Small states' outsized political power (Part III-A: The case for reform and proposals)

This is the third part of a series exploring the political heft of the least populous states in the country. The first part explored the history of several constitutional features, and the second part probed the empirical realities of small states' power in the U.S. Senate as well as in the House of Representatives and Electoral College. This phase pivots from the descriptive to the prescriptive, asking why small states retain such power, how they might be stripped of it, and what the implications of doing so would be.

The Case for Reform

As explained in Part I, the thirteen colonies that formed the United States varied widely in geographic scope and population scale. The Senate's guarantee of equal representation addressed small states' concerns that by ceding their sovereignty they would not entirely forfeit their voice. In the 1780s, distinct legal regimes and diversity of industry from one state to the next gave states good reasons to resist the homogenizing effect of laws imposed by a majoritarian Congress. But by the mid-1900s states were willingly adopting synchronized laws promulgated by groups like the Uniform Law Commission and the U.S. Supreme Court had embraced a view of the Commerce Clause that empowered Congress to regulate virtually the entire national economy. By the late 1800s, the country had both a railroad network and a thriving cluster of big businesses with national footprints; a century later these were supplemented by an interstate highway system and trans-national corporations. Even the legislative lubricant of the "pork barrel" project, previously a boon for small states, has fallen prey to the modern angst over government spending.

Thus, a combination of economic destiny and legal-political assimilation resulted in a national economy that cares little for state borders. The exceptions that prove the rule are a handful of industries still subject to heavy state-based regulation such as financial services and insurance, but nonetheless these sectors exist across the country. In recent decades, California has leveraged its population heft against the slim profit margins of global commerce to force products distributed throughout the country to conform to its regulatory predilections (a phenomenon dubbed the "California effect").

As this blog has explored time and again (and again, again, and again), the rural/urban divide is a more meaningful border than those among the states. Small states (those with low total populations) are distinct from rural states (those with a relatively large share of their population in rural areas), though there is overlap. According to 2010 Census data, the ten largest states had an average of 23 percent of their population in rural areas, compared to 39 percent for the ten smallest states..

To this extent, the eighteenth-century vestige of state primacy functions to preserve the rural voice today. But should it be so? The justification for preserving small-state power within a project of confederation is different from the justification of preserving rural power in a vastly urban country. Rural people make up less than one-fifth of the population; people who are categorized as "Hispanic or Latino" make up a similar share of the electorate. Should the latter also benefit from systemic protections?

Yes. This blog has repeatedly shown how rurality functions as a dimension of identity akin to those of race, gender, and sexual orientation. Ours is a majoritarian society that -- if more often in word than in deed -- strives to protect the rights and ensure the prosperity of its marginalized groups. But it is a suspect notion that the best way to achieve those ends is through the means of inflating these groups' political power. The conclusion of this series will argue that the best policy prescriptions for rural America are those which are anathema to the political sensibilities of rural people. First, however, comes a summary of the proposals for shifting the balance of power.

Proposals for Reform

The case for reform in the Senate is weakest. First, Article V of the Constitution prohibits any amendment which would impair a state's "equal suffrage" in the Senate unless the state agrees. Second, there are good reasons to think that federal resources would not flow equitably to small states if Congress were a purely majoritarian institution. Third, senators must sit for election on a statewide basis, and most states' populations are split between dense urban cores and sparse rural areas in ways that generally force candidates to balance those disparate political outlooks. As explored earlier in this series, Republicans gain only a modest edge in Senate politics due to small states' power. Reforms to the Senate rules, such as those affecting the filibuster, seem better avenues toward change. (For encouragement, look to the successful push to end secret holds in 2011.)

In the House of Representatives, the methods of gerrymandering, packing, and cracking all skew political power away from the representative ideal. Additionally, the combination of a century-old cap on the size of the House and a requirement that each state have one member means that large states hit a kind of ceiling. California's 38.8M people are more than 66 times more numerous than Wyoming's 584,000, but California only gets 53 House seats to Wyoming's one. Because the size of the House remains fixed no matter how the population changes, California is underrepresented in Congress by nearly 25 percent. An easy solution, known as the Wyoming Rule, would be to use the population of the smallest state's population as a baseline and then scale-up the House membership accordingly. (Note: since no one wants a fractional member of Congress, we would still have to utilize one of the various mathematical fixes to allocate seats across states.) Adopting the Wyoming Rule would increase Congress to a body of about 550 members: still a small body compared to other countries. While few states would lose representatives, many would suffer a dilution of power. More importantly, the enacting Congress would be voting to erode its own members' power: a formidable barrier to reform. Additionally, interest groups want fewer votes to whip, not more, and they would likely oppose the effort. Then again, proponents of reform might utilize enemy-of-my-enemy logic to convince voters that a change opposed by sitting politicians and special interests is worth fighting for.

The "fix" in the Electoral College is the easiest to implement, the most defensible, and the most likely to occur. Surely, the Constitution could be amended to rejigger or even abolish the Electoral College. But a more attainable goal is the National Popular Vote Interstate Compact (NPVIC), which is a coalition of states that have adopted legislation pledging their Electoral College votes to the winner of the national popular vote. The compact does not take effect until the states' votes constitute a majority (currently 270). At present, 11 states totaling 161 votes have joined. Defenders of the Electoral College generally make squishy arguments about campaign visits or some kind of "mandate" that cannot come from the popular vote alone. These arguments are easily debunked, and Donald Trump's coronation amidst ongoing controversy about foreign electioneering belies the claim that electors will deny the White House to a dangerous candidate. While the NPVIC has new life after the 2016 election, observers have noted that it is unlikely to take effect without adoption by "red states." Given that the current system has twice in the last five contests delivered the presidency to a Republican who lost the popular vote, the project's prospects can appear dim.

Whatever their merits, efforts to re-calibrate small states' power face an uphill climb over rocky political terrain. Yet even with this parliamentary boost, rural places have continued to struggle as the country's population and economy have coalesced in urban areas. The next section explores the potential for policy interventions to aid rural communities where "big government" is anathema.

Next: Part III-B: Rethinking rural economics