Senate Representation

Brad and Constitutional Law Professor Garrett Epps explore how representation in the US Senate fundamentally changed a century ago and why it may be time to do it again. This episode tracks the history of the US Senate and representation within it and the merits of making this body democratic. 

To learn more, visit the episode page: https://www.whyandwhynotpod.com/episodes/senate-representation

Transcript

Cold Open 

At the outset of the 20th century, many in Illinois became acquainted with William Lorimer. An english immigrant who many could have said was the embodiment of the American dream. While Lorimer came from extreme poverty, he worked tirelessly as a brick manufacturer and started various real estate businesses to acquire great wealth. In a matter of a few decades, Lorimer went from being among the poorest of the poor to one of the most affluent and well-respected men in Illinois. 

But Lorimer’s interests weren’t confined to business. And he displayed real talent in political organizing and navigating his influence within political machines. So by the time he was 33 years old, Lorimer had won a seat in the US House of Representatives. But he had bigger ambitions. And when a position for US Senator from Illinois came open, Lorimer pursued it hard.

But the rules were different back then and the public didn’t actually vote for their Senators. So if Lorimer wanted a seat in the US Senate, he was going to have to convince the state legislature to appoint him. In 1909, after months of deadlock, Lorimer emerged victorious when the Illinois legislature voted by a margin of just 6 votes to appoint him to the US Senate. 

Now, on its face, this is a feel-good story about an immigrant coming to the land of opportunity and working hard to rise to the highest levels of American society. But I left something out here. It wasn’t Lorimer’s charm or compelling story that convinced the Illinois legislature to appoint him to the Senate. No, in this case, it was money that did the talking for him. 

It’s not completely clear where the money came from. Whether it was Lorimer himself or powerful interests who stood to benefit from his election to the Senate. But at least 10 of the legislators who voted to appoint Lorimer did so because they were just straight up receiving cash bribes. Just blatant corruption.

When the public found out, backlash swept the nation. Investigations into the corruption led to Lorimer’s election being ruled invalid and he was expelled from the Senate. But it did much more than that. This case was so corrupt that it actually led to a massive change in the US Constitution. 

On this episode of Why and Why Not, we’re visiting the upper chamber and exploring representation in the US Senate. 

Intro 

I live in Baltimore, Maryland. And as you’d expect in a city, there are people and stores and houses and you name it everywhere. I love living in a city. Being able to walk down the street to the store or to a local restaurant is great. But still, the idea of being somewhere that is almost entirely untouched by people fascinates me. I mean, I’ve only seen areas like that a couple times in my life so in some ways it’s exotic to me. That’s why I find states like Wyoming so interesting. I mean, by land area, Maryland is just about one eighth the size of Wyoming but has roughly 10 times more people. In fact, only about 600,000 people live in Wyoming which is about the same as my city alone. 

But Maryland and Wyoming are equal in one way. They both have 2 representatives in the US Senate. And that can seem odd. According to Stacker.com, Wyoming has roughly 434,000 eligible voters and Maryland has about 4.3 million. Each of the voters can cast a ballot for a US Senator from their state. But since the populations are so different, every vote cast in Wyoming could have about 10 times the impact as a vote for Senator in Maryland. 

And not just that, like I said, each American that resides in a state is represented by 2 Senators. And this means that people in small states have way more representation in the Senate than people in big states. To illustrate this, let’s take a look at the state where everything is bigger, Texas. 

As of 2021, Texas had a population of about 29-and-a-half million people. If you wanted to create a new state with that many people, you’d have to combine Wyoming, Vermont, Alaska, North Dakota, South Dakota, Delaware, Rhode Island, Montana, Maine, New Hampshire, Hawaii, West Virginia, Idaho, Nebraska, New Mexico, Kansas, Mississippi, and Arkansas. Oh and even then, you’d still be short about 2 million people, or about 4 Wyomings. But while Texas only has 2 Senators, those 18 states I just named have a combined 36. In other words, 29-and-a-half million Texans have only about 5-and-a-half percent the representation in the Senate as those roughly 27 million from the 18 states. 

The effect of this, of course, is that representation in the Senate is grossly unrepresentative of the population of the US. And at this point you might be saying “uh, yeah Brad, everyone knows that, it's like the Senate’s whole thing”. But do you know why and how we actually got to a place where representation in Congress is so skewed towards small states? 

Well this is Why and Why Not so we’re about to look into why this is the case. And as we do so often, we have to go all the way back to the beginning with the Constitutional Convention.

*Old timey music starts*

Why

The Articles of Confederation was failing and representatives from each of the original 13 states met in Philadelphia in hopes of creating a new Constitution. But this was all incredibly close to falling apart because of controversy over how states would be represented in a central government. 

In this debate, there were two main factors. You had small states versus large states (speaking in terms of population here) and slave states versus free states. 

Small states felt that, unless that had equal representation in the central government, large states like Virginia could totally dominate and use federal resources to benefit themselves. As a result, small states tended to favor a single-chambered Congress where each state would get the same number of votes. The most popular of these proposals was the New Jersey Plan. 

On the other side, large states favored a Congress where each state would have a number of representatives proportional to their population. Large states felt that since they would be contributing more tax dollars and people towards the military they should have more say in what we actually do with those resources. 

In tandem to this debate, slave states feared that if more populous and free states had an outsized influence in the central government, they would easily be able to abolish slavery. Since these states wanted to keep up this horrific practice, the idea of being forced to abolish slavery made them fear a strong federal government and they threatened to back out of the union completely. 

And I want to be clear that this debate almost prevented the Constitution from coming together at all. But eventually a proposal emerged that the framers could tolerate. Today we refer to this the “Great Compromise”. 

The deal was this: Congress would be made up of two chambers, the House and the Senate. Representation in the House would be proportional to each state’s population. The Senate would provide each state with 2 representatives, enough to ensure that every state would have representation even if one of their Senators was unable to serve due to illness or death or some other reason. 

However, slave states still weren’t satisfied with representation being tied to population since free states would dominate. So to further compromise, the framers decided that each slave would count as three fifths of a person for purposes of both Congressional representation and taxation. This caused the slave states to be way overrepresented and embedded the evil of slavery into the Constituion.

But even then, something else had to be figured out. How were representatives actually going to be elected? It was decided that the House of Representatives would be directly elected by the voters of each state. This was to be the “people’s house” and the small d democratic chamber where the people would have a more direct voice in their government.

But this wasn’t to be the case in the Senate. Now, Pennsylvania Delegate James Wilson actually did propose to the convention that members of the Senate should be selected by statewide popular vote. In response, Connecticut’s Roger Sherman is quoted as warning that the people quote “should have as little to do as may be about the Government. They lack information and are constantly liable to be misled.”. And the vast majority of delegates agreed with this so Wilson's proposal of popular elections was barely debated. Instead, a proposal put forth by John Dickinson of Delaware was adopted whereby the Senate would represent states, not the people of the states, and Senators themselves would be selected by state legislatures, not by popular vote. 

In doing so, the Senate was created not to provide the people with another chamber to be represented in, but rather to counter the will of the people set forth by the House. This means that the Senate was never intended to be democratic institution. In fact, it was created to counter the voice of the people. 

I should note that state legislatures are elected by the people of a state. And those representatives would then be the ones picking members of the US Senate so they could be held responsible electorally if they totally bucked the will of their voters. So this wasn’t a perfect counter but did provide an extra layer of filtration to insulate the Senate from the will of the people. 

I should also note that not every one of the framers thought this was a good idea. In fact, the Father of the Constitution himself had issues with this:

[Madison Opposed]

That’s Garrett Epps, a Constitutional law professor at the UNiversity of Oregon, a former Supreme Court Correspondent for The Atlantic, and author of a variety of books regarding the Constitution and American politics. Professor Epps has been a thoughtful voice on the Constitution for decades. 

Although Madison remarked on the undemocratic nature of the Senate, he did argue for the body to be more stable and less responsive to the changing will of the public than the House. You see, because the will of the people changes with time, all members of the House are elected every 2 years. This isn’t the case in the Senate. Instead, Senators are elected to 6 year terms. And every two years, only one-third of the Senate is up for election. Madison argued that these 6 year terms would insulate Senators from public opinion and provide stability to national government. And by that he meant that it would place limits on the amount of change that could happen in a short period of time. 

And we should be lucky that we landed with only 6 year terms because others, like Alexander Hamilton, argued for lifetime appointments to the Senate to protect senators from the quote "amazing violence and turbulence of the democratic spirit”. 

So there you have it. That’s the design of the original US Senate. This was a body designed to give small and slave states outsized representation, to represent state governments and not the people of the states, and to provide stability and barriers to quick change in government. It was clearly imperfect even in the eyes of the framers, but it was the only compromise that everyone could agree on. 

But, overtime, the people of the US became pretty fed up with this system. And a major issue arose that the framers just hadn’t counted on. 

In the period following the Civil War, rich took on a whole new meaning. Business boomed and major corporations reached levels of unprecedented power. And this prompted the people to advocate for regulations on these businesses. Think about regulations to ensure that workers are paid living wages and aren’t in constant danger at work. Or pressure to create something like the Food and Drug Administration to ensure that products are shown to be safe before they’re sold to the public. This helps the people, but can cost businesses serious money. 

Of course we know that we ended up with things like OSHA, the FDA, minimum wage, and child labor laws. But powerful corporations didn’t let these just pop up without a fight. So big businesses started pushing back. And fortunately for them, the framers had unintentionally created a fairly easy path for them to do so. 

[Corruption of State Legislatures]

So not only was this corrupting federal laws, it actually prevented many states from being represented in Congress at all when legislatures couldn’t agree on who to appoint. And this actually got worse. In some states powerful interests would block appointments by bribing legislators and convincing them to just not show up to work. Without a threshold number of legislators present, referred to as quorum, legislatures can’t actually pass or really do anything. 

[Oregon’s Non-Session]

So in a case like Oregon’s, not only was the state deprived of representation in the Senate, but the people of Oregon were simply deprived of representation in their state government. And even if the legislature did meet, they were likely to be bribed into electing a US Senator that acted as a puppet of some powerful private interest. 

Clearly - this was a bad place to be in. But in one of the more inspiring displays of democracy in action, this helped lead to an era of intense civic engagement that ultimately produced significant change. To understand how this happened, you have to see that this issue with the Senate wasn’t occuringing in a vacuum. Here’s Professor Epps:

[Civic Engagement]

But as to how people began to push for Progressive reform to the Senate specifically, Americans began electing politicians who pledged to make change.

In Oregon, where things had obviously gotten particularly bad, a new system arose out of the Progressive movement. This system used primary elections to allow the voters to weigh in on who should be elected Senator. All candidates for the state legislature would then be required to honor the result of that primary. This allowed people to have a direct say in the election of senators for the first time and served a major blow to powerful interests who wanted to pick senators themselves. 

This idea didn’t stay local to Oregon. By 1912, over half of the states had adopted this system which became known as the “Oregon System”. 

And this is where our friend slick Willy Lorimer from the episode's opening comes in. As a result of the national story and highly public scrutiny of the blatant corruption that led to his election to the Senate, the public took to the streets and demanded reform. The only way to truly satisfy the demands of the poeple would be to amend the Constitution to allow the people, not legislatures, to vote for their senators. 

This had actually already been attempted. In both 1910 and 1911, a Constitutional Amendment to create direct election of senators was introduced in the House. However, as has happened so often in American history, racism complicated things. Certain members of Congress added a quote “race rider” to this amendment that would bar federal intervention in cases of racial discrimination among voters. Think Jim Crow tactics. Many in Congress saw this as a way to weaken the 15th Amendment which granted Black Americans the right to vote and so they refused to adopt it despite supporting direct election of Senators. As a result, these initial attempts failed. But Lorimer’s scandal was just the spark that this movement needed and in1913, the 17th Amendment to the US Constitution was adopted and Americans in every state were empowered to directly elect their Senators. 

This change was even more significant than it may seem at first glance. Because remember, the Senate was set up to represent states, not people. But now people were to elect their Senators and the States had no actual role in this. So if the people choose the representatives, who’s really being represented? This amendment completely transformed the Senate from a representation of states to a representation of the people within each state. And whats more, the Senate voted to fundamentally change itself even though it meant that Senators would have to work considerably harder to make their case for election to the people rather than to the legislature alone. 

This was huge. This was the people, more than a hundred years after the adoption of the Constitution, fundamentally changing a key institution through a grassroots, bottom-up political movement. And they did it by standing up to corporations with an unprecedented level of power who controlled just about every aspect of their lives. 

And ever since then, the Senate has been a flawless institution where democracy prevails and corruption is impossible. 

That’s it for the episode of Why and Why Not! A special - *record scratch* 

Sigh, no, of course not. I wouldn’t be bringing it up if that were true. 

Here’s Professor Epps on whether the Senate should be considered a democratic institution today: 

[No]

I don’t know what else I expected. Of course it's not democratic, it's still not designed to be. Instead we’ve somewhat put democratic elements into an intentionally undemocratic body. Like I mentioned at the top of the show, the representation in the Senate is deeply skewed in favor of states where fewer people live. We have a system where the views of, say 2 million people from 2 small state can outweigh the views of 30 million in 1 larger state. In the Senate, a person living in South Dakota has far greater individual representation than a person in New York. Senators are still elected to 6 year terms and only a third of the body is up for election every 2 years. And this isn’t even touching on the filibuster and minority rule (Although I hear that our episode on the filibuster is great and that you should totally check it out).

But what about from a corruption lense? Clearly a primary driver behind the 17th amendment was corrupted legislatures. Well, that’s a bit more complicated. 

[Campaign Finance]

Now we’ve certainly made progress on laws against bribery to influence votes. But I don’t think you could find anyone who could argue we’ve solved the problem of big money in politics. (By the way, if you want to learn more about that I hear that our episode on money in politics is great and that you should also totally check that one out. Okay - no more plugs). 

But that also doesn’t mean that the 17th Amendment didn’t create a real positive impact on the country. Just look at what has happened since. 

[Impact of the 17th] 

We really have accomplished a lot since then. The US became the richest and most powerful country on Earth, we sent humans to the Moon, and established a social safety net that was just nonexistent before the 17th Amendment. I can’t tell you that these things all happened because of the 17th amendment, but actual experts on this will say that it contributed. 

And the flooding of money into politics and the near constant use of the filibuster are phenomena that date back only about a decade or so. So maybe we’ve just arrived at a point again where its time to think really critically about what we expect from the Senate and whether its structure is in line with that. 

We’ll explore some ideas on this, right after the break. 

Why Not

Welcome back to Why and Why Not! 

Before the break, we took a look at how we arrived at the Senate we have today. There are plenty of people who are frustrated with the way that it seems legislation regularly passes the House but fails to pass the Senate. Just recently, the For the People Act to address gerrymandering and campaign finance passed the House and not the Senate, enhanced background checks for firearm purchases which is supported by over 90% of Americans passed the House and not the Senate, and I could go on and on with examples. So let's start thinking critically about whether we should make some changes.  

To start, let’s think through the modern-day purpose of having two chambers of Congress anyway. 

[Washington’s Tea] 

Regardless of how Washington drank his tea, many obviously think that bicameralism is a good thing. Just look at state legislatures, where every single state besides Nebraska has two chambers to the legislature. But a key difference is that in states like where I live, representation in both chambers are based on population. 

Remember how I mentioned that Madison disapproved of the state’s having equal suffrage in the Senate? Well he did believe in a bicameral Congress. 

[Madison on Bicameralism] 

And it seems that a lot of people think having representation in two chambers so that no one legislative leader or party could totally dominate the lawmaking process has a lot of merit. While County and City Councils are typically just a single body, people tend to favor bicameralism as things scale up in the US. So why don’t we simply change the Senate to be a smaller body that awards each state a number of voters proportional to population? 

Well.. it’s not that simple. Article V of the Constitution reads quote “no State, without its consent, shall be deprived of its equal Suffrage in the Senate.”. This means that the only way to change representation in the Senate would be if all 50 states agreed to it. And while larger states like Texas may be happy to approve this, a small state like South Dakota likely would not. And this is a much higher bar to clear than the three-quarters of states that are required to pass a standard amendment to the Constitution. So this is possible, but probably the most difficult way to reform the Senate. 

Okay, so if we can’t change representation in the Senate, could we just get rid of it? Unless we created another chamber of Congress at the same time, we’d be moving to a unicameral Congress with the House as the sole chamber on the Hill. This would certainly allow the public to make quick changes in their government and could really ensure that elections have consequences. It’s up to you to decide whether that's a good or a bad thing.

But it’s not completely clear whether Article V even allows the Senate to be abolished without unanimous consent since providing each state with no representation in the Senate may violate the idea of equal suffrage within it. But I’m certainly not the authority on this and this may be the way to go. Although abolishing the Senate would raise real concerns about whether the House can truly represent the people now that extreme political gerrymandering has become the norm. If the people aren’t actually gaining better representation in Congress then what exactly would we accomplish by abolishing the Senate? 

Professor Epps has his own idea about what we could do. To set the stage, we have to look across the pond. 

*British hail to the queen or whatever*

There was a point in which Great Britain had two truly powerful institutions in its Parliament. The House of Lords and the House of Commons. The House of Commons was more comparable to our House of Representatives and provided a voice to people. The House of Lords, on the other hand, was established to represent the quote “peerage”, often people who were born into nobility. 

The House of Lords was a powerful and distinct chamber of the legislature that had powers that the House of Commons did not. You can think of this as how the US Senate gets to confirm Presidential appointments while the House doesn’t have a say. 

Overtime (and I’m skipping a ton of history here but this is an American podcast) the popular House of Commons became the central chamber and began stripping powers away from the Lords. Today, the House of Lords can vote on legislation offered by the House of Commons but the Commons can present certain bills directly to the crown regardless of the Lords’ vote.

Professor Epps proposes that we do something similar with our own upper chamber. 

[Epps Proposal] 

So all of the real power of the Senate would be transferred to the House which is much more democratic. The Senate would still exist, but it would be more of a government-sponsored think tank that people are elected to. 

And, look, whether you like this idea or not, you’re probably not thinking right now that it’s actually going to happen. And I’ll admit, when I heard this I thought there’s no chance that small states would go for it given their advantage of having an outsized influence in the Senate. I mean if I’m the Speaker of the House in Delaware, I may not want my federal delegation to have less influence. Here’s what Professor Epps said when I asked him how we could ever convince a leader of a small state to support this. 

[How To]

I think that’s the most clear eyed answer to this I’ve heard. I don’t know that the House of Lords-style Senate is the right way to go. But right now I don’t think we’re seriously considering any structural changes to the Senate because Constitutional Amendments just seem completely out of reach in the current political climate. But a structural transformation must have seemed out of reach in the 1890s as well and the people were able to make massive changes and pass multiple amendments to the Constitution. But it took a lot more than sending off a Tweet or signing a petition. 

To follow that thread, I’d like to play a clip of what Professor Epps would say to someone that believes we need structural changes to our government but just doesn’t think it’s tenable. Here’s what he said: 

[Change]

So when it comes to the Senate, if nothing else, let’s talk through what change could look like in an ideal world. I’m interested in what you think. Do you think the Senate functions just fine as it is or is there merit in shifting away from our current system. Let me know by tweeting me at bradleysfallon on Twitter or by leaving a review and comment on this episode. 

And that’s it for this episode of Why and Why Not. I’d like to especially thank Garrett Epps for agreeing to speak with me for this episode. If you’re interested in learning more about his work, I recommend checking out his books. If you liked this episode, please consider giving it a review to help us reach more listeners. I’ll be back with a new episode soon. As always, thanks for listening.