Daines was Right to Shut Down Warren

Massachusetts Senator Elizabeth Warren rose Tuesday night to register her objections to Senator Jeff Sessions’ nomination to the Attorney Generalship. In the course of reading a letter from the late Coretta Scott King (widow of Martin Luther King) about her objection to his appointment in 1986 to the federal bench, Majority Leader Mitch McConnell issued an objection saying that Senator Warren had violated Rule 19. That rule states, in part:

“No Senator in debate shall, directly or indirectly, by any form of words impute to another Senator or to other Senators any conduct or motive unworthy or unbecoming a Senator.”

Senator Daines ruled Senator Warren out of order, telling her to take her seat. Warren challenged that ruling, but Senator Daines was sustained on 49-43 party-line vote. Senator Warren was then effectively barred from the remainder of the debate.

Senator Daines ruling Senator Warren out of order

The video of the incident quickly spread across social media. Democrats, liberals, and regular women were furious at a white, male senator suppressing the free speech of a female colleague. Even more galling, they indicated, was that Warren’s male, Democratic colleagues were later allowed to read King’s letter from the floor without interruption, let alone official reprimand.

As a professor of political science, I appreciate Senator Daines’ commitment to civil discourse. It is something that I try to model for my students at Montana State, and it’s a value which has evaporated during these hyper-polarized times. I agree that Senator Daines’ interpretation of Rule 19 falls within the letter of the rule. Senator Warren did charge Senator Sessions with conduct unbecoming of a Senator, even if Senator Warren was quoting someone else.

Daines was right. According to the letter of Rule 19, that is.

But it’s the spirit of the rule—and the intention behind it—that matters. And in that respect, Senator Daines and Senate Republicans erred greatly in ordering the honorable member from Massachusetts to take her seat.

Consider first why something like rule 19 exists: To provide a “safe space” for the difficult and often contentious disagreements about policy and the direction of our nation. Political debates should confine themselves to substantive matters without devolving into attacks on personal character. As we know from the literature on international relations, repeated interactions in negotiations encourages cooperation and long-term thinking. By encouraging elevated discussions whilst removing name-calling, the Senate pushes its members to engage in a battle of ideas and not personalities (Side note: Refusing to engage in personalities was one of President Eisenhower’s keys to successful leadership). At the same time, this encourages the development of relationships that go beyond the disagreements of the moment—relationships essential to the institution functioning well and the production of good policy. In this case, Rule 19 is a good thing to have handy for officers presiding over debate.

While Rule 19 encourages elevated discourse, its use on Tuesday evening conflicted with the constitutional responsibility of the Senate; that is, to provide its advice and consent in the nomination process.

It would seem that a rule of the chamber concerning decorum should be subordinate to the pursuit of an important constitutional check on the executive branch.

When Senator Sessions became President Trump’s nominee to head the Justice Department, he was no longer just a Senator. He had become a potential member of the executive branch and therefore subject to the advice and consent process. It would seem, then, that a full consideration of the previous actions and record of that nominee—including the judgment of those who are in a good position to assess that record—is fair game for consideration during the process of advice and consent. Even if those allegations include remarks that might be perceived as impugning the character of a sitting U.S. Senator.

Beyond this technical point, however, it’s hard to buy that Senator Warren’s reading of the King letter impugned the character of Senator Sessions. First, the letter was an account of his behavior not as a U.S. Senator but in his position as a U.S. Attorney. And, perhaps more directly, the views expressed by Mrs. King assessed the actions of an officer of the executive branch—the same branch Sessions would serve as head of the Justice Department.

Even if we accept the notion that Senator Warren’s reading of the letter was out of line under a strict application of Rule 19, consider if that same letter were written about Betsy DeVos. Senator Warren could have freely read the letter without fear of rebuke. DeVos was not a sitting senator at the time of her confirmation, therefore, Rule 19 simply does not apply.

In 1989, the former U.S. Senator John Tower’s nomination to lead the Department of Defense was rejected after senators openly discussed documented allegations of womanizing and alcohol abuse. Although Tower was not an active member of the Senate at the time of his nomination by President George H.W. Bush, the Senate did not shy away from this important and difficult discussion about a former colleague. It defies reason, therefore, that the Senate chose to silence one of its members rather than have a complete and full discussion of Sessions’ qualifications to serve as Attorney General—simply because he is an active U.S. Senator.  This is, quite simply, a dereliction of its constitutional duty.

At the end of the day, it is not a surprise that Senator Daines upheld McConnell’s objection and the Republican majority supported his ruling. As University of Maryland Professor Frances Lee documents, senators increasingly vote along party lines not just on issues of policy and ideology, but on routine procedural matters. Why? Because the parties are more interested in building a mentality of teamsmanship at the expense of cross-partisan collegiality and cooperation.

While that teamsmanship might yield electoral benefits in the short-term, it comes at great expense to Madison’s carefully constructed system of checks and balances.

The rise of teamsmanship along with the weaponization of congressional oversight (which Matt Dull and I have documented a few articles), leaves Congress vulnerable to the continued expansion of the executive branch accruing more and more power.  Without congressional ambition vigorously countering executive ambition, we risk the rise of a majority tyranny running roughshod over our individual liberties.