Abolish the Senate, but Amend the Amendment Process First

“Abolish the Senate,” declares author Daniel Lazare in the title of his latest essay for the socialist magazine Jacobin, in which he lays out a case for why the upper chamber of the U.S. Congress “needs to go.” Lazare vividly illustrates the ways in which the Senate is “by now the most unrepresentative major legislature in the ‘democratic world’” and draws attention to the fact that the same trends exacerbating that unrepresentativeness are simultaneously pushing reform farther out of reach. Yet his apparent belief that the Senate is the main obstacle to a new era of progressive dominance in Washington is misguided, since the features of the modern-day political scene that he lays at its feet would almost certainly persist in a post-Senate world.

Most of us are aware that the income distribution in the United States skews heavily toward the wealthy, and yet surveys have shown that we tend to grossly underestimate the extent of that skew. Likewise, it’s intuitively clear that sparsely populated states benefit from the fact that every state is constitutionally guaranteed the same number of U.S. senators, but it can be hard to appreciate just how much they benefit without taking a good look at the numbers. Lazare’s piece opens with a list of arresting statistics that make plain the magnitude of the disparity:

  • Although California has the same number of votes as Wyoming, its population, currently at 38.3 million, is now some 65 times larger. One Californian thus has 1.5 percent of the voting clout in Senate elections as someone living just a few hundred miles to the east.
  • Since a majority of Americans now live in just nine states, they wind up with just eighteen votes while the minority holds eighty-two, a ratio of better than four to one.
  • Thanks to the Senate’s bizarre filibuster rules, forty-one senators representing less than 11 percent of the population can prevent any bill from even coming to a vote.
  • Thanks to the requirement that proposed constitutional amendments be approved by at least two-thirds of each house, thirty-four senators from states representing just 5 percent of the population can veto any constitutional change, no matter how minor.
  • The same goes for treaties, which also require two-thirds approval.
  • The Senate “hold” system is even more unjust since it allows a single senator representing as little as one citizen in a thousand to stall a bill or executive appointment almost indefinitely.

At the time the Constitution was ratified, the imbalance was much less stark: Lazare himself notes that the largest state in 1790 (Virginia) had “only” twelve times the population of the smallest (Delaware).

Constitutional safeguards of minority rights are important, but representatives of five percent of the population ought not to be able to block a constitutional amendment. There is a broad consensus on this point, as there should be. Even Antonin Scalia, who I assume agrees with Daniel Lazare about approximately nothing else, is on the record as saying that the Constitution is too hard to change.

Lazare’s framing focuses on the advantages afforded to certain geographic groups by the structure of the Senate, but geography ultimately concerns him only insofar as it is a proxy for political beliefs:

Not unexpectedly, equal state representation also turns out to be racially unrepresentative. While Hispanics and racial minorities make up 44 percent of the population in the ten largest states, all of which are heavily urbanized, they account for just 18 percent of the ten smallest states (in which individual voting power happens to be some eighteen times greater)…

Other groups are also penalized…. [T]he LGBT community, whose most vocal activist base is typically in urban areas, does suffer from the Senate’s reign… The same goes for socialists, labor unions, health-care activists, conservationists, and others. All suffer under an exclusionary system that deprives progressive city dwellers of their rightful representation. Yet all are strangely acquiescent.

It is only because geography and political ideology are today so strongly correlated that Lazare is exasperated by this arrangement; he would presumably be perfectly content to live under a system in which socialists had 65 times the voting clout of everyone else! But if the tight link between geography and ideology is what makes the Senate such a problematic institution, then it is also the reason why excising it from the constitutional order will not be enough to bring about the progressive dominance Lazare seeks. Absent any other changes, abolition of the Senate will leave the Congress consisting solely of the House of Representatives, which at the moment is not exactly a bastion of leftism.

In the 2012 elections, Democratic House candidates won a combined 59,214,910 votes, or 48.4% of the total cast. Republican House candidates won 57,622,827 votes, or 47.1%, yet ended up with a 234-201 majority. The conventional wisdom holds that this GOP edge is primarily the result of partisan gerrymandering in the wake of the 2010 census. According to this line of argument, by packing Democratic voters into as few districts as possible and allowing them to win congressional races there by huge margins, GOP-dominated legislatures had essentially caused their opponents to “waste” votes that could have made contests elsewhere more competitive.

But Democratic voters, who Lazare correctly identifies as more likely to be “city dwellers,” also pack themselves into districts in a way that would tend to diminish their influence no matter how the boundaries were drawn. Washington University postdoc Nicholas Goedert wrote in a post at The Monkey Cage after the 2012 elections that “the Democrats’ loss in the House was caused largely not by gerrymandering, but [by] districting itself [emphasis added],” and that

there appears to be evidence at a state-by-state level that the disparity between the popular vote in the House and the distribution of seats is not just due to Republican gerrymanders, but due to a skewed geographic distribution of population putting the Democrats at an inherent disadvantage…

Other research points to the same conclusion: while partisan redistricting has certainly helped Republicans to cement an advantage in the House, the aggregation of Democratic-leaning voters in densely populated urban areas has simultaneously resulted in a kind of natural gerrymander.

It sounds like what Lazare would really prefer is a system of proportional representation, where seats are handed out to each party in direct proportion to their share of the popular vote. I wrote last year after the statewide elections in New Jersey that the Republicans were justified in their grousing about not having taken over either chamber of the legislature despite having garnered more votes, so I’m sympathetic to electoral reforms along these lines. (Proportional representation has some problems of its own, but there are alternative setups like the mixed-member system that can work to mitigate these.)

As I mentioned at the outset, one of the most insightful pieces of Lazare’s analysis is his observation that the ever more pronounced concentration of the population in large metropolitan areas will tend to make the Senate more unequal even as it makes it harder to reform, because of the requirement that two-thirds of the Senate itself approve any prospective constitutional change (unless a constitutional convention is called by two-thirds of the states, something that has never been pulled off in U.S. history). Amending the Constitution requires a degree of consensus and political will that is almost impossible to imagine us achieving in this day and age. Why pour such unbelievable amounts of energy into a campaign to enact a change that will not even solve the problem it was formulated to address?

In my opinion, the only constitutional amendment worth pursuing at this point is one that makes it easier to amend the Constitution. Altering the structure of our government, even in apparently minor ways, is not something to be taken lightly and should be very difficult. But it should not be impossible. Many states make use of amendment mechanisms that are demanding without being unusable. Common features of these mechanisms include requirements that the legislature sign off on an amendment multiple times in different sessions or that it be approved in a popular referendum, sometimes even by a supermajority of voters.

Once we’ve amended the amendment process and adopted a more streamlined procedure, we can then debate further changes with a reasonable amount of confidence that those debates will have some chance of producing actual results. This approach could even improve the odds of making Lazare’s vision of a Senate-free world a reality. Reformers are much more likely to win an argument about whether to make it easier to tweak the Constitution, something from which any constituency could conceivably benefit somewhere down the road, than they are to prevail when explicitly demanding that small states voluntarily relinquish their perks under the current arrangement.

I share Daniel Lazare’s aim of making the American political system more responsive to the needs and preferences of the voters, though I happen to see that objective as an end in itself and not just as a strategically useful tactic for facilitating a socialist victory at the polls. But even granting that this is a worthwhile goal, his plan for achieving it is inadequate to the task.

Were the effort to bulldoze the Senate somehow to succeed, the subsequent realization that the problems highlighted by the abolitionists still remained would only engender even more cynicism about the ability of any popular movement to ever deliver meaningful constitutional reform. And if Lazare is puzzled by how “strangely acquiescent” people are to the status quo now, then I can only imagine how bewildered he would be then.