Bicameral Blunder: Destroying the Senate?
By Dylan Matthews
Let’s face it: the Senate sucks. And not just this Senate in particular—there is an intrinsic, institutional suckiness that pervades the upper house of Congress. It’s uneven in its democratic representation of constituents. Wyoming and California have 0.175 percent and 12.1 percent of the U.S. population respectively, but each gets an equal 2 percent of the Senate. As the last year has made clear, its internal structure is still more undemocratic and arbitrary. Mechanisms like the filibuster and PAYGO restrictions lead to a bizarre system in which personal whims of Ben Nelson can deprive the states of $25 billion in education funding, or the reelection concerns of Arlen Specter can seemingly sink the Employee Free Choice Act, even when 51 other Senators (or more) disagree.
Some of these problems could be solved by internal procedural reforms, such as repealing PAYGO rules (PDF) or abolishing the filibuster. But those reforms could be reversed by a future Senate, and the problem of disproportionate representation would remain. Fundamentally, a unicameral legislature, consisting solely of the House of Representatives, would be less prone to gridlock and more democratic than the current system. The remedy is clear: we need to abolish the Senate.
Given that it is established in Article I of the Constitution, how would one go about getting rid of the world’s greatest deliberative body? A constitutional amendment would be in order, naturally. But the hang-up depends on how you interpret Article V, which governs the amendment process, and specifies that “no state, without its consent, shall be deprived of its equal suffrage in the Senate.”
Sanford Levinson, a professor at the University of Texas law school and author of Our Undemocratic Constitution, thinks a Senate-abolishing amendment would not violate Article V. “The lack of any suffrage at all for any state would meet the formal requirements of “equal suffrage” (i.e., none for anyone),” he said. Daniel Farber, a professor at UC Berkeley, agrees, and argues that equal representation may not even be required. “One of my former colleagues once suggested to me that the Senate to which the equal representation cause refers no longer exists because of the 17th Amendment, providing for direct representation of Senators,” he recounts.
Opinions are not unanimous, however. Michael Dorf of Cornell Law School thinks Article V rules out this means of abolishing the Senate. “My view is that this would indeed require unanimity,” he explains. However, even if Article V precludes such an amendment, this raises another question. What if, before passing an amendment abolishing the Senate, another amendment passed removing the “equal suffrage” clause from Article V? Such a change would remove any impediment to abolishing the Senate, but the question remains of whether it would be legitimate.
Dorf doubts that it would be, and thinks the unanimous consent of the states would be needed, just as with abolishing the Senate through a single amendment. Levinson thinks the question is ultimately one of politics and not Constitutional interpretation. “My own view is that if the country were ever sufficiently outraged by the Senate to support an Article V amendment that was able to gain 2/3 support in Congress and then ratification by 3/4 of the states, no court would (or should) dare to block it on constitutional grounds,” he says. Larry Kramer, a constitutional law expert at Stanford Law School, agrees, but is not as confident in his prediction as Levinson. “It’s just not a question as to which there is a ‘right’ legal answer. There are legal arguments on both sides,” he explains, “But as with many or most constitutional issues, law and politics are inseparable and it would be a political resolution, with legal arguments as part of the rhetoric.”
For their part, the Constitutional scholars I talked to vary widely in what they think should happen to the Senate. Kramer thinks the institution is worth preserving despite its flaws. “Personally, I do think that abolishing the Senate would be a very stupid move, even with its malapportionment,” he says. Farber suggests a compromise. “How about a pragmatic solution: All of the states retain equal representation in the Senate, but add ten members elected ‘at large’,” he proposes. “That would increase the Senate’s democratic legitimacy but each state would continue to have the same number of Senators as every other state.”
Interestingly, Dorf’s personal beliefs run up against his constitutional interpretation. He’s disappointed that the Constitution, in his view, does not give the people the right to abolish the Senate. “I think this is quite an unfortunate feature of our constitutional system and undermines its legitimacy as a matter of first-order political theory,” he laments.
Meanwhile, Richard Epstein, a noted libertarian legal scholar at the University of Chicago, is offended by the very notion that one would try to eliminate the Senate without consent of the states, even given the body’s shortcomings. “The imbalances in the senate are much more costly now than ever before,” he asserts. “And second, the effort to undo it without consent of the states reflects all the misguided ingenuity of too much modern constitutional interpretation.”
To be fair, this exercise is almost entirely academic. Even if a Senate-abolishing constitutional amendment were possible, it would have to go through the ratification. That, of course, involves such an amendment getting 67 votes in the Senate, which will clearly never happen. But the interpretations of scholars like Levinson and Farber give us hope that someday, a particularly self-loathing instantiation of the greatest deliberative body on earth will have the common decency to vote themselves out of power.
Note: This piece originally appeared at CampusProgress.org.