The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice
“Hot Senate action on C-SPAN,” a friend texted me last Tuesday night. “Urgent.”
Urgent and C-SPAN: not words I often hear together. But in this case, it was live coverage of the successful, Republican-initiated effort to bar Sen Elizabeth Warren (D-MA) from reading a letter on the Senate floor from Coretta Scott King about Warren’s colleague, Sen. Jeff Sessions (R-AL), who was nominated for Attorney General.
Alerted by the text, I immediately tuned-in. I watched in wonder as Senators voted along party lines to invoke Senate Rule 19, which bars a member from impugning another’s character. Using the rule, the GOP majority prohibited Warren from speaking about the letter. Then they went one step further. Warren was gagged altogether for the remainder of the debate over the Sessions nomination.
Now a week later, I wonder, did I watch in real time the death of the Senate as we know it?
Senate Majority Leader Mitch McConnell (R-KY), who came to a near-empty chamber to orchestrate a series of roll-call votes to silence Warren, accidentally launched a feminist meme (“She persisted”). And Warren starred in one of the oddest Facebook live events ever — a Senator reading a letter aloud to 2 million viewers. But a real human and institutional breakdown lay beneath these ephemeral viral events. The only question is how long-lasting and how deep is the damage.
All this has happened just when we need a functional, bipartisan Senate most. The Senate is the only federal institution with a recent history of comity and non-polarized decision making. (The majority has run the House as a fiefdom for about the last 150 years. The White House, almost by definition, is dominated by one party. And the courts bow out of the issue altogether.) If the Senate could only recover its institutional capacity for compromise and consensus, it could serve as a ray of hope for this badly-fractured democracy.
The Senate has been teetering on the verge of total paralysis for almost a decade. Filibusters are de rigeur. It’s now not uncommon for Senators to shut down hearings using the “two hour rule,” which basically says the Majority and Minority Leader must agree for a committee hearing to last longer than two hours. Squabbles abound. Unfortunately, rather than dedicating themselves to pulling the institution out of the spiral, Senate leaders in recent years have doubled down on bad behavior.
Warren was shut down with a procedural weapon so rarely used that Senate parliamentarians and historians scrambled to find historical precedents. As best they could tell, it had been used only once in the last 100 years. Worse, interpretation of the rule is highly subjective. The relevant portion of Rule 19 provides, “No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.” Since “unworthy” and “unbecoming” are undefined, the rule is subject to wide interpretation. After Warren was shut down, Senators were gobsmacked to learn that the Rule could be applied even to completely true statements of fact.
Silencing Warren was more than just another example of standard-issue Senate dysfunction. It was a shocking escalation of the scorched-earth tactics that can destroy the Senate as an institution. It was about elevating gamesmanship over statesmanship. It was about reacting punitively over listening. It was about seeking a momentary tactical win rather than pausing and considering the long run.
Let me be clear: both parties have engaged in this type of behavior. No one has clean hands. People have been saying the Senate is dysfunctional for decades. And Senators have been rude and nasty for a very long time. Indeed, Rule 19 was enacted in 1902 after one Senator punched another in the face after he made some “less than courteous” comments on the floor.
The notion of the eternal Senate—tempered, thoughtful, effective—belongs as much on the fiction shelves as in the political science stacks. Senate functioning has ebbed and flowed. There have been periods of epic dysfunction and periods of profound accomplishment.
Warren’s gagging will fester in the Democratic caucus. Republicans will see it as a successful maneuver. The consequence of the Warren silencing is that it will be just that much harder for members to quell their obstructionist impulses when the next crisis arrives, and it will…soon. To me, last week’s roll call sounded like the overture to a requiem. The week-long President’s Day recess should be time for some reflection. Members should contemplate whether their future – and the nation’s – is best served by a functional Senate or a Senate that continues its death spiral.