Wednesday, July 24, 2013

Constitution 2.0: A Better Senate

With the recent filibuster showdown, and the lack of legislation moving forward, there has been some discussion about how the Senate is not working or why it's not. As part of a series on reworking the constitution, here's an idea for a better Senate.

A little history

At the Constitutional Convention, Madison's original proposal, the Virginia Plan, included two houses just as we have now. But, in Madison's plan both were based on population (or on a state's share of taxes paid). One house was to be directly elected by the people and the other was to be elected by the state legislatures. The idea was that the houses would represent different constituencies. Smaller states opposed the plan and wanted to continue with each state being equal. In the end the second house was modified as part of the Connecticut Compromise to the current design with a Senate that gives each state 2 Senators.

This gave us two houses, one that represents the people by population and one that represents the state governments as equals. But then, one hundred years ago in 1913 we changed that with the 17th Amendment, calling for the direct election of Senators. This created two houses, both representing the citizenry, but with the upper house defined by unequal and static "districts" that matched state boundaries.

The Problems

There are several problems with the way we have the Senate set up.

First of all, it's unfair, which is why Madison and many others wanted both houses to be proportional. There is no really good reason for the people of California to have as many Senators as the people of Wyoming when there are 66 times as many of them. Having some people's votes be more powerful than others would strike most Americans as undemocratic, because it is - which is why it was opposed at the time.

In addition, one of the unintended consequences of giving each state two Senators is that it has created an unnecessary disincentive for adding states. Many times in our history, states have been denied entry because one faction fears what two Senators from that state would do to the balance of power. Often states have been admitted as pairs in order to mitigate this impact. But even now, one of the largest barriers to DC statehood is the concern that the new state of Columbia would get two Senators that are either undeserved and/or will hurt Republicans.

Another unintended consequence is that each state added weakens the President because the Vice-President's tie-breaking vote becomes less relevant. It's far better to have the tie-breaking vote in a body of 26 people than in a body of 100. And we can see the impact if we look at the number of tie-breaking votes per Vice-President. The top 7 tie-breaking Vice-Presidents were all elected in the first 100 years.

Finally, and this is less of a problem than a missed opportunity, the change of constituencies that resulted from the 17th Amendment makes the House and Senate somewhat redundant. They now both represent people who have shared geography, though in most cases that geography is somewhat different.

The Solution

One change, albeit a large one, could solve all these problems. That change is to make the Senate a party-list proportional representation body with a fixed number of Senators. This would make the body more democratic, remove a barrier to adding states and avoid eroding the tie-breaking power of the Vice-President, while allowing the Senate to represent people by party affiliation rather than geography.

In a party-list proportional representation system, "parties make lists of candidates to be elected, and seats get allocated to each party in proportion to the number of votes the party receives. Voters may vote directly for the party, as in Israel and Albania, or for candidates, and that vote will pool to the party, as in Turkey and Brazil, or for a list of candidates, as in Hong Kong."

There are several advantages to such a system. For one, every vote counts the same as every other vote. In addition, it should help with voter turnout, as voters know that their vote will be pooled with like-minded voters from across the country (even if their party is the heavy favorite or underdog within their state) and that therefore there is a higher chance that they can change the allotment. It gives smaller parties, like the Libertarian Party or the Green Party, a real chance to win a seat, which means the Senate will more accurately represent the broad spectrum of American political beliefs. And it means that there is a more significant difference between who is represented in the House and Senate, with the House representing people by shared geographic interests and the Senate representing people with shared political interests.

And of course, capping the number of Senators at a fixed number means that future additions of states would neither weaken the President nor necessarily threaten the balance of power within the Senate. DC Statehood, for example, would now increase voters by less than 0.2% (not all of them Democrats) instead of increasing the Senate by 2% (both surely Democrat), and might thus be more palatable.

As an added benefit, it would take the role filling empty Senate seats out of the hands of Governors. As we've seen in New Jersey in 2013 and Illinois in 2009, this can create a conflict of interest that harms voters. Instead, those candidates on a party's slate who did not win seats would form an in-order list of alternates. Not only would this place the filling of empty seats in the hands of voters, but the seats could be filled faster and without expensive special elections.

How it would work

There are many ways for the system to work, but I've laid out one specific example below.

The Senate could be capped at any number. A number too large weakens the president and fails to require a party to build a real constituency. A number too small reduces the diversity of opinions in the Senate. I've chosen 60. 60 is divisible by 3 (the number of Senate classes) and 2 (for ties). It would require a party to get 5% of the vote to guarantee themselves one seat, though it would be possible and likely that it could be done with as little as 2-3%. And 60 sits in the middle of the historical range for the Senate.

We could use an open-list format, meaning that voters would have a say in ranking each party's candidates. This could be done in the current primary/election model, where each party holds a primary during which candidates campaign for themselves seeking the highest possible ranking on their party's slate, followed by an election in which candidates campaign for their parties seeking to secure more seats for the candidates on their slate. Alternatively, both could be done simultaneously, with voters voting for individuals and the vote used to rank candidates within their party and to allot seats per party. I'll choose the latter.

So, coming into the election of 2020 many people decide to seek one of the 20 Senate seats up for grabs that year and they begin declaring. Barbara Boxer declares as a Democrat and John Boozman runs as a Republican. But Marco Rubio decides to run for the newly formed Tea Party and Corrine Brown chooses to run with the Congressional Black Caucus. The Green Party convinces Elizabeth Warren to run on their ticket and the Libertarians score Rand Paul.

As the campaign moves ahead, Boxer positions herself as the California Democrat. Someone else tries to be the California Republican. Others campaign on regional or state-specific issues. Alternatively, some campaign nationally on single items like abortion, guns or the deficit. Still others, like Ashley Judd, run on their own fame or personality.

When the voting is over, Democratic candidates have won 35.5% of the vote, Republicans have 30.5%, the Congressional Black Caucus has 12%, the Tea Party has 9%, the Libertarian Party has 3.25%, the Green Party has 2.6% and the rest is scattered among an assortment of parties.

Democrats then get 7 seats and Republicans 6.  The CBC gets 3. The Tea Party gets 2. And the Libertarians and Green get 1 seat each.

In addition within the parties, the top seven Democrats (from Boxer down to Judd) will take the party's seats, while the others, starting with Rahm Emanuel, will fill a list of alternates. Cornyn leads the Republicans, while Boozman fails to get a seat. Warren takes the Green Party's seat and Paul the Libertarian's. Etc... Once in the Senate, Democrats, CBCs and Greenies join the majority left coalition and Republicans, the Tea Partiers and Libertarians join the right coalition.

But that's only one way to make it work. Many variations could be used to solve these systemic problems with the Senate - some known about since the formation of the government - while removing perverse incentives against statehood, allowing for more voices, creating a distinctive upper house and a less controversial method for filling vacancies.

Of course, it will never happen. Most of the people needed to make this change (small states, current senators, the two major parties) are also on the list of most likely losers if the change should occur. Still, it would be nice.

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