Affirmative Action for Low-Population States
He thinks the civil rights movement was unnecessary. He still speaks fondly of brutal Latin American dictators like Chile’s Pinochet. His favorite TV show is the propagandistically Christian Touched By An Angel. He hails from a sleepy Southern backwater where in his youth cotton wagons circled the courthouse, where flowers were put on the Confederate Memorial to honor Southern chivalry. He proudly displays in his office a letter from Spiro Agnew that thanks him for being “a truly wonderful friend.”
Who is this man? If he were just your typical garden variety racist-next-door, a brash neighbor with a penchant for blurting out rude, offensive remarks that obviously amuse himself more than anyone else, perhaps you could ignore him over top the fence separating your yards. Unfortunately, he’s more than that. Much much more.
He also has hanging on his office wall photos of himself pumping hands with presidents, foreign leaders, ambassadors, and celebrities and a framed copy of his floor speech during Clinton’s impeachment trial. He has tormented American presidents and diplomats for twenty-nine years from his perch on the Senate Foreign Relations Committee. He has voted against so many bills—from food stamps to a Martin Luther King holiday to funding for the National Endowment for the Arts to practically every arms-control treaty—that friend and foe alike have nicknamed him
“Senator No.” As chair of the Senate Foreign Relations Committee he blocked so many nominees and treaties that he became a de facto Secretary of State. During one of his committee hearings, he had Capitol police toss out ten frustrated Congresswomen who had barged into his hearing room because he was single- handedly bottling up a United Nations treaty that urged countries to end discrimination against women. Senator No claimed that the treaty was the work of radical feminists, that it would legalize prostitution and abortion and outlaw Mother’s Day, all demonstrably false claims.1
He is, of course, Jesse Helms, the Tyrannosaurus rex of the U.S. Senate.
Washington Post columnist David Broder has called him “the last prominent unabashed white racist politician in this country.”2 Senator Helms, perhaps more than any other Senator, could serve as the poster child for an outdated sclerotic institution that is hastening our mudslide into a fractious, voterless post-democracy.
The Senate is America’s House of Lords, and Helms has been its King George.
Not too far away from Senator No, either in temperament or geography, and occupying the desk once superintended by antebellum states-rights Senator John C.Calhoun of South Carolina, is Senator Strom Thurmond. Thurmond, once the presidential candidate in 1948 of the States’ Rights Democratic Party (also known as the Dixiecrats) that staunchly opposed desegregation and civil rights, first was elected to the Senate from South Carolina in 1954. Thurmond has set several longevity records, including once conducting the longest individual filibuster on record—twenty-four hours—as part of an attempt by Southern Senators to obstruct civil rights legislation. Thurmond is also the longest serving Senator; indeed, at ninety-nine years old, Thurmond by most accounts holds office in name only, appearing infrequently in public or on the Senate floor as a doddering artifact who must rely on aides and nurses for his cognizance.
While two Confederate war horses like Thurmond and Helms have long held sway in the United States Senate, there are no African Americans or Latinos in that powerful upper chamber. Only a handful of women have been elected to its privileged pontificate, and most of its members are millionaires.
Or think of it this way: if the Senate were chosen by lottery among all Americans, one-quarter of Senators likely would be black or Latino, and more than half would be women. But instead, two Senators are elected from each state using our antiquated Winner Take All methods. Given the stubborn patterns of racially polarized voting, that has translated into ninety-five out of ninety-six senators being white in the forty-eight states with white majorities (the one exception is a Native American Senator from Colorado). In the only two non-white majority states, Hawaii has elected two Japanese American senators, while voters in California, the other nonwhite majority state, elected two white women. Women generally lose out in the Senate, just as they do in most gubernatorial races; only thirteen women currently are Senators,yet that’s the highest level in our history (completing the picture, only four out of fifty governors are women, and two out of fifty governors are nonwhite).
Many rebel against the notion of using race or gender as a factor in tracking representation, but the stark reality is that they already are a factor—the strong correlation in particular between the race of the majority and that of our representatives in most American elections is no accident. It is difficult to overlook—
although some manage to do so with appalling aplomb—the fact that when the Senate undertakes such solemn constitutional duties as approving Supreme Court nominations, debating treaties, weighing the guilt of an impeached president, declaring war, or voting on matters of national significance, including policy related to women’s and racial minority’s health and livelihood, only thirteen women and not a single black or Latino is in attendance inside the chamber.
And there’s great evidence that it matters. For instance, the presence of more women in the U.S. House has made a qualitative and quantitative difference in the types of legislation proposed and passed into law. Although outnumbered as much as 9 to 1, Congresswomen have been successful in gaining legislation long overlooked by their male colleagues, including gender equity in education, child
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support legislation, and laws for prevention of violence against women. It was Congresswomen who ensured that the offensive behavior of U.S. Senators Bob Packwood and Brock Adams, as well as Supreme Court nominee Clarence Thomas, were not swept under the “good ol’ boy” carpet.
Back in 1993, the white jester himself, Jesse Helms, introduced a proposal to renew the United Daughters of the Confederacy’s design patent on an insignia that featured the original flag of the Confederacy. Senator Carol Moseley Braun, the first black Senator since the 1970s, only the second since Reconstruction, and the first- ever black woman Senator, led the opposition to Helms’ proposal. After Moseley- Braun argued in an impassioned speech that the Confederate flag was an emblem of slavery and brutality, the Senate, which had earlier approved the patent, reversed itself and voted 75 to 25 to reject it.
But in 1999, after Carol Moseley-Braun lost a close reelection bid the previous year, the once-again “no-blacks-inside” Senate rejected the nomination of a black nominee to the federal judiciary. Judge Ronnie White, a justice on the Missouri Supreme Court, was the first judicial nominee defeated on the Senate floor in more than a decade, and his confirmation process was tinged with racial acrimony. Would Judge White’s nomination had been successful if there had been any black senators?
Maybe yes, maybe no—but no question it would have been a different debate, with white senators having to justify their actions more clearly, just as when confronted by Moseley-Braun on the Confederate flag.
No, the Senate stands out rather ridiculously, like a Siberian’s parka at the equator, for an obvious reason: if it were a private club, a member might need to resign before running for public office to avoid charges of belonging to an exclusive fraternity.
Big State versus Little State
But the lack of racial and gender representation in the U.S. Senate hardly sets it apart from the House, which is similarly, although not as drastically, unrepresentative, as we saw in previous chapters. What is unique about the unrepresentativeness of the U.S. Senate is that it bestows equal representation—two Senators—to all states no matter how small their population, drastically under- representing states with larger populations. The U.S. Senate was originally designed by the Framers as a compromise to settle the Big State versus Little State controversy, and the result was that low-population states like Thurmond’s South Carolina have been handed a “representation quota,” a kind of affirmative action for political representation. Which is ironic, considering that affirmative action for racial representation used in the House—the drawing of minority-opportunity districts—is under judicial and political siege.
Consider: more than one-quarter of the United States population now lives in three very large, rapidly growing states—California, Texas, and Florida, which also happen to be three of our most racially diverse states—yet they are represented by only six out of one hundred Senators. A mere 7 percent of the total United States population, on the other hand, resides in the seventeen least popular states and is
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represented by thirty-four Senators, sufficient to kill any treaties or constitutional amendments.3 Texas, with 21 million people, has the same representation as Montana, with less than 1 million people. A Senator from Rhode Island represents 500,000 residents, while a Senator from New York represents over 9 million.
California has sixty-eight times as many people as Wyoming, yet these states have the same representation in the U.S. Senate— Los Angeles County, with nearly 10 million people, has a higher population than forty-two states. According to author Michael Lind, today half of the Senate can be elected by 15 percent of the American people, and just over 10 percent can elect a filibuster-proof 41 percent of the Senate.4 By filibustering, Senators representing little more than one-tenth of the nation can block reforms supported by the House, the President, and their fellow Senators, who represent the other 90 percent of the country.
Given current demographic and migration trends, by 2050 as few as 5 percent of the population may have majority power in the Senate. Clearly this is a demographic meltdown in the making. By contrast, in 1789 when the first senators took the oath of office, the ratio between the most populous state (Virginia) and the least populous one (Delaware) was 11 to 1, and it took a minimum of 30 percent of the national population to assemble a Senate majority.5 In Chapter 2 the point was made in regards to the Electoral College, and it applies here even more egregiously:
the Founders and Framers simply did not foresee such dramatic population imbalances two hundred years later. The alarming trajectory is toward one of an ever more flagrant form of microminority rule. There is nothing “majoritarian”
about the United States Senate. These are demographic changes that our two- hundred-year-old constitutional structures are ill prepared to handle. Indeed, the U.S. Senate is in the running for the least representative legislature among Western democracies, outside the aristocratic British House of Lords (which is in the process of being substantially reformed).
Political scientist Robert Dahl, with his usual gift for clarifying what others have made muddy, put it this way:
Imagine a situation in which your vote for your representative is counted as one while the vote of a friend in a neighboring town is counted as seventeen.
Suppose that for some reason you and your friend each change your jobs and your residence. As a result of your new job, you move to your friend’s town.
For the same reason, your friend moves to your town. Presto! To your immense gratification you now discover that simply by moving, you have acquired sixteen more votes. Your friend, on the other hand, has lost sixteen votes.
Pretty ridiculous, is it not? Yet that is about what would happen if you lived on the western shore of Lake Tahoe in California and moved less than 50 miles east to Carson City, Nevada, while a friend in Carson City moved to your community on Lake Tahoe.6
The eventual destination of this trajectory will be political bantustans where high- population and racially diverse states will have barely any representation in the
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nearly all-white, all-male Senate. Already the institutional favoritism shown toward low-population, white states is having real-world impacts.
Political scientists Francis Lee and Bruce Oppenheimer, in their ground-breaking work Sizing Up the Senate: The Unequal Consequences of Equal Representation, systematically demonstrate that the Senate’s unique malapportionment scheme profoundly distorts policy and representation.7 After first showing that, quite surprisingly given the peculiarity of its representation scheme, there has been little scholarly research or journalistic attention paid to the effects of the Senate, Lee and Oppenheimer demonstrate that the size of a state’s population affects (1) the senator-constituent relationship; (2) the competitiveness, fund-raising, conduct, and partisan outcomes of Senate elections; (3) strategic behavior within the Senate; (4) leadership of the Senate; (5) policy decisions, and, ultimately, (6) the disproportionate allocation of federal dollars to low-population states.
Lee and Oppenheimer found that Senators from low-population states are in a number of ways strategically advantaged, compared to their populous-state colleagues. For instance, because they do not represent so many people, low- population Senators are able to establish closer relationships with their constituents and, in turn, earn higher job approval ratings than Senators from large-population states. Senators from small-population states on average win elections by wider margins and, accordingly, have more political leeway in office. Also, they tend to represent more homogeneous constituencies, and so they are not subject to the same interest-group pounding from all directions faced by their colleagues from large- population states on almost every issue. By contrast, senators from diverse, populous states are going to offend sizable segments of their constituency every time they cast a roll call vote.8
Lee and Oppenheimer also show that, because there are so many Senators from low-population states and so few from large-population states, the Senate designs policies in ways that distribute federal dollars disproportionately to the less populous states. Since a new dam or bridge makes a bigger splash in a small- population state, senators from those states tend to gravitate to pork-barrel committees where they are in a better position to do favors for the folks back home.
“The over-representation of the citizens of the least populous states means that they receive more program funds per capita from the federal government than the citizens of the most populous states. One unanticipated conse quence of the Great Compromise, then, is that it now creates a situation in which citizens are treated differently based on where they happen to reside.”9
The authors also found that financing a reelection campaign is a far less arduous task for Senators from small-population states. Because their campaign costs are manageable, these Senators spend less time fund-raising, and they concentrate that activity in the final two years of their six-year terms. In the most populous states, where an incumbent Senator often raises more than $15 million to finance a reelection bid, there is no fund-raising break. Further, Senators from low-population states can depend on PACs to contribute a sizable percentage of overall campaign funds, while populous-state Senators must engage more heavily in the time-
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consuming process of prospecting and tapping individual donors. Is it any wonder, asked Oppenheimer in an op-ed piece, “that the most influential positions in the Senate, those of the party floor leaders, which were once dominated by large-state senators (Lucas of Illinois, Johnson of Texas, Taft of Ohio, Knowland of California, Dirksen of Illinois, and Scott of Pennsylvania) have in recent years been occupied by senators from [low-population states] West Virginia, Kansas, Maine, South Dakota, and Mississippi? Senators from the largest states no longer have the flexibility or time necessary to lead the Senate.”10
Perhaps one of Lee and Oppenheimer’s most puzzling findings was that, given the considerable impacts of the U.S. Senate’s odd malapportionment, their political scientist colleagues in previous decades and in recent years had spent so little time collecting data and analyzing the Senate. “Ironically,” they wrote, “the most intensely debated issue at the Constitutional Convention—how to apportion representation among states—has received very little attention since.” They cite a long list of the many aspects of our democratic system that have been studied, and the political scientists that have studied them: separation of powers, checks and balances, length of legislative and presidential terms, legislative term limits, and, of course, ubiquitous studies on the impacts of campaign finance inequities. In the 1950s and 1960s there was a hefty amount of research into the effects of malapportionment at the state legislative level—especially the underrepresentation of urban areas and the overrepresentation of rural areas, which is ironic given even more extreme overrepresentation for low-population, rural states in the Senate. As Lee and Oppenheimer wrote, “almost every legislative body has received attention in this literature—the House of Representatives, state legislatures, city councils, and school boards—with one exception, the Senate…. Journalists, legal scholars, and political scientists have generally ignored the consequences of the Great Compromise and equal representation of states in the Senate.”11
That’s quite a glaring oversight—a research “blind spot” as large as the United States Senate! Certainly it calls into question the priorities, judgment, and perhaps even the objectivity of many generations of American political scientists and journalists, too steeped in the status quo.
“Affirmative Action” Quotas for Conservatives
Lee and Oppenheimer also demonstrated another curious factoid that potentially is the most explosive of all. Because low-population states tend to be rural, their Senators tend to lean conservative. According to data the authors have compiled since 1914, equal state representation in the U.S. Senate has served to augment the ranks of the minority party an astounding 85 percent of the time, most often the GOP.12 That “representation quota” has benefited the Republican Party in every election from 1958 through 1992, primarily due to Republican success in low- population states in the West and South13—that is, in the sub-nation of Bushlandia. For instance, if not for Senate malapportionment, President Ronald Reagan would have faced a Democratic Senate throughout his eight years in office;
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from 1980 to 1986 Republican senators as a group received fewer votes nationwide than Democratic senatorial candidates, yet they gained a majority in the Senate, with consequent impacts on policy, treaties, and judicial appointments.
This affirmative action for conservative, low-population states has continued into the 1990s. According to one report released by the Center for Voting and Democracy, the nine most conservative states with only 5 percent of the nation’s population (and not coincidentally ensconced in the sub-nation of Bushlandia) control 18 percent of Senate seats, an overrepresentation in the Senate of three and a half times. Twenty-two of the least-populous twenty-eight states with less than 18 percent of the nation’s population—all of them states in Bushlandia— have thirty- four Republicans senators, which means they have similar political values and attitudes about policy, culture, and race and enough Senators to hamstring any constitutional amendments or treaty ratifications. If that conservative Republican rump can draw seven more votes—an extremely likely prospect from other Republicans senators or even conservative Democratic senators—they control a filibuster-proof 41 votes, enough to block any Senate legislation or initiatives according to the Senate’s arcane rules of filibuster.
Over the years, conservative senators from low-population states representing a small fragment of the nation’s population have flexed their representation quota to slow down or thwart desegregation, campaign finance reform, healthcare reform, affirmative action, New Deal programs, gun control, even basket-ball programs for inner-city youth. They have wielded the deciding votes on the sale of AWAC radar planes to Saudi Arabia, the Clinton economic package in 1993, and the balanced budget constitutional amendment. In 1991, when the ostensibly Democratic- controlled Senate voted 52–48 to appoint Clarence Thomas to the Supreme Court, the Senators opposing Thomas (including those from California, New York, New Jersey, Ohio, and Texas) represented a clear majority of the American people—but found themselves in the minority in the Senate.14
Urban policy and assistance for inner cities have been bottled up by Senators representing conservative low-population rural states; Bill Clinton’s domestic stimulus program, which was targeted at urban areas in megastates like California, was killed by conservative Senators from underpopulated states such as Oklahoma.
Labor law reform, like a bill that would have prohibited permanent replacement of strikers, passed the House but could not muster the sixty votes necessary to break a Republican filibuster in the Senate. For years, until March 2001 and the McCain- Feingold reform bill, a similar fate always awaited campaign finance reform. The U.S. Senate plays a unique role in foreign policy, and with senators like Jesse Helms at the reins, it has been the command post of isolationism and bombastic anti- United Nations rhetoric.
Filibustering and legislative stalling by conservative Senators representing a minority of the population plagued our politics throughout the 1990s. In fact, purposeful gridlock in the 1990s became a Republican tool for winning elections and a congressional majority, and we can even point to its exact moment of origin:
Election Night 1992. On that night, Senate Minority leader Bob Dole from low-
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