James Madison never rode around his estate with an AR-15 strapped across his chest so we don’t know what he’d have thought of such a fearsome weapon.
However, we do know what he’d have thought about the Virginia state Senate nixing a bill the House of Delegates passed to ban assault weapons. Institutionally speaking, at least, he’d have said the Senate was doing exactly what it’s supposed to do in a bicameral system — slow down a legislative rush to judgment.
Democrats now control both houses of the General Assembly but at several important points, the Senate has proven itself to be more cautious and more moderate than the more liberal House. No issue illustrates this better than the proposed assault weapons ban.
It died in a Senate committee, when four Democrats joined with Republicans to put the measure off until next year — Creigh Deeds of Bath County, John Edwards of Roanoke, Chap Petersen of Fairfax city and Scott Surovell of Fairfax County. Surovell said he was in favor of a ban, but that the details of how to write the legislation were proving too complicated to craft on deadline. Petersen and Edwards had somewhat different explanations. Petersen, who represents the heart of the Northern Virginia suburbs, said legislators should pay greater heed to the concerns of rural Virginians who have different sensibilities on guns. “It’s just piling on,” he told The Washington Post. “You can’t discount people that were raised and grew up in this state and have their own traditions. You can’t just suddenly kick them to the curb.” Edwards said something similar to the Virginia Mercury: “We represent 8.5 million people. It’s important that when bills are passed that they’re generally accepted as reasonable and enforceable by most people.”
Now, this isn’t about the policy question involved but rather the institutional role of the Senate in our system of government — both at the state and federal level.
Why do we have a two-part legislative branch of government anyway? That was the question Thomas Jefferson asked George Washington when he got back from France and inquired about the new constitution. “Why did you pour that tea into your saucer?” Washington asked him. “To cool it,” Jefferson replied. “Even so,” responded Washington, “we pour legislation into the senatorial saucer to cool it.” Washington was better at 18th century sound bites than Madison, who explained things this way: “The use of the Senate is to consist in its proceedings with more coolness, with more system and with more wisdom, than the popular branch.”
Before we go on, we have to cite all the footnotes: U.S. Senators in those days were elected by state legislatures, so the House was the only “popular branch” elected by the people. Even a popularly-elected Senate remains unrepresentative in one big way: The 579,000 people in Wyoming have the same number of votes as the nearly 40 million people in California. Indeed, just 18% of the nation’s population — in the 26 smallest states — now elect a majority of the senators. The Senate was set up to protect the interests of the small states against the big ones, but our founders could not have foreseen the demographic changes that would transform the country. In 1790, the biggest state (Virginia) was 12.6 times more populous than the smallest (Delaware). Today, the biggest state (California) is 66 times more populous than the smallest (Wyoming). More worrisome are the profound demographic differences between the states. Those small states are almost entirely white and conservative; the largest states as much more diverse — some have no majority ethnic group — and they tend to be more liberal. Here’s the uncomfortable result: A small minority of conservative whites can override the wishes of a more diverse majority. The civic health of the country would be a lot better if a) those small states were more diverse, too and b) conservatives did a better job appealing to non-white voters. But we digress.
At the state level, both Senate and House districts are proportional — they’re just fewer of them (in Virginia, we have 40 senators and 100 delegates) so senators represent more people. That makes a difference. The bigger a district is, the more likely it is to be more diverse, if not ethnically diverse at least more ideologically and geographically diverse. Consider this: Sam Rasoul’s House district covers most of Roanoke, where Donald Trump took just 35% of the vote four years ago (and other Republicans have fared even worse). Edwards’ Senate district covers all of Rasoul’s House district, but also extends all the way to Giles County, where Trump took 72% of the vote. Rasoul and Edwards may both be Democrats from Roanoke but they have very different constituencies — which might prompt them to look at things somewhat differently. Indeed, all of Rasoul’s district is inside the city; most of Edwards’ district is outside the city.
The larger districts have the effect of making the Senate, as a whole, more moderate than the House. When Republicans controlled the General Assembly, the Senate was more moderate than the further-right House. Now that Democrats control the General Assembly, the Senate is more moderate than the further-left House. Either way, the Senate performed that “cooling” function that Madison envisioned. Now if you’re a liberal delegate this year trying to get a bill through the less-liberal Senate, you may not appreciate that “cooling” function but that is how the system was designed to work.
There’s also this political reality: Democrats have a weaker grasp on the Senate than they do the House. They control the Senate 21-19 but the House 55-45. Four Democrats in the House can disagree and the bill still passes. In the Senate, it takes just two Democrats to change the equation. (The ratios were similar in the past: Until last year, Republicans had a stronger grip on the House than they did the Senate). That means any legislation depends on whoever the two weakest Democrats on that issue might be. Democrats could have prevented that problem by winning more seats in the Senate last November; they didn’t.
There’s another solution, too, although it’s one nobody ever mentions: Abolish a bicameral legislature and have just a single legislative house the way Nebraska does. Or junk the whole checks-and-balances setup and have a parliamentary system, in which case today we’d be writing about Prime Minister Eileen Filler-Corn. Think about that while your tea cools in the saucer.