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Monday, 17 April 2017 09:19

Senator McConnell's Risk-Free Nuke: The Democrats Won't Be Taking the Senate Any Time Soon

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Mitch 0417wrp opt(Photo: Gage Skidmore)When Senator Mitch McConnell pushed the button on the "nuclear option" last week, putting an end to the filibuster as a tactic for blocking confirmation of nominees to the US Supreme Court, some may well have wondered whether the Republican majority leader would one day, when the political shoe was on the other foot, come to regret the action. But McConnell -- whose professed devotion to the hallowed traditions of the Senate yielded politely to his unrivalled strategic and tactical acumen in the service of partisan causes -- had little reason for worry.

Here's why. In establishing a bicameral legislative branch, the Founding Fathers devised the Senate as a body of geographic rather than demographic representation. That is, its numbers would reflect equal representation for each state regardless of how disproportional to population that representation might turn out to be. This at-the-time novel (and quite deliberately anti-democratic) concept, which has had various interesting effects throughout our history, is now crystallizing into what may well prove a blow to our democracy more serious than any intended or imagined by the Founders. As Senator McConnell is doubtless aware, half the population of the United States lives in the nine largest states and is represented by 18 senators; the other half gets to elect 82 senators. As McConnell also knows well, the hyper-polarization and lines of division of our era are such that solid "red" states abound, predominating among the lower-population states that elect four-fifths of the Senate. He can therefore rest easy in the knowledge that, unless those fundamental factors of American politics undergo an extremely unlikely sea change, the Democrats will not regain control of a Senate majority during his tenure and probably long after.  

But, one might object, they are so close, needing a pick-up of a mere three seats to turn the trick. This is an illusion. With every advantage in 2016 (the Republicans had to defend 24 seats to the Democrats' 10), the Democrats nonetheless fell short. In 2018 they will be paying the piper, defending 25 seats (including the two Independents who caucus with the Democrats) to the Republicans' eight. Trump's many failings notwithstanding, virtually no analysts see 2018 as a Senate pick-up year for the Democrats. Beyond that, as long as our nation remains starkly divided, both politically and geographically -- as long as Election Night maps flash a great dollop of red fringed with a thin garnish of blue -- the Republicans will be playing with house money in their quest to maintain control of the Senate.

Senator John McCain was among those who professed not to believe this. He warned that the Republicans were making "a terrible mistake that we will regret for many, many years to come," when the new rule could turn to the advantage of the Democrats. He called the change "bad for the Senate" and the day of the vote a "bad day for democracy." He then went ahead and voted for it, condemnations notwithstanding, citing the pressing need to fill the Court, a need that apparently was less pressing during the 10 months in 2016 that the Senate refused to grant even a hearing to President Obama's nominee, Merrick Garland. When the dust settled, every Republican senator voted for the nuclear option, which begs the question how much of the fear and trembling was just for show.

Although McConnell protested mightily that the thought of ditching the filibuster for legislation as well as nominations was the furthest thing from any Republican senator's mind, Senator Bob Corker of Tennessee apparently did not get that memo: "Everybody says, 'Oh, we are never going to do it on legislation.' Come on," Corker said, "Give me a break. Somebody is not living in reality."

The smart money is on the blurting Corker, so look for the Senate, not too far down the road, to become a simple-majority chamber for both nominations and legislation. "Simple majority" has a fine democratic ring to it but, with the Senate an inherently un-democratic body by design, the combined impact of red state over-representation and simple majority rule is dramatically anti-democratic, and is likely to remain so for a very long time. Now couple this skew with the effects of precision gerrymandering, dark money, cynical voter suppression, and a privatized, computerized, and generally unobservable vote counting process and you have a recipe for the chronic thwarting of public sovereignty and consequent political breakdown -- the first symptoms of which are already all too apparent.


Jonathan D. Simon specializes in election forensics and is Executive Director of Election Defense Alliance and author of CODE RED: Computerized Election Theft and The New American Century.  He is a graduate of Harvard College and New York University School of Law and lives in California.