Progressives, Leave the Senate Alone

Jack Rakove’s WSJ podcast (“James Madison’s Critique of the Senate Still Holds,” Sept. 16, 2022) is right on the history of the so-called Great Compromise, but wrong in arguing that representation by the states qua states in Congress’s upper chamber is a constitutional flaw.

It can be shown, as James Buchanan and Gordon Tullock do in The Calculus of Consent: Logical Foundations of Constitutional Democracy, that a bicameral legislature whose members vote by simple majority rule is equivalent to requiring a supermajority (two-thirds or three-quarters) for passing bills in a unicameral legislature, but only if the seats in the House and Senate are apportioned on different representational bases. In other words, it is harder for special-interest groups (Madison’s “factions”) to get legislation enacted when they must “buy” majorities in two chambers of unequal size elected from distinctive constituencies than if representatives and senators are beholden essentially to the same electorates, which would be true when seats in both chambers are apportioned based on population.

Contrary to Madison (and Rakove), representation by states in the U.S. Senate, along with senators’ longer terms in office, serves as an important counterweight to the popular passions that sweep the House frequently. It is a feature, not a bug, of the federal constitution crafted in Philadelphia. That check-and-balance was reinforced until the ratification of the Seventeenth Amendment in 1913 transferred the selection of U.S. senators from state legislatures to direct popular voting.

Had the Seventeenth Amendment not been ratified, it is unlikely that the Affordable Care Act’s expansion of the Medicaid program, financed partly by the states, would have been endorsed by a U.S. Senate majority.

The U.S. Supreme Court began chipping away at the institution of bicameral legislatures at the state level in Baker v. Carr, 369 U.S. 186 (1962), which mandated that electoral districts for upper and lower house seats both be population-based.

If the same doctrine of “one person, one vote” is extended to the U.S. Senate, that chamber will be dominated by populous states like California, Texas, and Florida—the same states that now dominate the House of Representatives. Assuming that each state is guaranteed at least one senate seat (as is true of the House), Electoral College votes will shift away from small states toward larger ones, thus changing presidential election campaign strategies, diluting the former’s influence in national politics even further.

I don’t think I want to live in that brave new political world.

William F. Shughart II is a Distinguished Research Advisor and Senior Fellow at the Independent Institute, the J. Fish Smith Professor in Public Choice at Utah State University, past President of the Public Choice Society as well as the Southern Economic Association, and editor of the Independent book, Taxing Choice.
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