The myth of the ‘rigged’ Senate

Since 1981, Democrats have earned, on average, longer and larger majorities in the Senate. For the 50 years before 1981, Senate Republicans were in the majority for a total of four years. Conversely, Democrats are the only party to twice earn filibuster-proof supermajorities since Senate rules were revised in 1975. Yet despite Democrats controlling the chamber only six years ago, media figures and academics keep saying Republicans have a “structural advantage” and that the Senate is “rigged.” This is patently untrue, and Democrats should not use frustration with momentary politics to undermine the integrity of American democratic institutions.

The offensive against the Senate follows a broader trend within a certain corner of national media in which frequently benign and nonpartisan aspects of American life are being reframed as pernicious threats to democracy. Vox’s Ezra Klein argues that what he sees as a distinct period of partisan polarization means that Democrats have to compete for the center in a way Republicans do not. New York Times reporter Emily Badger offered a similar narrative, citing urbanization and attributing Democrats’ current minority status in the Senate to ostensibly more Democratic voters concentrated in fewer urbanized states, resulting in less legwork for Republicans to cobble together a majority.

There are several flaws with this premise. First, the claims that Republicans aren’t competing for the center or for Democratic-leaning swing votes don’t hold up. Senate Republicans owe their current majority to having won significant percentages of the Democratic vote in competitive states, such as Maine, and by contesting and winning in states that have more frequently elected Democrats to the Senate over the last 26 years, such as North Dakota. To miss this fact is a result of a second flaw, which is the tendency of political journalists and pundits overinvested in presidential and federal politics to incongruently superimpose national public opinion and other national-based metrics onto the states. This is often done with the implication that any particular state or constituency that does not conform to an interpretation of national public opinion is irreversibly undermining democracy.

Using national data, particularly demographics, as a proxy for understanding state dynamics does not accurately portray states or their political realities. One example is the excessive weight placed on how a state or constituency voted in a recent presidential election as a determining factor in how that state or constituency is characterized for national audiences. While the candidates who states elect for president and Senate more frequently align along partisan lines, in an ever-changing, consequential number of states, winning a state’s “center” or its persuadable partisans is especially crucial. Senate Democrats stacked the deck against themselves by having not remained broadly competitive over the last decade in less urban states where they once reliably held seats.

But the greater, overarching flaw with the idea that the Senate is “rigged” against the Democrats and democracy is a fundamental misunderstanding about our system of government itself. The United States is both a democratic republic and a federation of states; divided power is America’s North Star. Neither democracy nor republicanism are virtues — they’re mechanisms for checking power. The “democratic” element checks the elected. The “republic” checks the people.

As such, the Senate is “rigged” against broadly disruptive, impulsive, legally binding ideas, not political parties. Checking those ideas requires impeding, not paralyzing, central power. One of several impediments to central power is the grant of equal suffrage to the states in the Senate guaranteed in Article V of the Constitution. Each state, regardless of size or population, gets two senators.

Critics assert that equal suffrage, and therefore the Senate as a whole, is distinctly undemocratic because seats aren’t allocated by population or earned in proportion to a hypothetical accumulation of votes. In a way, this is true, as the Senate is meant by design to be the republican check on the democratically sensitive House of Representatives. But equal state suffrage could also be viewed as a feature that makes America more democratic, as it represents government via the consent of multiple, pluralistic majorities rather than a singular national majority.

By constraining central authority, the pluralistic model secures opportunities for recourse and democratic participation across a multiculture of 50 states and 90,000 municipalities. This is especially important when the federal government fails to act or acts to fail, as we’ve seen during the coronavirus pandemic. Conversely, the singular model eliminates avenues for recourse and confines voters to outsourcing the work of self-governance, coalition-building, and community care-taking to fewer people in higher places. Several democracies — Mexico, Kenya, Germany, Japan, Switzerland, Australia, and France — all purposefully incorporate some form or another of equal and nonproportional structures as a means to impede uniformity across multicultures and regions.

One could banter over beers as to whether the founders “got it right.” They disagreed over the extent to which central power and its excesses ought to be impeded in the wake of the tyranny, monarchical or otherwise, that has defined much of human history. James Madison, who vehemently opposed equal suffrage for the states in the Senate, touted a competing Virginia Plan granting states proportional representation in the Senate. Yet Madison ultimately defended equal suffrage after its passage, acknowledging its benefits in Federalist No. 62: “Larger States will always be able, by their power over the supplies, to defeat unreasonable exertions of this prerogative of the lesser States, and as the faculty and excess of law-making seem to be the diseases to which our governments are most liable, it is not impossible that this [equal suffrage in the Senate] may be more convenient in practice than it appears to many in contemplation.”

While Californians and Wyomingites are each represented by two senators despite their disparate populations, Californians run the fifth-largest economy in the world, are among the wealthiest Americans, and hold 53 seats in the U.S. House to Wyoming’s one seat. Rather than emboldening powerful states, Madison prompts the question of why it ought to be presumed that a state with ample “supplies” to govern itself be granted more than equal legally binding influence in both chambers over states more vulnerable to the abuse of central power.

For the Senate’s critics, multi-majoritarianism does not register. The Atlantic has run multiple takes against the Senate in the past few years, one calling for its abolition and another featuring a dubious, hair-brained plot to bypass the Constitution and pack the Senate. Other critics have reflexively lunged for identitarianism to discredit the body. At the New York Times, columnist David Leonhardt called the Senate “affirmative action for white people,” arguing that the concentration of racial minorities in populous states dilutes their voting power in the Senate. As a remedy, Leonhardt argues for granting statehood to jurisdictions such as Puerto Rico, grotesquely implying that Puerto Ricans can act as representatives for other racial minorities with diverse interests and identities because of their approximate skin tones.

As an implicit dig at equal suffrage that was picked up by others, including Klein, Norman Ornstein remarked that by 2040, population projections show that 70% of Americans will live in 15 states, meaning as little as 30% of the public will elect some 70 senators. What Ornstein omits is that roughly the same percentage of people have lived in the same percentage of states since 1790.

Vox’s Ian Millhiser observed that a majority of the senators who voted to acquit President Trump on impeachment charges cumulatively represent a minority of the national population. This is, of course, a moot point, as U.S. senators are popularly elected to represent their state constituency. It compares to the “Senate popular vote” fabrication that emerged after the 2018 midterm elections. By Millhiser’s own logic, Trump won the “popular vote” in 2016 because he won states that cumulatively comprise a majority of the national population.

Harvard law professor Laurence Tribe tweeted the sumptuous lie that the Senate’s equal suffrage among the states was devised as a “Faustian bargain” between slave states and free states. Rather, the division over equal suffrage was between more populous and less populous states. As the Washington Examiner’s Philip Klein has written, proportional representation in the Senate would likely have buttressed a decisive pro-slavery majority and expanded the institution to additional territories, since states with large populations of enslaved people, who were denied the vote and yet still counted in state populations, were also among the most populous.

None of this is to say that granting statehood to Puerto Rico or electing presidents by popular vote, or even granting larger states modestly greater voting power, has no merit. Rather, it is to refute the suggestion that the exclusion of these ideas makes America’s political system objectively less fair, representative, or democratic. In the United States, the virtues of an entrenched skepticism of authority and securing fair and inclusive elections can and do coexist. And contrary to critics, for the last century, Democrats have been exceptionally skilled at excelling within this system.

Since at least the 1990s, the opposition party to the president has netted more Senate seats in states that had more frequently elected senators of the president’s party for the previous 25 years. That means today, Senate Republicans mostly owe their majority to having flipped nine seats in seven blue states during the Obama presidency. Here, “blue states” are defined as having (re)elected more Democrats to the Senate than Republicans since 1996. Those states are North Dakota, South Dakota, Montana, West Virginia, Arkansas, Wisconsin, and Louisiana. Five of those states are among the 13 least urban and were crucial to Democrats earning their 2009 supermajority. Less urban states breaking decisively for Republicans is a new phenomenon in contemporary Senate politics and is one major reason why critics claim the Senate is rigged.

Today, South Dakota and North Dakota are represented by two Republicans in the Senate for the first time since 1986 and 1960, respectively. West Virginians are represented by a Republican senator for the first time since 1956. No party loses seats it held for a half-century because the map is rigged. Parties adapt, or they lose.

Yet, last year, Ronald Brownstein at the Atlantic blamed white men in rural states for the Senate’s inaction on a few Democratic pet issues, since rural states with higher proportions of white men are more likely to be represented by senators who are resistant to gun control and climate change legislation. Setting aside that the electorate isn’t a sea of single-issue voters, that senators are exclusively responsive to their constituencies, that each party has safe seats that could be interpreted as obstructions to policy, or that many of the states to which Brownstein alludes have among the lowest gun homicide rates and produce the lion’s share of the country’s energy, Brownstein is also wrong on the remaining merits.

One reason is that the drivers of American democracy at the ballot box are women. Since 1996, women have outvoted men in every state and have done so at higher rates in less urban states. Women also outvote men by wider than average margins in states more likely to be represented by Senate Republicans. This is especially the case in states with high proportions of white men, such as Wyoming, South Dakota, and Iowa. Today, Democrats and Republicans hold an equal number of seats in states with above-average turnout among white men over age 65.

Senate Republicans have contested the center and won. In states where residents are equally or more likely to affiliate with Republicans, according to Gallup, Senate Democrats hold six seats. In states where residents are equally or more likely to affiliate with Democrats, Senate Republicans hold 11 seats. (Eight of those seats are well within Democrats’ grasp of flipping this year.)

Based on exit poll data from the past four Senate elections, candidates average about 8 points in the percentage of the vote earned from voters affiliated with the opposite party. In competitive states — that is, where party affiliation is within a margin of 5 points — at least seven Republican senators have been (re)elected with above-average percentages of the Democratic vote, including Mitch McConnell in Kentucky (17%), the late John McCain in Arizona (16%), Rand Paul in Kentucky (15%), Chuck Grassley in Iowa (18%), Rob Portman in Ohio (18%), Johnny Isakson in Georgia (12%), Marco Rubio in Florida (12%), and Pat Toomey in Pennsylvania (12%). In four of those states, party affiliation is within a margin of 1 point. In Maine, where Democrats outnumber Republicans by 13 points, the now-vulnerable Republican Susan Collins, who is up for reelection again this year, was reelected in 2014 with 39% of the Democratic vote.

Constituencies less likely to vote for recent Republican presidential candidates have contributed to Senate Republican victories. In 2016, Isakson was reelected in Georgia with 18% of the black vote, doubling Trump’s 9% share in the state. In 2018, Republican Rick Scott unseated Democrat Bill Nelson in Florida by one-tenth of 1%, or 10,000 votes out of 8.1 million cast. Scott did it with 45% of the Latino vote, to Trump’s 35% in the state.

Vox’s Klein writes that what he sees as “distortions” in institutions such as the Senate are why Republicans are in power and reasons that if proportional representation, for example, were passed, this would force Republicans to moderate. But Senate Republicans winning in states that more frequently elected Democrats isn’t a distortion; it’s reality. It also isn’t clear that emboldening a kind of nationalization of American politics would moderate a Republican Party that is ostensibly moving in a more radical, nationalist direction.

Alternatively, the reason it may feel as though the deck is stacked against Senate Democrats is that Democrats have all but seized the mantle of structural change against an apartisan chamber built to impede disruption. But as we learned in the 2018 midterm elections, the key to power for Democrats this fall is winning over the suburbs with broadly appealing candidates, moderated platforms, and even some pro-Trump voters. This year, Democrats can again put that successful game plan to work.

Two seats across the suburban states of North Carolina and Iowa, ones Democrats held six years ago, are up this year and currently occupied by unpopular incumbents. Both seats are unusually up in Georgia, a state speculated to be trending toward Democrats. Voter expansion laws signed by Gov. Brian Kemp could boost turnout and increase the race’s competitiveness. Four seats across urban Colorado and Arizona and less urban Montana and Maine are looking favorable for Democrats. That’s eight seats. Democrats can win all of them. Four more seats across Mississippi, Kentucky, Texas, and South Carolina are up this year. Democrats winning these are markedly less likely but far from inconceivable.

To regain and retain power in a large, diverse, multi-majoritarian democracy, Democrats need to be proactive in building an infrastructure locally rather than waiting around for the pendulum to swing back in their direction. Yet there is this notion that if one could wave a wand and “gerrymander” the Seattle metro area into Idaho, dissolve the states entirely, or put every policy to a direct vote of the public, this would reduce partisanship and allow America’s true majority to pass the bold and correct policies that middling white men have stymied. The Trump-like sense of entitlement to political power and the impulse to uproot American democracy at the slightest encounter with adversity are premised on a fallacy in punditry in which momentary socio-political trends are presumed to continue unabated — even as a pandemic forces the polity to grapple in new ways with urbanization and globalization and as a diversifying country stands poised to complicate racially essentialist dogmas on the far-Left and far-Right.

The inescapable electoral reality is that no matter how one counts the votes, the country is starkly divided, and that’s evident even in the proportional House of Representatives. Whoever gains power in 2020 across Congress and the presidency will likely be governing on a narrow popular margin. Senate Democrats owe progressives for lighting the way, but they will only win back the majority this year with candidates who can competently lead it.

Robert Showah is a writer and media entrepreneur based in Austin, Texas. You can follow him on Twitter @robertisnthere.

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