The Senate of Brobdingnag (6 Dec 2005)
The United States Senate is one of the most bizarre and unrepresentative legislative bodies in the democratic world – and I say this advisedly, coming from a country where a seat can be filled by an election among four people with hereditary titles who support a particular party.
Each of the 50 states of the US elects two Senators. The nation’s capital, the District of Columbia, cannot, probably because the idea of black people voting hasn’t caught on sufficiently among other legislators. Representation is unrelated to population, so that Wyoming has two Senators for its population of just under 500,000, and California has two Senators for its population of just under 34 million. The 15 per cent of the American people who live in the smallest states can command a Senate majority.
Senate malapportionment is a time bomb under American democracy.
The reasons that the Senate is such a problem are twofold. One is that it is an exceptionally powerful second chamber. The US Senate has effectively an equal role in the legislature to the House, and in some crucial areas it is actually more important. This makes it distinct from other malapportioned upper chambers in other parliaments (such as Australia and Germany), whose decisions can usually be overridden by the lower house eventually, as with our own dear House of Lords. The Senate can completely block a President’s nominations to the Supreme Court (and other courts), the Cabinet and other executive positions, and veto treaties. It can cut off government funds.
The second is that the bias in favour of small states has systematic consequences. The bulk of the ethnic minority population lives in larger states – California, Texas and Florida notably among them. It is not accidental that the number of black Senators in US history can be counted on the fingers of one hand. The small states – Wyoming, the two Dakotas, Montana, Vermont etc – are among the least ethnically diverse places in the US. They also lack urban areas, and tend towards social conservatism, distorting the entire agenda of US public policy and even judicial philosophy.
This quota system for white rural dwellers has delivered the Senate to the Republicans. The Democrats won the popular vote in Senate elections in 2000 (by 0.6%) and 2004 (by 4.8%) but the Republicans won in 2002 (by 4.1%). Cumulated, this is a 48.4% to 46.8% Democratic advantage. But instead of a thin Democratic lead the Republicans have a comfortable majority with 55 out of 100 seats. The Democrats are only viable as a Senate party because they have a number of popular individuals who can win election even in very conservative states, such as Senator Nelson of Nebraska or Dorgan of North Dakota. Republican strategy has been to make Senate contests ideological rather than personal in these states, and succeeded in knocking out the Democrats’ leader Tom Daschle in South Dakota in 2004.
It is going to get worse. Population projections show the majority of growth taking place in the large states, so that by 2050, according to Steven Hill of Fairvote in Fixing Elections, as few as 5 per cent of the American population may have majority power in the Senate. It should be a matter of some shame that, as Matthew Shugart comments, Robert Mugabe took a leaf out of the American book in devising his gerrymandered Senate.
It is quite possible that future Democratic Presidents would be able to govern only by the consent of an entrenched conservative Republican Senate, even if they had majority support from the electorate.
Senate reform is an even more daunting prospect than it is for the House. A constitutional amendment requires the support of two thirds of the Senate and three quarters of state legislatures, so the small states can veto changes that reduce their excessive power. Equal representation by state is written into the Constitution. One reform that would make the problem a little less sharp would be to elect both Senators from each state at the same time using 2-member STV. But this would probably still result in a situation where the two possible options for control would be a conservative Republican majority or a Democratic majority that would have to look very carefully after the interests of its incumbents in conservative states. It’s a potentially terrifying mess. Much of it results from an undue emphasis in the US Constitution on protecting minorities from majoritarian tyranny (Senate malapportionment, supermajority requirements for Constitutional amendment), that has now opened the way to the tyranny of a favoured minority.