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The Senate Should Vote in Secret

By Steve Tidrick

The Constitution makes clear that the Senate may convict an impeached president with the "concurrence of two-thirds of the Members present." But it is silent as to the exact procedure that the Senate should follow at the trial's end to determine whether two-thirds concur.

Ideally, the Senate should abandon the public, roll-call procedure that it adopted in 1868 for President Andrew Johnson's trial and instead require the senators to vote anonymously at trial's end to acquit or convict.

The idea might seem anachronistic in the age of C-SPAN and sunshine laws, but it is well in line with the principle that "the arguments and votes of jurors...are secrets, protected from disclosure unless the privilege is waived," a notion that the Supreme Court once called an "immemorial tradition."

The good thinking behind this tradition is the desire for verdicts that are uninfluenced by bribery, harassment and blackmail. Of course, the risk of improper influence is especially great when the president is on trial, as President Andrew Johnson's impeachment trial demonstrated.

The Johnson administration bribed senators in backroom dealings with the promise of appointing a secretary of war of their liking. Johnson's opponents pressured the senators with threats ranging from political ostracism to assassination. In the end, Johnson's opponents made good on at least one threat: None of the Republicans who voted for acquittal was ever re-elected to the Senate.

Who doubts that the pressures are less severe in 1999?

Some argue that such pressures are appropriate because the process is political by design. After all, the delegates to the Constitutional Convention chose the Senate rather than the Supreme Court as the trier of presidential impeachments.

This view of history mistakenly assumes that today's Senate is the same Senate that the framers envisioned. It is not, and the record of the debate on September 8, 1787, makes that clear. The delegates who favored the Senate as the place of trial thought the Supreme Court would be more biased and corruptible than the Senate.

Today most Americans would say that those delegates got it backwards, but that viewpoint says more about how much the Senate has changed than it says about the framers' wisdom. When the framers chose the Senate to be the trier of presidential impeachments, they did not expect senators to be popularly elected, they did not foresee the ascendance of powerful political parties, and they may well have expected secrecy to be the norm in the Senate, as it was during its first six years.

Anonymous voting by legislatures is hardly unprecedented. Parliaments in many countries vote anonymously for the unseating of a member. In our own country, when no presidential candidate received a majority of the votes in 1800 and 1824, the House of Representatives voted by secret ballot to elect our president (and thus we got Presidents Thomas Jefferson and John Quincy Adams).

The real question at this juncture is whether the Senate has the political will to shield the senators from public opinion, an act which might appear undemocratic.

Alexander Hamilton didn't see it that way. Writing in Federalist Paper No. 65, Hamilton suggested that in impeachment matters, the House of Representatives would represent public opinion, but the Senate trial would be independent of and insulated from public opinion.

Hamilton's view makes sense even today if we remember the basic civics lesson about the Senate. Because each state has two votes, the Senate by design does not accurately reflect national public opinion. Instead, it favors public opinion in small states.

In legislative matters, this is not so troubling because the vast power that small states wield in the Senate is checked by the House of Representatives and the President's veto. But in an impeachment trial, the verdict of the senators is final, so a public, on-the-record vote would not subject the senators to national public opinion so much as it would implement the will of public opinion in the smaller states, unchecked by a more representative body.

As a rule, I strongly believe that accountability means better government. In the exceptional case of a Senate impeachment trial, however, accountability doesn't accomplish the good that it normally does. The reason is simple: the fact that a public Senate vote will favor opinion in the small states unchecked by proportionally representative institutions means that an on-the-record vote may well produce a result inconsistent with national public opinion and the national interest.

Indeed, as it stands now, public opinion in Maine, Rhode Island and Vermont will have three times the influence over the president's fate as public opinion in New York, even though New York has six times the combined population of those states. In the most extreme case, if the only Americans who favored conviction were a slim majority of citizens in the 34 least populous states, and those states' senators voted the will of those majorities, then the President would be expelled at the behest of 16 percent of Americans, with 84 percent of Americans supporting acquittal!

The question we ought to ask is not whether the Senate should be accountable, but whether the Senate vote will better reflect the national interest fairly and justly in an open environment or in a closed environment. It just might turn out that a public Senate vote will produce a verdict inconsistent with the national interest. That is exactly what the nationally-minded Alexander Hamilton had in mind when he defended the Senate as the trier of presidential impeachments in Federalist Paper No. 65: a body that would be less accountable to public opinion in the several states.

With the changes in the Senate since its inception in 1787, the best way to accomplish that is through secret ballot.

Steve Tidrick '94 is a third-year student at the Harvard Law School.

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