Rethinking the Senate.

• Author: Baker, Lynn A.
• Position: Thirty-Ninth Annual National Student Symposium

To give you a sense of where I'm headed, the very first article I published about the Senate back in 1997 was titled, "The Senate: An Institution Whose Time Has Gone?" (1)

I do not know if I would term the Senate evil, but I would certainly term it deeply problematic today. I do think it is very important to have some protection for minority viewpoints. Much of my scholarship has sought to underscore the benefits of some measure of state sovereignty within our federal system. (2) I teach state and local government law. I am a big fan of state government. Yet, somehow, I end up in a different place with regard to the Senate than many other scholars. (3)

We are all aware that from the very beginning of our constitutional democracy the Senate has held an exalted place. For example, Article I's apportionment of representation in the Senate is the only provision among our current Constitution's dictates that cannot be amended pursuant to the ordinary procedures of Article V. (4) This provision was critical to getting the country off the ground, ensuring that the smaller states would feel protected and represented in the federal government. (5)

But there are two particular harms today that derive from the fact that the existing allocation of representation in the Senate provides small population states what we all understand to be disproportionate power relative to their populations. (6) The first is that the Senate systematically and unjustifiably redistributes wealth from large population states to small population states. (7)

Secondly, the Senate, systematically and to my mind unjustifiably, affords large population states disproportionately little power, relative to their shares of the nation's population, to block federal homogenizing legislation. (8) This is a blocking power that I might favor to protect minority viewpoints that minority states might have. The Senate will help provide the blocking power, but the problem is the allocation of that power: the large population states will be at a disadvantage relative to the small population states in protecting their own minority viewpoints in this way. (9)

Let me go into some detail now about each of these aspects of the Senate. The redistribution of wealth from large population states to small ones is not entirely the fault of the Senate's structure of representation. (10) That's what our panel's topic is, so I will focus on that. But I have elsewhere discussed, and have published significantly on this topic as well, that some of the problem is also what the U.S. Supreme Court has done since the Founding, by taking provisions of the Constitution such as the spending power and rendering essentially meaningless or nonjusticiable notions like "general welfare" that could provide constraints on congressional power. (11) We might similarly think of some of the other Article I limitations that, if enforced by the courts, might have helped to further reinforce state sovereignty. (12) But we are where we are, and the Supreme Court has played the role that it has, and we are here to discuss the Senate.

The disproportionate power that the Senate gives small population states is not going to affect the total dollar amount of what I will call federal pork barrel spending, but it is absolutely going to affect the distribution of that spending.

Consider that if the Senate alone could enact legislation, we would expect the total dollar amount that each state would receive over time to be roughly equal. And this would mean, for example, that if one billion dollars of special legislation or other benefits from the federal government were provided to the states, that each resident of California would receive $34 while each...