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.
I appreciate your taking note of it. That’s more than Political Wire is doing.
ducdebrabant:
While I don’t necessarily share your less-than-happy assessment of what Barack Obama will do as president, I do share your anguish about the underside of last night’s results. The Prop 8 win was a shock (check out the county-by-county numbers at the LA Times site to see the very limited areas in which it lost), and the Florida initiative was even worse, since it required so large a vote.
We intend to do some analysis on this subject at TDS, with the goal of helping break the back of state-sponsored homophobia in the future. That’s a very small contribution to a big challenge, but we must all do what we can, or every celebration will leave someone on the sidelines, unable to join in.
Thanks for the comment.
Ed Kilgore
At the same time they embraced a black man, voters all over America punished and persecuted gay men and lesbians.
An Obama administration intent on consensus, determined to achieve legislative victories not by majorities of 60 but by majoriities of 80 and 85 in the Senate, cannot be expected to do much for them. The value of the new Democratic majorities will be measured mainly in what they will not do. No Constitutional amendment targeting homosexuals, for example.
And should the Congress bother (in these trying times) to re-enact employment non-discrimination, or add gays and lesbians to hate crimes legislation, Obama will presumably sign the bill. We can expect the White House to issue another executive order forbidding discrimination in the civil service. Gay men and lesbians in the military can probably sit and stew for the next four years unless they roll legislation ending Don’t Ask, Don’t Tell by their own efforts. Obama may not hinder it, but he won’t expend political capital in his first term to help them.
This centrist administration will make mostly symbolic gestures and get out of the way of the determined advocates of gay and lesbian equality, but it won’t be a determined advocate, or much of an advocate, at all. I accept that. It’s better than the last 8 years, that’s for sure.
But they’re hunting us in California, they’re hunting us in Arkansas, they’re hunting us in Florida, they’re hunting us in Arizona. The most we’ll get from the White House to protect us from the states is a cup of tea and a kind word.
All this election has done for gay people is de-federalize an assault on our citizenship and liberties and return it to the states. This should have been a happy day for all Americans. For some of us, it isn’t altogether that.
In no state where attacks on gays and lesbians were on the ballot did kindness, generosity, or even good sense prevail. America didn’t give up hating this year. It just decided to transfer its loathing from a race to a sexual minority.
Obama’s generation of black men and women may indeed be the Joshua Generation, seeing the Promised Land, but Obama is not even the Moses, let alone the Joshua, of gay men and women and their struggle. Perhaps we have no right to expect that. Perhaps he has enough on his plate.
But if not this President’s plate, then whose? We gay men and lesbians have stood at the threshold of the Promised Land for generations now. Who knows when we will see it? Perhaps when Barney Frank becomes President?