How the Senate Went off the Rails

Trump’s presidency makes the urgency of repairing the upper chamber all the more apparent.

Ira Shapiro was just leaving the Senate in 1987 as I was beginning my time as a Senate staffer. We both worked for New Yorkers: he was an intern for Republican Jacob Javits and I was a legislative staffer for Daniel Patrick Moynihan, a Democrat. In those years, Democratic and Republican Senators could cross the aisle and compromise to produce legislation. It was a blessing to work for those who held their institution and their colleagues in high esteem, as Shapiro and I did. But it was also a curse, because we spend a lot of time in later years lamenting how much the Senate has changed.

broken cover

Broken: Can the Senate Save Itself and the Country? by Ira Shapiro
Rowland & Littlefield Publishers, 322 pp.

In a new book, Broken: Can the Senate Save Itself and the Country?, Mr. Shapiro has produced a two-for-one deal for readers. In Part I, Shapiro brings to life a number of U.S. senators who played pivotal roles in the Senate’s history, and takes the reader through the institution’s transformation from one that required bipartisanship to produce legislation, approve treaties, and confirm executive nominations, to one that is now as close to pure majoritarian as at any time in history. From the days of James Eastland, Jesse Helms, Hubert Humphrey, and Howard Metzenbaum, to the era of Rand Paul, Ted Cruz, Bernie Sanders, and Elizabeth Warren, senators have less and less ability to impose their individual will either to obstruct and advance legislation.

To many observers, the failed Supreme Court nomination of Robert Bork in 1987 was a turning point, because the Senate rejected the nominee on ideological grounds. A good many prominent Democrats were up for reelection in 1988, so it was both ideologically consistent and politically expedient to oppose Bork with ferocity.

Shapiro argues that the 100th Congress “recovered” from Bork, because senators from both parties were able to support subsequent nominees, and still work together on other legislation. But the Bork episode left a far deeper scar than Shapiro acknowledges—in the long run, it showed senators from both parties that intense conflict over ideology was an effective tool in rallying their party’s most active members. This proved true just two years later, when Georgia Democrat Sam Nunn led the Senate in defeating the nomination of John Tower to be President George H.W. Bush’s secretary of defense. As the law of unintended consequences would have it, the replacement for Tower was a Republican congressman from Wyoming by the name of Dick Cheney. There was never an age of automatic deference to presidential nominations, but the Bork and Tower nominations signaled that powerful changes in senatorial incentives were underway.

In Part II, Shapiro makes a broad case for the importance of people—literally individuals—in making or breaking the United States Senate. He rightly argues that Mitch McConnell and Harry Reid were the worst combination of leaders in the modern era. This is obvious in McConnell’s case—his commitment to opposing anything Barack Obama wanted to do, no matter the substance, culminating with his brazen near-theft of a Supreme Court seat, have left longstanding Senate norms in tatters. But Shapiro rightly points out that Harry Reid also played a part in shrinking the deliberative space on legislation by blocking opportunities to amend it on the floor, and exerting more control over bills during committee. Like McConnell, Reid saw everything through a fierce partisan lens. One could argue that Reid was justified in defending his party, and his party’s president, in the face of unprecedented obstruction. But one could also imagine a different kind of leader who worked harder to find more openings for cooperation wherever possible.

Shapiro argues that the election of Donald Trump only makes the urgency of repairing the damage more apparent—as a matter of constitutional principle, not ideology. In his description of the first nine months of the Trump administration, Shapiro repeatedly points out instances where individual Senators can make a difference, as with the partnership of Republican Richard Burr and Democrat Mark Warner in leading the Senate Intelligence Committee’s investigation into Russian interference in the 2016 elections. On health care, Shapiro praises the defections of Susan Collins, John McCain, and Lisa Murkowski to defeat the bill to repeal Obamacare. The book was completed before two of the three subsequently voted for the GOP tax bill, which included a repeal of the individual mandate, considered by many to be a cornerstone of Obamacare. In both cases, however, the argument is the same: under narrow majority control, the structure of the Senate still enables individual senators to play a pivotal role in the checks and balance system, as well as policymaking.

However, as Shapiro well documents, this individual power is shrinking with each passing year, through a combination of restrictions imposed by Senate leaders, different individual political incentives, and at its core, a lack of moral and civic courage.

Most of this de-evolution of individual power is the result of the Senate leaders using procedural powers, such as the right to be recognized first before any other Senator on the floor, to shape the conditions under which legislation is considered. So, for instance, Harry Reid, as majority leader, would “fill the amendment tree,” making it impossible for other senators to offer amendments. Even committees offer less opportunity for individual senators to make their mark, because party leadership allows for fewer hearings and less deliberation before bringing bills to the floor.  These tactics used to be the exception to the norm, not the norm itself.

In Broken, Ira Shapiro focuses on the Senate, an institution he has always loved and admired. I know the feeling. But as someone who has also spent a lot time studying the history of the Senate, and the behavior of individual members, I find that arguments about the quality of the institution usually go hand in hand with our ideological, partisan, and policy frameworks. The proponents of the 17th Amendment, which shifted the choice of senators from state legislatures to voters, claimed that it would open up the Senate to more responsive representation and reduce the impact of money on determining electoral outcomes. But there were other policies they wanted to see enacted at the time, such as opening election laws and granting the right to vote to women, and they saw the amendment as essential to accomplishing those goals. The faults of the indirectly elected Senate were magnified to make room for self-congratulations in making the Senate directly accountable to the voters. It is an open question whether direct voting for senators actually made the Senate more responsive to voters, or empowered a more diverse range of candidates, as proponents promised at the time.

The problem with looking backward when things are difficult in the current age is that we tend to put a silk screen across everything we see, making it softer and prettier than it really was. The Senate of yesteryear was not representative either demographically or economically. The paucity of women, African-Americans, and Latinos in the ranks of the U.S. Senate already makes it a less than perfect representative institution during the years described in Shapiro’s book. And though no one can ask the author to change that, he might have included the rare episodes when having senators from underrepresented backgrounds actually made a difference. In 1992, a number of female senators were elected, including Carol Mosely Braun, an African-American Democrat from Illinois. The next year, Braun made national headlines after her impassioned speech led the Senate to reject the renewal of the design pattern for the United Daughters of the Confederacy, whose logo included the Confederate flag. Today there are twenty-two female senators, including one African-American, one Asian/Pacific Islander, and one Latina. From the perspective of demographic representation, the Senate is a far better institution today.

From an economic perspective, most senators come from wealthy backgrounds; even those who are not rich still listen to the voices of campaign donors, interest groups, and party activists more than the voice of the average constituent. Still the amount of transparency on how senators vote, what they say, and who they take campaign money from, is vastly greater than it was thirty or forty years ago. Shapiro argues that such transparency, along with donor and party activist pressure, has only intensified partisanship and made it harder to get things done. But surely it’s a good thing that constituents who want to know what their senators are doing and saying can find that information far more easily than ever before. The problem isn’t too much transparency; it’s that the capacity for senators to represent their states has been greatly constrained by constraints of party leadership.

Is it possible that we ask too much of an institution that was constructed more than two centuries ago? It’s hard to believe that changing the internal rules of the Senate will improve our democracy without parallel changes in voter knowledge, easier access to voting, and some controls put on the use of money in politics. If anything, the modern Senate finds itself more embedded in the environment that drives national politics than ever in its history. Unless those outside forces are addressed, the Senate is unlikely to live up to its potential as a deliberative body anytime soon. But in Broken, Ira Shapiro makes a compelling and persuasive case that we should never stop demanding that it does.

Wendy J. Schiller

Wendy J. Schiller is a professor of political science at Brown University.