Senate Part III, The consequences: a runaway Executive, Senate tags along

by: Daniel De Groot

Sun Dec 13, 2009 at 12:00

Part III looks at how that institutional imbalance between the Houses actually affects the institutional balance between the Branches with some examples.

In recent decades, as the Executive branch has grown in scope and power relative to the Legislative, the Senate's powers have only served to magnify its advantage over the House.  The more powerful the Executive becomes, the more the Senate can use its leverage to demand concessions in which the other half of Congress has no input.  

It is a form of negative feedback loop.  The Executive is more powerful than the Legislative, and can use that influence to convince the Senate to allow it to accrue even more power, which the Senate agrees to in exchange for favours the Executive can dole out, and because it still has considerable leverage over the Executive, so fears less the loss of other powers.  Rinse, repeat.

Congress could roll back the Executive's powers, except that half of Congress has little interest in doing so, since they actually can gain power more easily by conceding Congress' formal influence in exchange for informal power, which they don't need to share with the House.

A recent incident occurred over Max Baucus' girlfriend, because he "nominated" her for United States Attorney for Montana.  No one seems to question why Max Baucus' opinion about who should be Eric Holder's AUSA in Montana matters more than any other Senator.  The spoils system returns, it seems.  It isn't just Majority party Senators that enjoy this perk either, the Huffington Post recounts nine Obama nominees who are being held up by Republicans in exchange for various pork and other concessions they want.  

These are just the interplays between Senate and President that we hear about.  How many more do we miss?  Ones where they are able to cut deals immediately without the need for messy and irritating "holds" or pesky media figures noticing that you're sleeping with the person being nominated for a key Federal job.

The fixation of a few Senators (like McCain) on ending Congressional earmarks should be considered along these lines as well.  Even though (as argued at the link) it would essentially be a big shift of Congressional power to the Executive, perhaps Senators don't care about that since they could just get their pork projects via backroom negotiation with the Administration?  It's probable they would get more pork, since House members lack any real leverage to demand such concessions.

Media's Magnifying Role

As the role of televised media has grown, much commentary has focused on the advantage that gives to the President via the bully pulpit.  The institutional problem for Congress in standing up to the President is that (s)he's one person, by far the most powerful individual, and has access to some very loud microphones.  No single member of Congress, even the darlings like McCain nor the leadership gets this kind of media airtime.  It's unlikely if the Speaker requested 30 minutes of network airtime that she'd get it.

Senators too, have gained from this in comparison to the House (while overall Congress is less influential).  As the importance of Presidential nominees has grown, so too has the media profile of the Senators who run the key committees who confirm them.

It's not as if the media only focuses on Senators during periods where contentious nominees are facing confirmation either.  It's rare Sunday morning that won't see John McCain, Joe Lieberman, Lindsey Graham or one of the other "moderates" on just for their general views with no particular issue centring on their vote.  A House committee chair will be brought on when marking up a major piece of legislation, but except for one or two particularly witty or crazy House members (thinking of Barney Frank and Michelle Bachman respectively here) who have become minor celebrities in their own right, House members are less common on TV, probably in absolute terms, but certainly in proportion to the numbers.  It might be easy to think this is just because there are far fewer Senators, and television likes to use people the public already knows, but given the greater power and influence of the Senate established in Part II, the media is just recognizing reality (and exacerbating it by giving Senators an even bigger podium).  

Contemporary Examples:  The House Fights Weakly, The Senate Surrenders

Even if one assumes that Democratic control of the Senate will makes it more apt to reassert Congressional authority, the conservative operational majority is effective enough to prevent any serious action by the Senate in this regard.  The 110th Senate couldn't even vote on motions against Alberto Gonzales or of contempt for Karl Rove after the former lied to them, and the latter simply disregarded their Subpoena.  The House was at least able to pass motions of statuatory contempt against some Bush officials, and take the matter to Court.  It wasn't Inherent Contempt, but it was something.  

Except in rare windows like the post-Watergate Democratic supermajority where some Executive rollback happens, overwhelmingly the Senate is unable to block Executive growth, and often speeds it along.  The awful Protect America Act of 2007 was written in the Senate and jammed through the House at the last minute after the Senate had recessed, leaving the House to either take it or leave it (obviously a deliberate brinkmanship tactic).  The House had initially passed a fairly good immunity-free FISA bill which the Senate (and everyone else) simply ignored.  Later, when it came time to renew the PAA, it was the House that actually balked and let the thing expire, prompting all sorts of hyperbolic panic-mongering from the power worshipping DC press.  This is where the Responsible Center reinforces silly notions about their fears of "mob rule" and so forth should the idea that the House ever be accorded greater power come up.

For another comtemporary example, recall that passage of the $700B TARP bank bail out was never in doubt for the Senate, and it was in the House that the vote initially failed.  Once again, the Senate was only too eager to hand over the keys to the Presidency without even asking where it was going to drive, and the House shows at least signs of institutional spine, however temporary or ultimately ineffective.

In the current Congress, we have seen the measure to allow the Presidency to block release of the next batch of torture photos passes by unanimous voice vote in the Senate, while it was blocked for a while by the House.  Even having a Democratic President hasn't fully altered the conservative Senate mindset with regard to Executive power - if they approve of what the Executive is doing (e.g. covering up Republican sponsored crimes), they're still happy to cede power.  

Overall it is increasingly clear that the flaws in American democracy are most evident, and exacerbated by the Senate.  In a past era, Progressives were able to muster enough democratic willpower to compel the appointed aristocrats in the Senate to agree to face the voters, in passing the 17th amendment, simply a remarkable feat.  

Fixing what ails the institutions will require a similar effort to curtail the Senate, or enhance the role of the House.  It isn't 1787 anymore, and the founders' conception isn't working.  Want to fix the Congressional/Executive power imbalance?  Fixing the House/Senate imbalance is a necessary prerequisite to that.  The anti-federalists called this one right.  

Chris' call to end the filibuster, if accomplished, would represent enormous progress for democracy in America, but it is far from the only fix needed to unstack this magician's deck of marked aces.