The US Senate remains an extraordinary institution, but extraordinary does not mean excellent or even functional. The Senate is extraordinary for the combination of its structure of representation, its constitutional tasks, and its internal procedures. The Senate of equal representation of states by two members with long and staggered terms is also the institution that shares authority with the president over appointments and treaties, while still having equal power with the House over normal legislation. Created by the Senate itself are rules of procedure that established minority power so substantial that it became the fourth veto point in the legislative process.
As I stated at the outset, the contemporary Senate is neither here nor there. It is neither as the framers intended it to be, nor does it meet the requirements of contemporary American government, whether one conceives of it as a republic or a democracy. No small part of the institution’s dysfunction is because it claims to be operating as the founders wanted, when in fact it is not. Likewise, the Senate’s architecture, self-conception, and resulting behavior distort rather than complement or complete modern republican government. Smaller membership, equal representation, six-year staggered terms, and the relative power of political minorities in the Senate are all facts. The interpretation of each, however, developed to create a kind of constitutional mythology about the Senate. And, to different degrees, the three have evolved, separately and in combination, to produce profound and irreconcilable conflicts with contemporary notions of democratic equality and practice and even with the Constitution itself.
This mythology of Senate exceptionalism both grew out of and served to obscure that institution’s singular relationship to white supremacy, its perpetuation and long-delayed demise in law and policy. One of the central arguments of this book is that the Senate has been uniquely related to the history of race in America, from the depravity of slavery, through the protracted era of racial subjugation, to the post–civil rights decades of inequality and underrepresentation. Prior to the Civil War, the South used its power in the Senate created by equal representation and state admissions to protect slavery. After that conflict, especially as the Jim Crow regime emerged, equal representation was replaced by the filibuster and later supermajority cloture. That weapon would delay civil rights for the next several decades. Even after the triumph of civil rights legislation, the combination of equal representation and the filibuster continues to significantly diminish the representation and power of minority votes and voices. The Senate cannot be reduced to white supremacy, but for most of American history and in different ways across the centuries, the Senate has been uniquely burdened by its close and evolving relationship to it.
Equal representation is the Constitution’s seemingly permanent roadblock to political equality; supermajority cloture is the Senate’s self-imposed revision of the Constitution’s checks and balances. Together, equal representation and supermajority cloture, compounded by the continuing body doctrine, add up to constitutional incoherence. Equal representation cannot be justified in contemporary democracy. Supermajority cloture is an unwarranted enhancement of minority power that distorts rather than advances the Senate’s deliberative process. Separately and especially in combination they should not be tolerated in a twenty-first-century representative democracy. Both equal representation and supermajority cloture (until recently) have been impervious to change, and yet should either, or, more to the point, would either—if we were to start over—ever be allowed into a constitutional framework rewritten for contemporary America?
The United States has dealt with and debated its flawed and at times chaotic governance for many years while changing nothing significant about the governmental process, only the officials who inhabit it. At the core of the on-and-off crisis of governance is the inability of our institutions to address and solve problems, creating a vicious cycle, as failure produces frustration and more polarization. Whatever the controversies and shortcomings that attend the other branches, the Senate sticks out as the sore thumb of democracy and the constitutional system. It is lauded and special but perpetually flawed, burdened, and disappointing. In short, the organism as a whole is dysfunctional, but the Senate embodies and exacerbates some of the core symptoms of that systemic illness. My point is not that the Senate is a sham. The Senate functions. But at what cost? The arrogant and fragile self-conceptions of the exceptional Senate are built on multiple democratic dysfunctions.
Given the combination of the Senate’s problems in principle and in practice, one could argue there should be far greater public concern about the Senate, akin if not equal to the public concern that coalesced around the direct election amendment in the early 1900s. Indeed, the comparison raises a broader parallel between these eras separated by a century. The contemporary era of governmental dysfunction, which is not limited to the Senate, should have produced the twenty-first-century equivalent of the progressive movement of the early twentieth. Progressive era efforts focused in large measure on reform of the political process at national, state, and local levels, with the Sixteenth, Seventeenth and Nineteenth Amendments their major national achievements in that regard.1 Citizens confronted institutional shortcomings and were aroused by and involved in structural reform, but even here, many reforms were about changing the number and powers of the voters (who could vote and for what), not so much the institutions of governance. In fact, many were as motivated by a principle of justice (such as votes for women) as by any desire for better government. Some of the most important, such as the Seventeenth and Nineteenth Amendments, cut across party lines at a time when partisanship was strong by some measures but not characterized as much by ideological divisions.2 The level of contemporary dysfunction, however, has not generated a coherent movement for constitutional reform. The election of 2000 uncovered the democratic flaws of the presidential system of elections, but ultimately became more about how votes are counted than about the problems of the Electoral College itself. Direct election of the president went nowhere as partisanship determined constitutionalism and the policies of the new Bush administration overwhelmed any efforts toward institutional change. The perceived injustice or failures of institutions can provoke indignation and initiate efforts at reform, but both are usually short-lived and often undermined by partisan interests. And that brings us to one of the most understandable but frustrating dilemmas in politics.
One problem with making normative arguments about political institutions, such as the Senate (or the Electoral College, or the Supreme Court), is that most citizens, whether consciously or not, allow their politics to determine their constitutional philosophy or constitutionalism. By politics I mean an individual’s particular mix of policy and partisan preferences. Am I a liberal or a conservative, a Republican or a Democrat? And am I for or against gun control, an increased minimum wage, or preventative war against terrorist groups? By constitutional philosophy or constitutionalism, I mean one’s opinions about how the power and authority to make decisions should be distributed within and among the branches and levels of government. Should the Supreme Court be able to decide constitutional questions by a 5–4 vote? Does the president have the authority to use military force without congressional authorization? Can the House impeach a president for malfeasance short of an indictable crime? Is equal representation in the Senate still justifiable?
For citizens and elected officials alike, politics often shapes or dictates constitutionalism. One is for or against presidential power depending on whether Barack Obama or Donald Trump is in the White House; one lauds or disparages the Supreme Court’s activism depending on the particular issue or issues on which it is deciding. People hold theories of impeachment based on nothing more than one’s knowledge of the president’s party affiliation. Opinions of the Supreme Court’s proper role in the election of 2000 magically aligned with party allegiance. Theories of presidential war power after September 11, 2001, derived less from the Constitution and more from one’s feelings about President Bush and his responses to the attack. Is the Electoral College the best system for selecting the president? Far too often the answer depends largely on who won last time and which party is projected to be advantaged by that system in the future.
Indeed, in this century the Electoral College took center stage as the most controversial constitutional construction. Discrepancies between the popular vote and Electoral College outcomes in 2000 and 2016 raised eyebrows and outrage. Once upon a time—indeed, during decades without any such discrepancies—direct election of the president had solid bipartisan majority support. Since 2000, however, the issue has developed a decidedly partisan cast, with Democrats overwhelmingly in favor of direct election and Republicans giving majority support to the current system.3 In the second decade of this century, the filibuster and equal representation joined presidential election as targets of reform, with a similar partisan inflection. Especially at the elite level, support for the filibuster is subject to partisan flip-flopping depending on who is in control of the Senate after any given election. For example, liberal public interest groups started campaigns to end or abridge supermajority cloture when both Clinton and Obama were hindered by Republican obstruction in the Senate. But those campaigns disappeared when Republicans took control of the Senate. Public knowledge of the filibuster is fairly weak even during controversies surrounding its use or abuse, such as the fight over judicial nominations in 2005 or the nuclear option in 2013. In a 2010 Pew survey, only 26 percent knew how many votes are needed to end a Senate filibuster, while in a 2018 survey 41 percent were able to pick the correct option.4 Overall however, political scientists have found that partisanship has a strong causal effect on individuals’ positions on the filibuster.5
Recent survey data indicate that public support for equal representation is deeply ingrained even in this era of stark divisions. When reminded “that the Constitution requires all states have two U.S. senators regardless of how many people live in the state,” 75 percent agreed that “all states should continue to have two senators regardless of population,” versus 24 percent who felt the “Constitution should be amended so larger population states have more senators.” Even among the respondents who were prompted with a reminder of the vast population differences between the largest and smallest states, and how much that has changed since the founding, 68 percent supported the continuation of two senators per state. Support was significantly stronger, however, among Republicans (83 percent) than among Democrats (59 percent).6 This contrasts sharply, for example, with the increased partisan division over the system for electing the president, as measured by the same 2018 survey. Seventy-five percent of Democrats but only 32 percent of Republicans favored scrapping the Electoral College in favor of direct election. Positions on equal representation are probably influenced to some extent by the state in which one resides. Californians, when prompted, are probably less supportive on average than Wyomingites, though polling with this specificity is hard to find. While not uncontroversial, equal representation retains solid bipartisan support. As with the filibuster, partisan opposition has grown at the elite level, but unlike the filibuster, that opposition is unlikely to change owing to the durable demographic advantage Republicans have in rural states. In particular, the boycott by the Republican Senate majority of Obama’s nomination of Merrick Garland to the Supreme Court and the Senate votes to confirm the appointments by Trump of Neil Gorsuch and Brett Kavanaugh honed the partisan edge on this issue and spurred a slew of essays that drew attention to the distortion of equal representation and ways to fix it.7
On such questions of governmental process, one should be able to assess existing features and proposals for reform separately from their probable or imagined partisan impact. Citizens should be for or against direct election of the presidency regardless of who they anticipate might win or lose. One should be for or against the filibuster regardless of which party controls the Senate. You should even be able to assess the justice of equal representation regardless of the size of your state of residence. Minds can change, of course. Facts and new circumstances—beyond party fortunes—can and should keep the deliberative process open. But a certain consistency is not a hobgoblin.
The real test is the following. It is not that hard, even with bad history and flimsy logic, to justify an existing procedure such as the Electoral College or equal representation, usually because it benefits you at the moment and everyone knows change is improbable regardless. But it would be another thing altogether to propose the same feature if it did not exist. Imagine that the United States had direct election of the president from the start, and someone proposed an Electoral College to replace it. Imagine a public campaign to force a Senate that, let’s say, had operated for more than two centuries by simple majority to adopt a rule that mandated a three-fifths or two-thirds majority for any important decision. It would get as far as the short-lived effort by tea party activists and others, starting in about 2011, to repeal the Seventeenth Amendment—the one that made senators popularly elected. Most Americans likely missed the opportunity to even consider that evanescent cause.
I think it is safe to claim that nearly all citizens are interested in politics or drawn into political participation by one or more of the myriad problems we face at the local, national, or global level. In turn, much frustration with politics in government comes from being on the losing side in the search for solutions to whatever problem or problems are of concern. That said, much frustration and anger also stem from the inability of the American government to take decisive action—any action—on nearly any problem, except through the use of military force. I would argue that no small part of the American turn against government is motivated, somewhat ironically, by governmental gridlock and ineffectiveness, rather than by a theoretical love of liberty as such or by antipathy to government in general.
The typical reaction to being on the losing end of policy fights or to governmental failure is for citizens (the principals) to get angry at the officeholders (their agents) and seek better agents at the next election. But the agents are sent to populate and operate through a set of institutional structures that, in the case of the United States at least, minimizes the chances for success and maximizes the chances of a repeat of the nearly inevitable disappointment, leading to the next electoral ritual of temporary but feckless renewal.
If we hope to solve any of numerous formidable problems that confront this country, reform of our governmental institutions is necessary. Never has the gap between public problems and institutional capacity been more apparent. The fundamental purpose of government is to offset and modify private or external power, whether that power comes in the form of a burglar, the KKK, a polluting industry, predatory lenders, al-Qaeda, ISIS, or China. We require government that can both compete with and assist, depending on the circumstances, a powerful and globalized system of economic activity based largely on private property and capital. The problems we face are difficult and fast-moving; we need institutions that, if not nimble and efficient, are at least capable of taking decisive action.
In short, Americans must realize that it’s not the people, it’s the institutions.8 In a democracy, the principals can always find new agents, but those agents are essentially the same actors elected for the same reasons under the same political circumstances. Why do we expect them to behave differently or be able to deliver? Much behavior of the American electorate exemplifies the aphorism that insanity is doing the same thing over and over again but expecting different results. In effect, there are not new or better people or politicians out there, but there might be better institutional arrangements for getting the same agents to produce different outcomes. This is hardly a new thought; it was essentially the political philosophy exemplified in the deliberations at the Constitutional Convention.
And this relationship between constitutionalism and politics is part of another complication. Because constitutionalism is so often subordinate to politics, it follows that concern for and passion about institutional reform is also secondary at best. Most people are rightfully concerned about policy and bash away at elections, ever hopeful that they will produce the changes, when it is the governmental process rather than the result of the election that is preventing the change. Procedure will often trump principle and majority preferences, but there is rarely the energy or focus on institutional reform, reform that might be the essential prerequisite for policy change. The Senate, as structured by equal representation, staggered terms, and the filibuster, is a great example of this fundamental dilemma of politics.
The admonition about politics and constitutionalism reminds us that it is essential to separate our constitutionalism from our politics to arrive at some notion of consistent and durable reform. It is just as important to remember, for the same reason, that the Senate—which is sometimes examined as though it existed in a vacuum—can only be understood and evaluated as part of a system of interrelated institutions. And that system, in turn, is best understood by comparison to what it is not—that is, to other forms of democratic design.
As far as democratic constitutional design is concerned, the world of choice, and therefore the intellectual basis for consistency, is not that large or complex. In the universe of contemporary democracy, despite the variations in detail, there are two models of governmental responsibility and decision-making, Washington and Westminster. “Washington” refers, of course, to Washington, D.C., and to the system of separation of powers and checks and balances, including federalism, that has been the focus of this book. “Westminster” invokes the British seat of government and its parliamentary system based on an inextricable relationship between the prime minister and the House of Commons, with no real checks and no federalism.9
The fundamental distinction is between systems that rely on responsibility and accountability enforced by a strong electoral check and those that rely on separation of powers, checks and balances, and federalism. In the former, the results of the elections determine the trajectory of policy in a direct fashion; in the latter, elections produce majorities and minorities, but not necessarily the same ones across all policymaking branches, and the separation of powers and checks degrade the link between elections and policy outcomes. Elections in a strong parliamentary system often leave little doubt as to who will control the process. In the Washingtonian system, the election is often just the opening kickoff in a long game.
In a parliamentary system, if the governing institutions fail to produce, or, to be specific, if the prime minister loses control of the partisan majority or majority coalition, then something has gone wrong and the time has come for new elections, which will be scheduled for the near future. In a separation of powers system failure by the majority—assuming there is one—to enact policy is not a constitutional crisis; it might be par for the course. In recent American history, it is often difficult to refer to a governing majority insofar as control is split between and among the institutions. The common perspective is to assign some degree of policy responsibility to the president, whose party typically controls at least one chamber of Congress. But presidential failure, as long as it is not of the impeachable variety, triggers no remedy. The country must await the next regularly scheduled elections, elections in which some elements of the system—either the president, two-thirds of the Senate, or both—do not participate and are not held accountable.
The US Constitution invented the world’s first codified separation of powers system. And because of James Madison’s central role in theorizing and creating those features of the Constitution, the Washington system is often called the Madisonian system. American political development has added to the strength of the system, even if the Seventeenth Amendment can be seen as one obvious modification that diminished the difference between the House and Senate. The rise of presidential power and the power and reach of judicial review have sharpened the divisions between the branches. And within Congress, the Senate came to be directly elected, but the different trajectory of House and Senate rules of procedure separate the chambers in behavior and policy outcomes.
Among other characteristics, American exceptionalism is characterized by an often uncritical reverence for the Constitution and the system it created. But no small number of experts and democratic theorists think Madison and company went overboard. The most common criticism of Madisonian democracy even before the advent of the filibuster was that the founders overcompensated with the original matrix of checks and balances.10 The Madison system is tilted too far toward veto points, minority power, and potential gridlock. As Robert Dahl concluded, “However laudable their ends, in their means the framers were guilty of overkill.”11 Or, in the words of then senator Joseph Clark, “The fact is our whole form of government, the tripartite constitutional system itself already has built-in all the checks and balances to tyranny that a modern government can afford without being incapable of action.”12 Even its most ardent supporters concede that the American system is complicated if not convoluted.13 Few would argue directly that the founders did not go far enough.14
Whether or not the original Madisonian system bent too far in the direction of division of power and responsibility and away from efficiency and accountability, the contemporary Senate is another big step in that direction. And, once again, excessive or not, it is the Madisonian or constitutional system that affords us the protection, not any single institution such as the Senate.
What about the Senate’s deliberative function? If the filibuster were reformed, could the Senate’s smaller size be used once again for its intended purpose? Is the American government in need of “the world’s greatest deliberative body”? Once upon a time, the claims that Senate deliberations educated public opinion and shaped the preferences of senators might have been plausible if rarely compelling. From the start, however, deliberation was extended both inward and outward until Senate debate was rendered largely superfluous. Committees were the initial and vital internal innovation even early in the nineteenth century. Committees were supplemented with capable staff in the second half of the twentieth century. Oversight hearings became a significant part of congressional workload. In such hearings Congress receives expert testimony about the implementation and impact of laws, and what else might be needed to address particular problems. As part of this and the legislative process more generally, Congress has created several organizations whose sole purpose is to provide expert analysis. The Congressional Research Service, Congressional Budget Office, and Government Accountability Office furnish information and analysis on nearly any subject. Even if it is true that many senators are at least initially a “mile wide and an inch deep” on the subjects they confront, debate on the floor of their chamber does not seem to be where they seek edification and direction.
Deliberation was also extended outward with news media, the spread of education and its products, particularly scholarship, other forms of professional expertise, social movements, interest groups, public opinion polling, and so forth. Decades ago, legislators might have been among the small number of experts on the relationship between problems and solutions in public policy. Over time that changed dramatically, well before the arrival of the information age.
All of this has affected the other governing institutions as well. Although it has no formal role in the legislative process, the judiciary is a deliberative institution with a profound impact on the policy and the lawmaking branches. The Supreme Court has always been the Constitution’s purest deliberative body, though much of the deliberation is not public. Its small size and secrecy facilitate authentic deliberation, that is, efforts to use reasoned arguments to persuade colleagues on the merits of a particular position. Although we live in an era of rather important 5–4 decisions, the court has historically been biased toward a greater level of consensus. Even if ultimately unattainable in a particular case, justices would prefer, and often seek, a supermajority, if not a literal consensus, for the court’s rulings.
In addition, the court embodies more than a rather robust form of internal deliberation. The judiciary was always “deliberative” in the formal and intra-institutional sense, but its deliberations in the original constitutionalism were typically thought of as at least a step removed from policymaking. As the court became increasingly entangled in constitutional questions that upheld, vetoed, or even mandated policy changes both great and small, it became in effect one of the three policymaking branches, with often large effects on the president and Congress. This is not just because it came to call more “balls and strikes” on constitutional issues, sustaining or overturning actions by states, Congress, or the president. In addition, the language the judiciary used came to shape our notions of good policy, rights, liberties, and regulations. The opinions that accompany a ruling become part of our collective deliberations over policy, informing the public, Congress, and the president. We do not simply follow the court’s orders, so to speak. We debate and, more often than not, absorb the various arguments at the heart of those opinions. One of which—that “legislators represent people, not trees or acres”—was a prominent part of chapter 3’s analysis of equal representation. Even if less pithy than that classic from Reynolds, or “Separate educational facilities are inherently unequal” from Brown v. Board, the decisions of the court and the reasoning used become part of public discourse that affects the future actions in many cases of all the branches of government. As the breadth of topics and policies affected by the court has expanded, so has its deliberative impact on the American system, including the Senate.
Finally, and less self-evident, is the evolution of the deliberative executive. The presidency has become, perhaps contrary to the founders’ expectations, not only more powerful but also deliberative. George W. Bush famously characterized himself as “the decider” as an affirmation that, as president, he might listen to various perspectives but he alone would make the final decision.15 This notion of the decisive role of the president hews closely to the true notion of the unitary executive propounded by Hamilton in Federalist no. 70. The unitary executive is one controlled by a single person, not a committee. It is thereby a more responsible and efficient executive for being managed by and accountable to one person. In this original sense, the president as chief executive or efficient administrator was almost antideliberative in its essential conception. Nevertheless, the president may be the unitary decider, but the president hardly decides in isolation. Elements of this were in place early on with the cabinet and embodied most directly in the towering figures of Hamilton and Jefferson in Washington’s administration. With such variations as Jackson’s Kitchen Cabinet and Lincoln’s war cabinet, even the early presidents deliberated.
Even so, one must consider the contrast between the nineteenth-century president with limited access to outside information—picture Lincoln often all but alone in the White House—and the modern administrative presidency. The modern president is inundated with information and advice and is in direct and constant contact with staff and the cabinet. The idiosyncrasies of each president’s personality and management style aside, the executive branch has become a vast consultative information-processing apparatus. The modern presidency has greatly expanded and institutionalized the deliberative presidency. Congress created the National Security Council for just such a purpose. The joint chiefs often play an important role in the same policy arena. The departments and agencies are machines for analyzing problems and generating solutions. Within the White House, the number of people involved and the kind of conversations they have are much more in line with what the founders considered deliberation than what the hundred-person Senate pretends to do, at least during floor debate. The presidency is also characterized by often private deliberation coupled with public accountability. This degree of secrecy is how the Constitutional Convention operated and it is how the Senate started. Executive privilege might be abused at times, but the fundamental value of a president free to consult and hear the most frank and well-informed opinions—in confidence—has never been challenged. Moreover, congressional delegation has exported important policy problems and decisions to institutions even beyond the president and courts, notably the Federal Reserve, which through its deliberations and votes governs a good bit of the economy.
Finally, we need to include federalism and the states, which have often been referred to as “laboratories of democracy.” The various actions and reactions of state governments are part of our collective deliberations on a range of issues, particularly domestic policy options. Excluding the Senate, the United States has developed three deliberative policymaking institutions, with unique and overlapping qualities. In effect, the House, the president, and the judiciary as a whole compose a tricameral policymaking process of deliberative institutions with different but formidable authorities and sources of influence. How many such entities does one country need?
Building on the argument that the design and performance of the US Senate should put it front and center—but not alone—in any assessment of the crisis of American government, this chapter has argued three things so far. First, any attempt to reform the system, or even to assess the arguments in this book, requires us to separate our constitutionalism from our politics on questions of institutional power and process. Second, with the basic choices among democratic systems in mind, it is persuasive that the United States could afford fewer veto points and tilt more toward effective democratic accountability rather than toward intragovernmental checks and dispersion of power, in addition to assuring electoral equality. Third, political deliberation does not live or die with the Senate. As the Senate’s deliberative status has declined, effective deliberation about policy choices has been distributed and democratized.
With these three things in mind, how might we think about reforming the Senate, along with the system as a whole? The United States is often characterized as a republic instead of a democracy, at least when it suits the speaker’s purpose, owing to its multiple levels of representation and complicated architecture of governmental power that fragment both democratic input and constitutional authority. But just as the concept of democracy evolved in theory and practice, so should republicanism—it is not frozen in time with the Federalist Papers. Rethinking the separation of powers requires recognizing the contemporary roles of each branch within the existing Constitution. In many ways, the United States has created a more modern republicanism through the evolution of its political institutions and the constitutionalism around them, particularly in the forms of presidential and judicial power. In concert with Senate reforms, how might we change the other institutions? Setting the Senate aside for the moment, this updated republicanism embraces both greater democracy and concentration of power without abandoning separation of powers and a system of checks and balances. Modern republicanism has embodied, even if implicitly, the principles of political equality (specifically, one person, one vote), electoral accountability, majority rule, and the role of the executive and judiciary as deliberative policymaking institutions. We should recognize and enhance this development in a coherent fashion. There has been no shortage of proposals to change the arrangement of institutions and powers in the Constitution.16 Many potential reforms are one-offs that have an ad hoc quality, such as the quadrennial spasms over the Electoral College. They fix one element in a much larger system of intertwined institutions and powers. This is understandable, given the amendment process. But even if we are limited to doing things one at a time, we should do so with an eye toward their systemic effect and what would be complementary reforms. Aside from direct election of the president, there are proposals to restructure presidential power by giving the president the constitutional power of universal fast-track authority, that is, the power to submit legislation directly to Congress and have it voted on in a timely fashion. Another proposal would change the tenure and selection of the Supreme Court. Both would enhance effective government and accountability and reduce the collective action problems of Congress and the Senate.17
While it is tempting to offer a comprehensive plan for constitutional reform, this is a book about the Senate and, as I have argued, the Senate should be near the top of the list. So I will focus on that. Amid the partisan polarization that has informed or afflicted evaluations of our governing institutions, some have called for eliminating the Senate altogether.18 Do we need the Senate at all, in any form? Do we need a bicameral legislature? Perhaps not, given the development and power of the other deliberative institutions, and depending on one’s preference for a more parliamentary form of power and accountability. A unicameral national government would focus attention and responsibility on the House of Representatives and president, preferably with the addition of such changes as universal fast-track authority. In light of what I have argued about the merits of tilting the American government toward Westminster-style efficiency and accountability, a unicameral Congress combined with an enhanced role for the president in the legislative process would do just that without completely abandoning the separation of powers and checks and balances of the Washington system. As well, a Senate-less system—especially if combined with other reforms cited earlier—harmonizes with my argument about the decentered and democratized nature of deliberation. Even so, it is feasible to fix rather than finish off the Senate.
Two of that institution’s sources of democratic dysfunctions, the continuing body doctrine and supermajority cloture, are under control of the Senate, and the nuclear options from 2013 and 2017 have substantially diminished both. But, as noted, the Senate did the right thing for mostly the wrong reasons and in the wrong way. The Senate can and should formally repudiate any procedural implications of the continuing body doctrine, including Rule V.2. The extent to which Senate business, including the rules, continues or carries over from one Congress to the next is a choice and has nothing to do with long and staggered terms.
Along with abandoning the continuing body doctrine, the Senate should rewrite Rule XXII to end supermajority cloture but guarantee a minimum but generous period of debate (which by definition would include the ability to offer amendments) on any issue. This minimum period could be either shortened or extended by unanimous consent. As one option, the current cloture rule allows for thirty hours of debate following a successful cloture motion. This could be transformed into the period of debate allowable before a simple majority cloture motion is in order. The Senate could attempt the creation of majority cloture through a conventional process of passing a simple resolution under current rules, which would almost certainly necessitate being able to muster two-thirds of senators present and voting to close debate, as mandated by Rule XXII. The improbability of such bipartisan cooperation to end the filibuster means that the far more likely route would be through use of the “constitutional option” discussed in chapter 7. Having twice used the nuclear or constitutional option, the Senate laid the foundation for a more far-reaching point of order and ruling, one it had flirted with in the past. That would come in the form of a point of order to the effect that each Senate has the right to change its rules by a majority vote. As I noted earlier, the underlying argument is that the Rule XXII provision for a supermajority to end debate on any proposed change to the rules is unconstitutional in the face of the explicit provision of Article I, section 5, that “Each House may determine the Rules of its Proceedings.” A senator could raise a point of order that the Senate has the right at any point to decide on its rules by a majority vote. The ruling of the presiding officer would then have to be sustained or overturned by the senate majority to obtain that right. A motion would follow to amend the wording of Rule XXII to allow majority cloture on any matter before the Senate after a specified period of debate, and the amendment to the rule would be decided by a simple majority. Majority cloture could, in fact, lead to greater and more effective deliberation than had become the norm within the partisan and procedural warfare surrounding supermajority cloture. With such a change, debate and deliberation might return to being more about substance than about procedure, more about voice than about victory. For too long the Senate has gotten away with—but also paid a heavy price for—lauding the filibuster as the safeguard of deliberation while behaving as though it were a decision rule and a form of minority veto, all while trying to fudge the stark difference and even blatant contradictions between the two. It has not worked, and the nation has suffered for it. The Senate should deliberately finish in the right way—that is, by voting to rewrite the actual rule instead of lying about what its words mean—what it began in the wrong way. The Senate and the country will be better off for it.
A starker choice is what to do about equal representation. In short, should the nation tolerate the massive violation of political equality inherent in having two senators per state regardless of population? I believe we should not, even those of us who live in Wyoming or Rhode Island. Do Wyoming’s resident want an effective national government from which they would benefit in many ways? Or do they want to retain two senators mostly so the state can get the extra bit of bacon for Warren Air Force Base while otherwise contributing to gridlock? As we saw in chapter 3, the arguments on behalf of equal representation are remarkably insubstantial when measured against the massive, and massively irrational, violation of political equality. Unlike the continuing body doctrine and supermajority cloture, equal representation is not under the Senate’s control, although senators would be part of the only process that has been used so far to amend the Constitution. The solution to the problem of equal representation is anything but straightforward even without consideration of its likelihood. One approach would be to reallocate Senate representation proportionately to each state’s population.19 Another would be to create special Senate “districts” of roughly equal population by dividing larger states and combining smaller ones. Or follow the model of the House of Representatives and allocate one per state and the rest by population, a plan that would greatly diminish but not eliminate Senate malapportionment.20 Partisan frustrations during the Trump presidency, and hopes fostered by Democratic control under the Biden administration in 2021, revived proposals for creating new states, starting with the District of Columbia, as a way to mitigate the Republican bias of equal representation.21 The addition of new states, including Puerto Rico, could be combined with dividing existing large states, such as California, into smaller new states. This would have the merit of bypassing the process of constitutional amendment but the downside of having a limited impact and reinforcing rather than eliminating equal representation.
Another reason to eliminate equal representation in favor of Senate representation based on one person, one vote—however that might best be done—emerges from my central historical argument documenting the Senate’s deep and long connection to white supremacy and the underrepresentation of minority votes and interests. In the twenty-first century, reparations for American slavery and its legacies have been a significant if still episodic topic of discussion and debate.22 Since the emergence of the Black Lives Matter movement, interest has grown, and reparations were even a topic during the Democratic presidential primary debates in 2020.23 Various forms of reparations have been proposed and much of the literature is more about making the case for some sort of reckoning than about the form it would take. Some forms of reparation focus on material compensation for past wrongs, while others are more about public recognition and reconciliation.24
Another element in reparations could be the elimination of forms of institutional or systemic racism as a way not just to atone for the past but to remove barriers to present and future progress. And some forms of institutional racism are part and parcel of the American government—the thing that would be creating and issuing any reparations. Whatever else one might add to the list, I have made the case that the Senate, in both its form of representation and its rules of procedure, can be seen in this unflattering light, not just by looking backward at its history but also by examining its present constitution and effects.
The elimination of equal representation (along with the filibuster) would fulfill some of the important goals of the reparations movement. Reparations are not just about compensation for past wrongs. The movement is also about recognition and acknowledgment, and the production of a different future. And what greater recognition than the acknowledgment that one of the basic governing institutions must be changed because it is so tied to and corrupted by that history and its ongoing distortions? The elimination of equal representation, however, would be far more than symbolic: it would be both similar to and yet go very far beyond the removal of offensive if inert relics, such as statues of Confederate leaders and generals, however important that process is in its own right. The elimination of equal representation would be the most fundamental change in our governing structure since the Constitution was ratified. The symbol would have ongoing substance. The change in the Senate would most likely produce material and substantial changes in governmental programs from health care to education, to the enduring benefit of historically disadvantaged communities. And all Americans would benefit from having produced a system that is more democratic, fair, and equal for all.
The nation might need or want a bicameral Congress; Americans may want to retain most of the Madisonian system. But the inescapable implication of the argument in this book is that we do not need or want the Senate as currently constituted. The Senate was born with perhaps the inescapable but ultimately unjustifiable constitutional flaw of equal representation. It added a de facto constitutional amendment in the form of supermajority cloture. In and around all this, the Senate constructed itself as the exceptional political institution in the exceptional nation. We might be well served by a bicameral Congress, but it is time to bring the Senate back down to Earth, into the twenty-first century, and integrate it into a coherent architecture for a contemporary democratic republic. Americans—Republicans and Democrats alike—would be better off if the Senate were changed to end its undemocratic composition, rules, and pretensions and start anew with a vital but limited role in a revised system of separation of powers and checks and balances.