It gets still worse. Since the Senate operates under a self-imposed filibuster rule requiring 60 votes to act, senators representing 11 percent of the national population can veto laws supported by senators representing 89 percent of the population. That’s just about what happened when the Senate voted 55-45 to approve background checks for gun ownership, only to see the legislation fail because it did not reach the artificial 60 vote threshold. When you deconstruct the votes, 46 Senators representing about 65 million Americans blocked crucial legislation approved by 54 Senators representing about 250 million Americans.
That’s not democracy. It’s more like being governed by the British House of Lords. Actually, it’s more like being governed by the American House of Cowboys.
Short of amending the Constitution’s grant of two Senators per state, there isn’t much that can be done about giving the residents of California and Wyoming equal representation in the Senate. But the Senate’s self-imposed 60 vote requirement is another story. Self-imposed voting rules that render the already mal-apportioned Senate even less democratic violate the “one-Senator one-vote rule” of the 17th Amendment, which provides:
“The Senate of the United States shall be composed of two senators from each state, elected by the people thereof…and each senator shall have one vote……”
Under a 60 vote rule, 41 Senators outvote 59 colleagues, reducing the value of the votes cast by each of the 59 losing senators to 65-70 percent of the value of the votes cast be each of the 41 winners. When 46 Senators defeated 54 Senators on gun control, the 46 winners cast votes about 1.3 times more powerful than the votes of the losing 54.
Super-majority requirements do not necessarily violate one person-one vote when they are adopted by legislative bodies whose membership complies with one-person one-vote. An equally apportioned legislative body can bend the rules. But when a mal-apportioned legislative body already containing members whose votes are 50 times more powerful than the votes of other members imposes yet another layer of voting inequality, the last link to democratic governance has been severed. The plain meaning and obvious purpose of the 17th Amendment’s requirement of “one-Senator one-vote” is to prevent the unequal representation pattern already built into the Senate from getting any worse.
It’s time to enforce the “one-senator-one-vote” mandate of the 17th Amendment. The presiding officer of the Senate could act tomorrow by ruling on a point of order that the filibuster is unconstitutional. Alternatively, 51 Senators could find the courage to vote to end the practice. Barring such acts of courage and principle, the courts could intervene. I know, I know. Ruling that the Senate’s 60 vote requirement is a violation of the 17th Amendment’s “one senator-one vote” rule would take a judiciary willing to throw American democracy a constitutional lifeline, instead of sandbagging it with decisions like Bush v. Gore and Citizens United. But standing by while American democracy sinks slowly in the wild west is simply not an option.
Neuborne is a professor at NYU School of Law.