No one can blame Nebraska Senator Ben Sasse for his disillusionment with the Senate. Under Majority Leader Mitch McConnell, the chamber is little more a well-oiled machine for stacking the federal courts with right-wing judges. The “legislative graveyard,” as Democratic lawmakers call it, can’t muster the energy to pass a second wave of coronavirus relief even as the U.S. death toll nears 200,000. It acquitted President Donald Trump last February for abuse of power, indicting itself for its moral and ethical failings in the process.
“What would the Founding Fathers think of America if they came back to life?” Sasse asked in a Tuesday op-ed in The Wall Street Journal. “Their eyes would surely bug out first at our technology and wealth. But I suspect they’d also be stunned by the deformed structure of our government. The Congress they envisioned is all but dead. The Senate in particular is supposed to be the place where Americans hammer out our biggest challenges with debate. That hasn’t happened for decades—and the rot is bipartisan.”
While Sasse is correct about some of the Senate’s flaws, he is also profoundly wrong about how to fix them. His solution would make the chamber even less democratic: by repealing the Seventeenth Amendment and letting state legislatures choose senators once more, by limiting those senators to a single 12-year term, and by banning televised coverage of their hearings and debates. Other proposals, like requiring senators to live in dormitories—an idea that’s hard to imagine actual adults signing up for—would likely make the Senate an even more unpleasant place to work and legislate than it already is.
Sasse, who laments the growing imbalance of power between Congress and the executive branch, is hardly the first person to seek ways to reverse the trend. Legislative and constitutional experts have proposed no shortage of solutions: shift power away from congressional leadership and back to rank-and-file members, restore the primacy of committees in the legislative process, expand Congress’s institutional support to counterbalance federal agencies and think tanks, and reverse past “reforms” like earmark bans and shorter legislative calendars. Campaign finance reform, though sorely needed, is off the table thanks to the Roberts court.
The junior senator from Nebraska has a different idea for how to fix the Senate. His central plank is depriving voters of the power to choose their own senators by repealing the Seventeenth Amendment. His rationale is unpersuasive. “Different states bring different solutions to the table, and that ought to be reflected in the Senate’s national debate,” Sasse explained. “The old saying used to be that all politics is local, but today—thanks to the internet, 24/7 cable news and a cottage industry dedicated to political addiction—politics is polarized and national.” The Senate already provides for ample geographic diversity—if anything, it provides too much of it. Sasse’s proposal seems more likely to nationalize state legislative races than localize the Senate’s institutional outlook.
To make matters worse, Sasse would also impose a one-term limit on anyone chosen by the state legislature to serve. “One of the biggest reasons Congress gives away its power to the executive branch is that it’s politically expedient for both parties to avoid the decisions that come from the work of legislating,” Sasse claims. “Lawmakers are obsessed with staying in office, and one of the easiest ways to keep getting re-elected is by avoiding hard decisions. We ought to propose a constitutional amendment to limit every senator to one term, but we should double it from six years to 12. Senators who don’t have to worry about short-term popularity can work instead on long-term challenges.”
Contrary to Sasse’s negative framing, it’s a good thing that senators are “obsessed with staying in office.” A central premise of representative government is that the representatives will do what the people want so they can keep their jobs. Sasse’s end result would be 100 senators who represent other politicians instead of representing the people themselves, and who have no incentive to act according to the people’s wishes except for their own conscience and sense of civic duty. Relying on that alone, especially in the age of Trump, seems foolhardy at best.
Not all of Sasse’s ideas are bad. His alternative to repealing the Seventeenth Amendment should be enacted immediately. “If that’s a bridge too far, at least ban fundraising while the Senate is in session in Washington,” he argued. “It’s an everyday experience to sit down at a $2,000-a-plate lunch fundraiser and then run over to make committee votes. Lobbying is protected by the First Amendment, but it shouldn’t be the primary focus of senators when we’ve got work to do.” Some on the left, notably Massachusetts Senator Elizabeth Warren, have also targeted lobbying and fundraising issues in their own proposals.
Why is banning fundraising while in D.C. in particular so critical? Many lawmakers from both parties currently spend a hefty amount of the legislative calendar “dialing for dollars”—that is, personally calling former and would-be donors to ask for campaign contributions. Not only is the practice unsavory on its own terms, it also robs lawmakers of time that could be spent in hearings, crafting legislation, or building relationships with each other. Alexandria Ocasio-Cortez, one of a handful of legislators in Congress who makes good use of hearings, attributes part of her success to the small-donor network she’s cultivated, which frees her from the grind that haunts—and possibly corrupts—the rest of her colleagues.
Unfortunately, Sasse’s proposal on fundraising wouldn’t leave lawmakers time to prepare for committee hearings because he also proposes abolishing committees altogether. “Dividing legislative work is important, but there’s no corporation that would tackle its problems by creating 20 permanent committees and running every decision through them,” he explained. “The Senate should instead create temporary two-year committees, each devoted to making real progress on one or two big problems. Committees should draw power from their accomplishments, not based on which industries need to supplicate before the gavel.”
I’m not aware of a national legislature in an established democracy (or a U.S. state, for that matter) that doesn’t use standing committees for at least some of its work, and for good reason. It’s hard to think of a faster way to drain the Senate of its institutional knowledge and capacity than by dismantling them. Without committees, the Senate would find itself unable to carry out most of its current oversight responsibilities, hold hearings on matters of national importance, or scrutinize presidential appointments. Imagine a Supreme Court nomination process where senators could not question the would-be justices or the selection of Cabinet officials without anything but superficial scrutiny from lawmakers in advance.
By the end of Sasse’s list of proposals, his true aim becomes clearer. He criticizes past generations of lawmakers for ceding too much authority to the “administrative state,” a term conservatives increasingly use to describe the medley of federal departments and regulatory agencies. Rather than targeted measures to strip away some of the executive branch’s discretion, Sasse suggests that the Senate “sunset everything” on the regulatory front. “We ought to end that by having the Senate create a ‘super committee’ dedicated to reviewing all such delegations of power over the past 80 years and then proposing legislation to sunset the authority of entire bureaucracies on a rolling basis,” he wrote. “Does, say, the Health and Human Services Department ever answer for its aggressive regulatory lawmaking? Of course not. Sunset all its authority in 12 months and watch lawmakers start to make actual laws.”
This wouldn’t make the Senate “great again,” as Sasse’s op-ed title pithily suggests. But it would create a process where entire federal regulatory regimes would blink in and out of existence depending on the Senate’s intransigence. Conservatives like Sasse know they lack the popular support to abolish the Environmental Protection Agency or repeal the Affordable Care Act’s major provisions. Voters generally like insurance coverage for preexisting conditions and not drinking or inhaling industrial by-products. Rather than mount a futile effort to persuade the American people otherwise, Sasse wants to remove the American people from the equation altogether—not to reduce legislative cowardice in the Senate but to institutionalize that cowardice for the benefit of the wealthy and well-connected.