On a lazy, warm evening in New Orleans in March of 1994, a group of academics were ambling back to their hotel from a convention on constitutional design, when someone raised this question: “What are the stupidest features of the Constitution?” After some discussion, they decided to convene a symposium of leading constitutional scholars on this issue. Many answers were submitted, but one of the most frequent ones was the clause in the Constitution stipulating that the Senate “shall be composed of two Senators from each State.” This is not surprising. The two-senator rule blatantly violates a whole range of important democratic norms, including majority rule, fair representation, and one-person/one-vote. Also not surprising, only one other leading democracy – Australia – has seen fit to follow the U.S. example of ensuring equal Senate representation for every state irrespective of its population. All the others seem to think it is a terrible idea. Turns out they are right.
The Problem: Misrepresentation and Minority Rule
The 40 million people who live in the 22 smallest states get 44 senators to represent their views. The 40 million people in California get two.
The main reason the “two senators per state” arrangement is undemocratic is that it produces extremely unfair representation for American voters. The fact that both large and small states both get two senators means that the citizens in small states get many more representatives and much more power in Congress than those in large states. To get a sense of how remarkably unjust this situation is, consider this: the 40 million people who live in the 22 smallest states get 44 senators to represent their views and interests. The 40 million people in California get two. Or consider that the majority of Americans (51%) now live in the nine largest states – and yet they get a mere 18% of the seats in the Senate. There is simply no way that this can be seen as fair representation.
Another way to think of this problem is in terms of unequal voting power. In a democracy, citizens are supposed to have the same amount of voting power. It would be ridiculous if some citizens had thirteen votes and others had only one. But this is exactly the kind of disparity in voting power created by Senate elections. For example, in California, 40 million residents get to elect two senators. But right next door, in Nevada, its 3 million residents get the exact same representation. This means a vote in Nevada is worth about 13 times as much as a vote in California. It is hard to think of a more egregious violation of the principle of one-person/one-vote.
The result of this kind of misrepresentation is a strong political bias and, often, minority rule. The small state bias produces a Republican bias. That is because most small states tend to be overwhelmingly rural, white, and conservative. Think North Dakota, Maine, and Wyoming. Over-representing these small states means over-representing the Republican Party. In the six-year election cycle that produced the 2019 Senate, the Democratic senators actually won 4.5 million more votes nationwide than the Republican senators. And, on average, each Democratic senator won 30% more votes than each Republican senator. And yet the Republicans won the majority of the seats and control of the Senate – a flagrant case of minority rule. As political scientist Matthew Shugart has observed, this was not an odd occurrence in the Senate: “No Republican seat majority since at least 1952 has been based on a plurality of votes cast.”
This problem of minority rule could be potentially much worse. Citizens from the smallest states that represent only 17% of the U.S. population can elect 51 senators and effectively rule this body over the objections of the other 83% of us. And amazingly it only takes 42 senators from smallest states representing 10% of the population to uphold a filibuster and effectively block any legislation favored by the vast majority. In no other Western democracy is the potential for this kind of misrepresentation and minority rule so extreme.
Other Democracies Do It Better
Almost all other advanced Western democracies do not have these serious problems with their upper house. Some are unicameral and so don’t even have an upper house at all — like Denmark, Finland, Iceland, Israel, Luxembourg, New Zealand, Norway, and Sweden. Many others have a weak upper house with little or no power to block legislation – like the House of Lords in Great Britain, which only has the power to stall legislation for a time. Other major democracies with weak upper houses include, Austria, Belgium, Canada, France, Germany, Ireland and the Netherlands. These weaker bodies cannot produce the same problems we have with our Senate.
No other advanced democracy has put such an unrepresentative political institution at the heart of its political system.
And only Australia, Canada, Germany and Switzerland have federal systems like the U.S., with subnational entities likes states that could serve as a basis for upper house representation. And among those, as mentioned earlier, only Australia has followed our example and has equal representation for states in its Senate. Importantly, in none of these countries is the mis-representation as egregious as it is in the U.S. For example, the ratio of the largest state’s population to the smallest state’s population is 68 to 1 in the U.S. While in Canada it is only 21 to 1, and in Australia it is 13 to 1. In sum, no other advanced democracy has put such an unrepresentative political institution at the heart of its political system.
Why It Matters
The results of unequal representation and minority rule in the U.S. Senate ripple out and have many disturbing political effects. First, and probably most obviously, this kind of Senate often produces policies that disproportionately favor small states and their citizens. For example, many of the smallest states, like Alaska, North Dakota, South Dakota, and West Virginia get much more back from federal programs than they pay in federal taxes. While many large states, like California, Illinois, New Jersey, and New York pay a lot more in federal taxes than they get back.
More importantly, because of its undemocratic nature, the Senate has become the graveyard of many policies supported by the majority of Americans. This questionable tradition goes back far into the previous century. The Senate blocked ratification of the League of Nations treaty after World War I, stalled anti-lynching and civil rights legislation after World War II, and killed the Clinton universal healthcare program in the 1990s. More recently in 2019, the Democratic House passed a whole raft of bills supported by most Americans on the issues of gun control, global warming, equal pay for equal work, controlling violence against women, rebuilding vital infrastructure, lowering prescription drug costs, preserving net neutrality, and voting and campaign finance reform. All were killed by a Republican Senate whose leader, Mitch McConnell, bragged that he wanted to be called “The Grim Reaper.” If you are wondering why the U.S. lags behind most of our peer democracies in all of these policies areas, the minority-controlled Senate provides much of the answer.
The Senate as a legislation-blocking institution carries with it a strong, built-in ideological bias. As Noah Feldman, a professor at Harvard Law School, has explained:
You’ve basically always had two parties in the country where one wants change and the other is more supportive of the status quo. The Senate is an institution that stops change. That’s how it’s designed, and that is always going to hurt that party that wants change, the activist party. Today, that’s the Democrats.
Whether or not we have change in this country is something that should be decided by the public in elections, not by the inherent design of government institutions like the Senate.
More Problems of Senate Minority Rule
The minority rule built into the Senate not only distorts legislation, it also affects other important forms of political power wielded by that body. For example, over-representation of conservative smaller states also gives them increased power to block constitutional amendments. It only takes 34 senators to torpedo an amendment, and that number can represent 17 small states with as few as 7% of the U.S. population. It makes an amendment process that already favors minority rule even more anti-democratic. Amendments to abolish the Electoral College, for example, stand little chance of passing when small states control the process.
More disturbing however, is how minority rule in the Senate affects Supreme Court appointments. It gives less-populated conservative states much more say over who is appointed to this incredibly powerful body. For instance, Justice Thomas’ appointment was opposed by senators representing the largest states, but he was still able to join the Court because he was supported by senators representing the small states. More recently, in 2016, the Senate Republicans who blocked President Obama’s nominee to the Court, Merrick Garland, represented 20 million fewer people than the Democrats who supported him.
Justice Brett Kavanaugh was approved by Senators who represented only 45% of the American public.
When President Trump’s nominee, Neil Gorsuch, was approved by the Senate in 2017, the 45 Democratic Senators who opposed him actually represented 25 million more Americans that the 55 Republican Senators who supported him. This happened again with Trump’s second nominee, Brett Kavanaugh, who was approved by Senators who represented only 45% of the American public. In a sense, both of these appointments were doubly democratically illegitimate. They were nominated by a president who was a product of minority rule – he lost the popular vote to Hillary Clinton – and then approved by minority rule in the Senate. And these minority appointments have swung the Court decisively to the political right for the foreseeable future.
A Bogus Justification
So how can this clearly undemocratic arrangement be defended? Some argue that without equal representation in the Senate, large states with more representatives would pass policies not favored by small states. Of course. That is how majority rule works. Should we be aware that this can sometimes become a “tyranny of the majority?’ Again, of course. But creating a Senate that greatly overrepresents small states is a cure that is worse than the disease. In trying to stop a potential tyranny of the majority, this arrangement succeeds in enshrining a tyranny of the minority. Majority rule is far from perfect, but minority rule is clearly worse.
Some defenders of the Senate have suggested that we should not question the wisdom of the Founding Fathers in fashioning the “Great Compromise” that created this institution. But in fact, most of the framers of the Constitution originally opposed this system, with only five of the thirteen states strongly supporting it. Alexander Hamilton was particularly incensed with the idea that all states should have equal legislative representation. Writing in Federalist 22, he complained:
Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts, or Connecticut, or New York; and to Delaware an equal voice in the national deliberations with Pennsylvania, or Virginia, or North Carolina. Its operation contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail.
In the end, the two-senator rule was adopted – primarily because the small states threatened to drop out of the whole process if they did not get their way. It was more a matter of political extortion than of reasoned compromise.
The States Do It Better Too
Before 1964, many state senates were also misrepresentative – giving sparsely populated rural districts the same representation as densely populated urban districts. But that year, the Supreme Court declared that arrangement unconstitutional. The justices ruled that it clearly violated the rights of citizens to equal representation and equally weighted votes. This decision has not proved to be an unpopular one and has not generated any organized political effort to overturn it – in contrast to some controversial Court decisions in areas like abortion and campaign financing. Interestingly, most constitutional scholars agree that if the two-senator clause was not in the constitution, it would have been declared unconstitutional decades ago for the very same reasons it was ruled illegal in the states.
Solutions for the United States
Solutions to the problem of a grossly misrepresentative Senate are many and obvious – at least in theory. We could simply follow the example of many European democracies and just abolish the Senate. Senate-less democracies seem to get along fine without this extra legislative institution. Or less radical, we could greatly reduce the Senate’s powers, which many European countries have also done. This solution might make the most sense to Americans concerned about this problem.
Senate-less democracies seem to get along fine without this extra legislative institution.
Another alternative would be to keep the Senate and simply try to reduce or eliminate the conservative small state bias. We could go the way of the states and simply make senate representation proportional to population. So, like the House, larger states would have more senators than smaller states. However, this raises the obvious question of why we would need two legislative bodies representing states’ citizens in exactly the same way. Seems redundant.
There are some more creative suggestions. One is to give state senators different numbers of votes on legislation depending on the population of their state. Senators from small states would get one vote each, but Senators from larger states would get 20, 30, or 40 votes. It has also been suggested that we might break bigger states up into several smaller states to increase the number of Senators representing its citizens. California, for instance, might agree to be broken up into three or six separate states.
Chances of Reform: Don’t Hold Your Breath
Solving the problem of the egregious misrepresentation in the Senate is unlikely to happen soon. The main obstacle is the Constitution. Since the representation of states in the Senate is stipulated by the Constitution, any attempt to change it would necessarily require a constitutional amendment. But of course this is a very difficult process, requiring the approval of three-quarters of the states and two-thirds of the House and Senate. Ironically, then, an effort to remedy the minority rule built into the Senate would probably run afoul of the minority rule built into the amending process. It would take only 13 of the small states to block such an amendment.
But the barrier to reform for the Senate is actually higher than that. The Constitution says that “No state, without its consent, will be deprived of its equal suffrage in the Senate.” This is widely understood to mean that any attempt to change this arrangement through amendment would fail if even one state failed to support it. Talk about minority rule!
This would seem to be check and mate against any possible solution to this problem. But never underestimate the imagination of political reformers. One suggestion is to first pass an amendment eliminating the section in the Constitution quoted above. This would then allow for a second amendment to make this institution more representative – such as giving more senators to larger states. But many constitutional scholars doubt this approach would be approved by the Supreme Court.
Of course, we could keep the arrangement by which each state gets two senators, but simply pass an amendment that would render the Senate largely powerless. As seen above, this is not an unusual arrangement, with many Western democracies having upper houses with very few real powers. Presumably, an amendment to do something similar in this country would not be able to be blocked by one lone state, and so is at least a somewhat more viable possibility.
However, given the severe constitutional obstacles, any road to reform will be very difficult. Of course, there have been times when a large amount of public pressure has forced needed amendments through. And that is not totally out of the question for this problem. After all, the public rose up once before and demanded a constitutional amendment to reform the Senate. Originally, senators were not popularly elected, but chosen by state legislatures. Public dissatisfaction with this lack of public accountability grew, and the demand for the popular election of the Senate became part of the platform of the Populist and Progressive movements – and eventually resulted in the passage of the Seventeenth Amendment in 1913.
There is currently little public awareness or concern about the problem of our unrepresentative Senate.
Unfortunately, there is currently little public awareness or concern about the problem of our unrepresentative Senate. Few citizens seem to even know about the problem – in fact 39% of Americans don’t even know that each state has two senators – so it is not exactly high on the public’s political agenda. Without a substantial amount of public outrage and mobilization, this political problem has virtually no chance of being addressed.
One ray of hope: the problem may eventually get so bad that it can no longer be ignored. The population disparities between the states are increasing. At the founding, the population ratio between the largest and smallest state was 13 to 1. Today it is 68 to 1 and is projected to grow to 154 to 1 by 2100. By 2040, it is estimated that the 70% of the U.S. population living in the large states will get only 30% of the representation in the Senate, while the 30% living in the smallest states will get 70% of the representation. And by 2050, it will take only 5% of our population to elect a majority in the Senate! At that point, Senate decisions could become so obviously unfair, undemocratic, and obstructionist that reform efforts would have to be taken more seriously.
For the time being, however, it seems that we are stuck with our undemocratic Senate – a powerful federal policymaking body designed to frustrate the popular will.
read the next issue: 3. Built-in Gridlock