abstract. This Essay examines the basic nature of dissent in the Senate—both why and how it happens. Dissent, at its best, does not complicate or impede constitutional debate, but instead enriches it through the expression of diverse perspectives. The Essay outlines the constitutional and legislative designs that both incentivize and constrain dissent in the Senate, arguing that the Constitution and the legislative process are designed to make it likely that senators will dissent. The Essay uses three case studies to demonstrate how dissent in the Senate has enriched constitutional deliberation and checked presidential power and majoritarian control in the Senate—even if such dissent required “winning by losing.” However, leaders and the public must protect against dissent’s lapsing into violence, obstruction, or degradation of Senate or public debate. The Essay concludes with recommendations on norms the Senate could follow to ensure dissent’s constructive role in the constitutional design.

Introduction

When lawyers envision dissent, they usually imagine a single judge courageously standing up for principle. The late Justice Antonin Scalia comes to mind with his fiery and scalding dissents, often colorfully scolding the majority of the Supreme Court for getting the law wrong and rallying conservatives in support of his stated positions.1 Yet dissent is not unique to judging. It extends to the executive branch and even the U.S. Senate, where dissent is common but widely ignored by the legal academy. Senators, like judges, dissent; they dissent from their colleagues, the executive administration, or prevailing policy. Senators dissent for many of the same reasons as judges, but adapt their dissent to their circumstances as elected members of the Senate: They dissent to vent frustration, vindicate principles of law and the Constitution, curry favor with constituents or other factions, enrich constitutional dialogue, point out how the majority or the President has gone wrong, mobilize constituencies, and destabilize the status quo. Understanding the purposes of dissent in the Senate enriches our understanding of dissent in the lawmaking process.

The willingness of senators to dissent—to explain their opposition to majoritarian actions—is far too often dismissed as nothing more than a partisan appeal or blowing off steam. It is often much more than that. For example, the strident, persistent Republican dissent to the enactment of the Affordable Care Act (ACA) has been commonly dismissed as a partisan attempt to obstruct a landmark achievement of the Obama Administration.2 But the campaign to repeal the ACA also reflected principled constitutional and policy objections that mobilized public opposition to the law.3 Dismissing the dissent to the ACA’s enactment as merely partisan opposition obscures the more complex nature (and objectives) of Senate dissent and the ways in which the Senate’s design and procedures enable or dilute dissent.

This Essay examines the significance, objectives, and limitations of dissent in the Senate. In Part I, I examine the basic nature of dissent in the Senate—both why and how it happens. Initially, I focus on the constitutional and legislative designs that both incentivize and constrain dissent in the Senate. The Constitution and the legislative process are designed to make it likely that senators will dissent. Therefore, senators will dissent for many reasons, subject to many different factors, including their constitutional commitments, Senate rules and traditions, public opinion, and their standing in and their relationships to their political parties, their constituents, the presidency, interest groups, and the media.

Part II examines three case studies demonstrating the manifestation of these diverse factors. I discuss how senators have successfully engaged in dissent by creating the proper coalitions for dissent and by developing the willingness to engage in “winning by losing,” or turning their losses to their own advantage. These studies include: (1) judicial confirmation battles, in which Republicans initially lost but eventually turned events to their advantage by using their initial failures to perfect their messaging and eventually to rally public support;4 (2) the failure to oust President Clinton for misconduct, which Democratic senators initially believed would work to their electoral advantage but in reality strengthened the presidency by exposing the limitations of impeachment as a meaningful check against presidential misconduct;5 and (3) the Republican opposition to the Affordable Care Act, which provided them with a winning platform in subsequent elections but revealed the difficulties of maintaining unity in shaping social policy.

In Part III, I move from a descriptive account to a normative defense of dissent in the Senate. Dissent, at its best, does not complicate or impede constitutional debate, but instead enriches it through diverse perspectives. However, leaders and the public must protect against dissent’s lapsing into violence, obstruction, or degradation of Senate or public debate. Senators can preserve or safeguard dissent by helping to reconstruct the conventions of congressional debate. These norms include informal agreements or arrangements within the institution to ensure colleagueship and civility, as well as more transparent and candid explication of the constitutional differences in play. At a time when the public is sharply divided, the Senate can merely mirror the discord, or it can lead the way by showing how civil disagreement is a strength of our constitutional order.

I. the nature of dissent in the senate

In this Part, I examine the nature of dissent in the Senate. After defining dissent, I examine how the structures of the Constitution and the Senate, along with other factors, influence dissent in the Senate.

A. Defining Dissent in the Senate

The standard definition of dissent is “[t]he holding or expression of opinions at variance with those commonly or officially held.”6 Dissenting judges are self-proclaimed minorities. Not everyone in a majority feels the same level of intensity about outcomes, and not everyone may choose to call attention to their disagreement. A judge must make the decision to disagree publicly with the majority’s view. The same is true in the Senate, where dissenters are the losers calling attention to their loss.

Consider a vote on some pending legislative business, such as a bill or a judicial nomination. Dissent requires not only opposing the proposed matter but also explicitly objecting to the prevailing majoritarian position. For example, Democratic Senator Sheldon Whitehouse voted against then-Judge Gorsuch’s nomination to the Supreme Court, and he gave speeches to explain his opposition to the nominee.7 President Trump declared he had nominated Judge Gorsuch to the Court because he was “very much in the mold” of Justice Scalia, whose seat he was being nominated to fill.8 Senator Whitehouse expressed both dismay at President Trump’s failure to appoint a consensus nominee, and concern that Judge Gorsuch would be, like Scalia often was, a critical fifth vote in controversial cases with outcomes of which Senator Whitehouse disapproved.9 Senator Whitehouse explained further that he was dissatisfied with the nominee’s failure to appreciate (or acknowledge) the Senator’s concerns with the ramifications of Citizens United v. FEC,10 which allowed, in Senator Whitehouse’s words, “the flood of money into politics.”11 Like many others, Senator Whitehouse was thus dissenting to the Judiciary Committee and the Senate’s approval of the Gorsuch nomination.

B. Factors Influencing Dissent in the Senate

1. Structural Factors

Although senators dissent for similar reasons as Justices do,12 the distinctive nature of their dissent as well as the legislative context influence how, when, and whether they dissent. The guarantees of life tenure and undiminished compensation set forth in Article III of the Constitution13 insulate judges and Justices from direct political reprisals and pressures. In contrast, senators’ elected status14 subjects them to direct political pressures, such as presidential arm-twisting, dealmaking with other senators or members of the house, raising money for reelection, and working with interest groups. By virtue of their elected offices, senators are also able, unlike Justices, to be directly involved in mobilizing and appealing to their constituencies. These, and other distinctive features of senatorial office, enable senators to do more with their dissents than Justices.

A number of structural factors may incentivize or constrain senators in deciding how or to what extent to make recourse to dissent. First, Article I sets forth bicameralism and presentment,15 which the Supreme Court has called deliberately “cumbersome.”16 The process is even more complicated if the House’s previously approved bill is different than the one approved by the Senate, then it returns back to the House for approval. This cumbersome process for lawmaking does more than make the passage of laws unlikely—it increases the likelihood of dissent. With failure comes discontent, and discontent spurs dissent. The failure to enact a law, particularly important or salient ones, usually leaves at least some senators displeased.

The different institutions and officials involved in the lawmaking process can, through various means, further spur or inhibit dissent. For example, the Senate’s rules influence dissent. Pursuant to the authorization in Article I, section 5, that “Each House may determine the Rules of its Proceedings,” the Senate has adopted formal rules for its internal governance, including Senate Rule XXII, which expressly authorizes filibusters or protracted debate to delay or obstruct legislative action.17 Even though Senate majorities recently ended the use of the filibuster to obstruct executive, lower court, and Supreme Court nominations,18 filibustering legislation remains permissible. Because a supermajority of at least sixty senators is required to invoke cloture to end debate on legislation, a successful filibuster against legislation can turn the majority favoring legislative action into losers and dissenters.

Furthermore, the structure of the Senate makes dissent highly visible.19 Indeed, the Senate may be better positioned than the House to influence policy and executive action. Except for its power of impeachment,20 the House has no authority to take final action on legislative matters; instead, the Senate must formally agree with whatever legislation the House has approved (except of course for the House’s internal rule-making).21 In addition, the Senate also has its unique authorities over appointments, treaties, and removal of presidents or other high-ranking officials, including judges.22 Extended Senate terms23 are designed to make it easier for senators to take the long-view, rather than the most expedient perspectives on the issues of the day.24 Moreover, the Senate’s rules of governance25 and traditions26 enable each senator to have a significant say over legislative business,27 in contrast with the House, where, at least since the nineteenth century, the majority has controlled virtually every piece of business.28 As a result, the Senate has been, much more often than the House, a place where legislative business has been subject to delay if not obstruction altogether,29 or, as George Washington famously quipped to Thomas Jefferson, a place to allow things to cool off.30 Because of these distinctive features, the Senate has become an institution in which dissent can be more visible than the House, more disruptive to the executive, more frequently and easily expressed, and more often fatal to the business at hand.

2. The Executive

Presidents use their various hard31 and soft powers32 to both check and provoke dissent. Presidents can express their disapproval of a bill through a veto or a signing statement.33 And because of the near impossibility today of a supermajority of each chamber voting to override a president’s veto,34 members of Congress must heed the executive’s legislative preferences.35 The more popular the president or policy, the more difficult it will be to muster veto overrides. Losers may wish to use dissent to express their discontent over the failure to override.

On the other hand, when Congress is unable to enact a policy desired by the president, it leaves a void that presidents are often eager to fill through unilateral executive orders or actions. Once the president acts, it is hard for Congress to undo his action, since he has the authority to veto its enactment. This dynamic leaves the president more powerful than before and leaves members of Congress concerned about, if not dissenting to, the growth of his power, the substantive action(s) that he has taken, or both. Impediments to lawmaking allow presidents to act unilaterally and take advantage of constitutional ambiguity and congressional inertia.36 The more that presidents are able to do this, the more often that members of Congress may find themselves having to dissent to expansions of presidential power that disadvantage the Congress’s institutional power.

3. Political Parties

Political parties also wield significant influence over dissent in the Senate. Keeping senators in line requires party leaders, as well as the members of a party, to be aware of individual members’ needs and of how to meet them. Senators—like other elected officials—will be inclined not to follow the party line when it conflicts with their interests.37

Not following the party line, however, can subject senators to retaliation from within their own party or by their constituents. The Senate majority leader can threaten to take away leadership positions, plum committee assignments, or input on legislation or nominations of interest.38 The leadership of each national party can also make decisions about how much funding it directs to incumbents up for reelection. Senators at odds with their party leaders risk losing funds needed to fight off primary challengers as one form of punishment for their independence.

To be sure, political calculations are complex. In particular, few senators are likely to survive long in office when they disregard their constituents’ voting preferences on politically salient issues.39 Senators might dissent sometimes to policies or positions that their constituents prefer, but when they do, their positions are likely to be in accord with what their party might prefer. To be at odds with both party and the public can be disastrous for a senator.

At the very least, surviving in the Senate requires successful political campaigning, which can both encourage and discourage dissent. Since the Supreme Court’s decision in Citizens United v. FEC,40 campaign finance has become critical for influencing party allegiance and public opinion and increasingly polarization. Loyal senators can expect greater campaign money, but for dissenting senators, the risk of receiving less monetary support is real.41 At the same time, political parties and advocacy groups devote enormous resources to developing public support for their preferred initiatives, both during campaigns and important moments of Senate business, such as Justice Gorsuch’s confirmation proceeding.42

The more that party unity is maintained, the more that the majority party can control Senate actions, particularly on matters that cannot be filibustered. If a significant minority does not have recourse to the filibuster, its success depends on its ability to build coalitions. If, however, the opposition party controls the Senate, it can stymie the president’s nominations, regardless of the president’s popularity, as in the Senate’s failure to act on President Obama’s nomination of Judge Merrick Garland to the Supreme Court.43 The hostility that President Obama faced from a Republican Senate turned into agreeability after President Trump’s inauguration.44

However, the fact that the same party controls the White House and the Senate does not guarantee presidential success. Sometimes, senators are able to dissent against—or oppose—a president’s preferences. For example, when President George W. Bush nominated Harriet Miers to the Supreme Court in 2005, Republican senators did not fall into line; instead, several questioned her qualifications and ideological commitments.45 Building coalitions across party lines, as Bill Clinton did with welfare reform, can also work,46 but his strategy of triangulation was not cost-free.47 Triangulation can erode support from a party’s base, which is needed over the long-term to achieve legislative priorities. The Democratic Party fell into line to save President Clinton from ouster, but Clinton achieved very little during the remainder of his presidency. In his last two years in office, President Clinton met resistance and opposition from within his own party, which had grown tired of defending him and given rise to a phenomenon known as “Clinton fatigue.”48

For both the parties and the interest groups, polarization is not only inevitable, but indeed critical for mobilizing voters to go to the polls. Yet, the more sharply divided the public, the more sharply divided the Senate is likely to be, and dissent will be more likely, prevalent, and mean-spirited. As the public increasingly sorts itself into like-minded communities, the divisions within society—and therefore the prospects for dissent—correspondingly increase.49

The increased prevalence of dissent is an understandable concern to many people. To better understand how these different factors come together to produce dissent and the effects of such dissent in the Senate, the next Part examines three case studies.

II. winning by losing in the senate

This Part focuses on three case studies that illustrate how the different factors influencing dissent affect debate in the Senate. This dissent is often employed to mobilize the public to support a desired policy, constitutional objective, or change in the law. The strategy is not new,50 nor is it unique to the legislative process. As noted, judges have long used their dissents to try to mobilize changes in the law. The same is true in the legislative process, in which the losers often seek to attain some political advantage from losing.

The following three case studies illustrate how the Senate’s distinctive features and its relationship to political parties and the president influence dissent, particularly the ways in which dissent has been used to win—win stature, attention, votes, influence, public approval, support of or opposition to the President (or to particular nominations he has made or actions he has taken), and reelection—by losing a legislative contest. As these case studies illustrate, these victories do not just advance the interests of the dissenters, but can also come at great costs, including: inhibiting and degrading public discourse, increasing friction within the Senate, diminishing respect for the presidency or the Senate, and injuring careers and reputations.

A. Dissenting to Judicial Nominations

Presidents and senators’ quest to control the federal courts is as old as the Republic,51 but over the last thirty years, Senate contests over judicial nominations have intensified to unprecedented levels of obstruction and divisions between Republicans and Democrats in the Senate.52 Thirty years ago, the Senate rejected President Reagan’s nomination of Robert Bork to the Supreme Court by a vote of 58-42, with a Republican bloc largely in support and a Democratic bloc largely against the appointment.53 For many conservative Republicans, Bork’s rejection was a watershed moment, ushering in a new era in which the Democrats in the Senate majority had transformed the Supreme Court appointments process by focusing on nominees’ ideologies—how they would rule in future cases—rather than their qualifications. President Reagan’s nomination of Anthony Kennedy to the vacancy to which Bork had been nominated infuriated Republicans further.54 Justice Kennedy’s joining a five-member majority five years later to reaffirm Roe v. Wade55 in Planned Parenthood of Southeastern Pennsylvania v. Casey56 was the first in a series of votes that most Republican senators have denounced as betrayals.57

In the thirty years since Bork’s rejection, the voting on judicial nominations has split sharply, sometimes uniformly, along strictly partisan lines.58 When each party has controlled the Senate, it has attempted to get even for past obstruction,59 vindicate the style of judging it prefers (a stricter adherence to the original public meaning of the Constitution for Republicans and more respect for precedent and pragmatic reasoning for Democrats),60 and turn their past losses to their present advantage. In the years since the Senate’s rejection of Bork’s nomination, both liberal and conservative advocacy groups have invested heavily in lobbying efforts to bring about the kind of courts each prefers to see.61

Once Republicans gained control of the Senate during Clinton’s presidency, they slowed down the judicial confirmation process. They rejected a federal district court nominee62 and refused to give floor votes or take committee actions for a number of well-qualified nominees, including Elena Kagan, whom Clinton had nominated to the U.S. Court of Appeals for the District of Columbia.63 Once President George W. Bush came into office, Democrats objected to his efforts to stack the federal courts of appeals with relatively young conservative ideologues, who would eventually make good candidates for the Supreme Court. Therefore, the Democrats increased their use of the filibuster to block Senate votes on confirmations to lower courts.64 Similarly, the percentage of President Obama’s circuit nominees confirmed decreased when Republicans gained seats in the Senate in 2010.65 When Republicans turned to the filibuster to block President Obama’s nominees, the Democrats eventually countered by deploying the “nuclear option” to dismantle the filibusters of lower court nominees.66 While this move made it harder for Republicans to object to President Obama’s lower court judicial nominees, they regained control of the Senate in 2014, after which they could do more than merely oppose an action.67 Once in control of the Senate, Republicans, who had long objected to the Democrats’ “Borking” of their nominees,68 got their revenge.

Republicans saved their most effective dissent for the last year of Obama’s presidency. They confirmed only a single circuit judge that year.69 More dramatically, when Justice Scalia died unexpectedly in February 2016, it appeared suddenly that the Democrats had the opportunity to secure a majority of Supreme Court Justices appointed by Democratic presidents for the first time since 1969.70 Within twenty-four hours of Justice Scalia’s death, Senate Majority Leader Mitch McConnell shut down the possibility of any Supreme Court confirmations entirely, pledging not to take any action on an Obama nominee and to preserve the vacancy for the next president to fill.71 President Obama’s nomination of the eminently qualified, well-regarded circuit judge, Merrick Garland—who at sixty-three was the oldest nominee to the Court in decades—did nothing to weaken the majority leader’s resolve to object to any Obama nominee.72 Republicans in the Senate united in preventing President Obama from filling the seat. They were determined to keep the Court’s composition from tipping in an ideological direction they did not like.73 Democratic senators objected that the obstruction seemed motivated by partisanship rather than ideology, given that their Republican colleagues had not even allowed a hearing to vet Judge Garland.74 Indeed, if the dissent to President Obama’s judicial nominees were not purely ideological, it would have been likely that the Senate would have confirmed more than one circuit court nomination in President Obama’s last year in office.

Blocking Judge Garland’s nomination was the culmination of longstanding opposition by Republicans who objected to Democratic efforts to keep jurists like Robert Bork off the Court and who wanted to preserve a judicial majority that was disposed to reach outcomes that were based on something other than the strict interpretation or original meaning of the Constitution.75 Conservative losses in cases such as Roe v. Wade,76 Engel v. Vitale,77 and Garcia v. San Antonio Metropolitan Transit Authority78 made the urgency of preserving the Court’s longstanding conservative majority all the more pressing. Any damage done to Judge Garland as a result of the obstruction was merely instrumental to the majority’s cause.

The pattern of Republican and Democratic dissent over judicial nominees has helped to build and reify coalitions along party lines as well. Twenty-one percent of the people who voted in the 2016 presidential election said that the Supreme Court was the most important factor in their decisions about which presidential candidate to support, and fifty-seven percent of those voters favored Trump over his Democratic challenger, Hillary Clinton.79 As the Senate becomes increasingly partisan over nominations, so do its constituents.

The Republican strategy to block Judge Garland’s nomination paid off with Donald Trump’s election. He had vowed to appoint a Justice in the mold of Justice Scalia, and his nominee, Neil Gorsuch, appears to have been just that.80 Trump voters helped to maintain firm Republican control of the Senate, making Justice Gorsuch’s confirmation all but certain. Democrat senators initially tried to express their opposition to the nomination through a filibuster, but the Republican majority deployed the same nuclear option Democrats had used previously to dismantle filibusters of Supreme Court nominations.81

The Democrats’ muted resistance highlights how Senate procedures can amplify dissent. Without the filibuster as an option, the Democrats’ previous efforts to raise concerns over the Republicans’ failure to schedule any hearings on Judge Garland’s nominations had fallen largely on deaf ears.82 Indeed, the absence of any Senate Judiciary Committee hearings deprived the Democrats of an important opportunity to cultivate public support for Judge Garland’s nomination.

With Republicans firmly in control of the Gorsuch hearings, Democrats fared no better in setting the terms of the debate or moving public opinion, two important goals of dissent. Although every Democratic senator criticized the Republicans’ failure to act on the Garland nomination, all but one of the Republicans said nothing.83 Instead, they kept to their script and praised Gorsuch’s nomination.84 Senator Graham, the one Republican to mention Garland, simply explained that Democrats would have done the same to a Republican nominee to the Court if they had been in the majority.85 The Senate voted to confirm Justice Gorsuch by a vote of 54-45, with only three of the Senate’s forty-five Democratic senators defecting to vote for the nominee. Justice Gorsuch’s confirmation was the narrowest favorable vote since the confirmation of Justice Clarence Thomas in 1991.

Ultimately, the Republicans, who had dissented vigorously to the nomination of Merrick Garland to take the open seat on the Court, made good on their opposition. Their obstruction of the Garland nomination laid the groundwork for restoring the Court to the same composition it had at the time of Justice Scalia’s death. It was a victory for the Republican majority in the Senate, which not only secured a majority of Republican appointees to the Court, but also replaced the Court’s most impassioned conservative with someone whose constitutional commitments were similar to those of Bork, who the Senate had rejected three decades before.

B. Dissenting to Presidential Impeachment

The strategy of “winning by losing” was on fully on display when Democratic House members decided to oppose the impeachment of President Bill Clinton.86 The strategy enabled Democrats to score political points in the short term, but it became a model for dissent to be used to their disadvantage in other legislative contexts in the future and helped make it harder to use impeachment against presidents who engaged in conduct they condemned.

The impeachment of President Clinton should be familiar. Shortly after the publication of the Starr Referral,87 which alleged that President Clinton committed impeachable offenses in attempting to hide his relationship with former White House intern Monica Lewinsky,88 Democratic members of the House adopted the strategy of winning by losing. If all forty-five Democratic senators stayed united to oppose the President’s ouster, Democrats had the numbers to block removal in the Senate89 and perhaps to use that loss to gain electoral victories in 1998 and 2000.90 The Senate quickly disposed of the matter when it became obvious that it lacked the votes to meet the two-thirds threshold to convict.91

Democrats stayed unified in both chambers of Congress. In the House, Democrats expressed their dissent by condemning the House majority’s rush to judgment. They complained that the House shirked its duty to investigate whether Clinton had engaged in any wrongdoing but instead had simply deferred to the Starr Referral.92 They further questioned whether the House’s proceeding to impeach Clinton made any sense given the unlikelihood of his removal by the Senate.93

But, when the Democrats blocked the removal of the President, Republicans became the losers, who could broadcast their dissent to the world. Republican senators made the case that Clinton had engaged in impeachable misconduct.94 While they failed to remove Clinton from office, their dissent took a toll on the Clintons. In the 2000 presidential election, the Democratic candidate, Vice-President Albert Gore, Jr., lost key Clinton voters who had approved of Clinton’s general performance in office, but not of his conduct regarding Lewinsky, contributing to his defeat.95 President Trump repeatedly used President Clinton’s misconduct to tarnish Secretary Hillary Clinton in the 2016 election.96

The failure to convict and to remove President Clinton had arguably the unintended consequence of strengthening the presidency, as impeachment appears in the ensuing years to have become a less effective means for addressing presidential misconduct.97 The Clinton impeachment proceeding demonstrated that the real threat to a president is instead a forced resignation.98 Further, President Clinton’s acquittal showed that the efficacy of the impeachment process not only depends on the severity of a president’s misconduct, but also relies on a numbers game in Congress: if a president’s party controls the House, it can block impeachment as long as its members stay united in opposition to impeachment. Even if the party cannot do that in the House and a majority impeaches the president, she can still avoid conviction and removal as long as her party controls at least a third of the Senate’s seats and remains unified against ouster.

The ongoing Senate investigation into possible Russian influence in the 2016 presidential election may be a case in point. President Trump has denounced vigorously the investigation of possible collusion between his campaign and the Russian government as a “witch-hunt.”99 He insists that there was no such collusion. While he acknowledged that he fired the Director of the Federal Bureau of Investigation, James Comey, in part to stop the “witch hunt,”100 he and his defenders have argued that it was a lawful exercise of his authority rather than an attempt to obstruct justice.101

Yet, even if there were proof that President Trump engaged in misconduct that provided a legitimate basis for impeachment, the numbers, at least at present, work in his favor. Impeachment seems unlikely as long as the members of his party control both chambers of Congress. If united in the House, Republicans can block easily any impeachment investigation, as they have done so far. Even if, for some reason, the President’s support broke down in the House and a majority approved impeachment articles against him, conviction seems impossible. If Republicans retain control of the Senate—or control even only a third of the Senate—their remaining united precludes conviction and removal.

With conviction and removal seemingly impossible because of the number of seats controlled by the President’s party in both the House and the Senate, it is reasonable to ask what, if any, options remain to deal with the President’s possible misconduct, assuming it were proved.102 One is to defeat his potential reelection campaign, while another is a forced resignation, as occurred with President Nixon.103 If the President wins reelection or refuses to resign in spite of evidence of any misconduct, the only recourse left for punishing the President in some way will be through dissent. If the dissent is strong and loud enough, it might make a difference to the historical judgment of Trump’s presidency. Even if the investigations do not lead to an impeachment, Democrats might be able to use their dissent to shape the judgment of history. If they are successful, their dissent could help to brand President Trump, in the judgment of history, as corrupt, just as has been done with earlier presidents who had engaged in or tolerated significant corruption within their administrations.104

C. Dissenting to the Affordable Care Act

Dissent has played a major role in the lifespan of the Affordable Care Act,105 President Obama’s signature achievement,106 in three significant ways. First, during the passage of the law, Republicans were certain of its success, given Democrats’ control of the House and filibuster-proof majority in the Senate.107 Therefore, Republicans turned quickly to the strategy of winning by losing. Because the Act became law by a straight party vote,108 Republicans complained that neither President Obama nor the Democratic majority in either chamber of Congress consulted seriously with them.109 Republicans went further to challenge the constitutionality of the law, including that Congress lacked the authority to impose the individual mandate,110 which required most Americans to purchase private health care insurance or pay a penalty in the form of a special tax.111 Their persistent assault against the law arguably produced electoral victories in 2010112 and 2014, in which they finally gained control of the Senate and widened their margin of control in the House.113 In 2016, Republicans maintained control of both chambers of Congress and their presidential nominee defeated Hillary Clinton for the presidency based on a promise to repeal the ACA.114

Dissent figured prominently in the ensuing attempt by the Republican Congress, spurred on by President Trump, to fulfill their campaign pledge to repeal and replace Obamacare. The House approved a bill in early May, despite the fact that every Democratic member voted against the legislation.115 However, it met resistance in the Senate because of concerns that it did not guarantee coverage for preconditions, which would result in in millions of people losing coverage.116 When the final vote in the Senate came, three Republican senators dissented and voted with the Democrats to defeat the repeal bill.117 Their dissent produced in turn a harsh response from President Trump, who tweeted his disdain for the defecting senators, particularly Arizona Republican Senator John McCain. Yet, the losses and prospects of losing further spurred Republicans eventually to approve a tax bill that weakened but did not fully replace Obamacare,118 Consequently, it has become the Democrats’ turn this loss into a victory, either in the mid-term elections of 2018 or the presidential election in 2020.119

Third, the failed effort to repeal and replace was a dramatic reminder of the hazards of failed coalition-building when dissenting: as described above, the cumbersome nature of the constitutional lawmaking process renders failure much likelier than success.120 In the ACA example, President Trump turned his ire against Senator McConnell, whom he chided for failing to unite Republicans to approve the bill; against Democratic senators for failing to join the coalition to repeal and replace; and against the Senate’s rules allowing filibusters of legislation and requiring supermajority votes on budget matters.121 His frustration reflected the overly optimistic, arguably naïve presumption that party unity was all that is needed in order to ensure success in the lawmaking process.

But, dissent, either by the President or in the Senate, is rarely the end of the story. The effort to repeal and replace the Affordable Care Act was somewhat victorious with the passing of tax reform.122 The saga illustrated the persistence of dissenting voices to keep pushing for a change until there is one, at which the point the contending sides reverse positions with the losers hoping, sooner or later, to turn their loss into a victory.

In all of these case studies, the senators who were dissenting wanted their dissents to help them become part of a majority. After all, majorities are more likely to get things done than dissenters. The next Part considers the possible norms that could encourage such cooperation. These norms would replace or diminish the impulses to dissent and to win by losing that have damaged civility and collegiality within the Senate, as well as the public’s respect for the Senate itself.

III. norms, debate, and the future of dissent in the senate

The preceding case studies demonstrate some of the fiercest policy and constitutional disagreements and their fallout in the Senate. The longstanding, customary practices of the institution comprise the Senate’s informal rules and tradition. These norms place some constraints on dissent, such as limiting the amount of time, speaking opportunities, and the manner of expression in debates.123 Yet, senators do not restrain their dissent to the Senate floor; they also rely on the media to express their disagreements with, or vigorous dissent to, a majority’s actions within the Senate.124

Dissent often frames public debate, as it did in the media and in the Senate debate on repealing and replacing Obamacare. Indeed, “Obamacare” is a term that rose to prominence through dissent as the Congress debated the Affordable Care Act.125 Dissent for these various purposes improves the quality of deliberation in the lawmaking process.

Yet neither the purposes nor the effects of dissent are always benign. In the next Section, I consider the different ways in which Senate dissent can be harmful to collegiality and civility within the chamber and to the reputations or careers of the targets of dissent, before considering some possible ways to ameliorate dissent’s potentially (and sometimes quite real) destructive impacts.

A. The Dark Side of Dissent

If dissent in the Senate goes off the rails, it can do so in several ways. First, it can lapse into or encourage violence. In 1856, Representative Preston Brooks famously came onto the Senate floor with his metal-tipped cane and savagely beat Senator Charles Sumner to protest statements the latter had made criticizing a relative who served in the Senate.126 While such violence on the Senate floor is rare, debates within the Senate might reflect larger societal conversations. Such debates can often include hateful speech, which the First Amendment protects.127 Although neither the First Amendment128 nor the Speech or Debate Clause129 condones violence, senators, who engage in vigorous debate on sensitive, divisive issues, should be aware that their fierce debate have consequences on more than just the policies or principles at stake. They can provoke anger and violence, as sometimes arose in campaign rallies and town hall meetings held by some members of Congress on the ACA.130

Second, dissent can become such an irritant that majorities may wish to silence or at least marginalize dissenters. In fact, the elimination of filibusters for judicial nominees did not lead to better debate in the Senate; rather, it removed the incentive for the majority to consult with or bother to debate dissenters. Dissenters could be and were ignored.131 But the filibuster did not have to be deployed in this way. Traditionally, the Senate required actual dialogue whenever a filibuster was attempted.

The real difficulty with the filibuster was not that it led to obstruction. Instead, the current issues with the filibuster date from a 1975 move to create a two-track system, which allowed the mere threat of a filibuster to take the matter in question off the agenda, allowing the Senate to move forward on other business.132 Afterwards, the mere threat of a filibuster produced obstruction. If, instead, the Senate had retained its prior process of requiring debate each time an actual filibuster was attempted, actual dialogue would have likely ensued.133 Cloture might have been invoked and a final vote held, but at least there was the opportunity for a dissent to be heard on the Senate floor.

Third, dissent has also contributed to the degradation of the legislative process. The widely reported breakdown of civility and collegiality within the Senate has included sharper, more mean-spirited dissent—not just on the Senate floor but in the media.134 It is hard, if not impossible, to figure out whether the breakdown in civility and collegiality in the Senate reflects a similar breakdown in society, or vice versa. In any event, the breakdown not only further reduces the public’s already low opinion of Congress, but perhaps also widens the breach between the parties.135

B. Restoring the Norms of Civility and Collegiality

The solution to these degrading effects of dissent does not entail shutting down debate. In our constitutional culture, the ideal remedy for “evil” or false speech is not violence or suppression but rather, as Justice Louis Brandeis declared, “more speech.”136 Expanding the opportunities for dissent creates goods for our constitutional culture: helping the search for truth, expanding the marketplace of ideas, blowing off steam, promoting tolerance, and checking government, just to name a few.137

Second, the restoration of basic norms of civility and collegiality would improve debate in the Senate. Norms are informal arrangements, the breach of which usually leads to some kind of sanction.138 Senator McConnell silenced Senator Elizabeth Warren when he thought she had stubbornly “persisted” in making ad hominem attacks on then-Attorney General nominee Jeff Sessions that Senator McConnell deemed inappropriate.139 While silenced on the floor, Senator Warren continued to make her case through the press, and the debate over the propriety of her silencing continued in the Senate and the media. Whether one takes Senator McConnell’s or Senator Warren’s side, it is possible that no compulsory silencing would have been required if the two senators had been able to address their differences in a civil fashion. What happens on the Senate floor likely reflects the nature of their relations off the floor. If those relations are constructive, then the ensuing debate has a better chance of not going off the rails.

Senators can choose not to express their disagreements through the name-calling and badgering that President Trump uses or that Justice Scalia often employed. They could set a better example for their constituents and the public. For example, when one Republican senator suggested Senator John McCain’s brain tumor may have factored into his defection on the repeal and replace bill, the Arizona statesman shot back, lamenting that his colleague would so question his judgment.140 Personal friction is inevitable in the cumbersome lawmaking process, but it is corrosive to the work of the Senate.

A related question is whether the breakdown in civility, collegiality, and mutual respect in the Senate, or in the relationship between senators and the president, reflects a breakdown in our constitutional order. The problem, in other words, might not just be that dissenters can be shrill and abusive, but rather that whatever safeguards that are meant to protect the system against the degradation of political discourse are not working,141 assuming that they ever did.

But because no one can realistically expect that the process for lawmaking set forth in Article I can be changed through an amendment,142 it is worth focusing instead on four rather modest norms that could be used in the Senate to ameliorate the destructive potential of dissent. The first is for the Senate to adopt a variation of the practice that the House adopted in 2010, which requires every proposed bill to specify its constitutional authority.143 The Senate could consider requiring all the senators to specify the policy and constitutional grounds for any of their actions, including legislative votes, as well as all actions taken on legislation and any of the matters specially restricted to Senate consideration. This includes treaties, nominations, and conviction or removal in impeachment trials.144 Many senators might already do this, but making it a uniform practice within the chamber has the potential to channel Senate debate in a constructive direction.

Another practice worth cultivating is to urge senators to consider constitutional education to be among their most important responsibilities. This responsibility goes beyond merely specifying the grounds for their actions in the Senate to push Senators to use their positions, including their dissent, to enrich people’s understanding of the Constitution. Senators need not agree on their interpretation of the Constitution to do this; they need to agree only to explain, more thoroughly and frequently than they do, their understandings of the Constitution.

The third norm to consider is to protect the blue slip process, which was the longstanding, customary practice of asking each senator from a state in which the president has nominated a federal district judge to return a blue slip acknowledging his or her approval.145 This fall, the Majority Leader announced the Senate leadership’s intention to alter the significance of the practice.146 In the past, the failure to return a blue slip effectively obstructed a nomination. The Majority Leader suggested that the failure to return a blue slip would be treated instead as an indication of how a senator would vote on a nomination rather than as a complete obstruction of it. The shift on the blue slip process undoubtedly will facilitate majority rule on judicial nominations and increase presidential authority to make such nominations with less fear of minority obstruction. But, it does so at the cost of diminishing the Senate’s commitment to engaging every senator, regardless of their state or party, in the confirmation process for lower court judges.

To be sure, the majority might argue that the blue slip process merely allowed a senator from the party not in control of the Senate to exert undue influence over qualified judicial nominees. Maximizing the majority party’s control of the Senate, as the Majority Leader’s decision on the blue slip process practice does, further mutes the effect of a minority’s dissent to a particular judicial nomination. To the extent that argument is persuasive, then perhaps the Senate could consider some other way to allow senators from the minority party to be meaningfully involved in the judicial appointments process. For example, the president and certain senators could reach an agreement to allow for at least one out of a number of judgeships in a party state be recommended by the senator from the opposition party.147 Through this arrangement, some senators from the minority party became much more invested in the confirmation process than they otherwise would have been and therefore less inclined to dissent in obstructive or obnoxious ways.

Last but not least, another practice worth considering is finding a constructive way to engage in a debate with extremist positions. Stephen Carter, for example, suggests that one way to respond to extremists or fanatics is to do so with love.148 Carter’s point is not for senators to be ridiculously romantic or sappy, but rather to respond to fanatical or even hateful expression with respectful engagement. As David Brooks recently explained, in practice this would mean to respond to extremist or hateful rhetoric with a recognition of “the dignity of every human being” and “compassionate listening,”149 which ensures that even the extremists know their message is being heard and considered. Dissenters pound the table, or worse, when they think they are not being heard or taken seriously. At the very least, senators can show each other, as well as the country as a whole, that they actually do hear and respect the points of views of their colleagues even when they disagree with each other.

The alternative is disheartening to many people. The two parties appear to be on a path of mutual destruction. The failure to take any corrective action will only exacerbate the apathy or hopelessness that many people already have toward their government. The challenge to the American people is to resist the temptations to appeal to the worst in us in order to secure fleeting victories but instead to do the hard, selfless work of restoring the basic norms of civility and collegiality in the Senate and public discourse. Marginalizing and denigrating dissent in the Senate exacerbates rather than tempers or heals the divisions within the Senate.

Conclusion

Senators dissent for many reasons. They dissent to appeal to constituents, mobilize public support, enrich or frame constitutional debate, vindicate constitutional and other principles of law or policy, point out where the majority has gone wrong, make the majority accountable for its choices, and vent frustration. These purposes are largely benign: enriching and emboldening the deliberative process within the Senate.150

At its best, dissent is not obstructive but instructive, and can lay the foundations for popular movements and changes in the law. At its worst, dissent can be defamatory, mean-spirited, abusive, divisive, and even violent. It can appeal to the worst in us. To ensure that dissent fulfills benign purposes, senators should try to reconstruct norms of civility that keep their discourse, in the Senate, in the media, and on the campaign trail focused on substantive differences rather than personal slights or shortcomings. They are in the best position to police themselves to produce model debates on critical issues.

The American public can take its cue from its leaders, and senators can of course take their cue from the public. Over the span of a single day, three senior Republican senators—McCain, Corker, and Flake—decried the degradation of the norms of civility and mutual respect in public discourse; each, in different ways, blamed President Trump for his responsibility in debasing public discourse.151 It remains to be seen whether, or to what extent, these and other senators will move beyond their rhetoric to take actions that will help to upgrade public discourse and to narrow the breach within the Senate and beyond.

The public can play a significant role in restoring lost norms of civility and collegiality within the Senate. If senators believe they will be rewarded for degrading constitutional discourse, they will not be inclined to adhere to norms of civility. More than anything else, senators will do what they need to do to remain in office, which requires appeasing their donors, their party, and their most ardent supporters. If their donors, their party, and supporters demand or reward demeaning dissent, they will likely get what they want. If they reward senators who use their dissents to widen the breaches in the Senate, the breaches will persist. But, if the public wants something different, if they want to seal the breaches, they can reward senators for uplifting and enriching constitutional discourse by supporting and reelecting them. If they want to punish destructive dissent, they can make their wishes known, not just through their rhetoric, but through punishing the dissenters by voting them out.

Michael Gerhardt is Samuel Ashe Distinguished Professor of Constitutional Law, University of North Carolina at Chapel Hill, Scholar in Residence at the National Constitution Center & Visiting Scholar, University of Pennsylvania Law School. I am grateful for the invaluable research assistance I received from Hailey Wren Klabo, UNC Law School Class of 2019.

Preferred Citation: Michael J. Gerhardt, Dissent in the Senate, 127 Yale L.J. F. 728 (2018), http://www.yalelawjournal.org/forum/dissent-in-the-senate.