The United States Senate is arguably the least democratic (small “d”) institution in any democracy in the world, with the possible exception of the British House of Lords.
The Senate exists without proportional representation. Every state has two senators without regard to population. Wyoming’s two senators represent 586,000 citizens, while California’s 39 million citizens are represented by two senators.
The Senate has quirky rules: unlimited debate (the filibuster); much happens by unanimous consent (or doesn’t happen when one senator objects); seniority rules meaning a cranky old senator like Chuck Grassley of Iowa, age 91, will soon again chair the powerful Judiciary Committee. Grassley has been a senator since 1981, meaning the youngest senator, Jon Ossoff of Georgia, wasn’t alive when Grassley took office.
The Senate has six-year terms, a function of the Founders’ unfortunately naive belief that a longer term of office insulates senators from the worst of grubby political pressures.
The Senate has extraordinary powers, again thanks to the original thinkers who came up with the idea of an institution to balance the rambunctious House of Representatives. Senators have the constitutional duty to “advise and consent” – or not consent – on presidential appointments to the Cabinet and judiciary. The Senate, by super majority vote, can ratify treaties. The Senate judges, when it cares to, the impeachment of high governmental officials. The Senate traditionally has had a major voice in foreign policy. And the Senate, when it cares to, has the power to investigate. Google Watergate, the CIA, Teapot Dome or even the sinking of the Titanic to see what the Senate has historically done to expose and inform.
Now, as the Founders would certainly have appreciated, the Senate faces an enormous historical test – a power-hungry president committed to vastly enlarging executive power at the expense of the legislative branch. Donald Trump has signaled that he expects a GOP Congress will do his bidding no questions asked. Questions must be asked.
The widely floated idea that the Senate should allow “recess” appointments to critical executive branch jobs should be dead on arrival, but incoming Majority Leader John Thune of South Dakota hasn’t ruled out the Senate rolling over for Trump.
“I think that all options are on the table, including recess appointments,” Thune said recently while disingenuously suggesting that Republicans might need to forgo advising and consenting because Democrats might not “play ball.” But caving on the constitutional demand for Senate concurrence in major appointments isn’t about Democrats. It’s about Trump.
Still, there are modestly hopeful signs that at least some Republicans won’t diminish their own and the Senate’s power by simply giving a grasping president who he wants in his Cabinet – an accused sex abuser, vaccine denier or Russian stooge just to flag three of the worst of the nominees.
Idaho’s James Risch, easily one of the most partisan Republicans in the Senate who spent the first Trump term defending the administration’s feckless foreign policy, has – so far at least – refused to commit to supporting some of Trump’s craziest nominees, a group properly termed by commentator Charlie Sykes as a “cabinet of zealots, toadies, and cretins.”
“Ask me this question again after the hearings,” Risch said regarding support for the inconceivable nominations of a Fox New host, Pete Hegseth, to be secretary of Defense and a Putin apologist, Tulsi Gabbard, to head the national intelligence agencies. “These appointments by the president are constrained by the advice and consent of the Senate,” Risch said. And demonstrating that he recalls his oath of office, Risch added, “The Senate takes that seriously, and we vet these.”
Despite his earlier comments Thune has shown a hint of backbone, telling a home state audience recently, “Every president is going to come in and try to do as much as they can by executive action … Congress, in some cases, is going to be the entity that sometimes will have to put the brakes on.”
Trump’s return to the White House will test, sooner than later, whether the Senate has the ability – meaning individual senators possess the courage – to use its substantial power to constrain Trump’s most dangerous inclinations, including appointing a gang of woefully compromised incompetents.
Congress also, of course, has the power of the purse and should scotch any Trumpy plan to illegally “impound” dollars appropriated by the legislative branch. Expect Trump to push this issue to the limit. Hope for the sake of the Constitution that Thune and fellow senators resist more effectively than they did when during his first administration Trump diverted military funding to his border wall, a project you may recall that Mexico was never going to pay for.
Republican senators know, certainly better than most of their voters, that Trump cares nothing about the nuts and bolts of the federal government. More than any man who has held the office Trump is an agent of chaos, destruction and revenge.
But the Senate was designed to obstruct and delay would-be tyrants just as it was designed to give small states like Idaho and South Dakota outsized influence in the business of the federal government.
Mike Mansfield, the great Montanan who led the Senate for 16 years, spent his tenure gently persuading fellow senators to behave as national legislators and not merely as partisan representatives of individual states. Mansfield’s perspective has never been more important.
“In the end, it is not the Senators as individuals who are of fundamental importance,” Mansfield said in 1963. “In the end, it is the institution of the Senate. It is the Senate itself as one of the foundations of the Constitution. It is the Senate as one of the rocks of the Republic.”
The rock of the Republic must be solid if the Constitution is to hold.
This column was originally published in South Dakota Searchlight.
