The Constitution (17th amendment) says that each state gets two Senators:
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote.
What that means is that the citizens of Wyoming have FORTY TIMES MORE POWER in the Senate compared to each California citizen. As if that were not enough, the Senate has rules that allow 40 Senators to block many actions. Because the GOP has almost all of the smallest states, that means that Senators representing about 10% of the people can block national progress every time. That is not right, and is perhaps the biggest failure of our “founding fathers”. They simply did not anticipate a world with such a divide between the populated states and the unpopulated ones. Nor could they have conceived of the influence of money by the oligarchs and corporations to exploit this flaw in their grand design.
This must be fixed. The chances of a change in the Constitution are slim at this stage, so I look for things that could work around the problem, at least partially. We have a similar situation with the Electoral College — a structural imbalance that violates the equal vote principle. There is a way to fix that problem and the solution is within reach with the National Popular Vote initiative. We should all be supporting that. Action in 13 more states will make that happen.
But the Constitution says each senator will have “one vote,” so I don’t see a similar solution being possible to fix the structural Senate unfairness. There is a range of possible solutions, but most of them are impractical, at least for the next 10-20 years. I would like to look at several ideas that I think could be practical goals.
STATEHOOD FOR THE UNREPRESENTED
The residents of Washington D.C. have no representation in Congress at all. There might be the basis for a lawsuit under the Equal Protection clause of the 14th Amendment that argues the citizens of D.C. do not have the protection that is inherent in legislative representation. Beyond that, we should be pushing for statehood for D.C. These efforts are already underway and we should elevate the volume on this.
Likewise, Puerto Rico should also be a state. The American taxpayers are called upon to support P.R. during crises. P.R. should be a state.
These are two minor changes — 4 additional Senators. That would not fix the structural imbalance, but it would reduce the tyranny by the smallest red states a little, and is worth doing on principle.
FEDERATIONS OF STATES
A more sweeping idea would be for the largest states to evolve into “federations of states”. California, Texas, New York, and Florida could become legal entities that are recognized as multiple states sharing a federated government. There would continue to be government at the federated level in Sacramento, Austin, Albany, and Tallahassee. But for the purposes of Senate representation each of these federations would have 4, 6, 8, or 10 Senators.
I admit that is far fetched, and I don’t think it deserves much more than “what if” discussion at this stage.
ECONOMIC AND GOVERNING COMPACTS
Something that is more plausible, IMHO, is for the progressive states to form an alliance that effectively shifts some of the power away from Washington DC. We already have such an alliance with regard to clean energy credits. This structure could be expanded to the point that the progressive states could have real negotiating leverage with Washington.
If we continue with this movement toward the “taker” states being practically all Republican — and grossly over-represented in the Senate, I think such economic compacts are likely to evolve over several decades. That is something deserving a broader discussion and not really the point of this article.
POPULATION BASED SENATE RULES
This is the main idea I wanted to explore with this article. We have two problems regarding Senate representation. One is the structural advantage given to the low-population states. That is bad enough. But it is then compounded by Senate rules that allow any 40 Senators to block action.
There is certainly some wisdom in requiring a super-majority in some cases. I support that. But when that super-majority can be blocked by the Senators representing only 10% of the people, that means that we effectively have a 90% super-majority requirement in some cases. That is not outrageous.
From time to time, people talk about using the ”nuclear option” to eliminate the super-majority requirement altogether. I am not in favor of that. The Constitution says that a Senator gets one vote, but does not say a vote on “what”. I would argue that the Constitution requires each Senator to have an equal vote on any legislation passing out of the body. But it is not necessarily the case that Senators should have the same “one vote” in procedural matters. There are all sorts of Senatorial privileges that are not available to all Senators. For example, committee chairs have extra rights. It is up to the Senate to define its own operating rules.
My proposal is simple. Change the Senate rules to define cloture as requiring the votes of Senators representing at least 60% of the people. We would still require 51 Senators to pass any legislation, but the little red states could not sabotage the works when the the will of 60% or even 80% of the people is at stake.
I cam certainly not a Constitutional or legal expert, or an expert in the traditions of Senate rules. But I would appreciate any thoughts about such a rule change in the Senate. It seems to me the Senate is at liberty to define its own procedural rules ans has done so on hundreds of occasions. I don’t see where this would be any different.
