Common Sense 2.0 is a series by former Senator Tom Coburn that will look at modern issues through a first principles lens.
The donor and consulting class in Washington, D.C. are increasingly talking about “saving the Senate” in 2018 – namely, protecting the Republican Senate majority in the event Democrats take control of the House. As a former Republican lawmaker I’m not opposed to this goal but I’ve always held our republic in much higher esteem than Republicans.
The more important issue – one the next generation of Americans will confront – is whether they want to save the Senate envisioned by our founders.
Following centuries of often-tyrannical rule by monarchs our founders wanted establish the rule of law rather than the rule of rulers. They, therefore, envisioned a system that would keep the power of rulers in check. At the same, however, they wanted to keep the power of the people in check. This second point is important to reflect on in the Age of Populism.
The founders feared what they called the tyranny of the majority – an unfair and anti-democratic situation in which majorities would take away the rights of minorities. Consequently, the framers wanted to erect what Madison called “a necessary fence” against the majority will.
To create such a fence, they decided that the Congress would have not one house but two. The lower house would be designed to reflect the popular will but that would not be the purpose of the upper house.
Madison said, “the use of the Senate is to consist in its proceedings with more coolness, with more system, and with more wisdom, than the popular branch.” It should be “an anchor against popular fluctuations.”
The founders hoped Senators would be more likely to consider the long-term effects of legislation and practice a more thoughtful approach in their deliberations. The common thread through the creation of the Senate is that it should be guided by dispassionate wisdom and the members themselves should be statesmen guided by the long-term interests of the country as whole rather than parochial interests.
The most popular description of the unique and intentional design of the Senate came when George Washington told Thomas Jefferson that the Senate was created to cool the hot legislation that came from the House of Representatives. This created the long-standing notion of the Senate as the proverbial cooling saucer.
This is an idea worth saving. In recent years, the proverbial cooling saucer has been flipped, expanded and turned into a shield. Instead of protecting the minority’s interests, it is protecting special interests. Today’s Senate doesn’t facilitate measured debate as much as it protects favored inside-the-beltway interests.
Take, for example, the recent 2232 page $1.3 trillion spending bill. The bill was written behind the closed doors of leadership offices and dropped on the rest of Congress with an expectation that it would be passed the next day – as-is without changes. The gambit worked. But the results were minimal oversight and massive funding increases for thousands of federal programs that are in desperate need of reform, consolidation or elimination. The Senate’s hallmark feature is unlimited debate, yet Senate did not even take time to read – let alone debate and amend – the largest spending bill it has ever considered.
Take another example, the recent Tax Cuts and Jobs Act bill. There was hardly ever a speech given by a Republican on taxes that did not include the terms “comprehensive tax reform” and “lower the rates and broaden the base.” Yet, when the tax reform bill got to the Senate almost every single tax loophole stayed in place. Even the pro sports stadium subsidies that were rightfully panned by the American people remained. The Senate is the place for compromise – they say. But these compromises occur at the behest of the special interests that help write the bills rather than through long deliberation, public debate, and open amendments on the Senate floor.
The Senate is supposed to facilitate compromise and measured debate but those who call for deliberation are often denigrated. A member of Republican Senate leadership admonished Senator Rand Paul for merely asking for a vote on $300 billion in spending increases. Senate leadership did not give him the vote because that would be “rewarding bad behavior” in their view. Instead they opted to let the government temporarily shut down.
When I served in the Senate I earned the nickname Dr. No, which I didn’t mind, because I often said yes to debate and a transparent process. My goal wasn’t to stop things for the sake of stopping them. Instead, I wanted the American people to see what we were doing by forcing deliberation.
Today, the Senate needs to be saved by going back to what our founders envisioned. We need a Senate that protects minority rights by facilitating open debate. Far too much of Congress’ work is done in secret. It has become commonplace for committees to be bypassed entirely and for massive spending bills to be created in leadership offices. In a sense we have a tri-cameral legislature: the House, the Senate and Leadership Offices that Tell the House and Senate What To Do.
The answer isn’t to turn the Senate into the House. The answer is to turn the Senate into the Senate envisioned by our founders. The House was designed to be a majoritarian body while the Senate was designed to protect the minority from the tyranny of the majority. Also, prior to 1913, when the 17th Amendment was ratified, senators were chosen by state legislatures. While some believe this is less democratic than electing senators by popular vote, which the 17th Amendment permitted, the original model reveals our founders profound concern that the states not be sidelined or marginalized by the federal government.
Today people complain about the filibuster (the need to get 60 votes to cut off debate) but until 1917 the cloture process didn’t exist. All 100 senators had to agree on a path forward – 99 couldn’t band together to steamroll the one. This dynamic forced consensus, compromise and honest communication. If anything, we should increase rather than decrease the number of votes required to end debate.
Gutting the filibuster won’t make the Senate more democratic or responsible. We the People, and especially the next generation, have to say it’s time to get back to a normal and open process. No more rushed deals where we find out what’s in bills after they are passed. No more thousand-page bills with no amendments. And no more leadership complaints about senators who just want an open process.
It’s time to flip the protective shield back over and return to the cooling saucer once more. The founders understood short-term thinking requires little effort – it’s human nature. Given our long-term budget challenges, our nation desperately needs to save a body that was designed to look out for everyone’s long term interests.
