The topic of this episode is, “Does the Senate still work?”

To answer that question, we have Martin Gold, a partner with Capital Council, LLC, a government relations firm in Washington, DC. Marty spent many years in the US Senate working for individual senators, committees, and a majority leader. He also is the author of the book, Senate Procedure and Practice (Rowman and Littlefield, 2018), which explains how the Chamber operates.

So, Marty has both an inside view of the Senate and he has a long view of it, which is why I wanted to have him on the program to answer the question, “Does the Senate still work?”

Kevin Kosar:

Welcome to Understanding Congress, a podcast about the first branch of government. Congress is a notoriously complex institution and few Americans think well of it, but Congress is essential to our Republic. It’s a place where our pluralistic society is supposed to work out its differences and come to agreement about what our laws should be. And that is why we are here to discuss our national legislature and to think about ways to upgrade it so it can better serve our nation.

I'm your host Kevin Kosar and I'm a resident scholar at the American Enterprise Institute, a think tank in Washington, DC.

Welcome to the program.

Martin Gold:

Thank you for having me, Kevin.

Kevin Kosar:

The subject of this episode is, “Does the Senate still work?” So it occurs to me that—to answer that question—it might be helpful if I first asked you, “What does a working Senate look like?”

Martin Gold:

A working Senate is a Senate that is mindful of its constitutional responsibilities, which it has many. Some powers are expressly stated in the Constitution and are unicameral powers, like the power over nominations, the power over treaties, or the power to run impeachment trials. And then a number of other powers that are obviously exercised on a bicameral basis.

But I think if you go beyond the text of the Constitution itself and consider the constitutional purpose of the Senate, its purpose is to slow things down and be a more deliberate body. James Madison talked about, in the Federalist Papers, the Senate being a necessary fence against the passions of the House of Representatives. The rules and the precedents of the House and the mechanisms of the House allow it to move very quickly when the majority party wants to move quickly and the minority has very little, if anything, to say about it and it can push things through on a fairly instantaneous basis. It's a legislative juggernaut.

The purpose of the Senate is to be the necessary fence against that, to slow things down, and to create a more deliberative process. And when you get beyond the stated powers of the Senate and the Constitution and look also to the purpose of why we have a bicameral legislature, I think the Senate, in fact, does serve that function quite well. It doesn’t serve it in exactly the same way as it may have served it years ago. Senates do change, not only on the basis of the people who are serving in the body but also on the national mood of the country. When people talk about polarization in the Senate. It has to be remembered that the Senate is a political institution and that the polarization in the Senate reflects the polarization of the American people. If the Senate were really out of step with the American people, query how many of those senators would remain senators as the public thought that somehow or other they really weren’t being appropriately represented in the place. So how the Senate goes about serving the constitutional functions—both formal and informal—is different perhaps than it may have been in the past. Nevertheless, I still think it is the necessary fence in the great constitutional structure we have.

Kevin Kosar:

I want to quote something from the start of your book where you write, “If one were to encapsulate the difference between House and Senate procedure in nine words, they would be ‘Dominance of the offense versus dominance of the defense.’” I think it’s useful for our listeners to get a sense of how is the Senate different from the House. Okay, they play more defense over there. They are the fence you were talking about. Why does it work that way?

Martin Gold:

I should begin by explaining what that terminology means because I’ve used it for years and years and it remains true. If they got rid of the filibuster in the Senate it might not be so true, but it’s true now anyhow. The House is an institution, particularly as that has evolved over American history, where the rules and the precedents of the institution and the mechanisms of the institution—such as the House Rules Committee—all served to enhance majority party power. Meaning, in effect, that a majority that can hang together, particularly on procedural questions, can not only set up the terms for debate and consideration in the House but can really push things through on a very rapid basis without, again, much accord being given to minority perspectives or viewpoints. That’s dominance of the offense.

The Senate is exactly the opposite. The rules of the Senate and the precedents of the Senate and the absence of mechanisms such as a rules committee all serve to enhance the power of minority parties, minority coalitions, and individual senators. So it is a place where the defense really can dominate the institution. It isn't to say that the defense can just stop anything it wants to. It is to say that things take longer to get through. Sometimes they can be stopped and sometimes the defense can use its power to modify the procedures by which things will be considered. But the bottom line of it is: not only is the Senate different from the House in obvious ways such as the sense of the length of terms of the members and the way we have two per state equality of membership (as opposed to proportionality) or the just general size of the body, it is also different in terms of how it exercises its power under the Constitution.

It's one of the things in the Constitution that people tend to overlook. The framers of the Constitution did not write the rules of the Senate, nor did they write the rules of the House of Representatives. They wrote no rules at all. They, however, gave both senators and representatives the power to govern themselves however they saw fit. And so it can be argued that the rules that have developed in the House over the course of time serve the constitutional purposes that the House is supposed to serve and that the rules of the Senate—as they have evolved over time—serve the constitutional purposes of the Senate. Again, the framers did not arrange for those things. Senators could have structured rules however they wanted to structure them, same with representatives. But the evolution over time, I think does, in fact, serve the broad constitutional purposes that you have in a bicameral legislature. Otherwise, you could just have a unicameral legislature.

Kevin Kosar:

Since you mentioned rules, I figured I want to just drill down a little bit more on this. Every two years we have elections and we get a new Congress. As part of that, the House of Representatives will review its rules and they’ll vote to alter them. And this is typically a partisan exercise where whichever party has the most people gets to rewrite the rules. Senate doesn’t work that way, does it?

Martin Gold:

The Senate does not because 100% of the House of Representatives is freshly elected every two years. Therefore, the rules of one Congress do not carry over to the next Congress. There is, I should say, substantial similarity between the rules of one Congress and the rules of the next. The rules of the Pelosi Congress and the rules of the present Congress are substantially similar—although not identical because the Republicans, when they came in and had that highly-publicized rules controversy wrapped around the election of Kevin McCarthy as Speaker, did make some changes to the last set of rules that Pelosi had had as Pelosi and the Democrats made changes to the Ryan rules that preceded them. So while there is vast similarity, there are also important differences. The Senate, however, is a continuing body. Two-thirds of the senators continue over from one election to the next. It is supposed to be that way.

You could have otherwise had the framers elect the entire Senate all at once. But the framers divided the Senate into three classes, making sure there was always a quorum of the Senate present so that if you replaced every single senator who was up for election in a particular election cycle, you would still have stability in the chamber. And because of that, the rules of the Senate do carry over from one Congress to the next. They are sometimes changed, but when Mitch McConnell was the majority leader, for example, there was not a single time in his tenure as leader where he proposed a rules change. And Chuck Schumer has been the leader now going on three years, he hasn't made changes either. The last time they formally amended the