The Senate isn’t the House. Or, put in a slightly more nuanced way: The Senate isn’t supposed to be the House.
Those statements are, well, obvious. And yet, as the reaction in the Senate in the aftermath of the death of Ruth Bader Ginsburg makes clear, they are also not exactly true. The Senate has nearly entirely transformed itself into the House – a majority-rule body where debate is subjugated to pure partisanship.
This evolution isn’t the fault of one party or the other. Instead, it’s the result of a combination of parliamentary decisions over the past decade and the changing membership of the Senate, with a slew of former House members flooding the chamber.
“Large numbers of senators are former House members and try to turn the Senate into a tightly structured second House,” former Louisiana Sen. John Breaux (D) told me way back in 2013. “They get over that after a couple of years, as I did, but the turmoil it creates can cause dysfunction. Add to that a fewer number of centrists from both parties, and we have the difficult situation we see today.”
Except that they didn’t “get over” it, as Breaux predicted. Instead they helped to speed up the transformation of the world’s greatest deliberative body into something the Founding Fathers never envisioned.
Remember that the Constitution purposely made House terms two years and Senate term six years – because the House was designed to be more responsive to the whims of the public, while the Senate was envisioned as the more deliberative and less obviously politically driven chamber.
The most famous story (although it remains somewhat hard to prove) regarding the difference between the Senate and the House comes from an apparent conversation between George Washington and Thomas Jefferson. As Jefferson’s Monticello website recounts:
“Why,” asked Washington, “did you just now pour that coffee into your saucer, before drinking?”
“To cool it,” answered Jefferson, “my throat is not made of brass.”
“Even so,” rejoined Washington, “we pour our legislation into the senatorial saucer to cool it.”
In addition to the difference in terms between the House and Senate, the biggest difference between the two was the creation – accidentally by Aaron Burr in the early 1800s – of the filibuster, which allowed any senator to speak for as long as they saw fit unless and until 65 (and eventually 60) of their colleagues voted to end unlimited debate and move to a floor vote.
Which is how things pretty much went until 2013, when then-Senate Majority Leader Harry Reid (D-Nevada) invoked what was known as the “nuclear option” – changing Senate rules to allow filibusters on most presidential nominations to be broken by a simple majority vote.
As The Washington Post’s Paul Kane wrote presciently at the time:
“In the long term, the rule change represents a substantial power shift in a chamber that for more than two centuries has prided itself on affording more rights to the minority party than any other legislative body in the world. Now, a president whose party holds the majority in the Senate is virtually assured of having his nominees approved, with far less opportunity for political obstruction.”
Which is, of course, what happened. Republicans retook Senate control in the 2014 midterm elections and then President Donald Trump won in 2016. At which point, Senate Majority Leader Mitch McConnell changed the Senate rules again, allowing a filibuster of a Supreme Court nominee to be broken with a simple majority vote. (Reid had stopped short of including SCOTUS nominees in his rule change.) Both Neil Gorsuch and Brett Kavanaugh were confirmed under that rule change; Gorsuch got 54 “yes” votes while Kavanaugh received just 50.
Those rules will also govern Trump’s eventual pick, which he has said will come later this week. With 53 Republican senators, McConnell can afford to lose three and still get the confirmation through. (Alaska Sen. Lisa Murkowski and Maine Sen. Susan Collins have said they oppose voting on a court pick so close to the election.)
And because politics these days are all about escalation, Senate Democratic Leader Chuck Schumer (New York) said Sunday that “everything is on the table” – including adding more seat to the Supreme Court or totally gutting the filibuster for all Senate activities.
At which point, the Senate would effectively complete its transformation into the House. Which is a bad thing – no matter which party you side with.