Today I would like to continue the discussion about the destruction of the Senate as a deliberative body and continue to echo the call of the distinguished Minority Leader for a return to a functional Senate.
I don't intend to dwell on the use of the so called "nuclear option" related to filibusters.
The majority leader's claim that the Senate's dysfunction is related to some unprecedented use of filibusters has been thoroughly debunked.
This claim is directly refuted by the very source he's pointed to, the Congressional Research Service, and has been debunked by fact checkers in the media.
Yet, the Senate is dysfunctional, beyond a doubt.
To get to the bottom of how and why the Senate is not functioning, we must have a clear understanding of just how it is supposed to function.
There is no better source for this than the Federalist papers.
I have referenced the Federalist Papers before on this subject, but it is worth going into more detail about what the Framers of the Constitution had in mind when they created the Senate.
Federalist Paper 62, which is usually attributed to the Father of the Constitution, James Madison, begins to lay out the rationale for how the Senate is to operate.
He mentions that the number of members and the length of terms are different between the House and Senate before saying:
"In order to form an accurate judgment on both of these points, it will be proper to inquire into the purposes which are to be answered by a senate; and in order to ascertain these, it will be necessary to review the inconveniences which a republic must suffer from the want of such an institution."
In other words, Madison is going to tell us the purpose of the Senate starting with the problems a republic would face without a senate and how the Senate is designed to correct these problems. As we hear from Madison about how our legislative process is supposed to work, I would encourage my colleagues to think about major legislation that has been considered in Congress in recent years.
In fact, arguably the most major bill that has passed in recent years, President Obama's Health Care Law, serves as one example.
When that law was considered, one party held the Presidency and House of Representatives with a supermajority in the Senate.
That means they could run the Senate like the House without the need to compromise with the minority.
We are now dealing with daily problems caused by the way the Health Care Law was written, which is something to keep in mind as Madison describes the problems the Senate was designed to prevent.
Here's the first problem Madison discusses:
"First. It is a misfortune incident to republican government, though in a less degree than to other governments, that those who administer it may forget their obligations to their constituents, and prove unfaithful to their important trust. --
In this point of view, a senate, as a second branch of the legislative assembly, distinct from, and dividing the power with, a first, must be in all cases a salutary check on the government. --
It doubles the security to the people, by requiring the concurrence of two distinct bodies in schemes of usurpation or perfidy, where the ambition or corruption of one would otherwise be sufficient. --
This is a precaution founded on such clear principles, and now so well understood in the United States, that it would be more than superfluous to enlarge on it. --
I will barely remark, that as the improbability of sinister combinations will be in proportion to the dissimilarity in the genius of the two bodies, it must be politic to distinguish them from each other by every circumstance which will consist with a due harmony in all proper measures, and with the genuine principles of republican government."
In other words, having a second chamber of Congress, designed to operate differently from the House, makes it less likely that a partisan agenda that doesn't reflect the views of Americans will pass.
That is not a function the Senate currently performs as it has been run on purely partisan terms since 2007.
For example, you'll recall that the President's healthcare proposal did not enjoy widespread public support, yet it passed the Senate along strictly partisan lines with little input sought or accepted from the minority party.
In fact, before a final bill could be passed reconciling the House and Senate bills, a special election was held in the liberal state of Massachusetts resulting in the election of an opponent of the proposal.
Instead of moderating the proposal just a bit so it could attract even one Republican vote, the House passed the draft Senate bill then used a budget tool called reconciliation to ram another bill through the Senate with a simple majority to change items in the first bill.
That's not how Madison intended the bicameral Congress to work.
Here's Madison's next point:
"Secondly. The necessity of a senate is not less indicated by the propensity of all single and numerous assemblies to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions. --
Examples on this subject might be cited without number; and from proceedings within the United States, as well as from the history of other nations. -
But a position that will not be contradicted, need not be proved. --
All that need be remarked is, that a body which is to correct this infirmity ought itself to be free from it, and consequently ought to be less numerous. --
It ought, moreover, to possess great firmness, and consequently ought to hold its authority by a tenure of considerable duration."
In other words, if you have just one legislative chamber with a large number of members, it is likely to make laws hastily based on a partisan agenda without thinking through all the long term consequences.
A hastily passed partisan agenda that ignores the long term consequences -- doesn't that remind you of the healthcare law?
Remember how then-Speaker Pelosi said the House had to pass the bill to find out what was in it?
They were in such a rush, they couldn't be bothered to read it.
The Senate is intended to be smaller, more deliberative, and less partisan.
Imagine if the Senate had been allowed to operate in a deliberative fashion and craft a truly bipartisan healthcare proposal.
If that had happened, we certainly could have come up with something more workable than the current law.
Madison continues his explanation of the rationale for the Senate:
"Thirdly. Another defect to be supplied by a senate lies in a want of due acquaintance with the objects and principles of legislation.--
"It is not possible that an assembly of men called for the most part from pursuits of a private nature, continued in appointment for a short time, and led by no permanent motive to devote the intervals of public occupation to a study of the laws, the affairs, and the comprehensive interests of their country, should, if left wholly to themselves, escape a variety of important errors in the exercise of their legislative trust. --
"It may be affirmed, on the best grounds, that no small share of the present embarrassments of America is to be charged on the blunders of our governments; and that these have proceeded from the heads rather than the hearts of most of the authors of them. --
"What indeed are all the repealing, explaining, and amending laws, which fill and disgrace our voluminous codes, but so many monuments of deficient wisdom; so many impeachments exhibited by each succeeding against each preceding session; so many admonitions to the people, of the value of those aids which may be expected from a well-constituted senate? --
"A good government implies two things: first, fidelity to the object of government, which is the happiness of the people; secondly, a knowledge of the means by which that object can be best attained. --
"Some governments are deficient in both these qualities; most governments are deficient in the first. --
"I scruple not to assert, that in American governments too little attention has been paid to the last. --
"The federal Constitution avoids this error; and what merits particular notice, it provides for the last in a mode which increases the security for the first."
That's a long quote, but Madison is essentially saying that the House is to be composed of a representative slice of American citizens, while the Senate is supposed to be composed of individuals that have more experience and approach public policy more thoughtfully.
I'm sure that many people might question whether the individuals in the House or the Senate match those descriptions today, but it is true that the rules of the House allow for new ideas to be quickly translated into legislation.
By contrast, the process in the Senate has historically been slower and more deliberative to refine those ideas into laws that can stand the test of time.
Note that Madison complains about all the "repealing, explaining, and amending laws" that have had to be passed by the unicameral legislatures that were common in states in the early days of our Republic.
Our early experiences with passing bills quickly without thinking things through led to the understanding that we should take our time and get it right the first time.
That's what the Senate is supposed to do.
The failure to allow the Senate to take the time to examine and revise legislation results in bad laws that don't work.
We now have a situation with the Health Care Law where the President claims the authority to unilaterally suspend or reinterpret parts of the law that are clearly unworkable.
That is very similar to the embarrassing situation Madison refers to of a constant stream of "repealing, explaining, and amending laws", except the President is doing all the repealing, explaining, and amending unilaterally.
Our constitutional system is not designed to pass a lot of legislation quickly, and that can be frustrating, particularly to a majority party anxious to enact its agenda.
Still, our deliberative process is a design, not a flaw.
Based on experience, the Framers of our Constitution determined that it was better to get it right the first time than to subject the American people to the upheaval of laws that need to be constantly amended or repealed.
The House was designed to act quickly, but not the Senate.
The fundamental problem is that the current majority leader is trying to run the Senate like the House and it is not designed that way.
Sure, when they had 60 votes, it was possible to ram legislation through the Senate without any deliberation, but that's no longer the reality.
When the majority leader brings a bill to the floor, he routinely blocks amendments and then rapidly moves to end consideration of the bill.
That means that the Senate is presented with a measure as a fait accompli and has to take it or leave it.
In other words, the majority leadership wants their agenda approved no questions asked or nothing at all.
The fact is, if the majority leadership just allowed the Senate to deliberate, we could get a lot more done than we have been doing.
Sure, we might not get as many laws passed as they would like.
The full Senate, through its deliberation, may alter legislation somewhat from how the majority leadership would prefer.
Still, we would be able to accomplish some important legislation.
But no, that's not acceptable, we're told.
For all the talk about getting things done, the majority leadership has demonstrated repeatedly-- with cloture motion after cloture motion-- that it would rather grind this body to a halt than allow the slightest alteration to their agenda.
The latest message from the majority leadership is that they will respect the right of senators to offer an amendment only if they have certain assurances about the final outcome.
The senior senator from New York implied that's the way it used to be done.
We'll, I can assure you that in the 33 years I've served here, it's never been done that way.
I've managed a lot of bills over the years, and if I had tried to impose that requirement, I'd have been laughed at, to say the least.
Since when did duly elected senators have to negotiate for the right to represent their constituents?
An open amendment process should be the default situation, not something that is granted at the sufferance of the majority party leadership.
We must get back to regular order.
That means an open amendment process without preconditions or special limitations on what amendments will be allowed.
Cloture shouldn't even be contemplated until after a substantial number of amendments have been processed.
That was the standard practice when the Senate got things done.
Again, Madison describes a Senate that is to represent all Americans, not just one party.
It was designed to be more thoughtful and deliberative, and yes slower than the House.
The Senate's purpose is to make sure that Congress passes fewer but better laws.
We saw what happened when the Senate was controlled entirely by one party while the voices of the minority party and the citizens they represent were ignored.
We got a deeply flawed health care law, and the American people are paying the price.
Yet, the majority leader insists on running the Senate like he still has 60 votes and refuses to compromise.
That's not how the authors of our Constitution intended the Senate to work, and it isn't working.
The Senate is facing a crisis and the only way to solve it is to restore the Senate as the deliberative body envisioned by the authors of the Constitution.
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