The Washington Times | by Dave Boyer | December 20, 2021
The collapse of Democrats’ social welfare bill at the hands of Sen. Joe Manchin III has renewed the call by some liberals for abolishing the Senate‘s constitutional design of two votes per state and replacing it with something more like the House, where more populous states have greater influence.
Sherrilyn Ifill, president of the NAACP Legal Defense Fund, said a “healthy democracy” shouldn’t be “structured in a way that can allow one man elected by 290,000 voters in one of the least populous states to thwart the agenda of his party and the President who was elected with 81 million votes.”
“We need structural change,” she said in a post on Twitter. “We are in crisis [because] too many structural flaws can be exploited.”
She claimed that Mitch McConnell, as Senate majority leader, single-handedly blocked President Obama in 2016 from filling a vacancy on the Supreme Court, though 53 other Republican senators sided with Mr. McConnell‘s position at the time.
Others point out that Mr. Manchin, West Virginia Democrat, was part of a Senate majority opposed to President Biden‘s $1.75 trillion spending plan, even though Mr. Manchin was the only Democrat to announce his dissent. All 50 Republicans in the 100-seat Senate lined up against the package.
Former New Jersey Gov. Chris Christie, a Republican, called the pleas for reshaping the Senate‘s structure “ridiculous.”
“It is 51 senators, a MAJORITY of that body, that is rejecting this bill,” Mr. Christie responded on Twitter to Ms. Ifill. “Are you against majority rule in the Senate? It passed by a 2 vote majority in the House—that’s ok by you but a one vote loss in the Senate is evidence of an unhealthy democracy? What hypocrisy.”
Minnesota state Rep. Jeremy Munson, also a Republican, said it is “frightening to hear ‘We need structural change’ in this context.”
Anthony Michael Kreis, a constitutional law professor at Georgia State University, agreed with Ms. Ifill that the issue with the Senate is “structural.” He said the U.S. constitutional system built “counter-majoritarian” institutions “intended to do the work of majoritarian politics.”
“The Senate‘s design produces deviant results. Our system is not entirely healthy,” he tweeted.
In an email to The Washington Times, Mr. Kreis said the Senate “has become so mal-apportioned that it is hard to form a functioning, governing majority that reflects the public’s preferences.”
“As a consequence, it is more likely to act as a counter-majoritarian institution though it is supposed to be a body that reflects majoritarian politics,” he wrote. But he conceded that changing the Senate “would require some structural overhaul to the Constitution that will likely never to come to fruition.”
That hasn’t stopped Democrats from trying to gain an advantage year after year. Democrats continually push for statehood for Puerto Rico and the District of Columbia, which would almost certainly add four more Democrats to the Senate.
At a fundraiser in Chicago in 2014, Mr. Obama blamed the structure of the Senate for the inability to get his agenda passed. He said having each state represented by two senators hurts Democrats.
“Obviously, the nature of the Senate means that California has the same number of Senate seats as Wyoming. That puts us at a disadvantage,” Mr. Obama said at the time. “So there are some structural reasons why, despite the fact that Republican ideas are largely rejected by the public, it’s still hard for us to break through.”
Article 1, Section 3, Clause 1 of the Constitution provides for each state to be represented by two senators, part of the “great compromise” in 1787 that addressed the concerns of smaller states about the potential loss of states’ rights. Representation in the 435-seat House is determined by population in the census every 10 years.
Changing the representative structure of the Senate would require action revolutionary in its scope. Article 5 of the Constitution states that “no state, without its consent, shall be deprived of its equal suffrage in the Senate,” which is often interpreted to mean that there is no process of amending the Constitution to change the apportionment of Senate seats or to abolish the Senate.
Eric Orts, a professor of legal studies and business ethics at the University of Pennsylvania’s Wharton School, wrote in The Atlantic in 2019 that Article 5 applies only to constitutional amendments, not to legislation. Therefore, he said, Congress could conceivably approve a “Senate Reform Act” that would give larger states more senators than smaller ones.
“Because it’s legislation rather than an amendment, Article V would — arguably — not apply,” he wrote.
Democrats control the White House, the House of Representatives and the Senate, but their narrow majorities in Congress this year have often blocked them from passing liberal priorities on a partisan basis.
Some frustrated liberals seethe that states such as Wyoming (population 590,000) have equal representation in the Senate with California (population 39.37 million).
Mr. Obama said earlier this year that unless the Senate changes the filibuster, which requires 60 votes to pass most legislation, it “means that maybe 30% of the population potentially controls the majority of Senate seats.” He has called the filibuster “a Jim Crow relic.”
The 21 smallest states with two Republican senators comprise 29% of the U.S. population. Their 42 votes could block legislation supported by 58 senators representing 71% of the population, assuming that majorities in all the other states favor a given piece of legislation.
Liberals have been clamoring all year for the Senate to abolish the filibuster. Without the filibuster, Democrats likely could pass a voting rights law that Republicans say would nationalize state and local election regulations. They also could approve Mr. Biden‘s social welfare bill and statehood for the District and Puerto Rico, among other liberal priorities. Mr. Manchin and Sen. Krysten Sinema, Arizona Democrat, have resisted calls to abolish the filibuster.
Senate Majority Leader Charles E. Schumer, New York Democrat, said Monday that the Senate will consider changing the rule next month “if Senate Republicans continue to abuse the filibuster and prevent the body from considering” the voting rights bill.
Eli Zupnick, a spokesperson for the liberal advocacy group Fix Our Senate, said “we’re closer than ever to reforming the filibuster to protect Americans’ voting rights and the health of our democracy.”
Mr. McConnell warned last week that any attempt by Democrats to eliminate the legislative filibuster would result in “armageddon for our institutions.”
“As cracks keep forming in the Democrats’ reckless taxing-and-spending spree,” Mr. McConnell said, “some of our colleagues seem to channel their frustration into even more radical attempts to attack our government institutions.”
The Republican leader said it would set a horrible precedent for one party to destroy or alter institutional guardrails, including the filibuster and the size of the Supreme Court, just because their policy agenda hits a wall.
“Entire generations of statesmen would have seen … these unhinged proposals as armageddon for our institutions,” Mr. McConnell said.
• Haris Alic contributed to this report.
• Dave Boyer can be reached at email@example.com.