The Progressive Decline of the Senate

You would have thought we were watching a Mr. Smith Goes to Washington ending with the corrupt Senator shooting filibustering good guy Jimmy Stewart.

Whatever good or ill the filibluster has produced in years past, reliance on this and other institutional devices kept conservatives from making more fundamental arguments concerning the Senate’s purpose. Fundamental, philosophic issues were suppressed in favor of “process.” Thus in the leadership slots we get American variants of Anthony Trollope’s parliamentarian Timothy Beeswax when we need men with virtues beyond cunning.

I join my blogging colleagues in diminishing the long-term significance of the filibuster’s demise. As Greg Weiner, himself a former Senate staffer, notes, “The rarity with which [the filibuster] was once used, even in the Senate’s heyday, calls into question the notion that it is somehow integral to the body’s proper functioning. The institutional culture, now badly eroded, is a far more important factor in the Senate’s constitutional corrosion.” He joins originalist, Mike Rappaport, who emphasized that tit will follow tat.

"The United States Senate" by John S. C. Abbott in 1866.

“The United States Senate” by John S. C. Abbott, 1866.

Yet another originalist, an astute student of federalism and the Senate, Ralph Rossum, argues that the filibuster (as that body’s internal rule) is at its strongest concerning the preservation of federalism, which the Senate uniquely defends. The filibuster is also legitimate when applied to legislative matters in general. It should not, however, he argues, extend to judicial and many executive branch nominations. Rossum does put executive agencies (which he rightly holds of dubious constitutionality) in a separate, condemnable category. He has argued that if the framers wanted a supermajority vote for life-term judges, they would have written that into the Constitution, as they did for Senate ratification of treaties.

These originalist approaches to the filibuster appear to uphold the legitimacy of the filibuster change, without of course supporting the subsequent judicial or executive branch appointments. They remind us of the obligation to prefer constitutional principles over current public policy preferences we happen to hold. And this will turn out, I argue, for the best in policy consequences.

The fundamental problem of Congress is this Progressive transformation of the Congress. Willmoore Kendall’s former “red branch” Congress has now become deeply blue. With their bravado denunciation of unconscionable delay and their appeal to “get things done,” the Senate majority leader and his team stuck yet another knife in the old Constitution. The first formal blow was the 17th Amendment, which made the Senate directly elected by the people. Allegedly an attempt to purify their election, in fact it decoupled state legislatures from national vision. This made it all the easier for majoritarian (frequently demagogic) appeals to win Senate seats and legislate for the people. The Progressives wrongly elevated bribery over demagoguery in the catalogue of democratic sins.

Stepping back from the current farrago, we note that the House of Representatives, under both parties, has lately functioned like the House of Commons. The old deliberative Senate is long dead. When the Congress is divided, this lack of deliberation in the House encourages the filibuster in the Senate, where it has been applied rather promiscuously, to legislation and to executive branch and judicial nominations. Attention to the filibuster as a means distracts from the presumptive aim of blocking nominations: containing the Administrative State or bureaucracy.

Because Senate elections occur for one-third of its members every two years, some of the traits of the old Senate remain, enhanced by its internal rules, such as the late filibuster. The Progressive emphasis on “getting things done” is contrary to the founders’ view of the Constitution and the purpose of national government. The founders’ great fear—see Federalist 10 and 51—is majority faction. Preventing this evil, while maintaining majority rule, is the burden of the first part of the Federalist Papers (1-36). Therefore the founders, fearing demagoguery, invented ingenious ways to prevent simple majoritarianism from ruling. The filibuster played well into this constitutional principle, following the establishment of political parties, but its defenders did not articulate its relationship to this fundamental principle.

With its optimism about human nature’s ability to wield political power, Progressivism made “getting things done” the primary focus of national politics. Didn’t the crises of national life—the rise of corporations, mass immigration, war, and class conflict (plus ca change!)—require the national government to transform itself to meet its purposes? This love of legislation has generally trumped the fear of tyranny—until now, when Obamacare turned over the rocks and exposed the underlying ugliness of Progressive policy.

The Democratic leadership today has essentially the same message as their predecessors Theodore Roosevelt, Woodrow Wilson, and Franklin Roosevelt. With Obamacare the ordinary citizen can see the practical result of replacing natural law with Darwinism, “safety and happiness” with political experimentation, and the real Bill of Rights with the “Second Bill of Rights.” It is time to spotlight the naked defense of these policies in Franklin Roosevelt’s First Inaugural and insist on bipartisan debates over them, as I have argued before.

Unfortunately, the Republican opposition today has even weaker arguments than their predecessors, such as Elihu Root and William Howard Taft, who at least made constitutional objections. Today’s Republican legislators come out of law schools, where the Constitution is no longer seriously taught. And natural law principles are nowhere to be found. They learn procedural objections but cannot get to the principle, the heart of the matter. Their rhetoric against “judicial activism” bears the same taint—Why not be active in defending liberty?

But even if today’s Republicans are by and large incapable of identifying the evil as Progressivism, they can at least make the target Obamacare and hopefully, by extension, the entire apparatus of the administrative state, viz. bureaucracy. The federal appeals court slated for the nominees that triggered the controversy is the D.C. circuit, a key court for Obamacare. Thus the filibuster overhaul, far from being a distraction from his Obamacare woes, is actually an attempt to throw up protection of this disaster. This desperate defense of Obamacare (and its bureaucratic brethren) should be the message, not some appeal to “the traditions of the Senate” and a resurrection of the late Senator Robert Byrd.

Finally, let us remember why Harry Reid is still in the Senate in the first place and majority leader, to boot. Why isn’t he writing his memoirs? Look no further than Sarah Palin. For those whose instinct is to recoil in disgust, just look up the list of those she endorsed for Senate races over the past election cycles and note the number of Republican women who received her endorsement and won (as well as those, such as Reid opponent Sharron Angle, who ignominiously lost). Recall too that in some races she went against the Tea Party picks. That is the Republican strategic power and problem right now. Their best horse picker is Sarah Palin.

Ken Masugi

Ken Masugi is a Senior Fellow of the Claremont Institute. He teaches in graduate programs in political science for Johns Hopkins University and for the Ashbrook Center of Ashland University. He has edited Interpreting Tocqueville’s Democracy in America, co-edited The Progressive Revolution in Politics and Political Science, and co-authored and co-edited several other books on American politics and political thought. In addition, he has worked ten years in the federal government as a speechwriter and on policy issues, at the Equal Employment Opportunity Commission, where he was a special assistant to Chairman Clarence Thomas, and the Departments of Justice and Labor.

About the Author

Comments

  1. gabe says

    Ken:
    You hit it right on the head:
    “Their rhetoric against “judicial activism” bears the same taint—Why not be active in defending liberty?”
    Of course the opposite is also true: Those who propose “judicial deference” as a remedy may not realize that this much vaunted deference may support a further loss of liberty and / or as Michael Greve has pointed out – a loss of competitive federalism.
    All this by way of saying, “yes, go ahead and read “Upside Down Constitution.”

    Also, one gets tired of hearing endless discussions by the pundit class concerning the “genius” of party tactics or strategy; let the Wills, Krauthammers, etc of the world have their little podium(s) – I, for one, want to hear a little ideology / philosophy. I think we would all be a damn sight better for it.
    take care
    gabe

  2. R Richard Schweitzer says

    This is really a wide ranging piece.

    But let us begin at the “capture” of the function of the Senate as part of the mechanism of government.

    Progressives “require the national government to transform itself to meet its purposes.” That explicitly requires that government shall become a “purposive enterprise” (see, Michael Oakeshott’s “Character of a Modern European State” in his “On Human Conduct” Oxford 1975). This transforms the Senate from selecting and controlling the functions of government to itself having the function of acting for the purposes of the enterprise.

    There are adequate scholarly disquisitions on the manner in which those purposes have been, and are, determined in the Progressive agenda, which calls for a “popular government” of “delegates” rather than a parliamentary republic.

    The replacement of limited functions with extensive purposes has brought about the observed changes in the Senate, it’s makeup and its procedures.

    The present Majority Leader of the Senate is only a product of the trends which began long before, and were well advanced before Sarah Palin was born in 1964. The attribution of difficulties in stemming those trends to the influence of a single individual in the primary system seems somewhat tenuous.

    It is correct to note that there is a rising (but probably temporary) impetus on the part of some of the electorate to replace delegation with representation. There is no indication of the change in government as a “purposive enterprise.” It takes a place of many individual risks and responsibilities. It is “popular.” It is also morally destructive.

  3. gabe says

    Richard:

    I missed something here.
    “There is no indication of the change in government as a “purposive enterprise.”

    Your earlier comments would seem to indicate that there was (is) a change in this direction.
    My own thinking is that there is clear evidence of “purposive enterprise” in that under Progressive tutelage the enterprise is endowed with a purpose to achieve the ‘end-state” of human happiness as defined by our Proggie friends. It may be popular and it is certainly destructive of morality and good order; yet it is quite real to my mind and it employs the vast panoply of Legislative and Executive agencies to accomplish this end or purpose. Sadly, it is not limited to the central Leviathan but is also to be found in the various State and Municipal governments.

    take care
    gabe

  4. R Richard Schweitzer says

    Gabe

    I was referring to the lack of indication in the piece as one of the “causes” (vis a vis “Palin”) for choices of individuals such as Reid.

    • gabe says

      Richard:

      Okey doke! thanks. makes sense.

      I would not vote for her but i do think she has taken quite an undeserved beating in the media.

  5. djf says

    The point of Ken’s last paragraph is a bit confusing. After giving it some thought, I think what he’s saying is that the reason the Democrats still control the Senate is that the Republican Party leadership is not even as good at picking horses as Sarah Palin.

  6. gabe says

    djf:

    After following the link, I see that you are right. She picked 8 out of 14 – a hell of a lot better than Fathead (apologies to Green Bay’s Clay Matthews) Rove!!!
    Both types of Fatheads should be stuck to a wall – at least the athlete Fatheads have accomplished something in the last ten years…….

  7. djf says

    “Fathead” is a good description of Rove, Of course, if his goal is to get rich through ineffective campaign-consulting — turning politics into a scam — he’s a genius. But I suppose he’s delusional enough to believe that his tired, repetitive tactics will eventually work. Maybe the ACA disaster will make him look like the political Napoleon he imagines himself to be in the next election cycle. We’ll see.

  8. gabe says

    Carl:
    Ken has been tearing it up for over 35 years! so no surprise!

    I am not familiar with Connelly – (checked amazon) can you recommend something by or about him – hopefully something short as my reading list is growing beyond my ability to read it?

    take care
    gabe

  9. Ken Masugi says

    Carl, I’ve become more shameless over age. Gabe: Bill Connelly is one shrewd observer of American politics. Carl should be able to provide some articles. His co-authored book with Jack Pitney fortunately contains a question mark.

  10. says

    Gabe, on the topic of a polarized Congress, he has a recent academic essay, “Partisan, Polarized, Yet Not Dysfunctional?” you can get via Google. Good short excerpts in the Nichols/Nichols book Readings in American Government. His big book on Congress topics is James Madison Rules America.

    • gabe says

      Carl:

      Thanks much – will have to get one of them; I suppose if my wife can have 50 pair of shoes, I should push my reading list up to a similar number.

      take care
      gabe

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