U.S. Senate Reform

Proposed Amendment to the United States Constitution to Modernize the United States Senate

Should one or more states relinquish the right, established under Articles I and V of this constitution, to two votes in the United States Senate in order that residents of such a state or states may choose a senator without respect to residency of a qualified candidate, as set forth by Article I, Section Three of this constitution, the Senate shall be henceforth comprised of senators representing states and senators representing U.S. citizens without respect to residence.

Should any state or states relinquish the right, established under Articles I and V of this constitution, to two votes in the United States Senate, such a state or states shall be deemed a state or states in the common interest. Vacated seats from a state or states that relinquish the right, established under Articles I and Article V of this constitution to two votes in the United States Senate, shall be filled by senators representing U.S. citizens without respect to residence and shall henceforth be deemed seats in the common interest.

The number of seats in the common interest shall be equal to the number of vacancies resulting from the number of states that relinquish the right, established in Articles I and V of this constitution, to two votes in the United States Senate.

Vacant seats in the common interest in the United States Senate shall be filled by qualified citizens of the United States, as set forth by Article I, Section Three of the constitution.

Residents of states that retain the right, established under Articles I and V of this constitution, are prohibited from voting for seats in the common interest in the United States Senate.

States in the common interest may reinstate their right to two senators established under Articles I and V at any time, however states reinstating their right to two senators may not seat a senator until the terms of senators representing states in the common interest have expired.

This amendment shall not be so construed as to affect the total number of senators, which shall remain the product of two senators per state as established by this constitution.

The Congress shall have the power to enforce, by appropriate legislation, the provisions of this amendment.

The Senate: A Peculiar Drain on Citizen Voices

The US Senate is said to be a product of the Founders’ genius. But if the Great Compromise of 1787 that gave us a bicameral legislature helped the nation take shape, its legacy today is a democratic eyesore. The Senate disadvantages residents of large states while simultaneously holding out the prospect that voters will have their interests canceled out by a state’s other senator. And that raises the question: In a modern, mobile America, should the value of our political voice really be defined by where we live?

In Federalist Paper No. 62, James Madison justified the creation of the malapportioned, undemocratic Senate in part by writing:

But it is superfluous to try, by the standard of theory, a part of the Constitution which is allowed on all hands to be the result, not of theory, but ‘of a spirit of amity, and that mutual deference and concession which the peculiarity of our political situation rendered indispensable.’

Yet the “peculiarity of our political situation” in 1787 – namely that the 13 Colonies saw themselves as largely separate countries, thus necessitating a Senate that put small states on equal footing with large states – is about as operative in the modern era as the horse and buggy. Of course, this does not in any way suggest that our political situation today is any less peculiar.

For example, on one of the most controversial domestic issues of the day, our nation’s health-care system, Floridians have elected two senators who work at cross-purposes with each other: one who voted for the law requiring all Americans to purchase health insurance, Bill Nelson (D), and the other, Marco Rubio (R), who wants the law repealed. Though Florida’s state motto is “In God We Trust,” a more fitting motto would be “In Contradiction We Exist.”

New Hampshire, with its tiny population of 1.3 million, is in the same boat. The state is represented in the Senate by Jeanne Shaheen, a Democrat, who voted for the health insurance reform bill, and a Republican, Kelly Ayotte, who has pledged to repeal it. Perhaps New Hampshire should consider changing its famous motto “Live Free or Die” to “Cancel Out Our Votes or Die.” The change would be apropos. Ditto for Ohio and Pennsylvania, among other split-personality states.

A better alternative to tinkering with state mottos would be to change the existing Senate structure itself. Such a change, of course, would entail coming to grips with what Madison would likely view as the modern “peculiarity of our political situation.”

The chief characteristic of today’s political peculiarity is undoubtedly the fact that moving from one state to another can result in the immediate diminution or increase of a citizen’s voice in national politics. Move from Nevada to California, for example, and you substantially decrease the power of your vote, and thus your voice, to influence national affairs – simply by crossing a state line.

In 1787, for the purpose of forging a United States of America, it was reasonable for Madison and others to argue to residents of large states that their sacrifice in equal legislative clout was worth it. Yet now, when the 626,000 residents of Vermont have the same clout in one-half of the federal lawmaking process as the nearly 27 million residents of Texas, the sacrifice deserves reconsideration.

The Senate: A Failed Bulwark Against An Overbearing Executive Branch
From 2012

According to the initial reports in the New York Times last year, the Obama administration was aiming for “plausible deniability” when it launched a cyber war on the Iranian nuclear weapons installations. (Author’s note: Those who deny Iran is pursuing nuclear weapons, not nuclear energy, tend to be the same people who refuse to publicly address Israel’s nuclear weapons arsenal, in effect, turning a blind-eye to both.)

Given the dire repercussions of warfare, be it of the cyber variety like Stuxnet or the bullet variety, it would seem that a self-respecting democracy would afford itself some role in the decision of whether to go to war in the first place. According to Andrew Bacevich, professor of international relations at Boston University, “Were a foreign country to disable the U. S. nuclear arsenal through cyber attack, we would most assuredly consider it an act of war. We should not be surprised that a foreign country might consider a U. S.-orchestrated cyber attack against its nuclear program in a similar light.”

Americans would do well to ask the following question: How did we get from Point A) a government supposedly by and for the people, to Point B) a government that is willing to engage in de facto acts of war – all without the consent of the governed?

Arguing for the Constitution in Federalist No. 46, James Madison admonished the Anti-Federalists by writing, “They [Anti-Federalists ] must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other. Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents.”

It goes without saying that the American people have never been engaged on the question of whether the advantages of launching a cyber attack against Iran’s nuclear installations outweigh the disadvantages, namely the potential for a retaliatory attack by Iran; an attack that could be just as “plausibly deniable” as the one our own government launched.

The framers of the Constitution rightly vested Congress with the power to declare war on other nations; a necessary and proper instrument to avoid a descent into de facto monarchical rule, of which executive warmongering is a most essential ingredient. But principles, including separation of powers, when in any way tethered to magical thinking, lose their force. The United States Senate, treasured by many as a bulwark against a tyrannical, or potentially tyrannical, Executive branch by elevating the role of states – irrespective of population sizes – in national decision-making is anything but such a bulwark.

The recent cyber war on Iran’s nuclear weapons program is a prime example of the Senate’s failure.

The unresolved questions of international law vis-à-vis cyber attacks aside, the reported action against Iran clearly had a military aim – to disrupt Iran’s de facto military installations – and therefore the question must be asked: Has the modern United States Senate – that “august” guarantor of state sovereignty -done anything whatsoever to rein in the Executive branch’s unilateral war making abilities toward foreign nations, including cyber war-making?

On the contrary, instead of seeking legislation to rein in the Executive branch’s ability to launch secret de facto wars against foreign nations, which could ignite similar retaliations upon us, the U.S. Senate Intelligence Committee has passed, overwhelmingly, a bill to prevent Executive branch whistleblowers from speaking with journalists. Among other disclosures, the leaks that informed the American people that our government has indeed engaged in a cyber war against a foreign nation, which could invite retaliation, serves as the basis for the U.S. Senate’s crackdown on executive branch truth-tellers – as if we need less, not more of them. (After the Senate Intelligence Committee passed the bill a media furor erupted. Bill Keller of the New York Times and others identified the draconian nature of the bill. Senator Feinstein, Chairman of the Senate Intelligence Committee, is now “seeking alternatives” to the bill.)

Again, as Madison wrote, “Truth, no less than decency, requires that the event in every case should be supposed to depend on the sentiments and sanction of their common constituents.” The United States Senate of the early twenty-first century, as an institution, has no grounds on which to base its implicit claim: namely, that the states its members supposedly represent have sanctioned, or would sanction, taking the entire Republic not only into the dangerous realm of offensive cyberwar – a realm in which frenzied actions outpace measured consideration – but into that even more dangerous zone of politics that the framers rightly warned against: the ability of the Executive branch to take the entire nation into foreign wars without the consent of the governed.

To suggest that the existing structure of the United States Senate has done anything to safeguard the independence of states – and thus the American people – in the face of an overbearing federal government, acting in secret in our name, is magical thinking indeed.

Hence, in addition to strongly encouraging Americans who reside in states with small populations to reconsider the representational fairness of our current malapportioned Senate, I would also encourage them to reconsider whether the Senate’s raison d’être is being fulfilled in the modern age: namely, to provide the American people with an added layer of protection from an imperial federal government.

The Tenants Who Would Be Barons
From 2009

“Taxpayers are now on the hook for as much as $200 billion to rescue Fannie Mae and Freddie Mac, and if you want to know why, look no further than the rapid response to this bailout from House baron Barney Frank.” So went the criticism from the Wall Street Journal editorial board of former House Financial Services Committee Chairman, Barney Frank. The editorial was but one arrow in the Journal’s editorial quiver to pin the blame on the Democrats, and Rep. Barney Frank in particular, for the subprime mortgage mess that ultimately led the nation, and the world, to the economic brink. The “baron” of the House, the Journal editorialists insisted through this editorial among others, must be held personally accountable for his years-long effort to push housing policies that ultimately led to the economic collapse of 2008.

On April 2nd of 2009, Chairman Frank fired back at his critics on the other side of the aisle, and the Wall Street Journal in particular, with a special order speech documenting in detail his legislative record on federal housing policy. Yet in giving the speech, Frank not only jousted back at those who would attempt to blame him for the worst financial crisis since the Great Depression, he gave a prime example of how at least one of our nation’s founding assumptions about the legislative branch simply did not materialize quite as expected.

Defending the establishment of a smaller upper chamber in the legislative branch, the author of Federalist No. 63, James Madison, argued that the Senate, which was to be comprised of cooler heads more concerned with the country’s international reputation, would be a necessary counterweight to the “numerous” members in the House of Representatives; representatives whose short time in office necessarily meant that their legislative concerns would be more immediate, and also necessarily meant that they could not be answerable for the long-term polices affecting the nation. Federalist No. 63 reads: “The objects of government may be divided into two general classes: the one depending on measures which have singly an immediate and sensible operation; the other depending on a succession of well-chosen and well-connected measures, which have a gradual and perhaps unobserved operation…And yet it is evident that an assembly elected for so short a term as to be unable to provide more than one or two links in a chain of measures, on which the general welfare may essentially depend, ought not to be answerable for the final result, any more than a steward or tenant, engaged for one year, could be justly made to answer for places or improvements which could not be accomplished in less than half a dozen years.”

Though Congressman Frank’s speech on April 2, 2009 certainly defended his legislative track record promoting rental housing – a record that bucked the then-prevailing wisdom that the expansion of subprime mortgages was sound – even his critics would be hard-pressed to characterize Frank’s role in the United States Congress as a “tenant.” Indeed, the Wall Street Journal prefers to characterize him as a “baron.” And why not?

Frank has been in the United States Congress for three decades and has a played a key role in housing legislation. The same can be said for the chairmen and ranking members of other House committees – decades in office, with legislative paper trails that might best the Bible in word count. As his ardent defense of himself against the charge from the Wall Street Journal proved – the charge that he was the chief legislative architect of the subprime mortgage mess – Frank was very much “made to answer” for the policies he promulgated in previous years, and indeed, the previous decade.

Firing back at his critics, Frank said in that same speech, “In 1994, the last time the Democrats had a majority before 2007, my predecessor, an excellent consumer fighter from the State of New York, helped pass a bill called HOEPA, Home Ownership Equity Protection Act. It said to the Federal Reserve: Regulate subprime loans.”

Taking it a notch further, Frank singled out by name the Wall Street Journal editorialists who blamed him for the 2008 financial collapse. “I respect the press,” the former chairman declared, “But the people who write the Wall Street Journal editorials in this, Mr. Paul Gigot and Mr. Stephen Moore, are cowards and liars.” He then went on to place his unpublished letter to the Wall Street Journal, which outlined his efforts to promote rental housing as an alternative to home ownership for low-income Americans, into the congressional record.

And yet, Federalist No. 63 expressly cites as among the justifications for the establishment of the Senate not just the likelihood, but the certainty, that House members could not be held answerable for that class of legislation that depends upon “a succession of well-chosen and well-connected measures.” Federalist 63 argues that, “The proper remedy for this defect [the House of Representatives] must be an additional body in the legislative department, which, having sufficient permanency to provide for such objects as require a continued attention, and a train of measures, may be justly and effectually answerable for the attainment of those objects.”

If Congressman Barney Frank and editorialists Paul Gigot and Stephen Moore could ever agree on one thing, it would be this: House members are no transient tenants, but powerful, landed barons who can indeed be held answerable for legislation that requires “continued attention, and a train of measures.”

As this particular justification for the establishment of the United States Senate put forth in Federalist No. 63 no longer holds relevance, a larger question must be asked: Is it not time we reexamine the upper chamber’s other justifications? Indeed, given that over half of the United States population resides in just ten states, with only twenty out of one hundred senators to represent them, it seems only fair that, at minimum, defenders of the upper chamber’s existing undemocratic, grossly disproportionate structure put forth some new rationales for why bicameralism in a modern, mobile society is even necessary.

The old rationales are fading fast.

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