Divided We Fallis a non-profit news publication working to provide bipartisan dialogue for the politically engaged. They publish written debates between individuals who disagree in order to demonstrate productive civil discourse and bipartisanship. They have generously shared this content with us; see original piece by Kristin Eberhard, Robert Wilkes and Peter Certo here.
Perspectives on the Senate and Its Relevancy in the 21st Century
Convert the Senate to a Citizen’s Assembly
By Kristin Eberhard – Director of Democracy and Climate Research, Sightline Institute
American democracy has a big problem. It’s called the U.S. Senate. The United States Senate was explicitly designed to be undemocratic: It represents states, not people. Some states have as many people as a city, while others have as many as a large country. The great state of Wyoming is home to fewer people than any one of the nation’s most populous 25 cities. More people live in California than either Canada or Australia. But each state gets two senators, regardless of population. The result? Half of the nation’s people have only 18 senators representing them, while 52 senators represent just 18 percent of Americans.
The skew isn’t random. White Americans have on average nearly twice as much representation in the Senate as Black and Hispanic Americans. That’s because the large and growing states — California, Texas, Florida, and New York — are becoming more racially and ethnically diverse, while many small states are staying white. Wyoming, North Dakota, South Dakota, New Hampshire, Maine, and Vermont are among the smallest and the whitest states.
This representation gap in the US Senate is only getting worse. As big, diverse states continue to grow, their people will get even less say in Congress. In 20 years, one-in-three Americans will be represented by just six out of one hundred Senators.
The Founders’ Intent and Its Implications
How did we get to this point? At the time that the founders were negotiating the 1787 Constitution, the small states were in a strong bargaining position. They threatened to leave the Union and join with a foreign country, a move that could have doomed the fledgling United States. And so, delegates gave in to the small states’ primary demand: that they would have the same number of senators, regardless of the number of people.
More than two centuries later, apologists defend this original anti-democratic sin with specious reasoning like: small states face really different issues than big states, and therefore, Americans living in small states need an outsized voice in the Senate to make sure their unique concerns are heard. But is that true? Do the 400,000 people in small towns and rural areas of Wyoming have such different concerns than the five million people living in small towns and rural areas of California or the two million living in rural parts of New York state? And even if they do, why do the former rural dwellers deserve up to 70 times more voice in the U.S. Senate than the latter?
Their outsized voice in the Senate certainly translates to outsized federal aid. Wyoming residents, 89 percent of whom are white, receive federal expenditures 50 times higher per capita than their Californian compatriots, only 40 percent of whom are white. Wyomingites and Californians have exactly the same median income: $32,000 per year.
I believe that everyone should have equal representation, so giving some Americans more say in Congress than others seems patently unfair. But some people feel that small states deserve representation, regardless of how many people live there. In any case, states’ equal representation in the Senate is deeply entrenched in the Constitution, which is the hardest in the world to amend. Could we keep two senators per state while making the Senate better represent all Americans?
A Citizen’s Assembly
We could. Instead of selecting 100 elites who are able to raise tens or even hundreds of millions for their campaign war chests and are on average much whiter, wealthier, older, and more male than the rest of us, we could select 100 regular people who are, together, a slice of America. That is, a Citizen’s Assembly.
Citizen’s Assemblies are selected by a curated lottery. The selection process is designed to actually achieve what criminal juries aim for — a random selection of Americans. One hundred senators selected by curated lottery would all be regular people, two from each state. But in addition to representing every state, together they would better represent all Americans in terms of their race, gender, age, wealth, education, and ideology.
In our current system, senators often hew to a particular party’s perspective. Though a growing number of Americans don’t affiliate with either of the two major parties, Congress increasingly makes decisions on strict party lines. In a closely divided Senate, and one that is sometimes dominated by a different party than the president, this often leads to gridlock and frustration. Voters want to send someone to DC to deliberate and take action, but often all they see is pitched partisan fighting and inaction.
The 100-citizen representatives would not be beholden to parties and would not have the same incentives to make “the other party” look bad. They would be given the time and resources to deliberate on the important issues Congress is addressing. Expert witnesses would give them the best available information on a topic, professional staff would help them sort through information, and trained moderators would help them participate in small- and large-group discussions about the topics. In the end, they would bring their assorted lived experiences from across America; plus the best information available from learning from experts and each other; and be able to make decisions reflecting what regular Americans would want.
Local jurisdictions across the United States, as well as countries around the world, have been using Citizen’s Assemblies to create policy solutions that regular people can get behind. Ireland used a Citizen’s Assembly to reach a breakthrough on the contentious issue of abortion rights in a very Catholic country. Iceland’s citizens wrote a popular constitution. England and France have assembled citizens to help break the gridlock on climate change policy. Belgium has set up a permanent Citizen’s Assembly.
Starting Small
Replacing Senate elections with a curated lottery for regular citizens is a long shot, I know. But we could start by using more Citizen’s Assemblies at the local level and giving them power over discrete issues. Is there something your city council or state legislature is gridlocked on? Suggest they invite a Citizen’s Assembly to take a crack at a common-sense solution. Does your state have a limited or part-time state lawmaking session that often leaves important things undone at the end of a session? Suggest they could use a Citizen’s Assembly to identify the most important issue that voters want their lawmakers to take action on that session, and if the lawmakers fail (for whatever reason) the Citizen’s Assembly will step back in to deliberate together and craft a bill they think will be broadly acceptable across the state. Start small and local to show what people can do when given the time and resources to deliberate. Then give 100 citizens the chance to represent all Americans in a way that our undemocratic Senate does not.
Don’t Break the Senate
By Robert Wilkes – Senior Correspondent, Divided We Fall
As you may read elsewhere, the U.S. Senate is under attack. Composed of two senators per state, Senate power is spread equally among states. Critics say the Senate is disproportional to population and unfair. I rise to defend the founder’s vision.
We are a republic, a representative democracy with a bicameral legislature. The House of Representatives is proportional to the population. Its members are elected to short, two-year terms. That means the House is most directly answerable to the people. Members of the Senate are elected to six-year terms, longer than the office of the President. The Senate provides a deliberative counterweight to the House.
At the roots, we are the United States of America. Our founding as a nation depended on a voluntary union of those states. All powers not enumerated in the Constitution are reserved for the states. Our states each have their own constitution, legislatures, laws, regulations, educational systems, state police, state-controlled national guard units, and taxing authorities. States are spread across our national geography and encompass all subcultures of our nation. They are individual “laboratories of democracy” engaged in healthy competition to attract citizens and businesses.
Additionally, the two-senators-per-state Senate unifies the nation. The Senate brings us together as a people. No part of the United States can be ignored or overlooked by the Federal government. The fifty states are unique population bases from which to identify and advance the best and brightest. Our system ensures national attention to exceptional citizens from smaller states who would never become known in a proportional system.
Even more importantly, equal state representation ensures a wide range of experiences and perspectives. Would the Senate better serve the U.S. if its members all spent their formative years on the San Francisco City Council, or some other densely populated urban center? No. We would be consigned to paint our future with a paucity of colors.
A Short History of Democracy
The United States of America is a republic, not a democracy. Power is derived from the people through their representatives. It is important to note that altering the composition of the decision-making bodies toward pure democracy does not ensure peace and security and does not protect against the collapse of the state. It certainly does not ensure morality in governance either.
Democracy began in Athens under the leadership of Cleisthenes in 508 BCE. All “citizens” had an equal vote, although the number of voting citizens was limited. Universal suffrage was two and a half millennia in the future. Nevertheless, Cleisthenes’ transfer of power from the nobility to the people was a key moment in history. Power was invested in the “demos” or village, the civic structure Greeks most closely identified with. “Demos” later came to mean the people.
“Demos” also refers to a mob. When mobs have power, thoughtful deliberation gives way to emotion. One can easily imagine a firebrand (especially in societies that idolized orators) inciting the demos to enact rash and irreversible courses of action. It is not difficult to find examples of dysfunctional or immoral government in classic democracy. As an example of the cruel tyranny of the majority, recall the twenty-five Athenian triremes that were lost in the victory at Arginusae. Most of the crews drowned as ships assigned to rescue survivors were blocked by a storm. The Athenians were anxious to assign blame. Six Athenian generals were tried by a vote of the citizens. The victorious and blameless generals were convicted and executed. Socrates met a similar fate at the hands of democracy for “corrupting the youth.”
The famous Melian Dialogue (419 BCE) is another example. The island of Melos had been independent for 700 years and entreated Athens to allow them to stay neutral in the war with Sparta. The Melians argued that under the law of nations, no nation had a right to attack another without provocation. But the citizens of Athens hungered for conquest and notoriously insisted “might makes right.” Athens had the power to destroy Melos and they did.
The Genius of James Madison
Madison spent his college years at Princeton studying classic democracies and republics. He understood why they failed and later crafted a constitution for the United States to avoid the same mistakes. His genius was a Senate that would counterbalance the tyranny of the majority in the House.
History has validated Madison’s bicameral formula. As Emanual Kant so aptly wrote, “From such crooked timber as humankind is made nothing entirely straight can be made.” Life teaches us the wisdom of Kant’s aphorism. It’s a miracle that the United States has functioned as well as it has— for as long as it has—despite the often-crooked timber of the people we elect to govern it. Our good luck is, without doubt, a testament to Madison’s skill as an architect of government. This Senate—as currently composed—has served us well for 232 years. In that time the French have had five Republics. Madison’s Constitution is one of the longest-serving systems of government on Earth.
We Are Not Europe and We Don’t Want to Be
In France, all power is centralized in Paris, France’s most populous city. Paris decides policy for the whole of France. Across the Channel in the United Kingdom, the government has over time become unicameral. A unicameral government has no counterbalance. It can, in the blink of an eye, do deep and lasting damage. Post-war Britain nationalized essential industries. The result was a steep decline that smothered the economy until Margaret Thatcher saved the country from socialism.
It would be a huge mistake to rent asunder Madison’s masterpiece and to make California the Paris of the United States. A stodgy Senate protects the nation from headlong leaps into devastating policies which would take decades to unravel, if ever. We ought to heed Edmund Burke’s warning: “In a democracy, the majority of the citizens is capable of exercising the most cruel oppressions upon the minority.”
The countervailing force of the Senate standing athwart the tyranny of the majority is the bulwark of our federal system. We are fortunate to have it. Visit an antique store. The sign says, “You break it, you bought it.” Break Madison’s creation and the consequences will bring woe unto generations that follow… long after your time has come and gone.
The Senate Is a Threat to American Democracy. Here’s How to Fix It.
By Peter Certo – Senior Editorial Manager, Institute for Policy Studies
In some ways, the United States is on the verge of a profoundly positive transformation. After a ghastly year of pandemic, doubt, and division, the new administration and Congress are charting a course for American governance not seen for over half a century — one marked by big investments in ordinary people.
Using a Senate process called “reconciliation” — which allows the chamber’s 50 Democrats to pass spending bills with a bare majority — Democrats have vastly accelerated vaccine distribution, put money directly into the bank accounts of struggling Americans, and passed a new child tax credit that’s expected to cut child poverty in half. More than 70 percent of Americans approve.
Next, they’re preparing to use the same process to pass President Biden’s American Jobs and Families Plans, which would make more big, popular investments in green jobs, infrastructure, child care, and education. The plans poll very well among voters across parties. After one of the darkest years in U.S. history, this should feel like a ray of sunshine. But dark clouds are still gathering.
An Eroding Democracy
While the economy and pandemic may be getting better, the sustained attack on our democratic institutions that started under the last administration is, if anything, intensifying. As the GOP’s authoritarian turn becomes ever sharper, Republican-controlled statehouses across the country are ramming through draconian, Jim Crow-style voting restrictions and raising the possibility they could refuse to certify any elections won by their opponents.
Meanwhile, the party’s national representatives, confident that a combination of partisan gerrymandering and new voting rights restrictions could deliver them back to power, have sworn off bipartisan compromise on a range of issues. “One hundred percent of my focus is on stopping this new administration,” GOP Senate leader Mitch McConnell said recently.
For Democrats — small-d and capital-D alike — these are troubling developments. One proposed fix is the For the People Act — a 21st-century update to the 1965 Voting Rights Act that would protect and expand voting rights while finally imposing some restrictions on extreme partisan gerrymandering, which can turn 50-50 votes into supermajorities for one party.
In the public, the bill enjoys solid bipartisan support. In Washington, however, it’s a purely partisan issue. The House passed it without a single GOP vote. Senate Republicans are dead set on blocking it — and they may well succeed. But something is key to understand here: It’s not just Senate Republicans who are endangering our democracy. It’s the structure of the Senate itself.
A Hardwired Imbalance
It will help to look a bit at how the U.S. Senate works. Republicans are counting on blocking the For the People Act with the filibuster, which requires supporters of a bill to come up with 60 votes to pass it — a nearly impossible order in today’s Senate. Because it’s not a “spending” bill, Democrats can’t use reconciliation, which worked for COVID-19 relief, to avoid this obstruction.
The filibuster used to be rare, though it’s long been associated with efforts to deny civil rights. During the civil rights era, it was notoriously used by segregationist senators to delay civil rights legislation. Before that, it was used repeatedly to block the abolition of slavery.
Since the Obama era, Republicans have used the filibuster to obstruct virtually every bill of consequence when they’ve been in the minority. It repeatedly doomed otherwise popular immigration reforms, environmental protections, bipartisan gun control measures, and — in today’s Congress — anti-discrimination protections for the LGBTQ community. As a group of 350 scholars and political scientists wrote in a recent letter urging reforms to the practice, the Senate is “now the world’s only legislative body with an effective supermajority requirement for common legislation.”
The filibuster becomes even more absurd when you consider how unrepresentative the U.S. Senate already is. (This will take some numbers, so apologies in advance.) Today’s Senate is evenly divided between 50 Democrats and 50 Republicans. Yet because each state gets exactly two senators — from California with its 40 million people to Wyoming with barely half a million — this narrow divide is deceptive. In practice, the two-senators-per-state rule greatly over-represents conservative white voters in less populous states. This is an enormous subsidy for Senate Republicans.
In truth, those 50 Democrats represent nearly 42 million more people than those 50 Republicans. Even before Democrats flipped the Senate this year, the GOP Senate “majority” still represented about 15 million fewer Americans than the Democratic “minority.” In fact, Senate Republicans haven’t won a majority of votes or represented more Americans than Democrats since the late 1990s — but they’ve controlled the Senate for more than half the time since then.
And thanks to the filibuster, they can impede progress even in the minority. The 41 votes the GOP needs to block just about everything come from states with barely 20 percent of the U.S. population.
A Compounding Risk
Awarding two Senate votes per state, Ian Milhiser recounts at Vox, might have made sense in the 18th century, when the U.S. was being cobbled together by 13 independent nation-states desperate to avoid more armed conflict. But “whatever the wisdom of this devil’s bargain in 1787,” he writes, “America is a very different place today. There is little risk that Utah will make war on Colorado, or that New Hampshire will invade Vermont.”
Instead, the institution appears to be accelerating political conflict. The Senate’s dramatic malapportionment doesn’t just hold up Senate business. It also contributes to a huge GOP bias in the Electoral College, which elects U.S. presidents. Since each state’s Electoral College vote is equal to its representation in Congress — and the Senate side is held flat at two votes — Republican states get more votes relative to their population than Democratic states.
That’s how Donald Trump won the White House in 2016 despite losing nationally by 3 million popular votes. And it’s how he came within barely 40,000 votes of winning the Electoral College again in 2020 — despite losing the popular vote by 7 million that time.
“This anti-democratic system deserves at least some of the blame for the violent siege of the U.S. Capitol by a Trump-supporting mob,” Milhiser argues. “Trump’s lies that the 2020 election was somehow stolen from him would have been even more implausible if he was demanding that enough ballots be tossed out to overcome Biden’s 7 million vote lead in the national popular vote.” Instead, Trump focused on states like Arizona, Georgia, and Pennsylvania, which might have flipped the Electoral College. That’s why Republicans have introduced literally hundreds of voter suppression bills since 2020 — because small margins in a few states can be enough to cancel out big national majorities.
End the Filibuster
Clearly, these practices are unsustainable for any remotely democratic system. But dauntingly, the road to fix them goes through the Senate. There are all kinds of proposals for fixing the Senate. In The Atlantic, Wharton professor Eric Orts outlined a plan to reapportion it — giving big states like California as many as 12 votes and tiny states like Vermont just one. Others, like the late former Rep. John Dingell (D-MI), have proposed eliminating the Senate entirely. Both ideas are compelling, but neither is likely in the near term — nor, perhaps, constitutional.
There are simpler ideas. The most straightforward is to eliminate the filibuster and, like the House, pass bills with simple majorities. The idea is increasingly popular with political scientists as well as many mainstream Democrats who previously resisted the idea.
A few holdouts, like Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) insist the filibuster protects bipartisanship. But they have it backward. As Republicans have demonstrated, being able to block virtually all legislation removes the minority party’s incentive to compromise. But if bills are going to pass with or without them, they might actually help shape them.
Add New States
In my view, the real trouble with eliminating the filibuster is the Senate’s underlying imbalance — particularly in the current climate. With the Senate’s makeup so tilted toward Republicans, there’s a real danger that Republicans would weaponize the filibuster’s absence to pass more laws restricting voting rights and consolidating their own control. Indeed, McConnell has threatened this explicitly.
One alternative would be, instead of ending the filibuster entirely, to restrict it. Already, it can’t be used on those budget reconciliation bills — or, thanks to changes McConnell made himself — on votes to confirm judges. Some advocates suggest creating a similar “democracy exception” to the filibuster, meaning it couldn’t be used to block things like voting rights legislation. That would clear the way for the For the People Act, for example, which clearly needs to pass.
Regardless of whether the filibuster is eliminated or merely restricted, however, what really needs to be addressed is the Senate’s underlying imbalance. And the simplest way to do that would be for the Senate, liberated one way or another from the filibuster, to welcome new states to the union — and hence expand the Senate itself.
Start with the District of Columbia, whose 700,000 residents already outnumber those of a few states but who don’t get votes in either the Senate or House. Next could be Puerto Rico, whose 4 million residents have suffered terribly from their colonial status. In recent years, voters in both D.C. and Puerto Rico have passed resolutions supporting statehood. Further on, other colonial territories like the U.S. Virgin Islands could follow suit.
By welcoming these new states, Democrats could partially rebalance politics in Washington, not just in the Senate but also in the Electoral College. And they’d do it not by altering the Senate’s formula or even by just adding new members to their own column — Democrats would be favored in D.C. and the Virgin Islands; Puerto Rico would be competitive but complicated — but by enfranchising millions of U.S. citizens who have no vote in Congress today.
A Path Toward Bipartisanship
With democracy under threat today, expanding it this way would be an elegantly straightforward way to protect it, at least for a while. In one sense, these would be overtly partisan moves — no Republican in Washington today would back them. But in another, moving us toward a political system where politicians actually have to compete for voters, and where those who win elections can actually govern, might encourage a new wave of bipartisan cooperation.
At the very least, it would remove the roadblocks that have stood in the way of solutions that are popular with the bipartisan public. If you like COVID-19 relief and green jobs, just imagine what else could become possible — if we act now to protect our democracy from its own hardwired flaws.
This article is part of Divided We Fall’s “Constitutional Questions” series, covering a range of political topics fundamental to the U.S. Constitution and democratic institutions. Through this series, we ask constitutional scholars, journalists, elected officials, and activists to discuss how these ideals are – and are not – implemented today. If you want to read more pieces like this, click here.
Cover Photo by MIKE STOLL on Unsplash