Proportional representation is not the summum bonum
One thing leads to another. Complain bitterly that the Senate filibuster undermines democracy and you wind up concluding that the Senate’s existence is undemocratic. In 2009 the Washington Post’s Ezra Klein, for example, punctuated a long series of blog posts criticizing the filibuster with one allowing that while the Senate is “very important,” it is also “resolutely, aggressively, anti-democratic.”
The crucial defect, according to Klein and others, is that equal representation of states guarantees unequal representation of people. The 38 million Americans who live in the 22 least populous states send 44 senators to Washington, while the 37 million living in California, the most populous, elect just two. “There is nothing fair or just about such a system,” Rex Nutting, an editor for the website MarketWatch, wrote earlier this year. “It’s a relic of history.” Following his logic to its conclusion, Nutting asserts, “The Senate ought to be abolished,” and if abolition is infeasible, “we should chip away at [the Senate’s] ability to subvert our will.”
The case that the Senate does subvert our will is far from open-and-shut. Those 44 senators from the least populous states currently include 24 who are Democrats or caucus with the Democrats, including such determined liberals as Bernard Sanders and Patrick Leahy of Vermont, and Tom Harkin of Iowa. The chamber’s overall majority party, it turns out, has a slightly larger majority (54.5 percent) among senators from the 22 smallest states than among those representing the 28 most populous (51.8 percent).
The recent denunciations of a 222-year-old legislative body have not emerged ex nihilo, as National Review’s founding editor would have said. They reflect liberals’ bitter assessment of the past two years, so different from what they had expected. The Democrats’ presidential and congressional victories in 2008 were supposed to mark the beginning of “The New Liberal Order,” as Time titled Peter Beinart’s cover story after the election. Barack Obama has “an excellent chance,” wrote Beinart, to “do what F.D.R. did — make American capitalism stabler and less savage — [and thereby] establish a Democratic majority that dominates U.S. politics for a generation.”
Some members of the “professional Left” say that so little of this came to pass because Obama, a closet centrist, duped and betrayed his true believers. Meanwhile, back on Planet Earth, the more lucid left-of-center explanation for why 2009’s liberal moment lasted only a few moments is that the president and the House of Representatives spent two years sending policy proposals to stabilize and civilize capitalism to the Senate, where some were neutered and the rest were slaughtered. Even in the midst of a financial crisis, for example, the biggest stimulus bill the Democrats could get through the Senate was hundreds of billions of dollars smaller than liberals wanted. The House passed a cap-and-trade bill and the DREAM Act; the Senate never considered the former and lacked the votes to invoke cloture on the latter.
Obamacare was enacted, of course, but at the cost of time and embarrassments Democrats could ill afford, and stripped of components that most liberals thought essential, such as the public option. As Klein noted at the time, for long months in 2009 progress on the health-care legislation simply stopped, awaiting the outcome of negotiations among a bipartisan group of six senators from Iowa, Maine, Montana, New Mexico, North Dakota, and Wyoming — states whose combined population is smaller than that of metropolitan Los Angeles. Those talks proved futile, the bill lost momentum and prestige, and the Democrats’ huge congressional majorities ultimately proved only barely sufficient to send it to the president’s desk.
The New Deal paradigm, which has ordered the liberal mind for more than three-quarters of a century, embraces not just the kinds of policies the government should enact, but the way it should enact them. The political scientist Sidney Pearson wrote in 2004 that the Great Depression and FDR’s response to it, especially in 1933 during his First Hundred Days, was the “seminal domestic political event of the 20th century.” During that crisis, the administration wrote laws and sent them to Congress, “where they were rubber-stamped without debate, and enacted into law. For a brief period,” Pearson concludes, “the American people saw how a parliamentary system would function. For many serious students of the American political system this was the way a democracy ought to work.”
Conservatives organizing a list of things to worry about over the coming years can leave the abolition of the Senate out of the top 500. For one thing, the ratification of a constitutional amendment to that purpose would require the approval of 38 states, at least some of which would be among the less populous ones that have a bigger say over national affairs with the existing Senate than they would if it were replaced by a unicameral legislature based strictly on population. Any proposal to retain the Senate but do away with equal representation of the states is a complete non-starter: Article V of the Constitution, specifying the amendment process, guarantees “that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”
The prospect that merits a higher slot on the worry list is that attacks on the Senate will undermine support for our Constitution’s structure and operation, convincing Americans who might otherwise earnestly participate in the work of self-government that the nation’s political system is an anachronism and a rigged game, deserving only our sullen contempt. The resiliency of the American experiment has disposed us to believe that democracy is the default option for organizing a nation’s politics, rendering the problems of establishing and maintaining democratic government modest and manageable. As a result, 21st-century Americans need not have read John Dewey to hold the truth to be self-evident that “the cure for the ailments of democracy is more democracy.” Convince them the Senate is resolutely anti-democratic, and you convince them it’s an institution impossible to support, respect, or even take seriously.
The success of our Constitution, then, has estranged us from its authors’ apprehension that the perpetuation of democracy requires overcoming not only democracy’s enemies and obstacles, but also its temptations and weaknesses. As James Madison argued, “liberty may be endangered by the abuses of liberty as well as by the abuses of power.” Because the Philadelphia convention designed and subsequent generations of Americans implemented an effective “republican remedy for the diseases most incident to republican government,” as Madison wrote in Federalist 10, it is easy to suppose that those diseases, like the bubonic plague, are threats only to ancient or primitive peoples. We can confidently go on curing the ailments of democracy with more democracy, until every hundred days is just like the First Hundred Days. The de facto parliamentary system that results will jettison the constitutional relics subverting our will, and we will enjoy a government that is “strong, prompt, wieldy, and efficient,” as Woodrow Wilson wrote approvingly.
The case for not only putting up with but admiring the Senate rests on the belief that democracy’s worst proclivities are permanent threats, not archaic ones tamed long ago. As the political scientist Harvey Mansfield wrote in 1988, “Good democrats . . . think that good government as a standard is above democracy; it is what democracy aims at, for example, the ends stated in the preamble to the Constitution. They must not think that government is automatically good merely by being democratic, as this belief can make them both fanatic in their zeal for democracy and complacent as to its behavior.”
The disease most incident to popular government, which militates against democracy’s resulting in good government, is what Madison called majority faction. When a minority of the population is “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community,” normal democratic processes — popular elections — will suffice to prevent that minority from carrying out its dangerous plans. When a majority is united and actuated in this way, however, the workings of democracy won’t constrain it. Worse still, democratic processes will, as a practical matter, facilitate a majority faction’s blunders and depredations, while validating them as moral ones.
The classical mixed regime sought a monarchical and aristocratic remedy for the diseases incident to republican government. Such components were unobtainable in late-18th-century America, given the facts on the ground. The Lockean imperatives woven into the Declaration and the Revolution made the idea of checking majority faction with homegrown kings and dukes repugnant and absurd.
An important part of the Constitution’s republican remedy was to keep the form of the classical mixture of rule by the one, the few, and the many, but make the content of American government democratic throughout. It would resist majority faction by establishing what Mansfield calls a “constitutional space” between the people and the government. Ultimately, the people would always be in charge. As Abraham Lincoln said in his first debate with Stephen Douglas in 1858, “In this and like communities, public sentiment is everything. With public sentiment, nothing can fail; without it, nothing can succeed.”
The premise that public sentiment should be finally decisive does not, however, mandate the conclusion that it must be immediately dispositive. A constitutional space renders good government more likely and majority faction less by guaranteeing that some time and trouble will be necessary to turn brainstorms into laws, giving the considered judgment of the people opportunities to prevail against invidious or half-baked proposals. Checks and balances, no matter how numerous or intricate, cannot indefinitely resist a majority united in the determination to do something wicked or stupid. The best that can be hoped for is that such constitutional obstacles will spare the country from policies that are wrongly but not deeply popular.
In Federalist 63, Madison argued that an institution like the Senate, at some constitutional distance from the people, “may be sometimes necessary as a defense to the people against their own temporary errors and delusions.” The goal, always, is for “the cool and deliberate sense of the community” to “ultimately prevail.” The cure for the ailments of democracy, according to the Founders’ diagnosis, is not necessarily more but better democracy — a more far-sighted, judicious democracy that incorporates the widest possible range of perspectives into its decision-making.
The danger that the cool and deliberate sense of the community won’t prevail, Madison concluded, “will be evidently greater where the whole legislative trust is lodged in the hands of one body of men, than where the concurrence of separate and dissimilar bodies is required in every public act.” Students in courses on American government still learn about the ways in which the House and Senate are dissimilar. Representatives serve two-year terms and are voted on all at once; theoretically, if the voters were angry enough they could cashier all 435 members and replace them with different ones. Senators serve six-year terms, and only one third of Senate seats are voted on in any given congressional election. If the voters wanted to replace all 100 senators, the success of that project would require them to stay angry through three election cycles.
The House and the Senate were rendered less dissimilar, and the constitutional space between the people and the Senate reduced, by the ratification of the Seventeenth Amendment in 1913. Before then, each state’s senators were chosen by the state’s legislature. Since then, senators have been elected directly by a state’s voters, the way House members are elected by the voters of a particular congressional district.
Direct election of senators was a progressive cause a century ago, but also a response to genuine difficulties. For one thing, when each party controlled one house of a bicameral state legislature the process of choosing a U.S. senator often descended into a contentious deadlock. There were, as a result, periods where some states had only one senator in Washington, or even none at all.
The Lincoln–Douglas debates were the first step on the road to the Seventeenth Amendment. The two men, nominated for the U.S. Senate by Illinois’s Republican and Democratic parties, traveled around the state speaking to crowds of shopkeepers and farmers — none of whom could vote for either debater. Lincoln and Douglas were, instead, asking voters to elect Republican and Democratic candidates to the state legislature, where they would, depending on which party won the majority, choose one of the two for the Senate. The unfortunate candidates for the Illinois state legislature in 1858 found themselves offering their virtues, experience, and views on state issues to an electorate that couldn’t have cared less: The state’s two most famous politicians had transformed its legislative elections into proxy fights over national policy on slavery and the western territories.
In bringing the U.S. Senate closer to the people, then, the Seventeenth Amendment had the unintended consequence of reaffirming the distinct role of the states, as such, in discharging governmental responsibilities and engaging the people in self-government. Though it altered the nation’s political framework, the Seventeenth Amendment reinforced the idea that ours was “neither a national nor a federal Constitution, but a composition of both,” as Madison wrote in Federalist 39. The jurisdiction of the central government in that system, Madison explained, “extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.” The most important expression of the composite framework is the bicameral Congress, with its national House of Representatives and federal Senate. The latter will “derive its powers from the States, as political and coequal societies,” which “will be represented on the principle of equality.”
Abolishing the Senate, or requiring it to represent states in proportion to the size of their populations, would bring more democracy to Capitol Hill. But would it bring better democracy to America? The answer to that question depends on whether American federalism detracts from or enhances our democratic republic. If the sovereignty retained by the states over their internal affairs, and the ability to protect that sovereignty in the one house of the national legislature where states are equally represented, are merely legacies of concessions to the political realities of 1787, then federalism has a weak claim on our continuing respect. Those who urge us to scorn or abolish the Senate believe that America has long since outgrown the need not only for refining democracy, but for upholding the division of labor and authority between the national and state governments. If, on the other hand, the demise of the Senate would weaken the states, reduce them to departments administering policies devised in Washington, and thereby give the people fewer devices to resist federal aggrandizement and fewer ways and reasons to participate in self-government, federalism improves American democracy. If it didn’t exist, that is, we would want to create something quite like it, and give states effective means to defend their prerogatives.
The question about federalism depends, to put it another way, on whether you agree with James Madison the author of the Virginia Plan submitted to the Constitutional Convention in 1787, or with James Madison the author of the Virginia Resolution of 1798. The Virginia Plan would have created a bicameral Congress, both houses of which would have had delegations proportional to the states’ populations. The plan’s determination to reduce the importance of the states, qua states, was made more explicit by its provision to give the new national Congress a veto over any law passed by a state legislature. The Virginia Resolution, by contrast, in denouncing the Alien and Sedition Acts passed by Congress and signed by Pres. John Adams, rebuked what it called the federal government’s desire to “consolidate the states by degrees, into one sovereignty.” In declaring the Alien and Sedition Acts unconstitutional, the resolution echoed the Tenth Amendment, as the Virginia legislature called on the other states to join it in “maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.”
Scholars continue their efforts to understand the road Madison traveled between 1787 and 1798, and to argue about the extent to which his opinions on federalism are reconcilable. This essay won’t settle that question, and won’t try. It will note that robust states are fully congruent with the other part of Madison’s solution for the problem of majority faction, the extended republic. Where the separation of powers, and checks and balances, concerned the structure of the government, the extended republic concerned the structure of the nation. A large, diverse nation, Madison argued, reduced the danger of majority faction because majorities were likely to be loose, transient coalitions of different interests, sections, and perspectives.
Moderation and magnanimity would result from self-interest rightly understood in the extended republic, since any group that found itself in today’s majority coalition could easily find itself in the minority tomorrow.
If America’s security from foreign enemies and democracy’s worst proclivities has always resided in its being a big country, then it is especially important for such a country to have numerous, healthy mediating structures, both social and political. By “devolving functions to local governments,” as the late Martin Diamond wrote, federalism “helps to limit the size of the central administrative structure and hence make it less formidable to liberty.” Furthermore, federalism “draws masses of citizens into political life by multiplying and simplifying the governments accessible to them, thus activating the citizenry and habituating them to self-government.”
As the expansion of federal power at the expense of the states since the New Deal attests, the Senate is a necessary but not a sufficient condition for sustaining federalism. It is safe to assume, however, that federal aggrandizement would have moved much farther and faster if Wyoming sent John Barrasso and Mike Enzi to a Senate with proportional representation while California elected Barbara Boxer, Dianne Feinstein — and 130 similarly disposed legislators.
If the Senate in its present form strengthens the states, and the states strengthen and improve American democracy, then we have good reason to keep and respect it. Rather than accept the recent argument by The New Yorker’s Hendrik Hertzberg that the Senate of equally represented states is “self-evidently offensive and absurd,” we should gravitate to Madison’s claim, in a letter to Thomas Jefferson shortly after the Philadelphia convention had completed its work, that the Senate is “the great anchor of the Government.”
– Mr. Voegeli, a senior editor of the Claremont Review of Books, is the author of Never Enough: America’s Limitless Welfare State and a visiting scholar at Claremont McKenna College’s Salvatori Center.