Is the NYT's Real Concern 'Disproportionate' Small-State Power, or Passing Liberal Laws?

On the front page of Monday's New York Times, Supreme Court reporter Adam Liptak presented readers with the proposition that "Smaller States Find Outsize Clout Growing in Senate." It's part of "Unequal Representation," a Times series "examining challenges to the American promise that all citizens have an equal voice in how they are governed."

But Liptak's analysis of the "disproportionate power enjoyed in the Senate by small states...on issues as varied as gun control, immigration and campaign finance" showed a lot of concern for the specifically liberal policies currently thwarted by the old inconvenient Constitutional arrangement.

Behind the growth of the advantage is an increase in population gap between large and small states, with large states adding many more people than small ones in the last half-century. There is a widening demographic split, too, with the larger states becoming more urban and liberal, and the smaller ones remaining rural and conservative, which lends a new significance to the disparity in their political power.

The threat of the filibuster in the Senate, which has become far more common than in past decades, plays a role, too. Research by two political scientists, Lauren C. Bell and L. Marvin Overby, has found that small-state senators, often in leadership positions, have amplified their power by using the filibuster more often than their large-state counterparts.

Beyond influencing government spending, these shifts generally benefit conservative causes and hurt liberal ones. When small states block or shape legislation backed by senators representing a majority of Americans, most of the senators on the winning side tend to be Republicans, because Republicans disproportionately live in small states and Democrats, especially African-Americans and Latinos, are more likely to live in large states like California, New York, Florida and Illinois. Among the nation’s five smallest states, only Vermont tilts liberal, while Alaska, Wyoming and the Dakotas have each voted Republican in every presidential election since 1968.

Which doesn't explain why the Democrats have won four of the last six presidential elections.

Recent bills to overhaul the immigration system and increase disclosure of campaign spending have won the support of senators representing a majority of the population but have not yet passed. A sweeping climate bill, meant to raise the cost of carbon emissions, passed the House, where seats are allocated by population, but not the Senate.

Each of those bills is a major Democratic Party priority. Throughout his second term, President Obama is likely to be lining up with a majority of large-state Congress members on his biggest goals and against a majority of small-state lawmakers.

Liptak lamented Al Gore's loss in 2000:

In 2000, had electoral votes been allocated by population, without the two-vote bonuses, Al Gore would have prevailed over George W. Bush. Alexander Keyssar, a historian of democracy at Harvard, said he would not be surprised if another Republican candidate won the presidency while losing the popular vote in coming decades, given the structure of the Electoral College.


This pattern has policy consequences, notably ones concerning the environment. “Nations with malapportioned political systems have lower gasoline taxes (and lower pump prices) than nations with more equitable representation of urban constituencies,” two political scientists, J. Lawrence Broz and Daniel Maliniak, wrote in a recent study. Such countries also took longer to ratify the Kyoto Protocol on climate change, if they ratified it at all. These differences were, they wrote, a consequence of the fact that “rural voters in industrialized countries rely more heavily on fossil fuels than urban voters.”

In 2009, the House of Representatives narrowly approved a bill to address climate change, but only after months of horse-trading that granted concessions and money to rural states. That was an example, Mr. Broz and Mr. Maliniak said, of compensating rural residents for the burdens of reducing greenhouse-gas emissions.

But it was not enough. The bill died in the Senate.

Liptak is not the biggest fan of the Constitution as written. In a February 7, 2012 article he embraced the liberal concept of the Constitution as a "living document," conflating genuine rights like freedom of religion with entitlements like free health care: "But the Constitution is out of step with the rest of the world in failing to protect, at least in so many words, a right to travel, the presumption of innocence and entitlement to food, education and health care."