Tyranny of the Minority: The Increasingly Undemocratic U.S. Senate

November 5, 2018

 

This week, 33 Senate elections will be held to determine whether the Republicans will retain their majority or the Democrats will overcome the odds and polls to retake control of the chamber after four years in the minority. The election’s consequences could not be clearer: a Democrat-controlled Senate could in theory block all of President Trump’s potential Supreme Court picks. They would, for the next two years, deny the President the chance to repeal the Affordable Care Act, and could pass legislation to protect Special Counsel Robert Mueller and the Russia investigation. Regardless of who wins the majority of Senate seats on November 6th, however, the Senate will remain a deeply flawed body. 39.5 million Californians will still be allotted the same representation as almost 600,000 Wyomingites, and 28 million Texans will send just two Senators to D.C., like 1 million Rhode Islanders do.

 

So often, the Senate’s flaws are explained away as a necessity to ensure the ratification of the Constitution in 1787. The merits of this argument are valid, but should not be considered without also acknowledging the fears of those at the Constitutional Convention. Delegate Alexander Hamilton wrote about the proposed Senate in Federalist #22, considering that, “It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded... to submit their interests to the management and disposal of one third.” The first half of the hypothetical is now reality, as a majority of Americans live in just nine states- giving them eighteen votes in the Senate compared to the minority’s eighty-four. Furthermore, because of the Senate filibuster rules, the forty-one Senators representing about 11% of the nation’s population can halt a bill from even being considered by the “world’s greatest deliberative body”.

 

If the goal of our democratic institutions is to accurately represent the population, the Senate is a horrendous failure. The most populous states so often vote for Democrats, but the smaller, sparser and equally represented Plains and Mountain states swing towards Republicans. As a result, we are faced with a legislative body that is significantly more right-leaning than the country as a whole. It is this imbalance that helps explain many of the wildly unpopular decisions made by the Senators of the 115th Congress. A tax cut favored by just 24% of the national population on the day of its passage according to a NBC News/Wall Street Journal poll was easily approved by 51 Senators. A nominee to the Supreme Court less popular than any nominee by any President in over 30 years was confirmed with bipartisan support! Simply stated, the will of the nation is being overpowered by a smaller yet overrepresented minority. The Senate as currently constructed is an embarrassment to representative government.

 

Once thought of as the more calm and collected of Congress’s two chambers, the Senate fulfills its designed function. Though one party certainly reaps the benefits the Senate’s structure more than the other, each is responsible for this shift towards impulsiveness. Institutionalists such as Democrat Ted Kennedy and Republican John McCain have passed on, leaving behind a band of upstarts more interested in action than deliberation. The filibuster on lower-court nominees was ended by Democrats in 2013, with the Supreme Court filibuster following in 2017- a decision made by Mitch McConnell and Republicans. If President Trump gets his way, the legislative filibuster’s demise would be next, an outcome that would excite many of the more ambitious members of each party. The clear difference between our legislative chambers was once that the House required a simple majority of votes to get things done, while the Senate required two-thirds. With the Senate now approving so much by simple majority, what real purpose does it serve besides to disproportionately help these smaller, redder, states? It is no longer more considerate, it is no longer more measured, it is simply a deeply flawed body that would be unrecognizable to the Founders that created it.

 

Partisans on both sides are becoming increasingly aware of the country’s growing anger towards the Senate. The once fringe proposal of granting statehood to Washington D.C. and Puerto Rico is gaining traction with members of the mainstream Democratic Party. Doing so, while achieving the democratic purpose of giving representation to Americans without it, would also add a total of four potentially Democratic Senators that could help balance the Senate scales. A push to welcome these new states into the union would absolutely be fought against with the full might of the Republican Party. Because nothing will occur as long as President Trump is in office, it is likely that the furor over the Senate will only grow. The more frustrated Americans get with undemocratic nature of the Senate, the more likely it is that drastic changes to the chamber will be proposed. How long will it be until the second piece of the hypothetical that Hamilton posited in Federalist #22 comes true, and Americans tire of tolerating a Senate that puts the policy preferences of one-third of the populace over those of the other two-thirds?

 

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