How to Fix the Senate

Folks, I think I have this figured out, inspired by a sort of random threadlet from the genial Jamelle Bouie (a New York Times columnist since mid-January, but some of us have admired him since he started out as a blogger for The American Prospect in 2010):

"The right of equal suffrage among the States is another exceptionable part of the Confederation. Every idea of proportion and every rule of fair representation conspire to condemn a principle, which gives to Rhode Island an equal weight in the scale of power with Massachusetts."

— b-boy bouiebaisse (@jbouie) February 24, 2019

"Sophistry may reply that sovereigns are equal, and that a majority of the votes of the States will be a majority of confederated America. But this kind of logical legerdemain will never counteract the plain suggestions of justice and common sense."

— b-boy bouiebaisse (@jbouie) February 24, 2019

The quotation is from Federalist 22, and it's written in justification of the novel idea of federalizing democracy in the new Constitution, where the impotent Continental Congress, in which each state had a single vote, like the UN General Assembly, was to be replaced by a bicameral legislature with one house representing the states with two votes for each, and one with a house representing the people of the nation as a whole, divided into constituencies with a population size quota (an idea the House of Commons didn't really evolve to until 1885).


It's really the House of Representatives, as you see, that Hamilton is talking about, the Commons-like side of the legislature that appropriates money, and its ability to get stuff done, in contrast to the continually hamstrung Continental Congress:

Congress, from the nonattendance of a few States, have been frequently in the situation of a Polish diet, where a single VOTE has been sufficient to put a stop to all their movements. A sixtieth part of the Union, which is about the proportion of Delaware and Rhode Island, has several times been able to oppose an entire bar to its operations. This is one of those refinements which, in practice, has an effect the reverse of what is expected from it in theory. The necessity of unanimity in public bodies, or of something approaching towards it, has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto, to the regular deliberations and decisions of a respectable majority. In those emergencies of a nation, in which the goodness or badness, the weakness or strength of its government, is of the greatest importance, there is commonly a necessity for action. The public business must, in some way or other, go forward. 

Interestingly, Hamilton suggests that a federalized government of the kind Madison and company have designed is less susceptible to corrupt foreign influence than confederal governments like that of the United Provinces of the Netherlands:

Suppose, for instance, we were engaged in a war, in conjunction with one foreign nation, against another. Suppose the necessity of our situation demanded peace, and the interest or ambition of our ally led him to seek the prosecution of the war, with views that might justify us in making separate terms. In such a state of things, this ally of ours would evidently find it much easier, by his bribes and intrigues, to tie up the hands of government from making peace, where two thirds of all the votes were requisite to that object, than where a simple majority would suffice....  It is well known that the deputies of the United Provinces have, in various instances, been purchased by the emissaries of the neighboring kingdoms. The Earl of Chesterfield (if my memory serves me right), in a letter to his court, intimates that his success in an important negotiation must depend on his obtaining a major's commission for one of those deputies. 

Which makes you want to start screaming, Well, Hamilton, what about the Senate?

Everything you've said applies to them, and wouldn't you know it, Emperor Trump was just enabled to lift sanctions on the aluminum baron Oleg Deripaska, Paul Manafort's old associate and Putin confidant, by a minority of 42 Republicans including the majority leader, Senator McConnell of Kentucky, whose super-PAC has taken in $3.5 million from the Russian-born billionaire Len Blavatnik, who has also given $800,000 to Lindsey Graham's PAC (and $1.5 million to Marco Rubio's, and I should note that Rubio voted with the Democrats on this, and he's donated to Democrats too) and a million to Trump's famous inauguration committee. And Blavatnik is a former business partner of Viktor Vekselberg, who is in turn associated with Oleg Deripaska and suffering under the same sanctions:

Shortly after being grilled in New York in March [2018] as part of Special Counsel Robert Mueller’s election-meddling probe, Vekselberg and the younger, brasher aluminum baron Oleg Deripaska were slapped with sanctions over Putin’s “malign activities.” Vekselberg has since lost about $3 billion of his-now $13.4 billion fortune, mainly due to declines in the market values of his minority stakes in Swiss industrial companies and Deripaska’s Rusal. And that doesn’t count the estimated $2 billion or more of stocks and cash that have been frozen or tied up in banks as a result of the U.S. penalties.

And Vekselberg met with Michael Cohen in Trump Tower a few days before attending the inauguration (to which his American cousin and associate Andrew Intrater donated $250,000) to discuss, some say, "a desire to improve US-Russia relations" and in March 2017 to discuss "a potential oil deal in the US that never materialized", and also that March met with Vladimir Putin in the Kremlin, for the first time since 2010, and who knows what any of this amounts to, until we see the Mueller report at least (they've interviewed Intrater twice). It certainly doesn't show McConnell and Graham are personally corrupt, though it doesn't show they aren't, either, but it really looks terrible, which is a problem in its own right, giving rise to ghastly rumors and disrespect for the institution even if the rumors aren't true.

And makes you want to keep screaming, For Christ's sake, Hamilton, do you even bother to read your own stuff?

Anyway, my plan for fixing the Senate is extremely simple, and solidly based in Hamiltonian theory, and preserves almost everything senators and their fans hold dear, including the ancient filibuster, with the following proviso: that a cloture vote to end a filibuster requires not a 60-vote supermajority, but a simple majority of the population the senators represent (half each state's population for each senator from that state).

With this rule, for instance, the senators who opposed the Supreme Court nomination of Brett Kavanaugh, representing 56% of the population, could have prevented it from being voted on. While the 42 Republican senators who were able to stop the body from interfering with the Deripaska-Vekselberg sanction would almost certainly not have prevailed (I'm not doing the math, but you could check this roll call against this list of state populations).

As it happens, this has become much more of a problem in Trumplandia than it ever has been in the history of the Republic; the website govtrackinsider crunched some numbers and found the 2017-18 was the first time the median population represented by the senators voting for a particular bill went under 50%; that is, that half the bills passed were passed by a Senate majority representing a minority of the population.

So let's get this done, please. It's what old Alexander would have wanted.

Update: Apparently this will probably not work, because it is unconstitutional to "deprive a state of its equal suffrage in the Senate", which these cloture votes would definitely do (H/t Chet Murthy). Indeed, the Constitution forbids amending this, ever, in Article 5. You'd have a better chance of overturning the 17th Amendment and having them chosen in chariot races in the state capitals.