Donald Trump’s efforts to dominate American democracy may seem sui generis. Certainly, no other president has dismissed the results of a national election he lost, rallied supporters to violently prevent Congress from certifying that loss, and called for ignoring the Constitution to facilitate his return to power. But Americans have long struggled with the country’s foundational anti-democratic features—fighting a civil war over the denial of rights to people based on skin color and agitating for decades over allowing women to vote.
Yet, one such feature in the Constitution remains intact: the provision under Article I, Section 3, that every state will have two U.S. senators regardless of population. Until the 17th Amendment was enacted in 1913, senators were chosen by state legislatures, but the direct election of senators left in place the two-senators-per-state dictate. As a result, not only do small states have the same clout in the Senate as states with up to 67 times more citizens (Wyoming versus California), but the dictate also fuels the power of senators representing as little as 10 percent of the country to veto legislation using the filibuster.
In Federalist Paper 62, James Madison conceded that the arrangement had no basis in democratic theory but was merely an expedient to convince smaller states to sign on to the new union. In the framers’ defense, the associated disparities at that time probably seemed manageable—the first Census in 1790 found that the population of the seven larger states was about 3.3 times that of the seven smaller states.
They could not have anticipated how much their anti-democratic expedient would worsen over time. By 1910, just before the direct election of senators, the disparity in population between the 10 percent largest and 10 percent smallest states reached more than 40-to-one: 31.1 million people lived in the five most populous states (New York, Pennsylvania, Illinois, Ohio, and Texas) with the same Senate representation as the 725,000 people in the five smallest states (Nevada, Wyoming, Delaware, Idaho, and Vermont). And overall, 85.7 million people lived in the more populous half of the 46 states, 4.9 times the 17.7 million people in the less populous half. (See table below.)
It’s little or no better today. The current disparity in Senate representation between the most and least populous states is 34-to-one: In 2022, 124 million people lived in California, Texas, New York, Florida, and Pennsylvania, versus 3.6 million people from Wyoming, Vermont, Alaska, South Dakota, and North Dakota. Overall, the 50 senators from the 25 larger states today speak for 278.6 million people, or 5.2 times the 53.5 million people represented by the 50 senators from the 25 smaller states.
Since any effort to amend the Constitution and reform the Senate allows smaller states a veto, Americans seem stuck with this foundational injustice. But the current Senate could change the most anti-democratic arrangement that depends on the body’s anti-democratic organization, the filibuster, by a simple majority vote.
The filibuster compounds the Senate’s anti-democratic bias by giving any 40 senators the power to block any prospective law. By the math, the 40 senators from the 20 smallest states—representing 33.6 million people, or a mere 10 percent of Americans—can stop any legislation. The tactic also has a partisan dimension today since Republicans represent nearly 60 percent of the smaller states. As a result, 40 current GOP senators could mount a successful filibuster even though they speak for as few as 62.6 million people, or less than 19 percent of the country. To be sure, Democrats also represent some of the smaller states, such as Delaware, Rhode Island, Vermont, and Hawaii. So, 40 Democratic senators from states with as few as 96.8 million people, or 29 percent of the country, also can stop most proposals in the Senate.
Given the filibuster’s radically anti-democratic potential, the Senate has, at various times, narrowed its coverage. The threshold to stop a filibuster or “cloture” was reduced from 67 votes to 61 votes, and judicial and executive branch nominations are now exempted, as are specific spending and tax legislation under the reconciliation process.
Filibusters can fail. In the last Congress (2021-2022), 13 filibusters were unsuccessful, including GOP efforts to block major infrastructure spending, promote U.S. semiconductor manufacturing and electric battery production, raise penalties for hate crimes, and restrict gun purchases.
But many more filibusters have succeeded in blocking important measures. In the last Congress, Republican filibusters killed new voting rights protections, access to abortion services, a ban on gender-based wage discrimination, and an independent commission to investigate the January 6th attack on the Capitol. And over the preceding 15 years, GOP filibusters stymied comprehensive immigration reform in 2007, a pathway to citizenship for “dreamers” in 2010, legislation promoting equal pay for women in 2010, a minimum tax for millionaires in 2012, expanded background checks for gun purchases in 2013 and 2018, and protections against discrimination based on sexual orientation and gender identity in 2019.
Democrats of late have also successfully filibustered some GOP proposals—in the Trump years, they stopped efforts to repeal the estate tax and fund a border wall. That may explain why several Democrats were unwilling to get rid of the filibuster following the 2020 elections or even simply to create more exemptions or lower the threshold for cloture to 55 votes. So, Democrats may have to expand their majority by a few more seats to make it happen.
We may be stuck with two senators per state. But in a period in which a president can trample the norms of democracy and command substantial partisan obedience, traditional expediency can no longer justify an arrangement that gives a fifth or a third of the Senate a veto over legislative reforms favored by large majorities of Americans.
