By Orrin Hatch.
Americans hold the Senate in low esteem, but the situation is even worse than most understand. The Senate is dysfunctional today because its current leadership has acted to destroy the institution itself.
Job-approval ratings for Congress have been in the teens or single digits for more than three years. A poll last year found that Congress is less popular than head lice, root canals and traffic jams. The “good” news is that Congress is slightly more popular than playground bullies, telemarketers and North Korea.
Polls like these reflect concern over factors included in The Washington Times’ Futility Index, such as the time Congress spends in session or the number of votes taken and bills passed. By this measure, the Senate’s two least productive sessions since the 1940s occurred in just the past few years. We are simply not getting much done these days.
The House has passed 338 bills in the past year-and-a-half, some on subjects of great importance, that have become dead on arrival in the Senate. Far more serious, though, are changes the current leadership is making to the Senate’s design and structure that would prevent it from ever functioning as it should.
During the 1787 Constitutional Convention, James Madison identified the basic axiom that form follows function and wisely concluded that the Senate’s structure should be determined by “the ends to be served by it.”
The Senate was designed to play a particular role in a carefully designed system of government that is based on two related ideas expressed in the Declaration of Independence: First, government exists to secure the unalienable rights of individuals; and second, government must be limited or it will, in fact, destroy these individual rights. Those limits include dividing power between the federal and state governments, separating federal power into three branches, and splitting the legislative branch into two very different houses.
The Constitution lets the House and Senate set their own rules, and throughout the nation’s history these forms have developed consistent with each body’s function. The House’s function is action, and its form has been majority rule. The Senate’s function is deliberation and its form has given all senators, even those in the minority, a significant role.
Throughout its history, all senators have had two essential opportunities to participate: the right to offer amendments to legislation and the right to unlimited debate. The current Senate majority has attacked both of these rights relentlessly.
The Senate majority leader must be recognized first by the presiding officer and can use that priority recognition to fill up available opportunities to amend a bill. When he was in the minority, Majority Leader Harry Reid, Nevada Democrat, condemned this procedural maneuver as “a very bad practice” that “runs against the basic nature of the Senate.” Now in the majority, however, he has used this very bad practice to block amendments more than twice as often as the previous six majority leaders combined.
Last fall, Mr. Reid used another procedural maneuver to abolish the minority’s right to debate nominations. The Senate had confirmed 98 percent of President Obama’s nominees, and filibusters were not only rare, but on the decline. Now, for the first time in more than 200 years, minority senators have no meaningful role in the confirmation process.
By concentrating power in the majority at the expense of the minority, these distortions of Senate practice change, in Mr. Reid’s words, “the basic nature of the Senate.” Because the different designs of the Senate and House together help limit government power, eliminating those differences undermines the critical limits essential to preserving individual liberty.
We may soon experience the early results of abandoning such limits. Democrats abolished nomination filibusters last fall specifically to put three individuals on one particular court. The U.S. Court of Appeals for the D.C. Circuit had been evenly balanced between Republican and Democratic appointees and its low caseload required no more judges. The majority abolished nomination filibusters so that three additional Obama appointees could be added to the court.
Late last month, a three-judge D.C. Circuit panel struck down an Internal Revenue Service rule subsidizing Obamacare premiums on the federal health care exchange. The court correctly reasoned that the plain text of the so-called Affordable Care Act grants subsidies only on “exchange[s] established by the State[s],” and that by ignoring this requirement, the Obama administration overstepped its lawful authority. The Obama administration is appealing that decision to the full D.C. Circuit, which is now stacked 7-4 with compliant judges more likely to approve regulations that are contrary to the text of a law.
Such an unlawful result will be possible only because the current Senate majority sacrificed the basic nature of the Senate by eliminating the minority’s right to debate judicial nominations.