Tyranny of the Minority

Jamelle Bouie

Adam Liptak, writing for The New York Times, has a long feature on Senate malapportionment, political science shorthand for the fact of unequal representation in the upper chamber of Congress. Our system has always had a small state bias, hence the Senate—a powerful body where each state gets equal representation—and the Electoral College, a variation on the same. But as large states grow larger—and small states stay small—that bias has become a decisive advantage that benefits Republicans—who tend to represent smaller states—over their Democratic counterparts. The Times has more:

Beyond the filibuster, senators from Wyoming and other small states regularly oppose and often thwart programs popular in states with vastly bigger populations. The 38 million people who live in the nation’s 22 smallest states, including Wyoming, are represented by 44 senators. The 38 million residents of California are represented by two senators.

In one of every 10 especially consequential votes in the Senate over the two decades ending in 2010, as chosen by Congressional Quarterly, the winning side would have lost had voting been allocated by population. And in 24 of the 27 such votes, the majority of the senators on the winning side were Republicans.

Liptak suggests that the Senate is "the least democratic legislative chamber in any developed nation." He's right.

To wit, this small state advantage is what allowed Republicans to block and obstruct the president's agenda throughout the first half of his first term, despite the Democratic Party's overwhelming advantage in both chambers of Congress. Using the filibuster, 41 senators—representing less than 30 percent of the total population—were able to block votes on the stimulus, health care reform, and Dodd-Frank. In each case, it took a supermajority of senators to even vote on the bills, much less pass them.

The main argument for this asymmetry of influence is that it prevents "tyranny of the majority." But while the Framers hoped for a slow-moving Senate, they didn't design it with a supermajority requirement in mind—the filibuster is an extra-constitutional innovation. Moreover, there's a difference between holding legislation (or nominees) for further debate, and using the difficult of attaining a supermajority to kill legislation outright, even if it has ample support from majorities in both chambers of Congress. Indeed, the raison d'etre of the Senate—to take the long view on pressing issues—does not depend on unequal representation or a massive small state bias. "The current allocation of power in the Senate," writes Liptak, "does not protect minorities with distinctive characteristics, much less disadvantaged ones."

There's no doing away with the Senate, and its gross malapportionment is baked into the cake. But there's no reason we should exacerbate the problem by allowing rules that further empower overrepresented minorities. At this moment in our history, "tyranny of the majority" is a hypothetical problem. "Tyranny of the minority," on the other hand, is a very real one.