Criticisms of the Nebraska Republican’s Senate tenure are largely unfounded, as we shall discover when the Senate further deteriorates in his absence.
Nate Hochman dissents from Bobby Miller’s defense of soon-to-resign Nebraska senator Ben Sasse. Specifically, Nate criticizes Sasse’s supposed legislative inefficacy, his failure to repeal Obamacare, and, on the whole, his alleged inability to line up his actions in the Senate with what he said about how the body should be improved. I dissent from Nate’s view, and I second Bobby’s. But I would like to do more than merely dissent from Nate’s view. It suffers from some weaknesses that are worth pointing out.
Take the argument about legislative efficacy. Nate writes that one of Sasse’s main imperatives as a senator has been “his (entirely legitimate) criticism of the legislative branch’s timidity.” He then quotes Sasse’s maiden floor address in 2015, in which the senator lamented “the problem of a weak Congress” full of incapable legislators, and 2018 remarks in which Sasse decried those in the Senate who “want their jobs more than they really want to do legislative work” and who therefore mostly don’t pass laws. Nate believes he has found the metric by which to measure Sasse, and has found him wanting:
The Center for Effective Lawmaking, which gives a “Legislative Effectiveness Score” to members of Congress, rated Sasse as the third-least effective Senate Republican in the 114th Congress, the fourth-least effective in the 115th, and the third-least effective in the 116th. In contrast, Josh Hawley, an embodiment of the national-conservative wing of the GOP that ostensibly prioritizes “stoking grievances over advancing a concrete agenda,” was rated as the 26th-most effective member of the Senate GOP during the 116th Congress, having introduced nearly four times the number of substantive bills as did Sasse during the last legislative session. . . .
The Center for Effective Lawmaking’s assessment is about more than “the number of bills introduced or passed” and entails “four separate components: proven ability, advancing legislation, members’ agenda items, and progression through the legislative process into law.” In other words, the score reflects a lawmaker’s ability to do the things that he says he wants to do.
Those curious can judge the rankings for themselves here, and see the methodology for the score here. It’s a very impressive-looking mathematical formula. But I think of statesmanship as more an art than a science. So I’m not so ready as Nate is to yield to the age of “sophisters, economists, and calculators.” A closer look at these Sasse remarks suggests why. Sasse is not simply decrying the deficit of bills. Messaging bills, glommed on to hot-button issues, are an easy — and increasingly common — way that legislators might increase their “Legislative Effectiveness Score.” But let’s accept Nate’s point that it measures more than that. Many of the other bills that do pass Congress aren’t really legislation, rightly understood, by Sasse’s own words. In his reckoning, such bills are, rather, means of growing the administrative state, increasingly the locus of real power in Washington. From his 2018 remarks:
Over the course of the last century, but especially since the 1930s and then ramping up since the 1960s, a whole lot of the responsibility in this body has been kicked to a bunch of alphabet soup bureaucracies. All the acronyms that people know about their government or don’t know about their government are the places where most actual policymaking, kind of in a way, lawmaking is happening right now.
And so, what we mostly do around this body is not pass laws. What we mostly do is decide to give permission to the Secretary or the administrator of bureaucracy X, Y, or Z to make law-like regulations. That’s mostly what we do here. We go home and pretend that we make laws. . . . No, we don’t. We write giant pieces of legislation — 1,200 pages, 1,500 pages long that people haven’t read. Filled with all of these terms that are undefined and we say the Secretary of such and such shall promulgate rules that do the rest of our dang jobs.
And so, at the end of the day, a lot of the power delegation that happens from this branch is because the Congress has decided to self-neuter. Well, guess what? The important thing isn’t whether or not the Congress has lame jobs. . . . The important thing is that when the Congress neuters itself and gives power to an unaccountable fourth branch of government, it means that people are cut out of the process.
Nate believes that “Sasse failed according to the very terms he articulated in his critique of Congress.” But he does not fully understand the terms Sasse laid out, instead supplying his own. And measures of mere legislative productivity in a broken body will tend to skew toward those who accord with its status quo, not with those who seek to break from it. Introducing the “Joe Biden Sucks” Act over and over again might get you noticed. Sponsoring the 100–0 “Sunshine and Puppies Are Good” Act that establishes a federal Department of Sunshine and Puppies, which empowers a host of bureaucrats to manage the nationwide distribution of sunshine and puppies, might get you a reputation for being an effective legislator. Using a Senate seat to reeducate Americans on basic civic truths and to persuade Senate colleagues to pass bills that take the power of the purse seriously and take power back from the administrative state rather than merely delegate (two of Sasse’s suggestions in a 2020 op-ed) — these things might not result in any legislation at all. Are they then a waste of time? A fairer criticism might be that, by this metric, Sasse did not succeed: He failed to convince his colleagues to think differently about the very act of legislating. His 2015 remarks concerning his fear that there was not “much will in this body to do things like recovering the power of the purse” were, unfortunately, vindicated. Yet that would seem more an indictment of his colleagues than of him.
Given these obstacles, however, Sasse has endeavored to achieve what he can in the Senate. The two most obvious areas have been national security and the judiciary. Nate is skeptical of Sasse’s natsec accomplishments, asking, “What, precisely, did Sasse do with his focus on national-security issues? What actions did he take that leave America safer and more secure now than it was when he entered office in 2015?” To some extent, Nate will never know the answer to this question, and should be grateful he won’t. Sasse considers the Senate Select Committee on Intelligence, on which he has served, the “one notable exception” to the general trend of a broken Congress because “the majority” of the committee’s work “is done in secret,” enabling bipartisan cooperation on serious matters “without posturing for cameras.” But there has been public evidence of his work in this area also. The Cyberspace Solarium Commission, spearheaded by Sasse, attempted to take seriously questions of cybersecurity, a realm in which the newest and most dangerous threats to America in an increasingly technological society will manifest. Many of its recommendations have become law. With luck, this legislative success will, somewhat paradoxically, also remain unheralded; we’ll know it’s working because we remain secure, and therefore will care little of its operation.
As for judicial nominations: Sasse, since 2017 a member of the Senate Judiciary Committee, has played an outsized role in ensuring the placement of justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on the Supreme Court. Besides merely voting to confirm all three, Sasse was responsible for Amy Coney Barrett being on the shortlist at all, recommending her to replace Anthony Kennedy. When Kavanaugh ended up nominated instead, Sasse stuck by Kavanaugh through the controversy of the allegations against him. But, recognizing that mere partisan boosterism would not get all the votes needed for his confirmation, Sasse navigated a delicate political situation in such a way that (and here I speculate) may have inspired some of his more-moderate Senate Republican colleagues to join him in voting for Kavanaugh. He did this by separating the process out from the contretemps that had been engineered around it. And when Sasse got what he wanted and Amy was finally nominated, Sasse had laid the groundwork for a rebuttal to the baseless attacks on her religiosity through his defense of her lower-court nomination in 2017 and his defense of another lower-court nominee in 2019. When it came to these judges, Sasse was far more than a warm body voting yay.
This does, admittedly, leave the tangled matter of Obamacare. Yes, it is true: Ben Sasse was profiled in National Review as “Obamacare’s Cornhusker Nemesis.” Obamacare repeal has been the white whale of Republican politicians since the moment of its passage. Many have promised to repeal it. In 2013, for example, Texas senator Ted Cruz engaged in a profile-raising government-shutdown stunt to that end, to little avail save for himself. Donald Trump campaigned on repealing Obamacare in 2016. A year later, Trump was lamenting that “nobody knew health care could be so complicated.” Should we hound these figures from public life as well? Success has many fathers, but failure is an orphan, and somehow Sasse has ended up the one taking it in. Perhaps Ben Sasse, formerly of the Department of Health and Human Services, ought to have known better. Alas, he did not anticipate that his colleagues would be even more complicated to deal with than Trump discovered health care was. Nate finds Sasse’s explanation for the failure of Obamacare repeal wanting: namely, that, in addition to his relatively junior status at the time, “it turns out lots and lots of Republicans wanted to be against Obamacare but not actually be for a system of free-market healthcare, and so when you had to actually act, there were a bunch of people who didn’t want to do it.”
This is, in fact, how the repeal effort died, killed on the Senate floor by John McCain, Lisa Murkowski, and Susan Collins (a bill Sasse voted for) and in another form by McCain, Collins, and Rand Paul without even getting a Senate vote. The lattermost of the second trio opposed this government-shrinking measure as “another big-government boondoggle.” But when Nate writes that Sasse “default[ed] on his central campaign promise,” it sounds like he personally killed Obamacare, not by voting down attempted repeals (which he did not do) but by not having the perfect bill that would somehow unite a Republican caucus that, despite years of theatrical agitation on the issue, was unprepared for the moment it had long sought. Does Sasse deserve some share of the blame for this? Sure. But that he has ended up holding the bag for this decade-long collective failure, one to which many contributed, whether directly or indirectly, seems more like an exercise in selective scapegoating than even-handed analysis.
Nate maintains a superficial charitability toward Sasse, calling him “undoubtedly a smart, eloquent man,” and “a reliable conservative vote, an articulate defender of our founding principles, and a personally likable man who avoided the kind of self-debasement that so often seems to be a feature of contemporary American politics.” Nevertheless, he says, “the job of lawmaker he leaves behind is best reserved for those who intend to make laws.” Who might “those” be? Nate compares Sasse negatively with Senator Josh Hawley. Will Hawley step up to the plate? Or will he persist in the kind of “self-debasement” he has uniquely mastered, as when he led the campaign to decertify the results of the 2020 election, persisted in doing so even after the Capitol riot, and then voted not to acquit Donald Trump in the impeachment trial over his role in fomenting it? Contrast this with Sasse’s behavior during this crucial window. Which of them was trying to “refine and enlarge the public views“? And which of them was displaying “talents for low intrigue, and the little arts of popularity“? When Nate asks what hard votes with “near-term political downsides” Sasse made “outside of the second impeachment of Donald Trump,” one might as well ask Mrs. Lincoln how the play was “outside of the assassination of” her husband. It was a test only seven Republican senators passed; to have done so is no mean feat.
In Sasse’s absence, will some potential incoming legislators step up to the plate? Will it be J. D. Vance, who argued against repealing Obamacare in 2017? Blake Masters, who promises to ape Ted Cruz’s shutdown theatrics if elected, and who believes that “passing legislation is very important, but it’s not all about that”? Herschel Walker? Mehmet Oz? To ask these questions is to answer them. The Senate now repels serious people and discourages serious behavior while attracting unserious people and encouraging unserious behavior. It is likely to become even more of a menagerie of toadies, technocrats, wannabe tyrants — and worse.
Sasse’s departure will not improve the Senate in the slightest. Rather, it will worsen, in ways we can see and in ways we can’t. With Sasse’s absence, the body will lose one of the only political figures who thought seriously about genuine, big-picture questions. And it will lose one of the only elected Republicans who showed the courage to stand up to “a strongman President” who happens to have “the same color jersey” he does, as he put it in 2015; and one of the few who was willing to contest some of the more worrying trends on the right in recent years. Those sound like pretty good “conservative principles” to me. Nate writes that Sasse’s time in office betrayed “what the good people of Nebraska had elected him to do.” But these good Nebraskans are more than capable of speaking for themselves, as they did when they reelected Ben Sasse in 2020 with more votes than they gave Donald Trump.
The most valid criticism of Sasse focuses not on anything he did as a senator but on the fact that he is leaving the job. Yet it should tell us something about the state of the place, and of our politics, that Sasse does not think he has a role in either, and that so many people are happily pushing him out the door. Those who welcome Ben Sasse’s departure — indeed, who wish it had happened sooner — are getting what they wished for. The honest among them will come to regret it.