Monday, November 12, 2018

How Much of a Problem is the Senate?

by Michael C. Dorf

In the last week, various liberal law professors and others in whose circles I move have taken to using the midterm election results to decry the US Senate. They point out -- correctly -- that nine million more people voted for Democratic Senators than for Republican Senators; yet the Republicans probably gained at least one seat and at least held their edge. That's not exactly a fair comparison (for reasons described here), but it does capture the bigger picture: If we look at all three classes of Senators, we find that Republicans have more Senators, even though the Democrats represent more people.

Is that a problem? Well, if one is a Democrat (as I am) of course it's a problem. Republicans will continue to confirm very conservative judges and justices; and when there's a Democratic president again, Republicans' advantage in the Senate may enable them to block Democratic appointees (again). Meanwhile, should the Republican edge hold into the next Democratic administration (and even if it does not, absent abolition of the filibuster for ordinary legislation), it will permit Senators representing a minority of the country to block legislation favored by a Democratic House majority and a Democratic president. Thus, I share the dismay of many of my fellow Democrats at the impact of the Senate on the laws we have and how they are interpreted.

But I do want to raise a few questions about the current bout of Senate skepticism that rests on first principles.

Let's begin with the theoretical. A bicameral legislature in which one house is apportioned more or less based on population and the other based on political units seems like a reasonable design for a federal system. To be sure, one might not want a federal system. A federal system in which the various units represent distinct ethno-cultural groups may tend to civil war (Yugoslavia), breakup (Czechoslovakia), or resentment by the minority groups of the majority (Belgium, Canada). Meanwhile, where differences between states are modest, one might conclude that a federal system is unnecessary. One could still have decentralization of various responsibilities within a national unitary system.

However, there are reasonably well-functioning federal systems: for example, Australia, Canada (notwithstanding Quebec), Germany, Switzerland, etc. Where there are good reasons to have a federal system, then something like the Senate as one of the houses of the national government is, if not the only plausible approach, at least defensible.

Are there good reasons for the US to be a federal system? Maybe not today, but as a historical matter, the US as we know it would not have come into existence as a national unitary system. Indeed, it almost didn't come into existence even as a federal system, because even the structure with which we ended up was too centralized for a sizable chunk of the electorate.

Maybe the world would have been better off had the US been smothered in its cradle. In The Federalist, Publius warned that if the US fractured, its parts would be swallowed up by the European powers. That might have been for the better. For one thing, slavery might have ended substantially earlier than it did. But we can't possibly know how the world would have unfolded over the last 24 decades if the US did not survive as a unit. At the very least, we can pretty confidently say that, given butterfly effects, neither I nor any of the people reading this blog would exist in such an alternative world.

Moreover, even viewed from a presentist perspective, federalism has virtues. If Matt Whitaker terminates or hobbles the Mueller investigation, federalism allows newly elected NY AG Tish James to use state authority to investigate crimes that Trump and his minions may have committed. More broadly, federalism works as a hedge. For me, living in a very blue town in a blue state substantially mitigates the impact of national policies.

My point is not that American federalism is the best of all possible systems or even all-things-considered justified. My point is simply that American federalism has benefits as well as costs, and insofar as the Senate is an accommodation for federalism, it accommodates the benefits as well as the costs.

To my mind, there are two main problems with the US Senate. First, the ratios between the largest and smallest states are just too large to justify exactly equal representation. And second, Article V makes it effectively impossible to adjust those ratios to give small states less, but still disproportionate, representation. Ordinary amendments to the Constitution are extremely difficult. Changing the Senate is effectively impossible, because Article V requires every state's consent. The small states that would lose any of their substantial over-representation will not consent to an amendment that reapportioned the Senate on anything closer to a population basis.

Is there a way around that? In recent years, judicial review of constitutional amendments has spread around the globe, so that constitutional courts in various countries have developed doctrines that allow them to say that a provision amending the constitution is invalid because it deviates too far from core principles. I am extremely dubious of the prospect of the US Supreme Court (or even a single justice) adopting such principles, but even if I thought that possible, it's very far-fetched to believe that any justices would say that a central provision of the original Constitution (such as the Senate or the Equal Suffrage Clause) is itself unconstitutional.

As a practical matter and for the foreseeable future, we are stuck with the Senate. We may or may not also be stuck with the Electoral College, which allows minority vote-getters like G.W. Bush in 2000 and Trump in 2016 to win election, and uses a formula that overweights small states, albeit not nearly as much as the Senate. The EC can be eliminated by an "ordinary" constitutional amendment and perhaps circumvented via an Interstate Compact.

Meanwhile, does the continued existence of the Senate spell doom for Democrats? In a word, no.

The Senate over-represents small states. It does not--or at least not inherently--over-represent Republicans. For one thing, 4.5 of the ten smallest states by population (VT, DE, RI, 1/2 ME, NH) are represented by Democrats or Independents who caucus with Democrats (Bernie Sanders and Angus King). If we follow the Spinal Tap Rule and go to 11 (thus including Hawaii), we find an even split of 11 Democrats and 11 Republicans representing the 11 smallest states.

To be sure, it's true that the overall impact of the Senate favors Republicans, mostly because of how heavily concentrated Democrats are in California, Illinois, New York, and the mid-sized states of New England, whereas so many of the smallish but not tiny states are strongly Republican. But even that's not inevitable. To see why, let's think about some basic political science and economics.

Duverger's Law holds that a first-past-the-post electoral system will lead to two dominant parties. For much of the 20th century, the two parties were ideologically close to each other. That, in turn, is what one would expect from Hotelling's Law.

If this is unfamiliar to you, consider a fairly standard illustration of Hotelling. Imagine a beach that is 300 meters long and two mango vendors competing to sell bathers fresh mango snacks. To maximally serve customers, the vendors would be situated at the 100-meter and 200-meter points. However, that's not a stable equilibrium. Vendor 1 (at the 100-meter mark) will realize she can eat into Vendor 2's market by moving closer to Vendor 2. By doing so, she will still get most of the business from her side of the beach and she will now get some of the business from the other side of the beach. Likewise Vendor 2 will make the same realization. The result is that eventually the vendors will cluster at the 150-meter mark. Don't believe the theory? Visit the flower district, the diamond district, etc.

That's Hotelling in economics. Politics works roughly the same way, except that political "markets" are bifurcated. To sell your political product to the general public, you must first sell it to primary voters. In recent years, competitive primaries, especially in the Republican Party, have dragged the parties away from the general election midpoint. So has the tradeoff in the general electorate itself between appealing to independents (by going close to the midpoint) versus mobilizing the base for turnout. If the Democrats and Republicans were at 145 and 155 respectively in the mid-twentieth century, this new dynamic has increased the spread between them.

But here's the thing: The parties' ideological positions are dynamic. There was nothing inevitable about one party that is socially conservative and economically libertarian versus another party that is socially liberal and economically (modestly) redistributive. And needless to say, there are many more than two dimensions along which we could slice politics. Over time, we can expect both parties to adjust their positions in order to maximize their respective turnout of shifting populations of base voters and their appeal to independents/centrists. If Republicans are getting 70% of the vote in Kansas by standing at the 250-meter mark (but not at 300, see Kris Kobach!), expect Democrats to move to at least 150 and maybe something more like 175.

To be clear, I'm NOT taking a position on the battle within the Democratic Party between, for lack of better terms, the Clinton and Sanders wings. The formula for appealing to both activists and swing voters could be to move left on some key issues, partly because existing divisions may not map clearly onto left versus right. My point is not that there will be any particular change in positions but that there will be change. A party that consistently loses under the existing rules and cannot change the rules (as we cannot, per the Equal Suffrage Clause) will change what it stands for in order to attract new voters.

That's not necessarily a pretty prospect for a certain sort of liberal (like me). The Democratic Party that ends up successfully appealing to voters we now think of as solidly Republican will be truly populist (by contrast with Trump's mostly faux-populism) but also could be substantially more friendly to racism, xenophobia, and other ills than the current version of the Democratic Party that loses too many of those voters.

So yes, the Senate is a problem, but it is not a problem that systematically disfavors Democrats, except in the short run. Although it is common these days to refer to political attachments as tribal, and although there is no doubt some truth to that characterization, over the long run the parties are mostly just means of grouping and packaging issue platforms.


David Ricardo said...

Having been at Chapel Hill when Harold Hotelling was at UNC I am astounded but pleasantly surprised that there is indeed at least one other individual in the world who knows of this extremely brilliant economist besides myself.

That aside, I think Mr. Dorf understates the negative impact of the disproportionate representation that is the United States Senate. This is because the Senate is not equal to the House; it has a far greater impact on government, particularly in the appointments area. The judiciary is controlled by the Senate, and the Senate is the least democratic part of the fedeal government.

Given McConnell's blatant disregard for decency and integrity by designing and implementing a strategy that holds open judicial positions, including Supreme Court seats, for Republican Presidents it is entirely possible that going forward we will have a 9 to 0 ratio of virulent conservatives on the Court. It could be 7 to 2 by the end of 2020. I am not sure what one calls this, but one does not call it democracy or even the hallmark of a republic.

Shag from Brookline said...

Here's a long shot on the Senate: Let's day McSally is defeated in AZ, the Gov. of AZ recognizes the voters' anti-Trump 2018 message and instead of appointing Trump supporter McSally to fill the remaining McCain term (post Temporary Sen. Kyl) with ... [drum roll} ... Sen. Jeff Flake, yes, a Republican, but one who may serve as a greater challenge to Trump than McSally (although Trump has soured tad on McSally).

Meantime, Democrats cannot let up and must continue the midterm momentum that just might swing the Senate with 2020 foresight. Constitutional amendments, including via a convention, if appropriate, are long range issues. Democrats must focus on Trump as a national security risk (further evidenced by Trump's trip to France last week where apparently his bone spurs prevented him, during rains, to attend proceedings honoring Americans who died in France during WW I).

Shag from Brookline said...

Mike's closing paragraph begins with this:

"So yes, the Senate is a problem, but it is not a problem that systematically disfavors Democrats, except in the short run."

If Neil were to comment, he possibly might reference Keynes' "In the long term, we're all dead." While that's true for us mortals, the Constitution, despite its flaws with the Senate, has improved progressively over the years, sometimes two steps forward, one step back. We're stalled right now, but we can still move forward. As for Trump, a reminder from a wise man who said "Time wounds all heels" Trump's Achilles heels will spur us on.

JS said...

This is probably a really stupid idea, but how about every 10 years when they conduct the Census, instead of just reapportioning representatives among the states we realign state boundaries so that all the "states" have roughly equal populations (± 10%)? Each "state" would have 2 Senators and either 8 or 9 representatives.

If it would cost too much to do it every 10 years, how about every other Census ... or every third Census?

Edwin Hurwitz said...

I think this article assumes that both parties are operating in good faith to a much greater degree than they are. It discounts voter suppression, demonization of liberals, straight up lying, inciting disillusionment in government, campaign finance problems (particularly $=speech and the narrowing of the definition of corruption) and other tactics to radicalize an extreme electorate and move the entire field rightward.

Sure, moving one's political mango stand further down the beach isn't good faith, but that's small peanuts compared to what's happening, to mix a food metaphor.

The system is broken because one party has no real interest in actually governing for the benefit of all Americans and residents, but only in weaponizing our government for profit.

Joe said...

I would feel better about the situation if one party wasn't acting like a bunch of illegitimate toadies where the "moderate" view is lip service at being concerned while not doing anything (Collins apparently felt she provided too much there, so when high Republican in her Kanvanaugh speech). Cf. the Carter years, where Democrats actually clashed with the guy regularly. The system is such that total unity across branches still isn't there but it's fairly close. And, the lack of Republican senators with true integrity is glaring. And, of course, the executive branch is headed by an incompetent troll.

I can find some reasons to support our overall system but find how it has been carried forth this century problematic and might be time for change. We didn't have an amendment since the early 1970s (the 27A doesn't really count) after all. Two elections (both tainted in certain ways at that) where the minority popular vote presidential candidate won doesn't help. The last time that happened was the late 19th Century, noting Clinton has a plurality. And, the presidency wasn't the same in 1888.

James Madison and others were for a Senate that was divided by population though like the House, representing each state (though if the Dakotas got one senator, e.g., that wouldn't be an issue really) it wouldn't be completely equal. The federal system itself favors red states since a NY and CA has heavy populations & blue/purple states are more likely (though not completely -- red states do have Democratic governors) to elect opposite party governors or have more evenly divided legislatures (even NY had a Senate controlled by Republicans recently, which stopped the passage of various liberal laws including GLBT and voting rights).

It's hard to amend the Constitution to fix this though Art. V. doesn't block changing the nature of the Senate. We can also remove the provision requiring two senators per state first. Finally, we can simply change it as a matter of justice. (The Constitution itself did that as to Articles of Confederation's strict amendment rules.)

Finally, I don't know how much positivity we can have per the current situation. Democrats winning in 2020 regarding the Senate is possible but far from easy. Meanwhile, for years, the Republicans will fill the courts, helped by their own blocking of Obama's nominees up to the Supreme Court. Any suggestion this warrants Democrats to "pack" the courts somehow to even things out is seen by various liberal professors etc. as horrible to contemplate. 4-4 Court ideas are academic thought experiments.

The House win and some good wins in the states by the Democrats does help balance some things out. But, again, any system that continuously for around twenty years now opens up the moves of the Republican Party, who doesn't even have majority rule on their side, is a problem. I strongly opposed Bush43 but things are much worse now. I find it hard to find the Republicans worthy of any respect on the national level and think 2/9 of the Supreme Court is tainted. And, yes, the Republican controlled Senate [and Sandy Levinson would be right to note the nature of the Senate is largely ultimately to blame here though a racist etc. component of the nation helps] has special blame here.

Michael Livingston said...

I once saw Eric Posner give a talk on how the Hotelling? Law doesn't work in practice, that is, in practice the two sides often diverge toward their own goal line rather than converging to midfield. Certainly there are examples of this happening (1930s Germany, maybe US today, and so forth). As for the Senate, it's only one part of the larger obsession with geographic districts that made sense in the 18th century but doesn't really today. One interim reform might be to restore the filibuster, 3/5 rule, etc. and thereby make the Senate more of a consensus-based body. This at least gives (gave) it a logical function as opposed to an unrepresentative, winner takes all group which makes just about no sense at all.

Michael C. Dorf said...

Just a quick thought about voter suppression and the like: When the parties are closer together or there is some other reason why more voters are in play, voter suppression doesn't work as well, because it's not clear whose votes to suppress. When politics is a competition over mobilizing your respective bases, then tamping down the other side's base works. When it's less about turnout than about appealing to median voters, there's less room to benefit from shenanigans (but not no room, I admit).

David Ricardo said...

But isn't every election now about turnout? Given the domination of the news by Trump and the rightward hardening of the Republican party is there any 'undecided' voter out there? And so the winner is the candidate that turns out their voters (and for Republicans the ones that supress voting by African Americans, Hispanics, low income people etc).

Shag from Brookline said...

Now that McSally has been defeated in AZ Senate race, AZ's Republican Gov. could honor the late Sen. John McCain by nominating Republican Sen. Jeff Flake to finish McCain's term. Appointing McSally would not honor John McCain. And the AZ Gov. well knows that Trump has not honored John McCain. In fact, while in France last week for the WW I Centenary Trump declined to honor and pay respects at an American cemetery to Americans who died in the Great War. (Apparently the light rain triggered Commander-in-Chief Trump's draft deferment bone spurs.)

CJColucci said...

I've flirted with an idea I read about long ago that would ameliorate the problems of having too many states with small populations and similar interests having an outsized representation. (Why are there two Dakotas? Do we really need both Texas and Oklahoma? I know having both Kansas and Nebraska had something to do with slavery, but why do we need them both now?) The idea, which I think would even get around the constitutional bar of reducing a state's representation without its consent, was to create some number of at-large seats. The usual way the idea is presented is to create national at-large seats, but for this to matter you'd need about 25-50, and that's confusing. So how about regional at-large seats apportioned by regional population? If the regionalizing gets too contentious, how about using existing federal judicial circuits? That would put a manageable number of at-large seats on each regional ballot.

Joe said...

One unpleasant thing to me about the Senate is that I think the current system is unfair but unless we change it, adding two seats for D.C. would seem fair. I find this unpleasant since it's really a medium sized city at best (the Bronx would have equal call for senators; or maybe NYC commuters or something) & find that a bad idea as a matter of raw principle. The rejoinder is "Wyoming" or something. Which is fair on some level.

If Puerto Rico clearly wants to be a state, it would have a stronger case though even there it's only around five million people or something. Then, you have other territories like Guam with small populations that have non-voting members in the House. Somewhat off topic, all of these people should have the right to vote for President.

Stuart McPhail said...

This post appears to ignore differentiation among members of a party - i.e., it treats a Democrat from a small state as equal to a Democrat from a large state. But that equivalency is not borne out by the evidence. (It also ignores the more fundamental point that it is unjust to count a citizen in California as less than a full person because they share membership in a political party with a citizen in another state who is over-weighted, but that's a bigger problem).

By perhaps historic coincidence, the smallest states also tend to be very rural and I think fair to say conservative, so even a democrat from those states would tend to be very conservative. So while North Dakota had a Democratic Senator, she was a very conservative Democrat. And though the 12th smallest, and thus outside Prof. Dorf's set, West Virginia also has a Democratic Senator only by reason of that Senator being very conservative.

Thus, even if Democrats were to become more competitive in these smaller states in the long run, they'd likely only do so by adopting a more conservative, rural-friendly posture. The unequal representation of citizens would then mean that the Senate, even if majority Democratic, would tilt far more rural-friendly and conservative than the populace. The need to secure these small-state Democrats to secure a majority vote would then tilt and bias legislation and appointments. E.g., consider the impact of small-state Democrats on the ACA. Thus over-representation of small-state interests bias political outcomes not only when they lead to Republican control of the Senate, but continue to exist even in Democratic controlled chambers.

Nonetheless, I agree that the solution to this problem (assuming one thinks treating citizens unequally is a problem) is not likely to be found in constitutional amendments. Not only because of Article V, but because the amendment process itself is biased towards these small small rural interests by requiring a proportion of states, rather than citizens, approve an amendment.

But one solution is available, so long as Democrats control the government: adding states. Adding, for example, DC as a state would create one state with a strong urban-tilt, adding at least some counterbalance to the over-weighting of rural-interests in small states. Adding Puerto Rico, while not a small state, would add some ethnic diversity and by increasing the number of Senators, reduce the impact of over-weighting small states. Or make PR 6 states - it is 6 times the size of Wyoming after all. Finally, Democrats might consider breaking up large states for purposes of senatorial representation, while permitting those "states" to operate as single political units via an unrevocable interstate compact.

Of course, if one really wanted to make a point of this - you could add hundreds of new states - there is no minimum size after all. DC could be made into 500 states, for example. While that might appear absurd, it is only absurd insofar as affording political power to an arbitrary unit, rather than to individuals, is absurd. This new 500 state DC could then freely amend the Constitution, removing the article V block on amendments, or creating a new "Senate II" that takes all powers from the Senate but that treats all Americans as equals.