The United States Senate is a deliberative body that does not move quickly. It was meant to be so and its refusal to make hasty decisions irked even the nation’s first president. Just five months after the Senate convened for the first time, President George Washington visited the chamber, then at Federal Hall in New York City, to seek its approval of an Indian treaty. To his dismay, the Senate delayed their decision while the treaty was referred to committee. Washington never again sought Senate approval in person. Thus, a precedent was set for this legislative body to be, often, a thorn in the side of the chief executive.
Today, the very nature of the Senate is quite different from that which was originally intended and a solid argument can be made for a return to the founders’ design. One thing has remained constant, however; the Senate often infuriates both the president and the House of Representatives. With the recent confirmation of Brett Kavanaugh to serve on the Supreme Court, some on the political left want still more changes to the Senate – changes that would all but negate its purpose and corrupt the very nature of America’s representative government.
Senate Transformed
Originally, the Senate’s primary purpose was to represent the states at the federal level, just as the House of Representatives served as the voice of the people. By setting the number of senators at two for each state, the framers of the Constitution ensured that all states would have equal representation. Senators were appointed by state legislatures; a measure that was adopted to preserve the authority of the states. The Senate’s role was to provide advice and consent to the president, in the matter of treaties and presidential nominations and to polish legislation crafted in the House of Representatives.
As early as the late 1800s, there were several attempts to amend the Constitution and allow states to elect their senators by popular vote. The main motivation was to avoid deadlocks in the appointment process at the state level when state legislatures failed to reach a consensus on a nominee. This happened infrequently but, when it did, states found themselves without full representation in the Senate.
By 1911, the House of Representatives had passed a bill – House Joint Resolution 39 – proposing a constitutional amendment to elect U.S. senators. This lead to the 17th Amendment being ratified in 1913. The number of senators each state sent to Congress remained the same, however; two from each state, maintaining the principle of equal representation for every state.
A More Representative Senate?
The highly contentious confirmation of Brett Kavanaugh, President Donald Trump’s second nominee to the Supreme Court, has stirred the political left to ponder what it sees as a flaw in the makeup of the Senate. Political defeats usually lead the left to demand changes to the institution that failed to produce a favorable result. If a Democratic presidential candidate wins the national popular vote but loses the election, the left calls for abandoning the Electoral College. The narrow 50-48 vote to confirm Kavanaugh has now provoked left-wingers to suggest the Senate is not sufficiently representative.
Ken Dilanian, a reporter for NBC News, is one of those who now believe the Senate should abandon its founding principle of providing equal representation to all the states of the Union. Philip Bump, a correspondent for The Washington Post, also bemoans the fact that the new associate justice was confirmed by “senators representing less than half of the country.” As is the case with the Electoral College, though, the Senate is formulated to prevent a handful of the most populous states dominating the political landscape, while states with smaller populations find themselves with practically no meaningful representation at the national level.
Tyranny of the Majority
“It may not happen in our lifetimes,” Dilanian tweeted October 6, “but the idea that North Dakota and New York get the same representation in the Senate has to change.” One has to wonder, of course, why this reporter believes the people of North Dakota are less deserving than the people of New York of a voice in Washington. The answer is that those on the left want direct democracy; something the Founding Fathers regarded – correctly – as a form of mob rule, or what James Madison described as “the tyranny of the majority.”
By definition, direct democracy is technically capable of resulting in the disenfranchisement of 49% of the population, as the majority 51% has its way. This strikes at the core of the fundamental difference between left and right in America: The right cleves to the original founding principle that the best system of representation is one in which the people – and government – of each state has political power equal to the people and government of every other state. That is the beating heart of a Republic. By contrast, the left wishes to abandon republican government, sideline states’ rights and have everything decided by simple majority – even if that majority encompasses only slightly more than half of the population.
If states were appointed a number of senators proportional to their respective populations, then about five states would wield enormous power in the Senate, while about 20 states would, individually, have almost no say at all in presidential nominations, foreign treaties or in domestic legislation. As with the scrapping of the Electoral College, such a change would effectively disenfranchise the residents of around 30 of the 50 states.
A Fork in the Road
By necessity, the Senate would expand from the current 50 seats – excluding the Senate president – to who knows how many. Depending on how such apportionment of senators was decided, there could be as many as 200 to 300 Senators. Anyone who thinks the Senate is slow to carry out its duties now should think about how long it would take for 200 or more senators to reach a consensus on anything.
In the final analysis, the states of California, Texas, New York, Florida, Pennsylvania, and one or two others would dictate everything that happens at the federal level. These states, being the most populous, already have the largest numbers of representatives in the House. That system works well enough and provides American citizens with fair and proportional representation. The different nature of the Senate – with its smaller scale and a body that represents all states equally – serves as a balance. To destroy that balance and transform the Senate into a mere second House of Representatives would be to shatter the foundation of the republic itself.
If a fundamental change to the Senate is needed at all, it is one which will reduce the hyper-partisanship that has overtaken the body in recent decades and at a more alarming rate since the early 2000s. When the Senate was formed, it was decided that senators would serve six-year terms to free them of the pressures and volatility of almost constant electioneering. In the days before the federal government was dominated by two diametrically opposed political parties, that solution worked well enough but, clearly, it is no longer an adequate fix; one-third of the Senate runs for re-election every two years and the pressures this brings to the two parties – locked in a constant battle for the majority – demonstrates that the Senate needs to be free, once again, from the pressures of political campaigning.
The solution, then, is to repeal the 17th Amendment and return, to the state legislatures, the power to appoint senators. At present, the Republican Party controls the overwhelming majority of those legislatures. As of February 2018, the legislatures of 32 states were controlled by Republicans, according to the National Conference of State Legislatures.
Leftists, then, would argue that repealing the 17th Amendment today would hand the Republican Party a commanding majority in the Senate. While that is true, it would shift much of the nation’s political focus to the state level; residents of each state would invest much more of their attention and personal participation in district and state-level politics. The consequences of their votes for state legislators would become far more consequential, as those legislators would, in turn, appoint U.S. Senators. In effect, politics would again become much more local.
Citizens in every state would learn that they are equally responsible for the make-up of their state governments and for the direction of the federal government. The states themselves would, once again, have more direct representation and influence in Congress.
Beyond the bickering over a multitude of national issues – both economic and cultural – the American people stand at a fork in the road: They can choose to abandon the constitutional republic in favor of a system that appears, on its face, to empower the electorate fairly but leads, in reality, to an electoral majority that decides everything, to the exclusion of the minority. Arguably, such a system could well lead to the breakup of the United States. The alternative road leads to a more devolved political landscape in which the republican system survives. The status quo, at this point, may not be an option.
