The dysfunctional Senate
The U.S. Senate has been getting a lot of attention of late. President Biden and his allies are complaining that the chamber has been a graveyard for their agenda, and they are pushing to weaken or eliminate the filibuster (i.e. the rule that requires a super-majority of the Senate to end debate on legislation). Republicans and moderate Democrats, by contrast, prefer to keep the chamber as it is, and they warn that getting rid of the filibuster would ruin the Senate.
I recently spoke with political scientist Dan Wirls at the University of California, Santa Cruz, author of the new book The Senate: From White Supremacy to Government Gridlock, to get his perspective on the U.S. Senate. The transcript is edited for clarity and brevity. (Full disclosure: Wirls was my undergraduate advisor in college.)
Matt Green: What inspired you to write this book?
Dan Wirls: Both equal representation [every state being represented by two U.S. senators, regardless of population] and super-majority cloture, or what we refer to colloquially as the filibuster, make the Senate the outlier in modern American democracy, and even in much of the world. Equal representation is the biggest violation of a fundamental principle of one person, one vote. And the filibuster…became the fourth veto point in the American system.
These two distortions of American democracy and government are related. But when you look at the literature on the Senate, there isn’t really a book that tries to interrelate the two in some way. They're often treated separately, and far more has been written about the filibuster.
The backstory is that, not long after becoming a professor, I became fascinated by bicameralism. I became an American Political Science Association Congressional Fellow based on that interest. That eventually led to my first book on the Senate, The Invention of the United States Senate, which was about the origins of the chamber. I intended to follow up with a book about the modern Senate and a critique of it as an institution. So it's been a long term interest [of mine].
MG: Your book has a rather provocative title. Explain how the Senate is associated with white supremacy and policy gridlock.
DW: The point I make about the Senate involves this relationship between equal representation and the filibuster. From a historical perspective, most of us are aware that the Senate played a role in giving the South inordinate power in the American government before the Civil War [because of equal representation in the chamber] and help them stymie some things that [would have] diminished or mitigated certain aspects of slavery.
[Today] there's a mythology about the filibuster…Senators [refer to the 1939 movie] “Mr. Smith Goes to Washington” as an example of how great the filibuster can be and what it should be for. But they don't use their own [chamber’s] history. Why not? Because that would bring up examples where the filibuster was used to thwart civil rights legislation. Especially across the 20th century, the major examples of important successful filibusters were almost all against civil rights.
[As late as] 1970, the last major attempt to produce direct election for the President was thwarted by a southern filibuster. [In the book] I talk about some less well-known examples, like the Nineteenth Amendment to the Constitution giving voting rights to women. That got through eventually, but the main opposition were southern senators…because it would be another potential avenue for the assertion of federal control over local elections.
And then, in our contemporary era, equal representation [in the Senate means that] minority groups -- in particular, African Americans -- are underrepresented in the Senate. The Senate over-represents rural and red states and under-represents, therefore, minorities who are predominantly in urban areas.
MG: You mentioned one myth of the Senate, that “Mr. Smith Goes to Washington” is what the filibuster is all about. In your book, you talk about other myths that senators tell themselves and the public. What are some of these other myths?
DW: One is that the Senate was created or intended to be the institutional and constitutional protector of minority rights. The second thing that follows from that is therefore the filibuster is somehow the Founders’ intent for the Senate. The thing you often hear…[is that] the filibuster is the soul of the Senate, the core of the Senate’s purpose, that without it, the Senate would just be another House of Representatives.
That's so far away from what Senate was designed to do or be. The one thing that's in the Constitution is equal representation. And that's really what gave birth to, and sort of transmogrified into, this idea of minority rights. But it really didn't start that way. It was equal representation, two senators per State. That's it. It wasn't about minority rights more generally.
MG: Is there anything other than just equal representation for states that the Founders had in mind when they were creating the Senate?
DW: The way I like to put it in the book is, the Senate was called the “Great Compromise” for a reason. The decision at the Constitutional Convention to give two senators per state…was the thing that almost ended the Convention. It was the bitterest division at the Constitutional Convention.
What [the Founders] mostly agreed with was that the Senate should be a place of better deliberation and a different perspective on issues because of the way the Senate was structured. [It would] be much smaller than the House of Representatives. The slightly older age requirement [to run for the Senate]. The way Senators were selected, that they would be selected by state legislators, instead of by the people directly. And then the length of term -- six years instead of two.
[The Founders] wanted better deliberation, they wanted different perspective, but that was to arise out of these characteristics and structural features of the Senate. Not through a rule that just gave anyone the right to talk for as long as they wanted to.
MG: Senator Kirsten Sinema recently gave a speech on the Senate floor explaining why she would not support an exception for the filibuster for voting rights legislation. One of the things she said was that such an exception would ”worsen the underlying disease of division infecting our country.” What do you make of this argument? Is it another myth?
DW: I think she's right that, if the Democrats were to attempt a so-called “carve out” where they tried to eliminate the filibuster for one category of legislation, that would be taken as a blunt force power grab. I get that.
But this we did this before. In 2013, the Democrats used the so-called nuclear option to…eliminate almost all executive and judicial nominations from the filibuster. Then the Republicans followed up in 2017 by adding Supreme Court [nominations] to that. We've survived all those. I'm not saying that's the right way to do it. That's not the way I'd prefer to modify or change or eliminate the Senate [filibuster] rule. But we've survived those changes.
I think she's right in the short term, but I think her bigger argument is really misleading. It’s based on a kind of mythology about bipartisanship, a distortion of what was supposedly the era of bipartisan cooperation.
I [also] think it's a distortion of the role the filibusters played in partisan polarization today. If anything, the filibuster and the use of it has exacerbated partisan polarization, both within Congress [and] in the public. Part of the problem America faces is citizens’ disaffection with government as a whole. Why? In part, because we can't seem to get important things done, and the filibuster is such an important part of not getting things done.
MG: It's clear that you are not a fan of the filibuster, or at least how it's being used now. Do you think that the filibuster’s days are numbered? What kinds of reforms do you think should happen and will happen in the Senate?
DW: It's not that I necessarily believe in sort of parliamentary lockstep efficiency in government. That may or may not be a good thing. My main point is that it's the whole system of the American government -- the President, the Court, the House and the Senate -- that was designed to protect, in a sense, minority rights. And we have a very complicated set of veto points already.
Do I think it's going to change? I think in the short term, the chances are slim to none, because it looks like the Democrats won't be able to even muster the votes to do a blunt force change.
However, what I've advocated for is that the Senate could raise a point of order that the Senate has the right to change its rules at any point by majority vote. We may disagree about that. But at least it's rooted in a constitutional argument, based on the idea…that rules decided by a senate fifty, sixty, or a hundred years ago shouldn't prevent a current majority from changing its rules.
[Suppose] the Senate says, yes, we're allowed to change the rules by majority vote. Then the first thing you submit is an actual rewritten rule for the Senate…And in that rule, you say that any measure or issue before the Senate can be brought to close by a simple majority vote, but we guarantee a period of debate [and amendments]…With this rule, everyone would focus on the debate and have to talk about the issue at hand. There would be no reading of Dr. Seuss or phone books or whatever.
And that would be deliberation. That might not be the best deliberation, but that would be real deliberation, and people would have to take votes and take things seriously. I don't care which party benefits from this first or benefits from it later. We'd all be better off.