Large majorities in the United States are frustrated with our national political system1—and for good reason: Congress responds to neither their desires nor their needs.2 Some part of Congress’s non-responsiveness can be characterized as inherent to a system originally designed by a white male elite permeated with a suspicion, if not outright fear, of democracy and the mob. Even today, one can argue as to what extent some structural veto points, brakes on the popular will, might serve long-term democratic interests. But whatever the ideal, we are now far past that point.
When the Constitution was ratified, the United States limited the franchise almost exclusively to white men, and some states had property qualifications to vote for decades later. Since then, the United States has made major strides towards becoming an increasingly representative democracy. One hundred years ago, the U.S. adopted the Seventeenth Amendment, making the Senate directly elected. A few years later the Nineteenth amendment gave women the right to vote. The Fourteenth and Fifteenth Amendments, combined with the Voting Rights Act of 1965, first established and then effectuated the rights of Blacks and other minorities to equal access to the polls. The trend towards equal suffrage of all citizens was furthered by the Supreme Court’s decision in Baker v. Carr, which required equal representation by population for elections to the House of Representatives.
Unfortunately, recent years have seen notable backsliding: Congress today suffers from a severe and growing (small-d!) democratic deficit caused primarily by malapportionment of the Senate. (The House’s current difficulties reflect genuine divisions exacerbated by gerrymandering.) Even at its best, the Senate gave disproportionate power to States with smaller populations as a result of the so-called “Connecticut Compromise” under which all states have representational parity regardless of population. Changes in relative population of the states now create an imbalance in voting power well beyond anything intended or imagined by the Framers, beyond what any rational architect of a representative democracy would desire. The result—exacerbated by the filibuster3—is to give blocking power to small, and increasingly radical, national minorities.
The Senate’s deeply undemocratic structure is linked to other worrying tendencies in American government. Public trust in government is at near historic lows. Since 2000, there has been growing recognition of the shortcomings of the Electoral College, highlighted by the 2016 election. Legal scholars also have become increasingly interested in the undemocratic nature of the Supreme Court. Senate malapportionment is a leading contributor to both problems. Indeed, the Senate’s problems are so serious that its countermajoritarian features present an imminent threat to democracy. The federal government’s inability to respond to voter suppression efforts at the state level, due to Senate sclerosis, also endangers the integrity of the democratic process generally.
Unfortunately, the Senate is also the most difficult federal institution to reform, because of a unique constitutional entrenchment clause erecting a high bar to constitutional amendments seeking to alter the Senate’s composition. As if the ordinary Article V amendment process were not daunting enough, an amendment altering the Senate’s composition must receive the consent of any state “deprived of its equal Suffrage in the Senate.”
Legal scholarship has paid too little attention to the distorting effects of the Senate’s fundamental design, even as its consequences have become increasingly serious. Some scholars importantly have recognized the centrality of the Senate in driving constitutional sclerosis, but legal scholarship has devoted little systematic effort to thinking about reform or alternatives. Some scholars have proposed circumventing Article V entirely. But these proposals contradict express constitutional text, making them controversial at best, flatly unconstitutional at worst. Others have proposed Machiavellian workarounds to facilitate an Article V amendment reforming the Senate. But constitutional hardball invites anger and retaliation. Before resorting to it, it is worth investigating systematically the more conventional avenues available for reform.
- Even before the January 6 storming of the Capitol, only a minority of U.S. persons surveyed said they were “satisfied with the way democracy is working.” Pew Research Center, Many in U.S., Western Europe Say Their Political System Needs Major Reform (Mar 31, 2021). From September of 2020 to September of 2022, Gallup found disapproval of Congress to range from 61% to 82%. Congress and the Public, Gallup (2022), https://news.gallup.com/poll/1600/congress-public.aspx. Since 2010, Congress’ yearly approval rating has ranged from 11% to 30%Claire Miller, Congressional Approval Rating Breakdown, Quorum (Apr. 6, 2022).
- Sixty-two percent of voters support a $15 an hour minimum wage. Guy Molyneux, Hart Research Associates, NATIONAL EMPLOYMENT LAW PROJECT, 1 (Feb 2, 2021).
- See, e.g. Ezra Klein, The Senate Has Become a Dadaist Nightmare, N.Y. TIMES (Feb. 4, 2021). Because of the filibuster, Congress has passed little substantial legislation outside of the reconciliation process in over a decade; see also Josh Chafetz, The Unconstitutionality of the Filibuster, 43 CONN. L. REV. 1003 (2011); Gerard N. Magliocca, Reforming the Filibuster, 105 NW. U. L. REV. 303 (2011); Jonathan S. Gould, Kenneth A. Shepsle & Matthew C. Stephenson, Democratizing the Senate from Within (unpublished manuscript), available at https://ssrn.com/abstract=3812526.
