In a cloying little exchange of pleasantries before Arizona senator Kyrsten Sinema spoke from the podium of Mitch McConnell’s eponymous center at the University of Louisville on Monday, the Senate Republican leader called the Democrat “the most effective first-term senator” he’d ever seen. McConnell was probably being sincere given Sinema’s role, along with Joe Manchin, in saving the filibuster, the chief tool in the GOP’s obstructionist bag of tricks. He could have called her a “one-term senator” since her demise in 2024 seems all but certain after she alienated as many Arizona Democrats as she could, but that wouldn’t have been gracious. Instead, he went on to give her the highest token of his esteem, calling her a “deal-maker.”
For her part, Sinema noted that she and McConnell share a “respect for the Senate as an institution,” a statement she reinforced by calling for the restoration of 60-vote thresholds for executive and judicial-branch confirmations in the upper chamber, which were abolished by serial Democratic and Republican majorities in 2013 and 2017, respectively. Sinema is, you see, an old-school respecter of the Senate, which makes me sick to my stomach.
Anyone who spends time around the Senate (I worked there in the late 1980s and early 1990s and with Senate offices for years before and after that) is aware of the extremely high regard in which senators hold themselves “as an institution.” They don’t publicly bash House members as petty-minded, party-bossed parochial Lilliputians who have to spend all their time running for reelection. But the unstated though very real mutual disdain of the two congressional chambers is deeply rooted in the Senate’s distinctive constitutional role as an anti-democratic redoubt of entrenched privilege.
This is nowhere more apparent than in Sinema’s beloved filibuster, which in its most recent incarnation has made supermajorities a requirement for even routine legislation. But lest we forget, even if the filibuster went away, the Senate’s grant of equal power to all 50 states is profoundly undemocratic. The states themselves are not allowed to get away with such a gross misappropriation of legislative power. In the 1964 decision in Reynolds v. Sims, the U.S. Supreme Court held that, under the Equal Protection Act of the 14th Amendment, state legislatures had to respect the principal of “one person, one vote,” with seats in the upper as well as lower chambers being awarded in districts of equal population. As Chief Justice Earl Warren famously wrote in the Court’s opinion in a 8-1 decision:
“Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system.”
The logic is the same with respect to the model for all those once-oligarchical state upper chambers, the U.S. Senate itself. But the Senate has its own separate, unassailable constitutional basis. The Article I, Section 3 provision of the Constitution providing for equal representation of states in the Senate is expressly exempted from amendment in Article V (“no state, without its consent, shall be deprived of its equal suffrage in the Senate”). So we are stuck with an anti-democratic chamber. But we don’t have to celebrate it.
It’s important to remember the two reasons we have a U.S. Senate. First, it represented a compromise with those in the founding generation who wanted an unelected body like Britain’s House of Lords to counteract “the people’s House,” the lower chamber. But more important, as James Madison made clear in “Federalist 62,” it was essential to the ratification of the Constitution that the country maintain its original character as a compact of states, not as a truly United States:
“It may be remarked, that the equal vote allowed to each state, is at once a constitutional recognition of the portion of sovereignty remaining in the individual states, and an instrument for preserving that residuary sovereignty …
“Another advantage accruing from this ingredient in the constitution of the senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the states.”
This understanding of the country as a modified confederation of states with a stronger central government than it originally had more or less perished with the outcome of the Civil War and the ratification of the Civil Rights Amendments (including the 14th Amendment, that great and still-evolving guarantee of individual rights against states rights). But the Senate remains as a relic of the era when McConnell’s hero Henry Clay and a host of other patriarchal slaveholders held the Union temporarily together by engaging in “deal-making” at the expense of human dignity. The 17th Amendment, ratified in 1913 and providing for the popular election of senators instead of letting state legislatures choose them, took the chamber as far toward democracy as a flawed Constitution would allow.
“Respect for the Senate as an institution” means contempt for democracy as a fundamental value. That is why those with respect for democracy — particularly those who profess to be a member of the Democratic Party — should do everything possible to minimize the Senate’s ability to function according to the Founders’ design instead of boasting about making the chamber even more susceptible to high-handed measures to frustrate the popular will.
Here’s a good polling suggestion that Democracy Corps or anyone else Ruy talks to can do:
First, identify a LARGE pool of voters who fit the following description: they did NOT give Bush a positive approval rating individually as of election day AND/OR preferably AND were part of that majority who felt in polls as of election day that the country “was moving in the wrong direction”.
Then you determine if they did not vote for Kerry, did they (a) vote for someone else, especially Bush, or (b) stay home, after having voted in either 2002 or 2000, especially for a Democrat.
Those voters who did NOT give Bush a positive approval rating or felt that the country was “moving in the wrong direction” AND who voted for Bush or stayed home after having voted in the past for a Democrat can first be assessed for what percentage of the total number of voters they comprised. You need to first assess the percentage of those who actually voted as a percentage of the total vote, possibly with a breakdown in key states, and then check to determine how LARGE the number of voters who stayed home but were seriously potential voters based on recent voting for Democrats and their disaffection with the status quo was. These voters cost Kerry the election.
Now, WHY didn’t these voters vote for Kerry. Two issues seem prominent — they thought he was wishywashy or a flipflopper AND/OR they were concerned about the war on terror and did not have confidence in Kerry (the Bai distortion). Voters don’t always or generally give specific indications of why they voted they way they did or why they didn’t bother to vote, but there is where a decisive number of bodies are buried. You could also measure what IF those two groups of voters had turned on mass to Kerry? What would it have done to your constituency analysis. Prediction on the latter — add those voters who felt the country was going in the wrong direction but didn’t vote for Kerry to the Kerry column, by breakdown of category, and most of those gaps you are measuring in various social groups close like a mousetrap that has been sprung.
The mandate was for being successfully snookered by the mass media AND spinmeisters justifying the lying and the chorus of hounds that didn’t bark, including when spinning the polls, on the abovementioned issues. Another mandate for a rigged election, cashed in all the moreso as real the less real it is.
Everybody is so busy “serving” and “doing the job” that no one really serves democracy and all that is left is the hollow shell of a system as it goes down the tubes.