The Connecticut Compromise, to be precise. From his “Wonkbook” newsletter this morning:
The gun vote failed because of the way the Senate is designed. It failed because the Senate wildly overrepresents small, rural states and, on top of that, requires a 60-vote supermajority to pass most pieces of legislation.
The Manchin-Toomey bill received 54 aye votes and 46 nay votes. That is to say, a solid majority of senators voted for it. In most legislative bodies around the world, that would have been enough. But it wasn’t a sufficient supermajority for the U.S. Senate.
Of the senators from the 25 largest states, the Manchin-Toomey legislation received 33 aye votes and 17 nay votes — a more than 2:1 margin, putting it well beyond the 3/5ths threshold required to break a filibuster. But of the senators from the 25 smallest states, it received only 21 aye votes and 29 nay votes.
It’s typical to say that this is how the Senate’s always been. It’s also wrong. The filibuster didn’t emerge until decades after the first congress, and its constant use is a thoroughly modern development.
As for the small state bias, that, too, has changed over time. During the first Congress, Virginia, the largest state, was roughly 12 times the size of Delaware, which was, at the time, the smallest state. Today, California is 66 times the size of Wyoming. That makes the Senate five times less proportionate today than it was at the founding.
. . . But then the Senate did what it is built to do. It took a bill supported by most Americans and killed it because it was intensely opposed by a minority who disproportionately live in small, rural states.
Hating on the filibuster — which could be gone tomorrow if Harry Reid wanted it to be — has been a progressives ritual the last few years, but it has recently been joined by hating on the very structure of the Senate, and by extension, of the Union. See also Alec MacGillis in TNR, who goes further than Klein, advocating a Constitutional amendment to reapportion the Senate and undo the work of Roger Sherman and Oliver Ellsworth. In addition to wholeheartedly agreeing with the usual counterarguments to this sort of thing — the states’ unique histories, geographies, and systems of self-governance matter for the purposes of representation, and that the Senate (even post-17th Amendment) is designed to represent the states’ interests before the federal government, and not the people’s — there are other things I find odd.
One, the branch of the legislature that is apportioned by population is controlled by Republicans — and because Republicans by and large ran the last redistricting process, it is likely to be controlled by them for a while. This simple fact means that, in the event, the design of the Senate is irrelevant, since Toomey-Manchin never had a hope of passing the House (and that’s true even if the speaker again broke the Hastert Rule). It also at least prima facie implies that the majority supporting Toomey-Manchin in the Senate is less democratically representative than the majority opposing it in the House. Since this is surely not a result Klein and MacGillis want, perhaps they would have the Senate reapportioned in some other way that more thoroughly empowers urban and suburban population centers over rural spaces. But any such scheme would almost certainly make states qua states matter even less than they do in the House.
Which brings me to the second point: The power of small states is not going anywhere, because the constitutional process required to diminish it runs through small states — and they are powerful. (Incidentally, a constitutional amendment to weaken the right to bear arms is doomed for similar reasons). Put another way: so long as the Constitution rules at all, small states will be “overrepresented.” Depending on how you want to read it, this renders the fretting over the nature of the Senate either particularly academic or scandalously revolutionary.