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U.S. Senate representation is deeply undemocratic — and cannot be changed

Few, if any, other “democracies” have anything this undemocratic built into their systems.

The U.S. Capitol is seen through ice-covered tree branches.
The U.S. Capitol is seen through ice-covered tree branches.
REUTERS/Erin Scott

The U.S. Senate, as you know, is currently divided 50-50 along party lines, thanks to the impressive double win in Georgia, and counting the two technically “independent” senators as Democrats, since they caucus with the Democrats.

But, according to the calculation of Ian Millhiser, writing for Vox, if you add up the population of states and assign half to each of their two senators, “the Democratic half of the Senate represents 41,549,808 more people than the Republican half.”

Millhiser’s piece is named after that fact: “America’s anti-democratic Senate, in one number.”

(You can check his math here. If a state has two senators from the same party, he assigns that state’s population number to that party. If a state has one senator from each party, he assigns half the population to each party.)

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41.5 million. That’s a lot of people, more than 10 percent of the population (actually about 12.5 percent). You might think that in a democracy, the party that held that much of an advantage might end up with a solid majority in the Senate, rather than have just barely eked out a 50-50 tie in a body that, taken together, represents the whole country.

Republicans have not won the majority of the votes cast in all Senate races in any election cycle for a long time. Nonetheless, Republicans held majority control of the Senate after the elections of 2014, and 2016 and 2018 and still, after the 2020 races, held 50 of the 100 seats.

GOP does better in lower population states

The basic explanation is not hard to figure out. Republicans do much better in Senate elections in the lower population states and Democrats do much better in higher population states. Wyoming, with 579,000 residents, has two senators, as does California, with 39.5 million (a bit over 68 times more) residents. Wyoming regularly sends two Republicans to the Senate. California sends two Democrats.

It is a “quirk” of the U.S. electoral system you might say, although “quirk” is a bit too cute a word such a powerful anti-democratic tendency in a country that likes to consider itself the leader of world democracy.

In a typical modern democracy, you would expect that a party (in the U.S. case, the Democrats) that is significantly larger than another group – Republicans – should be able to elect a substantial majority of members in a body that theoretically “represents” the whole country.

(In the U.S. House, it sorta/roughly works out that way, but that sorta/roughly is substantially offset by the power of things like gerrymandering and other factors that complicate the matter. But the “gerrymandering” that locks in the Republican advantage in the Senate is more permanent, since it’s the state boundaries, which aren’t redrawn every 10 years.)

The major part of the explanation of this quirk is simple and obvious. More Democrats are elected to the Senate in states with large populations and more Republicans are elected from smaller-population states, but all states get the same number of senators (two) without regard to population.

There are many anti-majoritarian elements built into our constitutional system – more, I would say, than in most of the younger democracies that have come along since the 1780s. We can talk about some of the other systems, and have, and should, another day.

Works to the detriment of Democratic power

But the fact is that the Senate is fundamentally, intrinsically founded on what might be called malapportionment of representation, and this works to the overall benefit of Republican power and to the detriment of Democratic power.

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Republicans can perhaps think of lots of reasons that this is necessary (but not really democratic) or beneficial or reasonable — but not (small d) democratic, and if they were on the other end of it they would know that.

It’s deeply undemocratic. Nothing can become federal law without passing the Senate.

Of course, defenders of the existing system would quickly mention that power in the U.S. House is proportionate to population, which is mostly true, leaving aside huge issues like gerrymandering. But that’s just to say that one house of our Congress can defensibly be described as pretty democratic and another, co-equal house, is not. And, since it takes both houses to make law, Congress is not democratic.

Few, if any, other “democracies” have anything this undemocratic built into their systems. (And, by the way, power in the Electoral College is likewise – but less dramatically – tilted in favor of small states, which is a major reason that two of the past six presidential elections have been won by the popular vote loser.)

The reason (but not the justification) for the undemocratic nature of the Senate seems obvious (to me at least) and goes back to the founding era and the drafting of the Constitution.

Smaller states had to be reassured

Before the Constitution, the Articles of Confederation granted few powers to the national government. In order to get the smaller states to agree to a powerful new national government, they had to be reassured that they would not be dominated overmuch by the bigger states. The Senate was the deal that was necessary to get the small states to overcome their fear of that domination and join the union.

But here’s a cool-if-ugly fact that highlights that. The small states needed extra reassurance (I’ve mentioned this before). In the very short Article V, which lays out the process for amending the Constitution (you know: two-thirds of both houses have to agree and then three-quarters of all the states have to ratify) there is one provision of the Constitution that the Constitution itself says can never be changed. It says, clearly and bluntly: “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

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No states have ever so consented, and why should they, except in the spirit of democracy?

Millhiser’s Vox piece on this subject is here, although he doesn’t mention the amazing final fact of my diatribe, that the arguably least democratic feature of the Constitution, is the only thing in the whole document that can never be amended. But he does call attention, on a statistical level, to how it works in the most recent elections in the form of Republican Senate majorities that rely on popular minorities.