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Build Back Better is the latest victim of America’s anti-democratic Senate

Democratic senators represent 43 million more people than their Republican counterparts.

Manchin holds his hands up to reporters in a hallway
If the United States adhered to the principle of political equality, people wouldn’t care much what Sen. Joe Manchin thinks about the Build Back Better Act.
Anna Moneymaker/Getty Images
Ian Millhiser is a senior correspondent at Vox, where he focuses on the Supreme Court, the Constitution, and the decline of liberal democracy in the United States. He received a JD from Duke University and is the author of two books on the Supreme Court.

On Sunday, Sen. Joe Manchin (D-WV) appeared ready to kill the Build Back Better Act, a legislative package funding child care, early childhood education, health care, clean energy, and tax credits for parents, which is one of President Joe Biden’s top legislative priorities.

It’s possible, as my colleague Andrew Prokop notes, to read Manchin’s recent denunciation of the bill as merely an effort to force harsh concessions from other Democrats.

Regardless of how Manchin’s comments about Build Back Better should be read (he told Fox News that “this is a no — on this legislation”), the only reason why Manchin’s opinion of the legislation matters at all is that the United States Senate is a malapportioned trainwreck that gives each resident of Wyoming more than 68 times as much representation as each resident of California.

Because smaller states tend to be whiter and more conservative than larger states, the constitutional design of the Senate, which gives each state two senators regardless of its population, offers Republicans an enormous advantage in the fight for control of the Senate. Indeed, if the Senate were anything that could fairly be described as a democratic institution, Democrats would control closer to 56 or 57 seats, rather than only holding 50 seats in the Senate.

The Democratic “half” of the Senate represents 186,902,361 individuals. Meanwhile, the Republican “half” represents only 143,857,375 people — a gap of 43,044,986. That means that Democrats represent nearly 57 percent of the population, but only control half of the Senate’s seats.

I derived this number by using the United States Census Bureau’s population counts from the 2020 census. In each state where both senators belong to the same party, I allocated the state’s entire population to that party. In states with split delegations, I allocated half of the state’s population to each party. (I coded Sens. Bernie Sanders (I-VT) and Angus King (I-ME) as Democrats. Although both identify as independents, they caucus with the Democratic Party.)

You can check my work using this spreadsheet. Notably, the population gap appears to be growing. When I calculated this gap using 2019 census population estimates, I found that Democratic senators represent 41,549,808 more people than Republicans.

It’s worth highlighting just how much of an advantage Republicans derive from Senate malapportionment. In the 25 most populous states, Democratic senators hold a 29-21 seat majority. Republicans, meanwhile, have an identical 29-21 majority in the 25 least populous states.

The 25 most populous states contain nearly 84 percent of the 50 states’ total population. So 16 percent of the country controls half of the seats in the United States Senate (and that’s not accounting for the fact that Washington, DC, Puerto Rico, and several other US territories have no real representation in Congress).

Admittedly, Democrats would have a stronger hand in the current Senate if they hadn’t lost winnable races in places like North Carolina and Maine, but unexpected losses and weaker-than-expected candidates are a normal part of any democratic system. Senate malapportionment forces Democrats to pitch a perfect game over multiple election cycles if they want a chance to enact their legislative agenda. Republicans, meanwhile, can tank elections they were expected to win and still wind up with enough votes to block legislation.

It’s hard to exaggerate just how much damage Senate malapportionment has done to American democracy. For much of the pre-Civil War era, slave states counted on their disproportionate representation in the Senate to frustrate anti-slavery legislation. Beginning in the Lincoln administration, Republicans admitted several underpopulated territories as states in order to maximize their chances of winning the Senate.

Yet, while Lincoln’s support for sparsely populated GOP states might be justifiable as an effort to keep Confederate sympathizers from capturing the Senate, the Republican Party’s statehood policies soon devolved into a purely partisan power grab. The reason there are two Dakotas, for example, is Republicans split Dakota territory in 1888 so that they would receive four senators instead of just two.

Today, if every American’s vote counted equally in Senate elections, the Senate would almost certainly have the votes to pass a Build Back Better bill similar to one that already passed the House. Multiple voting rights bills that have passed the House would also most likely be law. DC would probably be a state.

Meanwhile, the Supreme Court would almost certainly not be controlled by right-wing Republican appointees, and might very well have a Democratic majority. All three of former President Donald Trump’s appointees to the Court, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett were nominated by a president who lost the popular vote and confirmed by a bloc of senators who represent less than half of the country.

The American people elected Biden by a comfortable margin in 2020, and they also voted to give him a Senate majority that is large enough to enact his agenda. That agenda is now on the ropes, not because the American people voted against it, but because the results in Senate elections bear little resemblance to the will of the people.

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