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Our dysfunctional Senate

By Jonathan Bernstein

The Barack Obama presidency has given political scientists who study political institutions a lot to work with. There's a big story about political parties, with Congress reaching record levels of partisan polarization. There's a story about the capacity of the presidency to deal with contemporary problems, and the continuing story about executive power and constraints. I think most of us would say, however, that the biggest set of questions right now have to do with the current state of the Senate. While the House seems to become more and more of an efficient partisan machine with each Congress, many consider the Senate to be radically dysfunctional. With the rise of the 60-vote Senate, and with even larger supermajorities needed to process fairly routine nominations, it's not surprising that a lot of people -- including quite a few frustrated Democratic Senators -- have been calling for reform. Ezra's regular readers know that he's a supporter of reform, and he's been posting interesting interviews with experts and reform-oriented senators.

And so, with Congress out of town, I'm going to write a few posts about the Senate. I'm going to start, after this introduction, with posts on why Senators embrace supermajorities (beyond those mandated by the Constitution), and what democratic theory tells us about the situation. After that, I intend to assess some of the reform proposals out there, and perhaps float an idea or two of my own.

First things first ... any consideration of the Senate really should begin with a quick point: The basic structure of the Senate isn't very democratic, there's not much we can do about it, and fortunately it doesn't matter very much. There is simply no legitimate justification for Californians and NoDaks to be represented by the same number of senators -- or for North Dakota, South Dakota, Idaho, Montana and Wyoming to have 10 senators to the two that Texas gets. It's worth pointing out that the origins of the type of bicameral Congress we ended up with are in self-interest, not in political theory. The Senate was the price that the people who wanted a strong central government had to pay, nothing more. "State's Rights" is, and has always been, a slogan used by people with a variety of agendas, not a well-thought-out position in republican theory. People, groups, organizations ... they have interests. State governments, as organizations, do have interests, but there's no reason for those governments to have privileges that other groups and organizations (and other governments, such as city or county governments) don't get. I tend to think that states themselves, as apart from their governments or the people and groups within them, don't really have interests. Aside from the apportionment issue, it might be convenient to arrange representation by states, but it isn't something called for by ideas about democracy.

And Article V of the Constitution is very clear; even if one could somehow convince states to weaken themselves through a radical amendment, it isn't allowed. "[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate." Fortunately, at least in the past century or so, it doesn't seem that massive malapportionment in the Senate has made much of a difference in partisan control of the Senate (the Democratic Vermonts and the Republican Wyomings seem to balance themselves out most of the time) ... there's a bit of a rural/urban bias that some research has found, and it's certainly very possible that biases show up on various particular issues, but overall it hasn't really mattered all that much.

So we're stuck with the Senate. The next step is: Why does the Senate have such screwy rules?

-- Jonathan Bernstein blogs about American politics, political institutions and democracy at A Plain Blog About Politics, and you can follow him on Twitter here.

By Washington Post Editors  |  June 1, 2010; 2:38 PM ET
Categories:  Senate  | Tags: Jonathan Bernstein, Senate dysfunction, dysfunctional Senate  
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Comments

Wow. That's a pretty impressive lack of historical perspective. The United States of America was formed as a union of States. "State's rights" and "State representation" is not some ancillary issue. Its kind of the whole point in our structure of government.

Granted, that concept has been massively eroded in the last two hundred years. But you can sum up the original concept as: (a) the house is representation for people; (b) the senate is for representation of states. Until the 17th amendment, Senators were selected by the State governments' themselves, and not the citizenry. This regime encouraged small states to join the union. Otherwise, small states would have been loathe to join, as they would almost immediately have been at the legislative mercy of the larger states.

The Senate also serves the purpose of slowing down the process (quite intentionally). The founders of our country understood that the House could tend toward reactionary or mob-like actions. The Senate was intended to be more tempered in judgments.

Mr. Bernstein appears to believe those goals are ill conceived, at least in the context of the modern world. I am sympathetic to the view that the current system is slower than we would like, at least in times of crisis. But I think he, Ezra, and many others grossly understate the dangers of a Senate-free government.

Look at the many many things that have been passed by the House, but failed in the Senate. Now image they had all passed, and when paired with a sympathetic President, signed into law? Are you imagining a more utopian world? Or are you imagining an eloquent example of the law of unintended consequences.

I'm bettering on the latter. Their gut tends more toward the former (being believers in the ability of government to get things right).

Posted by: WEW72 | June 1, 2010 3:46 PM | Report abuse

"massive malapportionment in the Senate has made much of a difference in partisan control of the Senate"

Not to partisan control, perhaps, but to the nature of the parties themselves. The US government is far less responsive to the needs of cities and far more to the needs of agriculture and extractive industry than it should be. Metro New York has 6.3% of the US population, metro LA has 6%, metro Chicago has 3.2%. If Metro New York, LA and Chicago together had 15 senators, and Iowa, Kansas, and Nebraska each had one, you think we'd have the same mix of public and private transportation that we have now? The same social safety net? The same gun control laws?

Posted by: Bloix | June 1, 2010 4:02 PM | Report abuse

Thank you WEW72 for stating plenty of legitimate justification for Californians and NoDaks to be represented by the same number of senators.

Posted by: frankstallone | June 1, 2010 4:02 PM | Report abuse

Thanks WEW72 for contributing all that completely legitimate justification for Californians and NoDaks to be represented by the same number of senators.

Posted by: frankstallone | June 1, 2010 4:04 PM | Report abuse

The "More action on nominations, please"
(at http://voices.washingtonpost.com/ezra-klein/2010/05/more_action_on_nominations_ple.html) post last week was an excellent introduction to Senate topics.

One thing I'd like to see is some explanation of the fact that "States Rights" are greater in the EU Constitution than in the US Constitution: if such "States Rights" are great for the states of Europe, why are they not equally wonderful for the states of America?

State sovereignty seems to be more than a mere historical vestige. The EU Constitution, written quite recently when compared to the US Constitution, strengthens its version of our 10th Amendment, suggesting that state sovereignty -- the desire for a closely-knit group to govern itself, largely without participation from a distant federal central authority -- transcends time.

Posted by: rmgregory | June 1, 2010 4:15 PM | Report abuse

I don't really know where people get off warning that all sorts of dangers that would befall us if we somehow abolished or neutered the Senate. I can think of dozens of examples of democratic republics that function either unicamerally or with a vestigial and toothless upper house, but I've never seen an example of a country going to hell in a way that could have been avoided if only they'd had some kind of less democratic upper house to put the brakes on things. Obviously, every country is different, but there's not a lot of evidence for unicameral legislatures being more dangerous or rash or unstable than bicameral ones. We aren't working in a vacuum here.

As for the teaser at the end, everybody knows the filibuster was invented by Robert Byrd back when he was a freshman senator during Reconstruction.

Posted by: HerooftheBeach | June 1, 2010 4:43 PM | Report abuse

WEW72's comments aside, the Senate isn't terribly democratic when viewed in a vacuum. However, the bicameral system to me seems like a really good way to balance the needs of the lower populated areas and the higher populated ones.
.
This is a feature and not a flaw. The flaw is the *unwritten* 60 vote Senate requirement without requiring an actual ongoing filibuster . Once that gets rectified, much of the problems will dissipate. The 'unanimous consent' stunt by Sen Bunning of Kentucky showed than when you shine a bright light on malcontents, they tend to give way.
.
Those fully committed to their cause are still fully able to gum up the works, but it requires actual sacrifice to do so. The filibuster serves a useful purpose, but it's been twisted so much as to be a free pass for those who object for any reason. There is no cost associated with threatening it so it can be used freely.

Posted by: rpixley220 | June 1, 2010 4:52 PM | Report abuse

HerooftheBeach, frankstallone

Modern reasons are mostly irrelevant. The Senate exists because of a compromise between big and small states 200 years ago. Without that compromise, the US does not exist. And the compromise cannot be annulled without a new amendment to the constitution. Which will not happen because, antiquated or not, the small states will never ever consent to the loss of power. Even if I disagreed with the rationale for the Senate (and I don't), I hope you would agree that its worth paying that price, if the reward is the USA.

As for examples of other governments having problems with a unicameral approach, there have been obvious effects. Government traditionally goes one way (left), with occassional retrenchments (to the right). Hard right turns are difficult because entitlements are difficult to remove. Witness Europe. Post WWII the governments moved sharply left. Some moved right for a while (e.g. Thatcher UK), but those movements are more limited.

The US has "lagged" these trends for a long time. One of the many reasons for this is the Senate (including the filibuster). Which is exactly why Ezra hates the Senate (because he would prefer European-style social democracy in the US). (Note that I really don't contend that the import part is unicameral or bicameral, the big issue is whether ANY legislative body provides a dampening effect).

I really think someone should research this. Look for the following types of legislation:

1. Bill passes House, fails in Senate.
2. President is of the same party as that which controls the House.
3. Then everyone looks at the legislation, and with the benefit of hindsight, try to judge whether the law would have served its intended purpose and/or have had signficant negative unintended consequences.

It would be a really good case study on big vs. small government in the US. It wouldn't work though if the House frequently avoided passing legislation that it "knew" would fail in the Senate.

Posted by: WEW72 | June 1, 2010 5:06 PM | Report abuse

Ezra,

Everything from here on out as far as your opinions will be a waste of time. because you do not "get it".

"I tend to think that states themselves, as apart from their governments or the people and groups within them, don't really have interests." says it all.

Okay look ...
FEDERAL Bureau of Investigation
FEDERAL Building
FEDERAL Bank Reserve
FEDERAL this and FEDERAL that ...
where are the parts of our government called NATIONAL?

Or right ... the NATIONAL GUARD which reports first to the State GOVORNER!!!!

Ezra ... we are a FEDERATION we are NOT a nation.
The USSC as recently as 1997 reaffirmed that we are a collection of "50 semi-sovereign states".

And that is the issue for you Ezra. You do not approve of the States being even "semi" soveriegn".
But they are. Period. End of story.


Basically our founders had a problem. They wanted something tighter than a federation.
But they wanted something loose LIKE a Federation. Otherwise there would have been only 4-5 original states.

They understood the dangers of the government being ruled by the numbers of pure democracy, because they were the VICTIMS of a government that ignored the needs of the rural ( all the US was rural at that time some just more than others ).

The Senate was DESIGNED to defend the RIGHTS of the rural dwellers over the desires of the urbanites. Who have shown they WILL enforce their will on the urban and WILL constiently consider the urban "unitelligent uneducated and unprepared to decide what is in their own best interests".

In other words ... the Senate was designed specifically to curtail fools and idiots who write things like "What's wrong with Kansas."

Posted by: chromenhawk | June 1, 2010 6:33 PM | Report abuse

We'd all be tremendously better off if every law, and particularly spending bills, required super majorities, and not just a mere 60 percent. That would force Congress to be more bipartisan instead of tending solely to narrow tribal interests and giving the majority of us the finger. W with his GOP majority and Obama with his Dem majority are the same to me. Terrible and endlessly bad government

Posted by: Steve851 | June 1, 2010 7:01 PM | Report abuse

"but overall it hasn't really mattered all that much."

This is laughable on the face of it. I'll concede that it is essentially impossible to fully know just how badly the discriminatory structure of the senate has perverted our political calculus, but the idea that it hasn't is wishful thinking.

Posted by: adamiani | June 1, 2010 11:45 PM | Report abuse

"And Article V of the Constitution is very clear; even if one could somehow convince states to weaken themselves through a radical amendment, it isn't allowed. '[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.'"

Seems to me that if the Senate were abolished, there would be equal suffrage in the Senate - zero Senators for every state.

Defenses of the Senate are amusing. They're nothing but post hoc rationalizations. I've no doubt there were similarly misguided arguments in favor of the three-fifths compromise before the 13th Amendment.

Posted by: dcamsam | June 2, 2010 12:47 AM | Report abuse

I disagree on the rationale for the Senate: it was included in the Constitution in order to protect the "rights" of southern, slave-holding states. For decades, as each new state was admitted into the Union, the balance between slave-holding states and the rest of the Union was preserved.

Southerns knew that if the US had a government based solely on popular representation, the more populous North would eventually eliminate slavery. Their only protection was the Senate.

That's why the Senate exists.

Posted by: dpc2003 | June 2, 2010 9:29 AM | Report abuse

Ah yes. Now that the Dems have total power (executive and legislative branches) and STILL can't get their legislation passed, we hear whines about how the system (the Senate) doesn't work. I don't recall these whines from the Left when the Republicans controlled everything; back then, the fillibuster was the height of patriotic dissent and the last righteous defense against the conservative barbarians.

Here's a thought for you Ezra; maybe a supermajority is required these days because Obama's legislative agenda is further to the Left than any Pres since FDR. Ya think?! HCR is a great example. Opposed by 55% of voters, a vast new entitlement when medicare alone has future unfunded liabillities of $38T (that's trillion), a bill they couldn't even get all Senate Dems to support. And Ezra's conclusion is we need to "reform" the Senate to make it easier for the Dems to cram through stuff like HCR. Unbelievable!!

Posted by: JohnR22 | June 2, 2010 9:32 AM | Report abuse

"And Article V of the Constitution is very clear; even if one could somehow convince states to weaken themselves through a radical amendment, it isn't allowed."

Article V is far from watertight. There are many possible ways to reform the Senate without unanimous agreement from the states. For example:

(1) Weaken the powers of the Senate. (E.g. only give the Senate the power of delay, not a veto.)

(2) Article V is not self-entrenched, so repeal the part of the article that requires unanimity to reapportion the Senate.

(3) Call a constitutional convention and enact a new constitution.

Posted by: Modicum | June 2, 2010 9:45 AM | Report abuse

@rpixley220:

"the bicameral system to me seems like a really good way to balance the needs of the lower populated areas and the higher populated ones."

Personally I think the best way to balance competing interests is one-person-one-vote. The interests of underpopulated areas should count, but it is a false balance to give them power greater than that justified by their numbers.

In any case I think the argument is bogus because the Senate doesn't systematically over-represent under populated areas and isn't designed to. If that is the goal then why have a system that benefits densely populated areas of small states, but does nothing to help rural parts of large states?

I also don't understand why the rural minority in the U.S. should be singled out for special treatment. By the same logic why not elect two Senators per race, two Senators per occupation, two Senators per age cohort, two Senators per sex, two Senators per religion, two Senators per sexual orientation, etc. All of these groups have common interests and can be out-voted by the majority from time to time.

Yet somehow we think it is OK for each of these groups to have the level of power proportionate to their numbers.

Posted by: Modicum | June 2, 2010 10:22 AM | Report abuse

"And Article V of the Constitution is very clear; even if one could somehow convince states to weaken themselves through a radical amendment, it isn't allowed. '[N]o State, without its Consent, shall be deprived of its equal Suffrage in the Senate.'"

Isn't that quote exactly contradictory to the lead-in claim? The phrase 'without its consent' explicitly means that a state *can* consent to being deprived of its equal representation in the Senate. Further, an amendment to the Constitution is perfectly capable of modifying the original articles, so an amendment could easily alter Article V to change how senators are allotted.

Posted by: notreallyhere | June 2, 2010 1:32 PM | Report abuse

@JohnR22 wrote:
"Ah yes. Now that the Dems have total power (executive and legislative branches) and STILL can't get their legislation passed, we hear whines about how the system (the Senate) doesn't work. I don't recall these whines from the Left when the Republicans controlled everything; back then, the fillibuster was the height of patriotic dissent and the last righteous defense against the conservative barbarians."

Except that the Dem's only used it in relatively extreme situations as it was intended. The GOP has used it for literally everything. There are 300+ bills pending in the Senate that can't be worked on because the GOP is threatening to filibuster them. As are 80-100 of Obama's appointments.

The Dem congress hasn't called out the GOP enough to stop the complete shutdown of the Senate (ala Sen Bunning stunts) so they deserve blame for that much. But other than that, the GOP gets the blame for shutting down the Senate.

Here's a thought for you Ezra; maybe a supermajority is required these days because Obama's legislative agenda is further to the Left than any Pres since FDR. Ya think?! HCR is a great example. Opposed by 55% of voters, a vast new entitlement when medicare alone has future unfunded liabillities of $38T (that's trillion), a bill they couldn't even get all Senate Dems to support. And Ezra's conclusion is we need to "reform" the Senate to make it easier for the Dems to cram through stuff like HCR. Unbelievable!!

Posted by:

Posted by: rpixley220 | June 2, 2010 1:52 PM | Report abuse

@Modicum:

So given a situation where group A has 10 people and group B has 100, how would you suggest they govern themselves?
.
Group A certainly isn't going to agree to proportional representation as they'd lose badly.
.
Group B isn't going to agree to 2 votes per group as their population majority would be nullified.
.
What's your solution? because if you don't have one that both can agree with the US simply never came into existence.
.
As I said, the bicameral system is a decent compromise on the above problem.

Posted by: rpixley220 | June 2, 2010 2:00 PM | Report abuse

@rpixley220,

Yes there would have been no constitution without the compromise that was made in Philadelphia. But what is your argument against reforming the system now, if we can find a way to do it?

Posted by: Modicum | June 3, 2010 9:08 AM | Report abuse

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