Many Democrats are recognizing that the federal government is broken and are lining up to "fix" the Senate filibuster. Some want to reduce the cloture requirement to 55 Senators. Others want to do away with the filibuster entirely.
There's only one problem: many Democratic Senators are reluctant to change the rule.
Senator Ron Wyden (D-Ore.), for instance, favors the filibuster, which he used to protect Oregon's "Death With Dignity" law when it was under attack by a Republican Congress.
He is hardly alone. In 1995, 23 Democrats joined every Republican to defeat an effort (which was co-sponsored by Senator Joseph Lieberman) to scrap the filibuster. Will the Dems pick up at least 14 of those votes to eliminate the filibuster today? Very unlikely.
Unfortunately, this reflects an even bigger problem. The fact is the federal government isn't "broken" because of the filibuster rules. It's broken because of its two Senators per State structure, regardless of population, that is built into the U.S. Constitution.
The filibuster aggravates this problem, of course. But, the filibuster just highlights that the Senate that made sense in 1787 no longer does. After all, the impact of the Senate's structure is much different than was anticipated more than two centuries ago.
The Founders were dealing with States which were built on ethnic identities. Many States even had their own religions. Structuring the Senate and the Electoral College to protect State boundaries made some sense in a new, diverse country where tolerance would have to be developed and valued.
Furthermore, each state had essentially operated as a virtual country during the Articles of Confederation. But after the ratification of the Constitution -- and especially after the Civil War -- the independent power of states greatly diminished.
Then, in the 20th Century, emigration between states increased greatly.
Finally, communications technology -- first the movies, then radio and TV, and now the Internet -- encouraged a truly national culture. Times have changed.
And one of those changes is to virtually eliminate the distinctiveness of State populations. Are the people of, say, Pennsylvania, really different than the people of California, the people of Ohio from the people of Oregon? I've lived in all of those places and I can tell you: No! (A bigger cleavage is rural vs. urban within States.)
Today, State identity does little more than define which sports teams you root for. It makes little sense for land to have so much more power than people in the U.S. Senate.
There has been one more significant shift over the past 2+ centuries. In 1790, the most populous state was Virginia. Its population was 12x that of the smallest state, Delaware.
Today, California's population is 70x that of Wyoming.
The United States is the world's oldest democracy, yet we have no problem with each citizen of Wyoming having 70x the power of each Californian in the US Senate?
While the nation requires local administrative structures, i.e. States, the commitment to their original design and power makes little sense today.
Especially since this design has to distort our politics -- in both perception and reality.
Perception: the Senate's structure leads journalists to focus on the number of a political party's winners rather than its relative support. So the popularity of the Democratic Party is consistently understated because Democrats generate larger wins in larger states. The 2004 election was portrayed as a huge Republican victory because they won more Senate seats, but the Democrats won millions more votes.
Even if it doesn't matter legislatively -- it does matter politically. Karl Rove is a big believer in the "bandwagon effect" where the perception of impending political victory leads to political victory. Ignoring which party is actually winning most of the votes distorts this effect, political momentum, and, ultimately, the laws we live under.
Reality: the Senate's structure directly distorts results, as we just saw in the maneuvers the Democratic Senate leadership was forced to take to end the Republican medical insurance filibuster.
Let's be clear, a majority of Americans live in how many states? According to 2005 population figures, the number is "9." It would take only 18 Senators to represent a majority of Americans -- 12 Democrats and 6 Republicans.
If the Senate were based on population, it would require just 26 Democrats to represent a majority. Meanwhile, Senate Republicans represent just 37% of the population. (The Census counts non-citizens. Adjusting for the 10% of the population or so that are non-citizens would affect the power of the large states a bit, but not much politically as Texas and Arizona would nearly balance out California.)
This is how the government is really broken: not the gap between the number of Democratic and Republican Senators but the gulf between the 26 Democrats that represent a majority of Americans and the 74 Senators, mostly Republicans, who don't.
The current filibuster rules aggravate the situation, of course. At the time of the Senate health care debate, before Republican Scott Brown was elected in Massachusetts, we were letting just over 1/3 of Americans block the desires of 2/3.
Let's say that in the next election, the Democrats lose Harry Reid's Nevada seat as well as Byron Dorgan's seat in North Dakota. But, at the same time, they pick up the Republican seats in Florida and Ohio. The current party split would not change at all and the Democrats would have picked up no new support for their agenda. But now the Democrats would represent nearly 70% of the US population.
It's likely the Republicans will do better than this in 2010. But, as the Dems dominate the larger States, the next time they have momentum, they could be closing in on representing 75% of the population -- and still need to cripple their agenda in order to obtain the support of smaller state Senators to stop filibusters.
It is this figure that Democrats need to keep in mind as they consider a new cloture rule by shaping it to be the one feature of the Senate that recognizes what is currently missing: Democracy.
The Senate needs to alter the filibuster -- but it doesn't have to eliminate it. It could just say that cloture would be invoked unless Senators representing over 40% of the population voted to continue debate, figured with each of the two State Senators representing half the State's population. Besides shifting the calculation for cloture from States to population, this also shifts the burden to where it belongs: on the minority trying to stop the vote, not the majority that wants to hold it.
If this rule were in force today, it would take only 17 Democratic Senators to block debate. Of course, Republicans couldn't block cloture alone, but they could with just one more large state Democrat.
Unfair? No. More a reflection of how unfair the current rule is. If the Republicans don't like it, they should run candidates who can win in California, Illinois, and other large states.
Or, the rule could be adjusted so that it requires both 41 Senators and 40%+ of the population to block cloture. This would still be a major step toward Democracy from the current status quo.
In the case of the health care debate, the Democrats could have lost Senators Lieberman (Conn.), Nelson (Neb.), Landrieu (La.), and Lincoln (Ark.) and still invoked cloture. The need for the worst compromise/bribery would have been avoided. And the public option could have been retained.
If the Senate isn't interested in recognizing Democracy in even the most minor way, then we are headed for a crisis. And liberals need to make clear that they will call for more radical remedies that ultimately go to the very structure of the Senate. Most people don't realize that the most straightforward way of dealing with the problem -- adjusting the equal suffrage per state requirement in the Senate -- is barred by the US Constitution unless every state consents. It cannot even be the subject of a Constitutional amendment (Article V of the Constitution).
Then, what would more radical alternatives look like? What about adjusting State lines to equalize State population? Our 50 State boundaries could be redrawn into areas of some 6 million people each -- and then adjusted, maybe every 50 or 100 years. Radical? This is the way that State Senates are organized today (only with more frequent boundary adjustments).
Don't like that idea?
Perhaps the Senate should become more like the British House of Lords and be restricted to a limited jurisdiction, say, confirming appointments and ratifying treaties.
Let's be "Originalist" and say that the Founders were correct and no state should be larger than 12x the smallest. So California should break itself into 9 States, Texas into 6, New York into 3, and down the line. There could be more than 20 new States and 40 new Senators. And guess what: Most of them are likely to be liberal. (Or maybe California gets carried away and breaks itself up into 70 Wyoming-sized States? If it works for Wyoming why shouldn't it work for California as well?)
The advantage here is that no Constitutional Amendment is required.
Many Americans consider the 2000 Presidential Election and the Senate consideration of health care to be scandals. The loser of the popular vote becomes President? Also caused by the Senate structure. (Drop the Senate votes built into the Electoral College and the odds of the loser of the popular vote taking the Presidency would be greatly reduced -- and Al Gore wins in 2000.) The only way that the Senate can pass health insurance reform is if it is gutted and then subjected to special interest deals?
What's next? As smaller and smaller States control the outcome of elections and Congressional action and as populations in coastal States continue to grow disproportionately, there is bound to be some kind of national political breakdown. The power of tiny minorities is also likely to become an international embarrassment for the world's model of Democracy.
So Democratic Senators need to assert that a cloture rule reflecting Democracy is the least they can accept to fix the Senate -- while respecting the true will of a responsible majority, just as our Founders would have wanted. After all, the Federalist Papers argued against supermajority votes: "Whenever justice or the general good might require new laws or active measures, a quorum of more than a majority would reverse the fundamental principle of free government. The majority would no longer rule. The power would be transferred to the minority."
Or there's always the alternative: Welcome to the State of San Diego!