You’re Fired!
The Senate often stands in the way of great progressive reform, so how can we get rid of it?
By Dylan Matthews
April 22, 2009
Senate Majority Leader Harry Reid (AP Photo/Kevin Wolf)Let’s face it: the Senate sucks. And not just this Senate in particular—there is an intrinsic, institutional suckiness that pervades the upper house of Congress. It’s uneven in its democratic representation of constituents. Wyoming and California have 0.175 percent and 12.1 percent of the U.S. population respectively, but each gets an equal 2 percent of the Senate. As the last year has made clear, its internal structure is still more undemocratic and arbitrary. Mechanisms like the filibuster and PAYGO restrictions lead to a bizarre system in which personal whims of Ben Nelson can deprive the states of $25 billion in education funding, or the reelection concerns of Arlen Specter can seemingly sink the Employee Free Choice Act, even when 51 other Senators (or more) disagree.
Some of these problems could be solved by internal procedural reforms, such as repealing PAYGO rules (PDF) or abolishing the filibuster. But those reforms could be reversed by a future Senate, and the problem of disproportionate representation would remain. Fundamentally, a unicameral legislature, consisting solely of the House of Representatives, would be less prone to gridlock and more democratic than the current system. The remedy is clear: we need to abolish the Senate.
Given that it is established in Article I of the Constitution, how would one go about getting rid of the world’s greatest deliberative body? A constitutional amendment would be in order, naturally. But the hang-up depends on how you interpret Article V, which governs the amendment process, and specifies that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.”
Sanford Levinson, a professor at the University of Texas law school and author of Our Undemocratic Constitution, thinks a Senate-abolishing amendment would not violate Article V. “The lack of any suffrage at all for any state would meet the formal requirements of "equal suffrage" (i.e., none for anyone),” he said. Daniel Farber, a professor at UC Berkeley, agrees, and argues that equal representation may not even be required. “One of my former colleagues once suggested to me that the Senate to which the equal representation cause refers no longer exists because of the 17th Amendment, providing for direct representation of Senators,” he recounts.
Opinions are not unanimous, however. Michael Dorf of Cornell Law School thinks Article V rules out this means of abolishing the Senate. “My view is that this would indeed require unanimity,” he explains. However, even if Article V precludes such an amendment, this raises another question. What if, before passing an amendment abolishing the Senate, another amendment passed removing the “equal suffrage” clause from Article V? Such a change would remove any impediment to abolishing the Senate, but the question remains of whether it would be legitimate.
Dorf doubts that it would be, and thinks the unanimous consent of the states would be needed, just as with abolishing the Senate through a single amendment. Levinson thinks the question is ultimately one of politics and not Constitutional interpretation. “My own view is that if the country were ever sufficiently outraged by the Senate to support an Article V amendment that was able to gain 2/3 support in Congress and then ratification by 3/4 of the states, no court would (or should) dare to block it on constitutional grounds,” he says. Larry Kramer, a constitutional law expert at Stanford Law School, agrees, but is not as confident in his prediction as Levinson. “It’s just not a question as to which there is a ‘right’ legal answer. There are legal arguments on both sides,” he explains, “But as with many or most constitutional issues, law and politics are inseparable and it would be a political resolution, with legal arguments as part of the rhetoric.”
For their part, the Constitutional scholars I talked to vary widely in what they think should happen to the Senate. Kramer thinks the institution is worth preserving despite its flaws. “Personally, I do think that abolishing the Senate would be a very stupid move, even with its malapportionment,” he says. Farber suggests a compromise. “How about a pragmatic solution: All of the states retain equal representation in the Senate, but add ten members elected ‘at large’,” he proposes. “That would increase the Senate’s democratic legitimacy but each state would continue to have the same number of Senators as every other state.”
Interestingly, Dorf’s personal beliefs run up against his constitutional interpretation. He’s disappointed that the Constitution, in his view, does not give the people the right to abolish the Senate. “I think this is quite an unfortunate feature of our constitutional system and undermines its legitimacy as a matter of first-order political theory,” he laments.
Meanwhile, Richard Epstein, a noted libertarian legal scholar at the University of Chicago, is offended by the very notion that one would try to eliminate the Senate without consent of the states, even given the body’s shortcomings. “The imbalances in the senate are much more costly now than ever before,” he asserts. “And second, the effort to undo it without consent of the states reflects all the misguided ingenuity of too much modern constitutional interpretation.”
To be fair, this exercise is almost entirely academic. Even if a Senate-abolishing constitutional amendment were possible, it would have to go through the ratification. That, of course, involves such an amendment getting 67 votes in the Senate, which will clearly never happen. But the interpretations of scholars like Levinson and Farber give us hope that someday, a particularly self-loathing instantiation of the greatest deliberative body on earth will have the common decency to vote themselves out of power.
Dylan Matthews is a staff writer at Campus Progress and writes a blog formerly known as Minipundit.
Social Bookmarking
--------
Comments
!
Re: the photo caption—isn’t Harry Reid the Senate Majority Leader?
— Emily - Apr 22, 07:19 PM - #i hope this is a joke.
— Tori - Apr 23, 12:24 AM - #“One of my former colleagues once suggested to me that the Senate to which the equal representation cause refers no longer exists because of the 17th Amendment, providing for direct representation of Senators,” he recounts.
Right. This is precisely why the 17th Amendment needs to be repealed. The cure for the philosophical and practical limitations of democracy is NOT more democracy. A citizen can already elect her own state legislature, her governor, and in many states, even her judges. The Federal Government is “federal” precisely because it should represent states as one of the several powers (the U.S. House being the tool to represent “the people”). The 17th made your argument possible, but it is misplaced. The solution to the problem of a silly Senate is to restore its original purpose, not make it more comical.
P.S. The constitution does give you another avenue for making amendmends that does not require the Senate to vote: A constitutional convention. Your article makes me suspect that you don’t know much about the constitution and why it was written the way it was.
— RestoreFederalism - Apr 23, 12:25 PM - #“One of my former colleagues once suggested to me that the Senate to which the equal representation cause refers no longer exists because of the 17th Amendment, providing for direct representation of Senators,” he recounts.
Right. This is precisely why the 17th Amendment needs to be repealed. The cure for the philosophical and practical limitations of democracy is NOT more democracy. A citizen can already elect her own state legislature, her governor, and in many states, even her judges. The Federal Government is “federal” precisely because it should represent states as one of the several powers (the U.S. House being the tool to represent “the people”). The 17th made your argument possible, but it is misplaced. The solution to the problem of a silly Senate is to restore its original purpose, not make it more comical.
P.S. The constitution does give you another avenue for making amendmends that does not require the Senate to vote: A constitutional convention. Your article makes me suspect that you don’t know much about the constitution and why it was written the way it was.
— RestoreFederalism - Apr 23, 12:26 PM - #Yes, it should be Majority Leader. Thanks for catching that! Fixed now.
— The Editors - Apr 23, 04:51 PM - #Without the archaic senate rules you mentioned there would be drilling going on ANWR and the Bush admin would have been able to mess up this nation even more. As much as I agree with the logic of your points, I find the thought of another Bush in power without the Senate to halt his idiotic plans chilling.
— Tommaso - Apr 23, 04:52 PM - #Not to appear to flippant, but I knew that I had read something similar to this. It’s interesting to compare how the two of you approach this (admittedly fun) thought experiment.
www.slate.com/id/100…
— Keith White - Apr 23, 07:33 PM - #How can a person take this seriously? Any attempt to abolish the Senate, which protected many minority issues during the Bush years, would be idiotic.
Talk about overreaching….
— Michael Radtke Jr. - Apr 24, 02:06 PM - #I agree that abolishing the Senate seems quite foolish; I think we should be advocating more proportional gender/racial representation instead.
— Matthew - Apr 25, 03:53 PM - #This is beyond absurd.
If you’ve ever bothered to read the Constitution, you know that the states retain the power to amend the Constitution without the express vote of the Senate. Perhaps, one day, they will use this power to impose much needed term limits on our federal legislature.
However, IF you had bothered to read the Constitution, you would also know that a mere 13 states have the power to block any amendment.
Since the core of your childish argument seems to be that the Senate disproportionately represents the less populous states, why in the world would those same states ever vote to take away their disproportionate influence via the Senate?
— Peter - Apr 26, 12:12 AM - #One should remember that the Constitution establishing the current federal government, was drafted with the intent that the Federal Government should and would never be a Unitary state.
Numerous changes over time, along with incremental appropriation of legal powers of jurisdiction by the executive order and congressional bills signed into law have slowly made the United States of America more Unitary in nature. This change undermines the self-correcting ability of having the partially sovereign states, which only partly cede their sovereignty to the common federal state, to act as self-correcting checks upon the decisions of what our founding drafters understood would be a government without checks not within itself, but without itself. Thus the states you might say act as a 4th branch of government.
This may not always be the most efficient course of action, but one that in an ideal world before mass-instant-omnipresent-media evolutions, could forestall any un-libertarian actions by a government intent on assuming more power for itself.
The states’ direct ability to place and recall their senators served to act as a blunt upon any populist actions by a House which might suffer to get us in trouble with a unitary executive plying said House.
— Jason - Apr 29, 09:45 PM - #I agree that the 17th amendment should be repealed.
And more powers should be devolved to the states, who then should consider the most efficient method of implementing those powers with their municipalities and other local divisions of the states.
Such a political order, may not ensure universality of all code of law (which in situations now is still the case) but in seeing the political order as a manifestation of us human beings, who are organisms in an ecological structure, we should know well enough by now, that diversity within a system ensures redundancy and ability for survival should any one component of the order fall apart or be runover, biologically or politically.
States can both propose and ratify Amendments to the US Constitution. This process has never been used but the Senate can be abolished without that undemocratic aristocratic body having any say in the matter.
— Jason Lee - Jun 11, 11:17 AM - #