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Mother Jones Jan-Feb 1998, v23, n1, p42(6)
Author: Lind, Michael
Title: 75 stars: how to restore democracy in the U.S. Senate
(and end the tyranny of Wyoming). by Michael Lind
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COPYRIGHT 1998 Foundation for National Progress
by Michael Lind
How to
restore democracy in the U.S. Senate (and end the tyranny of Wyoming)
Plus: RealPolitik: How big is your vote?
Here's a quiz question for you: What American institution has used its power
to thwart desegregation, campaign finance reform, health care reform, New Deal
programs, gun control, and midnight basketball--and gave Adolf Hitler time to
conquer most of Europe without American opposition? The answer: the United
States Senate. Because of our Senate--the least representative legislative
body in the democratic world except for the British House of Lords--an ever
shrinking minority of voters has the power to obstruct policies favored by an
overwhelming majority of the American people. The Senate is the worst branch
of government, and it's going to get even nastier in the century ahead.
If democracy means anything, it means one person, one vote--a principle
flouted by the Senate's very design, which is based on an antiquated
constitutional provision that provides equal suffrage in the Senate for
government units (states) rather than suffrage based on the size of a
constituency. As a result, a dwindling minority of Americans elects a majority
of senators.
California has 66 times as many people as Wyoming--and yet on any given vote
Wyoming's two senators can neutralize California's two senators. Texas, with
more than 19 million people, has only two senators--as many as Montana, which
has less than 1 million citizens. New York, the third most populous state in
the union, can be outvoted by tiny Rhode Island (the true Empire State).
This malapportionment favors inhabitants of Rocky Mountain and New England
states at the expense of Americans who live in densely populated
megastates--not only Sun Belt states such as California, Texas, and Florida,
but also states in the Northeast and Midwest such as New York, Illinois, and
Pennsylvania. True, the big states have more members in the House. But this
misses the point: Why should Idahoans be represented in the House and the
Senate, while Californians, Texans, and New Yorkers are effectively
represented in the House alone? It's not an even trade. The majority of
Americans get nothing in return for forgoing their right to democratic
representation in one-half of their national legislature.
>From the 18th century to the present, the ratio of large- to small-state
populations has grown from 19-to-1 to 66-to-1. Today, half of the Senate can
be elected by 15 percent of the American people--and the problem is only
getting worse. Almost all of the population growth in the United States in the
foreseeable future will be concentrated in a few populous states (chiefly
California). By the middle of the next century, as few as 5 percent of the
population, or even 1 percent, may have majority power in the Senate.
Even now, only 10 percent of the U.S. population elects 40 percent of the
Senate. By filibustering, senators representing little more than one-tenth of
the nation can block reforms supported by the House, the president--and their
fellow senators, who represent the other 90 percent of the population. This is
not democracy. It is minority rule. For example:
The Republican Party held the Senate from 1980-86 only because of Senate
malapportionment. During that period, Republican senators as a group received
fewer votes nationwide than Democratic senatorial candidates. If the Senate
had been elected on the basis of population, President Ronald Reagan would
have faced a Democratic Senate throughout his eight years in office.
In 1991, the Senate voted 52-48 to appoint Clarence Thomas to the Supreme
Court. The senators opposing Thomas (including those from California, New
York, New Jersey, Ohio, and Texas) represented a majority of the American
people--but found themselves in the minority in the Senate.
In order to pass his budget package in 1993, President Clinton had to cave in
to demands by senators from Montana, Arkansas, and Louisiana to lower the
gasoline tax.
Likewise, Clinton's 1993 domestic stimulus program, which was targeted at
metropolitan areas in megastates like California, was killed by conservative
Republican and Democratic senators from underpopulated states such as
Oklahoma.
While the Senate exaggerates the power of anti-urban, anti-government
conservatives in domestic policy, when it comes to foreign affairs, the Senate
has always been the command post of isolationism. As late as 1940, a
bipartisan team of isolationists in the Senate blocked the efforts of
President Franklin Delano Roosevelt and the House to revise the country's
misguided neutrality laws and rescue Britain from defeat at the hands of the
Nazis. Thanks to the unrepresentative Senate, Hitler came close to winning
World War II.
The only Americans whose views are consistently magnified by Senate
malapportionment are white, rural, right-wing isolationists. If you are
nonwhite or of mixed race, if you live in a major metropolitan area, if you
are liberal or centrist, if you support an internationalist foreign policy, or
even if you are a conservative who lives in a populous state, you should look
on the Senate with loathing and apprehension.
Because of its role in screening executive and judicial appointees, the Senate
also has a disproportionate influence on all three branches. To make matters
worse, the senators' staggered six-year terms--intended to insulate the
enlightened statesmen of the upper house--have merely ensured that the Senate
would be out of touch with the times, as well as out of touch with the
American majority.
Original Contempt
Most of the Founding Fathers hated the Senate, which they created to satisfy
small states, like Rhode Island, that demanded equal representation in the new
federal government. In "The Federalist No. 22," Alexander Hamilton,
criticizing the Senate by implication, identified equal representation of the
states in the national government as one of the worst defects of the Articles
of Confederation. Allotting representatives on the basis of statehood rather
than population, he wrote, "contradicts the fundamental maxim of republican
government, which requires that the sense of the majority should prevail."
Hamilton predicted that "two-thirds of the people of America could not long be
persuaded, upon the credit of artificial distinction and syllogistic
subtleties," to be governed by a third of the population. "The larger States,"
he concluded, "would after a while revolt from the idea of receiving the law
from the smaller." If Hamilton returned today, he'd be amazed to learn that
the citizens of large states have not yet revolted against the excessive power
of the statelets in America's upper house.
In the early 1960s, the Supreme Court struck down malapportioned state
legislatures as unconstitutional, arguing that they violated the principle of
one person, one vote. In 1963, the Supreme Court declared in Gray v. Sanders
that "the conception of political equality from the Declaration of
Independence to Lincoln's Gettysburg Address to the 15th, 17th, and 19th
Amendments can mean only one thing-- one person, one vote." There you have it:
The federal judiciary determined that the structural principle underlying
state senates at that time--and the U.S. Senate today--was unjust and
unconstitutional.
For much of American history, white Protestant rural constituencies were
deliberately overrepresented in state legislatures in order to dilute the
political influence of urban dwellers, who were more likely to be European
immigrants. In the 21st century, the built-in corruption of our Senate may
cause a constitutional and racial crisis. Just as European immigrants in the
cities were stymied by rural Anglo-Protestant "rotten boroughs" in state
legislatures in the 19th century, so the coming Hispanic, black, and Asian
majorities in the megastates will have their votes diluted by the
overrepresentation of the white microstates in the Senate. As the Chicago
lawyer and writer Tom Geoghegan has pointed out, the House will soon look like
multiracial metropolitan America; the Senate will continue to look like white
rural America.
The Senate has always functioned as the last bastion of white supremacy. The
balance of slave states and free states in the Senate permitted the South to
preserve slavery and weaken the federal government for a generation after its
population had been surpassed by that of the North. In this century, Southern
senators filibustered anti-lynching legislation, and later blocked civil
rights reform. The gridlock they caused was one reason the federal courts
eventually seized the initiative on desegregation. If the emergent multiracial
majority in the United States perceives the Senate as the tool of selfish
white obstructionists, pressure will grow on the judiciary or the president to
take control and push through reforms that the majority needs and approves--at
the cost of further weakening our constitutional order.
Divide and Rule
Can anything be done about the Senate and its weighted vote for white
reactionaries? A distinguished New York senator once grumbled to me over
dinner, "You should write an article saying we should combine all those
Western states into one." Alas, we can forget about creating a single populous
"state of Deseret" by forcibly consolidating all those states with right-angle
corners. The microstate delegations to the Constitutional Convention of 1787
managed to booby-trap the Constitution to protect themselves. Article V states
that the American people cannot amend the Constitution to get rid of equal
suffrage for the states: "No State, without its Consent, shall be deprived of
its equal suffrage in the Senate." And Article IV, Section 3, provides that no
state can "be formed by the Junction of two or more States, or parts of
States, without the consent of the Legislatures of the States concerned as
well as of the Congress." Not one, but two poison pill provisions.
Yet there is a way to address the problem of Senate malapportionment, one that
doesn't require us to abandon the Constitution or to alter the
two-senators-per-state rule. Let's go back and read Article IV, Section 3, in
its entirety:
New States may be admitted by the Congress into this Union; but no new State
shall be formed or erected within the Jurisdiction of any other State; nor any
State be formed by the Junction of two or more States, or Parts of States,
without the Consent of the Legislatures of the States concerned as well as of
the Congress.
Why not form new states within the jurisdictions of the existing megastates?
Why not divide in order to rule? This is not as crazy as it sounds.
Commentator Walter Russell Mead has suggested that no American should have to
live in a state with more than 4 or 5 million citizens. If the
4-million-population rule were applied to the large states, California might
be subdivided into eight new states; Texas, five; New York and Florida, four;
Pennsylvania, Illinois, and Ohio, three; and Michigan and New Jersey, two.
Eight Californias? Five Texases? Four New Yorks? Why not?
With 25 new states in the union, the Senate would be far more representative
of the American people. The citizens of the nine largest states, who today
send a mere 18 senators to Washington, would soon have a total of 68 senators
to defend their interests against senators from microstates like Vermont and
Wyoming. The overall Senate representation of the voters in present-day
California, Texas, and New York alone would jump from 6 to 34. The House
functions with 435 representatives; a Senate with 150 members would be quite
manageable.
This scheme would be perfectly constitutional under Article IV--as long as the
small states as well as the populous states consented. Obviously the
megastates would have to strike a deal with the microstates, so that they did
not then subdivide into still tinier units (nanostates?). Under this proposal,
states like Wyoming would still have roughly four times greater representation
in the Senate than California's eight new states of 4 or 5 million citizens
apiece--and would have reason to be grateful that California didn't divide
into 32 new states. How could the microstate politicians be persuaded to go
along with the dilution of their unjust authority in the Senate? Perhaps the
megastate majority in both parties would give the microstate senators no
choice. The moment the Senate's malapportionment becomes a popular political
issue, both parties are likely to sacrifice the wishes of their Rocky Mountain
and New England minorities in order not to offend the megastate voters who
will decide which party controls the House and the presidency. Lose a State,
Gain a Caucus
In 1997, British conservatives paid the price for ignoring an equally vexing
problem of constitutional reform. The Conservative Party was decimated when
voters in Scotland and Wales flocked to the Labor-Liberal Democrat alliance
that promised local legislatures for the two regions. In this country, the
direct election of U.S. senators was proposed in minor-party platforms as
early as 1876; it became part of the Democratic Party platform in 1900; and it
was not achieved until the 17th Amendment passed in 1913. This proves that,
even in the United States, once a national majority is aroused, the Senate can
be reformed--eventually (for 20 years, the Senate did not even let the
amendment come to a vote, even though the House had approved it five times).
Selling subdivision to residents of Florida, New York, California, and other
populous states should be much easier. (I am referring to legal and consensual
division, of course, not to militiamen declaring that a ranch is a republic.)
The states of the American union do not correspond to real geographic, social,
or economic groups--and never have. Most of the state boundaries were drawn by
surveyors, with little or no regard to the actual contours of the landscape.
The map of the American states is like a section of wire mesh pressed down
atop an abstract expressionist painting. The high mobility among Americans,
coupled with the present high level of foreign immigration, renders state
patriotism tenuous. Indeed, the voluntary division of some states would
delight many of their inhabitants. In the 1960s there was a proposal to make
New York City a state. In 1992, voters in a majority of California counties
voted in favor of splitting California in two. Citizens of adjacent counties
in Kansas, Colorado, Oklahoma, Nebraska, and Texas recently sought to form a
new state, West Kansas. In Texas, it would be sad to see the Lone Star flag
lowered for the final time. But though the state song calls Texas an "empire
wide and glorious," Texas is not an arbitrary political unit, but a
distinctive cultural region, like New England or the Pacific Northwest. Lose a
state, gain a caucus.
Conservatives and populists who today denounce the centralized rule of the
statehouses in Sacramento or Albany or Austin should be delighted with the
idea of two dozen smaller states, whose legislatures would be more responsive
to their smaller, more manageable constituencies. Liberals, too, should be
pleased--voting power would shift away from almost exclusively white
hinterland electorates toward urban, Hispanic, black, and immigrant voters.
Libertarians could celebrate the choice of lifestyles offered by the states of
Orange and Marin. And neo-Progressives who want to eliminate redundant levels
of government might at last get their wish--at least in unitary city-states
like those based on New York City, Los Angeles, and Philadelphia. Provision
might be made for any state, once its population reaches 8 or 10 million, to
split into two new states of 4 or 5 million citizens. Depending on the growth
of the U.S. population and its density, the number of stars on the American
flag might rise from 50 to 75 to 100. Short of scrapping the Constitution
altogether, the voluntary division of the big states into new, smaller states
is the only way that the citizens of megastates can end their semicolonial
subjugation to an electoral minority in the microstates. It may also be the
only way to avoid a race war between the two houses of the U.S. Congress in
the 21st century, when the real "white house" will be the Senate. If the
majority cannot rule by constitutional means because of the Senate, then it
will rule by extraconstitutional measures, through an imperial presidency or
an imperial judiciary. We can use the Constitution to reform the Senate--or
trash the Constitution to get around the Senate. The choice is ours.
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