How To Fix the Senate: Leahy, Stafford and the Unwritten Constitution

As long-time readers know, Middlebury’s Commencement, which took place this past Sunday, is when I traditionally pen my “Ode to My Favorite Graduating Student.”  This graduation, however, Middlebury awarded one of its honorary degrees to Vermont’s senior Senator Patrick Leahy.  Rather than spending commencement blogging, I was fortunate, along with my wife Alison, to spend time during the weekend with the Senator and his vivacious wife Marcelle.  I can tell you that they are as down-to-earth and personable as any two Vermonters you might meet. Not surprisingly from someone who was first elected to the Senate in 1974, making him the second most senior current senator, Leahy in his almost four decades in the Senate has experienced the gamut of political life, from the momentous to the mundane to the comical, and he draws on all those experiences to produce a seemingly endless store of anecdotes – stories that he tells well, and with relish.  I had the good sense to shut my mouth, listen and learn.

Given my research interests, of course, I was particularly interested in his take on the eight presidents with whom he has officially interacted, including President Obama.  He did not disappoint, providing illuminating stories about almost all of them. (Since these were private conversations, I’m not going to repeat them here, but I can say it is clear that he has the utmost admiration and respect for Obama.)

Of perhaps greater interest, however, was his take on the current polarized nature of politics on Capitol Hill.  When I indicated that voting studies suggest that the recent congresses are among the most polarized since the post-Civil War reconstruction period, he said that the polarization ran deeper than simply partisan differences on votes.  It was reflected, for example, in instances in which senatorial colleagues could not be trusted to keep their word.

In his public comments at the dinner honoring the honorary degree recipients, Leahy drove that point home, but he did so not by criticizing his Senate colleagues but instead by reminiscing about his mentor – Vermont Senator Robert Stafford.  Stafford was a Republican who represented Vermont in the House for a decade before being appointed in 1971 as the state’s junior senator when the incumbent senator died in office.  Stafford went on to win the special election to fill the vacancy, and was reelected in 1976 and 1982. (Many of you may recognize Stafford’s name because of legislation he sponsored that funded undergraduate loans: the Stafford Elementary and Secondary Act of 1987.)  He retired in 1989, and passed away in 2006.

Although he took office as a fiscal conservative and anti-communist, Stafford moderated his views the longer he remained in national office, most notably when he turned against the Vietnam War.  He also became an early supporter of the environmental movement. But it wasn’t Stafford’s changing policy views that Leahy remembered – it was the Republican Stafford’s willingness to reach across the aisle to the junior Democrat senator from Vermont.  Most of you know Leahy as one of the most liberal members of the Senate, representing perhaps the most liberal state in the Union.  But when Leahy first won election in 1974, he was the first Democrat ever to represent Vermont in the Senate (and technically remains the only Democrat to do so, since Bernie Sanders is officially an independent.)   Vermont in 1974 was a staunchly Republican state, and had been for more than a century. Nonetheless, as Leahy recalled, Stafford went out of his way to work closely with the junior Senator although he was from a different party. For example, he suggested that Leahy serve on different committees than Stafford so that Vermont’s interests could be more broadly served, and he shared office space as Leahy’s staff got settled.  More generally, Leahy recalled, Stafford in myriad ways sought to work closely with Leahy despite their partisan differences.

Today, in the current period of intense political polarization, when many critics have advocated reforming the Senate by, for instance, weakening the filibuster rule, Leahy’s comments are a reminder that what ails the Senate is likely not going to be cured by procedural reforms.  Instead, it requires changes to what political scientist James Q. Wilson, writing in 1987 (and drawing on Don K. Price), described as the “unwritten Constitution” – “those customs and arrangements that allow a government of separated institutions to work at all.”  Wilson was focused on the structural deficits that had at that point dominated political debate for almost a decade, and he was reacting to critics who cited those deficits as evidence that the American system of shared powers could no longer govern without institutional reforms.  Wilson disagreed, arguing that no one could understand the way Congress worked by simply looking at its formal procedures and organization – instead, one must examine its informal customs and traditions.  Leahy, in his public comments this weekend, made a similar point: that what is wrong with the Senate today is not that its rules and structure need changing, but that the norms of reciprocity, accommodation and bipartisanship that characterized the Senate of four decades ago have been largely lost.  Whether – and how – they can be regained Leahy did not say. But if he is right, procedural reforms by themselves are unlikely to mitigate the intense polarization that now characterizes the United States Senate.

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