Tuesday, December 29, 1998Blown in the wind of public opinion
By George Will
WASHINGTON — Many cynics are really sentimentalists wallowing in their disappointments. Washington fancies itself hard-bitten but actually is easily unnerved, and as the impeachment spotlight shifts to the Senate, the city is reassuring itself by bathing the Senate in sentimentality. World’s Greatest Deliberative Body, as the Senate fancies itself, will, say people who evidently have slept through the 20th century, be an elevating force, “as the Founders intended.”
Before examining that peculiar expectation, consider a puzzlement. There has recently been an eruption, in unlikely quarters, of reverence for the Founders’ intentions.
Many professors, serving as President Clinton’s poodles, say the Framers’ meaning of the constitutional phrase “high crimes and misdemeanors” is perfectly clear and absolutely binding today. Many of these professors usually say the Constitution is a “living,” “organic,” “evolving” document that means whatever contemporary construers want it to mean — as, for example, when a right to abortion is suddenly discovered in it.
Now, about the idea that the prescient Founders designed a Senate splendidly suited to devise a Solomonic solution to today’s impeachment unpleasantness. The theory, wonderfully contradictory, is:
The Senate will be judicious about impeachment because, being more insulated than the House from public opinion, the Senate is made for intellectual sobriety and moral independence. And the Senate will demonstrate judiciousness by correcting the House’s reckless disregard of public opinion.This theory about the Senate’s inclination toward disinterestedness is slain by a slew of facts, one of which is that the Senate today is a more “popular” body — more controlled by public opinion — than the House. This is so because almost all Senate seats can be closely contested, while about 85 percent of House seats are not, thanks to the natural political homogeneity of many districts and to increasingly sophisticated gerrymandering.
No Senate seat is inherently out of reach of either party. But analyst Charles Cook says in the 1998 House races, 76 winning candidates were unopposed (that is, they faced no major party opposition) and only 62 of the 435 races were competitive. Cook defines “competitive” broadly, to mean this: Without stretching plausibility too far, you could imagine either major party candidate winning. Even though the Senate re-election rate is rising and approaching that of the House, that reflects the role of money and incumbents’ advantages in raising it.
A fortuitous consequence of Clinton is that his scandals have stimulated sales of The Federalist Papers. They describe the Senate as the somewhat aristocratic component of the Republic’s constitutional order. The Founders hoped because senators were indirectly elected — by state legislatures rather than by popular elections — and serve six-year terms, senators might be largely insulated from the importuning public and, anyway, would be the sort of people not easily importuned.
Unfortunately, 85 years ago the 17th Amendment produced popular election of senators. And because so many Senate elections are competitive, Senate campaigns, particularly the fund-raising dimensions, are six years long.
Besides, the Founders, being realists, only stipulated the kind of virtues suited to the different branches. They did not say what kind of people the representatives, senators and judges would actually be. Instead, they said what kind of people each body required. Consider, for example, the judicial branch.
Alexander Hamilton considered it the “least dangerous” branch (Federalist 78) because it supposedly is the least responsive to opinion. But it has become the most dangerous, in part because it is the most susceptible to gusts of public opinion.
But the judiciary is even more blown about by opinion that is more volatile, and often less sober, than the opinion of the public — that of the intelligentsia. Change the academic culture of six law schools — Harvard, Yale, Columbia, Michigan, Chicago, Stanford — and the intellectual content of the judiciary will follow, quickly.
When delivering prompt action to appease public opinion, the Senate can be as nimble as a pony, and as thoughtful. Senate rules are rife with blocking mechanisms, but the polls are speaking to the pols, who for that reason — please, spare us further reflections on Senate’s special reflectiveness — may quickly cobble together a censure motion as a way of liquidating the public’s impatience about further consideration of Clinton’s crimes.
I guess that's the possible problem with a bigger House. Would it, after the first election, be more competitive? I suppose if there were more Congressmen and they were less exalted and had fewer perks people would feel more inclined to challenge them. Were it to become clear that your one of 1000, 2000, or 3000 Representatives won't bring in any more 'bacon' than any of the others, voting might become more of a referendum on national issues, rather than a rubber stamp for the person who's already been elected. But there does seem to be a lot of single-party sentiment in America, so I wouldn't quite bet on the change making much difference.
As for all the Senate Seats being up for grabs, I'm not so sure. Republican Senators from Massachusetts or Hawaii? Democrats from Mississippi or Wyoming? Still, the nationalization and mediatization of campaigns do make it possible for a Daschle or a McGovern to hold on in what would otherwise be a conservative state.