Constitutional Conventions

by digby

This op-ed in today's Washington Post ponders one of the favorite quixotic dreams of many liberals: the elimination of the electoral college and the Senate, two of the two most egregiously undemocratic institutions in America. (There are others --- the Fed comes to mind.)

This essay discusses the well-known, bizarre fact that in our alleged democracy, Senators who represent 3% of the population have the power to decide something of great national import like health care reform --- and routinely do on the basis of narrow parochial interests. For those of us who live in great big states like California, one of the most frustrating things have to put up with is this constant refrain from rural and small population states that they are victimized when they clearly have veto power over the whole damned government and whose residents have far more power relative to their population.

But the really interesting part of the piece discusses the political sausage making that created the Senate in the first place and how its been used over the years to consistently favor the moneyed interests:

[T]he Senate is as much a product of bare-knuckled, self-interested politics as last week's fight over military earmarks. In Philadelphia in 1787, the smaller states favored the New Jersey Plan -- one chamber with equal representation per state -- while James Madison argued for two chambers, both apportioned by population, which would benefit his Virginia.

The delegates finally settled on the Connecticut Compromise, or the Great Compromise. Seats in the lower chamber would be apportioned by population (with some residents counting more than others, of course) while seats in the upper chamber would be awarded two per state.

The idea was to safeguard states' rights at a time when the former colonies were still trying to get used to this new country of theirs. But the big/small divide was nothing like what we have today. Virginia, the biggest of the original 13 states, had 538,000 people in 1780, or 12 times as many people as the smallest state, Delaware.

Today, California is 70 times as large as the smallest state, Wyoming, whose population of 533,000 is smaller than that of the average congressional district, and, yes, smaller than that of Washington D.C., which has zero votes in Congress to Wyoming's three. The 10 largest states are home to more than half the people in the country, yet have only a fifth of the votes in the Senate.


For the first few decades in Congress's history, the more democratic House was where the action was. "The authors of the Constitution really thought the House would be the driving engine, and the Senate would just be the senior group that would perfect legislation that came up from the House," Ritchie said.

But after the Missouri Compromise of 1820, it was clear that the battle over slavery would be fought in the upper chamber. After the Civil War, the Senate became the bastion of the GOP as the party pushed to admit pro-Republican states to the union. Nevada was admitted in 1864 to help ratify the Civil War amendments despite being virtually empty; the Dakotas joined in 1889, split in two to provide more votes in the Senate and the Electoral College; Wyoming joined a year later with 63,000 residents.

With these added votes in the Senate and the Electoral College, the Republicans dominated throughout the late 19th century despite Democratic strength in the House. High tariffs, land giveaways in the West, lax regulation of railroads and a pro-business Supreme Court were all thanks partly to the underpopulated new states, says MIT historian Charles Stewart III.

A few decades later, the politics had flipped, and it was the South relying on the Senate -- and the filibuster -- as a bulwark against civil rights legislation. In any case, the Senate's preeminence was established, even as the Britain's House of Lords and upper chambers in other countries' legislatures lost sway. Add the rise of the filibuster and the fact that small-state senators tend to stick around longer, gaining powerful chairmanships under the seniority system, and you've got today's change-resistant Senate.

Compared to the rest of the world, then, the United States has actually gone backwards in terms of small d democracy, so it shouldn't surprise us when we are also slipping behind other first world countries in almost everything but war making and money handling as well. As I've written before, every American should stop and ponder once in a while that we have nearly the world's oldest democracy but in the great global democratization of the past century nobody has adopted our system of government.

It's the bill of rights that makes the US Constitution great, not the clunky system of governance a bunch of wealthy landowners came up with through a series of deals and compromises. But it must be said that for the most part it's worked. The country has magnificent resources and its culture of immigration has made it innovative and energetic. You have to wonder if it may not be able to continue down that path if global economic competition, climate change, pandemics --- all the sorts of problems we are confronting in this new century --- are too big for its outmoded, slow, provincial politics to handle.

I don't hold out any great hope that this will change any time soon. The Senate can't even get rid of (or modify) the filibuster even though this is what's happening:

Of course, modifying the filibuster wouldn't really change things. The Democrats have 60 votes in their caucus now but they certainly don't have 60 votes to break a filibuster. I'm not sure there won't always be some egomaniac or myopic prince protecting his little fiefdom in the Democratic Party willing to side with Republicans for his own reasons. And, obviously, eliminating the Senate is impossible short of a constitutional convention.

We will have to live with this strange system that doesn't work very well unless some cataclysm forces a change, so it would probably be a good idea to try to figure out a better way to govern as progressives. One obvious place to start would be the seniority system. There is no reason that a guy like Max Baucus, bought a paid for by big business and representing fewer people than live within 20 square miles of my house, should not only have the outsized power of his vote, but the power of his committee chairmanship for years on end. Unfortunately, the Senate is the most exclusive club in the world and they all take care of each other, so that's a tough one.

The House of Lords is a problem and I honestly don't know what the answer is.

I wrote more on this at The Big Con a while back, delving into a different aspect of it referencing some scholarly work by Law professor Lawrence Tushnet. It's a deep topic.