Clinton on Trial

When Is the Senate Not Like the Senate?

When it’s like the House.

Before senators had finished congratulating themselves on last week’s wisdom and comity (and some of them aren’t done yet), commentators–more commonly known as “small-minded, cynical commentators”–were taking to the airwaves and op-ed pages to note that the unanimous Senate agreement merely affirmed the obvious. The senators had punted the only decision that matters: whether and how to call witnesses. These critics predicted that this plaster façade of bipartisanship would collapse as soon as the Senate votes on witnesses.

Part of the reason the agreement will disintegrate is political: Senators vehemently differ about whether witnesses are necessary. But politics isn’t the only explanation for the looming conflict. There are two overlooked institutional reasons why the Senate will fracture. Senators like to attribute the Senate’s reputation for sagacity and harmony to their own sweet selves. Over and over again, we’ve been told that the Senate won’t succumb to the majoritarian partisanship of the House because, well, senators are senators. They are older, smarter, and more experienced than House members. They represent large heterogeneous states rather than small, homogeneous House districts. They form close friendships across party lines.

All this is true enough, but what most restrains senators from behaving like House members are the Senate’s own anti-majority rules, notably the filibuster rule. Senate rules allow a single senator to delay legislation and 40 senators to block whatever they want to. The Senate has made a virtue of necessity: Bipartisanship is savored because the Senate literally cannot indulge in the majoritarian excesses of the House. Legislative business would stop if a 55 member majority tried to impose its will on the minority (a case in point: the 1995 Senate).

But the Senate is no longer playing by its rules. The trial rules make the Senate more like the House. Majority votes will decide whether any witnesses will be called, which particular witnesses will be called, and whether the trial should be adjourned. Individual senators, required to stay silent, can’t delay the trial with the procedural wrangling that ties up normal Senate business. Forty senators can’t stop deliberations with a filibuster.

As a result, the Senate will be exposed to the same forces that buffeted the House. At the beginning of the impeachment investigation, you will remember, House Judiciary Chairman Henry Hyde declared that no impeachment was possible without bipartisan support. That bipartisan support never materialized, but the majoritarian rules of the House enabled Republicans to proceed anyway. Similarly, senators have insisted that the impeachment trial should proceed in bipartisanship. But the very rules that impose that bipartisanship on the Senate no longer apply.

The altered rules are not the only institutional reason why the Senate may feud. Senators pride themselves on their sloth. Their (tiresome) metaphor: The Senate is the saucer that cools the House’s tea. By this logic, the Senate will slowly and judiciously consider the articles that the House adopted in rage and haste.

But the sloth of the Senate may, if anything, work against the trial’s peace. The Senate is normally slothful for good reason: The slow pace gives legislators time to learn facts and make careful decisions. But Flytrap is not a matter where facts and contemplation have been in short supply. Every high-school kid in the country knows the case inside out. Senators are not likely to persuade each other with new facts and arguments, because there aren’t any. More talking won’t lead to enlightenment, but it may lead to rage.

Consider what happened in the House. The longer Flytrap lingered there, the more partisan it became. The House vote to launch an impeachment investigation won the majority of Democrats, and the Judiciary Committee began hearings with a semblance of cooperation. By the time the committee and the full House voted on the articles of impeachment, the good feelings had degenerated into loathing and disgust. The facts of the scandal did not change during those two months, but the debate itself hardened each side’s views and fomented dissent.

The Senate, which generally believes that talking is the cure for everything, may learn painfully why it isn’t. The less senators talk about Flytrap, the less they must disagree. The more they talk, the more Republicans and Democrats will reveal the vast differences in their beliefs, and the nastier the trial will get. The outcome won’t change: We already know what it will be. But the Senate itself, for all its deliberation, may be poorer.