By Alec MacGillis
Sunday, August 9, 2009
Wonder why President Obama is having a hard time enacting his agenda after sweeping to victory and with large congressional majorities on his side?
Look to the Senate, the chamber designed to thwart popular will.
There is much grousing on the left about the filibuster, the threat of which has taken such hold that routine bills now need 60 votes. Getting less attention is the undemocratic character of the Senate itself.
Why, for example, have even Democratic senators been resistant on health-care reform? It might be because so many of the key players represent so few of the voters who carried Obama to victory -- and so few of the nation's uninsured. The Senate Finance Committee's "Gang of Six" that is drafting health-care legislation that may shape the final deal -- without a public insurance option -- represents six states that are among the least populous in the country: Montana, Wyoming, North Dakota, Maine, New Mexico and Iowa.
Between them, those six states hold 8.4 million people -- less than New Jersey -- and represent 3 percent of the U.S. population. North Dakota and Wyoming each have fewer than 80,000 uninsured people, in a country where about 47 million lack insurance. In the House, those six states have 13 seats out of 435, 3 percent of the whole. In the Senate, those six members are crafting what may well be the blueprint for reform.
Climate change legislation, which passed in the House, also faces daunting odds. Why? Because agriculture, coal and oil interests hold far more sway in the Senate. In the House, the big coal state of Wyoming has a single vote to New York's 29 and California's 53. In the Senate, each state has two. The two Dakotas (total population: 1.4 million) together have twice as much say in the Senate as does Florida (18.3 million) or Texas (24.3 million) or Illinois (12.9 million).
Was this really what the founders had in mind? One popular story tells of Thomas Jefferson asking George Washington what the Senate's purpose is. "Why did you pour that coffee into your saucer?" Washington asked in return. "To cool it," Jefferson replied. To which Washington said, "Even so, we pour legislation in the senatorial saucer to cool it." A nice tale. But what if the coffee gets so cold that no one bothers to drink it? Or if the Senate takes its coffee black in a country that opted overwhelmingly for sugar and cream?
Kent Conrad, Democrat from North Dakota (pop. 641,481, third smallest), chairman of the Budget Committee and one of the Gang of Six, does not see any problem. Asked whether it is appropriate that his vote counts as much as those of senators from states 20 times as large, he was flummoxed. "One would hope that people would support the Constitution of the United States," said Conrad, who was reelected with 150,000 votes in 2006, when Virginia's Jim Webb needed 1.2 million votes to win. "This was the grand bargain that was struck when the Founding Fathers determined the structure and form of the United States Congress." He added: "Are you proposing changing the Constitution?"
Well, maybe. Regardless, there's nothing wrong with taking a closer look at how things came to be the way they are. The fact remains that, hallowed as it is, the Senate is as much a product of bare-knuckled, self-interested politics as last week's fight over military earmarks. In Philadelphia in 1787, the smaller states favored the New Jersey Plan -- one chamber with equal representation per state -- while James Madison argued for two chambers, both apportioned by population, which would benefit his Virginia.
The delegates finally settled on the Connecticut Compromise, or the Great Compromise. Seats in the lower chamber would be apportioned by population (with some residents counting more than others, of course) while seats in the upper chamber would be awarded two per state.
The idea was to safeguard states' rights at a time when the former colonies were still trying to get used to this new country of theirs. But the big/small divide was nothing like what we have today. Virginia, the biggest of the original 13 states, had 538,000 people in 1780, or 12 times as many people as the smallest state, Delaware.
Today, California is 70 times as large as the smallest state, Wyoming, whose population of 533,000 is smaller than that of the average congressional district, and, yes, smaller than that of Washington D.C., which has zero votes in Congress to Wyoming's three. The 10 largest states are home to more than half the people in the country, yet have only a fifth of the votes in the Senate. The 21 smallest states together hold fewer people than California's 36.7 million -- which means there are 42 senators who together represent fewer constituents than Barbara Boxer and Dianne Feinstein. And under Senate rules, of course, those 42 senators -- representing barely more than a tenth of the country's population -- can mount a filibuster.
"You have this automatic disequilibrium," said Donald Ritchie, the official Senate historian. "It's clearly inequal. There's no sense of equality except in the sense that the states are equal." Was this what the founders wanted? "I think they would have a hard time imagining how big the country got," he said. "I'm not sure they knew the full ramification of that decision."
For the first few decades in Congress's history, the more democratic House was where the action was. "The authors of the Constitution really thought the House would be the driving engine, and the Senate would just be the senior group that would perfect legislation that came up from the House," Ritchie said.
But after the Missouri Compromise of 1820, it was clear that the battle over slavery would be fought in the upper chamber. After the Civil War, the Senate became the bastion of the GOP as the party pushed to admit pro-Republican states to the union. Nevada was admitted in 1864 to help ratify the Civil War amendments despite being virtually empty; the Dakotas joined in 1889, split in two to provide more votes in the Senate and the Electoral College; Wyoming joined a year later with 63,000 residents.
With these added votes in the Senate and the Electoral College, the Republicans dominated throughout the late 19th century despite Democratic strength in the House. High tariffs, land giveaways in the West, lax regulation of railroads and a pro-business Supreme Court were all thanks partly to the underpopulated new states, says MIT historian Charles Stewart III.
A few decades later, the politics had flipped, and it was the South relying on the Senate -- and the filibuster -- as a bulwark against civil rights legislation. In any case, the Senate's preeminence was established, even as the Britain's House of Lords and upper chambers in other countries' legislatures lost sway. Add the rise of the filibuster and the fact that small-state senators tend to stick around longer, gaining powerful chairmanships under the seniority system, and you've got today's change-resistant Senate.
"We now have probably the most powerful upper house of any legislature," Ritchie said. "Combine that with the inequality, and it creates some peculiar situations."
Not all small states are GOP strongholds. (Hello, Vermont, Delaware and Rhode Island.) And it's true that Obama won the 2008 nomination thanks in part to racking up caucus victories in states such as Idaho and Wyoming.
But since Obama took office, senators from the wide-open spaces have asserted themselves against him over and over. Conrad opposed his plan to cut subsidies for wealthy farmers. Chuck Grassley (R-Iowa) pushed to focus transportation funding in the stimulus bill on rural areas and last week blocked the lifting of sugar tariffs to protect the ethanol industry.
Sen. Ben Nelson (D-Neb.) sought cuts in stimulus funding for the states; Nebraska is not suffering the kind of deficits bigger states are. He's also resisted Obama's student loan reforms -- Nelnet, a big loan provider, is based in Nebraska, which wouldn't mean much in the House, where Nebraska has three votes out of 435, but means a lot in the Senate. Similarly, on health care, a network of small Montana hospitals boasted to the Wall Street Journal last week that it has daily contact with Sen. Max Baucus (D-Mont.), who is leading the Gang of Six -- influence it could never hope to have in the House.
Sen. Tom Harkin (D-Iowa) has declared that the cap-and-trade bill will require even more concessions to agriculture, while a group of rural Midwestern utilities that represents 4 percent of the nation's customers is mobilizing to lobby their small-state senators. The bill passed the House by only seven votes; getting it through the Senate "is going to be the House vote in spades," said Eileen Claussen, president of the Pew Center on Global Climate Change.
When Transportation Secretary Ray LaHood testified before a Senate committee in June about the need for investments in public transit, he got affirmation from Sen. Frank Lautenberg (D-N.J.). But Lautenberg was canceled out by John Barrasso (R-Wyo.), from a state 6 percent the size of New Jersey. "We have significant reservations in Wyoming about Washington coming and saying in all its wisdom, 'This is how we want people living,' " Barrasso said.
And then there's the Senate's age-old distortion of distributive politics, in which goodies are doled out on anything but a per-capita basis. California, Illinois, New York and New Jersey are among the 10 states that get the least back per tax dollar sent to Washington; Alaska, the Dakotas and West Virginia are among those that get the most.
Looking on the bright side is Bruce Katz, director of the Brookings Institution's Metropolitan Policy Program, which promotes policies that recognize that most Americans now live in major metro areas. The Senate may not be representative, he said, but many members have gone beyond their small-state roots to represent the national interest.
John Melcher, a Democrat who represented Montana in the Senate from 1977 to 1989, also takes a sanguine view. I ran into him while covering Obama's swing through Montana in April 2008. After a beautiful bus drive from Missoula along the Clark Fork River, the campaign convoy arrived in the old mining town of Butte, which has fewer people living in it now than in 1910. At the M&M Cafe, where Obama stopped in to shake hands, it took me a while to realize that the octogenarian man I was speaking with was a former U.S. senator -- though the odds of that in a state with fewer than 1 million people were better than elsewhere.
I called Melcher last week to ask him about the Gang of Six and the influence he had held in the Senate. He had not had the sway of his predecessor, Mike Mansfield, the Senate's longest-serving majority leader, but it had not escaped him that his power in the august body was disproportionate to the size of his state. Not that he saw anything wrong with that.
"Small-population states and large land areas have quite a bit of influence," he said. "It's proved to be okay, and hasn't hurt the country. We've had astute leaders in low-populated states, they haven't abused their power."
He paused. "But of course I'm saying that from an admittedly biased point of view. I'm a Westerner. And I think it's fine."
Alec MacGillis is a reporter on the national staff of The Washington Post.