Sen. Rand Paul (Jeff Malet, maletphoto.com)

Stop hating on the Senate

This week's filibuster highlighted how the upper chamber can represent minority interests otherwise ignored


Jonathan Bernstein
March 9, 2013 7:00PM (UTC)

The Senate has a terrible reputation, overall, with fans of democracy. And in some ways, it deserves it! After all, there’s just really no legitimate justification for the massive malapportionment at the heart of the Senate, with Wyoming and California having the same two senators.

And yet … the Senate still holds a place in the mythology of American democracy that the House of Representatives never has. Reporters and pundits who hate modern filibusters look longingly at the fictional Jimmy Stewart filibuster in "Mr. Smith Goes to Washington," and are quick with praise whenever serious debates break out on the Senate floor.

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The Senate does have some advantages over the modern House, but that it has potential to be a better debating society isn’t one of them, or at least not an important one. So I won’t be celebrating Rand Paul’s day-long speech this week as an example of what filibusters should look like.

Instead, I’ll celebrate it for something a little different: Paul was trying to use the leverage that chamber rules give individual senators and small groups of senators.

That ability for lone politicians to really make a difference is what separates the Senate from the House, especially the modern House after the reforms that established strong party rule by 1975. In the House, individual members are close to irrelevant in most cases. Even those in positions of authority – committee chairs and the leadership – have relatively little ability to deviate from the dictates of almighty party. That’s not necessarily a bad thing; political parties at their best have an enormous capacity for aiding democratic governance by aggregating and organizing interests and preferences in a way that can give voters sensible choices – and, for properly permeable and therefore democratic parties, allow more active citizens a real and meaningful way to become political actors.

And yet … parties also have their limits. They tend to be ideological, which limits the scope of available options; majority parties attempt to rule issues out of bounds in order to retain their current majority.

That’s where the Senate can play an important role. Individual senators can do much more than simply register votes for the party platform. And that means they are free to press issues that the majority party, for whatever reason, ignores. Those might be narrow issues of interest mainly to constituents in one state or a handful of states; they might be national issues that for whatever reason sort badly on party lines and therefore are ignored or even suppressed.

The structure of the Senate makes that extremely possible for a hardworking legislator. Because the Senate floor functions by unanimous consent, senators can use the threat of objection to put holds on nominations and bills – and use that hold to negotiate for some specific concern. On executive branch nominations, that means that individual senators or small groups can use leverage over some selection to bargain for specific requests from the relevant department or agency. On bills, it gives senators a chance to negotiate over specific provisions on behalf of interests that might otherwise be ignored. There’s more, too: Senators have also traditionally been able to offer even non-germane amendments to bills, which means that parties cannot dictate which measures get votes from the full Senate.

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Sometimes, as when a senator cuts a deal for a small constituency, this can undercut majorities. That can be troubling for democracy, but then again one can read American Madisonian democracy as in part an assertion that when an intense minority is opposed by an indifferent majority that the democratic answer is for the minority to win. Other times, as when a senator offers a popular amendment that the majority party opposes, one can argue that the influence of individual senators can actually enhance majority rule.

All of this would admittedly be better if the Senate itself was apportioned in a more reasonable way. But even as it is, there’s a lot of value – democratic value – in having 100 different senators who could look after any particular narrow interest.

More broadly, because the Senate is less committee-oriented than the House, any senator can pick any issue, acquire some expertise and legislate effectively on it. Power, in this sense, isn’t zero-sum; the ability of each senator to take meaningful action just increases the total ability of the body. This strengthens the chamber, and in turn strengthens the republic.

Unfortunately, the influence of individual senators or small groups of senators is severely threatened by one thing: the 60-vote Senate that was initiated by Bob Dole’s Republicans in 1993 and institutionalized by Mitch McConnell’s Republicans in 2009. By using (and abusing) the rules that have been used to enable individual senators to have influence as mechanisms for the minority party to block what the majority party wants, the Republican always-filibuster plan has forced the majority to fight back by limiting those rules. For example, if amendments are used mainly by the minority party to embarrass the majority party, then the majority party will fight back (as it has) by finding ways to limit the number and type of amendments that can be offered.

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And eventually, the chances are good that the 60-vote Senate is dysfunctional enough that sooner or later a majority party will be fed up and just implement a majority-rule chamber. And a lot of people will cheer, because if there are only two choices, then a chamber ruled by simple majorities sure seems better than a chamber ruled by its large minority.

But a better plan than either of those choices is one in which both majorities and minorities have influence and get things done. That, and not showcase speeches, is the Senate at its best.


Jonathan Bernstein

Jonathan Bernstein writes at a Plain Blog About Politics. Follow him at @jbplainblog

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