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The Decline of the Senate: From ‘Advice and Consent’ to ‘Just Win, Baby!’ (Washington Examiner) September 22, 2020

Posted by daviddavenport in Op/Eds.
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The coming battle over a new Supreme Court nominee is only the latest chapter in the ongoing decline of the Senate. Once described by President James Buchanan as “the greatest deliberative body in the world,” the Senate now barely deliberates. Formerly a place of special powers, high decorum, accepted rules and processes, its members have instead given in to the temptation to win at any cost.

I am not the first to notice this decline. Orrin Hatch, who retired in 2018 after 42 years in the Senate, said in his closing remarks that the Senate “is in crisis.” “Regular order,” he continued, “is a relic of the past, and compromise—once the guiding credo of this great institution—is now synonymous with surrender.” When Sen. John McCain flew back from his cancer treatments to cast a decisive vote on Obamacare, he surprised everyone by declining to vote to repeal the law because the Senate had not followed its own processes. He decried the Senate’s inclination to draft legislation “behind closed doors…then spring it upon skeptical members.” He urged the Senate to “return to the correct way of legislating.”

Now Senate Majority Leader Mitch McConnell has decided that his refusal to bring a Democrat’s Supreme Court nominee before the Senate 9 months before an election is not a precedent he needs to follow when the Senate and White House are controlled by the same party and the president wants to submit a nominee five weeks before the election.

The only surprise is that politicians even try putting forth arguments on why this is appropriate, when everyone knows the only thing that matters now is winning. The mantra of the Senate, “Advice and Consent” from the Constitution, has given way to the credo of the late Al Davis, owner of the Raiders professional football team: “Just win, baby.”

One source of the Senate’s weakness is its inclination to simply follow the president, rather than operate as an independent branch of government. As James Madison wrote in Federalist No. 51, the various branches of government were intended to “[keep] each other in their proper places.” Each department, including the Senate, needs to have “a will of its own,” Madison said, in order to play its proper constitutional role. But all that has gone out the window these days when the president’s own party controls the Senate. As President Trump himself recently put it, “When you have the Senate, when you have the votes, you can sort of do what you want.” And he is.

A related problem is the rise of party-line voting in Congress. Whereas the Senate was intended to represent the states, and both chambers of Congress are supposed to represent their own constituents, now senators represent the views of their political party leaders instead. According to one study, party unity voting has increased from around 60% in the 1970s to nearly 90% today. Obamacare was passed by a strict party-line vote, and Trump passed his signature tax reform bill by a party-line vote of only Republicans. Does anyone doubt that the vote on Trump’s Supreme Court nominee will follow similar lines?

People are not happy with Congress, and this will not help. A Gallup poll last month showed that 21% of the country approve of how Congress is doing its job with 75% disapproving. An Economist/YouGov poll this month is even lower with only 13% approval. As Gordon Lloyd and I argued in our recent book, How Public Policy Became War, the public is frustrated that everything in policy is now a war to win rather than a set of problems to be solved or compromises to be made.

In the end, a few changes in Senate processes and rules could help. Ultimately, it will require more leaders such as Senators Hatch or McCain, or in this case Senators Collins or Murkowski, to resist the pressure of political leadership to win at all costs and demand that the Senate live up to its distinguished history and its proper constitutional role.

To read the column at the Washington Examiner:

https://www.washingtonexaminer.com/opinion/the-decline-of-the-senate-from-advice-and-consent-to-just-win-baby

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