11.5: The Antimajoritarian Congress

The basic structure of Congress, as befitting a democratic legislature, is majoritarian. Members are elected by pluralities or majorities of their constituents, and most committee and chamber decisions require either plurality or majority support to go forward. Some aspects of Congress, however, create opportunities for minorities to thwart majorities. Unsurprisingly, these same aspects are among Congress’s most controversial traits.

To begin with, the distribution of congressional seats to states is not precisely proportional to those states’ populations. Some disproportionality is inevitable with any legislature, but the equality of states in the Senate (each electing two senators) exacerbates this disproportionality. California (the most populous) has 67 times the population of Wyoming (the least populous state) but only 18 times as many members of Congress (54 versus 3). In other words, a Wyoming citizen has roughly four times as much representation in Congress as a California citizen does. In the same way that this disproportionality enables the Electoral College (as discussed in the previous chapter) to award the presidency to the popular vote loser, it allows for parties and policies supported by a minority of citizens to find majority support in Congress, even if each member of Congress votes the way a majority of his or her constituents would.

The disproportionate nature of congressional elections can be further manipulated by gerrymandering. A gerrymander is a district whose boundaries are drawn with the intent to influence election outcomes by including certain voters and excluding others. Most congressional districts in the United States are drawn by state legislatures, and a Democratic- or Republican-controlled state legislature can improve its party’s performance in congressional elections by cleverly crafting maps that maximize the efficiency of its votes relative to its opponent’s. Illinois Democrats used gerrymanders to their advantage when redrawing their congressional districts in 2021: under the squiggly new map (displayed on the right in Figure 11.3 below), Democratic candidates won 82% (14 out of 17) of Illinois’s U.S. House seats in the 2022 midterm elections, despite only earning 56% of the popular vote in the state.

gerrymander: A district drawn to influence election outcomes by including certain voters and excluding others.

Figure 11.3: Illinois congressional districts, 2013–2032 (Source: U.S. Census Bureau)

Because state boundaries are not periodically withdrawn the way congressional districts are to keep up with population adjustments, the Senate is immune to the gerrymandering that afflicts the House. But the Senate does have its own unique antimajoritarian quirk in the form of the filibuster. Under Senate rules, it usually takes a supermajority of 60 votes to invoke cloture — that is, to end debate on a topic and move to a vote. The minority party in the Senate can leverage this requirement to block actions supported by the majority, either by giving interminably long speeches (sometimes many hours long) or, more commonly, by simply refusing to vote for cloture. The majority party has some procedural tools at its disposal to get around filibusters, but these are used sparingly, generally only in extreme circumstances. Thus, for most Senate business, a simple majority of votes is not enough to proceed if the minority is sufficiently committed to obstruction.

Some antimajoritarian aspects of Congress are established in the Constitution, making them highly resistant to change. This is especially true of the disproportionate nature of the Senate, which is not only laid out in Article I but also buttressed by Article V’s insistence that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Others, such as gerrymanders and filibusters, are far more pliable: some states delegate the task of district-drawing to independent, nonpartisan commissions, and the Senate can choose to amend its rules to limit or abolish the filibuster. The fact that these aspects persist suggests that a sufficient number of those with the power to change them perceive some advantage in maintaining the status quo, even if it means curtailing majority rule.