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Advice to Post-Obamacare Senators: Cancel the Soap Opera

Half of the Democratic senators who voted for Obamacare just five years ago are now gone, seventeen of whom were replaced by Republicans.

With Bill Cassidy’s election on Saturday, the incoming class of US Senators is now complete. There will be 13 first-time members, all but one (Gary Peters of Michigan) a Republican. These join a group of 32 first-term senators already serving (17 Republicans; 15 Democrats) to form a surprisingly-large, post-Obamacare Senate cohort.

Viewed another way, with the defeat of Mary Landrieu, half (30) of those Democratic senators who voted for Obamacare just five years ago are now gone, seventeen of whom were replaced by Republicans. As even leading Democrats have begun to notice, if there is any one message the American people have communicated in their Congressional election votes over the last three cycles, it is that Obamacare should go too.

But if there is a broader message from the same elections, it seems to be a rejection of the Parliamentary-style government employed by President Obama and cheerleading Congressional Democrats to push through the stimulus package and Obamacare, among other major initiatives, when they controlled the House, Senate, and presidency between 2009 and 2011.

Disciplined one-party rule, modeled on the British system, has been the dream of Progressive reformers since the days of Woodrow Wilson. But if the American people agree, they’ve had a funny way of expressing it, giving the Democrats just two, two-year periods with such control since Ronald Reagan was elected president in 1980–and ending them with the two largest Republican Congressional victories since Harry Truman’s presidency.

Gridlock, one might claim, is equally unpopular, at least when it leads to regular threats of government shutdown. Perhaps, but the pundits’ worries (or, more often, hopes) that Ted Cruz and the gang would lead Republicans into permanent minority status with their October 2013 stand against Obamacare seem to have been, to say the least, overwrought. Instead, President Obama’s approval rating ticked down a few points in the year that followed, forcing him to stew on the political sidelines while Republicans ran hard against his signature health care program–and won big.

Much has been written on the strategic question of what Republicans in Congress ought to do next. Progressives, whose answer to every plea for moderation in 2009 was to chant “We won!,” have rediscovered the moral imperative of statesmanlike compromise, always, of course, tinted in shades of medium to navy blue. Their political rule of thumb: We win, our glass is full. You win, your glass is three-quarters empty.

Disciplined one-party rule, modeled on the British system, has been the dream of Progressive reformers since the days of Woodrow Wilson.

Establishment Republicans have, predictably, pushed for something similar, a glass two-thirds empty approach: preemptive surrender in the guise of proving that Republicans can “govern” responsibly by cutting deals that, like President Obama’s post-election actions, take little or no account of the principles upon which the newly-elected Congressmen won. Senator McConnell’s promise that there will be no shutdowns on his watch suggests he is sympathetic to the establishment playbook and narrative–delegitimizing the use of the Congress’s signature power, control of the federal purse, in any way that displeases the president.

What can be done in this context? What, especially, should the 29 post-Obamacare Senate Republicans do?

There is no reason to expect President Obama to change in any fundamental way. But Republicans, in addition to exercising a legislative veto by employing the power of the purse, can use the special constitutional tools they possess to make him more responsible and, more importantly, to begin to reestablish the legislature’s place as a coequal branch of the national government.

Alexander Hamilton takes up the treaty-making and appointment powers of the executive in Federalist 75-77. Far from suggesting that the proposed Constitution would enable American presidents to govern unilaterally, Hamilton argues that shared executive and legislative authority on both of these fronts would best secure a just execution of the law.

In the first case, as treaty-making is an activity that “relates neither to the execution of subsisting laws, nor to the enaction of new ones,” Hamilton contends that it is best to empower executives to take the lead in negotiations (though anticipating a measure of consultation with Senators as they proceed) yet at the same time require them to bring these agreements before the Senate for final approval. Whereas this safeguard might not have been necessary for a hereditary monarch whose interests were tied to his realm, an “avaricious” or “ambitious” office-seeker in the American system of government, “might sometimes be under temptations to sacrifice his duty to his interest, which it would require superlative virtue to withstand.” By requiring the president to gain the support of the mature and provident members of the Senate, their final oversight would make up for whatever virtue was lacking in the executive–hopefully by forestalling bad agreements in the first place.

In the case of presidential appointments, granting the president the power to nominate ambassadors, public ministers, judges and other officials, pending approval by the Senate, provides a similar safeguard against the president’s maladministration of the national government. Should a president employ the power of nomination in a way prejudicial to the common good, he would risk incurring public censure by the Senate by the defeat of his nominees. Knowing this, Hamilton reasons, should deter the president from making bad nominations in the first place:

He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

But lest one assume that granting the Senate such oversight encouraged unhealthy confrontation, Hamilton writes:

The power of influencing a person, in the sense in which it is here used, must imply a power of conferring a benefit upon him . . . If by influencing the President be meant RESTRAINING him, this is precisely what must have been intended. And it has been shown that the restraint would be salutary, at the same time that it would not be such as to destroy a single advantage to be looked for from the uncontrolled agency of that Magistrate. The right of nomination would produce all the good of that of appointment, and would in a great measure avoid its evils. 

A Senate actively and obviously committed to fulfilling its constitutional duties, then, should not find itself opposing every president-submitted treaty and nomination, but rather exercising an often hidden influence before the treaty or nomination is presented. Unfortunately, Harry Reid’s Senate (majority) has been committed to only one thing: being an appendage of the White House to advance its party and ideological goals.

Nothing, then, could have provided a more appropriate valedictory for that Senate than the approval last week of two Obama campaign fundraising “bundlers” for key ambassadorial posts in Hungary and Argentina. Especially egregious was the confirmation, on a party-line vote, of the president’s Hungary nominee, “Bold and the Beautiful” (soap opera) producer Colleen Bell. After an embarrassingly-bad confirmation hearing performance, in which she could name no American strategic interest in Hungary, Ms. Bell’s nomination should have been withdrawn, if not renounced by Ms. Bell herself. Failing that, the Senate, exercising the smallest modicum of institutional responsibility, should have overwhelmingly rejected her. But the real problem is that presidents consider such individuals plausible ambassadorial nominees in the first place.

Conventional wisdom supposes that posting big donors to exotic ambassadorships is too common and too entrenched a practice to oppose. But that is to make void the entire purpose of requiring Senate confirmation of such appointments, as a check against discreditable executive behavior.

Senatorial deference, reduced to parody by the Harry Reid Senate, has left presidents too confident in their own prerogative to impose upon the nation their cronies, friends, and partisans. Reinvigorating the deterrent Hamilton described in Federalist 75-77 may require confrontation at first to demonstrate that Republicans, at least, will take their constitutional role seriously.

The president will, of course, shamelessly, cry wolf. But the new House and Senate must forge on nonetheless, employing their entire constitutional arsenals to begin to rebalance the government and communicate to the emerging group of 2016 contenders that a very different relationship with Congress should be expected going ahead. You’ll know you’ve found the right presidential candidate when he welcomes the message.

David Corbin is a Professor of Politics and Matthew Parks an Assistant Professor of Politics at The King’s College, New York City. They are co-authors of “Keeping Our Republic: Principles for a Political Reformation” (2011). You can follow their work on Twitter or Facebook.

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