A plan to end the disproportionate power of small U.S. states by buying them out
After elections, Americans lament about the current structure of the Senate (and electoral college) because they are based on legacy, and do not follow the principle of one person one vote.
Here, I propose a way to fix that by using the much larger economic and political power of the large states to "buy out" the small states in a deal that corrects the legacy imbalance.
This inequity was deliberate, of course. When the Union was formed, a deal was struck to recruit all the colonies to join. The small colonies were justifiably afraid that the large colonies would dominate them in any one-person-one-vote system. (Or rather, one white male landowner plus 3/5ths of his slaves, one vote.) So they were offered the Senate, where all the new states would have equal power, regardless of population. They took the deal and it was extended to all the new states that joined.
Today, the complaint goes, it is way out of proportion. And it is. The 18 smallest states have about the same population as California, and those people elect 36 Senators, and get 38 more electoral votes, while California gets 2. The deal has definitely come out to favour those small (in population) states beyond the way the founders intended.
But even if they might agree that the deal is out of whack, and centuries old, why would they give up this power? Few groups in the world would. The only way to convince them is to offer another deal, and give them something they want.
That something could be as simple as money. The large states are, well... large. Not only do they have far more people, they tend to have higher GDP per capita as well. They have tons more money than the small states. They could offer compensation for a correction to the constitution.
Is this buying votes? It might be viewed that way, but it could be structured in a way to not meet that test. (For one thing, the reward would go to all in the cooperating states, no matter how they voted; in fact it would be given to the state rather than to individuals.) But in the end, it would be an inter-state deal, like the deals that were struck to found the country. It could be the the offer would be something other than money. Perhaps there is something the small states want even more, such as an expansion of states' rights to keep this new proportional federal government out of their hair. Much could be explored.
But let's just look at what might happen with money. First, an amendment would be drafted strictly to eliminate all disproportionate state-based power at the federal level:
- Replace the electoral college with a popular vote for President and VP.
- Eliminate state drawing of congressional districts, implementing a non-partisan federal rule with anti-gerrymandering protections.
- Change ratification of future amendments to require 75% in a popular vote rather than 75% of states, with a similar change for the calling of a constitutional convention.
- Transfer the special powers of the Senate to the house, or to a bicameral procedure, including consent on nominations, approval of treaties, and impeachment trials.
- Clarify that at a constitutional convention, amendments must require the support of delegates representing 2/3rds of the population of the USA. (The actual by-state rule is not specified in the constitution but seems assumed.)
The amendment would either be passed by both houses in a two 2/3rds vote or would be put forward at a constitutional convention. Then it must be ratified by 3/4 of the states, which is 38 of them.
Wait, why not restructure the Senate to make it population-based?
This is the one and only thing that a constitutional amendment can't do. Article V declares that no amendment can deprive a state of equal franchise in the Senate without its consent. A restructure of the senate would require all 50 states, and that's unlikely. See below for some discussion of alternatives here. The proposal above still gives the small states a lot of power, since all bills must be approved in the Senate, but the authors of the constitution declared this to be the one thing that will be immutable.
Who ratifies this without incentive?
There will be 4 types of states.
- Those who will ratify and pay the compensation fee
- Those who will ratify but wont' pay the compensation
- Those who will ratify if compensated, but not otherwise
- Those who won't ratify, or don't do so in time.
How many are in each group depends on how partisan the amendment is considered. At its core, it's quite non-partisan, but in reality, it will shift power, because the 4 largest states, 2 are blue, one is red and the other swing. The smaller states tend to swing more red. As such the blue states will want it more and red states would be more likely to oppose it. Only 14 states are "pure blue." However, the large swing states -- Florida, Pennsylvania, Ohio, Michigan, Virginia and Wisconsin -- will find merit in the plan because it benefits large states and increases their federal power.
On the other hand, swing states may oppose it because it removes the special attention they get in Presidential elections. Another wrinkle is that Texas has been moving more blue, and is the 2nd largest state in the Union. (Texas has the theoretical power to split into 5 states and increase its power but has shown no sign of interest in that.)
We would not know how many states would join each group until it became a real matter of public debate. There would be gamesmanship, as every state interested in the amendment would prefer to have it happen without paying, but every state willing to be paid would want to be in the group that gets paid. Generally this would be done with a compact that only comes into force when enough states -- whatever that is -- agree to join the various groups.
Some hypothetical groupings
If we went super-partisan, then it's unlikely. The 14 pure-blue states (plus DC). That's 115M people. The 24 smallest non-PB states have 76 million people. Not a large ratio.
But if the movement is more non-partisan, we might find 22 to 26 states in the large state pool. That's 140M to 187M people. Then you need only 12 to 16 states to join for compensation. That's as little as 25M to 42M people. If we look at the optimistic end of that, it's a population ratio of 7.6 to 1. I have not included the higher GDP per capita of those larger states as well. The lower end has a ration of around 3.3 to 1. As states drop out, the ratio goes below 3.
Let's imagine it works out with a ratio of a reasonable 4 to 1. We don't know what amount is needed, but consider a payment of $50,000 to each family in the small states. That means $12,500 from each family in the large states.
While the small state voters would get an attractive lump sum, the large state payers could finance this over time, with a bond. They might take 10-20 years to pay it off for an acceptable tax burden. $12,500 over 20 years at 4% is $920 per year on average.
The money would be paid state to state, or simply as federal transfer payments. That means it could be structured to benefit the people in the small states based on income, so the rich don't get the $50K and the poor get more of it. Likewise, in the big states, the money would come from progressive taxes, and thus more from the rich than the poor.
Is that legal? We'll make it legal.
Is this legal? Of course it is. It's a constitutional amendment. Almost anything is legal in a constitutional amendment. In theory, even straight out vote buying. In fact, that's kinda scary, and if this works it would make sense to make sure it doesn't happen again. That's why I use a quote from the evil emperor of Star Wars. In theory, even things illegal now could be made legal retroactively, or provided with automatic pardons and rules of no punishment.
Another the sneaky trick that is made legal is that the payment is made only to the states that ratify the amendment first. Once the 38 is reached, it's too late for your state. It can ratify if it likes, but gets no payment, or perhaps a reduced one. This means that as the amendment gets closer to ratification, there might be a rush to not be left out.
The promise of this reward makes the voters in all these states push their house members, Senators and state houses to vote for and ratify this amendment. $50,000 is a life-changing amount for plenty of families. When you add this to the simple fact that this is fixing an ancient inequality and is the right thing to do, how much push will it take?
The truth is, I can think of a number of hypothetical ways the payment ratio could be vastly increased, because you really only need to convince a relatively small pool of voters or legislators in the small states, not the entire state. A decent number of people in the small states would already be in favour of this change. But such inequitable approaches go into territory I am loathe to enter.
It is also worth noting that 26 states have some form of ballot proposition, including 14 small ones, though not all could cause ratification of a federal amendment.
Other than money
The deal to get the small states to give up their power could be about other things than money. The red small states are interested in things that will give more power to states. They want to control abortion rights and gun rights without interference from the federal government.
For some time, there has been a movement afoot, mostly in conservative states, to call for a constitutional convention. Such a convention can consider all sorts of amendments and pass them without the requirement of 2/3rds votes in congress. Already, there are 28 live calls out for a convention, and up to 32 states have called for one in the past -- 34 states are needed to convene one. Generally, these states are doing this with a conservative agenda. It would take very few other states to join them to create the convention.
At present the hot issues for a convention include a balanced budget amendment and campaign finance reform. There is much legal debate on whether a convention would be limited to amendments concerning the reason it was convened, or could do what it wished. In any event, 38 states would still need to ratify any amendments.
A convention would probably end up producing dozens of amendments, so finding a way to just get 2/3rds of the house and Senate to pass the amendment would be best. But would the Senate vote for its undoing in this way? Only if voters in the states, interested in the deal, pushed their senators to do so.
Why doesn't this proposal do much more?
There are many other amendments that have favour with large groups, including amendments about the very core topic of regulating elections and the power of the bodies. These amendments are the most difficult to pass, because the bodies who would lose power have the ability to block the amendments. Sadly, people hold on to power, but there are also many times in history where it has been yielded because it was the right thing to do (or because revolution was coming if this wasn't done!)
There are proposals for campaign finance reform. (I am not a fan of any weakening of the 1st amendment for this purpose, however.) I am a fan of proposals to switch to multi-candidate ballots, either "ranked choice" or most simply, Approval Voting. I would love to see rules eliminating voter registration and other forms of voter suppression.
In general, while I might be a fan or opponent of these other proposals, I think it's important to keep the core amendment limited to the goal of reverting the legacy small-state power imbalance and nothing else. The more you add, the more expensive the compensation has to be, the less chance it has of happening. Other amendments can be proposed, but they must get approval via the old rule of 38 states or eventually the new rule of 75% of the voters. All this could be negotiated.
I have included fixing gerrymandering on the list because it is a means where states use their line-drawing power to alter federal elections. As I describe, it is not hard to come up with decent, impartial line-drawing algorithms. Many have hoped the courts would do this but it's not their usual role to come up with rules -- they tell you if the rules you came up with match the constitution.
Isn't there a value to state power?
The rules were structured to protect the small states from the more powerful large states, which is not a bad thing. The result however, does not just protect the minority from the majority, it lets the minority control the majority, which is not intended or desired. All minorities should be protected from the majority, not simply those who live in sparse states. One possible compromise in this deal would be to expand (or reaffirm) certain states' rights.
What about the Senate?
When the deal was struck to protect the power of small states, it was solidly struck, and you can't fix it with an amendment. It's less clear whether you can "loophole" around it, and that would be up to the supreme court. It would depend if the court were favourable to the result or not. The intent of the framers was to make the states-equal nature of the Senate permanent.
Some approaches I have considered include: *As above, keep the Senate but strip it of its special powers as an upper house. *First amend Article V to remove the Senate franchise rule. Then completely restructure the Senate in round 2 to make it a Proportional Representation house, as over 80 countries have. *Create a third body as above, and imbue it with the Senate's powers. Leave the Senate simply as a body that can veto legislation -- perhaps with a 60% majority needed -- passed by the other two houses. *Effectively force the hold-out states to join in unanimous consent through more dramatic means, like shunning or more overt punishments. This would work only if the set of hold-outs is small. *Split large states into smaller states to even the equality. Create a special collective process allowing the sub-states to otherwise act together as a unit if they wished, having one governor, one legislature etc. and being states only for the purpose of electing senators and electors and having congressional districts. The sub-states might even be drawn up using the anti-gerrymandering rule and be redrawn after each census. The federal government would yield its interstate commerce power for commerce entirely within the partitioned states.
If any of these could be done -- you would need the court to rule in advance -- you would not need to strip the Senate of its special powers.
Not the death of Republicans
Some might fear that the expected power shift that could result from one-person-one-vote will favour the Democrats and kill the GOP. While it might well favour in that direction, at least at present, the reality is it would just cause an adjustment in the platforms of both parties until the power came closer to a balance. In a 2 party system, it is not stable to have one party with 55% and always winning and the other party at 45% and always losing. Instead, both parties jostle and change platforms until they are closer to even. Sometimes third parties also arise to alter the power balance. There will definitely still be strong right and left wing parties with even chances. We've seen Republican governors of California frequently, for example. But the California Republicans are more moderate than the Utah ones.
There are many. The largest is that people view the imbalance as partisan and refuse a change for that reason. It may not be possible to get support for a large enough payment (cash or political coin.) Some states may actually support the plan but hold-out in hopes they get money, making it too costly. I am sure commenters will list many more.