[Most of the content below is probably familiar to you, but I wanted to put it all together in one place to get a sense of how much of an impediment to democracy and human progress the United States Senate is—at least as it presently operates. Conceivably it could be reformed to conduce to the betterment of the American people, but the current rules exacerbate the harm from an already non-democratic structure dictated by the Constitution.]
Grave arithmetic: if you think the Electoral College is bad, just consider the Senate
At times, it looks as if a coalition of white supremacists and QAnon cult members, together with right-wing government-hating, racist and xenophobic gun nuts, whipped into a fact-free frenzy by Donald Trump, is what we most have to worry about in preserving our democracy.
If only. The Capitol riot was a symptom of a societal breakdown a long time in the making. What we’re looking at now is a tipping point, a massive destabilization of the American public and the institutions on which it relies (with little thanks from a clueless majority of voters). It’s come to the point where such observers as MSNBC’s Mehdi Hasan only half-jokingly wonder if the U.S. is becoming a “failed state.” (URL to YouTube is https://www.youtube.com/watch?v=4mzFqKZe60o
There are plenty of villains to blame for this scary predicament—my favorite being social media—but one key contributor is the workings of the U.S Senate. If we need big change quickly enough to stave off shocks to the system of which the January 6 riot at the Capitol is a brief forewarning, then something drastic has to be done with the Senate.
Anti-democratic arithmetic
Let’s start with arithmetic. For years, dire warnings have spread of how shifts in demographics will lead to a conjunction of the U.S. becoming a white-minority country sometime in the 2040s, while at the same time approximately 70% of the U.S. Senate will represent 30% of the population—and that 30% will be a white-majority group.
Whew! That doesn’t sound like a healthy formula for a country that wants to call itself a democracy and prides itself on diversity. But those are just projections—how bad is it right now? We know that two-senate-seats per state gives low population states an outsized impact on national politics—but just how outsized?
We begin with our current 50/50 split in the Senate.* The fraction of the national electorate those 50 Republicans represent is 44 percent.** If that’s higher than you were expecting, it’s due mainly to the fact that Texas, Florida, North Carolina and Tennessee account for 21 percent of the population and all have two Republican senators.
Does half the Senate representing only 44 percent of the country sound that far out of whack? Is it worth fussing about? It’s certainly a long way from the dramatic 70/30 split predicted for the 2040s. Maybe all this says is that it’s time for the Democrats to put up better fights in the Red states rather than whine about demographics.
but . . .
The numbers I’ve just given you are misleading, because they reflect the unusual circumstance that the Democrats now hold two senate seats in both Georgia and Arizona. If the Republicans were to take back one seat in each of those states, they would gain a decisive advantage. In that case (assuming they held the existing Republican seats), the Republicans would have 52 seats representing 46% of the electorate.
That’s very possible because Warnock in Georgia will have to run in 2022 to keep his seat, and Mark Kelly in Arizona likewise. In both states, Republican state legislatures are scrambling madly to find mechanisms to deprive Democrats—especially minorities—of opportunities to vote.
Can 2.7% of the electorate tip the Senate balance of power?
The combined population of Georgia and Arizona is 5.4% of the U.S. population. If the two senate seats in question were won by roughly half the voters, it would mean that 2.7% of the U.S. electorate could upend the balance of power in the Senate, even if the margins were razor-thin—even if the margin came down to one precinct.
Thanks to the arithmetic dictated by the U.S. Constitution, a handful of voters in “battleground states” can have a preposterously outsized impact on one of the institutions—the legislature— supposed to serve as a check-and-balance on the other two—the executive and judiciary.
That would be especially bad for Democrats, because Republicans are far less likely than Democrats to break ranks. Note that during the last three weeks the Democrats have had two rank-breakers in the persons of Kyrsten Sinema and Joe Manchin objecting to certain features of Biden’s COVID-19 relief bill—that it’s not conditional enough, or that the minimum wage hike will unduly hurt business owners.
“Majority” Leader’s iron grip on the legislative process
The Senate Majority Leader represents a majority of his/her party’s members in the Senate–but arithmetic shows that leader does not necessarily represent the majority of the electorate—in principle, as low as 44 percent. The Senate Majority Leader position is not in the Constitution—it is just one of a batch of “rules” that have accumulated over time, with barnacles growing on, and slowing, the ship of state. Unscrupulous holders of the position such as Mitch McConnell—deposed by the 2020 election but scheming to return in 2022—can exploit the rules to bend the direction of the country to serve the interests of the ruling class.
Fifty-two Republican seats—which is what we would have if Warnock and Ossof had not won by razor-thin margins in 2020—is a high bar to clear for any legislation even a wee bit left of center, made higher still by the machinations of Mitch McConnell. It could be just as bad as it was in the period from the 2014 election that put Republicans in the majority up to the end of January of this year, with McConnell at the helm. That saw McConnell preventing reams of progressive legislation from even coming to a vote, not to mention the move to shut down Obama’s nomination of Merrick Garland to the Supreme Court without so much as a committee hearing—one of the most shameful political events I have seen in my lifetime, and that goes back a long way.
The Senate Majority Leader’s sole power to decide what legislation and what nominations can be brought to a vote was one of the daggers being regularly plunged into the heart of progressivism and the heart of democracy itself by Mitch McConnell. If any one person is responsible for the conditions that engendered Trumpism, it is Mitch McConnell. And it is the rules of the Senate that enabled McConnell to do this dirty work, upon which he prided himself as the “Grim Reaper” of progressive legislation coming from the House.
Grave arithmetic, continued: the filibuster and the tyranny of the minority
If the Senate Majority Leader’s power to decide what legislation gets brought to a vote is a dagger, then the filibuster is a sword—used only for defense by the minority, but with the capacity to cut a popular piece of legislation off at the knees.
There’s a whole lot to learn about the lengthy evolution of the filibuster from the video at the end of this post featuring Adam Jentleson, who has written a book about it entitled, with no hyperbole, Kill Switch. Jentleson is quite adamant about the need to rescind or radically amend the filibuster. Otherwise we risk today’s seemingly endless gridlock becoming actually endless. If it remains much longer it will drive American democracy into the ditch.
The existence of the filibuster—which is not even a law but is part of Senate “rules”—makes disproportionate representation still worse. It has led and is continuing to lead to a tyranny of the (currently Republican) minority, because it is so easy for the minority to stop legislation dead in its tracks—easier still if the minority has no respect for fairness, a growing feature of the Republican party. It can be done even if the minority holds just 41 seats. In principle, 40 of those 41 seats could represent just 11% of the American electorate! Although, it turns out that it’s only half as bad in practice, since it would take as much as 23% of the electorate to suffice. (Explanatory arithmetic four paragraphs down. Note that we are using the populations of these states as a proxy for the electorate in each state—it’s a fudge factor that affects the national percentages very little.**)
Just how the filibuster sharpens the sword of the Senate minority can be found in the sources at the bottom of this post. Mind, the filibuster is not absolute: there are two kinds of legislation most often used to sidestep the filibuster: (1) “reconciliation” allowing bills concerning the budget—such as Biden’s COVID Relief package—to pass with a simple majority; (2) nominations to judicial posts.
(Another means to get around the filibuster requires a nimble procedural dance on the part of the majority, the so-called “nuclear option,” which can be used only in a narrow class of situations. There’s a pretty good description of this dance in the first of the three sources listed below.)
Otherwise, progressive legislation such as the $15 minimum wage may not even get to the floor. Such is the potency of the filibuster to choke off debate, just the threat of can block it from even coming to the Senate floor. To overcome the filibuster, a bill requires a 60% supermajority—which means it takes only 41 minority senators to stop a bill dead in its tracks, never to be voted on. Once upon a time, filibusters had to be implemented by a physical senator taking the physical floor—carrying the sword openly to battle, if you will. Nowadays, all it takes is a phone call from one party’s leader to the other’s, to say “you don’t have 60 votes.”
Which brings us back to the arithmetic of representation of the electorate by U.S. senators. In principle, it would take senators from only twenty of the smallest states, if each was represented by two Republican senators, to get to 40 Senators, who could then find a Republican from another state to get to the magic 41.
In practice, it’s a bit more complicated . . .
The population of the twenty smallest states is 33.7 million—that’s a tad over 10% of the total U.S. population. In principle, Republicans would need to represent only 10% of the U.S. population—that of the twenty smallest states—to block legislation in the Senate, as long as they could get just one more vote on their side, as just described.
In practice, however, since five of those twenty smallest states are reliably Blue, Republicans need to find at least five more states with Republicans to get to the 41-vote Wall of Death in the Senate.
To get the first 40, we look to the twenty smallest states that also have two Republican senators. Their population is 75.6 million people: 23% of the American 328.7 million.
Gridlock maintained by as little as 23%
Yup, senators representing less than a fourth of the electorate can block a bill supported by three-fifths of the Senate.*** Needless to say, the preponderance of voters in the one-fourth are white. (What’s more, a large contingent among them is what Anthony Scaramucci recently characterized as “white Christian nationalists.”)
There would remain ten other Republicans from which to draw just one additional vote to kick the targeted piece of legislation into its coffin. In the case of progressive bills like the $15 minimum wage, you can even pry votes out of centrist Democrats’ ranks—Kyrsten Sinema and Joe Manchin being highly susceptible. Mitch McConnell could still play another version of the Grim Reaper even as a very minor Minority Leader, supported by a tad over 23% of the American population in a parallel to the absurdity of choosing the President by the Electoral College (actually the number of voters being represented is well shy of 23%—the half-plus who voted for the winners in two states). The gridlock we’ve been seeing for the last ten years could linger indefinitely as long as the filibuster survives in its present form.
Gridlock and the long game
Maintaining gridlock is a useful strategy for Mitch McConnell, who wants the Biden administration to fail, in order to bring about a Republican majority in 2022. Those wondering why the Republicans are standing firm in rejection of the hugely popular COVID Relief bill, look no farther than this incentive: if they could just get Manchin or Sinema—still wavering on the price tag—to weaken the bill, it could strike a blow to the economy with long-lasting repercussions. The damage would last, while voters’ memories of the Republicans’ anti-stimulus stand will fade in a storm of Republican attacks in 2022 blaming Democrats for failure. (All politicians rely on the short memory and even shorter attention span of the American voter, but the Republicans seem to have exploited this to greater advantage.)
A more ostensibly principled justification for Republicans to stand against the COVID-19 recovery bill is wrap themselves in the robes of fiscal responsibility, opposed to the profligate Democrats who want to saddle our descendants with a crushing mountain of federal debt. This justification is ostensibly principled, buttressed by the belief of both Democrats and Republicans that the national debt is a monster that will cripple our nation’s future. But it is wrong, as explained elsewhere in this blog in a post on Modern Monetary Theory .
Gridlock is an indispensable weapon in Mitch McConnell’s long game. It is a game which will end in nearly complete control of the legislature by the plutocracy —McConnell’s triumph—or a failed state —nobody’s triumph.
The good news: the filibuster can be bent or broken—given adequate political will
The filibuster is neither part of the Constitution nor a law. It is merely a parliamentary device with a peculiar history rooted in the defense of slavery early in the 19th Century. It can be eliminated or weakened by a simple majority of the Senate.
It doesn’t take long to apply pressure on your senators to change the rules of the Senate—especially, to rescind or radically amend the filibuster. You can leave an opinion on their website, leave a voice comment on their phone, or talk to a staffer—they want to hear from informed voters like you. Doing all three might take you only ten minutes.
Whatever the fate of the Biden COVID-19 Relief bill—we can hope that Manchin and Sinema will support it, although at this moment it’s not guaranteed—the filibuster applied to later legislation will sink the Biden administration’s chance at success.
Be careful what you wish for?
Be aware of the strongest argument in favor of keeping the filibuster around when you are in the majority: the prospect that the tables can be turned when your side finds itself in the minority after the next election. That’s what stays the hand of a majority wanting to break it. That’s what’s giving even a radical like Bernie Sanders a pause. Without the sword of the filibuster to defend Truth, Justice, and Human Decency against the onslaught of the other side, it is open to a thrashing . . . and nobody thrashes harder than Republicans in the majority.
That argument is countered by Adam Jentleson near the end of the video below. His counterargument is a bit more subtle than I can properly express, but the gist of it is this: to continue to be thwarted by Republican filibusters is to lose opportunities to improve the lot of the American people. That’s what legislators are supposed to be doing, even if it costs them the next election. Democrats have to leverage their hair-thin majority to go bold or go home.
Without the filibuster, enough progress could even win sufficient support to keep or enlarge the majority in 2022 (in both the Senate and House). Positive feedback! But even if the 2022 vote goes Red, the gamble will have been worth it if enough good legislation gets passed. A parallel is in the history of the ACA, which brought the Tea Party avalanche down upon the heads of Democrats in 2010. But the ACA still stands, and the nation is the better for it. In fact, the nation itself has come around to recognizing how good it is. Just maybe there’s a chance to improve it in 2021.
SOURCES:
Good summary of the filibuster from the Brookings Institution, including possibilities for reform:
What is the Senate filibuster.
Debate on future of the filibuster, also from Brookings: https://www.brookings.edu/events/debating-the-future-of-the-filibuster/
Below, an hour-long conversation with Kill Switch‘s author Adam Jentleson, elucidating the long history of the filibuster and the damage it has caused; it’s a fascinating hour and five minutes:
FOOTNOTES
* Except it’s not quite 50-50 because those stubborn old coots up in Maine (Angus King) and Vermont (Bernie Sanders) call themselves Independents. But they overwhelmingly caucus with the Democrats, so in actual voting practice the balance is 50 Democrats vs 50 Republicans with VP Kamala Harris casting the deciding vote in case of a tie.
** Using population numbers as a proxy for numbers of voters is a fudge, but a minor one when it comes to statewide U.S. Senate races. The actual “electorate” is the fraction of the total population who vote. Aging populations are more common in the small states, and a higher percentage of aging populations vote. Thus to say “electorate” is a slight misnomer. The way this skews numbers could matter more in Congressional House races, where some districts could swing one way or another depending on the proportion of older voters.
*** Yes, that’s another fudge, since we can’t say that 59 senators represent 60% of the whole, but it’s close enough!