by Sanford Levinson

Thanks to the Constitution, elections are far less important than you might think (or hope). Like (presumably) most participants in Open University, I am anticipating--and intensely hoping for--a good night for the Democrats. But, in line with my argument that we have an undemocratic Constitution that makes its own contribution to our political dysfunctionality, I want to mention some cautionary notes: 1) Even if the Democrats get a hefty majority of votes for candidates running for the Senate, they may not regain it. The reason is simple: The Senate doesn't represent "the people." It doesn't even represent genuine "federalism" interests; for that, see the German Bundesrat, which is composed of state officials. All the Senate does is to give entirely unwarranted disproportionate weight to the votes of people who live in small-population states. Recall, for example, that Lisa Murkowski was reelected in 2004 with approximately 150,000 votes in Alaska, the same night that Barbara Boxer was reelected with apaproximately 6,500,000. Over the last three election cycles, Democrats have won at least 3 million more votes for the senatorial candidates than have Republicans, but that didn't stop the Senate from being substantially Republican. Maybe the stars will be aligned in the Democrats' favor this time not only with regard to votes--that's easy--but with regard to the distribution of votes. But the Iowa prediction market doesn't think so, which is why it predicts continued Republican control of the Senate even though there may be no plausible argument that a Republican Senate is the wish of a majority of American voters. For my critics who think this counter-democratic feature of the Senate has anything to do with maintaining a "republican form of government," I confess that I simply don't understand the argument. The only thing it maintains is an illegitimate over-representation by small states, which has nothing at all to do with any tenable modern theory of repubicanism. (It's true, of course, that Jefferson himself hated cities and people who lived in them and thought that farmers were uniquely virtuous. I'd be mildly surprised if many Open University participants shared this view.) 2) Even if the Democrats do indeed get both the House and Senate (and therefore, among other things, will be expected to offer serious and substantive legislation), the egregious Mr. Bush will continue to occupy the White House until January 20, 2009, and, as noted in my prior New Republic article, will continue to be able to countermand both House and Senate with the stroke of his veto pen. (And, of course, Republicans in the Senate, even if in the minority, will still be able to filibuster legislation.) If we had a better Constitution that either deprived the president of a right to veto bills on policy grounds at all (while maintaining a Constitution-based veto) or a system that allowed, say, 2/3 of Congress assembled together to declare a vote of "no confidence" and replace him or her with someone chosen by the congressional caucus of the president's own party (in order to prevent a "coup" by the other party), then we could get rid of what is quite possibly the worst president in the entire history of the republic (not to mention the most frightening vice president and most blitheringly incompetnet secretary of defense). But, thanks to our eighteenth-century Constitution, we can't. We are like a spouse trapped in a marriage with a known abuser. All we can hope for is that he doesn't kill us (because it's a certainty he will continue to batter us). Democrat control of Congress will mean that Republicans will be unable to propose and pass some truly terrible legislation and that we can look forward to lots of investigations and symbolic votes building up for the 2008 presidential and congressional campaigns. That's not nothing. And, who knows, maybe a few good pieces of legislation will actually get through. But anyone who believes that even the best outcome on Tuesday will lead to the kind of sharp reversals in policy that are so desperately needed hasn't read the Constitution recently.