The United States Senate is America’s institutional Sword of Damocles. It’s shadow looms large because it has, by and large, become the source of American gridlock and the embodiment of American political dysfunction. The World’s Greatest Deliberative Body has become a daycare for presidential hopefuls and a graveyard for legislation. Over the past decade, when Congress has failed to act, it is because of the Senate. It is a body that requires not just reform but an institutional reconstruction.
This is a proposal for a better senate, predicated on both functional bicameralism and separative semi-presidentialism. This New Senate would serve as the legislative saucer that cools, but does not freeze. No longer the World’s Greatest Deliberative Body, but the World’s Greatest Oversight Body, an overslature. A senate with fairer method apportionment, a different manner of election, and a clearer purpose.
The current apportionment method, where every state is granted an equal delegation of two senators, may have made sense when the original 13 states were relatively equal in their population. However, it is no longer the 1790s. For example, California is a state of nearly 40 million people, ten times the size of the entire United States at the time of the first census; in comparison, Wyoming is a state of around 580,000 people — yet both have the same Senate delegation. This is not just apportionment; this is malapportionment. Moreover, the original logic behind equal apportionment falls flat in two critical respects. One, the argument that Senators represent the state government’s interest has not been a reality since the 17th Amendment. Two, the Founder’s constitution’s state government primacy is dead; states are not the primary actors of American politics anymore; national citizens are.
What is the alternative? Degressive apportionment. What does that mean? Fixed tiers of apportionment, instead equal or proportional apportionment. There are two possible varieties of degressive apportionment, a “tripwire” method and a “ladder” method. The tripwire method is used for votes in the Bundesrat (the upper house of the German Parliament), where states with two million inhabitants have four votes, states with six million have five votes, and states with seven million have six votes. Meaning states just have to cross a threshold to gain more votes. The ladder method is along the lines of more traditional apportionment with a fixed number of seats that are distributed amongst tiers. For example, the top ten states by population would have four senators, the next twenty states would have three senators, and the bottom twenty-three states would have two. There are many different iterations of either, but I’ll be using the exemplified ladder method for this proposal.
A quick digression: some of you may have noticed that I mentioned a total of fifty-three states (there would also be four federal territories). Those three new states would include, pending either referenda or constitutional amendment, Puerto Rico, an Indigenous Confederacy, and the District of Columbia. Puerto Rico must have a finally, formal referendum to assess if that territory wishes to become a state. An Indigenous Confederacy would not so much be a state but a mechanism to allow formal tribal representation in Congress (in the vein of the Maori lists in New Zealand) alongside restored and constitutional enshrined tribal sovereignty. All other territories that are below an established population for statehood (that population requirement could be the size of smallest current state or some fixed number) would be granted a single Representative, a single Senator, and two presidential electors. Granting these territories representation, but not statehood, also allows them to potentially eventually seek independence. These changes would be dependent on the determination of the people living in the aforementioned territories, but the intent is to ensure that every American has a full member of Congress responsible to them and a vote for the Presidency.
Now how would this 146-member Senate be elected? First, their terms would remain the same at six years, but instead of three classes of senators, there would be only two — meaning half of the Senate would be up every three years. Second, under functional bicameralism — the Senate is the weaker chamber and has unique powers of oversight — so to prevent dueling mandates with the House of Representatives, the new Senate must have a weaker popular mandate. This can be achieved by “slate approval voting” wherein candidates must either be serving or former statewide official (including appointed offices), multi-term member of the state legislature (2+ terms), or otherwise approved by the lower house of the state legislature. From this slate, the voters will ‘approve’ a senator by ranked-choice voting in single-member constituencies of the states with three or four senators.
Slate approval voting not only intentionally reduces the ability of the overslature to challenge the House but also by mandating experience ensures that new senators at least have a passing familiarity with the conduct of government. Those who oversee the conduct of the executive should have at least some experience in governing; ideally, the Senate would become home to seasoned state officials who will be best equipped to oversee the conduct of the federal executive.
Now, as for the powers of the Senate. It would retain its unique foreign affairs powers — namely, the ratification of treaties and ratification would still require two-thirds of the Senate. The Senate can delay legislation, appropriations excepted, for one year. Legislation that is delayed beyond the extent of a Congress may be preserved by a resolution from the House of Representatives. The Senate would possess the power to impeach federal officials by simple majority, but not to try them. The Senate would also be enabled to conduct a “sealed breach of privilege” wherein informational limited to the executive or chancellery (i.e., legislative leadership) must be divulged under penalty of law to the requesting Senate committee. Failure to release such information would result in the automatic initiation of an impeachment motion. Unauthorized dissemination of such information by a Senator or staff would result in the immediate and unappealable expulsion of the Senator responsible; staff would be liable for prosecution. The expelled Senator would be eligible to run for their former officer.
This Senate would also have an a-typical floor vote. First and foremost, measures would be approved by a simple majority of all Senators (50%+1). If a motion fails to reach a simple majority — but is not opposed by an over-majority (60%) — that legislation is delayed for one year or until the intervention of the chief legislator. If an over-majority opposes a motion, then the legislation is dead. Only a truly united Senate can kill legislation, an indecisive or divided Senate may only delay the House’s will.
Instead of being the hangman for legislative primacy and American democracy, the Senate should serve as a deceleration point. A means to slow the adoption of legislation so that the minority may have its say, but not necessarily have its way. The Senate serves as a platform to ensure that sunlight may have its chance to disinfected legislation and prevent midnight judges. While also representing states, by choosing senators from the ranks of members of state government, while ensuring that states have more equal representation. The Senate can be transformed from “chief executive daycare” to be “chief executives, beware.”