Episode 407: Talking the U.S. Senate—Is It Still Relevant?

The highly contentious Georgia Senate elections are right around the corner. The results will determine which party holds a Senate majority for the next two years. In this episode, we take a step back and examine the Senate as an institution in the current political context of hyperpolarization. Is it still functional as a mechanism of effective government? Maybe. Or, maybe not.

To help make sense of it all, we spoke with UC Santa Cruz politics professor and co-author of The Invention of the United States Senate, Dan Wirls, and senior contributor at The Appeal, Jay Willis, who has written extensively on the Senate filibuster. Both Dan and Jay discuss the most worrisome aspects of the Senate—equal representation of states and the filibuster as a mechanism for gridlock—as well as potential paths forward.

REEM RAYEF: Alright, Colleen. Today we’re tackling a big one.

COLLEEN PULAWSKI: You can say that again. Today, we are talking about the United States Senate.

RR: Specifically, whether it’s even still relevant today.

CP: But Reem, the Senate is one of the country’s founding institutions. It’s a pillar of our democracy. Of course it’s still relevant...right?

RR: I’ll let you make up your mind about that at the end of the episode. But for now, let’s take a quick little history dive. I’m Reem Rayef.

CP: And I’m Colleen Pulawski. This is Talk Policy To Me.

RR: Okay so, at the Constitutional Convention, pretty much everyone agreed that the country should have a bicameral legislature, meaning two separate legislative bodies.

CP: And while it was mostly a given that one chamber would be representative of the whole population, hence the House of Representatives, wasn’t there also agreement that the other chamber should be smaller and more deliberative?

RR: Right. So the framers actually created the Senate with the idea that it would check the democratic power of the House.

CP: Wait, the Senate was supposed to be a check on democracy?

RR: Yep. The framers wanted to make sure there was a consistent space in Congress for an educated group of people — at the time, elite, white men — to debate the most pressing legislation of the day. You know, in case the American people got it wrong.

CP: Doesn’t sound very democratic to me.

RR: Maybe we can hear more from someone who knows the Senate inside and out. Our reporter Elena Neale-Sacks spoke with her former UC Santa Cruz politics professor, Dan Wirls, who co-wrote a book on the Senate back in 2011, appropriately titled, The Invention of the United States Senate.

ELENA NEALE-SACKS: Could you just give a brief history of how and why the Senate was established?

DAN WIRLS: Sure. So first, bicameralism, meaning having a two chamber legislature, was really a given at the constitutional convention. That was really not something that was much debated. There was also pretty much unanimous agreement that they wanted a smaller body for better deliberation. Part of that was state selection, meaning the Senate in the original Constitution was selected by state legislatures, not because it was states as states, but because state legislatures were considered the easiest way for a select body to produce the Senate, meaning they would know who’s best to represent their interests, rather than the voters as a whole.

And then finally, it was only due to the politics and the need to compromise that the Constitutional Convention finally agreed, after a very bitter struggle, to have two senators per state, state equality. Most of the delegates at the convention wanted some sort of proportionality, meaning to have the Senate based on some measure of population, but they agreed to two senators per state. So the Senate was really there as a second body there to deliberate things more carefully. Didn’t quite turn out that way.

ENS: So yeah, that kind of brings us to this current moment where we’re having this conversation about a month before the Georgia runoff elections, which will, in this election, determine which party controls the Senate. So what, if anything, does this moment and its potential impact say about the Senate as an institution?

DW: So from one perspective, you could say the Georgia elections are more about the fraught nature of the competition between the two parties amid this stark ideological polarization we have. But really, in many ways, I think Georgia always reminds us, anything Senate elections reminds us about equal representation. And one way of thinking about this, people often associate gerrymandering, that is the drawing of districts to favor one party over another, with the House of Representatives. But it's really the Senate that's a giant constitutional gerrymander in two ways. First, it's a massive violation of one person, one vote, meaning the equality each vote should have without regard to party, far greater than the Electoral College is a violation of one person vote. And then in recent decades, with the intersection of partisan polarization and geography, it's become a pro-Republican gerrymander.

ENS: Do you think the Senate was created with the tools to handle the amount of political polarization we see in the United States today?

DW: So one way of answering that is to say that the Senate itself is partly responsible for the creation of partisan polarization. That is, it is as much a cause of the problem as it is a victim. If we're talking about when this got going more in the 1980s and 1990s and into the 2000s, in many ways hyperpolarization in this country began as a top down process, meaning the politicians were more polarized than the public. And that partly had to do with the nature of elections and, say, primary elections, where the voters who just vote in primary elections tend to already be more partisan, so the office holders tended to reflect that. But in many ways, you know, it began at the top and worked its way down.

But to get to your question more directly, the Senate, I would say, was not very well constructed to deal with this kind of polarization. And this is where the filibuster comes in more directly, that is, in the Senate having a rule that still applies to much of what the Senate does, where you need 60 votes to shut off debate on any issue, not to vote on any issue, but to shut off debate if people want to keep talking or if even if just one person is willing to hold the floor. So what that means is that the filibuster got turned into sort of the ultimate weapon of political conflict, especially in a partisan polarized environment. You could use the filibuster if you were in the minority in the Senate to shut down the other side. And you wouldn't necessarily debate or compromise, you would be out to win, to veto whatever they wanted to do. And so in that way, partisan polarization has sort of merged in a particularly ugly way with the filibuster to sort of stymie the Senate from being able to be part of government.

CP: Alright, so it seems like, in order to understand how the Senate works and what problems it has, we need to back up a bit and talk more about the filibuster.

RR: Elena sat down with a fellow journalist who has written multiple op-eds on the topic, including one in November titled, “The Senate Filibuster is Hollowing Out American Democracy.”

JAY WILLIS: I'm Jay Willis, I am a senior contributor at the Appeal, and I became interested in writing on the Senate because it is a deeply broken institution that is holding this country's progress back in myriad ways. And that seemed like an issue worth covering.

ENS: So let's talk about the filibuster for a minute, because you recently wrote an article about it. So what is it, why was it created and why does it matter in the context of the country's current political landscape?

JW: So the filibuster is a Senate rule, a Senate procedure that basically prevents legislation from going forward without the ascent of three fifths of the body, so 60 percent. It is not in the Constitution, it is not a federal law. It is a Senate rule, a Senate tradition. And the idea behind it is that it prevents a bare majority from doing what it wants. This is the idea behind the phrase 'the tyranny of the majority,' that if you have 51 senators or 50 and the vice president can break a tie, you can just do whatever you want and the minority has no say. The problem is that in practice, when filibuster proof majorities, so 60 senators or more, are so rare, it allows for functionally minoritarian government. It allows for a committed minority of senators to just throw the brakes on anything and prevent anything from going forward.

This is bad, this is not the way that a government should work. There is, I think, value in an institution that facilitates compromise. But that's a theoretical statement. And when you have one party that is committed to not allowing legislation to go forward, it basically means that government can't happen. I don't think that that is a tenable system of government in any meaningful sense of the word.

ENS: Some people might be thinking that the argument for getting rid of the filibuster, or really the Senate for that matter, is a partisan one that favors Democrats. So is that true?

JW: Let's separate them a little bit. I think there's a good case for abolishing the Senate. It is a constitutional functionally impossibility. The Constitution says that no state shall be deprived of their representation without their consent. And what state is going to say, 'yeah, OK, we agree to lose our Senate seats,' especially a smaller, less populous state for whom the Senate is a major source of their power? We should establish that the Senate, as it's currently constructed, favors Republicans, favors conservatism, because it over represents smaller, more rural states, which traditionally skew conservative. So if you do a little bit of quick math, I believe it's the case that a person living in Wyoming has 79 times the voting power of somebody living in California.

RR: The actual number is more like 69, not 79, but the point stands.

JW: The rationale for affording an equal amount of power to these smaller, less populous states as to these larger states, it's just not there anymore. You can't defend the modern Senate without implicitly or explicitly defending the idea that some votes should matter more than others. I don't think it's a partisan thing to get rid of the filibuster. I think it's a question of whether or not we want government to govern. The filibuster doesn't favor one party's agenda so much as that it gets the whole thing stuck in the mud. In my view, it's better to have a government that can do something and allow voters to make their decisions based on what that government does than to prevent government from doing anything and leave voters thinking, 'Who should I vote for? How do I know whose agenda is good when nobody's agenda is getting done?'

RR: So we should mention that the Senate actually did vote to eliminate the filibuster for executive and judicial branch appointments in recent years. So now it only exists for legislation.

DW: In 2013 and 2017, they took action that eliminated the application of the filibuster to all nominations, to the executive branch and to the federal judiciary. That's why, yes, the Republican Senate is able to do these confirmations so easily and quickly. But I actually believe that's the way it should be, meaning the Senate is supposed to operate by majority rule. And that's, you know, that's as it should be. So the filibuster is still there for what you might refer to as ordinary laws, most ordinary legislation, but not all of it. So it's still there and potentially quite important. I think the Senate should finish the job it started by eliminating it altogether.

If it's really about better debate, it's easy. You rewrite the rule to say, the majority can decide when to finish debate on an issue, but every issue gets a guaranteed period of debate of, let's say, 30 hours, and then they can agree to either shorten that or extend it by unanimous consent, which they do all the time for many issues. So if it's about debate, make it about debate. If it's about a veto, then you get rid of it, because that's not in the Constitution. 

CP: So what I’m getting here is that there’s an argument for getting rid of the filibuster, and then there’s an argument for getting rid of the Senate itself.

RR: Right. And the idea of abolishing the filibuster isn’t particularly new. Prominent Democrats like Kamala Harris and Elizabeth Warren have advocated for getting rid of the rule. The former Republican governor of Wisconsin, Scott Walker, even backed the idea in 2015...although for different reasons from his Democratic peers.

CP: So there’s at least some consensus that the filibuster should go. But getting rid of the Senate? That sounds a lot more complicated.

RR: Dan said it’s pretty unlikely that we’ll be bidding the Senate farewell anytime soon. But he did highlight a few examples over the last decade that sum up how the Senate’s structure has allowed some of its members to abuse the power of government.

DW: Back in 2013, a few months after the Sandy Hook massacre, the country was aflame about the need to control guns more. The House was ready to do something. But they had to wait for the Senate because if it didn't get past the Senate, nothing would happen. So the Senate set up this kind of sham, this show, where they set up all these amendments to be voted on one by one, and they set 60 votes as the threshold for those amendments, knowing none of them would get over 60 votes. So they wouldn't fight it out on the issues. They just set up this sham debate and used the 60 vote threshold as a way so everyone could vote how they wanted and then they could all go, 'Oh, we tried, but we failed.' On this issue, the country demanding some sort of action on gun control, and the Senate set up this kind of play-acting, you know, pretending like they were really trying to do something, knowing in the end exactly what the outcome would be.

If there's one moment, it's the 2016 refusal by the Republican controlled Senate to even consider, even meet with, individually, Obama's nominee to the Supreme Court, Merrick Garland, with 10 months or so left in his presidency. So that becomes, I think, the signal moment for so many people about the dysfunction of the Senate and the abuse of its power. And then, of course, just adding that they turn around and contradict themselves a few years later by confirming Amy Coney Barrett in nearly record time while votes are already being cast in the presidential election.

RR: So the problems with the Senate are pretty clearly laid out.

CP: Some people’s votes matter more than others because of equal representation for states, the filibuster makes it nearly impossible to have a functional government in this age of immense polarization, Senators routinely abuse their power...Am I missing anything Reem?

RR: I think you covered it.

CP: But what do we do about it?

RR: Well, Dan had some thoughts.

DW: So really, do you need two legislative bodies to really think through the complicated problems of government? Maybe we only need a very effective House and a presidency, and you make them synchronous on four year terms and operate a little bit more like a parliamentary system.

ENS: Do you think that’s something that is at all a realistic possibility ever?

DW: One way of putting it is, perhaps not. And it's a shame that Americans seem to be so averse to any sort of constitutional change, even though they're willing to support various amendments about abortion, you know, individually or balanced budget or things like that, they seem to be unwilling to think about institutional change, which is kind of odd since everybody's so frustrated by the institutions themselves. And so Americans, I think, make the mistake of instead of thinking about changing the institutions to work for us all better, they concentrate in such a fixed fashion on just changing the people who occupy the institutions. And I think that's such a mistaken way of thinking about it, because no matter how good those people are, they can't change the problems that exist with some of the institutions in American politics. So I wish people in the United States thought more about institutional reform in kind of a nonpartisan fashion. What do we want separate, you know, from our party politics and how could we get there? 

CP: I’ve been thinking a lot about the role of democratic institutions this election season.

RR: Me too! Dan’s last point really resonated with me. Mainstream politics wrap up time and effort and money into candidates, at the same time that they resist advocates’ efforts to bring about deep institutional change.

CP: Speaking of which, the Georgia Senate elections are next week, and, as we know, these runoffs will decide which party controls the Senate. But after listening to everything Dan and Jay said, I can’t say I’ll be surprised if the next two years are full of Senate gridlock, no matter which party is in the majority.

RR: Talk Policy To Me as a co-production of the Berkeley Institute for Young Americans and UC Berkeley's Goldman School of Public Policy.

CP: Our executive producers are Bora Lee Reed and Sarah Swanbeck.

RR: Editing for this episode by Elena Neale-Sacks.

CP: The music you heard today is by Blue Dot Sessions and Pat Messiti Miller.

RR: I'm Reem Rayef.

CP: And I'm Colleen Pulawski. Happy new year.