The Infernal Senate

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POLITICS NOVEMBER 21, 1994

The Infernal Senate

It was in the 1970s, as a young lawyer, that I began to notice something odd. Democratic presidencies would thin to ashes. Everything President Jimmy Carter wanted seemed to come out of the House of Representatives. Yet nothing ever seemed to emerge from the Senate. Why did the U.S. seem as dysfunctional as a French republic in one of the lower digits? It had something to do with the Senate, but what?

Then it came to me, like a firebell ringing pointlessly in 1789: we don't have majority rule. Of course, when I began to say this to my friends, they would laugh nervously. "You're not serious, are you? You'd abolish the Senate?"

No, not abolish. We're big enough for two Houses.

But as a Democrat, I'd like to see the Senate turn ... republican. With a small "r." The size of a microdot. As the Founders fantasized. We should have a Senate, one person, one vote, like the state senates we have in Wyoming, or Vermont.

We can't raise our wages. We can't get health insurance. No aid to the cities. And why? The Senate votes it down. By a weighted vote, for small-state whites in pickup trucks with gun racks all out there shooting these things down. We have a Louisiana Purchase of Rotten Boroughs, full of Senators who are horse doctors, or in rifle clubs, targeting our bills.

Must our fate be set by these fifty unequal stars? Were the Founders so blase about giving up majority vote? James Madison, in a secret speech at the Constitutional Convention, was terrified at what might result. He wondered if this new republic would be a true republic. So why did he argue for it in Federalist No. 10? He thought the "balance of faction" would save it. We could make it without "majority rule" because a "majority faction" would be enough. By majority faction he meant small farmers with pitchforks, the "debtor class," the people who owed money and fought the bankers. They would be strong enough, organized enough, to make up for the lack of majority rule.

Sure enough, for years we had the small farmers, and then we had the unions. We had factions strong enough to represent the middle class, the wage earners and the small farmers. We could get along, technically, without majority rule.

But now there are no small farmers. No William Jennings Bryan. No big unions--just a trace of the afl-cio. The crisis of our time is not too much "faction," but not enough. There is nothing to "check" the commercial faction, nothing to "balance" its political action committees (pacs). And demographically, the denial of majority rule has gotten much. To Madison, it would have been the ultimate nightmare. We have neither "majority faction," nor "majority rule." So without these two things, the Senate as a minority veto has gone off the rails.

This is what the Founders feared: they wanted a senate, but they also wanted majority rule. In The First New Nation, Seymour Martin Lipset wrote that even the Founders who opposed Madison, who wanted equal representation among states, said the Senate was a bad idea. They just didn't think there was any choice. But after Poland, after Prague, after South Africa, don't we have that choice? Aren't we ready for one person, one vote? We could still have half a republic. Why not have five classes of states, based on population, and allocate senators accordingly? At the very least, can't we stop the filibusters and the super-majorities?

Like many kids of the 1960s, I grew up in love with the Senate. I read Profiles in Courage. It was the age of William Fulbright and Wayne Morse. It was the Senate that would "Stop the War." It was the Senate, with its tradition of veto and delay, that would appeal to a generation of student princes, wary of the Kennedy fathers who had gotten them into Vietnam. It was after Kent State, when it was hot and malarial, that I first entered the Capitol, and touched the marble as cold as a coffin and knew it was the Senate that would save us.

I began to watch the Senate, and know the "Whales," as people called them. It was a secret pride to know the names of the bigger Whales, like Maggie Magnuson, that no one outside of Washington knew. There was something noble about the Whales, the way they would rise up and land and crash and spout water in the air. Besides, while I was focused on veto and delay, the Senate was passing a lot of laws and spending money.

Meanwhile, unknown to me, the New Deal, which I took for granted, was starting to unravel. The unions, the "majority faction," were in decline. Senators went off on their own. The lack of majority rule, of one person, one vote, was beginning to show.

By 1977 I was a young lawyer in the Department of Energy. Now, I wanted to see bills pass. I was working on the National Energy Plan, and on its five centerpieces and six cornerstones, and I'll be damned if it was not like lugging the Elgin Marbles. As I and the other kids (number crunchers) would haul away, there was no problem in the House. Tip O'Neill, our rich uncle, treated us like family. But the senators would glower: the more blow-dried they looked--like Warren Beatty in Shampoo--the more sinister they seemed, like Charles Laughton in Spartacus. The senators I loved, such as Harold Hughes of Iowa, left for the ministry, to work with alcoholics.

The big shock to me was to come to Washington and find myself in the desert states. I had never been west of the Mississippi and now for the first time ... there were thirty states west of there. As a greenhorn from the Midwest, I'd had no idea. My God, did each of them have two senators? Thirty states! Sixty men looking like Gary Hart. Now the Senate seemed like a crypt, with a terrible secret: we, the U.S., through the Departments of Energy, Interior and Agriculture, owned most of the thirty states. But the thirty, in turn, each with two senators, had taken title to us.

The best view of the Western U.S. today is not from the Rockies, but from the Senate side of Capitol Hill. It's truly awesome. Our western friends live off the U.S. A gold deposit worth $1 billion in Chicago is for sale for $6,000 to them. All of it they get free, thanks to the Mining Act of 1872, which the sixty senators are in D.C. to protect.

And what do they do for us in return? There have never been Rotten Boroughs so rotten. While we in the east give them gold deposits nearly for free, they in return won't even vote to raise our wages, or give us health insurance, or aid our cities. Is that fair?

Nor would they do anything for Carter. I learned a lot about the Senate, because I was supposed to draft bills, little ones, that were not important enough for the energy plan. As a result, I got a lot of chances to lobby.

I read once that Robert Taft the elder carried a copy of the Constitution. Whenever he read a bill, he would pull the Constitution out of his coat, and read it again, to make sure the bill didn't violate any provision. I thought this was charming. In the same way, I used to carry around a copy of the National Energy Plan. For one reason or another, my copy didn't last as long.

Back in the White House, or e.o.b., or the agency, people were always shaking their heads. "There's something the matter with Carter."

"What's wrong with him?"

"He doesn't know the Hill." It always seemed dark outside and none of us knew the Hill.

But in fact, as far as the House went, Carter didn't have to know the Hill. And as far as the Senate went, there was nothing he could do. They already had the Mining Act of 1872. What could Carter, or any Democrat, offer them in return? (Republicans don't have to bother. They don't want to do anything. The only reason they want the White House is that they don't want the Democrats to be there.)

I began to get the sense that every future Democratic presidency would end in disaster. It didn't matter. It could be Clinton, or Gore. The ideas of the Democrats would get smaller and smaller. We would begin to talk about Job Training and about New Paradigms, which are neither new nor paradigms nor relevant to anything at all. Except that they don't have to go through the Senate.

Yet in a moment of madness, when Clinton was elected, I thought I would go back. Friends called each other. "Are you going?" The whole thing was fantasy, as I was too old. It would have been like volunteering for the Gulf war. I also didn't want to be there for that moment when we would turn on Clinton and devour him. I couldn't forget what had happened to Carter in the Senate. Clinton might survive for a few weeks as a Republican ... but as soon as he turned Democrat the whole administration would be crushed in the Senate, like the Cataline conspiracy.

In fact, the minority rule had gotten worse. In the Carter era, it took only forty-five or fifty votes to pass a bill. Now it took at least sixty. The filibuster, "reformed," was much easier to use. Everything now seems to get a filibuster, while once it had been a rare event. Unlike the Carter era, the White House does not know, in advance, how many votes it needs to pass a bill. Does it take sixty, a super-majority, or forty-five or fifty? The rule is that there is no rule. A Dole, or a Gramm, can decide at any time.

What other country in the world can say this? Imagine Belarus going to the World Bank and saying: "In our country, we don't know how many votes it takes to pass a bill."

Except, of course, after this Congress, we really do know: anything that helps working people, or the cities, will take a super-majority of sixty votes. Recently, a group called "Action Not Gridlock" mailed me a list of filibusters, on a computer printout. It was like a spreadsheet of our decline in the 1980s. It seemed to hit every bill that would stop the fall of people's wages: striker replacement, family leave, appointments to the National Labor Relations Board. Now in the Clinton era, the list expanded to cities, minorities and the poor. Everything got a filibuster. Everything took sixty votes, and Wyoming, Utah, etc., which used to control just mountains and minerals, now extended their powers over the cities. It was like a new Constitution. It was frightening. Aghast, the left responded by psychoanalyzing Clinton's mother.

One night last June, I couldn't sleep, and so I finally stayed up to do the numbers. Actually, I had not made a list of the states since I was in the fourth grade with Mrs. Schoenling. Alabama, Alaska, Arkansas ... how many people did they really have? At some level I didn't want to know. Here are some of the numbers that ought to keep you up at night:

  • The forty senators from the twenty smallest states represent a population base of 10 percent! In the Clinton era, this means even senators who represent 90 percent of the population are not enough by themselves to pass a bill. In the worst case lineup, a mere 10 percent of the population base could be enough to block a bill.

  • The fifty senators from the twenty-five smallest states represent a population base of 16 percent. In the same worst case, senators representing just more than 16 percent of the population base could be enough to block a bill.
  • Think of what they can pass. The sixty senators from the thirty smallest states represent a population base of only 24 percent. Yet senators representing 24 percent of the population have sixty votes. They can bring back the death penalty for sheep-stealing.

    Hasn't it always been this bad?

No. In 1789, when the first Senate was sworn in, there were eighteen states, five newly admitted. The senators from the nine smallest states still represented 33 percent of the population. And there was no filibuster. So back then, to block a bill, it took senators representing a population base of 33 percent. Now, in the worst case lineup, it is merely 10 percent. One could also hope that in time the five new states would fill up. In 1789 they were practically empty (although back then, states like New York were pretty empty, too).

But Madison still fretted. He feared that with each passing decade the imbalance would get worse. And while it is hard to imagine one worse than now, that may be about to happen. It is now clear that in the next century the U.S. will become a multiracial society unlike anything in our past. By some official estimates, the non-Hispanic white population could drop to 72 percent in the year 2000 and to 60 percent in the year 2030. The new minorities, however, will live overwhelmingly in a handful of big states. By the year 2020, five states, including California, Texas and Florida, will have more than 70 percent of the country's Hispanic population. Five states will have nearly two-thirds of the growing Asian population. In this new multiracial America, the big-state minorities individually will have even less voting power than they do now. The vote of each such person (e.g. not New York's but each New Yorker's) will count for substantially less. As the U.S. becomes more multi-racial and stranger to the people-of-the-interior, the non-Hispanic whites in most of the small states will get more and more heavily weighted votes. Talk radio will get louder. The "new ideas" will get smaller. We may be way past gridlock, and heading into something worse.

How can we go to one person, one vote, when a "republic" like ours has never had it before? Let us turn to some of the barroom objections:

1. "Come on, the Democrats control both houses of Congress, so why can't they get anything through?" This is what I have been hearing from the college freshmen. "Why isn't there party discipline, blah, blah, blah...?"

Remember the ninety/ten split, which can block any bill? To be in control of the Senate, the Democrats have to get, in worst case, ninety-one/nine. To win the presidency, or the House, so what? That's just majority rule. To win the Senate, they must go beyond, way beyond, to the very length and breadth of the whole gridlock archipelago. They have to represent what the Senate represents: small states, Republicans, desert, pacs. Majority rule is just the start. The Democrats' "national" party and its "Senate party" have to colonize different worlds.

This is not an era of good feelings. To be a real majority party and still be worth a damn, is it ethical to try to win the ninety/ten game? Is it ethical for the Democrats to win a Senate seat in Utah? There is no chance for a coherent party, not to mention party discipline, until there is one person, one vote in both houses of Congress.

2. "But what's so great about majority rule? Isn't the Senate supposed to be the `Council of the Wise?'"

There is a case against majority rule. In eighteenth-century Britain, Hugh Walpole and his machine came up with a reason, even a bad reason, for violating one person, one vote: "We're giving votes to people of a better sort."

But what's our excuse? We're getting senators who are not exactly William Pitt or Edmund Burke. It's not that I think our small-state senators are less deserving, but why them? I don't get it.

Besides, next to the House, is the Senate still the "Council of the Wise"? It's not the House where they stand up and sing "Old MacDonald" on national t.v. "It's the reverse of what the Founders expected," said a public-interest type who worked on the crime bill. "It's the Senate where they went wild voting everything into a crime." The forces of good had to say, "Wait, wait, we'll fix it in the House." It's the House that's our last desperate check now on the wildness of the Senate mob.

3. "But this is what the Founders wanted, we shouldn't touch it."

I often wish the Founders were back, those legal mechanics, who could take our Constitution, put it up on the skids and look under it like a car. By accident, I picked up this summer an old Mentor paperback, The Anti-Federalist Papers and the Constitutional Convention Debates. It was like tuning in to "Car Talk." First, I read Madison, and saw his anguish. Then I flipped to Brutus, the Federal Farmer, and the big surprise, Patrick Henry, who I thought was by then dead. This is the Henry we don't let our little children read. He lives in these pages, and at times, I'm ready to drop my pen and sign up as his amanuensis, at least when he says:

(T)he smallest States that do not collectively contain one-tenth part of the population ... may obstruct the most salutary and necessary amendments.... It is, Sir, a most fearful situation when the most contemptible minority can prevent the alteration of the most oppressive government..."

True, he is speaking of constitutional amendments, but doesn't it apply to the Senate, too? Henry saw the day--our day--when "one-tenth" of the population base would be enough to block us all. I stopped reading, and gasped. I felt like Winston Smith in 1984 when he comes across a scrap of history, real history, that the authorities did not destroy.

4. "The fact is that majority rule won't help the Democrats. Look at Al D'Amato, singing `Ee-yi, ee-yi, yo....' It's the culture of the country, it's more conservative..."

Not quite. Because we don't have majority rule, who knows what the culture of the country would be like? Even when people rail about the welfare state, what does that mean? Since it can't get through the Senate, no one knows what it would be. The Senate has a built-in bias for constructing fifty huge, wasteful, duplicative state governments, as big as nation-states. In a sense, people in the U.S. (compared with Europe) really are over-taxed. If only we could take all the salaries of state and local officials and turn them into transfer payments ...

5. "But isn't it good to represent regions? Other countries do that."

Doesn't Spain represent the Basques, etc.? But don't we do the reverse? The Basques aren't a region, they're an ethnic group. We take our ethnic minorities, our Basques, our Azerbaijanis, and slam them into the big states, such as New York and California, where no one can hear them. It's the Basque-type minority that our Senate is set up, almost fiendishly, to shut out. You don't have to be crazy about multiculturalism to ask, "Why go on giving weighted votes to white people?"

What amazes me is that the people in Wyoming aren't even happy. They sit in their trucks and moan about the federal government meddling in their right to rip off the rest of us for billions in gold. What caste system ever gave such power, such rubied treasures, as the U.S. Senate bestows upon them, and what do they do but whine?

That's what we get by representing these so-called "regions." Represent their regions? They have near-veto power over our central cities. It's power, without responsibilities, and the rest of us are the Third Estate. And it's so skewed, people stop voting. Why register the blacks, the Latinos, the poor? Why expand your base? In the end we can exert our influence over only so many senators, only so much majority rule. Without even knowing why, we ultimately get the point that there's no point in registering. When this effect hits, even an Alfonse D'Amato can start winning in the big states.

6. "Look at history. Our Constitution has worked, and the Senate has served us well."

Like when it gave us Antietam, Gettysburg ... and that's when the Senate was functioning smoothly.

Every crisis in U.S. history blew up because of the Senate. After all, the Senate virtually created the Civil War. By representing states and not people, it kept the slavery issue permanently on the boil. For each free state, there was a slave state, so the Senate could be fifty-fifty. We had one bloody Kansas after another, then the big bloodbath. With one person, one vote, slavery might have withered away. Thank the Senate for segregation, too. We couldn't even pass a bill to stop the lynching of blacks. Finally, the Supreme Court stepped in with Brown v. Board of Education.

The list goes on. The energy deadlock? It would have been impossible without the Senate. We had producer states v. consumer states, the crisis ticked on, as we watched in horror, waiting for Iran to blow. Falling wages? Blame the Senate. We would've had labor-law reform twice. There would still be a union movement. We could have kept, in real terms, our minimum wage.

Of course, there was the New Deal: Social Security, the Wagner Act, the Fair Labor Standards Act. But think of all the bills from fdr's Hundred Days that were struck down as unconstitutional. Worse, by Roosevelt's second term, he was being treated in the Senate as if he were Jimmy Carter. Senators like Carter Glass took apart his banking bill. They made a mockery of his minimum wage bill. Roosevelt, like Clinton, would call just about anything a victory. Hundreds of New Deal bills died.

Yet it did work sort of, didn't it? Didn't the New Deal have half a moment of Camelot even without majority rule? To figure out why the Senate worked, sometimes worked, even without majority rule, we have to read Madison in Federalist No. 10. What would save us, Madison said, in sentences as misshapen as in the poetry of Yeats, would be a Senate and a House, in which there was a "balance of faction."

Now it seems to us we have faction enough. But by faction Madison does not mean interest group. He is not talking about the National Rifle Association or Mothers Against Drunk Driving. For Madison, there is only one issue that matters, and that is inflation. By faction, then, he means the low-wage crowd who don't mind inflation, and the business people who do. All Madison cares about is monetary policy, fiscal policy and "industrial policy" (yes, he uses the term).

In Madison's mind, there were only two factions: (a) farmers with pitchforks, Shay's mob, the debtors who controlled Rhode Island, and (b) the businessmen, the rich sea captains in Boston. Rhode Island would represent the have-nots. New York would represent the haves.

Even in a senate without majority rule there could still be a balance of these organized factions. But here is the odd part. Madison assumed the have-nots would always be organized like the farmers in Rhode Island. As Madison makes clear again and again, this will always be the "majority faction." Thus, he could justify the departure from majority rule. "If faction consists of less than a majority," he wrote, "relief is supplied by the republican principle."

In the Senate, however, there is no "republican principle." Madison was aware of that. So what would check the minority faction there? Even in the Senate Madison seemed to assume there would be at least some "balance of faction." It would mimic the republican principle to some extent. But what if, one day, the "majority faction" of small farmers did not exist? What, then, would check and balance the minority faction? It couldn't be the republican principle, not in the Senate, because the republican principle didn't exist.

Of course, for 150 years, even in the Western states, the small farmers did exist. We had Burton Wheeler, George Norris, radical measures (women got the right to vote, it was the only way to get them out there). Then came the labor unions in the 1930s. The New Deal got a coincidental lucky rise of two (!) "have-not" producer groups: the small farmers, as organized as in the days of Madison, especially in the rural states; and the labor unions, newly organized, especially in the industrial states.

The Democrats seem so weak, even when they are the majority party, because the producer groups no longer exist. There are no small farmers in the Western states. There are no labor unions anywhere at all. There is no one who can discipline the Democrats as a Senate party. There are no have-not factions with clout. There is no republican principle. There is no machinery-of-faction to take up the slack. In the most recent session, there were enough Democrats in the Senate. But on issues like health insurance, there was no "labor" to bargain with "business." In an age of corporate pacs, there is no one up there to cut a deal.

7. "This is idiocy, to talk of majority rule. Why would the small states ever permit it?"

It's one thing to take no action. It's another not even to know the problem. Blacks in South Africa have one person, one vote. Might the new multiracial America give it some thought? At least people would know what was wrong, and that knowledge might have its own dynamic.

Right now, some American black leaders are obsessed with creating minority districts. The idea is to get around Shaw v. Reno, and to get more black representatives into the House. But who benefits? Why do blacks in the U.S. need more minority politics? No group is more in need of the changes we could get from a little dash of majority rule. What point is there in pumping up the Black Caucus in the House if everything gets shut down in the Senate? Some time back, I asked an aclu lawyer about challenging the legality of the Senate filibuster, which has robbed minorities again and again.

"How can we do that?" he said. "Right now, we're trying to argue now for more minority voting rights."

And what about the white populists? I cannot grasp what Kevin Phillips is up to in Arrogant Capital. The way to make Washington more responsive to the people is to do the following: have more direct referendums and move the Interior Department to St. Louis. What would this accomplish? At best, it would only corrupt St. Louis. If Phillips wants government to be responsive, why not one person, one vote? Before we have direct democracy, why not entertain the idea (just as an idea) of representative government as Madison would have defined it?

But how to change it? It seems naive. "Oh, I don't know," one of my elders muttered darkly. "Maybe one day the Supreme Court will declare it unconstitutional or something." Gee, I don't think so, but what do I know? But the people who laugh or nervously giggle may be naive themselves. Demography is destiny. The new multiracial U.S. will push us toward majority rule. We have no choice. Structurally, one or the other, the Senate or this new U.S., will have to go.

We need not have pure majority rule. We could divide the states up into five different classes: Class iv states would get four senators, Class iii states would get three, etc.

How do we get the little states to agree? Well, we could call on Colin Powell. That's what Madison did with George Washington. We could go off to Philadelphia and meet in secret. Read Montesquieu, like the Founders did, and blind ourselves with wood alcohol, and come up with a rewrite of the "Virginia Plan," which called for one person, one vote, and release it on a slow news day. Or skip the convention. Maybe just a two-part amendment: majority rule for the Senate; and a special exception for adopting this amendment. The exception? If states containing three-quarters of the population approve, the classes go into effect. Then we just need California's votes and twelve or thirteen others.

Well, wouldn't Wyoming, North Dakota leave the union in a huff? Seriously, though, where are they going to go? This underscores the absurdity of keeping up this denial of majority rule. Do you think they could get funding from the imf? To begin with, they don't even own their own land. If the U.S. took back what belongs to it, some of those states would look like the Gaza Strip. In this light, one basis for settlement is land-for-peace. We could trade mineral rights for Senate seats. We could lock in the Mining Act of 1872.

Thomas Jefferson used to moan to Madison, and to others, that they had cheated generations to come: he and Madison had cheated them of the pleasure, the aesthetic pleasure, of creating a new republic, coming together to do something new. For once in our lives, we could all come together and then pair off into cafes, after a little foreplay in the public square. But no, Jefferson said, future generations in America would never know what this was like. Every generation, after his, would be Generation x.

But maybe in secret a new country is coming of age. It might please Jefferson, and God knows Madison, that we may have to do something new.

Tom Geoghegan, a lawyer in Chicago, is the author of Which Side Are You On: Trying to Be for Labor When It's Flat on Its Back (Plume).

By Thomas Geoghegan

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