Constitutional Duties Precede Party Loyalties and Policy Goals

A Reply to Nate Silver

I spent some time overnight thinking about Nate Silver’s speculative analysis yesterday on which senators are more likely to support and oppose the president-elect, broken down by party.

I worry that his interesting analysis misses a fundamental distinction that must come before any of the data he marshals.

Before explaining that, though, let me first say that I’m a fan of big data and, from what I’ve read, there are few folks more thoughtful, humble, interesting, and serious about data than Nate Silver. So, when I suggest that this particular piece is flawed, I do it from the starting position of a fan and student, not an opponent. Shorter: I’m not trying to pick a fight so much as start a broader conversation.

Okay, my critique: Silver is measuring some really interesting things — but he completely ignores the first, and most fundamental duty of a senator. He thus misses the whole starting point for me in how I do this job.

Silver’s analysis starts with three basic factors that “will presumably correlate with support for [the President-Elect’s] agenda”: issue alignment, personal support, and electoral incentive. All three of these are about policy and politics. None of them are about the primary job of Senators — upholding an oath of office to defend our Constitutional system of limited government. The American experiment is premised on a belief in freedom; government’s authorities are limited, while the freedoms of the people are nearly limitless. Public officials are morally bound to start with that premise.

The decision to defend our Constitution, which places lawmaking in the legislative branch, for instance, comes well ahead of anything else, including the particulars of whether or not I personally like new policies that might be advanced or scrapped. The question of “how” matters.

But think about Silver’s three variables. They are all basically indifferent to whether the policy is advanced through legal/Constitutional means. But I’m actually not allowed to be indifferent to those questions.

Silver Variable 1: Issue alignment

If the President Elect unilaterally eliminated Obamacare and decreed that families would be able to purchase life-long, portable insurance policies that meet their needs, would a lot of policy-nerdy Republicans be happy with the policy? Sure. Would it be constitutional if done unilaterally, rather than by statute? No way.

Here’s why that matters: we’re not a European, winner-take-all system where every election is a referendum on every policy. When debate isn’t a bug but a feature, both the ends and the means still matter. We’re a nation of laws, not of men.

Silver Variable 2: Personal support

Earlier this week, someone asked when I’ll “swear an oath to our new President.” That’s crazy — and frankly, it’s a fundamentally un-American concept. My oath is to the Constitution, not to a man. To be sure, endorsements are important, as is the decision to withhold an endorsement. It’s a way of signalling “I want more leaders like this.” But it’s not a blood oath.

Senators aren’t given the binary choice of jumping on the Trump Train or reflexively filibustering everything, every day, for the next four years. Our first job is to defend the Constitution (independent of party label) and to work for limited government and the nearly unlimited potential of every American.

Silver Variable 3: Electoral incentive

Unfortunately, Silver is right that re-election is a big determination of who does what and when. That’s actually much of the problem in Washington. The only kind of long-term strategy that most folks do in that city is strategizing about their own reelections.

But senators have six year terms for a reason — primarily to debate tough things and take positions that are big enough to risk reelection. You might lose — and so what? Your calling is not to your own incumbency. One of those big and risky things senators should be pursuing is putting your oath of office to the Constitution ahead of the question of whether it is popular or unpopular in the short-term to oppose someone who tries to reach beyond their authorities — regardless of whether his red or blue partisan jersey happens to be the same color as yours.

Statesmanship Precedes Policy Advocacy

So how do we quantify defending the Constitution? There’s no bullet-proof metric to measure defending limited government. We should, however, start any conversation about whether a senator would oppose a president with an understanding that is bigger than just policy preferences and political self-interest. Otherwise, we’re going to be stuck in an inherently partisan loop before we even begin the conversation.

Reflexive partisanship isn’t just boring, it’s dangerous. It’s dangerous because we forget about persuasion and instead devolve merely to bare-knuckled tactics. Who can run up the score? Who’s likely to crack first? Whose short-term policies are winning and whose are losing? That stuff leads to more cynicism. Partisan score-keeping isn’t the key to maintaining a republic — it’s a distraction from it. And frankly, in my limited experience, it isn’t the way that most non-politically-addicted voters think about their hopes and worries for the American experiment they’d like to pass on to their grandkids.

Whether folks were excited about their candidate or skeptical of him or her, nearly everyone walked away from 2016 more cynical about the American experiment and the future of public trust in this republic than before. Reversing that cynicism requires rebuilding public trust. We’re not going to do that by viewing everything through a purely political lens. Constitutionalism has to come first.

Bottom line: My suggestion is that there must be two dimensions: Silver is proposing an x-axis measurement of pro-Trump vs. anti-Trump on policy and politics. Fine.

But there needs to be a y-axis laid over and above this — that is about whether one understands the duty of senators (and indeed the duty of all oath-taking federal officials in all three branches of government) — to be about the loyalty pledge we made to a Constitution of limited government.

What does that mean, practically? It means that we stand up to the Executive Branch when it overreaches.

I’m hopeful that my Democratic colleagues — who swallowed their whistles while President Obama expanded the powers of the executive and ran roughshod many times over the Constitution — will learn this lesson. (See, cf, “pen and phone” arrogance.) And I’m equally hopeful that my GOP colleagues who rightly decried President Obama’s use of unilateral executive power will be equally quick to challenge executive overreach even when it’s done by a Republican.

Not because the president is a Republican or a Democrat, but because he’s the executive, and we are senators.

Anyone who can’t handle that should look for a new calling.

That’s the job.

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