Earlier this month, Eric Orts, a professor of legal studies and business ethics at the University of Pennsylvania, wrote an article for the Atlantic calling for the reapportionment of the United States Senate. Orts says the number of senators, currently two for each state, should be adjusted up or down based on each state’s relative population. Under this plan, each state would be guaranteed at least one senator, but the states with the largest number of residents could have as many as 12.
Here’s the gist of Orts’ argument:
Today the voting power of a citizen in Wyoming, the smallest state in terms of population, is about 67 times that of a citizen in the largest state of California, and the disparities among the states are only increasing. The situation is untenable…
Burt Neuborne of NYU has argued in The Wall Street Journal that the best way forward is to break up large states into smaller ones. Akhil Amar of Yale Law School has suggested a national referendum to reform the Senate. The retired congressman John Dingell asserted here in The Atlantic that the Senate should simply be abolished.
There’s a better, more elegant, constitutional way out. Let’s allocate one seat to each state automatically to preserve federalism, but apportion the rest based on population. Here’s how.
Start with the total U.S. population, then divide by 100, since that’s the size of the current, more deliberative upper chamber. Next, allocate senators to each state according to their share of the total; 2/100 equals two senators, 3/100 equals three, etc. Update the apportionment every decade according to the official census.
Using 2017 census estimates as a proxy for the official one coming in 2020, the Rule of One Hundred yields the following outcome: 26 states get only one senator (having about 1/100 of the population or less), 12 states stay at two, eight states gain one or two, and the four biggest states gain more than two: California gets 12 total, Texas gets nine, and Florida and New York get six each. This apportionment shows how out of whack the current Senate has become.
In the new allocation, the total number of senators would be 110. The total is more than 100 because 10 of the smallest states have much less than 0.5/100 of the U.S. population but are still entitled to one senator each.
I find Orts’ solution compelling for the precise reasons he states in the above paragraphs and elsewhere in the article.
First, we have to realize that the Senate, which allocates two senators to each state regardless of population, is indeed undemocratic. The effect of this is to dilute the voting power of large states in the chamber while simultaneously giving voters in small states disproportionate electoral might. This inequality in voting power is only growing larger, with states like Texas and Florida, already among the five largest states, seeing steady increases in population while states like Alaska and Wyoming, among the five smallest, have little to no population growth.
Second, we have to decide that the above conditions are problematic. This isn’t immediately obvious. The American system of republican government has never been perfectly representative, containing several checks on majoritarian rule. For example, take the entire federal judiciary, an unelected branch with the power of striking down legislative decrees in violation of the Constitution. The power of judicial review seems antithetical to democratic government, yet most Americans accept the practice as uncontroversial.
Also consider that other bodies and mechanisms of the federal government, such as the House of Representatives and the Electoral College, which selects the president, are more representative, allocating votes in a manner similar to Orts’ proposal for the Senate. If the executive branch and one house of the legislative branch are both adequately representative, and we accept that it is wise to keep the judiciary as a nondemocratic branch, why do we care whether the Senate is representative? And if the Senate were apportioned just like the House, why would we need a bicameral legislature at all?
The first of those questions has a simple answer: because the Senate is a political body, whereas the federal judiciary is not. Senators are elected, but judges are appointed. Further, judges are nominated by the president and confirmed by the Senate, so as to give their selection a veneer of democratic legitimacy while insulating them from the pressures of campaigning for election. But if the confirming body is not itself democratically legitimate, doesn’t it in turn hurt the credibility of the judiciary?
Additionally, the current unfairness in Senate apportionment is not of equal benefit to both of the country’s main political parties. Democrats tend to do better in urban, more populous states, whereas the opposite is true for Republicans. This makes it much harder for Democrats to win a Senate majority than for Republicans to do the same — even when Democratic Senate candidates win more votes in total than their Republican challengers. Surely it is unfair to hand control of the chamber to the party that routinely wins fewer votes.
The second question, concerning bicameralism, is a bit tougher to answer. What are the main benefits of having two chambers in Congress? Well, for one, it makes it more difficult to approve legislation, creating an additional veto point. Time and time again this has kept an unpopular bill from becoming law, nudging the House and Senate — as well as Republicans and Democrats — into working together on a suitable compromise.
Of course, bicameralism has also kept many good bills from becoming law, but overall the system seems to have produced more positive than negative effects. This wouldn’t change even if the two chambers were apportioned in the same manner, as representatives and senators, who serve two- and six-year terms, respectively, would still have different approaches to legislating. Because of the difference in term length, the House tends to focus more on the immediate consequences of new laws, whereas the Senate looks further ahead. Additionally, representatives are often closer to the people they serve, as they have far fewer constituents, on average, than senators, who serve the needs of entire states. Many former representatives become senators, but the reverse is more rare. A position in the Senate, being harder to attain, tends to attract candidates with more experience than most of those running for a seat in the House. The two chambers are different in many ways, not just in how they are apportioned.
Third, and last, Orts is right to argue against abolishing the Senate outright. To do so would require a constitutional amendment, which can only be approved with widespread and bipartisan support. In contrast, Orts says Senate reapportionment can be implemented through ordinary federal statute. When the status quo favors one political party over the other, it will be nearly impossible to fashion the supermajorities of support necessary to enact a constitutional amendment. A federal statute, on the other hand, only requires a simple majority in the House and 60 votes in the Senate, to invoke cloture on a potential filibuster. Of course, the greater the cross-party support the easier it is to get any type of legislation passed, but 60 votes in the Senate is still a much lower bar to clear than convincing three-fourths of the states to ratify a constitutional amendment.
Further, the Senate is important for the distinct duties it has been granted aside from legislating. For example, only the Senate can confirm federal judges and appointments to the president’s cabinet, a power the House does not possess. Additionally, the Senate has the sole power to try impeachments of civil officers of the United States, whereas the House retains the sole power to instigate this process by approving official articles of impeachment. The list goes on. It’s prudent to have a body specifically designed to be more deliberate and experienced responsible for these duties, which are more profound and long-lasting in their impact than your typical legislation.
I believe Orts’ proposal to reapportion the Senate is wise, elegant and democratic. When the framers of the Constitution first developed the structure of the Senate, state legislatures were responsible for electing senators. Only with the ratification of the 17th Amendment in 1913 — 125 years later — did American voters secure the right to directly elect members of the upper chamber. We should look at reapportionment of the Senate in light of the changing nature of our democracy. The framers of the Constitution, wise as they were, lived in a time when states were not dramatically unequal in terms of population. Unfortunately, that is no longer the case today. We have to evolve and improve American democracy in order to secure its viability for successive generations, and that involves discarding systems which no longer work as effectively as they once did.
The alternative is to never advance, remaining mindlessly beholden to the dead hand of the past. ■