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The “Frustrating” Senate


Blog Post 1: The “Frustrating” Senate
By Rudolph Zombek

            On September 14, 2019 The NY Times article titled “The Senate: Still Great at Deliberating, but Less So at Legislating” by Carl Hulse proved to be a very timely and appropriate read because of topics discussed in class as a current legislative issue. The title of the article really says it all as the common complaint from both progressive and conservative pundits has been focused on the Senate’s ability to “deliberate” over topics but the question may be asked, ”Is anyone really listening to the deliberative process in the Senate when it comes to reaching compromise to pass legislation?”


            In the decade’s defining “do nothing” sessions of Congress, the answer to that question would appear to be no (Figure 1). First it was the Republican’s turn from 2011-2017 to stymie six of President Obama’s eight years in the White House and after only two years of unified government the Democrats have their chance to halt Republican legislation that starts in the Senate and make it dead on arrival in the House. The opposite happens with House bills being dead on arrival when they reach the Senate which leads to a deadlocked congress and no legislation being passed. The only thing that the Senate can seem to do is pass President Trump’s judicial and executive branch nominees into positions of influence with the House unable to stop the nominations (Hulse, 2018).

Image result for Federal Bills Enacted into Law by Year

Image result for Federal Bills Enacted into Law by YearFigure 1: Federal Bills Enacted into Law by Year (Judem, 2019)


            Indeed, very little legislation makes it to President Trump’s desk for the possibility of signing into law, frustrating liberal and progressive voters throughout the country. Hulse has reported that moderate Senator Susan Collins (R, ME) has stated “I’m very eager to turn from nominations to legislation, there are important issues that are pending, and I think we could produce some terrific bills that would be signed into law” (Hulse, 2018).
            So beyond just frustrating liberals and progressives, the structure of how the Senate operates as outlined in Article I of the Constitution seems to be frustrating moderates in both the major parties who want to solve current issues with legislation such as gun control, healthcare, and immigration. Senator Jeff Merkley (D, OR) points squarely to Senate Majority Leader, Senator Mitch McConnell (R, KY) to be the stonewall of progress stating, “McConnell wants to protect his members from having to take a vote on issues that are important to America” (Hulse, 2018). 
            But, how does the Senate seem to have this vast obstructionist power? As mentioned previously, it’s the design of the Senate in Article I, Section 3 of the Constitution,
“The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.” (US Constitution, Article I, Section 3,1789 rev. 1993)

The choice of two representatives per state today is still controversial. Madison laid out his reasoning of equal representation of the States in Federalist No. 62, “that among independent and sovereign States, bound together by a simple league, the parties, however unequal in size, ought to have an EQUAL share in the common councils” (Madison, 1788). Madison’s reasoning was justified in 1788, as the States were more like independent nations joining into an alliance more than as a single nation and to this day the principal of federalism as laid out in the Constitution gives the States as varied in population and dissimilar in operations at the state level could be represented equally at the national level. Jeffery Toobin points that “the distortion created by small states having an equal number of senators has dramatically worsened over the centuries” with Virginia having “11 times many people” in 1787 in proportion to Delaware and California having “70 times as many people” as Wyoming (Toobin, 2013). Someone like Toobin or Levinson who believe the “Senate to be the original sin” (Toobin, 2013), would prefer to have more democratic responsiveness for the people, which would resemble a more centralized government that has a unicameral legislature in structure and eliminate the representation of the states as an entity to their own.
On the opposite end of the spectrum Toobin speaks of conservative pundit Mark Levin would actually desire more representation to the States to take away popular election of Senators by “repealing the 17th Amendment” and  that “the original purpose of the Senate was to give state legislators a say in the national government, and that’s gone” (Toobin, 2013). This level of repression of the popular will is problematic in that it would make the country less democratic and give more power to the States and the power elite to suppress clamor for reform. The ideal of the 17th Amendment is to make the Senate less aristocratic whilst still maintaining the structure of federalism to prevent tyranny of the majority as envisioned by both Hamilton and Madison upon the framing of the Constitution.
Though the Senate frustrates progressives and reactionary conservatives such as Toobin, Levinson, and Levin alike, the Senate also functions to reduce such extremism by design. Madison wrote in Federalist 10 that the “mischief of faction” would be minimized in representative government particularly different factions on a state by state basis saying, “The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States.” (Madison, 1787)
It is with this principle of preventing mischief of faction that Hamilton agreed with Madison to prevent anyone state from dominating the others in the tedious union that had just been formed. Madison says that the Senate served to pass laws “first, of a majority of the people, and then, of a majority of the States” because the United States was a “compound republic” not a “simple republic” (Madison, 1788). This compound republic as a concept espouses the role of federalism where each individual state could operate as they willed, so long as it did not violate the higher law of the Constitution. The Senate, therefore, serves as a check and balance of the legislature for preservation of the Union.
The Senate then, is fundamental in a federal system of government in which the states can act autonomously in their affairs if not explicitly outlined in the Constitution and its amendments. To make major change, either radical or reactionary to the Constitution requires overwhelming consensus in both the Congress and the State Legislatures which would benefit a mind such as Levin. However, with the 17th Amendment the popularly elected Senate is therefore more representative of the people in helps minds such as Toobin and Levinson. It is in these principles that deliberation and compromise must take place in the Senate to pass any legislation. The fundamental problem does not lay in the structure of the Senate but by the people in the Senate who will not budge an inch. However frustrating as the Senate may be, it does both prevent the tyranny of majority and the mischief of faction to not make the Union unstable nor too radical or reactionary.













References
Hulse, Carl. “The Senate: Still Great at Deliberating, but Less So at Legislating “. NY Times. New York, NY. September 14, 2019. Accessed on September 16, 2019 https://www.nytimes.com/2019/09/14/us/politics/senate-legislation.html
Madison, James. 1787. The Federalist Papers. ed. Clinton L. Rossiter. New York, NY. New American Library. 1961. No. 10
Madison, James. 1788. The Federalist Papers. ed. Clinton L. Rossiter. New York, NY. New American Library. 1961. No. 62

Singer, Paul. Reale, Hannah. Judem, Emily. “Congress May Be on Track to Achieve Historic Levels of Nothing”. WBGH, Boston NPR. Boston, MA. September 8, 2019. Accessed on September 16, 2019 https://www.wgbh.org/news/politics/2019/09/08/congress-may-be-on-track-to-achieve-historic-levels-of-nothing

Toobin, Jeffery. “Our Broken Constitution”. The New Yorker. New York, NY. December 1, 2013. Accessed on September 16, 2019 https://www.newyorker.com/magazine/2013/12/09/our-broken-constitution
United States Constitution. 1789 rev. 1993. Article I, Section 3. United States.


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