Monday Message Board
Open for discussion
Another Monday Message Board. Post comments on any topic. As a reward to paying subscribers, I’m limiting comments to them. But if you want to comment for free, you can do so at my blog
Follow me on Bluesky or Mastodon
Read my newsletter
Fixing the US Senate
One of the most undemocratic features of the museum piece US Constitution is the Senate. As part of the grubby horsetrading that enabled its adoption, the Founders agreed that each state, regardless of population, should have two seats (Article 1, section 3), as if the Union were a pact between sovereign states like the European Union. The rule was automatically applied later to new states. The result is massive over-representation of small states and under-representation of large ones. The table below shows the situation with population estimates for July 1 2023. Washington DC, Puerto Rico and overseas territories are not included as they do not elect Senators, though they do have non-voting representatives in the House – go figure.
Population * * Population per Senator * * Population
m * *m * * m
**********************************************************************************
38.97 California 19.48 0.29 Wyoming 0.58
30.50 Texas 15.25 0.32 Vermont 0.65
22.61 Florida 11.31 0.37 Alaska 0.73
19.57 New York 9.79 0.39 North Dakota 0.78
12.96 Pennsylvania 6.48 0.46 South Dakota 0.92
12.55 Illinois 6.27 0.52 Delaware 1.03
11.79 Ohio 5.89 0.55 Rhode Island 1.10
11.03 Georgia 5.51 0.57 Montana 1.13
10.84 North Carolina 5.42 0.70 Maine 1.40
10.04 Michigan 5.02 0.70 New Hampshire 1.40
9.29 New Jersey 4.65 0.72 Hawaii 1.44
8.72 Virginia 4.36 0.89 West Virginia 1.77
7.81 Washington 3.91 0.98 Idaho 1.96
7.43 Arizona 3.72 0.99 Nebraska 1.98
7.13 Tennessee 3.56 1.06 New Mexico 2.11
7.00 Massachusetts 3.50 1.47 Mississippi 2.94
6.86 Indiana 3.43 1.47 Kansas 2.94
6.20 Missouri 3.10 1.53 Arkansas 3.07
6.18 Maryland 3.09 1.60 Nevada 3.19
5.91 Wisconsin 2.96 1.60 Iowa 3.21
5.88 Colorado 2.94 1.71 Utah 3.42
5.74 Minnesota 2.87 1.81 Connecticut 3.62
5.37 South Carolina 2.69 2.03 Oklahoma 4.05
5.11 Alabama 2.55 2.12 Oregon 4.23
4.57 Louisiana 2.29 2.26 Kentucky 4.53
A fully democratic reform would require a large expansion of the Senate and allocation of seats by population, as with the House of Representatives. The size of the latter is fixed at 435, which is still too low for strict proportionality. If Wyoming got one seat for its 584,057 inhabitants, equal representation of the 334m total American population would call for 572 Senators. That problem is trivial compared to the extraordinarily high hurdles for constitutional amendments laid down by Article 5, including ratification by three-fourths of the states. These have led some reformers to call for a new constitutional convention, but this desperate measure is generally opposed as a lottery that could easily make matters worse.
It is natural to look for fixes that may be partial but can be adopted through normal state or federal legislation, or conventions of praxis. One example is reform of the Supreme Court on German lines with expanded numbers, fixed terms, chambers, and a mandatory retirement age, which can be legislated by Congress. More directly relevant is the gently simmering National Popular Vote Interstate Compact. Wikipedia: “an agreement among a group of U.S. states and the District of Columbia to award all their electoral votes to whichever presidential ticket wins the overall popular vote in the 50 states and the District of Columbia.” The NPVIC only requires state legislation. It would come into force only when the participating states reach a majority (270 votes) in the Electoral College, making the opposition of the minority irrelevant. They currently have 209 votes, so the scheme has a real chance of success.
When you are trying to repair a broken Rube Goldberg contraption, it may pay to think outside the box. I have a modest proposal. The Seventeenth Amendment requires that “the Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years..” It has always been understood that the job of Senators is to represent the people of the electing state, but this is not explicitly laid down. A state like Wyoming could, it seems to me, define the job of one of its two senators as representing the people of another, under-represented, state, such as California. California would hold a primary, and the winner – alone – would be placed on the ballot in Wyoming as sole candidate for the at-large pseudo-Californian Senate seat. Wyoming would still be represented, indeed over-represented, by its other, competitive seat.
The scheme only makes sense as part of a wider reform. As an opening bid, let us involve 20 states, making the first ten rows in the table; the ten most over-represented as donors, and the ten most under-represented as beneficiaries. Pair them up in rank order – though a marriage market could be envisaged.
The scheme requires an outrageous and hyper-literal interpretation of a pretty clear text. In its support, advocates would have to rely on general principles of fairness. They could point out that the circle of people represented in Congress was originally far wider than the circle of electors. While the suffrage now includes women, the unpropertied and the descendants of slaves, it still excludes children, non-citizens, the mentally disabled and in many states the incarcerated, all of whom have vital interests that senators should weigh and articulate along with those of their electorate. It is a stretch to add the inhabitants of another state, but not an inconceivable one. It would also be an act of generosity and natural justice, and the expression of a shared democratic purpose.
That may be all very well, you say, but how can such a rococo reform ever advance as a piece of practical politics? Two pressures would come into play. The more democratic House has half of the Congress’ power of the purse. This can be used for instance to make federal funding in the states conditional on regular referenda on the reform, or even on passing it. The second force is corruption. A third Senate seat would be worth a few billion to California, and Wyoming is small. The billionaire wind energy tycoon Philip Anschutz, based in Colorado, did not have much trouble in securing approvals for an interstate transmission line to California for his giant Rock Creek wind farm in Wyoming. I am not being paid anything by rich tech bros for this piece, but they could easily fund an impressive and long-term lobbying and opinion-forming operation without my help. Perhaps they could avoid the bribery that greased the path to adoption of the Act of Union with England by the Scottish Parliament in 1707, supporting the objective cases of national interest and sentiment. See the apocryphal Bismarck epigram on politics and sausages.
Low politics will of course not do the job alone. Any significant reform of the US Constitution requires a broad consensus among elites and the people that this venerated antique will not survive another century on an originalist régime of “thoughts and prayers”, but needs radical reconstructive surgery. Perhaps the impending train-wreck of Trump’s second term will serve as the Darien disaster that ended independent Scotland, and open the door to the operating theatre.
Readers are invited to come up with an alternative plan that is a Pareto improvement on mine, no worse on any dimension and better on at least one.
PS: if the table comes out a mess, try changing your display font size.
Amongst all the legislation to be voted on this week is the Migration Amendment Bill 2024.
“If passed, the Migration Amendment Bill 2024 would allow the Government to exile refugees and migrants to other countries where they could be warehoused indefinitely. It would put thousands of people at risk of forced removal to unknown third countries where they may face inhumane conditions and mistreatment. The Bill would also give the government extraordinary powers to reverse protection findings made for refugees and continue imposing punitive visa conditions on those who remain here.
The Bill was introduced just one day after the High Court ruled that forcing people released from indefinite immigration detention to wear ankle bracelets and live under curfews is unconstitutional.” (Human Rights Law Centre)
The bill has been hastily devised, is inhumane and offers no hope to disadvantaged people.
Australia should be a leader in granting refuge, where possible, or else devising fair solutions for these already traumatised people.
The bill will also establish the notion that bribery is fine, even for a quick fix. What is going to be achieved if another country, Vanuatu or wherever, is paid a bribe to provide a visa to an unwanted refugee? At the end of that visa period, where does that refugee go? Australia will need to take them back, by which stage the refugee and all the others will have become even more traumatised.