While searching today for the answer to a relatively simple question (“After three-fifths of the Senate votes for cloture, can the bill itself pass on a simple majority of those present during the vote?”) I was reminded of what should be the most obvious and depressing truth of the American system:
The Senate is a disaster, it will only get worse, and in the end we will be forced to choose between preserving its dysfunction and preserving the Republic. In either case, we will not be able to do so peacefully or legally, because the task of reforming the Senate is profoundly extra-legal. The remedies of Constitutional law are all inadequate.
Sure, we let mere plebes vote directly for Senators now (back in the 18th century, “the rabble” — that’s us, BTW — was considered too irresponsible to elect such god-like figures), but even that “reform” didn’t address the central problem. Because while representatives are apportioned by population (One Man One Vote, Give Or Take Three-Fifths Of My Slaves), senators are apportioned by state, and that’s fundamentally un-democratic.
It’s why our system currently favors Vermont Senate voters over California Senate voters by a ratio of 67-to-1. It’s why “the deliberative body” has become a hotbed of obstructionist special interests.
Sure, the Electoral College put Trump in the White House despite losing the popular vote to Hillary Clinton by almost 2.9 million ballots, but trust me — that’s nothing compared to the way the Senate warps the idea of representative democracy. Consider this breakdown:
- States with one senator from each party: 13, representing roughly 80 million Americans.
- States with two Republican senators: 19, representing roughly 106 million Americans.
- States with two Democratic* senators: 18, representing roughly 140 million Americans.
*Independent Sens. Sanders, Vt., and King, Me., caucus with the Democrats.
Our current Senate is comprised of 51 Republicans and 49 Democrats. But if the 74 Senate seats from states that elected either two Democrats or two Republican senators were apportioned by population, instead of by states, then Democrats would hold a 55-45 majority today.
That’s still not enough to break a filibuster, but you get the point. Sure, the Electoral College put the second-place candidate in the White House, but that result was only off by about 2 percent of the electorate. When it comes to the Senate, even by a conservative estimate, the Senate misrepresents the national electorate by at least 6 percent. And that 6 percent advantage, like the gerrymander in the House and the stolen 5-4 conservative majority on the Supreme Court, all accrue to the benefit of the Republican Party.
It’s not just that the Democrats control the large states while the Republicans control the small ones, either. More than half the U.S. population lives within just nine of the 50 states, and the number of Republican and Democratic senators from these states is deadlocked. Three of these nine states are split (No. 3 Florida, No. 5 Pennsylvania and No. 7 Ohio), three elected two Democratic Senators (No. 1 California, No. 4 New York and No. 6 Illinois), and three elected two Republicans (No. 2 Texas, No. 8 Georgia and No. 9 North Carolina).
But look at the total populations of those top nine states and you see the same anti-democratic pattern repeat itself. Those three solid Democratic states have a population of 72 million, and that’s 24 million more residents than the 48 million people who live in those three solid Republican states. If we apportioned those Senate seats by the one-person-one-vote rule, then Democrats would likely get seven Senators, and the Republicans only get five. And things just get worse as you go down the population list.
If you really want to see how messed up the Senate is, consider this. There are more than 39 million Americans living in the state of California. It takes the 22 smallest states in the Union, combined, to equal the population of California. But while the 39 million Americans in California get two votes in the Senate, the 39 million Americans in the 22 smallest states get 44. Thirty-nine million Californians produce two Democratic Senators, while the 22 smallest states elect 19 Democrats and 25 Republicans.
There’s a logic to apportioning the Senate this way, but a it’s flawed, 18th century, desperate-compromise logic. The idea was that this plan for the Senate would protect the little states from the “tyranny” of the larger ones, and to the extent that these former colonies still thought of themselves foremost as sovereign entities after the failure of the Articles of Confederation, I get it. The idea of the Senate is still anti-democratic, but I understand why the larger states accepted it. Ours was a fledgling republic in a hostile world, beset by powerful European enemies.
But there can no longer be any serious doubt that the U.S. Senate is the corrupt finger on the scales of American democracy and justice. It’s the poison in the well. It’s the design flaw that leads inevitably to cascading failure for the entire system. And it’s even worse than what I’ve described so far.
Forget, for the moment, the arcane rule that requires three-fifths of the senate to pass most bills (it’s called cloture, and it’s based on the entitled aristocratic idea that the noble members of the British House of Lords should be able to talk about whatever they liked, as long as they liked, with no rush to decide anything). That’s bad enough. Let’s talk about “holds,” instead.
Thanks to shady interpretations of the Senate’s precious, gentleman’s club rules — specifically, Sections 2 and 3 of Rule VII, a.k.a. “Morning Business” — any member of the Senate may place a “hold” on any motion to which he or she objects. The topic can range from something as simple as a judicial appointment in a Senator’s home state, to something as complicated as the Federal Funding Accountability and Transparency Act of 2006.
And since the Senate rules allow Senators to make their holds anonymous — as in the case of the Federal Funding Accountability and Transparency Act of 2006 — the public doesn’t even have the right to know who put that secret hold on the bill, or why.
Sure, the Senate leadership can challenge a hold, taking it through a process that is similar to drumming up 60 votes to break a filibuster, but the rules involved are absurd, convoluted, and heavily weighted in favor of obstructionists. As a result, any Senator — if he or she chooses to be a complete asshole — can basically hold the entire government hostage.
Here’s why that’s so bad for our Republic: Ever since the Supreme Court’s 2010 Citizen’s United ruling, in which the court split 5-4 down purely partisan lines to declare that money is free speech, and therefore not subject to regulation by Congress, we’ve been living under a system of legalized bribery. And like Senate holds, Citizens United means that this legalized campaign bribery can now be done in secret.
To understand why this is such a problem for the Senate as a modern institution, consider the case of Tom Barrasso, incumbent Republican Senator from Wyoming (population 585,000). During his most recent election in 2012, Barrasso raised about $7 million, spent about $4 million, and defeated his Democratic opponent (who raised and spent less than $2,000) with 76 percent of the vote (243,265 votes cast).
Now compare that to Florida’s 2012 Senate election, where Democrat Bill Nelson and Republican Connie Mack IV spent more than $24 million to contest an election in which more than 8 million votes were cast. And if that sounds like a lot of money, remember: Sen. Marco Rubio, R-Fla., raised more than that total all by himself during his successful 2016 campaign.
Given the obstructionist power of a U.S. Senator — regardless of the state he or she represents — where would you want to spend your bribery money? In a competitive large-state race, with expensive TV advertising rates based on huge markets? Or in quiet little Wyoming, a state so small that its single congressional district is too sparsely populated to actually qualify as a congressional district?
Which begs the question: Why did Barrasso — who faced only token opposition — spend about $16 per vote, compared to the simultaneous Florida Senate election, where the candidates in a competitive race spent only about $3 per vote?
Well, the answer is, Barrasso had to spend at least SOME of the cash that national, anonymously funded Political Action Committees (PACs) were shoveling his way. There was no way he could spend all of it. Not legally, anyway.
So why did healthcare and pharmaceutical companies give Barrasso — who doesn’t even sit on a committee that deals with healthcare legislation — more than $1 million in 2012? Why did “business” PACs give a candidate without opposition $3 million?
The answer is “influence.” That’s why Barrasso got $2.3 million from-out-of-state donors, compared to less than $800k from Wyoming residents.
It boils down to this: Small-state Republican Senators offer the best bang-for-the-buck in politics if you’re a corrupt special-interest trying to buy power on Capitol Hill.
So, to recap: The Senate is anti-democratic in its distribution of power, pro-obstructionist in its rules, and a magnet for legalized corruption. What’s not to like?
More to the point: What can we do, legally, to deal with this enormous problem at the heart of America’s political dysfunction?
Not. A. Fucking. Thing.
Sure, we could try reforming it. But given our current hyper-partisan system (which the Founding Fathers not only didn’t anticipate, but actively opposed as “faction”) that’s never going to happen. We could try abolishing it. We could do to our Senate what the United Kingdom eventually had to do to its House of Lords, preserving it as a vestige of the past while removing all its powers. But since each of these solutions would require Constitutional Amendments, and Constitutional Amendments require ratification by three-fourths of the states, color me skeptical.
Deeply, deeply skeptical.
We limped along with the Senate as a quasi-functioning body for much of our history, but even during the good times, the success of the Senate was based largely on norms, not rules. It began breaking down for good — it will never recover, ladies and gentlemen — in the 1970s. With each passing decade, it has become increasingly adversarial, reaching its nadir (so far, knock on wood) when Senate Majority Leader Mitch McConnell used cloture, lies and the powers of his office to deny even a hearing to a U.S. President’s nomination for the U.S. Supreme Court back in 2016. There’s no going back from the extra-legal theft of a lifetime appointment, folks. That’s an act of political warfare.
Without a functioning Senate, other aspects of the American system must attempt to adapt. So far, most of this has occurred via the executive, where Presidents George W. Bush and Barack Obama attempted to work around Senate obstruction via “executive orders.” But that’s no solution. Far from providing “balance,” our hyper-partisan status quo now means that without unified government and 60 safe votes in the Senate, the U.S. government does not work.
Think I’m wrong? Here’s a little known fact, Normie: The last time the United States properly passed a budget was in 1997. Most of us have no idea how fucked up this situation has become.
Sooner or later, the structural dysfunction will pose an existential crisis. Probably more than one. Probably lots of them, one after the other, each compounding some tragedy into a larger one, each leaving the people more frustrated and confused and angry and scared. Maybe it will be in conjunction with some incompetent, autocratic executive, such as the one we have today. Maybe it will be some normal American president, with a relatively functional House of Representative and judiciary branch. Maybe.
But eventually none of that will matter. Eventually the system will accumulate too much friction, and then it will break.
Of all the structural flaws in our constitutional system of checks and balances, only the Senate is fatal. A day will come when Americans will have to say “We either have to go around the Constitution to get rid of the Senate, or we’ll have to give up on America as a country with a future.”
And on that day, we will break into multiple nations, and the world will tumble into chaos.
Because the United States has never been one nation. Not really. It just looks that way on the map.