Julie Smith wrote on Sunday a retrospective on Jeb Bradley’s career in the New Hampshire Senate — essentially, a place where “good House bills go to die.” It’s also a place where legislators go to retire. (So too Digital Equipment Corporation in its latter years.) Boston’s Howie Carr often quips that anyone who has been in a State House for six years has proven his uselessness.
These accumulate in the Senate. What Senators actually prove is that they have self-selected for acting as a herd versus speaking bluntly or analyzing the likely effects of a bill that the herd favors — or supporting a bill that the herd opposes. For evidence of this, peruse the annual rankings of roll calls by the New Hampshire Liberty Alliance. While every Republican is rated higher than any Democrat, the Republicans bunch up around the C+ grade, essentially a coin flip on questions of individual liberty.
The Democrats have flaming Marxists, but the Republicans have no brilliant Constitutionalists, emphatically including Jeb.
Well, what shall we do about that?
New Hampshire’s founders patterned our General Court after the federal Congress that arose after the Connecticut Compromise. The lower house was apportioned by population; the Senate was apportioned roughly by land area. As with Congress and the Electoral College, the explicit point was thereby to inhibit government action unless it was acceptable to both urban and rural Granite Staters. There is nothing wrong with that.
The Supreme Court broke that in 1964 with Reynolds v. Sims, which ruled that both houses of state legislatures had to be proportional to population. Earl Warren wrote that “legislators represent people, not trees or acres.” Of course, rural and urban interests are different. This was a pioneering decision of Substantive Due Process; that is, someone is being denied Due Process unless my opinion prevails.
The Warren Court was wrong. Legislators representing numerical majorities don’t need the power to enact law; they need the power to block enactments — which they have if either house is proportional to population. (No Supreme Court has taken Reynolds to its logical conclusion — that the Constitution contradicts itself, and the only “just” solution is 100 interstate U.S. Senate districts, each with an equal population. But the Democratic Party is moving in this direction on several fronts apart from its dream of court-packing.)
But, fine. We’re stuck with Reynolds. That doesn’t mean the Senate has to be a miniature carbon copy of the House, with a membership that is older and drained of spark. The Senate should either be gotten rid of (as Nebraska has) or constituted differently from the House.
One method, which is still proportional to population, is Party List voting, as is used in several other countries, including partly in Mexico’s lower house. People vote for a political party, and based on the result, the party executives pick some number of Senators. (I acknowledge the risk of having any political party’s executives make any important decision.)
My town has one State Rep, plus a “floterial” Rep for a group of three adjacent towns. They defend any unique needs we might have based on our location in the state. In the other house, why don’t we vote by ideology rather than again by geography? Assuming they invite the adults back in, I would vote Libertarian for Senate — the name of the Senator not on the ballot. We might only get one Senator appointed by the State Committee, but joining with 55,000 Granite Staters based on philosophy beats joining with 55,000 residents based on living nearby, which we already do in the House. And the Senate would instantly have more diversity of thought.
No, this idea is not going anywhere. You don’t get major reform without a groundswell. Moreover, this certainly requires amending the state constitution, which takes a supermajority of voters, and Granite Staters are far too suspicious of their government even to repeal the office of Register of Probate, even after all its functions have been repealed. A far more pressing amendment is to repeal the first half of Part 2, Article 83 (on the attitude of future legislators) — the platitude our mischievous Judiciary has used for decades to dictate that we are constitutionally required to throw ever more loot at the welfare schools.
So, I’ll leave the idea of Senate by Party List here to perhaps plant a small seed.
