Open Letter to U.S. Senate from 70 Former Senators

On February 25, the Washington Post published an open letter to the U.S. Senate  from 70 former senators (by my count, 48 Democrats, 18 Republicans and 4 Independents), including three from my State of Minnesota (Dean Barkley (Ind.), Mark Dayton (Dem.) and Dave Durenberger (Rep.)). [1]

The Letter’s Contents

“Congress is not fulfilling its constitutional duties. Much of the responsibility rests on the Senate. We are writing to encourage the creation of a bipartisan caucus of incumbent senators who would be committed to making the Senate function as the Framers of the Constitution intended.”

“As their first priority, the Framers explicitly entrusted all legislative responsibility in Article I of the Constitution: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” To the extent that Congress doesn’t function as the Framers intended, policymaking is left to the less democratic executive and judicial branches.”

“Examples of Congress ceding its powers to the executive through the years include the power to regulate international trade, the power to authorize the use of military force in foreign conflicts and, when the president declares national emergencies, the power of the purse. In addition, the partisan gridlock that is all too routine in recent decades has led the executive branch to effectively “legislate” on its own terms through executive order and administrative regulation. The Senate’s abdication of its legislative and oversight responsibilities erodes the checks and balances of the separate powers that are designed to protect the liberties on which our democracy depends.”

“Anecdotally, we have been told by sitting members that the diminished state of the Senate has left them doubting whether there is any point in continuing to serve, and it has caused potential candidates to question whether the reality of Senate membership is worth the considerable effort and expense of running for office.”

“We do not want to give the impression that we served in some golden age when the Senate operated like clockwork and its members embraced one another as one big happy family. Of course, that was never the case. Senators have always advanced strongly held positions and have vigorously engaged in legislative combat. All of us have vivid memories of tense times with difficult colleagues. But that is just the point. By design, the Senate is the place where Americans with all their competing interests and ideologies are represented and where champions of those positions attempt to advance their causes and work through their differences. Many call the legislative process ‘sausage making.’ That is a fair assessment. Legislating is often messy, but it is America’s way of holding together a diverse nation.”

“Our concern is that the legislative process is no longer working in the Senate. Several factors may be cited: Senate committees have lost responsibility for writing legislation. Rules allowing extended debate, a feature of the Senate that is essential to protecting the rights of minorities, have been abused as the filibuster and cloture have shut down action on the Senate floor. It is now commonly said that it takes 60 votes to pass anything in the Senate. This is new and obstructionist; it takes 60 votes to invoke cloture in the once relatively exceptional event of a filibuster. Filibusters are now threatened as a matter of course, and are too readily acceded to. Neither in committee nor on the floor do rank-and-file members have reasonable opportunities to advance their positions by voting on legislation.”

“We believe a bipartisan caucus of incumbent members that promotes a fair opportunity for senators to participate in meaningful committee work as well as on the Senate floor could help restore the Senate to its essential place in our constitutional system. Its members would need to stand firm in the face of what could be strong opposition from partisans who prefer politicians who take intransigent positions over those who champion a legislative process that celebrates compromise.”

“This does not have to be viewed as a judgment on today’s Senate leadership; instead, it’s a bipartisan act of shared responsibility and accountability for how we arrived at this point. We, who once held the office you now hold and who are confident that service in the U.S. Senate is as high a calling for you as it was for us, will stand up for you against any partisan opposition. We will do so publicly and repeatedly in whatever available forums. And we are convinced that many ordinary Americans will stand up for you as well, as they share our concern for the state of our government.”

“We know that accepting this challenge may put some of you at political risk. But we are also confident that each of you chose to serve in public life to advance the cause of a “more perfect union.” Our hope is that all of you will accept this challenge to advance that timeless and higher purpose. The Senate — and the proper functioning of our republic — are simply too important to be allowed to continue on their present course.”

Comments

Thank you to all 70 of the former senators for taking this public action. As a citizen observer, I agree that “the Congress is not fulfilling its constitutional responsibilities,” that “much of the responsibility rests on the U.S. Senate,” that “Congress has ceded too much power to the executive,” that “committees have lost responsibility for writing legislation” and that there has been “abuse of the [Senate’s] filibuster and cloture rules.”

However, regrettably it seems unlikely to this citizen that during the next eight months of a presidential and senatorial election campaign that there will be the creation of a bipartisan senatorial caucus to reform various Senate procedures.

Moreover, such an effort obviously assumes no changes in the basic constitutional structure of the Senate. For this citizen, a major defect of the current Constitution is the assignment of two senate seats to every state regardless of population and hence the over-representation of land, instead of citizens. That, of course, would require a constitutional amendment. One such amendment would keep two senators for every state under a weighted voting system granting larger votes to the two senators from California, for example. [2]

================================

[1] 70 former U.S. senators: The Senate is failing to perform its constitutional duties, Wash. Post (Feb. 25, 2020). 

[2] See The Antiquated Constitutional Structure of the U.S. Senate, dwkcommentaries.com.(Oct. 23, 2016). See also these posts to dwkcommentaries.com:  U.S. Senate’s Filibuster Rule Under Attack (May 15, 2012); Former U.S. Senator and Vice President, Walter Mondale, Supports Changing the  Senate Filibuster Rule (.May 15, 2012); District Court Dismisses Lawsuit Challenging Constitutionality of U.S. Senate’s Filibuster Rule (Dec. 22, 2012); U.S. Senate Adopts Modest Reform of Its Filibuster Rule (Jan. 24, 2013);U.S. Needs More Democratization (Feb. 14, 2020); Responses to Ezra Klein’s Democratization Thesis (Feb. 15, 2020). 

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dwkcommentaries

As a retired lawyer and adjunct law professor, Duane W. Krohnke has developed strong interests in U.S. and international law, politics and history. He also is a Christian and an active member of Minneapolis’ Westminster Presbyterian Church. His blog draws from these and other interests. He delights in the writing freedom of blogging that does not follow a preordained logical structure. The ex post facto logical organization of the posts and comments is set forth in the continually being revised “List of Posts and Comments–Topical” in the Pages section on the right side of the blog.

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