The People v. the U.S. Senate

Brett Kavanaugh was confirmed to the United States Supreme Court by a vote of 50–48, with one senator absent and one abstaining. Only one Democrat, Joe Manchin of West Virginia, voted with the solidly Republican majority, which represented just 44 percent of the country’s population. Indeed, when Americans last voted for their senators (over a period of six years), Democrats won the popular vote by more than 8 percent. It’s that disproportionality—and the reality that a majority of the country’s population is represented by just 18 senators—that is driving concerns about the Senate’s ability to function as a representative body in a changing America.

The Senate is embedded within the Constitution as few other institutions are, with a special clause that some believe makes it immune to the standard amendment process. Adding more diverse states is one solution — Puerto Rico, the District of Columbia, and other U.S. territories would likely send Democrats to Capitol Hill if they gained representation, somewhat balancing the chamber.

And both Puerto Rico and D.C. seem agreeable: Last month, Puerto Rico’s governor, Ricardo Rosselló, stepped up his campaign for statehood, while the district’s congressional delegate, Eleanor Holmes Norton, is a passionate advocate of admitting D.C. President Donald Trump, whose signature would be needed, barring a veto-proof majority in favor of statehood, is staunchly opposed, however, citing his ongoing feud with San Juan Mayor Carmen Yulín Cruz, whom he has referred to as a “horror show.”

Others, mainly on the far left, have suggested simply abolishing the body in its entirety, though the idea is not mainstream. But both those who want abolition and those who want more modest, but nonetheless significant, changes agree: The Senate is increasingly unrepresentative of the American populace.

The Republican Party has an inbuilt advantage in Senate races. Since Democratic voters tend to cluster in cities and their inner suburbs, Republicans are more spread out over large geographic areas. While rural strength in a state like New York or California counts for little in Senate races dominated by large coastal cities, the abundance of sparsely populated, geographically vast states in the West and Midwest is a big help for Republican domination in the chamber. Wyoming, for instance, reliably returns GOP senators despite having about as many people as Albuquerque.

Some commentators, notably David Wasserman of “The Cook Political Report,” point to the 30 states won by Trump as the inevitable benchmark for Republicans in the Senate. If 30 states vote Republican, the logic goes, the GOP should have 60 senators. Of course, things are somewhat more complicated: Barack Obama won 28 states (56 senators) in 2008 and 26 states (52 senators) in 2012. And there remain 12 Democratic senators from states Trump won. (Republicans hold just three seats in states won by former Secretary of State Hillary Clinton.)

There’s also demography: The states Trump won, which tend to be more Republican in general, are also whiter. In the political world of 2018, that makes them harder to win for Democrats, though the party holds numerous safe seats in heavily white northeastern states in which the GOP is not seriously competitive. The most diverse states are also the largest, and, therefore, the most underrepresented on a per capita basis.

Senate critics also contend that smaller states tend to be more conservative, while larger ones are more likely to back Democrats, though this argument is belied by the nine largest states, which are represented by an even number of Democrats and Republicans. Yet even if partisanship is put aside, those nine account for more than half of the country’s population—and their representation does not reflect that. Smaller states, at present, are not that much more likely to elect Republicans than Democrats. The 18 smallest, representing slightly more than one-third of the Senate, currently have 15 Democratic senators, 19 Republican senators, and two independent senators (both of whom caucus with the Democrats).

While other countries have disproportionately selected legislatures—Norway intentionally allocates extra voting power to rural areas, for instance, and Canada’s provinces have stark differences in parliamentary representation—the Senate’s extreme imbalance is essentially unique in the global pantheon of representative democracy.

In the past, rural states worked to the Democrats’ advantage; the party’s near-constant majorities in the upper chamber from the 1930s to the 1990s were built largely on the back of its successes in large, rural states. And Senate disproportionality has been worse in the past than it is today. In 1900, the largest state was 171 times the size of the smallest. Today, California is 68 times the size of Wyoming. With the exception of the 1980 census, the gap has not been this low since the 1850s. However, the percentage of the population required to elect a Senate majority—the people of the smallest 26 states, in effect—has never been smaller, and is now down to just 17 percent of Americans.

Malapportionment is unconstitutional in the United States, says the University of Missouri political scientist Peverill Squire, except when it applies to the Senate, and that creates a power imbalance that belies the psephological maxim: Land doesn’t vote. Except, of course, when it does.  

The problem is still a substantial one, particularly for those who emphasize the principle of one person, one vote. The problem with the idea rests in the Constitution. Representative Don Beyer of Virginia, a noted proponent of electoral reform who has introduced a bill in Congress to radically alter the way the House is elected, summed up the issue: “We’re not America; we’re the United States of America.” The Senate’s equal representation, in this view, mirrors that of the United Nations, where Monaco and China each get one vote. Since each state is constitutionally viewed as co-equal and sovereign, it cannot be subjugated to the will of another. But whether that reality has continued relevance is debatable.

On June 11, 1787, Roger Sherman rose in a Philadelphia room filled with other landowning men and recommended a bicameral legislature for America, with one house apportioned by population and the other apportioned equally among the states. This deal—the Connecticut Compromise, as it would later be known—has organized American legislative governance for nearly two and a half centuries. Sherman’s original proposal was not, of course, designed to boost popular representation. The will of the people, itself a narrower concept at a time when voting was restricted to the white and male, would be expressed in the House of Representatives. The Senate would express the interests of the states, conceived of as sovereign entities unto themselves rather than as a wholly cohesive nation. Until the Seventeenth Amendment to the Constitution was ratified in the spring of 1913, senators were elected by the legislature of their respective state.

Those who want to eliminate the Senate wholesale argue that the ship has sailed on states as sovereign entities. The federalism, they contend, fundamentally undermines basic democratic due process and the voting rights of actual people. “The principle of democratic governance is one person, one vote, and the Senate is the opposite of that,” says Sean Monahan, a former member of the National Political Committee of the Democratic Socialists of America. Daniel Lazare, a journalist who specializes in American politics and has written three books on constitutional issues, argued in Jacobin in 2014 that the Senate is “one of the most cockeyed systems of minority rule in history, one that allows tiny coteries to hold the entire country ransom until their demands are met.”

Any change to the Senate’s composition, even short of abolition, would require at least an amendment to the Constitution. Such an amendment would need the buy-in of numerous smaller states whose interests are well served by the current structure of the Senate.

But the problems don’t stop there. There is a little-discussed provision at the end of Article V of the Constitution that reads “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” The exact meaning is debatable. Squire says questions over the provision would almost certainly go to the Supreme Court if Senate abolition ever got that far, though he believes that “everything in the Constitution is available to be amended” through the enumerated Article V processes, despite some, such as the American Enterprise Institute’s Norman Ornstein, arguing that the clause is a “fail-safe” against amendment. (Ornstein is a contributing editor for The Atlantic.)

Lee Drutman of New America, an expert on electoral reform, dismissed calls to abolish the Senate as essentially impractical, a view largely shared by other scholars. “It’s a fun thing to complain about on Twitter, but let’s get serious,” he says.

While supporters of Senate abolition argue that eliminating the upper house would increase democratic accountability, questions about the impact on the separation of powers remain. Beyer, the Virginia congressman, believes the Senate serves as a check on the tyranny of the majority. Even those who wish to do away with the chamber tend to acknowledge that pure majority rule could open the floodgates to those who support potentially popular attacks on the rights and liberties of minority groups, an issue discussed at length in The Atlantic by Conor Friedersdorf in August.

Senate abolition, no matter its support among left-wing groups, remains a remote prospect in the near term. Constitutional and political hurdles are massive, and despite gaining traction among many in the left-wing commentariat, popular support would likely be more elusive. However, stopgap measures—subdividing large states, for instance, or adding U.S. territories and the District of Columbia to the union—may be more viable and could address some Senate critics’ most immediate concerns.

But calls for radical reform can be useful in themselves. Issues of voting rights and disproportionality generally gain traction when attention is turned toward issues like the relative representativeness of the Senate. Electoral change—including measures to combat voter suppression and gerrymandering, or even more fundamental changes like instituting a proportional voting system for House elections—may become more palatable to the electorate at large as massive systemic changes like Senate abolition are discussed. “It’s always good to have a John the Baptist out there, painting a picture of what could be, but people change their minds relatively slowly,” Beyer says.

But in the near term, Democrats may not need John the Baptist—what they need may be Puerto Rico, the District of Columbia, and time. To rearrange electoral geography, American history would suggest that time is the most critical.