Democrats and the independents who caucus with them will be playing defense in 23 of the 34 Senate seats on the ballot in the 2024 congressional elections. Four of the 23 are in swing states that Joe Biden won narrowly in 2020. Three are in states that Donald Trump won in both 2016 and 2020.
If Democrats were to lose all seven of those, a catastrophic defeat, they would start the next session in Congress with a weak minority of senators — its fewest since the days of President Herbert Hoover — who would nonetheless represent nearly half the population of the United States.
Depending on where you stand in relation to partisan politics in this country, you may not find this disparity all that compelling. But consider the numbers when you take political affiliation out of the picture: Roughly half of Americans, some 169 million people, live in the nine most populous states. Together, those states get 18 of the 100 seats in the U.S. Senate.
To pass anything under simple majority rules, assuming support from the sitting vice president, those 18 senators would have to attract an additional 32 votes: the equivalent, in electoral terms, of a supermajority. On the flip side, it is possible to pass an item out of the Senate with a coalition of members who represent a small fraction of the total population — around 18% — but hold an absolute majority of the seats. And this is before we get to the filibuster, which imposes a more explicit supermajority requirement on top of this implicit one.
Last week, The Washington Post published a detailed look at the vast disparities of power that mark the Senate, which was structured on the principle of equal state representation: Regardless of population, every state gets two members. A carry-over from the Articles of Confederation, the principle of equal state representation was so controversial that it nearly derailed the Philadelphia Convention, where James Madison and others were trying to build a national government with near total independence from the states.
It is not for nothing that in the Federalist Papers, neither Madison nor John Jay nor Alexander Hamilton attempts to defend the structure of the Senate from first principles. Instead, Madison wrote in Federalist No. 62, you should consider it a concession to the political realities of the moment:
A government founded on principles more consonant to the wishes of the larger states, is not likely to be obtained from the smaller states. The only option, then, for the former, lies between the proposed government and a government still more objectionable. Under this alternative, the advice of prudence must be to embrace the lesser evil; and, instead of indulging a fruitless anticipation of the possible mischiefs which may ensue, to contemplate rather the advantageous consequences which may qualify the sacrifice.
Today, the Senate is a distinctly undemocratic institution that has worked, over the past decade, to block policies favored by a large majority of Americans and even a solid majority of senators. And while there’s no immediate hope of changing it, a cleareyed analysis of the chamber’s structural faults can help answer one of the key questions of American democracy: Who, or what, is this system supposed to represent?
As the Post piece notes, equal state representation has never been equitable: “In 1790, Virginia, the most populous state, had roughly 13 times the population of Delaware, the least populous, with a difference of about 700,000 people.” But as the country has grown larger and more diverse, the disparities have grown greater and more perverse. The population difference between the states is so large now that a resident of the least populous state, Wyoming, as many observers have pointed out, has 68 times the representation in the Senate as does a resident of California, the largest state by population. In fact, a state gets less actual representation in the chamber the more it attracts new residents.
There is not just a disparity of representation; there is a disparity in who is represented as well. The most populous states — including not only California but also New York, Illinois, Florida and Texas — tend to be the most diverse states, with a large proportion of nonwhite residents. The smallest states by population — like Maine, Vermont and New Hampshire — tend to be the least diverse. And the structure of the Senate tends to amplify the power of residents in smaller states and weaken the power of those in larger states. When coupled with the potential for — and what is in truth the reality of — minority rule in the chamber, you have a system that gives an almost absolute veto on most federal legislation to a pretty narrow slice of white Americans.
One response to these disparities of power and influence is to say that they represent the intent of the framers. There are at least two problems with this view. The first is that the modern Senate reproduces some of the key problems — among them the possibility of a minority veto that grinds governance to a halt — that the framers were trying to overcome when they scrapped the Articles of Confederation. The second and more important problem is that the modern Senate isn’t the one the framers designed in 1787.
In 1913 the United States adopted the 17th Amendment to the Constitution, providing for the direct election of senators at the ballot box rather than their selection by state legislatures. This change disrupted the logic of the Senate. Before, each senator was a kind of ambassador from his state government. After the amendment went into effect, each senator was a direct representative of the people of that state.
If each member was a kind of ambassador, then you could justify unequal voting power by pointing to the equal sovereignty of each state under the Constitution. But if each member is a direct representative, then it becomes all the more difficult to say that some Americans deserve more representation than others on account of arbitrary state borders.
This brings us back to our question: Who, or what, is the American system supposed to represent? If it is supposed to represent the states — if the states are the primary unit of American democracy — then there’s nothing about the structure of the Senate to object to.
It’s plain as day that the states are not the primary unit of American democracy. As James Wilson of Pennsylvania observed during the Philadelphia Convention, the new national government was being formed for the sake of individuals rather than “the imaginary beings called states.” And as we’ve expanded the scope of democratic participation, we have affirmed — again and again — that it is the people who deserve representation on an equal basis, not the states.
There is no realistic way, at this moment, to make the Senate more democratic. But if we can identify the Senate as one of the key sources of an unacceptable democratic deficit, then we can look for other ways to enhance democracy in the American system.
I know that, given the scale and scope of the problem, that does not sound very inspiring. But we have to start somewhere.
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