Tell Ben Sasse the Senate isn't the problem, senators are

(Editor’s Note: This piece first appeared in the Washington Examiner on September 20, 2020.)

According to today’s conventional wisdom, people are deeply divided about politics. Liberals and conservatives, Democrats and Republicans, are at odds with one another when it comes to identifying the problems that confront the country and the policies to solve them.

Notwithstanding the merits of the conventional wisdom, there is one thing on which people across the political spectrum agree. That is, they believe that the Supreme Court is really important. That is why vacancies on the court garner such attention whenever they occur. And it is why the Senate will be dominated by court politics over the next few months as its members decide whether to confirm whomever President Trump nominates to fill the vacancy created by the passing of Justice Ruth Bader Ginsburg.

During that time, people will grow even more frustrated by the Senate’s dysfunction than they are now. And their negative attitudes about the Senate will no doubt be shared by the senators who represent them in the institution. Democrats and Republicans there have routinely decried the Senate’s dysfunction.

Sen. Ben Sasse, a Republican from Nebraska, is one of the Senate’s most vocal critics. The former university president and history professor frequently denounces the Senate’s status quo and criticizes his colleagues for perpetuating it. Sasse, a member of the Judiciary Committee, lectured his colleagues on that panel during its 2018 confirmation hearings for Supreme Court nominee Brett Kavanaugh. At the time, Sasse was concerned that his colleagues were abdicating their constitutional responsibility to make law. He also lectured his colleagues in his 2015 maiden speech for their role in perpetuating dysfunction. During the Kavanaugh hearing, Sasse observed that “people yearn for a place where politics actually can be done.”

Most recently, Sasse outlined a reform plan to fix the Senate by changing its rules and altering its institutional design.

Yet, the specific proposals composing Sasse's reform plan are premised on a flawed understanding of what ails the Senate. For that reason, they are unlikely to end the institution's dysfunction. A closer look at Sasse's plan reveals that today's Senate's problem is not its rules or its institutional design. Instead, the problem is that senators like Sasse are unwilling to act inside the Senate to adjudicate their constituents' concerns and achieve their goals in the policy process.

Sasse’s reform plan includes proposals like removing the cameras from committee hearings and abolishing permanent committees altogether. He would replace the Senate's current committee structure with temporary panels that would disappear at the end of every two-year Congress. The Nebraskan wants to foster more deliberation on the Senate floor by encouraging senators to be present for real debates. And he believes that senators should live together in dormitories whenever the Senate is in session. 

The reform plan also includes several proposals to change the Senate's institutional design. Specifically, Sasse wants to impose a one-term limit on senators and repeal the 17th Amendment to the Constitution, providing for senators' direct election. Sasse believes that adopting these proposals will produce a robust decision-making process inside the Senate. 

But contrary to Sasse’s impassioned lectures about Senate dysfunction, his reforms would do little to jump-start genuine deliberation inside the institution. This is because senators, including Sasse himself, are presently unwilling to take part in those deliberations.

The Senate is a place where its members go to participate in the activities of deliberation and lawmaking. It does not matter whether their interactions are characterized by comity or conflict. All that matters is that they interact with one another as they try to win inside the Senate.

Today's dysfunction arises because senators care little about acting inside the Senate to achieve their goals while working through their disagreements with one another. Sasse's proposals to "pack the floor," "make a real budget," and “sunset everything” are ostensibly designed to address this shortage of action inside today's Senate. However, Sasse, in outlining his plan, omits the basic fact that his reforms are not really needed in the first place and that they will change little about the institution if his colleagues adopt them.

This is because the Senate's rules are not its problem — senators such as Sasse are the problem.

Senators will take part in floor debates if they think that what happens on the floor is essential. And any senator, including Sasse, can help convince them of the floor's importance by showing up there and acting to achieve their goals there.

One of the most unappreciated facts today about the Senate is that its rules already give its members all the tools they need to create the institution for which Sasse is calling. For example, any senator can make a motion to proceed to legislation and force a vote on it. In the course of doing so, senators can force their colleagues to show up on the floor to support or oppose their proposals. In short, senators can force their colleagues to deliberate and vote.

The Senate’s precedents also give committee chairmen and ranking members priority of recognition on the floor second only to the majority and minority leaders. This empowers committee leaders to manage floor debate on legislation reported by their panels. Sasse’s proposal to change “the rules to allow committees to control some floor time” is not needed.

The former history professor also betrays a poor grasp of the Senate's history when he suggests that empowering committees will lead to greater floor deliberation. For much of the institution's history, committee leaders tried to limit their colleagues' ability to debate and amend their legislation on the Senate floor.

Sasse’s proposals to alter the Senate’s institutional design likewise reflect a poor grasp of history. For example, his proposal to repeal the 17th Amendment is unlikely to change senators' behavior. This is because senators' direct election was not as consequential for the Senate's behavioral dynamics as Sasse believes.

Several developments undermined the Constitution’s original provision for state selection of senators long before the states ratified the 17th Amendment in 1913. During the first two decades of the 19th century, the Senate’s relationship with the public grew closer as Federalist and Republican attachments declined in federal and state governments. During the Era of Good Feelings that followed, senators seeking reelection shifted their focus from state legislatures to their state's electorate. Consequently, direct contact between senators and voters increased considerably, beginning in 1829. During this period, more and more senators appealed to voters through the canvas, a practice whereby senatorial candidates campaigned on behalf of state legislators who pledged to support the senator for a new term. Therefore, state legislator elections were often viewed by voters as referenda on senatorial candidates even though their names were not actually on the ballot.

Similarly, Illinois required senatorial candidates to first participate in an informal statewide primary election before its state legislators could select a candidate to serve in the Senate. And in 1904, Oregon instituted a system in which state legislators promised to vote for their party’s senatorial nominee.

Practices like the canvas and informal primaries undermined state legislators' power to select senators independent of the people. The canvas also helped senators to develop a different and widespread base of support in their states. The ratification of the 17th Amendment merely formalized the relationship between senators and voters that had existed for almost 100 years before 1913.

Given considerations like these, Sasse’s reforms will have little impact on how today’s Senate operates.

Fixing the Senate instead requires senators such as Sasse to stop lecturing their colleagues on what is wrong with the institution. Instead, senators must be willing to act inside the Senate to adjudicate their constituents’ concerns and to shape public policy there.

Ben Sasse is no longer a university professor. His job is not to diagnose what ails the Senate. Sasse is a senator. His job is to act like one. If he does, the Senate will fix itself. Sasse will have an excellent opportunity to do so as the Senate considers who to replace Ginsburg with on the Supreme Court.