Healthcare Tests the Senate’s Credibility

By Steven Hill, November 30, 2009, Financial Times

America’s healthcare debate has been like a tennis match, bouncing from the Senate to the House of Representatives and back again. Now it is back in the Senate, as the US tries to end its status as the only advanced economy without universal healthcare for its people. One hundred senators from 50 states will decide what lives and what dies in healthcare reform.

With so much at stake it makes sense to ask: who are these 100 senators? Might that give us a clue what to expect from America’s upper chamber?

For a start, this “representative” body hardly looks or thinks like the rest of the nation. Only 17 senators are women, while the US as a whole has more women than men. Only five senators are Hispanic, black, or Asian-American, whereas one-third of Americans now belong to ethnic minorities.

A senator’s average age is an elderly 63 and most are wealthy millionaires. A famous 19th-century aphorism said: “It is harder for a poor man to enter the United States Senate than for a rich man to enter heaven,” and things are hardly different today. The senescent senators already have great healthcare benefits themselves, even while tens of millions of Americans do not. This powerful legislative body debating healthcare for the entire country is a patrician gerontocracy more closely resembling the ancient Roman Senate than a New England town meeting.

For those who are hoping that majority-rule might end this healthcare nightmare, it gets worse. With two senators awarded per state, regardless of population – a legacy of the deal struck in 1787 partly to keep the slave-owning states from exiting a fledgling nation – California, with more than 36m people, has the same number of senators as Wyoming with a half a million people.

That disproportional allocation has only deteriorated over time. When the Senate was created, the most populous state had 12 times more people than the least populous; now it has 70 times more people. In the 1960s, the Supreme Court established the groundbreaking principle of majority-rule based on “one person, one vote”, meaning that all legislative jurisdictions must be equal in population. Yet the US Senate completely violates this fundamental principle.

As a result, the 40 Republican senators represent a mere third of the nation, meaning Republican voters have more representation than everyone else. That over-representation is bad enough, but the bias goes even deeper. For the US has added an arcane layer of parliamentary procedure known as the “filibuster”.

The Senate’s use of the “filibuster” means you need a majority not of 51 votes but of 60 votes to stop unlimited debate on a bill and move to a vote. So a mere 41 senators can kill any legislation. The 40 Republican senators representing only a third of the nation need to peel away only a single conservative Democratic or independent representing a low population state such as Montana, Nebraska or Connecticut to torpedo what the senators representing the other two-thirds of the nation want.

Given such a vastly malapportioned and unrepresentative Senate wielding its anti-majoritarian filibuster, it is hardly surprising that minority rule in the Senate consistently undermines majoritarian policy. Besides healthcare, senators representing a small segment of the nation have thwarted renewable energy policy, sensible automobile mileage standards, cuts in subsidies for oil companies, tougher campaign finance reform, Congressional oversight of national security and war, and more.

Minority rule in the Senate has been with the nation for a long time; in fact, it is widely blamed for perpetuating slavery for decades (between 1800 and 1860, eight anti-slavery measures passed through the House only to be killed in the Senate). For all these reasons, two of America’s most revered founders, James Madison and Alexander Hamilton, opposed the creation of the Senate, with Hamilton warning in Federalist Paper number 22 that equal representation in the Senate “contradicts the fundamental maxim of republican government, which requires that the sense of the majority should prevail”.

Even though Democrats have a solid majority in the Senate, a majority is not enough. While Republicans warn against the Democrats attempting to bypass the filibuster by using “reconciliation”, a fast-track, 51-vote tactic the GOP frames as a “nuclear option”, Democrats should remind the public that there is nothing wrong with invoking simple majority rule in a body that is, in some ways, deeply unrepresentative and undemocratic by design.

So it is not just the senators’ credibility that is on the line if they fail to provide healthcare benefits to all Americans similar to those they receive themselves as senators. It is the very democratic legitimacy of the body in which they serve. How long are Americans going to ignore this constitutional defect?