In the early 1990s, a furor erupted over attempts to carve out two or possibly three "majority-black" congressional districts in the state of Georgia. As the controversy mounted, all the usual charges and countercharges filled the air. When liberals argued that racial redistricting was necessary to make up for a long train of abuses, conservatives accused them of trying to create safe Democratic seats in an otherwise hostile South. When Republicans argued that such districts were a new form of racial segregation, Democrats shot back that it was a little late for Republicans to raise such an alarm.
Eventually, a conservative-dominated Supreme Court put an end to the debate by coming down squarely on the side of the GOP. Newt Gingrich and his troops were exultant.
But what no one seemed to notice amid the tumult was that as bad as the House of Representatives might be on minority representation, the situation in the Senate is many times worse. While the House at least makes a pretense of fairness, the other chamber does not. Its peculiar method of representation, unchanged for more than two centuries, underrepresents blacks by some 43 percent according to Sizing Up the Senate, while underrepresenting Hispanics, who are disproportionately concentrated in a handful of states, by an even more astonishing 72 percent. While the House is committed in principle to one-person-one-vote, the Senate weights some citizens' votes more than 60 times as heavily as others' based solely on where they live. It is as lopsided and unequal as any Southern state legislature in the days of Jim Crow, yet, with a few exceptions, the chattering classes act as if the problem doesn't exist.
Sizing Up the Senate is remarkable not so much for what it says as for the fact that it says anything about this aspect of the Senate at all. America's upper house, say political scientists Frances E. Lee of Case Western Reserve University and Bruce I. Oppenheimer of Vanderbilt, is "the most malapportioned legislature in the world." Virtually every other bicameral legislative system has been careful to make the so-called upper chamber less powerful than the lower, but in the United States the Senate is fully equal to the House in clout, if not superior.
Yet the Senate's method of apportionment is increasingly at odds with any modern notion of democratic equality. In 1789, when the first senators took the oath of office, the ratio between the most populous state (Virginia) and the least populous one (Delaware) was 11 to one. Today, the ratio between California and Wyoming is more than 60 to one, while by the year 2025, according to the latest census projections, it will be more than 70 to one. Currently, California is almost evenly split between whites and nonwhites, yet, according to the same projections, today's "minorities" will constitute nearly a two-thirds majority in that state by the year 2025. Over the same period, Wyoming's nonwhite population is expected to go from 11 percent all the way up to--gosh!--15 percent. Assuming that past practice holds, however, representation will remain stuck at exactly two senators each.
The result, among other things, is an ever more egregious form of minority rule. In 1790, as Lee and Oppenheimer point out, it was possible to assemble a Senate majority out of members representing 30 percent of the national population; today, it is possible to do the same with senators representing just 17 percent. Under current rules, 41 senators representing as little as 11 percent of the U.S. total can effectively veto any bill, while 34 senators representing as little as 7.5 percent can block any constitutional amendment. To quote Daniel Patrick Moynihan, the only senator who apparently realizes that anything is amiss: "Already we have seven states with two senators and one representative. The Senate is beginning to look like the pre-reform British House of Commons."
This is indefensible by any standard. The participants in the 1787 Constitutional Convention agreed to equal state representation in the Senate because it was the only way to win over states like Delaware and New Jersey that feared being bulldozed by transappalachian giants like Virginia and Pennsylvania. Yet while the United States has seen every sort of geographical and ideological conflict over the ensuing centuries, it has never seen one in which differences in state population have played any significant role. After all, what conceivable reason could New York and Texas have for ganging up on, say, Vermont and the Dakotas? Where equal state representation once seemed justifiable on the grounds that the Senate was an assembly of the states rather than of the people, that argument was effectively destroyed by the 17th Amendment, which transferred the election of senators from the state legislatures to the people at large. Now that the House and Senate both represent the people, it is hard to understand why some people continue to be more equal than others.
The utter thoughtlessness of the current arrangement is evident in the fatuity of the sentiments offered from time to time on its behalf. Senator Robert Byrd of West Virginia defends equal state representation not because it yields disproportionate benefits for his constituents (all 1.8 million of them), but because it is "one of the great foundation stones, if not the principal foundation stone, of our constitutional system." Yet if America is a democracy, as Byrd no doubt believes it is, how can it rest on a foundation so patently undemocratic? Or consider the following gem from the pen of William Smith White, a popular political writer of the 1950s and 1960s:
The Senate, though the Senate of the United States, is in fact the Senate of the States, so that never here will the cloud of uniformism roll over the sun of individualism and the minority... . For the Institution protects and expresses that last, true heart of the democratic theory, the triumphant distinction and oneness of the individual and of the little State, the infinite variety of which is the juice of national life.
The trouble is, if equal state representation protects one minority, that of small-state residents, it does so at the expense of other minorities such as blacks and Hispanics, who are in greater need of protection.
Lee and Oppenheimer systematically explore the ways Senate malapportionment distorts policy and funding. Because small-state political campaigns are less expensive, small-state senators spend less time fundraising, rely more heavily on PAC money, and have more time to meet with constituents one-on-one. Because a new dam or bridge makes a bigger splash in a small state, small-state senators tend to gravitate to pork barrel committees where they are in a better position to do favors for the folks back home. Because small states tend to be rural, small-state senators tend to lean to the right. Indeed, ever since the 17th Amendment went into effect in 1914, equal state representation has served to augment the ranks of the minority party, most often the GOP, some 85 percent of the time, Lee and Oppenheimer calculate. Direct election thus served to reinforce the founders' original conception of the Senate as a deliberately countermajoritarian institution designed to rein in a plebeian and hence more turbulent House--which begs the question of whether the 17th Amendment was a change at all or whether it represented a return to eighteenth-century notions of good government.
Much of Sizing Up the Senate is fairly hard slogging. Lee and Oppenheimer are hard-core, XXX-rated empiricists who enjoy tossing around such erotically charged terms as "unit-specific heteroscedasticity." But while they are happy analyzing Senate committee assignments, they are curiously incurious when it comes to the question of why Senate malapportionment has gone unnoticed for so long. The question is not really all that difficult. A political system, to paraphrase the nineteenth-century French historian Ernest Renan, defines itself by what it chooses to see and what it chooses to overlook. From a conservative point of view, the less attention paid to equal state representation the better. After all, what can be said about a system that shortchanges blacks, Jews, labor unions, liberals, gays, and other such interests--all of which are heavily concentrated in large urban states--while it simultaneously encourages unthinking obeisance to the past? Only that if it hadn't existed, the GOP right would have had to invent it.
On the other hand, if one is a card-carrying member of the ACLU who believes that the Bill of Rights is the only thing standing between us and the abyss, then anything that tends to glorify the Constitution is to the good, while anything that chips away at constitutional faith is to the bad. As inequitable as equal state representation may be, it is all important, therefore, that it not be allowed to undermine the civil religion. The more glaring the flaw, the more scrupulously it must be ignored.
Of course, even worse than equal state representation per se is an obscure provision in the Article V amending clause stipulating that "no State, without its consent, shall be deprived of its equal suffrage in the Senate." What this means, simply, is that all states must give their consent before there can be any deviation from the principle of equal state representation whatsoever--which, considering how much small states would stand to lose in such an eventuality, they presumably never will. The eighteenth-century British system was known as a "rotten borough" system because, in the absence of reapportionment, semi-abandoned ghost towns continued to "elect" members of parliament while newly burgeoning cities like Manchester (not to mention colonial Boston, New York, and Philadelphia) did not. Yet the difference between the British system and the American system is that while the former was the subject of intense controversy for more than a century prior to the Reform Act of 1832 (when it was finally undone), the rotten-borough U.S. Senate remains singularly uncontroversial even though the problem here is growing worse and worse. In overthrowing one oppressive system in 1776, could it be that Americans traded it in for another system, which, although milder in certain respects, is even more resistant to change? ¤