The Senate is on trial.
So far, the Senate is failing the test. Instead of demonstrating the upper chamber’s value as a steady hand guiding our democracy, the impeachment trial is confirming that the Senate has become a place where short-term political concerns beat out careful deliberation, and where partisanship has done away with open debate.
The problem runs deeper than any single cultural or political trend, and it goes beyond the conduct of any individual senator. One of America’s most hallowed institutions has become a threat to our democracy itself.
An upper chamber, James Madison argued in Federalist No. 62, is needed to protect us against “the impulse of sudden and violent passions.” To avoid being “seduced by factious leaders into hasty and intemperate resolutions,” it was important that senators possess “greater extent of information and stability of character” than their colleagues in the House. To put it bluntly, senators aren’t supposed to be like us. Senators are supposed to be better than us: smarter, wiser and cooler under pressure.
The Constitution structured the Senate in a way that was meant to encourage these qualities. There were fewer senators than representatives, and they served longer terms. You can become a member of the House at just 25 years of age and seven years of citizenship; in the Senate, those numbers are 30 and nine, respectively. Furthermore, senators were originally chosen by state legislators, rather than directly by the voters, which further insulated them from the people’s will.
Over the following two centuries, a host of additional rules, traditions and precedents combined to cement the Senate’s reputation as the repository of the nation’s wisdom, a haven for patient deliberation, independent thinking and minority-party rights. The Senate was a small-c conservative institution, a place where popular ideas could be considered, mulled over and refined before becoming law.
In some respects — most notably and shamefully when it came to civil rights — the 20th-century Senate fell far short of our Founders’ ideals. Yet in many other cases, the Senate functioned as it was supposed to. From progressive triumphs such as Social Security and Medicare to conservative victories such as the anti-labor Taft-Hartley Act, the Senate was able to pass major legislation — delivering on the priorities of the majority party — while ensuring that the minority party’s views were taken into account.
The Senate was far from perfect. But for the most part, it still functioned as what 19th-century Republican Sen. George Frisbie Hoar of Massachusetts once called the nation’s “sober second thought.”
Compare that history to what we’re seeing during the impeachment trial taking place today. With the security of our elections and the future of our democracy at stake, the great debate taking place in the Senate is not over how best to protect our republic. It’s over whether — in the face of unprecedented White House obstruction — Senators should call a tiny number of witnesses or no witnesses at all.
Sen. Mitch McConnell (R-Ky.), leader of the world’s greatest deliberative body, is doing everything he can to ensure that as little deliberation as possible takes place. Many individual senators, expected to possess a “greater extent of information” than the rest of us, have taken to repeating a Russian-backed conspiracy theory that Ukraine meddled in the 2016 elections, rather than grapple with the implications of our own intelligence communities’ assessments.
When it comes to reaching a final verdict, meanwhile, the institution that once considered itself subordinate to no one is now happy to put the interests of the White House — and by extension, of a national political party — above its own.
“Administrations come and go, Houses assemble and disperse, senators change, but the Senate is always there in the Capitol,” proudly proclaimed Republican Henry Cabot Lodge in 1903. Tell that to the Republican senators of 2020, who seem most interested in ensuring that a president of their party keeps his job.
The Senate, in other words, has become a thoroughly partisan institution. Majority Leader Mike Mansfield (D-Mont.), who served from 1961 to 1977, famously described his chamber as “100 independent men and women.” Yet at Trump’s impeachment trial, it’s unlikely that votes will be determined according to senators’ individual temperaments, political philosophies or even the states they represent. Instead, the most important factor — by far — is almost certain be the (D) or (R) beside each senator’s name.
And of course, this trial is merely a final straw. Over the past decade, the filibuster has made it practically impossible to vote on most legislation, much less pass it. In 1986, when I was born, more than one in four bills introduced in the Senate passed the chamber. By the time I turned 30, in 2016, that number had fallen to less than one in eight.
Meanwhile, thanks to rules changes and audacious exploitation of loopholes, the most consequential votes the Senate has been able to take in recent years — approving massive tax cuts for the wealthy and lifetime appointments for judges — have been rushed through with practically no debate at all. The modern Senate may be many things, but the repository of the nation’s wisdom is not one of them.
This matters, because for centuries the Senate’s defenders have justified its unique rules — the filibuster that allows a minority of senators to kill a bill; unanimous consent agreements that give any senator the ability to grind business to a halt; the apportionment of senators by state rather than population — by arguing that these peculiarities are necessary to preserve the institution’s character. If the institution has lost its character, however, those peculiar rules are clearly no longer helpful.
In fact, if anything, the Senate’s strange structure is helping to tear the chamber — and the country — apart. By granting extremist minorities immense amounts of power, and shielding them from public accountability, the upper chamber disincentivizes the responsibility it is meant to foster. Our democratic institutions are meant ensure that power is derived from the consent of the governed, yet the current design of the Senate ensures the opposite.
The Senate’s structure is by no means set in stone. To the contrary, we’ve regularly altered its structure, doing our best to preserve the chamber’s character even as times change. In 1913, we passed a constitutional amendment allowing for direct election of senators. In 1917, and again in 1974, we changed the filibuster rules in attempts to reduce obstruction. Although some of those efforts weren’t entirely successful, without them the Senate would have fallen into dysfunction far sooner.
In the coming weeks, senators will consider a grave question: What do we do about President Trump’s behavior? Yet if we’re really serious about protecting our democracy, senators — and the Americans they represent — must start to consider another question as well, one that may prove in the long run even more important than the president’s fate:
What do we do about the Senate?
