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Fresh out of his AP Government exam and looking at the coverage of this week’s gerrymandering bloodbath in Indiana, my eldest manchild observed: “We’ve created a reverse Constitution where the Senate is picked by the people and the House is picked by the legislatures.”
I share this in part because I am particularly proud of him today, the eve of his 18th birthday, but also because that’s a BLAMMO right there.
The bipartisan vandalism of our constitutional order is very much concerned with defacing Congress, typically in taking — or, more usually, giving away — powers reserved for the legislative branch to the executive and the judiciary. But the subversion is internal, too, as the parties keep trying to turn the House into the Senate and the Senate into the House.
Our government is designed as a perpetual motion machine powered by human ambition. The Framers imagined that the three branches would covet one anothers’ powers, but also jealously guard their own. The system broke down once the members of the most important of those branches decided they would trade power for job security.
But the system isn’t supposed to just balance powers, it is also supposed to balance modes of government. The federal judiciary is unelected and unreachable by direct public sentiment. The executive who appoints the members of the judiciary, on the other hand, is the only official elected by the nation as a whole (along with his vice president). Democracy and republicanism are put in tension.
So it is supposed to be within Congress, too. The Senate, with the longest term of any federally elected office, was designed to have its members chosen by state legislatures — placing them at a considerable remove from the day-to-day political passions of the electorate. The House, with the shortest term of office, was supposed to be directly elected by the people — to be, as their name implies, representatives. The House was to provide the energy while the Senate provided stability; one was to be the purest expression of democracy and the other the principal custodian of republicanism. The House is meant to be the “We the people” part, with the Senate taking the longer view.
Just consider the roles the two chambers play in an impeachment: The House prosecutes while the Senate sits in judgment. That’s a pretty good reflection of how the system was designed to work.
The first big change came in 1912, when progressives finally pushed through the 17th Amendment and took the power to pick senators away from state legislatures and established direct elections. Other than the basic progressive belief that the people should rule as directly as possible, proponents believed that the state legislatures themselves were being corrupted by powerful, monied outside interests that were subverting the interests of the people. The argument held that the high-stakes selection of U.S. senators was distorting the function of state legislatures.
I tend to think that while the scramble for Senate seats was disruptive, the tradeoff was worth it. Having Senators who were insulated from public opinion wasn’t good for the go-go activism envisioned by the likes of Teddy Roosevelt and Woodrow Wilson, but the pitifully supine posture of the Senate in the past few decades is pretty strong evidence that the insulation was helpful. Presidents now expect and typically receive the fealty of the senators of their own party, who themselves are always thinking about their own next primary elections.
The constant, bipartisan pressure to end the 60-vote threshold to advance legislation is sort of the last stand of the old, small-r republican Senate. On the other side of the filibuster’s eventual demise is a body that functions like an elected cabinet, vassals to presidential prerogatives.
In the meantime, the House has stopped doing almost anything. Volume is a poor measurement for legislative output. The number of bills passed isn’t nearly as important as the quality and value of the legislation itself … but still. The current Congress has passed fewer bills than any since the Civil War. There are many reasons for this, perhaps most of all that the House hasn’t added any new seats since 1911. We have had 435 House seats for longer than we have had direct election of senators. We’ve added four states and eight Senators since then, but not a single House seat. Representing the interests of 342 million Americans with the same number of House members as when there were 92 million people in the country isn’t just bad for producing the democratic ferment for energy in government, it makes the individual members themselves too powerful.
The other deadly development for the House was the tandem rise of partisan primaries and increasingly sophisticated gerrymandering in the late 20th century. If maps can be drawn to maximize partisan advantage, that means that the primaries become more important than the general elections. While those two trends have been playing out, Americans have been sorting themselves politically and geographically. The result is that there are, in that cramped body of 435 seats, perhaps only 40 that are ever truly competitive. Nothing breeds inertia quite like a Congress full of people more concerned about avoiding productive compromise than actually exerting the power the Constitution granted them.
But there’s another knock-on effect, which is that, like the state legislature of the Gilded Era, the most important issue is more about federal elections.
It is rightly understood that President Trump showed great strength inside his party when he muscled out five members of the Indiana state Senate who blocked his push for a partisan gerrymander this year. But that’s not all that happened. Republican voters sometimes defy the president’s wishes, choosing nominees he opposes. In this case, one supposes that the primary voters agreed with the president’s assertion that the gerrymandering was good and necessary in order to try to hold the House for Republicans.
The simplistic answer that the voters are automatons acting at Trump’s behest misses the point: Voters in both parties are deeply engaged on the question of using state legislative power to advance partisan interests. That was clear in California and Virginia when Democratic voters were given their say. And it’s clear across the former states of the Confederacy as lawmakers scramble to maximize Republicans’ advantage in the wake of a Supreme Court decision loosening Voting Rights Act restrictions on gerrymandering.
The well-sorted electorate, deep data and gigantic districts make it possible for lawmakers to slice the electorate in ways to give parties at the state level extraordinary control over the composition of Congress.
You don’t have to get a 5 on your AP Government exam to see that it’s very much the opposite of the way the system was intended to work.
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