Although not intended by the Founding Fathers, the U.S. Senate has become a “racist” institution. By providing two Senators for each state and by the policies its members have adopted for requiring super majorities and by the difficulty of ending filibusters, the Senate has turned out to effectively deny equal representation to African-Americans. The chances for change are zero.
The Senate Is America’s Most Structurally Racist Institution
By Jonathan Chait
In a time when institutions across the country have undergone a searching self-examination, the reckoning has only begun for the most powerful source of institutional racism in American life: the United States Senate. It is not merely a problem of legacy and culture — though the Senate’s traditions are deeply interwoven with white supremacy, as Joe Biden inadvertently confessed when he touted his cooperation with segregationists — but of very-much-ongoing discrimination. Quite simply, achieving anything like functional racial equality without substantially reforming the Senate will be impossible.
The Senate’s pro-white bias is a problem the political system is only beginning to absorb. When Barack Obama urged his party to honor John Lewis’s civil-rights legacy by passing a bill to guarantee democratic reforms like voting rights, statehood for Puerto Rico and D.C., and an end to the filibuster, which he called a “relic of Jim Crow,” the mere suggestion was met with a scorching response from the right. “The door to radicalism is getting busted wide open,” warned a Wall Street Journal editorial. John Podhoretz described Obama’s plan as “a degree of norm-shattering in service of the partisan interests of the Democrats that will, quite simply, tear this country asunder.”
Measured against the backdrop of modern Washington tradition, Obama’s proposal would indeed constitute a radical break with long-standing norms. But measured against the standard of simple political equality, his notion is quite modest. It would leave standing, albeit in altered and less distorted form, an institution that stands as a rebuke to democracy. The Senate is a bulwark of white power.
The Senate was not designed to benefit white voters — almost all voters were white when the Constitution went into effect — but it has had that effect. The reason is simple: Residents of small states have proportionally more representation, and small states tend to have fewer minority voters. Therefore, the Senate gives more voting power to white America, and less to everybody else. The roughly 2.7 million people living in Wyoming, Vermont, Alaska, and North Dakota, who are overwhelmingly white, have the same number of Senators representing them as the 110 million or so people living in California, Texas, Florida, and New York, who are quite diverse. The overall disparity is fairly big. As David Leonhardt calculated, whites have 0.35 Senators per million people, while Blacks have 0.26, Asian-Americans 0.25, and Latinos just 0.19.
The Senate is affirmative action for white people. If we had to design political institutions from scratch, nobody — not even Republicans — would be able to defend a system that massively overrepresented whites. And yet, while we are yanking old 30 Rock episodes and holding White Fragility struggle sessions in boardrooms, a massive source of institutionalized racial bias is sitting in plain sight.
The Senate’s existence is not the product of divine inspiration by the Founders, as schoolchildren have been taught for generations, but the ungainly result of hardheaded political compromise between people who believed in some version of what we’d call “democracy” and people who didn’t. The Founders mostly hated the idea of a one-state, one-vote chamber. They grudgingly accepted it as (in James Madison’s formulation) a “lesser evil,” needed to buy off small states like Delaware.
Obviously, the Constitution contained lots of political compromises. In most cases, the system has evolved toward the principle of one-person, one-vote: The Electoral College has transformed from a group of elites using independent judgment to pick a president to a pass-through entity; the vote was extended to non-landholders, women, and black people (first in theory, and only a century later, in practice).
The Senate has oddly evolved in the opposite direction. The disparity in size between states has exploded. When the Constitution was written, the largest state had less than 13 times as many people as the smallest. Today, the largest state has nearly 70 times as many people as the smallest. As absurd as the likes of Madison and Hamilton considered a legislative chamber equalizing a 13-to-1 disparity, the absurdity is now fivefold. And it continues to grow.
The Senate has also evolved a routine supermajority requirement, which the Founders did not contemplate. The Constitution requires a supermajority in a handful of expressly defined circumstances, like treaties and removing a president from office. The filibuster evolved in the 19th century, first requiring unanimous agreement, then was reduced first to two-thirds in 1917, and then three-fifths in 1975. Custom used to dictate that filibusters were rarely used tools to register unusually strong disagreement (most frequently by southerners, against civil-rights legislation). Its evolution into a routine supermajority requirement is recent.
And so the Senate now has the function of allowing the minority of the country to thwart the majority, to a degree even its critics never imagined. Arguing against the Senate, Hamilton warned, “It may happen that this majority of States is a small minority of the people of America; and two thirds of the people of America could not long be persuaded, upon the credit of artificial distinctions and syllogistic subtleties, to submit their interests to the management and disposal of one third.” The filibuster, combined with the disproportionate growth of the largest states, allows a far more dire tyranny of the minority than this. A filibuster could be maintained by senators representing a mere 11 percent of the public.
In reality, it’s impractical to line up every small state on the same side. (Democrats do have small states.) But in the current Senate, Republicans who represent just a quarter of the population would have enough votes to sustain a filibuster. Even if Democrats win a landslide election in 2020, following another landslide win two years before, Republicans will easily be able to maintain a filibuster against any bill subject to one.
Since the Senate is inscribed into the Constitution, measures to curtail its distorting effect have centered on abolishing the filibuster and admitting Puerto Rico and D.C. (stripped of the federal areas, which would remain the District of Columbia, and its residential areas constituted as a new state, perhaps called “Douglass Commonwealth.”) The process for admitting new states is just like passing laws.
The addition of D.C. and Puerto Rico, with four new senators between them, would partially offset the Senate’s massive overrepresentation of whites and Republicans. It would not, however, eliminate that advantage completely — or even come all that close to doing so. A Data for Progress analysis found, a 52-state Senate would still give whites decided overrepresentation, but it would ameliorate the injustice.
Podhoretz complains that admitting Puerto and D.C. would “violate democratic norms,” because “the last grants of statehood,” Alaska and Hawaii, did not alter the Senate’s partisan balance. He is implying, without saying outright, that states have always been admitted in Democrat-Republican pairs.
But this is not remotely true. In the 19th century, statehood was a partisan weapon, used mostly by Republicans, who admitted states not on the basis of population but in an open attempt to “stack the Senate.” After they added Montana, Washington, and split Dakota territory into two states (adding another pair of senators) in 1889, “President Harrison’s son crowed that the Republicans would win all the new states and gain eight more senators,” according to historian Heather Cox Boushey.
Alas, it is not just conservatives who believe that states must always be admitted in partisan pairs. Two years ago, Rhode Island senator Sheldon Whitehouse, a Democrat, confessed not to care at all about D.C. statehood: “I don’t have a particular interest in that issue. If we got one one-hundredth in Rhode Island of what D.C. gets in federal jobs and activity, I’d be thrilled.” And, he said, while he sympathized with Puerto Rico’s case, he opposed it because it would help his party. “Puerto Rico is actually a better case because they have a big population that qualifies as U.S. and they are not, as D.C. is, an enclave designed to support the federal government,” Whitehouse said. “The problem of Puerto Rico is it does throw off the balance so you get concerns like, who do [Republicans] find, where they can get an offsetting addition to the states.”
Offsetting? Who says it has to be offsetting? If Democrats refuse as a general principle to alter a “balance” that massively overrepresents white and Republican voters, they are consigning themselves to permanent minority status in the chamber.
The catch in admitting states is that Republicans could filibuster a statehood bill. But Republicans would filibuster any measure, however watered down, that increases Democratic voting power. (Mitch McConnell has even denounced a bill making Election Day a national holiday as a sinister “power grab.”)
In practice, therefore, any bill to admit new states would require eliminating the filibuster as well, which is why Obama took care to add that his party should change the rules to accomplish it. If Democrats gain 50 senators and the presidency, they would have it within their means to eliminate the filibuster and pass a bill expanding voting protections and admitting D.C. and Puerto Rico as states.
And it is the filibuster that poses the most formidable obstacle to passing any democratic reform. The Senate is shot through with institutionalists, who cling tightly to its traditions and relish the special status the chamber confers on its members. The objective of eliminating the legislative filibuster has gained adherents, but many of the chamber’s older Democrats remain stubbornly attached to it.
Democrats who support the filibuster make two arguments: one self-interested, the other principled. The self-interested argument concedes that yes, it would be helpful for Democrats to pass laws with a majority, but what happens when Republicans have a majority? “I think it would be a short-term advantage and a long term difficulty,” frets Maine senator Angus King. “You know, what concerns me is that this place changes.” Joe Biden, who has hedged on his previous pledges to maintain the filibuster forever, has said, “The filibuster has also saved a lot of bad things from happening too.”
It’s true that the filibuster sometimes stops conservative laws. Over the long run, however, liberals enact more changes than conservatives. This is almost definitional. Looking back over the last 20, 50, or 100 years, most major legislative changes have a progressive cast rather than a reactionary one. What makes the case for reform even stronger is that Republicans can already accomplish most of their goals without overcoming a filibuster. Senate rules allow the confirmation of judges and changing levels of taxation and spending with just a majority. Trump passed his tax cuts with 50 votes, and nearly passed his Obamacare repeal with 50 votes. (King’s warning, “If we didn’t have the 60-vote rule today, the ACA would be gone,” is flatly false.) The filibuster has played hardly any role at all in limiting his agenda.
What’s left of the filibuster primarily inhibits Democrat proposals. Given that the chamber’s one-state, one-vote makeup already favors Republicans, it is bizarre that Democrats would accept a handicap atop another handicap.
Even if none of this were true, and the filibuster thwarted both parties in equal measure, it is difficult to understand why it would be necessary. Many political systems allow a single national vote to constitute a working majority: The Parliamentary majority elects its leader and enacts the agenda it ran on, and if voters don’t like it, they elect a new government. The American system already requires controlling three separately elected bodies — House, Senate, and president — to enact any new law. Why does the system need yet another obstacle to change?
Here is where the principled invocation of the filibuster comes into play. The filibuster forces the two parties to work together. “The whole intention of Congress is basically to have a little bit of compromise with the other side,” argues Joe Manchin, expressing his fervent opposition to eliminating the legislative filibuster. “Our job is to find common and cooling ground, if you will, to make something work that makes sense.”
The simplest rebuttal to this claim is look around you. Do you see a lot of legislative compromise? How many reforms of any importance have amassed 60 Senate votes over the past 30 years? It is odd that senators can still wax idealistic about the filibuster promoting good old-fashioned bipartisanship when its absence is so obvious. Indeed, the same senators who most loudly decry the decline of bipartisanship are also the most convinced that the filibuster enables bipartisanship. Manchin himself has loudly grumbled about his disdain for the chamber, decried its uselessness, and threatened to quit repeatedly. Maybe he should consider the possibility that the rules he seems so attached to aren’t working.
It seems much more likely that the filibuster’s impact on moderation is just the opposite. The Senate’s arcane anti-democratic character enables extremism. By thwarting sensible liberal reforms, it emboldens left-wing radicals who paint the party as hopelessly inept, unable to deliver its promises, and unequal to the challenges of American life. If Biden’s Senate allies allow Republicans to thwart his promises, the left’s takeover of the party will accelerate.
More important, it has enabled the Republican Party’s long rightward lurch. Why should conservatives compromise their principles when they can use their counter-majoritarian power to block change? The Republican Party’s strategic response to a country that is moving demographically against it is not to adapt to the electorate but instead to thwart its will.
The defenses of the filibuster offered by the Senate’s traditionalists have a creepily familiar tone. Here are old, white, comfortable men, hesitant to make a (very small) amount of space in their elite institution for minorities. Whatever wan arguments they can offer for the status quo reek of the musty scent of clubbiness and nostalgia. They can hardly make the case that the system works, but it surely works for them.
Several years of heavy use have dulled the sharp edge of the word “reckoning.” But if there is any institution in American life that needs a reckoning, it is the U.S. Senate.
Jonathan Chait is an American commentator and writer for New York Magazine and the author of the 2007 book, The Big Con.
Posted August 10, 2020 at: