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Don’t Let the Senate “Veil of Ignorance” Go to Waste

Let’s hear how senators think things should work BEFORE they know who will be in charge

Philosopher John Rawls famously proposed a thought experiment for designing a just society. He suggested deciding which rules we would put in place if we had no idea the conditions into which we would be born. This “veil of ignorance,” he suggested, would prompt us to make rules that would be most fair to all, regardless of economic or physical conditions.

Over the past two decades, almost every farewell address on the Senate floor has lamented the decline of the institution — a loss of civility, a concentration of power in leadership, the inability for the minority to offer amendments or have their bills considered. In the past month, retiring Sen. Udall [R, NM] urged colleagues to end the legislative filibuster (to save the institution); while retiring Sen. Alexander [R, TN] urged his colleagues to retain it (to save the institution).

Few senators take concrete steps to change things before their valedictory speech, however, though some —like Sen. Ben Sasse [R, NE] — are not short on ideas.

With the current 48–50 breakdown in the Senate, and two close runoffs ahead in Georgia, we are living with a temporary “veil of ignorance” for our future Senate. And those senators who are not retiring are notably silent on what the rules should be in the year ahead. Few are willing to say what rules they want until they know who will hold the power; but that should not stop reporters from asking.

What reforms do rank-and-file senators *actually* want to see? A return to the filibuster for nominees? (Or elimination of the filibuster entirely?) Consideration of minority bills and amendments? If senators are going to be hanging around the Capitol over New Years waiting to vote on overriding the NDAA veto, now is the time for reporters to get them on the record.

R Street Senior Governance Fellow, James Wallner, wrote last year in response to the Sasse proposals, “The Senate isn’t the problem, senators are,” making the point that each senator holds significant power to force changes.

That may be even more true when margins are tight, as they will inevitably be in 2021, regardless of what happens in Georgia.

Let’s try our own thought experiment: What if a group of reform-minded moderates (say… two Republicans and one Democrat) were willing to to “disaffiliate” from their own party caucuses and act together as free agents to demand changes. And how could Leadership (of either party) refuse if the disaffiliated group held the power to determine the majority in their hands?

It would not be completely unprecedented. In 2001, with a 50–50 Senate (and majority determined by VP Dan Quayle [R]), then-Republican, Sen. Jeffords [VT] changed parties after what he perceived as a snub by his own party over education aid for children with disabilities. Jeffords reportedly told then-Sen. Dodd [D, CT], “I could never be a Democrat, but I could be an independent.” And when he became an Independent, and decided to caucus with Democrats, he shifted the power balance “from one party to another for the first time in history outside an election.”

In my home state of Tennessee, former Lieutenant Governor John Wilder [D], engineered a similar move that led to him becoming the longest-serving state legislative leader in US history. He made a pact with the Republicans to keep him in power once Democrats decided his time was up. With the Republican minority and a few loyal Democrats, Wilder retained the gavel and remained Lieutenant Governor (second in line of succession to the governor) for the next twenty years.

Until 2005, [Wilder] continued to be reelected “unanimously” and to award chairmanships to his supporters in both parties, making the Tennessee Senate one of the few legislative bodies in the world to be elected on a partisan basis, but organized on a more-or-less nonpartisan one. — Wikipedia

(And yes, I fully acknowledge a similar scenario in the US Senate is highly unlikely.)

Still… tight margins and the Georgia runoff present a unique moment. Do senators *really* want to see changes in how the Senate works? Now would be an excellent time to ask!

Marci Harris is the cofounder and CEO of POPVOX , a neutral nonpartisan platform for civic engagement and governing. She is a former Congressional staffer, an affiliated scholar at the UC Berkeley CITRIS Policy Lab and was a member of the American Political Science Association’s Task Force on Congressional Reform.

POPVOX CEO and co-founder. Entrepreneur, lawyer, recovering Congressional staffer. Former Harvard Ash and New America California fellow.

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