Restoring the Senate’s Greatnessby Senator Orrin G. Hatch
Posted on 2015-01-07
HATCH. Mr. President, I rise today to address the state of the
Senate and how to restore its greatness.
Yesterday, I was sworn in as the President pro tempore. Although there have been some notable exceptions throughout history, the modern practice of the Senate has been to elect as the President pro tempore the most senior Member of the majority party. As one noted historian of the Senate has generously written, ``election of a senator to the office of president pro tempore has always been considered one of the highest honors offered to a senator by the Senate as a body.'' I am greatly honored to have been selected for this position, but I am keenly aware of the great responsibilities that come with it. The President pro tempore of the Senate is one of only three legislative offices established by the U.S. Constitution, and in recent decades it has been occupied by true giants of the Senate. Their names, which include Vandenberg, Russell, Byrd, Stevens, Inouye, and Leahy, resonate as some of the greatest legislators ever to serve in this body.
Beyond the President pro tempore's formal responsibilities in presiding over the Senate and helping ensure the continuity of government, this office represents a unique opportunity to assist the majority leader in guiding the Senate as it addresses the critical issues facing our Nation. In that sense, the President pro tempore serves as an elder statesman, sharing accumulated knowledge and lessons learned through long experience.
I consider it fortuitous that the beginning of my service as President pro tempore coincides with the start of a new year. For many, the new year is a time for reflecting upon the past and reviewing commitments for the future. I believe we as Senators should use this opportunity for some much needed introspection about the state of this institution.
The Senate has long been heralded as the world's greatest deliberative body. With so many critical challenges facing our Nation today, there has never been a more important time for the Senate to live up to its storied legacy and to fulfill its responsibilities to the American people.
Central to properly understanding our responsibilities as Senators is to appreciate the Senate's role in our system of government. This means understanding both the Senate's purposes and its unique place at the center of our constitutional structure. It is important for us to consider these issues.
[[Page S31]] James Madison famously called the Senate the great anchor of the government. He described its purpose as twofold: ``first to protect the people against their rulers; secondly to protect the people against the transient impressions on to which they themselves might be led.'' The Senate accomplishes the first goal--protecting the people against their rulers--by playing a crucial role in the appointment and removal of both judges and executive branch officers. The President's power to appoint is tempered by the requirement that his appointees receive the Senate's advice and consent. Additionally, the Senate possesses the power to remove from office any official that has engaged in high crimes and misdemeanors. The President's power to enter into treaties is also critically checked by the requirement that the Senate provide its advice and consent to a treaty before ratification.
As such, the President does not have unfettered power to fill up executive offices, pack the courts or make agreements with foreign nations. He cannot staff agencies with corrupt, incompetent or ideologically extreme cronies unless the Senate allows him to do so. He cannot conclude treaties that will harm American interests unless the Senate gives its assent. In selecting life-tenured judges to apply the Constitution and laws of the land, the President cannot act unless the Senate confirms his nominee. In all of these settings, the Senate serves as a crucial check against executive abuse.
The Senate accomplishes the second of Madison's goals--protecting against temporary shifts in popular opinion--through its character and its institutional structure. In contrast to the large, transient House, the Senate is small, more stable, and therefore, it has the opportunity to be more thoughtful. Four hundred thirty-five Members inhabit the House, and only 100 fill this Chamber. The entire House stands for election every 2 years. Naturally, reelection is constantly on Representatives' minds. Senators, by contrast, have 6-year terms and only one-third go before the voters each election. Even with the pressures of modern campaigns, these divergent characteristics produce fundamentally different institutions.
But the Framers designed the Senate to do much more than merely check transient and occasionally intemperate impulses. They created the Senate to refine the public's will and to give more wisdom and stability to the government. The Framers chose the Senate's relatively small size to enable more thorough debate and to provide individual Members greater opportunity to improve legislative proposals. Longer, staggered terms would give Members greater flexibility to resist initially popular yet ultimately unwise legislation. They would also guard against temporary majorities. A fluke election may produce significant majorities for one party that 2 years later disappears. This can lead to wild swings in the law as each new majority seeks to enact a vastly different agenda during its brief period of power. Overlapping terms help to avert this danger.
Finally, statewide constituencies require Senators to appeal to a broader set of interests--including the concerns of the State governments themselves--than do narrow, more homogenous House districts.
To these constitutional characteristics, the Senate has added a number of traditions--some formal and others informal--that have enhanced its deliberative character. These include the right to extended debate, an open amendment process, and a committee system that gives all Members--from the most seasoned chairmen to the newest freshmen--a hand in drafting and improving legislation.
The late Senator Byrd liked to say that ``as long as the Senate retains the power to amend and the power of unlimited debate, the liberties of the people will remain secure.'' The Senate protects liberty by giving each Senator an active role in the legislative process. This multiplies the checks against bad laws and expands the universe of individuals working to make good laws better. It erects what Madison called a necessary fence against hasty and unwise government action. It enables each Senator to bring his or her own wisdom and considered judgment to bear on pressing national issues.
When the Senate functions properly, it is a truly deliberative body in which all Senators work to identify the common good and the best means to achieve that common good. The Federalist describes the common good as the permanent and aggregate interests of the community. This is to be distinguished from the individual good, which may vary from person to person and which may not result in the Nation's benefit.
Much like the Senate is designed to protect against transient shifts in public opinion, it is also designed to enable Senators to pursue the common good. Senators are able to prioritize achieving the correct results over doing what is politically convenient. The best answers do not always immediately present themselves nor are they always easily explained. Longer terms give Senators more time to investigate, to analyze, to reconsider, and to recalibrate, and so do robust debate and an open amendment process. These are critical elements of our deliberative pursuit of the common good.
Another crucial component of our pursuit of common good is prudence. Aristotle called prudence the legislative science because it concerns the best means of achieving the most good in practice. Prudence restrains us from seeking immediate and complete vindication of a single abstract principle. Instead, it counsels us to work within our existing circumstances to vindicate the enduring principles upon which our liberty depends.
While we should remain true to our principles, we must also recognize that we operate in an imperfect world where we do not control all of the levers of power. We cannot simply charge forward blind to present realities. To do so is to jeopardize our hopes for achieving any meaningful success, because in the messy world of politics, adopting an all-or-nothing strategy usually produces only the latter--nothing.
Politics is the art of the possible. Ideology is important, and rhetoric is captivating. But at the end of the day, when the campaign is over, the American people sent us here to govern. We are here to protect their liberties and to protect and improve their lives. When we grandstand or hold out for impossible demands, we do nothing but a disservice. The Framers gave us staggered, extended terms so that we could use our independent judgment to get things done. We should try to get to it.
An astute commentator observed that the Senate stands at the crossroads of our constitutional system. It shares power with the other branches of the Federal Government. It ensures temperance in the legislative branch. It must consent or not consent to the President's treaties and appointments, and it plays a critical role in appointments to the Supreme Court.
But it also--and this is unique among the branches of the Federal Government--embodies the interests of federalism and State power at the national level.
The Framers created the Senate to be much more than a simple legislative body. The Senate is uniquely positioned to mediate both among the Federal branches of government and between the Federal and State governments. As such, the Senate truly embodies the role described by one wise commentator as the sober guardian of the Republic.
Our responsibilities as Senators follow directly from the Senate's constitutional role. As the people's representatives and as envoys of our individual States' interests, we are accountable to our States and to our Nation. We do not serve any one party or principle, or any particular ideology or faction. We may align ourselves into certain groups--Republican and Democrat, conservative and liberal--for purposes of organization and cooperation, but we are Senators first. Other labels are secondary.
Civility and statesmanship must be our constant ideals. Madison once instructed that ``the Senate is to consist in its proceeding with more coolness, with more system, and with more wisdom, than the popular branch.'' A key purpose of this body is to calm the passions that arise from the heat of political discourse. As such, we must always be courteous in our communications one with another, both formal and informal, on the floor and off, face-to- [[Page S32]] face or on a video screen. When we disagree we need to do so with dignity and respect, acknowledging the sincere motives and passions of even our most firm adversaries.
Statesmanship connotes public spiritedness and a willingness to compromise in pursuit of broader goals. Petulance and unilateralism accomplish nothing in this body. Any Senator who would choose the glow of the camera over the prospect for meaningful achievement seriously misunderstands their role as a Senator.
Next on the list of practices Senators must follow are prudence and considered judgment. I have already spoken about prudence. It is a habit of mind that focuses on present realities and achievable goals-- not pie-in-the-sky pipedreams. Prudent lawmakers make experience--not theory--their guide, and they recognize that success in a republic requires harmonizing competing values.
Considered judgment is closely tied to prudence. Prudence is not rash. It requires deliberation and thoughtful analysis. Our constituents sent us here because they trusted our judgment and favored the general outlines we presented in our campaigns. Now that we are here, it is time to put our plans into action. We do this by studying problems, investigating proposals, and carefully choosing solutions that best cohere with our principles. Exercising judgment is an individual matter. Colleagues and opinion leaders may guide our deliberations, but the ultimate choice of policy is one which we each must make on our own.
The final two obligations I wish to highlight are our responsibilities: first, to seek the common good through earnest deliberation, and second, to achieve consensus to the extent possible.
As I explained, the Framers designed the Senate so that Members would be able to seek the common good encumbered by few political constraints. Because we stand for election only every 6 years, we are less susceptible to swings in public opinion. We have the independence to value long-term impact over short-term politics. And because we are a small body--relatively speaking--all Members are able to participate fully in the legislative process and to add their voice of praise, warning or suggestion to each proposal that we consider. We deliberate not to score points or to craft sound bites but because we believe that in the contest of opposing views, the best answers will win out.
I mentioned consensus. Although much of our day-to-day operations are conducted by unanimous consent, obviously we do not do everything around here by consensus. We are 100 fiercely independent legislators. Even at the end of a lengthy debate with numerous opportunities for amendment, we may remain sharply divided about a bill's wisdom or the objective it seeks to achieve. But that does not mean consensus should not be our goal. We should take counsel from past legislative victories which show that broad victories produce lasting reform, whereas narrow partisan power plays tend to yield only rancor and repeated attempts to repeal.
For 38 years I have had the extraordinary privilege of serving in the Senate. During that time, I have witnessed it at its best and, more recently, at its worst. My experience throughout the last four decades has confirmed to me the wisdom of the first Adlai Stevenson, then Vice President, who in his 1897 farewell address captured the essence of the Senate: In this Chamber alone are preserved without restraint two essentials of wise legislations and good government: the right of amendment and of debate. Great evils often result from hasty legislation; rarely from the delay which follows full discussion and deliberation.
In recent years these foundations of the Senate's unique character-- meaningful debate and an open amendment process--have come under sustained assault by those who have prioritized scoring political points over preserving the Senate's essential role in our system of self-government.
Rather than simply bemoan this recent institutional damage, we have a duty to use this new Congress to restore the Senate. By returning to regular order and committee work, promoting robust debate, and enabling a deliberative amendment process, we can make the Senate work again-- both Democrats and Republicans.
First, robust debate. Senators' ability to engage in meaningful, substantive debate is at the core of the Senate's identity. Through robust discussions and inclusive deliberation, Senators examine all sides of an issue. We air opposing views and ensure that in haste we do not make worse the problems we are trying to solve.
When individual Senators have the right to debate a matter fully, it engenders confidence that the final legislation produced represents the best possible bill upon which the Senate can agree. Many pieces of legislation that seemed imperfect passed this way and have gone on to benefit the Nation greatly. For over 200 years, the Senate has provided each Member broad prerogative to debate and discuss the critical issues of the day. In the early years of the Republic, visitors flocked to the Senate gallery to hear Senators such as Daniel Webster, Henry Clay, and John C. Calhoun, just to mention three, to hear them expound upon matters of national concern.
It was in this body that some of our Nation's most important debates over taxation, slavery, expansion, and foreign affairs took place. For many years, free-flowing debate was so intertwined with the identity of the Senate that no effective cloture mechanism to cut off debate even existed until well into the 20th century.
While the need to end debate in certain circumstances is clear, we have strayed too far from this important deliberative tradition. In particular, the practice of filing for cloture at the very same time a bill is brought up for consideration has proliferated to a disturbing degree. When a full and robust debate has occurred, invoking cloture is often appropriate. But we must not abuse this power by reflexively seeking to cut off debate before it even begins. Let us return to a system where all Senators have a say in what the Senate does and are able to express their views without getting cut off.
The second Senate hallmark we must restore is an open amendment process. The reason for an open amendment process is to improve legislation. No single Member can foresee all contingencies that may arise or identify all of the potential pitfalls.
There is a reason there are 100 Senators, not just 1. More eyes mean more mistakes caught and more opportunities for improvement. An open amendment process also facilities consensus. One amendment may resolve a particular Senator's concern, allowing him to support what he or she once opposed. Another may make a bill politically palatable to Senators who support the bill in principle but not in its current form.
Amendments may also achieve buy-in as Senators who successfully amend a bill find themselves more committed to final passage. When Senators retain the ability to amend legislation, such input can establish a wide and lasting base of support that crosses partisan and ideological lines. Indeed, an open and honest amendment process has frequently enabled diverse coalitions to find important areas of agreement.
I even found that the former Senator from Massachusetts, the late Ted Kennedy, the famed liberal lion of the Senate, a man I came to Washington to battle, could be a productive partner. In the process, he became one of my closest friends, even if we widely disagreed on a lot of things. I miss him personally. We were able to do things that would not have been done had it not been for the work we did together.
Unfortunately, over the past several years, the Senate's traditionally open amendment process has come under increasing attack. For the sake of shielding electorally vulnerable Senators from tough votes, we have emasculated one of this institution's critical characteristics. It is time to stop manipulating Senate rules to prevent amendments. It is time to stop blocking amendments for fear of tough votes. It is time to return to healthier ways of doing things, where we work together to improve legislation rather than doing all we can to keep Members out of the process.
The third hallmark we must restore is a vigorous and productive committee system. Although perhaps not as moribund as our amendment process, the role our committees play in drafting and refining bills has indeed suffered in recent years. For centuries Senate [[Page S33]] committees have served as the primary forum for critical deliberation and amendments in this body.
Bills introduced in the Senate are referred to the relevant committees where Members have the opportunity to consider, debate, and amend the bill at length. Committees are the workhorses of the Senate or at least should be. On the floor we can do only one thing at a time. But any number of committees and subcommittees may operate simultaneously, allowing Senators to work out language and make compromises on multiple bills at the same time.
Committees also perform a crucial investigative function. They hold hearings, call witnesses, and solicit expert opinions on a wide variety of issues, enabling Members to expand their understanding and to better fine-tune individual bills. Lately, however, we have witnessed a disturbing trend of bypassing the committee process altogether by bringing bills directly to the floor for votes.
This practice undermines committee work and frustrates Members who diligently seek to move their legislative priorities through the committee. It also deprives bills of the benefits of committee review, which include more search and consideration of language, opportunities for comment by outside experts, and the ability to address support for amendments without tying up precious floor time.
A healthy committee process is essential to a well-functioning Senate. This body is not a fiefdom. We do not convene merely to give our assent to immutable messaging bills. We are supposed to work together to write, amend, and pass important legislation. When Senators bring up for consideration bills they have written without input from other Members, manipulate Senate procedure to prevent floor amendment on those bills, and then simultaneously file cloture to cut off debate, they act as autocrats rather than agents of democracy.
Let's return this body to one that operates by consensus, not dictate. Let's return the committee process to its proper place in our legislative landscape, as the first line of review rather than an utter irrelevancy. Let's restore the Senate to its proper role in our constitutional system by restoring the traditions that have made this body so great: robust debate, an open amendment process, an active, meaningful committee process.
Equipped with these tools, the Senate historically never shied away from taking on what everyone agreed were the toughest issues of the day. Yes, we had to take tough votes. Yes, we could not rush legislation through as fast as we sometimes would have liked. Yes, we sometimes felt deep disappointment when proposals we championed fell short. But while the Senate's rules can be frustrating and politically cumbersome, they are what allowed the Senate to serve the country so well for so very long.
Restoring the Senate in this manner will not be easy. After years of bitter partisan tension, we cannot expect a complete change to come overnight. But by reestablishing our historic aims and reinstituting our designing modes of operation, including robust debate, an open amendment process, and regular order through committee work, the Senate can once more be about the peoples' business and observe the title of the world's greatest deliberative body.