To the extent that the world’s once most deliberative institution performs its duty at all, the US Senate is reactive rather than deliberative. It reacts to crises of the moment such as school/church shootings and short-term continuing spending resolutions.
Unless your Congressman or senator is Ryan, Pelosi, McConnell or Schumer, it’s unlikely your representative or senator had a say in one of Congress’ most important duties: appropriations. The bill was presented to the rank and file Congress on a Wednesday, which gave them scant time to read the ginormous thing before voting on Friday. This insult to the sovereign people conjures up images of taxation without representation, and perhaps more pointedly, it reflects the absence of deliberation in the world’s once most deliberative body, the US Senate.1
The purpose of government is to promote national happiness. To do so, government must be prudent, and to be prudent, it needs at least one deliberative lawmaking institution.
In The Federalist numbers 62 through 66, Alexander Hamilton, James Madison and John Jay elaborated on the Senate’s place in the Framers’ compound federal republic. There were safeguards of the people’s liberty in the Framers’ plan not present in our modern and much corrupted Constitution. Central to the retention of liberty were the different bodies of electors to Congress and the Presidency. Electors to the House were a significant percentage of adult males. To the Senate, electors were the people in the business of state government, the legislators. For the President, electors were a temporary body of local leaders immune from corruption. No republic, wrote Publius in Federalist 63, lasted long without a stable, deliberative institution “to protect the people from their own temporary errors and delusions.”
The people did not directly elect the Senate, yet it was responsible to them indirectly through state legislatures and provided enough isolation from the raucous electorate to examine proposed laws calmly, rationally, and deliberatively. Certain duties of the Senate reflect a special place distinct from the House. Impeachment trials, appointments and treaty advice and consent powers demand the deepest deliberation. The treaty power, exercised in coordination with the President, establishes contracts between nations. Since treaties are ratified without input from the people in the House of Representatives, yet are the law of the land, it is an apparent departure from the tenet that just laws demand the consent of the governed. Yet, knowing the nature of popular assemblies, our Framers considered and rejected the people’s input on treaties. The treaty power extends the interests of Senators beyond their state borders and forces them to consider truly national interests vis a’ vis the world.
A deliberative institution will have:2
Information. The extent to which participants are given access to reasonably accurate information that they believe to be relevant to the issue.
Substantive Balance. The extent to which arguments offered by one side or from one perspective are answered by considerations offered by those who hold other perspectives.
Diversity. The extent to which the major position in the public are represented by participants in the discussion.
Conscientiousness. The extent to which participants sincerely weigh the merits of the arguments.
Equal Consideration. The extent to which arguments offered by all participants are considered on the merits regardless of which participants offer them.
These features left the Senate long ago. While Federalist and Anti-Federalist viewpoints continued after 1789 as political parties emerged, they differed only on how to go about implementing the Constitution. As opposed to today, Senators shared a common love of country. In a deliberative institution the participants are of a single mind when it comes to the purpose of the institution. Unless senators share love of country and frame their debate around it, deliberation is impossible. Fatally for the republic, if one or more subgroup is the tool of groups that seek the demise of the republic, why bother with even the façade of rational inquiry into proposed statutes or treaties relating to war, peace and commerce?
Since 1913 our popularly derived Congress reflects the shortcomings of all large, elected assemblies. While technically bicameral, it often acts as a single institution. Leaders of the democrat party, and even some in the GOP call for ever-more democracy, when in fact, our nation reels under far too much democracy. To illustrate, there is rarely a difference between the unhinged rants of Pelosi and Schumer. They typically make joint public statements.
In The Federalist 62 is the heart of senatorial deliberation:
Absent a deliberative Senate in 2009 Congress passed Obamacare. A few senior Congressmen, Senators, and various interest groups within and without government quietly slapped together a miserable law designed not to provide healthcare, but rather to destroy the middleclass. Remember Jonathan Gruber? The democrats did not hold committee hearings. The deliberative process had collapsed from the days of our Framers. Members were forced to quickly vote on it without understanding what the thousands of pages contained. Lack of deliberation was immediately evident when Obama regularly modified its provisions. And nowhere did the law contain the word, “tax.” To render Obamacare constitutional, Scotus changed an unconstitutional penalty into constitutional tax.
An un-deliberative Senate is killing the nation.
Since history affords no long-lived republic without a stable Senate, the United States are on borrowed time. The 17th Amendment is the greatest con ever perpetrated on a republican society. Perhaps even worse, after 105 years, few acknowledge the horrid consequences and the need to be rid of popularly elected Senators incapable of deliberation. Progressives sold the snake-oil of the 17th as a necessary turn to democracy to purify the Senate and attune it to the people. Such a Senate, for instance, would no longer stand athwart the just measures from a House of Representatives that dealt with rapidly expanding industrialization and organized labor.
Sure, if rapid reaction to passing passions is the goal, then elected Senators fill the bill. Even better, why bother with a duplicative institution at all? If rapid response to the people is the goal, why put up with the equivalent of pompous three-term Congressmen in another body? There is no shortage of single-assembly quasi-republics like ours with inadequate second legislative institutions.
Absent repeal of the 17th Amendment the return of free government is an impossible dream.
1. Where deliberation? Congress doesn’t appropriate money. Between fiscal year 1977 and fiscal year 2018, Congress only passed all twelve regular appropriations bills on time in four years – fiscal years 1977, 1989, 1995, and 1997. Continuing Resolution.