8 November 2018

An unfair Senate will soon present America with a constitutional crisis


In this week’s midterm elections, the fact that it was possible for the Democrats to win the popular congressional vote by as much as eight points and actually fall back in the Senate seems staggering, but should surprise no-one paying attention to a trend that may lead to a constitutional crisis in coming decades.

The 2016 presidential election was the first since popular Senate elections became mandatory that every single state supported the same party’s candidate for both the Senate and the White House. This phenomenon, which has grown in strength over recent decades, was the biggest factor at play in yesterday’s Senate races. With a few notable exceptions, states where Mr Trump won bigly two years ago elected Republican Senators — and the only state where he was soundly defeated, Nevada, chose a Democrat.

Only in West Virginia and Montana did Democrats succeed in Trump country. These, however, can be seen as quirky exceptions that prove the rule — they sent two Democratic Senators to Washington, DC, until 2014, and, notably, chose Democratic governors in 2016 even while the President carried their states by large margins. Indeed, these isolated and idiosyncratic states have a current of no-nonsense libertarianism that sets them aside from much of conservative America.

They’ve often elected larger than life populists as Democrats statewide — in Montana, former Governor Brian Schweitzer and Senator Jon Tester both made much of being ranchers — the former memorably used a livestock branding iron to veto bills, while the latter made a virtue of his $12 haircuts in his latest campaign. In West Virginia, a state with the motto “mountain men are always free”, Manchin, himself a former governor, has a history of campaign commercials in which he fires bullets at distasteful legislation – from cap-and-trade in 2010 (which voters in coal country saw as an assault on their way of life) to Republican attempts to repeal Obamacare in 2018.

Indeed, had West Virginia elected a Republican in place of the conservative Democrat, Obamacare repeal would almost certainly have succeeded. It’s worth liberals bearing this in mind when denouncing him for being the lone Democrat to have voted for Brett Kavanaugh’s nomination to the Supreme Court (only after, in fact, moderate Republican Susan Collins announced her intention to do the same — rendering his own vote arithmetically irrelevant). There was even talk last year of the “resistance” mounting a primary challenge to Manchin.

But liberals should be careful what they wish for and what they prioritise: of the sixty Senate votes with which Democrats passed Obamacare in 2009, fourteen were from moderate and conservative Democrats from reliably red states — just two of these seats, Manchin and Tester, now remain in Democratic hands. “Woke” metropolitan liberals will have to learn to live with candidates who are only with them most of the time, or risk oblivion in the Senate.

The “nationalisation” of Senate races has a long history. While the Deep South lurched away from its Democratic heritage in presidential elections following the passage of the 1964 Civil Rights Act, for instance, it took Republicans another generation to replace conservative Democrats on a state and local level.

In the era where a strong local print media provided voters with their main source of political information, local party establishments mattered and ‘good old boy’ Senators were able to use seniority and congressional earmarks agreed in smoke-filled rooms to bring home the bacon for their constituents: roads, bridges, bases, jobs. With the advent of the information bubbles, first of cable news and later of the internet, combined with a cleaner political culture that clamped down on pork, ideology trumped individuality for more and more voters.

The problem for Senate Democrats, in a world where they can only compete in states they win at a presidential level, is that there are simply more reliably conservative states than liberal ones. While 22 states have chosen Republican candidates in every presidential election since 2000, the figure for Democrats is just 17 — this comes despite the Democrats winning the popular vote in all but one of those years. Those who see the electoral college as unfair, denying both Al Gore and Hillary Clinton the presidency despite their popular vote wins, are going to love how the Senate shapes up in the coming decades.

Sure, constitutionalists will proclaim, the framers never intended for America to be a pure democracy, but a Republic in which the individual rights of states were respected. But it is a balance: not only was the constitution not written for ideologically-motivated machine politics, but the gross imbalance between the size of states could not have been foreseen. In the 1790 census, the most populous state (Virginia) was roughly eight times the size of the sparsest (Delaware): a manageable ratio. California, whose economy is larger than the UK, now has a population 68 times that of Wyoming.

Population shifts will only intensify this democratic deficit. As more Americans move to cities and rural states depopulate, the gap between large and small states will grow ever wider. As they move, sparsely populated states will grow older and more conservative — and so too will the Senators that represent them. Some Democrats may hope that an influx of liberals into diversifying states like Texas, Georgia, Arizona and North Carolina, may provide a counterbalance to this phenomenon, and the results this week give some room for optimism, but they cannot risk adding further to the list of states that are out of reach.

In the long run, there may be a constitutional moment when Senate reform becomes something that is politically possible to address — despite requiring the consent of the states who would be disadvantaged by it. That situation, likely as part of a wider constitutional convention, is so unforeseeable that it is likely beyond any of our lifetimes. Therefore, to have any hope of preventing a permanent Republican majority in the Senate, Democrats must understand and prioritise the need to win in states outside their comfort zone and foster new talent and local organisations in conservative states in a way that puts the ability to win above ideological purity.

They must face up to a path to power that runs more through Grand Forks, North Dakota than it does Brooklyn. If they fail, not only will they not stand a hope of blocking conservative appointments from Republican presidents, but when their party re-enters the White House, passing legislation will be virtually impossible. Those with an interest in good governance in America should hope they succeed.

Mark Gettleson writes on US and UK elections.