The Senate has never been as un-democratic as it was in 2017–2018, and minority rule could continue in 2019 for nominations
An analysis of Senate votes from 1789–2018 shows the slim margins in 2017 and 2018 were unprecedented.
The U.S. Constitution created the United States Senate with equal representation — two senators — from each of the country’s states, despite the wide variation in population from state to state. Fair or not, throughout the country’s history the Senate typically passed legislation, nominations, and other matters with broad support. Most votes passed with around 68% of senators voting yes, with those senators representing about 68% of the U.S. population. If the allotment of senators was unfair in principle, it seems to have been fair in practice.
But 2017 was an unprecedented year. In 2017, for the first time, the Senate’s decisions were often made by a coalition of states representing less than half of the country’s population. The median share of senators supporting passed bills, confirmed judges and agency leaders, and other matters dropped to 58% (the lowest since 1930), with those senators representing just 49.5% of the U.S. population (the lowest ever)!
Here’s a closer look at the last 30 years:
Taking the 115th Congress (2017–2018) as a whole, senator supporting enacted laws, confirmations, etc. accounted for 66% of the Senate (that’s historically normal), yet representing just 58% of the country’s population (again the lowest ever).
What happened in 2017?
Population change has made the populous states more populated, but population changes are too small from year to year to explain the dip in 2017. The states have also changed alignment with the political parties, with Republican-represented states having a lower population than Democrat-represented states. Sen. Duckworth’s 2016 win in Illinois, flipping the seat in the 5th most populous state from Republican to Democrat, was a contributing factor.
But mostly it was the rules.
Congress’s Republican majorities in 2017 used the Congressional Review Act several dozen times, which expedites regulation-cutting legislation by reducing the effective vote threshold in the Senate from a filibuster-breaking 60% to a simple majority. That allowed the Senate to pass more legislation with fewer votes. Here’s the proportion of senators voting yes on legislation over the last 30 years:
In 2017, the median percent of senators voting yes on legislation was a mere 54% — the lowest in at least 30 years, which is the furthest back we have this data. On these votes to pass legislation, senators voting yes represented just 47% of the country’s population — also the lowest in at least 30 years.
The Congressional Review Act’s time limit expired in 2018, and, as can be seen in the charts, 2018 looked a lot like most other years.
Nominations
In 2013, Democrats changed the vote threshold for most nominations from 3/5ths to a simple majority. Despite the rule change in 2013, little changed about the number of senators supporting confirmations. In practice, confirmations were still supported by 80% or more of senators (representing 85% or more of the country’s population).
Yet without a rule change in 2017 or 2018 (except for the two votes on the confirmation of Supreme Court Justices Gorsuch and Kavanaugh, for which the rule was changed), the number of senators voting yes on nominations dropped precipitously. Just 67% of senators supported confirmations in 2017, and 65% in 2018, with those senators representing 59% and 54% of the country’s population in 2017 and 2018, respectively.
A new minority rule?
If the trend continues into 2019 — and it likely will in part, with Republicans gaining seats in the Senate — we might see nominations confirmed by a coalition of states representing less than half of the country’s population. However with Democrats taking control of the House and the time limit of the Congressional Review Act expired, we’re unlikely to see minority rule return for legislation.
The Founding Fathers designed the Senate to be a check on the rule of the majority. Senate rules and precedent such as the filibuster, hold, and blue slip have long given the minority viewpoint extra powers in preventing majority rule. There’s nothing inherently wrong when a minority group controls an outcome — that’s part of the design and dream of the American system of government. But the President and the Senate’s willingness to move forward with small margins and a coalition of senators representing less than half of the population puts the legitimacy of the institution at risk.
We also wrote about this several months ago:
Methodology
- We looked at all Senate roll call votes from 1789 to the present, including votes on amendments, cloture, and other motions, in addition to nominations and legislation. We only considered votes where the yes votes outnumbered the no votes — i.e. at actual legislative outcomes. Note that the yes’s didn’t prevail in all of these votes — the threshold for some votes was higher than a majority.
- Votes before 1989 were sourced from VoteView.com by Keith T. Poole and Howard Rosenthal at Carnegie-Mellon University. Votes starting in 1989 are from Senate.gov. See https://github.com/unitedstates/congress.
- Historical state population from 1900 forward was sourced from the U.S. Census’s Annual Estimates of the Population for the U.S. and States as published by the Federal Reserve Bank of St. Louis. Prior to 1900, we estimated state population as proportional to the size of the state’s delegation in the House of Representatives.
- To compute the percentage of the U.S. population represented by the yes votes, we apportioned each state’s population evenly among the senators representing the state (which may be less than two when there are vacancies) and then divided the sum of the population corresponding to the yes voters by the sum of the population corresponding to the yes and no votes. Senators not voting, as well as the populations of the six U.S. territories, are excluded from the analysis.
This post was written by GovTrack founder Joshua Tauberer.
