In the 2020 election, voters sent Democrats to Washington with control of the House, Senate, and Presidency for the first time in 10 years. Yet knowledgeable observers understood that this status is fleeting. Out-of-power parties tend to perform better in midterm elections, and the Democratic majority is likely too narrow to withstand Republican gains in 2022. In short, last January, a two-year countdown began for Democrats to pass their legislative agenda. Democrats faced a choice: either act quickly or wait years, possibly even a decade, until the next opportunity presents itself.
What have Democrats done in the face of such a daunting deadline? Very little.
Despite having a number of important issues on the table — including voting rights, immigration, and climate change — so far, Democrats have bickered amongst themselves instead of generating results. The bill that includes most of the Democratic priorities, the Build Back Better Act, now seems to be dead in the water as West Virginia Senator Joe Manchin announced his opposition to the already whittled down version. Now, voting rights reform appears to be next on the agenda — though if the past year offers any indication of how negotiations will go, the chances of a bill passing that lives up to Democratic hopes seems slim.
Although plenty of blame has already been directed at the party, it is not all the Democrats’ fault. The anti-democratic orientation of several institutional features of the Senate work against their favor. First, Democrats have little room to spare, holding just a slim majority of 50 seats in the Senate. This is despite the fact that Democrats have done better nationally over the past three election cycles. The math works against Democrats, however. Because the Senate is proportioned for each state to have two senators regardless of population size and Republicans have trended better in the small states, Democrats are stuck at an electoral disadvantage. Second, incrementalist procedural features of the Senate make it harder to govern. The filibuster requires Democrats to garner 60 votes for many of their proposals. And the Senate parliamentarian has ruled against attempts by Democrats to pass some parts of their agenda through the budget reconciliation process, the only way around the filibuster without its elimination. In summary, the structure of the Senate makes it hard for Democrats to win office and harder to govern once they get there.
However, the central problem from an institutional design perspective is not that Democrats are disadvantaged. Rather the Democratic party’s shortcomings are merely illustrative of the larger issue — the Senate as an institution is insufficiently democratic. To resolve this problem, we would need to fix the Senate itself. To be clear, some aspects of the anti-democratic nature of the Senate are remnants of the design choices settled on by the founders, while others, including the filibuster, are more recent inventions. Nevertheless, the decisions of the framers of the Constitution are not above reproach.
Taking up this critique, one has to wonder, is a better system possible? Although it may be naive to dream, the following three proposals are a sampling of what potential changes to the Senate might look like.
- Eliminating the Filibuster
Starting with the most realistic reform, the first proposed change to the Senate would involve eliminating the filibuster, the procedural rule that in practice requires parties to overcome a supermajority threshold to pass legislation of significance.
The filibuster, according to its backers, protects minority interests; however, a growing chorus of important voices have recently come down against it. In May 2021, hundreds of academics penned a letter to the Senate arguing for filibuster reform. And politicians have begun to change on the issue as well. After decades of defending the filibuster as a long-time Senator, now President Joe Biden has changed his tune, saying he would “alter” the process.
These opinions are driven by concerning trends in the filibuster’s patterns of use. In the past several decades the number of filibusters has increased dramatically. According to data compiled by the Center for American Progress, in the Congress beginning in 1990 less than 50 votes were taken to override a filibuster, but by 2014 that number shot up to over 200.
Because the 60 vote threshold allows small factions to block bills with ease, the minority party gets to set the brakes on the governing party’s agenda. Members of the majority party then blame the other side for holding up legislation through anti-majoritarian procedures while the minority party members stand firm and blast their colleagues for not proposing more moderate solutions. Debates then ensue about which party is really at fault. It is the filibuster, however, that deserves our indignation.
The public has little patience for the image of a gridlocked Congress, little able to find consensus on matters of national importance. Therefore, it is no wonder that political support is dwindling for a roadblock that appears to encourage partisan finger-pointing over genuine deliberation.
Moreover, getting rid of the filibuster would be relatively simple as only 50 votes are needed to change the relevant Senate rules. There is also precedence of this type of reform. In the past, the filibuster rules have been amended to not apply to judicial nominations. The filibuster could easily be abolished if we follow in the footsteps of these reforms. Short of eliminating the filibuster, lawmakers could also carve out other issue areas to exempt from the procedure — something that has been suggested for bills relating to voting rights.
Although removing the filibuster would increase the strength of the majority party in the Senate, it would have no effect on who comprises the majority, which may be highly problematic considering that the structure of the Senate allows parties that fall far short of a national majority to get the majority of seats. The next reform, therefore, would remedy this problem.
- Alter the Seat Distribution
Currently, each state receives two Senate seats regardless of its population. As a result, people living in smaller states are granted disproportionate political power. An obvious solution to this problem would be to award more Senate seats to larger states to better account for the distribution of the US population.
Recently, a number of proposals have been floated that would fit under this reform description. This past summer, for instance, a group composed primarily of professors in the fields of law, political science, and history set out to write a new hypothetical constitution for the United States. Their final proposal advised restructuring the Senate so that every five million residents would be represented by one additional senator; though, per their proposal, no state could have more than six senators.
If this reform were implemented, the overall number of Senate seats would shrink to 94, based on current population estimates. 26 states would have one Senator, 14 would have two, six would have three, two would have five, and two would have six. Although the proposed seat distribution would be more equal than the current Senate’s arrangement, some states would still be overrepresented relative to their size. For example, Louisiana’s 4.6 million residents would possess the same amount of influence as Wyoming’s, despite the former being eight times as large. And California’s 39.5 million residents, in terms of raw numbers, would get the worst end of the bargain because no additional Senate seats would be awarded after a state’s population exceeds 25 million. In essence, nearly 15 million people would not be represented.
If it is deemed that even this revised distribution preserves too many inequalities baked into the current system, of course, the entire model could be overhauled so that the Senate would operate more like the House — though this would likely come at the cost of increasing the overall size of the Senate or weakening state-wide representation if districts were used to divvy up seats within states.
Additionally, the United States has a history of this type of reform at the state level. Prior to a series of Supreme Court decisions in the 1960s that codified the principle of “one-person-one-vote,” state legislative districts around the country were distributed extremely unequally, much like the U.S. Senate. Many state constitutions provided for representation based on towns or counties regardless of population size. The problem got so extreme that in California by 1960 the 6 million residents of Los Angeles County shared the same amount of influence as the 15,000 residents of the smallest district made-up of three countries. Now, rightfully, no such malapportionment exists, as the Supreme Court requires districts to be drawn with nearly exact equality.
Following the Supreme Court’s logic, if the distribution of state legislative seats was deemed too undemocratic to stand, so too should the US Senate’s seat distribution. Arguments could be made that small states deserve some additional compensation, like they receive in the model plan detailed above, but the demands of equality suggest that more people should generally receive more seats.
- Limit the Authority of the Senate in Lawmaking
Instead of altering the procedures or composition of the Senate, one potential workaround to the Senate’s inegalitarian structure would be to limit its influence. After all, who holds the balance of power only matters because the Senate possesses so much power in the first place. To reduce the importance of the Senate, potential reforms could choose to turn it into more of an advisory body.
This idea has been floated by the likes of NYT columnist Jamelle Bouie. As he explained in his newsletter last July, he would ideally “make the House the primary legislative body” by requiring “the Senate to take up House legislation and submit it to a vote that would be decided by a majority.” No longer would legislation succumb to a slow painful death in the Senate. Senators would be tasked with immediately voting House proposals up or down. If a vote was not taken within an allotted time frame, Bouie suggests, a bill should be “deemed passed.”
In such a system the Senate would not lose all of its responsibilities. Senators would still have oversight duties as well as authority over treaty-making and impeachment proceedings. Additionally, the Senators would still have what is essentially veto-power over legislation. Bills would need the Senate’s stamp of approval to pass. When it comes to drafting legislation, however, the House would be in charge, not unlike the already in place process for bills strictly related to raising revenue as specified by the Constitution’s Origination Clause.
Other proposals might weaken the Senate further still. Looking across the globe for inspiration, there are abundant examples of countries where the upper chamber has limited authority. For example, the German upper-chamber, the Bundesrat, can only overrule the lower chamber, the Bundestag, on certain types of bills while for other types of legislation, the Bundesrat can merely offer suggestions or make objections that can be overruled with a simple majority vote. Nevertheless, this authority means that even “weak” upper chambers can still exert influence over a country’s policy. As a result, some suggest eliminating the upper chamber altogether and embracing a unicameral system.
The debate surrounding whether which, if any, of the proposals laid out above are worth adopting is far from settled. Reasonable people can disagree about the potential helpfulness of these ideas, or even the extent to which a problem exists in the first place. Others might add to the discussion suggestions that would increase party discipline or allow for more parties in the model of parliamentary systems or alter the frequency between elections. More radical solutions call for democratizing politics by using direct democracy at the national level or employing ‘lottocratic’ systems. Finally, objectors may state that the real problem is that American politics is too democratic and ideas such as the direct election of senators established by the 17th amendment should be revisited.
All of these options, including the three presented above, come with potential benefits to the political system as well as costs if not carefully considered. Indeed, from the perspective of strengthening democracy, some of these ideas might backfire. Allowing the majority party de-facto unilateral control over policy might weaken checks that keep political decisions from straying out of line with the public opinion, and over-valuing proportional seat-shares might make it so minority opinions receive little to no consideration. On the other hand, the presence of too many checks or a dominant minority can result in policy inaction or policy that is inconsistent with what the public wants, as we observe today. The difficulty is in balancing these tradeoffs.
Although coming to conclusions about which of the proposed reforms are worthwhile is not easy, there is nevertheless value in having the conversation. Political conversations suffer when the mechanisms behind politics are out of focus. A sophisticated national discourse — something which we are very much lacking — must therefore include discussion of how our political institutions operate and how their anti-democratic features shortchange the public.
Of course, it is unlikely that the Senate will fundamentally change any time soon. The only one of these reforms that appears remotely possible is filibuster reform. Even still, the first step to change involves elevating constitutional questions — those typically left to scholars and judges — so that people can come to understand their importance. Around the world, citizens themselves have proven capable of engaging with these ideas, like in Chile wherein 2020 the public voted to rewrite the constitution and to empower a constitutional convention of citizens to do so. Let the United States follow suit. There is tremendous rot in our politics. Only by opening our imagination to new ideas can we change it.
Categories: Domestic Affairs