Editor's note: This is the second and final installment of The New York Times piece on the disproportionate power enjoyed by small states in the U.S. Senate. Part one appeared in Monday's paper.
Fresno, Calif., is a city of a half-million people with a long list of problems, including 14 percent unemployment, the aftermath of a foreclosure crisis, homeless encampments that dot the sun-blasted landscape and worries about the safety of the surrounding county's drinking water.
A thousand miles away, a roughly comparable number of people inhabit the entire state of Wyoming. Like Fresno and its environs, Wyoming is rural, with an economy largely based on agriculture. It is also in much better shape than Fresno, with an unemployment rate around 5 percent.
Even so, Wyoming receives far more assistance from the federal government than Fresno does. The half-million residents of Wyoming also have much more sway over federal policy than the half-million residents of Fresno. The vote people in Fresno remember best was taken in 2007, when an immigration overhaul bill that included a guest worker program failed in the Senate. Both agricultural businesses and leaders of Fresno's large Hispanic population supported the bill, much as polls suggested a majority of Americans did.
But the immigration bill died in the Senate after a 53-46 vote rejecting a bid to move the bill forward to final passage. Wyoming's two senators were in the majority and California's two senators on the losing side.
Had the votes been allocated by population, the result would have been lopsided in the other direction, with 57 votes in favor and 43 against.
Even 57 votes would not have been enough to overcome a filibuster, which requires 60. In the last few years, 41 senators representing as little as a third of the nation's population have frequently blocked legislation, as the filibuster (or the threat of it) has become a routine part of Senate business.
Beyond the filibuster, senators from Wyoming and other small states regularly oppose and often thwart programs popular in states with vastly bigger populations. The 38 million people who live in the nation's 22 smallest states, including Wyoming, are represented by 44 senators. The 38 million residents of California are represented by two senators.
In one of every 10 especially consequential votes in the Senate over the two decades ending in 2010, as chosen by Congressional Quarterly, the winning side would have lost had voting been allocated by population. And in 24 of the 27 such votes, the majority of the senators on the winning side were Republicans.
David Mayhew, a political scientist at Yale, cautioned that the political benefit to Republicans is “quite small as well as quite stable,” adding that it is important not to lose sight of small blue states like Delaware, Hawaii, Rhode Island and Vermont. But he acknowledged that small states of both political stripes receive disproportionate federal benefits. Frances E. Lee, a political scientist at the University of Maryland and an author of “Sizing Up the Senate: The Unequal Consequences of Equal Representation,” argues that the partisan impact of the small-state advantage is larger. “There is a Republican tilt in the Senate,” she said.
“The way Republicans are distributed across the nation is more efficient,” she added, referring to the more even allocation of Republican voters, allowing them to form majorities in small-population states. Democrats are more tightly clustered, especially in large metropolitan areas.
BORN OF A COMPROMISE
Equal representation of the states in the Senate is a consequence of the Great Compromise, the 1787 deal that resolved a seemingly intractable dispute between the smaller states and a handful of large ones like Massachusetts, Pennsylvania and Virginia. But the country was very different then. The population was about 4 million, and the maximum disparity in voting power between states was perhaps 11 to 1. It is now six times greater than that.
Even scholars who criticize how voting power is allocated in the Senate agree that parts of its design play an important role in the constitutional structure. With its longer terms and fewer members, the Senate can, in theory, be more collegial, take the long view and be insulated from passing passions.
But those qualities do not depend on unequal representation among people who live in different states. The current allocation of power in the Senate, many legal scholars and political scientists say, does not protect minorities with distinctive characteristics, much less disadvantaged ones.
To the contrary, the disproportionate voting power of small states is a sort of happenstance that has on occasion left a stain on the nation's history.
Robert A. Dahl, a Yale political scientist, who is 97 and has been studying American government for more than 70 years, has argued that slavery survived thanks to the disproportionate influence of small-population Southern states. The House passed eight anti-slavery measures between 1800 and 1860; all died in the Senate. The civil rights movement of the mid-20th century, he added, was slowed by senators representing small-population states.
As the population of the United States has grown a hundredfold since the founding, to more than 310 million, the Supreme Court has swept away most instances of unequal representation beyond the Senate. In a series of seminal cases in the 1960s, the court forbade states to give small-population counties or districts a larger voice than ones with more people, in both state legislatures and the House.
“The conception of political equality from the Declaration of Independence, to Lincoln's Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing — one person, one vote,” Justice William O. Douglas wrote for the court in 1963, referring to the amendments that extended the franchise to blacks and women and required the popular election of the Senate.
The rulings revolutionized American politics — everywhere but in the Senate, which the Constitution protected from change and where the disparities in voting power have instead become more extreme.
A BARRIER TO CHANGE
In his memoirs, Chief Justice Earl Warren described the cases from the 1960s establishing the equality of each citizen's vote as the most important achievement of the court he led for 16 years. That made them more important in his view than Brown v. Board of Education, which ordered the desegregation of public schools, and Gideon v. Wainwright, which guaranteed lawyers for poor people accused of serious crimes.
“Legislators represent people, not trees or acres,” Warren wrote for the court in 1964, rejecting the argument that state senators, like federal ones, could represent geographic areas with varying populations. “Legislators are elected by voters, not farms or cities or economic interests.”
Applying that principle to the Senate would be very hard. Even an ordinary constitutional amendment would not do the trick, as the framers of the Constitution went out of their way to require states to agree before their power is diminished. Article V of the Constitution sets out the procedure for amendments and requires a two-thirds vote of both houses of Congress or action by two-thirds of state legislatures to get things started. But the article makes an exception for the Senate.
“No state, without its consent, shall be deprived of its equal suffrage in the Senate,” the article concludes.
The U.S. Senate is hardly the only legislature that does not stick strictly to the principle of equal representation. Political scientists use the term “malapportioned” to describe the phenomenon, and it is common around the world.
But the Senate is in contention for the least democratic legislative chamber. In some other countries with federal systems, in which states or provinces have independent political power, a malapportioned upper house may have only a weak or advisory role. In the United States, the Senate is at least equal in power to the House, and it possesses some distinctive responsibilities, like treaty ratification and the approval of presidential appointments. A recent appeals court decision severely limiting the president's power to make recess appointments, if it stands, will further increase the Senate's power.
Dahl has calculated the difference between the local government unit with the most voting power and that with the least. The smallest ratio, 1.5, was in Austria, while in Belgium, Spain, India, Germany, Australia and Canada the ratio was never higher than 21 to 1.
In this country, the ratio between Wyoming's representation and California's is 66 to 1. By that measure, Dahl found, only Brazil, Argentina and Russia had less democratic chambers. A separate analysis, by David Samuels and Richard Snyder, similarly found that geographically large countries with federal systems tend to overrepresent sparsely populated areas.
This pattern has policy consequences, notably ones concerning the environment. “Nations with malapportioned political systems have lower gasoline taxes (and lower pump prices) than nations with more equitable representation of urban constituencies,” two political scientists, J. Lawrence Broz and Daniel Maliniak, wrote in a recent study. Such countries also took longer to ratify the Kyoto Protocol on climate change, if they ratified it at all. These differences were, they wrote, a consequence of the fact that “rural voters in industrialized countries rely more heavily on fossil fuels than urban voters.”
In 2009, the House of Representatives narrowly approved a bill to address climate change, but only after months of horse-trading that granted concessions and money to rural states. That was an example, Broz and Maliniak said, of compensating rural residents for the burdens of reducing greenhouse-gas emissions.
But it was not enough. The bill died in the Senate.
Amanda Cox and Derek Willis contributed reporting.