still defended supermajority cloture. Chapter 7 examines how the filibuster has been restricted in recent decades. First, and relatively uncontroversial and bipartisan, have been legislated exceptions that circumvent potential Senate obstruction in consideration of particular measures, such as approval of trade agreements. Second, and the result of bitter partisan frustrations, the Senate in 2013 and 2017 voted to eliminate the use of the filibuster and supermajority cloture in consideration of all presidential appointments to the executive branch and the federal judiciary, including the Supreme Court. The changes diminished and constricted the sixty-vote Senate, but the impact of the supermajority cloture remained a powerful force in determining what happened in that body and across the government as a whole.
The combination of equal representation and supermajority cloture, supported by the continuing body doctrine, puts the Senate in direct confrontation with contemporary democratic values and practice, and even with fundamental principles of the Constitution itself. Minority power in the form of supermajority cloture, layered as it was on top of the minority power created by equal representation, came to be defended as a form of voice when it was from the start really about victory. It is not about deliberation and compromise; it is a decision rule that allocates an effective veto. And together, these distorted forms of representation and rules have been at the core of the Senate’s history as the institution of national government most closely tied to white supremacy. The Senate as it operates today is built on these distortions and contradictions. The book concludes with reforms—including the elimination of equal representation and the filibuster—as ways to construct a Senate able to meet the requirements of twenty-first-century constitutionalism and government.
Charles Lindblom closes his magnum opus, Politics and Markets, with a final comment on the power of the modern business corporation “as a peculiar organization in an ostensible democracy.” The large private corporation, he writes, “fits oddly into democratic theory and vision. Indeed, it does not fit.”21 The same can be said of the contemporary US Senate, which, unlike Walmart or Google, is a governmental institution. It is past time for the people of the United States to look beyond the immediate problems that must be solved to the governmental structures and relationships that not only are failing to solve those problems but also are alienating the citizens whose support and confidence are essential to successful government. Many things should be on the table. This history and analysis of the Senate’s constitutionalism and behavior put that institution front and center—but hardly alone—in a reconsideration of the American system.