Congress is struggling with President Joe Biden's proposals to deal with serious issues facing the country and the world. The Senate's structure is one main reason.
The Constitution provides two U.S. senators per state. This guarantees that senators representing a minority of Americans can stop proposed legislation supported by a majority, and it helped persuade the less populous states to ratify the Constitution.
We all benefit from this, as the Senate's anti-majoritarian design can prevent large state domination and laws based on fickle majority opinion.
The current 50/50 Senate illustrates how this could work. The 22 states with two Democratic senators contain some 169 million Americans, more than half the U.S. population of about 331 million. The 22 states with two Republican senators are home to 126 million Americans, and the six states with one senator from each party total about 35 million.
Count the split states in each column, and the Senate's 50 Democrats represent 204 million Americans while its 50 Republicans represent 161 million Americans, a 56% to 44% split. (These numbers ignore Washington D.C., which has no Senate representation.) If just one of 50 Democratic senators joined 50 Republicans in opposing a bill, it would be blocked.
The Constitution's provision of two senators per state and the diverse conditions from state to state that influence senators are a bulwark against any group of states, or a solid majority of Americans concentrated in more populous states, being able to enact laws that are broadly opposed by less populous states as expressed by whom they elect as senators.
But the power currently lodged in Republican senators could be wielded by senators representing a much smaller minority of Americans in future years. Texas and Florida, the second and third most populous states, each currently have two Republican senators.
If it came to pass that the 50 senators from the smallest 25 states favored a bill, and those from the largest 25 states opposed it (or vice versa) the vice president would break the tie. The smallest 25 states have a population of 53.5 million, which is 16.2% of the U.S. population.
Thus, a bill's fate could be determined in the Senate, with the VP's help, even if the outcome was opposed by senators representing 83.8% of Americans.
The Senate's filibuster rules allow for still more extreme minority power. It takes 60 votes to end a filibuster and allow votes on bills. Thus, if the 40 senators from the 20 least populous states are opposed, proponents need all 60 remaining senators.
The 20 smallest states are home to some 34 million people, 10.2% of the U.S. population. Unless senators representing nearly 90% of Americans demanded a vote, a bill could die.
In practice, minority power is not as extreme as these numbers suggest. Issues do not divide purely on small vs. large state lines and senators are elected to exercise their judgment, not merely poll their citizens on every issue. Moreover, the Senate alone (and thus senators representing a tiny minority of Americans) can't enact laws but only block them. And the House is more responsive to the majority.
Clearly, though, the Constitution guarantees that senators representing a minority of Americans can block legislation, and the filibuster rules let that minority be quite small.
But concerns with the filibuster rules extend farther than excessive minority power. They are responsible for the Senate's budget reconciliation rules, under which some bills with budgetary aspects are not subject to filibusters. The reconciliation rules lead directly to what we have today: disparate major policy proposals glopped together in one gargantuan bill, making public input on important issues next to impossible, and causing virtually all of the publicity about the bill to be focused solely on incomprehensibly large dollar figures, not on whether what is to be paid for is worth buying, or how to pay for it.
This unfortunate situation is made worse by the political game playing it spawns. House Democrats threaten to reject the bipartisan infrastructure bill that they know is needed. Senate Republicans foist on Democrats (acting through reconciliation) the long-term increase in the debt ceiling that they know is needed.
And those who vote no on the big bill can't be held accountable for favoring or opposing individual provisions.
Might it be time to repeal the Senate filibuster and budget reconciliation rules?
John James is an attorney who was Minnesota's commissioner of revenue from 1987-91 under Gov. Rudy Perpich.