2. U.S. Senate Challenge

Consider this scenario. You are attending a high school reunion at a state park, and 66 of your classmates show up. You all agree to go on a nature walk but must choose between Trail A, an easy 2-mile stroll through the forest, and Trail B, 1.5 miles of steep, rocky terrain with little protection from the sun.

Jokingly, you all agree that, since we live in a democracy, this decision too should be made democratically. And so it is. The vote is 65 in favor of Trail A and one in favor of Trail B. Based on our time-honored democratic tradition, you all march off together – on TRAIL B!

The one lonely vote for Trail B outweighed 65 votes for Trail A!

Does that sound very democratic to you? Yet that is precisely how American “democracy” works in the makeup of the US Senate.

Let me explain.

The US Senate and Proportional Representation

The United States Senate is not a representative body. It does not represent the people of the United States and was never intended to. Rather, the framers of the Constitution designed the House of Representatives (the so-called “People’s House”) to represent the people, and the Senate to represent the states. In this scheme, every state was equal: Each state has two Senators, as provided by Article I Section 3 of the Constitution.

The original Constitution provided that the Senators from each state would be chosen by their respective state legislatures. Only later on did states and citizens begin to recognize the value of adopting the more democratic and more representative practice of direct election of Senators by the people. Finally, direct election was mandated by the 17th Amendment to the Constitution, adopted in 1913. (By the way, the fact that we changed the method of Senate elections and actually removed the power of state legislatures to select Senators proves that we do have the ability to modify the Constitution and to move slowly toward a more representative democracy.) (Also by the way, I am rather surprised that no one has successfully argued before the Supreme Court that, following adoption of the 17th amendment, the principle of “one man, one vote” should mandate proportional representation in the Senate.)

Perhaps it is time to make another move toward representative democracy in the makeup of the upper chamber of our national legislature.

Did you know that a citizen of Wyoming has 66 times more power in the Senate than a citizen of California? (That is, in the class reunion scenario at the top of this essay, if the 65 folks who voted for Trail A came from California, and the one classmate who voted for Trail B came from Wyoming, then Trail B gets selected fair and square. Those are just the rules of our democracy.) Did you know that a citizen of Vermont has 40 times more power in the Senate than a citizen of Texas? The populations of these states are as follows:

State Census in 2010 Senators Population per Senator
California 37,253,956 2 18,626,978
Wyoming 563,626 2 281,813
Texas 25,145,561 2 12,572,781
Vermont 625,741 2 312,871

 

Now, if Senator A represents 20 million people, while Senator B represents only a half million people, then each voter in Senator B’s state has 40 times as much power in the Senate as each voter in Senator A’s state. This is inherently unfair. Here is a table of all 50 states, showing the Relative Power Per Person (RP/PP) in each state relative to the power of a person in California, which, with the largest population, has by definition the least power per citizen in choosing his state’s Senators:

State RP/PP State RP/PP State RP/PP
California 1.0 Missouri 6.2 Nevada 13.8
Texas 1.5 Maryland 6.5 New Mexico 18.1
New York 1.9 Wisconsin 6.6 West Virginia 20.1
Florida 2.0 Minnesota 7.0 Nebraska 20.4
Illinois 2.9 Colorado 7.4 Idaho 23.8
Pennsylvania 2.9 Alabama 7.8 Hawaii 27.4
Ohio 3.2 South Carolina 8.1 Maine 28.0
Michigan 3.8 Louisiana 8.2 New Hampshire 28.3
Georgia 3.8 Kentucky 8.6 Rhode Island 35.4
North Carolina 3.9 Oregon 9.7 Montana 37.7
New Jersey 4.2 Oklahoma 9.9 Delaware 41.5
Virginia 4.7 Connecticut 10.4 South Dakota 45.8
Washington 5.5 Iowa 12.2 Alaska 52.5
Massachusetts 5.7 Mississippi 12.6 North Dakota 55.4
Indiana 5.7 Arkansas 12.8 Vermont 59.5
Arizona 5.8 Kansas 13.1 Wyoming 66.1
Tennessee 5.9 Utah 13.5
Old Senate Chamber

 

 

 

 

 

 

 

Of course, the relative power of each citizen in the Senate has always been unfair, but two huge facts made it less unfair when the Constitution was written than it is now. First, as pointed out above, the framers of the Constitution were not trying to make a democratic Senate in terms of representing people; rather, they were trying to create a body that would represent states, and in fact they assigned to state legislatures the power to choose that state’s Senators. But as time passed, Americans came to value the notions that Senators should represent people and that people should directly elect them. Second, the populations of the thirteen original states were not as dramatically lopsided as the populations of the 50 states are today. Here are the populations of the thirteen original states in the first census after the Constitution was adopted (1790) along with the RP/PP of each citizen relative to the voting power of a citizen of Virginia (since Virginia had the most people):

State Population in the 1790 census RP/PP
Virginia 747,610 1.0
Pennsylvania 434,373 1.7
North Carolina 393,751 1.9
Massachusetts 378,787 2.0
New York 340,120 2.2
Maryland 319,728 2.3
South Carolina 249, 073 3.0
Connecticut 237,946 3.1
New Jersey 184,139 4.1
New Hampshire 141,885 5.3
Georgia 82,548 9.1
Rhode Island 69,825 10.7
Delaware 59,094 12.7

 

 

As you can see, the difference in Senatorial power per person between the least populous state (Delaware) and the most populous (Virginia) was 12.7 to 1 – as compared to today when the largest difference is 66 (Wyoming) to 1 (California), and 19 states have a difference greater than the most lopsided difference in the first Senate under the 1787 Constitution.

Iterative and Perpetual Characteristics of the Senate’s Undemocratic Imbalance

Due to the undemocratic imbalance in the Senate, all legislation is held hostage. Because of the Senate’s traditional filibuster rules (where 41 Senators can block any legislation by talking it to death), it is possible today for Senators from the 21 least populous states, representing only 10% of the population, to prevent Senate action on any bill. Again, this is hardly a democratic state of affairs.

This imbalance stretches two steps further:

  1. The Constitution incorporates the Senate’s unfairness into the formula for allocating the number of electors from each state to the electoral college: the number of electors in each state equals the total number of Senators and Representatives, giving a disproportionate number of electors to the states with less population.
  2. Article V of the Constitution precludes any constitutional amendment that reduces any state’s equal representation in the Senate without its consent. Hence, we cannot fix this problem with a normal constitutional amendment unless the legislatures of all 50 states agree to the fix.
“In America, everything is about race.”

An old adage, oft-quoted by African-American authors

Provenance of Structural Unfairness in our Constitutional System

 

This oft-quoted adage certainly applies to the deliberations of the Constitutional Convention in 1787. James Madison, among others, argued for direct election of the president by nationwide popular vote. However, other delegates from slave-holding states argued against universal suffrage: if the Convention adopted universal suffrage for president and for both Houses of Congress, the Southern states would always lose out. Northern states would let almost everybody vote while the Southern states would refuse to enfranchise slaves, indentured servants, or people without money or property. Hence, given the numbers, Northerners would probably win every presidential election.

Therefore, the Southern delegates developed a strategy to maintain their political hegemony (note: five of the first six presidents came from Virginia). This strategy was to apportion seats in the House based on total population including slaves, and to count states rather than population for the upper chamber of the legislature. The second half of this proposition was meant to entice convention delegates from states with smaller populations to come on board since this plan gives disproportionate power to small states. The “compromise”, such as it was, was to count only 3/5 of the slaves as people for the purpose of allocating seats in the House yet overlook population entirely when allocating seats for the Senate. Furthermore, while voters (white, male, over 21, and with property) would elect members of the House, state legislatures would choose each state’s senators. As part of this same compromise, another body, the electoral college, again skewed in favor of states with less population, would choose the president.

In addition to considerations of race, our forebears also had an innate fear of mob rule – entrusting our government to the passing whims of a radical majority. Their fears were not entirely unreasonable. The men who made up the Constitutional Convention of 1787 were products of monarchy and aristocracy, which represented stability if nothing else. They were already taking a huge leap into the unknown, resting the reins of power in the hands of a much wider electorate.

Previous Fixes

Before proposing a solution to the inherent unfairness in the current makeup of the Senate, we will consider what has happened historically when the people decide to change an undemocratic institution. We have instructive examples in the United States and in Great Britain:

  • In the US:
    • When the US Constitution was being drafted, the British House of Commons had numerous parliamentary districts based on geography and tradition rather than population. Some districts had close to zero residents. These were derisively referred to as “rotten boroughs”. This was such a problem that the American Framers included a constitutional provision for redistributing seats in the House of Representatives every ten years based on a decennial census.
    • When the size of the House threatened to become too large and unwieldy, in 1911 we fixed the size of the House at 435 seats with the number of seats awarded to each state based on the most recent census.
    • As mentioned earlier, we also amended the Constitution to require direct election of the Senate by the people (Amendment 17, ratified 1913)
  • In the UK:
    • An 1832 reform fixed the “rotten boroughs” problem by changing the makeup of the House of Commons, with districts based on population, revised regularly based on the census.
    • The Chartists Movement (1836-1848) campaigned for many democratic reforms including One man, One vote.
    • The House of Lords was originally comprised of church leaders (Spiritual Lords) and hereditary members of the nobility or “peers” (Temporal Lords). The king and prime minister could appoint additional members to Lords. This system was so unrepresentative of the people that the country demanded institutional changes in both the makeup and the power of the House of Lords. Over time, the House of Lords has become both more representative and less powerful.
    • Citizens of the constituent nations that comprise the United Kingdom have even come to view the House of Commons as somewhat unrepresentative. For this reason, Northern Ireland and Scotland now have their own parliaments, with plans afoot for the continuing “devolution” of power from the central government to Scotland, Northern Ireland, England, and Wales.

Conclusion: Institutions do change, and representative democracies do have the power and ability to institute changes intended to make themselves more representative

It is high time that Americans make their Senate proportionally representative of the people who elect them. Every American should have an equal chance to choose their Senator.

 

 

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