United States Senate and the Problem of Equal State Suffrage, The

Georgetown Law Journal, Mar 2006 by Tseytlin, Misha

INTRODUCTION

Numerous scholars and commentators have advocated abolishing the undemocratic aspects of the Electoral College.1 In the aftermath of the 2000 presidential election, commentator George F. Will responded to these critics by pointing out that the antidemocratic bias in the Electoral College is significantly smaller than the bias in the United States Senate.2 Will asked sarcastically, "So what? Do critics want to abolish the Senate as well?"3 The implication of this rhetorical question was that because equal state suffrage in the Senate is so central to American federalism, only "simple-minded majoritarians"4 would question it. Yet, while attacks against the Electoral College have not subsided, scholars have given only sparse attention to the far more undemocratic Senate.

This Note takes Will's challenge seriously and explores whether equal state suffrage in the Senate is justifiable. This examination is especially important because the malapportionment of the Senate is becoming increasingly serious. At the founding, the difference between the number of residents in the largest and smallest states was roughly eleven to one;5 today, the difference between the number of residents in California and Wyoming is over seventy to one.6 As a result, less than twenty percent of the electorate could theoretically choose the majority of the Senate.7

While grumblings from large-state representatives like New York's late Senator Daniel Patrick Moynihan that "sometime in the next century the United States is going to have to address the question of apportionment in the Senate"8 remain faint, there must be some breaking point at which Americans will begin to question seriously whether the Senate should be reformed.9 John Locke, one of the intellectual fathers of the American founding, put the conundrum most aptly:

[I]t often comes to pass, that in governments, where part of the legislative consists of representatives chosen by the people, that in tract of time this representation becomes very unequal and disproportionate to the reasons it was first established upon . . . and every one must confess needs a remedy; tho' most think it hard to find one . . . .10

Like the rotten boroughs11 that Locke was addressing, the increasing malapportionment of the Senate is an issue that Americans will have to face. This Note urges Americans to begin this inquiry by advancing the discussion about the role the Senate serves in the United States' constitutional system.

The Senate holds a hallowed place in American politics,12 and equal state suffrage in the Senate receives the strongest constitutional protections.13 It is the only clause in the Constitution that cannot be amended without each state's consent.14 Yet, the justifications for equal state suffrage remain undeveloped and often contradictory. James Madison offered the most commonly cited defense for equal state suffrage in the Senate in Federalist 62: "[T]he equal vote allowed to each State is at once a Constitutional recognition of the portion of sovereignty remaining in the individual States and an instrument for preserving that residuary sovereignty."15 Yet, when Madison discussed the proper design of the Senate at the Constitutional Convention, he joined framers like James Wilson16 and Alexander Hamilton17 in opposing equal state suffrage. He and his fellow large-state federalists explained that equal state suffrage destroyed the "proper foundation of [government]" as embodied by proportional representation.18 The modern Supreme Court has echoed these same proportional representation principles, repeatedly striking down state senates that attempt to approximate the federal scheme.19 While several commentators have criticized equal state suffrage,20 most have either accepted Madison's account definitively or completely ignored the possibility that any problem exists.21

Part I of this Note will set up the problem by showing that equal state suffrage violates equal protection principles as understood both by founders like Madison and by the Supreme Court in cases hike Reynolds v. Sims22 Part II will explore the most common justifications for the Senate and show how these theories are problematic on theoretical, design, and practical grounds. This Part will draw a significant distinction between Madison's Senate-as-protector-of-state-sovereignty explanation (which this Note will label the "sovereignty protection hypothesis") and the theory originally advanced by the small-state representatives at the Constitutional Convention, that equal state suffrage increases the power of small states (which this Note will label the "augmented voting power hypothesis"). This Part will distinguish between justifications that defend equal state suffrage in the Senate because it helps preserve the states' residual sovereignty in the federalism balance, and those that defend equal state suffrage because it allows small states more power to pursue their interests at the national level.

Part II will argue that the sovereignty protection hypothesis is based upon an incomplete understanding of the Senate. Section A of this Part will explain that the sovereignty protection hypothesis conflicts with the theoretical justification for abandoning the Articles of Confederation and adopting the Constitution of the United States. Section B will show that the sovereignty protection hypothesis does not fully account for many of the Senate's institutional design features. Section C will explain why the sovereignty protection hypothesis fails to address the practical impact of equal state suffrage on Senators' incentives. By giving each state an equal vote, the Senate augments small states' coalitionbuilding power, allowing Senators from those states to obtain more funding and to wield more political power.23 This Part aims to show that the Senate's apportionment is better explained by the largely undefended augmented voting power hypothesis than the generally accepted sovereignty protection hypothesis. Finally, Section D will conclude that because arguments based upon the sovereignty protection hypothesis largely fail, advocates of the Senate's method of apportionment need to develop some reasons to defend departing from the proportional representation principle.