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Reforming the Senate

By Jack M. Balkin

A respondent to my previous post criticizing the Senate for its dysfunctionality re the confirmation process asks the entirely fair question as to who should make rules for the House and the Senate (other than themselves). I have no easy answer. What we can say with some confidence is that the Senate has stumbled into a set of rules, over the years, that, I (and not only I) believe, seriously disserve the country. One can "explain" the rules in terms of social choice theory. Each senator, for example, wants to hold on to the institution of the "hold" in case he/she wants to exercise that power some day, regardless of the costs to the public in making even more difficult the nomination and confirmation of public officials. Or senators elected as "reformers" are quickly told that they will be punished, in a variety of ways, if they really take on the "way we do things around here." Or one can simply think of a good organizational reason to explain why the Senate persists in using a substantively insane--no other word will do--rule of seniority to name the president pro tem of the Senate, who is third in line for the presidency. Consider that two of the most recent inhabitants of that august office have been Strom Thurmond and Robert Byrd. (I think that Ted Stevens was President pro tem up to 2007.) I freely concede that it would simply be organizationally disruptive for senators to have to decide, and indicate publicly, their colleague most equipped to become president if catastrophe strikes. (But, of course, catastrophe will never strike, so we can behave like children.) And so on.

But, alas, piling on the justified criticisms doesn't answer the question as to how reform of an institution, however dysfunctional, should actually take place--i.e., who's in charge? I'm not really a fan of courts doing it, for example. So this is yet one more reason why I want a two-year-long constitutional convention that has the time to think seriously about such issues, since the Senate has neither the time nor the inclination to do so. I'm not critical of them for not having the time. One of the problems is that the Senate, which includes a lot of capable individuals, is simply overwhelmed with issues, plus, of course, the necessity to keep raising funds for the next election. What they might do is appoint a national commission, chaired by Norman Ornstein and Thomas Mann and including people like Lee Hamilton and James Baker, to address very seriously the problems presented by "transition" in our particular form of government (though I'd still prefer a constitutional convention).

Full post as published by Balkinization on April 01, 2009 (boomark / email).