Challenge 2. U.S. Senate Fix

Article V Provision

If Americans decided to change the Senate from a body that represents states (two Senators per state) to a representative body (on the principle of “one citizen one vote”), it’s not as simple as adopting a constitutional amendment to modify Article I Section 3, which specifies that the Senate will be composed of two Senators per state. This is because Article V, which delineates the procedures and rules for amending the Constitution, specifies that no state will be denied equal suffrage in the Senate without its consent. Faced with this intentional roadblock to changing the makeup of the Senate, we are left with the following possibilities:

  1. We could propose an amendment to change the makeup of the Senate, and get every one of the 50 states to adopt it – probably an impossible hurdle, since at least one state with a small population would almost certainly object, and an objection from any single state would nullify this approach.
  2. We could amend the Constitution to reduce the powers of the Senate, so that, even as the Senate remained unrepresentative, this wouldn’t matter so much. For example, rather than requiring the Senate to pass all legislation before it becomes law, we could give the Senate only the power to block a law passed by the House, provided that the Senate rejects that law by a 2/3 majority within 30 days after it is passed by the House. Many other similar measures could be used to reduce the Senate’s role. (This was the type of change the British used to reduce the power of the very unrepresentative House of Lords.) While this approach has merit, we might end up with a unicameral legislature, with none of the checks and balances which a bicameral legislature provides.
  3. We could eliminate the Senate altogether. This is cleaner than method 2, but still leaves us with a unicameral legislature, subject to the whims of the voters every two years, and without the benefits of a bicameral legislature. Having two chambers, one designed to change laws quickly in response to public opinion, the other designed to operate more slowly and carefully, is probably a good feature of the American system.
  4. We could accomplish our objective in two steps, which is the process I recommend:
  • Step 1. Replace Article V, rewriting the procedures for amending the Constitution (see Big Fix 3).
  • Step 2. After that amendment is adopted, we could then proceed to adopt another amendment to change the makeup of the Senate. In this new configuration, each Senator will represent BOTH the people of the state and the state itself. The reconfiguration of the Senate could be combined with the replacement of the position of Vice President of the United States with the new position of Chancellor of the Senate.

Proposed Makeup of the New Senate

To clarify the discussion in this section, I use the term “Original Senate” to refer to the existing Senate as prescribed by the 1787 Constitution, and the term “New Senate” to describe the reconstituted Senate suggested here.

The New Senate will be a representative body, made up of Senators elected for six-year terms. The number of Senators for each state equals the number of that state’s Representatives divided by five, with fractions always rounded up. Thus states with one to five Representatives in the House get one Senator; states with six to ten Representatives get two Senators; those with 11 to 15 Representatives get three Senators; and so on. The following table shows the allocation of Senators to the 50 states, based on the apportionment of Representatives following the 2010 Census. It also shows the number of people represented by each Senator, and the final column shows the ratio of power between the citizens of this state and the citizens of the state with the least power. The least powerful citizens reside in the state with the highest number of people per Senator, so their relative power is defined as 1.0. Finally, the table shows that the New Senate would have 110 Senators, not much different from the Original Senate, which has 100 Senators:

Apportioning Seats in the New Senate
State Reps in House Senators 2010 Census Population per Senator Relative Power
Alabama 7 2 4,802,982 2,401,491 1.6
Alaska 1 1 721,523 721,523 5.3
Arizona 9 2 6,412,700 3,206,350 1.2
Arkansas 4 1 2,926,229 2,926,229 1.3
California 53 11 37,341,989 3,394,726 1.1
Colorado 7 2 5,044,930 2,522,465 1.5
Connecticut 5 1 3,581,628 3,581,628 1.1
Delaware 1 1 900,877 900,877 4.3
Florida* 27 6 18,900,773 3,150,129 1.2
Georgia 14 3 9,727,566 3,242,522 1.2
Hawaii 2 1 1,366,862 1,366,862 2.8
Idaho 2 1 1,573,499 1,573,499 2.4
Illinois 18 4 12,864,380 3,216,095 1.2
Indiana 9 2 6,501,582 3,250,791 1.2
Iowa 4 1 3,053,787 3,053,787 1.3
Kansas 4 1 2,863,813 2,863,813 1.3
Kentucky 6 2 4,350,606 2,175,303 1.8
Louisiana 6 2 4,553,962 2,276,981 1.7
Maine 2 1 1,333,074 1,333,074 2.9
Maryland 8 2 5,789,929 2,894,965 1.3
Massachusetts 9 2 6,559,644 3,279,822 1.2
Michigan 14 3 9,911,626 3,303,875 1.2
Minnesota 8 2 5,314,879 2,657,440 1.4
Mississippi 4 1 2,978,240 2,978,240 1.3
Missouri 8 2 6,011,478 3,005,739 1.3
Montana 1 1 994,416 994,416 3.9
Nebraska 3 1 1,831,825 1,831,825 2.1
Nevada 4 1 2,709,432 2,709,432 1.4
New Hampshire 2 1 1,321,445 1,321,445 2.9
New Jersey 12 3 8,807,501 2,935,834 1.3
New Mexico 3 1 2,067,273 2,067,273 1.9
New York 27 6 19,421,055 3,236,843 1.2
North Carolina 13 3 9,565,781 3,188,594 1.2
North Dakota 1 1 675,905 675,905 5.7
Ohio 16 4 11,568,495 2,892,124 1.3
Oklahoma 5 1 3,764,882 3,764,882 1.0
Oregon 5 1 3,848,606 3,848,606 1.0
Pennsylvania 18 4 12,734,905 3,183,726 1.2
Rhode Island 2 1 1,055,247 1,055,247 3.6
South Carolina 7 2 4,645,975 2,322,988 1.7
South Dakota 1 1 819,761 819,761 4.7
Tennessee 9 2 6,375,431 3,187,716 1.2
Texas* 36 8 25,268,418 3,158,552 1.2
Utah 4 1 2,770,765 2,770,765 1.4
Vermont 1 1 630,337 630,337 6.1
Virginia 11 3 8,037,736 2,679,245 1.4
Washington 10 2 6,753,369 3,376,685 1.1
West Virginia 3 1 1,859,815 1,859,815 2.1
Wisconsin 8 2 5,698,230 2,849,115 1.4
Wyoming 1 1 568,300 568,300 6.8
Totals 435 110 309,183,463  2,810,759  1.3

The power inequalities of the Original Senate have been largely corrected in this suggested makeup of the New Senate. Rather than a worst case of 66 to 1 (the exorbitant relative power of voters in Wyoming to voters in California in the Original Senate), the worst case in the New Senate would be 7 to 1 (Wyoming to Oklahoma or Oregon).

Terms of Office for the New Senate

One of the purposes of the Original Senate, as established by the Founding Fathers, was to be a more deliberative body, as a counterweight to the House, which was expected to be elected directly by the people every two years and thus to be more responsive to the changing views of the citizenry. For this reason, Original Senate terms were fixed at six years, with a third of the Senate elected every two years. Change would therefore come to the Senate more slowly than to the House.

The New Senate should follow exactly the same scheme, with a third of the Senators elected every two years, and with staggered elections for Senators from the same state. The only issue occurs when a state gains or loses a Senator as a result of the decennial census. This can be easily handled as follows:

  • When a state loses a Senator as a result of re-apportionment, the Senator whose term of office next expires simply is not replaced.
  • When a state gains a Senator, the additional seat is filled at the next biennial election, and the term of office for the new Senator is either two, four, or six years, depending on how it fits into the scheme of staggered terms for the Senators within a state.

It should be noted that few changes in the number of Senators apportioned to a state can be expected. For example, if this system had been in place beginning in 2000, then only Florida and Texas (asterisked in the table above) would have seen an increase of one Senator as a result of the 2010 reapportionment, and no state would have experienced a decrease. Therefore, this system is rather stable.

In the New Senate, as in the Original Senate, all Senators are elected at large, so that each Senator represents not only the citizens of a state but also the state itself.

Conclusion

The makeup of the Original Senate, as prescribed in Article I of the Constitution, is far from representative. In a representative democracy we should not forever retain a construct in which half of the national legislature fails to properly represent the American population. Many solutions to this problem present themselves, but only a structural solution such as replacing Article V concerning the procedure for amending the Constitution combined with the New Senate proposed here solves the challenge of the Article V provision concerning the Senate as well as the challenge of the non-representative makeup of the Original Senate. The advantage of this proposal is that it builds on and largely retains many features of the Original Senate, including its continued dependence on state elections, six-year terms of office, and the election of Senators at large (so that they represent the state as well as its citizens), while also accommodating future population shifts as reflected in the census. We should carefully consider potential solutions and move forward on one of them.

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