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Brian Lehrer: It's the Brian Lehrer Show on WNYC. Good morning everyone, and welcome to day three of the Full Pledge Drive edition of the Brian Lair Show. Thanks to Matt Katz and Michael Hill for all your work on that this morning. Thank you, everybody, for supporting Public Radio. Today, we'll talk more about that later. Just saying thank you in advance for now.

On today's show, Dr. Anthony Fauci talks with us about the new COVID variants starting to become the dominant ones here and around the country, and about the biggest advances in public health in his 54-year career as he gets ready to retire from government at the end of this year.

WNYC's Brigid Bergin today on her reporting about a local Republican who-- have you heard this? Is complaining about those mailers that every voter in New York state is getting reminding you to vote. Everyone gets them regardless of party, but we'll hear what you might call a very creative way to what sounds like, "Try and suppress the vote."

We'll have today's pledge week true or false quiz. Is it the truth or is it a lie? Today's questions will be about the US Senate among other things. Get three in a row right, and win a Brian Lehrer show Prodemocracy Tote.

We will conclude our year-long series #BLTrees today with urban ecologist, Marielle Anzelone, whose idea this was. We started it last November. This has been monthly, so this is October, it's the last one. People are submitting the haikus you have written about your chosen tree or in the voice of your chosen tree. I've posted mine in the voice of my tree and I'll read it later. You can post yours, just use the #BLTrees.

We start here. Our 30 Issues election series is in the middle of a two-week pro-democracy series, as many of you know, two weeks on democracy and peril. Yesterday we talked about partisan gerrymandering as a threat to fair representation in the House of Representatives. Today, we turn to Congress's much bigger democracy problem, The Senate. We're titling this segment, The House of Unrepresentatives.

Most of you know the basic reason why the Senate is needed to pass any law and to confirm any Supreme Court justices, but every state gets two senators. From California, which has 40 million people, to Wyoming, which has barely half a million. These days that means conservative rural states have way more power than their proportion in the population. On top of that, there is the filibuster requiring 60 votes, not 50 plus 1, for most things to get passed. You know that.

We'll talk about the history of why that is and if there's anything we can do about it for modern times with democracy journalist, David Daley. He's a senior fellow with the group, FairVote, and is best known for his books, Ratf**ked, kind of uses the whole word there, The True Story Behind the Secret Plan to Steal America's Democracy, and the subsequent book, Unrigged: How Americans are Battling Back to Save Democracy.

David, thanks for coming on to talk about The House of Unrepresentatives. Welcome back to WNYC.

David Daley: Thanks for having me on, Brian.

Brian Lehrer: You've written in The Guardian that this undemocratic structure of the Senate has become even more relevant these days than in the past due to polarization and population patterns. What do you mean by that?

David Daley: Yes, I think that's exactly right. Right now, the US Senate is historically and wildly unrepresentative of the American people. The problem, as you laid out, begins with the fact that each state gets two senators, so that California has the same representation as Wyoming, even though California is 68 times larger than Wyoming, but there's also 115 American counties that are larger than the state of Wyoming.

If you look at the way that American population has changed, when the Senate was originally devised and we had 13 states, it made perfect sense to be a cooling saucer and to represent everybody because the population of the bottom seven states at that point in time exceeded the population of the six largest states. That is not the case now. More than half of the 330 million Americans live in nine states. That means more than 50% of us have 18 senators and the other half has got the other 82.

Brian Lehrer: These are amazing stats that are pretty easy to get your mind around even when you just hear them go by on the radio, folks. As David wrote them up in The Guardian, I'm just going to restate what he just said. Pretty easy to understand. "According to the 2020 census, two-thirds of the US population lives in just 15 states. That means those two-thirds of the population have just 30 senators. The other one-third of the population has 70 senators." That's pretty mind-blowing, David.

David Daley: It really is. Then when you look at the partisan, a breakdown there, those 30 senators from the 15 largest states that represent two-thirds of us, 22 Democrats and 8 Republicans. The other third, those other 70 senators, those states are whiter, they are smaller, they're rural, and they are decisively Republican. 42 Republicans and 28 Democrats there. You begin to get a handle on how this malapportionment not only favors smaller rural whiter interests but the Republican Party in general.

Brian Lehrer: Yes, the white non-college-educated voters who make up the largest part of the Republican coalition nationwide are shrinking in numbers nationwide, as you note in your article, but they're better distributed. Just go one step further into that. What do you mean by better distributed?

David Daley: They are scattered across more states so that they have more political power, whereas the emerging Democratic multiracial coalition is really focused in a handful of those larger, smaller growing states. This has wildly skewed American politics.

Brian Lehrer: Let's talk a little more history. That is why it's like that in the first place. I think I've been hearing anyway that listeners have been really appreciating the history portions of these democracy segments we've been doing. Then we'll talk about some proposals people have made to fix it. Historically speaking, you wrote that, "The system was designed at the founding to protect against tyranny of the majority." Can you explain that concept just really briefly? A lot of people know it, but a lot of people might be confused by that and think, "Oh wait, no, we're supposed to have majority rule. That is democracy." What do you mean by tyranny of the majority in that respect and how two senators per state was supposed to help?

David Daley: Sure. What the founders did was they set up a US House that was largely based on population and the largest states had more say in the house, but they also wanted to establish a branch that favored every state equally because at the time, the difference between the size of the states back then was not anywhere near what it is now. Virginia was 12 times larger than Delaware. The states were closer to equal but they still wanted to protect themselves. The smaller states did not want to be pushed around by the larger ones.

Brian Lehrer: Was that to protect slave states in any way or mostly to get just smaller population states like Rhode Island to even join the union at all?

David Daley: I think it had to do with both of those factors certainly. You would not have had a union if you did not create a senate that gave every state that kind of equal power within it, but certainly, the key issues that those states were concerned about very much involved slavery, and as additional states were added to the union, of course leading up to the Civil War, keeping that balance of free states and slave states was crucial.

Brian Lehrer: If you're just joining us, we're in our 30 Issues Democracy series today on what we're calling the House of Unrepresentatives, also known as the United States Senate, and what to do about it with David Daley from the group FairVote and author of books including Unrigged: How Americans are Battling Back to Save Democracy.

You quote the late senator from New York, Daniel Patrick Moynihan, who said, "Sometime in the 21st century, the US is going to have to address apportionment in the Senate." Do you know if Moynihan had any specific reforms in mind?

David Daley: I don't know if he did exactly. Certainly, there have been a lot of reforms offered over the years. I'm not sure if Senator Moynihan had any.

Brian Lehrer: We're going to go through some of those proposals for reform right now and really for the remaining minutes in this segment. For example, The New York Times columnist, Jamelle Bouie, has written deeply on the issue of the Senate being so unrepresentative. He proposed, for example, that the Senate be remade into something like the Canadian Senate or the British House of Lords.

He notes that those bodies in those countries act mainly just to amend legislation that comes out of the House in those countries, and that in Canada, the Senate can reject legislation, but it rarely exercises that power. It has restraint in that respect. He says most democracies by now have structures that empower their lower more representative bodies and weaken the upper ones. What would it take to do that in this country?

David Daley: That certainly is an important notion and I think a lot of people when they think about how you might reimagine the Senate think of it as a House of Lords, you might take away some of the power that the Senate has and simply awards some of that power back to the House.

What you begin to run up against when you think about how you reform the Senate really is the US Constitution, effectively Article five, which mandates that every state have equal suffrage in the US Senate and which ascribes specific responsibilities, advice and consent on treaties, Supreme Court nominations. What you would likely need for a reform along those lines would probably be a constitutional amendment which, as we know, are extraordinarily difficult to get passed.

Brian Lehrer: Yes, and especially in this case, I would think, because a constitutional amendment would need to be ratified by I think it's three-quarters of the states. Is that right? Why would many smaller states give up so much power voluntarily, so it's just not going to happen that way, would you say?

David Daley: I think it's not going to happen that way. The trick is that you have a Republican party right now that is really leaned into and is exploiting the counter-majoritarian features of our system. The idea that they would simply decide to give that advantage up I think is deeply unlikely looking at today's party.

Brian Lehrer: Yes, and not just the Republican Party but why would any small state, regardless of its partisan makeup, I would imagine, vote to voluntarily give up its power in the federal government?

An article in The Atlantic in 2019 aggregated other proposals for making the Senate more representative. It cited, for example, a proposal to break up large states into smaller ones that came from Burt Neuborne of NYU.

There was one from Akhil Amar of Yale Law School who suggested a national referendum to reform the Senate. I'm not sure if that would get around the constitutional amendment requirement but maybe, and the retired Congressman John Dingell proposed that the Senate simply be abolished. Many democracies have only a single legislative body, not two. Are any of those ideas more realistic than adding more senators to larger states?

David Daley: I'm not convinced that any of those ideas are any more realistic or that they don't bump against the same constitutional constraints. I think if we want to fix this, though, there certainly are ways to do so. It's an extraordinarily uphill push. It will run up against constitutional language. It could run up against the US Supreme Court that could step in as well.

There was a proposal by a professor at the University of Pennsylvania's Wharton School of Business which I think is really the best and most realistic way to go. I say most realistic given the fact that the chance of many of these reforms is small. What this professor advocates for is every state continues to have one US Senator. That keeps the idea of federalism and equality strong and consistent but then the remaining senators would be divided up proportionally based on population.

You would have another dozen states that would still have two, a handful of states that might have three or four senators, and then the four largest states, California, Texas, New York, and Florida would get 12, 9, 6, and 6 respectively. That would have a lot of advantages. You could see how that would help address the electoral college. You could imagine how you might see Democrats and Republicans elected from some of these states so that Texas might be represented both by Ted Cruz and Beto O'Rourke which could go a long way towards reducing political polarization.

What this professor suggests is that if this were to be passed simply as a statute or the Senate Reform Act of 2022, you could find a way around that constitutional language.

Brian Lehrer: Interesting. I guess that would wind up at the Supreme Court in a debate over whether it would require a constitutional amendment to make that kind of change. Short of that, adding Puerto Rico and Washington DC as states would help a little bit mathematically toward a more fair representation. They don't need a constitutional amendment to do that and they could at least end the filibuster, so the Senate could pass things with 51% rather than 60.

Ironically under the rules, a lot of people may not know this, but they could abolish the filibuster without being subject to the filibuster. In other words, they could abolish it with 51 votes but, currently, Joe Manchin and Kyrsten Sinema won't support that, so the Democrats don't have the votes to do it on their own. I'm also curious, David, if you think with your pro-democracy hat on it would be a good thing for democracy or not.

I can imagine a scenario where next year the Republicans have a slim majority in the Senate, not the Democrats, and the Democrats start using the filibuster to block what they consider some of the worst reactionary legislation like abortion bans and voter suppression and whatever.

I wonder if you think being for or against the filibuster just depends who's in the minority, who is the minority party at that moment and that determines who's for it and against it, or is there some underlying common thread of just what's better for democracy regardless of who's in power?

David Daley: I think Democrats need to think deeply on that point. If Democrats do in fact lose control of the Senate in 2022, the map as you progress towards 2024 looks extraordinarily difficult for them. They all have to be defending those seats. In West Virginia and Montana, Pennsylvania, Ohio, Michigan, states that Democrats have lost just statewide fairly regularly.

The most competitive pickups in 2024 for Democrats will be places like Texas and Florida where they have not really had any success statewide. On the other hand, American democracy in many ways is a frog in the pot. The water is getting very, very hot.

We are running out of time to make the sort of fixes that we need to make before the anti-majoritarianism of these structures collapses upon us. I think we really have to find a way to use the filibuster to change these filibuster rules in such a way that we can reform these structures and fix them before it's too late to do so. I do fear that the clock is ticking.

Brian Lehrer: With that, we come to the end of our 30 Issues in 30 Days segment for today. Our 30 Issues Democracy series continues on Monday with a conversation about using referendums to expand democracy and the new Republican push to make that harder. Why? Because there was an abortion rights referendum where abortion rights won in Kansas this summer.

For today, I guess making the Senate more than what I've been calling the House of Unrepresentatives is hard, yet people, as we just discussed, are having this conversation and not just assuming any proposal to reform the Senate is a dead end, dead on arrival. We thank democracy journalist, David Daley, senior fellow with the group FairVote, and author of books including Unrigged: How Americans are Battling Back to Save Democracy for having it with us. David, thanks so much.

David Daley: Thank you, Brian.

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