Commentary: Are elections miring U.S. Senate in inaction?

By Karl W. Smith / Bloomberg Opinion

More than three weeks after the Cares Act expired, Congress is still deadlocked on its replacement; and the main stumbling block is in the Senate. Republicans are fractured and disorganized, while their Democratic counterparts are afraid of doing anything that might be seen as undermining the House.

The Senate’s inability to pass major legislation has long enraged Democrats. During President Obama’s tenure, they blamed it variously on the filibuster, general partisanship or, more specifically, Senate Majority Leader Mitch McConnell’s determination to undermine the president.

None of that makes sense anymore. The filibuster is irrelevant, given that the Senate cannot even manage to find a simple majority in support of a complete covid relief package. The most intense fights are now within the Republican Party, not with the Democrats. And McConnell’s failure is undermining a Republican president just months before the election.

All this has left commentators looking for deeper structural problems within the GOP. They surely exist, but the problem with the Senate is more institutional than political.

Recall that this same Republican-controlled Senate came together in March to pass the most sweeping relief bill in history. By contrast, much of the Obama administration’s plans to overhaul America were stripped down, if not altogether scuttled, by a Senate with a comfortable Democratic majority.

To an extent, this is the way the system was designed to work. George Washington famously said that the Senate’s job was to cool legislation passed by the House, just as a saucer serves to cool hot tea. The idea was that the Senate would be more focused on the long term than the factional and fad-driven House.

The root of the current problem is that the U.S. has departed from this setup. And one of the main reasons is the 17th Amendment, ratified in 1913, which mandates that senators be elected by popular vote.

Before that, senators were elected by state legislatures. The yellow journalists of the time argued that state legislatures were so corrupt that Senate seats were literally sold to the highest bidder. There is little evidence for this, but it reflected the reality that senators were often established and well-connected figures in politics and business.

The more substantive complaint was that old system resulted in state elections being dominated by national party politics. Voters who favored the Democrats nationally, and wanted a Democratic senator, would vote for Democratic state legislators even if they favored Republican positions on state policy.

This was basically correct. State and even local elections were becoming increasingly nationalized, but the popular election of senators did little to stop that trend. That’s because the ultimate cause was the rise of an integrated economy, mass media and the tendency for tribal allegiances to form around the biggest and most salient national news of the day.

Indeed, this very trend has turned the Senate from a body of elder statesmen and women into 100 mini-presidents vying for national attention. It is the worst of both worlds. Any individual senator’s vote has only a small chance of changing the actual outcome of legislation; but a senator’s perceived stance on the most contentious national issues is crucial to her political survival.

As a result, senators in solid red or blue states are locked in a permanent presidential primary in which their survival depends on appealing to the base. Senators in purple states, by contrast, are fearful of taking any controversial votes at all. Moreover, because the defeat of even few senators can lead to lasting swings in the balance of power, Senate leaders are disinclined to make vulnerable members go on the record.

Add it all up, and the result is a legislative body that is fearful and reactionary rather than august and careful. One way to change this would be to return the election of the senators to state legislatures, perhaps with the additional provision that senatorial selection happen in odd years, when fewer legislatures host elections.

This is no small undertaking — it would require a constitutional amendment — and the state selection of senators is not a panacea for everything that ails Congress. But the Senate is now afflicted with a factionalism deeper than even the most cynical Founders foresaw. Ending the popular election of senators could help make senators less obsessed with the passing squalls of national politics; and help make the Senate a more deliberative body.

Karl W. Smith, a former assistant professor of economics at the University of North Carolina and founder of the blog Modeled Behavior, is vice president for federal policy at the Tax Foundation.