Reconstructing the Senate

This article was previously published as part of The Reconstruction Papers. The entire book is available in print and as a PDF.

The United States Senate is a problem. It has been a problem for a long time, in different ways, and for different reasons. Here, we’re concerned with the problem it creates for the Reconstruction of American democracy and the restoration of constitutional rule.

To understand how the Senate figures into the project of Reconstruction, we first need to fit it into a wider constitutional politics. That means we need an account of how “we”—meaning the broad anti-Trump coalition dedicated to constitutional restoration—should think about and approach the constitutional order. What rules and forms will help us achieve our ends? How should we organize power and into what institutions?

Answering those questions toward the end of Reconstruction sets an institutional reform agenda—like expanding the Supreme Court, cutting the presidency down to size, and similar topics explored in other essays in this collection. My focus is on the Senate—chiefly, how can it be reformed to aid in the task of Reconstruction?

It seems to me that any reform agenda for the Senate must address two challenges. The first is how to move its center of political gravity away from groups and political movements that oppose democracy and constitutional rule and toward those that affirm them. This is the task of reallocating power within the Senate. A reallocation is achieved by changing who is empowered by its rules, practices, and composition, such as by replacing supermajority rule with majority rule, as I discuss below.

The second, more easily missed challenge is how to sustain changed institutions, particularly while the changes are still new. Recent experience has discredited any answer to this question based mainly on written law or constitutional text; such parchment barriers are no match for motivated political actors, especially when they’re supported by allies in the judiciary. What’s needed is a rival group of political actors who are motivated to preserve, defend, and further these reforms to the Senate. The best place to situate such actors is within the Senate itself. Sustaining a reformed Senate therefore means securing an enduring Senate majority that will be incentivized to safeguard these power-reallocating reforms. Each of the reforms I consider addresses one or both of these challenges.

I am not an expert on the U.S. Senate specifically, or Congress as a whole. So there are points of procedure and chamber rules I may miss. I am, however, an expert in democratic theory and comparative institutions, and I bring a strong appreciation for how the contingencies of political history shape the rules governing collective life. As a result, my perspective on Senate reform avoids narrow legalism regarding rules and procedures. I aim to explore the widened horizon of possibility in American politics and institutions revealed by the past decade of U.S. political history. Reconstruction of the Senate, in particular, will require not just such imaginative openness but also a willingness to aggressively pursue and enact major reforms recommended by Reconstructionist constitutional politics. Under present circumstances, I trust the reader will at least entertain the attraction of such constitutional audacity and consider demanding it from those they listen to, vote for, or support in other ways.

In what follows, I first offer an account of the Senate’s dysfunction that will help those seeking its Reconstruction to better understand the task ahead of them. I then clarify what kinds of reforms I’m proposing, limiting the discussion to those that can be accomplished without constitutional amendment. In the rest of the article, I go through eight possible reforms that answer the two needs of reallocating power and entrenching reform.

Senate dysfunction

It is common to describe the Senate as dysfunctional, and indeed Congress itself as well. Yet to call an institution “dysfunctional” presupposes what it would mean for it to function well. Many commentators look to the Constitution as a guide to what an effective Congress would look like—for example, it ought to discharge its enumerated powers expeditiously and play an active role in the ongoing drama of constitutional conflict with the other two branches. But that document provides little direct guidance on the proper functioning of the Senate in particular.

The traditional explanation of the Senate’s dysfunction focuses on its anti-democratic features. This was Robert Caro’s approach in Master of the Senate, wherein he described the “armor” the framers had “bolted on” to the Senate to protect it from the whims of popular opinion. By allowing each state exactly two votes, regardless of population; vesting its members with six years of power, the longest elected term in American government; and—originally—having its members selected by state legislatures, they provided it with a resilience against the demands of any given moment.

Although the anti-democratic nature of the Senate is an important part of my thesis, it’s not the main issue. I argue that the problem with the Senate is not that it’s broken exactly but rather that the way it works doesn’t fit with the way the rest of the American political system has come to operate in the 21st century—namely, with two ideologically sorted parties in a polarized political landscape.

Every other major institution of the federal government—the House, with its strong system of rule by parliamentary majority; the Supreme Court, with its five-vote majority norm; and the presidency, with its one-man rule—can issue decisions without meaningful obstruction from minorities within it. This fits well with a two-party system where the parties have very different ideological aims and seek to advance them whenever they have the opportunity. The public sphere, defined by media outlets, civil society, and interest groups, has also become polarized in a similar manner, with increasingly clear alignment of outlets and organizations with one of the two coalitions. For better or worse, these institutions have adapted logically to a changing political world.

The outlier here is the Senate. It is usual to boil down its problems to the filibuster, but the filibuster is just the most visible part of a thoroughgoing system where majorities simply do not rule. Consider the most basic element of any parliamentary body: the calendar. The calendar determines what bills, nominations, motions, amendments, and treaties the Senate will take up on a given day, how much time it will have on the floor for debate, and how many and what kinds of amendments will be allowed. In the House, the majority controls a special committee—the Committee on Rules—that determines these questions, but the Senate’s Committee on Rules and Administration lacks such agenda control. Instead, the calendar is set by Unanimous Consent, or UC, which means in practice by agreement between the majority and minority leaders. Virtually all the business of the Senate is arranged by UC.¹

Moreover, the introduction of the two-track system in the 1970s to keep Senate business moving during filibusters created an entire parallel system of legislating that circumvents the civics-textbook version of how law is made in favor of an opaque, closed-door process that operates on unanimity rule and is ultimately passed by UC. We read in American government textbooks that bills are introduced in the House or Senate, sent to committees that seek outside input on them and debate them publicly, then sent to the floor for further debate, after which there is a final vote on passage. As polarization has increased, less lawmaking has been conducted by this Schoolhouse Rock! interpretation of the legislative process.

Instead, much lawmaking today occurs via a “hotline”—consisting originally of a phone line but today of a mass email or text chain—wherein every senator’s office is invited to chime in on bills, registering objections and requesting changes entirely outside the public eye.² Once a bill has cleared these objections (by the sole judgment of senators and their staff), it’s passed by UC. This highly consensual system generates considerable compromise, deliberation, and collegiality at the cost of transparency, accountability, and input from diverse stakeholders.³ Furthermore, it means that a greater share of ordinary lawmaking is conducted by supermajority—indeed, unanimity—rule.

Some readers will note that I’ve credited the Senate with encouraging “compromise,” “deliberation,” and “collegiality,” characteristics that are typically understood as great virtues in politics, even superlative ones. Indeed, deliberation in particular is viewed in many corners of political theory as the quintessential source of democracy’s value and legitimacy. Thus, my point is not that the Senate is intrinsically wicked or broken. Rather, it is that the overall workings of the Senate do not fit with the rest of the American political system. Its consensual, supermajority-rule mode of operation makes it an island of collegiality and compromise in a wider sea of partisan animosity and increasingly maximalist policy demands. It is, in other words, a fossil—an anachronism preserving the ways of another time, persisting past its expiration.

The way the Senate has developed and maintained a unique institutional culture in the present age, however impressive and even noble, makes it a source of systemic dysfunction in the wider political milieu. When everything else in the political system operates by fundamentally different rules, it generates an incompatibility that sabotages the entire American political system. The system can’t work according to the expectations of either a polarized mass public with programmatic demands or those attending collegial deliberation among trusted representatives. The incoherence of the system is incompatible with any consistent set of expectations about how it should operate.

Combining majoritarian institutions with one ruled just as much by minorities therefore doesn’t deliver salutary hybridity, with the advantages of both. Instead, it results in democratic abomination—a political system that can neither keep its promises nor even coherently explain its operations to those subject to it. This basic illegibility, on top of every pragmatic complaint about unsolved problems, has fatally undermined the legitimacy of our political system. And the outlier here—the immediate driver of incoherence—is, again, the Senate.

A potent paradox of reform

This understanding of Senate dysfunction—that it embodies an anachronistic deliberative collegium that clashes with a polarized, majoritarian political system—helps illuminate a key challenge to its reform: the senators themselves. To the denizens of the Senate, its collegiality and deliberativeness may seem the very pinnacle of how American government is meant to work. They may cherish its culture of compromise and seek to defend its current rules and norms against any external pressure to change them. This affirmation of the Senate as an institution gives rise to a uniquely potent version of the paradox of reform.

The paradox of reform refers to the fact that the people who are best equipped to institute reform are those who are empowered by the status quo, and as a result lack incentive or motivation to change it. Why would someone with authority under the present rules attempt to change them? It might cause them to lose that authority.

In the Senate, this is an acute problem because the non-majoritarianism that pervades the chamber serves to empower each individual senator to a remarkable degree. Take, for example, the “blue slip” system.⁴ Though in recent years it has been periodically abolished by Republicans and resurrected by Democrats, the system enabled senators to put holds on nominations, particularly on offices based in their states.⁵ This provided a major source of patronage for senators who could exert influence over who was chosen for home-state positions, particularly federal judgeships. The reliance on the hotline to develop, and UC to pass, a considerable amount of routine legislation further empowers individual senators, since any of them can put a hold on any bill and request changes. They can also put unilateral holds on consequential nominations of other kinds, as both Tommy Tuberville⁶ and Thom Tillis⁷ have recently done.

The combination of the Senate’s substantive virtues and its empowerment of individual senators spawns a superlatively potent paradox of reform. Senators needn’t invent specious excuses for preserving the chamber’s status quo to hide their self-interest. They can point to the deliberation, compromise, and collegiality they experience daily in their work to shrug off external calls for reform. The present Senate rules make every senator a power in the land and apparently do so in line with high democratic values. Why would any of them want to change it? Isn’t it their civic duty to secure such a valuable redoubt during a hurricane of polarization?

Here we run into one of those little tragedies woven into the fabric of the world. It might be better if the American political system as a whole operated like the Senate; if the deliberative democrats are right that substantive deliberation is what democracy needs more of, then the conclusion seems irresistible. Yet instituting such a change is a far, far more difficult thing to conceive, let alone accomplish, than bringing the Senate into conformity with the rest of the political system. It is tragic, then, to insist on Senate reform, because something valuable is likely to be lost in the transition.

Moreover, and more to the point I am intent on emphasizing here, the fact that the Senate’s current form has value makes resistance to change by senators who have become socialized to its ways more understandable and, likely, more tenacious. Fighting against those who have some justice on their side, even if not nearly enough to sustain their position, makes for an even more difficult paradox of reform. On this point, I diagnose but offer no prescription beyond the hope that the stakes of the wider political context might at last get through to a Senate majority. One of the great scholars of Congress, Sarah Binder, seems to see movement in that direction.⁸ The task of propelling enough senators toward more substantive reform requires Max Weber’s “boring of hard boards”—the difficult work of politics.

The horizon of reform

There are several possible reforms that I will not explore because the path to realizing them is far more difficult than any of those outlined below and because positing it opens a wider vista of transformation than I can treat here. I do not, for instance, consider formally abolishing the Senate (as Osita Nwanevu⁹ and Thomas Geoghegan¹⁰ have suggested in separate works) or transferring its formal powers, such as the confirmation of presidential nominees to executive and judicial offices or the ratification of treaties, to the House or some other body. Nor do I consider turning the Senate into a “lottocratic” chamber of randomly selected ordinary citizens (as Tee Malleson¹¹ has suggested) or a national proportional representation chamber, which would allow a multiparty system to take root in that house.

I do not explore formally manipulating the seats or proportionality of the Senate. That might include giving all states more senators who might be elected in multiseat elections—another way of encouraging multipartyism—or even just upping the number of senators per state to three so that every state has a Senate election every two years, enabling swifter adjustments to the chamber’s composition in response to electoral results. One might also improve Senate proportionality to population without mirroring it perfectly by giving larger states just a few more senators, as in the German upper house (“Bundesrat”), wherein states have between three and six votes depending on population. David Froomkin and A. Michael Froomkin examine several other variants of fundamental reform like these.¹²

As the German example suggests, there are many possible ways to restructure the Senate that would emulate upper houses in other democracies. The Senate is, after all, an international outlier. In no other democracy is the upper house more powerful than the lower house, as the Senate arguably is due to its role in approving nominees and ratifying treaties, since the lower house is typically more representative of the people.

Directly adapting such different structures to the Senate would, if possible at all, require at least a two-step amendment process that repeals and replaces Article V of the U.S. Constitution. In addition to specifying how the Constitution can be changed, Article V entrenches the Senate’s current “equal suffrage” of the states against the ordinary amendment process by needing the unanimous consent of all states to change it. Implementing any of the reforms I just mentioned (other than upping the number of senators per state) would necessitate eliminating this protection and then further amending the Constitution to enshrine the specific reform. Were we to engage in that level of imaginative restructuring, we might as well redesign the entire American constitutional system. Even reforms that merely strip the Senate of some of its present powers undertake a more basic kind of constitutional remaking than I shall consider.

So, then, the reforms I will elaborate on take bicameralism, the Senate’s formal enumerated powers, and the present arrangement of two directly elected senators in each state as fixed points. Let’s see how much we can achieve in terms of a Reconstructed Senate while leaving these features in place. Below is the list of reforms I will explore, shading roughly from those that are incremental, precedented, and well attested by established Senate experts to more radical and speculative ones. It might be surprising how far we can get, particularly if we allow ourselves a measure of constitutional audacity.

• Reform the filibuster
• Abolish the filibuster
• A majoritarian Senate
• Gerrymander the Senate
• Effective unicameralism
• Proportional weighted voting (on procedural matters)
• Proportional weighted voting (on final passage)
• Senate-delegates

Reform the filibuster

The easiest and most well-trod path to reform of the Senate involves changing the filibuster without abolishing it. Proposals for filibuster reform take two main forms: those that (1) transform it from a tactic that can entirely block a bill into one that can merely delay it and (2) create exceptions to the kinds of bills to which it applies.

Currently, the filibuster operates as a de facto sixty-vote supermajority threshold that prevents most ordinary legislation from reaching a final vote. Overcoming a filibuster requires the filing of a “cloture” motion that would, with the support of sixty senators and after thirty hours on the Senate floor have elapsed, end debate on a bill and enable moving to a vote on passage by majority rule. Without the sixty votes for cloture, a filibustered bill would never come to a final vote, effectively killing it. Perhaps the most minimal change that would overhaul the operation of the Senate is turning the filibuster from a bill-killing parliamentary tactic to one that can only, at best, delay a final vote on a bill by majority rule.

This change to Senate procedure is the central recommendation of Sarah Binder and Steven S. Smith.¹³ They aim to preserve the opportunity for substantial debate in the Senate by trading time for a lower vote threshold—the fewer votes there are for a measure, the more delay should be possible—yet that delay should be finite and majority passage always possible. The basic idea is that majority passage should always be possible in exchange for a specific duration of debate. They recommend a ratchet in which the more time passes in debate, the lower the threshold for proceeding to a final vote.

Using today’s thirty hours of pre-cloture debate as a baseline, they suggest that a cloture motion supported only by a simple majority might require fifteen days of debate, with several intervening durations corresponding to different vote totals. So the shortest time to final passage would remain thirty hours for sixty votes. But with fifty-seven votes, a cloture motion might require five days of debate; with fifty-four, ten days of floor time, and so on. The precise exchange ratios between time and votes can be fixed by the actual agents of reform, but the basic trade is floor time—i.e., delay—for a lower vote threshold.

The main trade-off of this approach stems from the fact that that floor time is finite, so there is only so much business that might be conducted under this proposal by a majority facing an obstructionist minority. Requiring two weeks to elapse for a given proposal to come to final majority vote, as they suggest, rather than the two legislative days of the current cloture threshold would narrow the legislative agenda any given Congress could enact in its two years of life. Yet compared with the status quo, this reform would widen legislative possibilities. The cost would be formalizing delay as a parliamentary tactic and preventing majorities from acting swiftly.

Leaving such a dilatory reform aside, during the modern period the most common way to reform the filibuster has been to create exceptions to it, either by statute or by setting a new Senate precedent via majority vote. The reconciliation process—which allows tax and spending bills to be passed by a Senate majority without being subject to a filibuster—is the most well-known statutory exception to the filibuster, but it is far from the only one. Molly Reynolds found that Congress inserted no fewer than 161 exceptions to the filibuster in statutes between 1969 and 2014.¹⁴ These legal provisions make future legislation of a specified kind exempt from Senate filibuster. Such “majoritarian exceptions” prevent specific actions—like oversight of the executive—or certain policy areas—like the budget—from being blocked by a filibuster.

Exceptions created through the Senate majority setting a new precedent have been far fewer yet more dramatic. Majority Leader Harry Reid famously led such a successful effort to “nuke” the filibuster for judicial and executive nominations, other than the Supreme Court, in 2013. Republican obstruction had blocked several well-qualified Obama nominees from coming to a final vote. After considerable delay and failed negotiation, Reid and the Democratic majority voted that cloture would not require sixty votes for sub–Supreme Court judicial appointments, but rather only a majority—as Binder puts it, “literally, Democrats reinterpreted ‘three-fifths’ to mean ‘simple majority’ when applied to nominations.”¹⁵ This audacious wordplay set a new precedent under which all subsequent nominees have been appointed.

Forward-looking reforms of the Senate to the end of Reconstruction could create new statutory or precedential exceptions that enable ongoing democracy-protective activity. For instance, voting-rights bills that the Congressional Research Service or some other expert body certifies would increase turnout might be made exempt from the filibuster using either strategy. Another possible example would be a majoritarian exception that makes rejecting decisions of the Supreme Court likewise immune. If enacted legislatively, this judicial-oversight exemption would mirror the majority of those already in existence that make oversight of the executive easier, such as majority votes to reject trade deals or rescind executive-branch regulations. A mechanism for rejecting Supreme Court decisions would strengthen Congress’s hand against an overweening “imperial” Court.¹⁶

The main downside of this approach to Senate reform is that both kinds of exceptions are insecure. Ordinary legislation can be repealed by any subsequent law, and precedents can be repealed by subsequent Senate majorities. Legal exceptions would also almost certainly have to be enacted over a filibuster of the underlying legislation. Although historical precedent suggests this is far from impossible, a law that was explicitly part of the Reconstruction agenda is, as they say, a horse of a different color. Enemies of democratic and constitutional restoration in the Senate would doubtless deploy every tool of obstruction left to them to prevent the success of that agenda.

Abolish the filibuster

The likelihood of obstruction brings us to the abolition of the filibuster. Any Senate majority prepared to create enough of the right kind of majoritarian exceptions to achieve Reconstruction would no doubt be receptive to outright abolition. Indeed, as of this writing, Senate¹⁷ Democratic¹⁸ candidates¹⁹ and incumbent Democratic senators have become more supportive of abolishing the filibuster. It is increasingly seen as an advantage—even a litmus test—in Democratic primary campaigns to be publicly committed to this stance. The emerging coordination around filibuster abolition makes it the most realistic path to Senate reform foreseeable at this moment—partly because those who say they support abolition of the filibuster would likely also support filibuster carveouts of the kind just discussed.

The mechanics of abolishing the filibuster help illustrate what the next step in Senate reform might look like: a fully majoritarian Senate. Complete abolition would likely occur in much the same way as Reid’s “going nuclear.” This process of creating new precedents, over the ruling of the presiding officer and Senate parliamentarian if necessary, foreshadows what majority rule in the Senate might entail.

A majoritarian Senate

Establishing enough majority-rule precedents to cover most matters before the Senate would help transform the body as a whole into a majoritarian one. Solidifying and extending this transformation could be done if the Senate voted to change its standing rules to formally eliminate supermajority thresholds for cloture, though the process of changing the Senate’s rules technically requires a supermajority. A determined Senate majority could nonetheless change the rules by going nuclear. The possibility of this is key for many of the subsequent suggestions I’m going to make, so it’s worthy of elaboration.

Each house of Congress has extraordinarily broad power to set and change its own rules, per Article I, Section 5 of the Constitution.²⁰ This is a feature shared by nearly every parliamentary body in the world—they all make the rules by which they conduct their official business. In practice, this usually means the majority of each body sets its rules. For most parliamentary bodies, those rules include procedures that empower the chamber’s majority to control the agenda and direct the body’s order of business. In addition, if the majority finds that the rules it has inherited are inadequate to its agenda, it can change them. But as we’ve seen, this is not how the U.S. Senate operates.

Its calendar is set by UC, meaning effectively by bipartisan agreement, so the majority does not have unilateral agenda control. Nor does it typically dictate the rules by which proposed pieces of legislation will be considered, such as whether, how many, and what kinds of amendments will be considered or how much time will be dedicated to debate. These matters are what constitute “the calendar.”

A majoritarian Senate would replace this system with one wherein the majority could control the calendar in this broad sense unilaterally—including and especially by precluding unlimited debate. The Senate’s rules committee could be empowered like the House’s to control the calendar, for instance. UC would be discarded for all but the most trivial matters, and floor time devoted to debate would be negotiated on a bill-by-bill basis or perhaps limited by the reestablishment of a previous question motion to end debate by majority vote.

Compared with the contemporary operation of the Senate, these reforms would be an earthquake because they would strip senators of the immense individual significance I discussed above. Yet they would make the Senate operate more in line with conventional practice, not just in the House and parliamentary bodies the world over but even in state legislatures. According to a recent analysis of all ninety-nine state legislative chambers (state houses and senates) by James Curry and Robert Oldham, seventy-two chambers allowed debate to be ended by a simple majority vote; only twenty-seven chambers across twenty states had a U.S. Senate–style supermajority rule.²¹ Curry and Oldham also found evidence of U.S. Senate–style minority obstruction in only nine of those twenty states, putting the Senate in a minority of a minority of systematically anti-majoritarian legislative chambers.

Gerrymander the Senate

Probably the second most historically common strategy to change the operation of the Senate after filibuster exceptions is to gerrymander it—by adding new states. “Gerrymandering the Senate” may sound odd right now when it has been more than sixty years since the last state was added to the Union and incidents of Senate gerrymandering are even further in the past. Yet it is a venerable practice that comprised one of the key strategies for navigating the issue of slavery before the Civil War. After all, the antebellum practice of pairing admission of one new slave state with that of one new free state was specifically aimed at preserving the balance of power in the Senate.

Today, “gerrymandering” is something that has only meant (at the federal level) redrawing the lines of House districts. In the past, Senate gerrymandering meant admitting as states territories of the United States with a specific partisan alignment but that would not otherwise have merited admission, typically because of their small population. Nevada, admitted by a Radical Republican Congress during the Civil War, is a case in point. Nevada’s population at admission was less than a third of the population that merited a House seat at that time. But, as argued by Charles Stewart and Barry Weingast, adding the solidly Republican Nevada in 1864 would both ease Lincoln’s reelection by adding reliably Republican Electoral College votes and secure another state willing to abolish slavery by ratifying the Thirteenth Amendment.²²

Admission politics of this narrow partisan variety governed the addition of the rest of the Western states through the late 19th and early 20th century. One Democratic congressman quoted by Stewart and Weingast went so far as to say, regarding an 1888 admission bill, “If I were in charge of this measure the plan I would pursue would be to exclude the Republican Territories till the next Presidential election and admit all the Democratic Territories.” The reason there are two Dakotas is that the singular Dakota territory had long been reliably Republican, and dividing it in two doubled the Senate advantage Republicans would derive from its admission.

I propose a similar exercise of Senate gerrymandering focused on Washington, DC. Admitting DC as a state has long been supported by Democrats and opposed for just as long by Republicans, reflecting the familiar partisan pattern in the history of admission politics. Yet the imperative of constitutional restoration—and locking in an enduring pro-democratic majority—raises the stakes of this opportunity such that Democrats should consider not just pushing through DC statehood but also dividing Washington, DC, into several new states and admitting them all simultaneously.

I suggest, at minimum, dividing DC into four new states—North, South, East, and West—to be named more specifically by the conventions called to draft constitutions for them.²³ Seven or ten admissions would also not be unwelcome—though perhaps 127, as a Harvard Law Review Note recommends, would be too much. Seven DCs, dividing the population evenly, would have roughly 100,000 residents each—more than Nebraska (1867) or Idaho (1890) had at admission—while ten DCs would each have 70,000, which would still be more than either Nevada (1864) or Wyoming (1890) had.²⁴ But of course, these numbers should be immaterial. The entire premise of the Senate is that population is irrelevant for representation. I propose to work with that.

There are at least three non-partisan, publicly legible reasons to admit DC as several new states. First, its deprivation of representation has been of such superlative duration that its people are due representational reparations. This group of Americans has been deprived of full membership and equal citizenship in the Republic since its founding—meaning generations have paid entire lifetimes’ worth of taxes without any say whatsoever in how they’re spent, and governed as if they were subjects, not citizens. As DC’s license plates have long reminded us, “taxation without representation” is a fundamental betrayal of the American creed, and it’s one for which its people are owed restitution in the same coin: greater representation.

Second, the people of DC are mostly urban dwellers, living lives reflective of the vast majority of Americans in non-rural areas—80 percent of them in 2022.²⁵ Admitting several new states made up of such people would fundamentally rebalance the constitutional system to provide the country’s vast urban population with more equitable representation in the Senate. It is widely remarked that the Senate represents “empty land” rather than people, indicative of the scandalous reality that 600,000 Wyomingites matter just as much as 40,000,000 Californians. (One might alternatively say the scandal is 650,000 Vermonters mattering as much as 32,000,000 Texans.) Adding several DCs would enable these new small, urban states to represent people, and the kind of people Americans overwhelmingly are—urbanites, rather than land.

Third, Washington, DC, is among the most ethnically diverse localities in what is already a broadly diverse country. Admitting several DCs would breed a Congress with more members chosen by state electorates that look like the country as a whole. A key problem with the Senate is that low-population states, particularly but not only in the West, are demographically unlike the vast majority of the nation, being much more ethnically homogeneous. The overrepresentation of these states in the Senate ends up putting many more resources and power behind the concerns of this group and starving the larger and more diverse groups of the equal concern they merit.

In addition to the multiple DCs plan, statehood should be offered not only to Puerto Rico but also to all the peoples and territories ruled under the American flag—the U.S. Virgin Islands, Guam, American Samoa, and the Northern Mariana Islands.²⁶ Understanding the complicated colonial histories of these lands and the people who reside there, it is not appropriate to enfold them in the quotidian dramas of mainland American politics by decreeing that they shall become states. By contrast, denizens of DC have repeatedly made their dreams of statehood very clear. But it is both shortsighted and unjust to neglect the territories in a project of constitutional restoration; opening wide the agenda of admission politics to include all those subject to American sovereignty makes any subsequent narrowing to just multiple DCs or DCs + Puerto Rico more palatable should a constitutional bargain prove necessary. Pursuing an expansive admission politics could help to change those politics on the other side of a new constitutional bargain.

Effective unicameralism

Moving on to less precedented measures, I turn to the prospect of enabling the Congress to operate as if it were unicameral, with power concentrated in the House of Representatives. The House has always been more democratically responsive to the needs of the American people. Major policies more purely reflective of the results of the most recent national elections have routinely originated in, and been passed by, the House, only to be stymied in the Senate. This is just to restate my basic objection that the Senate doesn’t fit into the American political system, with added emphasis on how it undemocratically neutralizes the consequences of elections. How, then, might we reduce the Senate’s role in the constitutional system sufficiently to allow the House to pass laws over its obstruction?

The most straightforward approach would be changing the Senate’s rules to deem all measures passed by the House as having received the consent of the Senate by default. This basic measure might be paired with a provision allowing sixty votes in the Senate to block a House-passed bill, enabling a supermajority to veto House legislation in a poetically pro-democratic inversion of the filibuster. Even a lower threshold like fifty-five votes for such a veto would be an almost unimaginable improvement over the status quo. In either case, this reform would fundamentally alter the balance of power in Congress, moving it structurally toward the national majorities represented in the House. Yet it would also retain a core advantage of bicameralism, since the upper house would still have a veto for those matters where a large Senate majority disagreed.

A further refinement to this measure for effective unicameralism might turn the Senate’s veto from an absolute one—capable of rejecting a measure entirely—to a suspensive veto akin to that exercised by the House of Lords in the United Kingdom. The Lords’ veto may delay most non-budgetary legislation, but the House of Commons may override it with another vote, after a certain duration of time elapses (usually one year). A suspensive Senate veto might force the House to vote a second time to enact a law over its head, but perhaps only if a period of at least, say, one month passed between the Senate’s rejection and the second House vote. This would facilitate the kind of deliberation bicameralism is said to encourage by creating a concentrated span of time for debate and for public pressure to be exerted.

A third method of effective unicameralism comes from the French parliamentary experience: joint sessions of Congress wherein important matters are voted on by both chambers simultaneously. Joint sessions of Congress in the United States have a long history of being almost purely ceremonial.²⁷ They are most commonly occasions for the president or a foreign leader to address Congress, presidential inaugurations, and the counting of electoral votes for the presidency. (One recent case of the third example unexpectedly became more than ceremonial.)²⁸ Substantive legislative business has never been conducted at a joint session of Congress. Indeed, doing so may seem to violate underlying principles of bicameralism and even likely the rules of each chamber that define what it means for the chamber, as a constitutional body, to act.

What I propose here is a departure from this long history, but it is not one without precedent in other established democracies, nor is it explicitly prohibited by the U.S. Constitution. The president of France has the power to convene Parliament in a joint session to consider an amendment to its Constitution.²⁹ If three-fifths of the assembled parliamentarians from both chambers vote in favor, the amendment is approved. This provision was used by President Emmanuel Macron to constitutionalize a right to abortion in 2024.³⁰ 

A key affordance of this procedure is that it enables large majorities in one chamber to make up for smaller ones in the other. This ought to benefit the larger lower house, since its majority is more likely to make up for the lack of a requisite majority in the smaller upper house. Yet it retains the advantages of bicameralism since the joint session is an exceptional occurrence. It also reduces delay and opportunities for obstruction. In the French case, the joint vote streamlines the amendment process by circumventing a referendum that would be required if each house passed the amendment separately.

An American version of this institution might be triggered either by presidents, in line with French practice, who might seek to bypass obstruction from one of the houses, or by request or order from one house to the other. Legislative invocation is more consonant with America’s need to strengthen the legislative branch vis-à-vis a dictatorial executive and imperial Supreme Court, so I’ll focus on this option.

The way it might work is that one house votes for, or its leadership requests, a joint session and sends the other several possible dates, from which it must pick one. The agenda of this session would be included in the initial communication and consist of no more than one substantive matter. If members of the invited house fail to attend, they might be rounded up via the same processes each house uses separately to defeat quorum busting.³¹ The coerciveness of this process is alleviated by the fact that both chambers have the power to invoke it. Therefore neither one has an incentive to make it excessively onerous on the other, since the shoe might be on the other foot in the future. Indeed, the real danger is that neither house will choose to use it as often as the business of the nation requires it.

A compulsory joint session would enable a periodically unicameral Congress to more energetically and expeditiously exercise its Article I powers, offsetting the structural advantages the president and Supreme Court have made the most of in recent years. Yet limiting the joint session’s agenda to a single substantive matter would nonetheless restrict this authority, as would the habitual independence of each house and jealousy of their separate power and authority. It would also respect bicameralism in general.

Procedures for holding a joint session might either be spelled out in a statute governing the process and its rules or established in the formal rules of each chamber—an easy enough task in the House, but in the Senate, such a formal change would require a two-thirds supermajority, or else the act of going nuclear. A formal constitutional change would in no case be required. Indeed, the joint session might be seen as merely an extension of joint conference committees, tasked with resolving differences in House- and Senate-passed versions of bills, and coordinated by like-minded leadership of the houses.

Proportional weighted voting (on procedural matters only)

I turn now to reforms that would address one of the deepest critiques of the Senate: that giving each state the same weight violates fundamental principles of republican liberty, equality, and democracy. The first of these reforms involves weighting the vote of each senator in procedural matters to the population of their state, including cloture votes and changes to the chamber’s rules. In this proposal, each senator’s vote on the floor or in committee on any procedural matter would be multiplied by the population of their state. Whether a measure passes would depend on whether votes representing a majority of Americans support it, regardless of how many physical senators do.

The core idea here is that proportional or weighted voting is used merely for procedural matters. This preserves existing supermajority thresholds while shifting whom they empower, making this change a minimal one in a sense. Because the reform retains both the other traditional structures of Senate procedure and a “physical” majority for final passage votes, it might be viewed as a compromise reform that moves the Senate squarely toward majoritarianism without transforming the kind of body the Senate is, as would thoroughgoing majoritarianism. It is a move toward majoritarianism in a fundamentally different way than that discussed above.

In this plan, it is not a majority of senators but a majority of Americans represented that matters, at least in procedural votes. The majority would not need to seize control of the calendar, or revolutionize the rules, or vastly strengthen the rules committee. The conduct of business and customary power of individual senators could remain largely the same. It is thus an incremental reform, changing only the weight of each vote, and only in the decisions that precede final passage. The reform-paradox-inducing bases of individual senators’ power would be shifted rather than eliminated.

Despite this incrementalism, proportional procedural voting would allow a majority of Americans to have much more control of the Senate agenda. A small minority of the country would no longer be able to prevent even the consideration of the majority’s priorities. Yet that minority would not be stripped of power entirely. Due to its retention of the physically equal final vote, the earlier processes of agenda setting and bill drafting would anticipate and take its concerns into account. But because all final votes in the Senate are carried by simple majorities (of physical senators, under this proposal), physical minorities could no longer stop action. The filibuster could be cleared by senators representing 60 percent of Americans rather than sixty physical senators.

This change might be accomplished by amending the formal Senate rule or via a new precedent (going nuclear) that says a sixty-vote supermajority shall hereafter mean “senators representing at least 60 percent of Americans.” It could perhaps be bootstrapped by having a cooperative presiding officer rule that a majority counts as a number of senators representing a majority of Americans, and having that ruling confirmed by just such a majority. Such a maneuver would circumvent the need to get an old-style majority of physical senators on board, since this reform would shift power away from many of them.

Proportional weighted voting (for all matters)

Moving this measure forward one final step would almost completely fulfill the dream of democratizing the Senate: introducing population-weighted voting to all matters in the chamber, including final passage. This proposal has all the merits of procedural weighted voting but intensifies it to effectively provide representative democratic power to each senator in perfect proportion to the number of Americans they represent. It would enable the matters that concern Americans to receive the consideration they deserve based on how many are affected rather than the population density of where they live. It also allows preservation of the filibuster and other procedural rules, shifting only who is empowered by them.

I have posited that the Senate has nearly absolute power over its rules and that many of my suggested reforms might be made through changing those rules, including weighted procedural votes. This change, though, to a weighted vote on final passage seems to be one that raises constitutional difficulties that cannot be swept under the rules rug. Specifically, Article V guarantees “equal Suffrage” to each state in the Senate absent all states’ affirmative agreement to forgo it. This guarantee has traditionally been interpreted to require every state to have the same number of votes in the Senate. (This would notably allow each state to have more than two senators, so long as it was the same number for all. But that would require an ordinary constitutional amendment.) Weighted votes on final passage would appear to violate this guarantee.

In anticipation of a legal challenge to such a rule change, legal scholars might develop a body of jurisprudence examining how the idea of “equal Suffrage of the states” should be interpreted to support it. Two approaches might be explored. The first would explicate the meaning of the word “state” in the republican tradition: A state is just the people who compose it. It is not a mystical entity apart or above them; it is a legal fiction representing them in their collective capacity. “Equally” enfranchising a state could only mean equally enfranchising the citizens who make it up. “Equal Suffrage of the states,” then, makes the most sense as a promise that the citizens of each state—being the “state” itself—will be equal to one another, which weighted voting by senators accomplishes.

A parallel line of support might examine the jurisprudential and political-theoretical implications of the Seventeenth Amendment, which made senators popularly elected rather than appointed by their state legislatures. This amendment has long been identified as a fundamental one that abandoned one of the core features of the framers’ Constitution. Instead of being emissaries of sovereign states, appointed almost in the manner of ambassadors, senators became democratic representatives like any other elected officials.

A natural implication of this transformation of whom senators represent is a corresponding transformation of the equal-suffrage clause. Through the Seventeenth Amendment, senators represent the people of their state, who elect them, not the state governments that used to appoint them. By extension, “equal Suffrage of the state” in the Senate takes on a new meaning because the referent of the “state” has changed. With the Seventeenth Amendment, the agent who is “enfranchised equally” in Article V is no longer the state government but rather the people of the state.

But the equality of the people of one state (that is, the citizens residing there) versus the people of another state (meaning the citizens who live in that state) is most naturally expressed by the rule that all individual citizens receive equal weight. It likely even requires it. This interpretation could derive additional support from the Fourteenth Amendment’s citizenship clause, which establishes equal citizenship across all Americans, regardless of their state of residence. Weighted voting among senators might, in fact, be the only way to guarantee equal suffrage of the states in a proper post–Seventeenth Amendment sense that also squares with the Article I directive of two senators per state.

Much more might be said about these arguments, but I am not a legal scholar and leave its development to those with the proper expertise. Suffice it to say, there is work to be done to build up arguments that might clarify why this approach to reforming the Senate is indeed the best expression of the United States’ deepest constitutional commitments as revealed in its historical movement toward equal democracy.

All that said, these reforms are kludges. They have no precedent elsewhere that I know of. Indeed, proportional weighted voting flies in the face of long parliamentary tradition across the world that gives each member equal dignity within the chamber—expressed ultimately in their equally weighted vote. Yet proportional weighted voting is likely the best we can do to bring the Senate in line with basic American values of fairness and equality within the bounds of bicameralism, two senators per state, and a Senate with the same powers as today.

Senate-delegates

Sustaining a reformed Senate through the means relied upon here—by changing its precedents or formal rules, or by statute—might be accomplished by manufacturing enduring majorities to support it. But where would these majorities come from? Senate gerrymandering is one answer. Changing the membership of the Senate more expansively is another, but it would require taking the double-amendment route discussed above. There is, however, another way to alter the composition of the Senate without amendment or gerrymandering: with Senate-delegates, created by statute, who represent America’s densely populated areas.

The idea here extends the practice in the House of giving territories “delegates” who can participate in many legislative activities but have no final votes on legislation and only limited rights to participate on the floor. Giving areas controlled by the United States but lacking formal congressional representation a voice in the legislature is one of the oldest practices of Congress, going back to the very first one. According to Elliot Mamet and Austin Bussing, such non-voting representatives are a unique American innovation that helped give unincorporated territories a formal but unequal place in Congress.³²

I propose that Congress pass a law that allows any municipality with a population past a certain threshold to receive one Senate-delegate who will have all the powers of a United States senator except for voting on final passage. Like House delegates, they would be able to sponsor and co-sponsor legislation, give speeches and make motions on the floor, conduct oversight, participate fully and equally in committee hearings and party caucuses, intercede with federal agencies for their constituents, and rally and communicate with the public with the authority of their office. Such a proposal for a Senate-delegate for Washington, DC, was included in the 1973 DC Home Rule Act passed by the House before it was stripped in a conference committee, as Mamet details.³³ The delegate from Guam introduced a similar proposal for U.S. territories in 2022.³⁴

The one major departure of Senate-delegates as I imagine them from those in the House as well as from prior proposals is that they should be empowered to vote on procedural matters before final passage—and, most important, on changes to the Senate rules. As Mamet shows, the exact contours of House delegate powers have changed over time;³⁵ he elsewhere recommends ways to improve their representative powers.³⁶ This mutability suggests no general problem with adapting the role to the needs of Reconstruction.

What should the population threshold for a Senate-delegate be? According to the U.S. Census, there are roughly seventy municipalities that would qualify for a Senate-delegate with a population threshold of 300,000.³⁷ At 250,000, the number is closer to ninety. These both seem reasonable. If we worry that an absolute threshold might balloon the Senate’s numbers over time, an alternative approach would empower the top sixty-five (or seventy, or one hundred) cities by population. One hundred is a good anchor to give the body a symmetrical number of delegates to full members.

To forestall concerns about citizens of cities getting “extra” Senate representation, and in a poetic nod to Senate history, Senate-delegates might be appointed by the municipal governments rather than directly elected by the people of the cities. Of course, city governments might have non-binding advisory elections, as many states did prior to the Seventeenth Amendment, and appoint the winners.

Also assuaging a concern about double representation is the fact that Senate-delegates are not full members of the chamber and can’t vote on final passage. Here, I leverage Mamet’s compelling argument that House delegates are intrinsically unequal to full members and fail to fully express the democratic equality of those they represent.³⁸ This inequality enables Senate-delegates to uniquely stand in the ambiguous gap between equal representation of states and of individual citizens.

Absent any of the other reforms on my list, Senate-delegates from city governments would still provide the urban areas of the country the voice they sorely lack in the Senate today, similar to a multiple-DCs Senate gerrymander. Indeed, due to Senate practices that empower individual members, like the hotline, Senate-delegates would be considerably more powerful than House-delegates under current arrangements. Combined with weighted proportional voting, however, Senate-delegates would nearly cobble together a population-proportional Senate, with each state having a “delegation” composed of its two full U.S. senators plus its urban Senate-delegates, who would naturally cluster among more populous states.

Yet Senate-delegates’ most crucial affordance for my proposals and for the project of Reconstruction is that they would be able to vote on the rules and precedents of the chamber and therefore could act as a bulwark to stabilize reforms encoded within them. Senate-delegates appointed by America’s cities would presumably want to prevent a return to the Senate of equally weighted states and a supermajority filibuster. Whatever iteration of Senate reforms Reconstruction ends up weaving into its rules or precedents, or into federal law, Senate-delegates would likely be reliable votes to preserve them.

Reconstructing the Senate will not be easy, yet it is not the impossibility it is often made out to be. There are numerous axes of reform that might be pursued, requiring more or less constitutional audacity. My aim has been to populate the imaginations of those who would rebuild American democracy with respect to these options. I leave to them the task of deciding which best fits their vision of a Reconstructed America.

Author’s note: I would like to thank Elliot Mamet for substantial assistance on the precedents for Senate-delegates and help in clarifying the idea. I would also like to thank Kim Moxley for her guidance regarding existing research on the Senate. All errors and omissions remain my own.

1. Stanley Bach, “The Legislative Process on the Senate Floor: An Introduction,” 2nd ed. revised and updated by Valerie Heitshusen, Congressional Research Service, last modified December 1, 2006.
2. “Holding Spending,” Oklahoma State University Libraries, accessed May 22, 2024.
3. “Bypassing Senate Committees: Rule XIV and Unanimous Consent,” Congressional Research Service, last modified December 27, 2011.
4. Benjamin S. Weiss, “What Are Blue Slips? The Century-Old Senate Tradition Trump Wants Trashed,” Courthouse News Service, last modified July 30, 2025.
5. Mitchel A. Sollenberger, “The History of the Blue Slip in the Senate Committee on the Judiciary, 1917–Present,” Congressional Research Service, last modified September 24, 2003.
6. Mary Clare Jalonick and Lolita C. Baldor, “Why a Single Senator Is Blocking U.S. Military Promotions and What It Means for the Pentagon,” AP News, July 15, 2023.
7. Alexander Bolton, “Tillis Continues to Hold Fed Nominees Despite Latest Offer from Treasury,” The Hill, February 13, 2026.
8. Sarah Binder, “Marching (Senate Style) Towards Majority Rule,” The Forum 20, no. 3–4 (January 2022): 355–372.
9. Osita Nwanevu, “The Best Way to Fix the Senate? Abolish It,” Slate, August 12, 2025.
10. Thomas Geoghegan, “Abolish the Senate,” The Baffler, no. 53 (September 2020): 24–35.
11. Tee Malleson, “Beyond Electoral Democracy,” Jacobin, May 29, 2018.
12. David Froomkin and A. Michael Froomkin, “Saving Democracy from the Senate,” Utah Law Review Vol. 2024, no. 2 (2024): 397–468.
13. Sarah A. Binder and Steven S. Smith, Politics or Principle? Filibustering in the United States Senate (Washington, DC: Brookings Institution Press, 1996).
14. Reynolds, Molly E. 2017. Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate. Washington, D.C.: Brookings Institution Press.
15. Binder, “Marching (Senate Style) Towards Majority Rule.”
16. Mark A. Lemley, “The Imperial Supreme Court,” Harvard Law Review Forum 136, no. 1 (November 2022): 97–116.
17. David Weigel, “A Christian Texas Democrat on His Unorthodox Campaign for Senate,” Semafor, September 9, 2025.
18. Susan Rinkunas, “Maine Could Determine Abortion Rights for the Nation. Why Aren’t Reproductive Rights Groups Acting Accordingly?,” Slate, March 17, 2026.
19. Ashleigh Fields, “Stratton Would ‘Absolutely Support’ Abolishing Filibuster in Senate,” The Hill, March 19, 2026.
20. “Congressional Proceedings and the Rulemaking Clause,” Constitution Annotated, Congress.gov.
21. Reynolds, Exceptions to the Rule: The Politics of Filibuster Limitations in the U.S. Senate.
22. Charles Stewart III and Barry R. Weingast, “Stacking the Senate, Changing the Nation: Republican Rotten Boroughs, Statehood Politics, and American Political Development,” Studies in American Political Development Vol. 6, no. 2 (Fall 1992): 223–271.
23. It is reasonable to worry about how multiple DCs would be governed over time. The most straightforward solution is an interstate compact that would create a single administrative apparatus to handle any or all public services and other functions that the composite entities want to unite. If that means a unified multistate government, so be it.
24. “Pack the Union: A Proposal to Admit New States for the Purpose of Amending the Constitution to Ensure Equal Representation,” Harvard Law Review Vol. 133, no. 3 (January 2020): 1049–1109.
25. “Nation’s Urban and Rural Populations Shift Following 2020 Census,” U.S. Census Bureau, December 29, 2022.
26. Doug Mack, The Not-Quite States of America: Dispatches from the Territories and Other Far-Flung Outposts of the USA (New York: W. W. Norton & Company, 2017).
27. “Joint Meetings, Joint Sessions & Inaugurations,” Office of the Historian, U.S. House of Representatives.
28. “Inside the Capitol Riot: An Exclusive Video Investigation,” The New York Times, January 6, 2022.
29. “The Constitution of the Fifth Republic,” art. 89, Élysée.
30. Eleonora Bottini, Margaux Bouaziz, and Stéphanie Hennette-Vauchez, “Enshrining Abortion Rights in the French Constitution,” Verfassungsblog, March 9, 2024.
31. “Quorum-Busting,” U.S. Senate.
32. Elliot Mamet and Austin Bussing, “Race, Democracy, and Empire: Delegates to Congress from DC and the Territories,” Polity Vol. 56, no. 3 (July 2024): 383–409.
33. Elliot Mamet, “Democratic Equality for Washington, D.C.!”, Perspectives on Politics Vol. 23, no. 1 (March 18, 2025): 1–20.
34. H.R. 6941—117th Congress (2021–2022): Territorial Representation in the Senate Act.
35. Elliot Mamet, “Representation on the Periphery: The Past and Future of Nonvoting Members of Congress,” American Political Thought Vol. 10, no. 3 (Summer 2021): 390–418.
36. Mamet, “Democratic Equality for Washington, D.C.!”
37. “City and Town Population Totals: 2020–2024,” U.S. Census Bureau, May 2025.
38. Mamet, “Representation on the Periphery.”