3.5: Chapter 24- The Undemocratic Senate

“We should keep in mind that the original one-state, two-senators rule was written and ratified by property-owning white men, almost half of whom owned slaves…”

–Eric Orts (1)

The Senate as an Affront to Democratic Principles

Any proper understanding of the United States legislative branch must deal with an issue that doesn’t get as much attention as it should: The United States Senate is not an especially democratic representative body. Indeed, journalist and former congressional candidate Norman Solomon wrote that “today, the U.S. Senate is the most undemocratic elected body in the nation.” (2) Of course, the Senate was never designed to be a democratic body—remember that the Senate was initially chosen by state legislators rather than the people. Journalist and author George Packer puts it this way:

The Senate was designed, as part of the separation of powers, to check the impulses of the House and the popular will. For some Federalists, it also had an aristocratic purpose: to collect knowledge and experience, and to guard against a leveling spirit that might overtake the majority. (3)

In 1913, the Seventeenth Amendment changed the Senate selection process by having the people directly elect senators. That change certainly made senators more responsive to the democratic will within their respective states, but the basic problem is structural and has to do with how senators are apportioned. Senate seats are apportioned equally between the states, with each state getting two senators regardless of population. This enormously distorts the democratic principle of one-man, one-vote. Consider that the 7 million residents of Alaska, Delaware, Montana, North Dakota, Rhode Island, South Dakota, Vermont, and Wyoming elect sixteen senators; meanwhile, the 147 million Americans living in California, Florida, Illinois, New York, Ohio, Pennsylvania, and Texas elect only fourteen senators.

Senate of the 111th Congress

In the 1964 case Wesberry v. Sanders, the Supreme Court ruled that unequal House election districts were an unconstitutional violation of the “one-man, one-vote” standard for legislative districts. House districts are sized accordingly and are roughly equal in population, with the important caveat that each state gets at least one representative. (4) Unfortunately, this logic cannot penetrate the U.S. Senate because the Constitution’s language enshrines that body’s undemocratic structure. From the strictly mathematical view, any constitutional amendment to remedy the situation would have to garner a two-thirds vote in the House of Representatives and also in the Senate itself. Besides, when talking about amendments, Article V of the Constitution stipulates that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” Thus, fixing the senators’ apportionment would require that most senators agree to the change, but would also require the small states to agree to give up the disproportionate power they now have.

The Senate’s unrepresentative structure—being based on states rather than on population—has real-world political consequences. For one thing, the senators from the twenty-six smallest states hold the most Senate seats even though they represent only 17 percent of the U.S. population. They can refuse to pass legislation desired by the majority of the population, the House, and the president. Small states and rural interests gain disproportionate power in this scheme. So do Whites: the list of states with the least population correlates fairly well with the list of states with greatest percentage of White people.

The founders saw the Senate as a bulwark against unruly democratic majorities. Criminology and criminal justice professor Richard Rosenfeld summed up the situation, “The United States Senate stands today as a grotesque monument to that antidemocratic legacy; it remains largely a preserve of wealthy white male aristocrats drawn from an entirely different economic class than the people they purport to represent.” (5) Today, however, the situation is even worse. For example, in 1787 the most populous state, Virginia, had ten times more people than Delaware, the least populous state. Now, California is the most populous state and Wyoming is the least populous. California has sixty-nine times more people than Wyoming—and yet Wyoming has the same number of U.S. Senate seats as does California. The 117th Congress perfectly illustrated the partisan fallout of this undemocratic apportionment. Following the 2020 election, the Senate was split evenly, with 50 seats held by Republicans and 50 seats held by 48 Democrats and 2 Independents who caucused with the Democrats. Collectively, the 50 Republican senators represented nearly 42 million fewer people than did the 50 Democratic/Independent senators. (6)

The Senate apportionment problem is compounded by the filibuster, for it only takes forty-one senators to defeat a cloture motion and prevent a bill from being voted on. If the forty-one senators sustaining a filibuster happened to come from the least populous states, it would mean that the senators representing less than 12 percent of the population are inhibiting legislation that the vast majority of the population wants. The situation is so obviously undemocratic, that many people have argued that the filibuster is unconstitutional. The group Common Cause even tried to sue to get a federal court to declare the filibuster unconstitutional, but the suit was thrown out because the judge said the group didn’t have standing to sue. Adam Winkler, responding to Senator Rand Paul’s thirteen-hour filibuster to protest the Obama administration’s unconstitutional drone attacks, notes that the filibuster is not mentioned in the Constitution and that the first filibuster didn’t take place until 1841. The Constitution requires only a simple majority vote to pass legislation, and it carefully spells out the few situations that require a different rule—for example, a two-thirds Senate vote to remove someone who has been impeached by the House or a two-thirds Senate vote to support a treaty. (7)

While both parties routinely use the filibuster, it is clear that it has more often been used to frustrate progressive changes endorsed by the majority of Americans. Southern Democrats used the filibuster for decades to block civil rights legislation. More recently, Republicans and conservative Democrats have used the filibuster to block a paycheck protection bill to equalize pay between men and women, the DREAM Act for the children of undocumented immigrants, campaign finance bills that would force the disclosure of dark money, a bill that would close corporate tax loopholes that incentivize sending jobs overseas, an expansion of Social Security benefits, and the For the People Act, which would have set national standards for voting, taken steps to reduce partisan gerrymandering, and better ensured the security of elections. Additionally, victims of the filibuster also include a public option in the Affordable Care Act and a cap-and-trade bill intended to fight climate change. (8) All were blocked by filibuster or the threat of filibuster.

What Could be Done About the Undemocratic Senate?

The U.S. Senate’s undemocratic nature has become so odious that people often entertain possible ways to fix the problem. One way would be to leave the apportionment system alone but break up large states so that each new state would have its own two senators. California, for instance, could be broken up into six or eight states. (9) This is actually a modest proposal, given that the city of Los Angeles has nearly seven times the population of the entire state of Wyoming. John Dingell, one of the longest serving Representatives in U.S. history, argued that the Senate’s apportionment imbalance “has become the primary cause of our national legislative paralysis.” His solution is that we should simply abolish the Senate by constitutional amendment. (10)  Wharton legal studies professor Eric Orts has argued that we should expand the Senate to 110 seats, give one seat to each state, and then give additional seats to states according to population. Wyoming would end up with one senator while California would have twelve. Moreover, he argued that such a move would only require legislation rather than a Constitutional amendment. Why? Because in cases like Reynolds v Sims (1964) and even Bush v. Gore (2000), the Supreme Court has already firmly established the constitutional principle of one-man one-vote, and the Congress is already empowered through amendments like the Fourteenth, Fifteenth, and the Nineteenth to uphold American citizens’ privileges and immunities—of which voting is one. (11)

What if . . . ?

What would you do about this undemocratic institution sitting firmly in the middle of our republic? Would you vote to support splitting up large states? What if you were a resident of one of the less populous states? Would you vote to abolish the Senate altogether? What does it say about our democracy when we seem so unable to address such an obviously undemocratic anachronism?

References

1. Eric W. Orts, “The Path to Give California 12 Senators and Vermont Just One,” The Atlantic. January 12, 2019.
2. Norman Solomon, “All Eyes are on the Senate—But What is It?” Fairness and Accuracy in Reporting. December 30, 1998.
3. George Packer, “The Empty Chamber,” The New Yorker. August 9, 2010.
4. Reynolds v. Sims (1964).
5. Richard N. Rosenfeld, “What Democracy? The Case for Abolishing the United States Senate,” Harper’s Magazine. May, 2004.
6. Ian Millhiser, “America’s Undemocratic Senate, By the Numbers,” Vox. November 6, 2020.
7. Adam Winkler, “Is the Filibuster Unconstitutional?” The New Republic. March 7, 2013.
8. Adam Jentleson, Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy. New York: W. W. Norton and Co. 2021. Pages 244-45. Devan Cole, Aileen Graef, and Daniella Diaz, “Manchin Defends Bucking Voting Rights Bill and Digs In Against Eliminating the Filibuster,” CNN. June 7, 2021.
9. Burt Neuborne, “Divide States to Democratize the Senate,” Wall Street Journal. November 19, 2018. David Faris, It’s Time to Fight Dirty. New York: Melville House Publishing, 2018.
10. John D. Dingell, “I Served in the Congress Longer Than Anyone. Here’s How to Fix It,” The Atlantic. December 4, 2018.
11. Eric W. Orts, “The Path to Give California 12 Senators and Vermont Just One,” The Atlantic. January 12, 2019.

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