Why the Senate Could Destroy a Second Biden Term

Our most undemocratic body is only going to get worse.

You probably haven’t thought about the Senate much lately since it doesn’t seem to be doing a great deal, but this time next year, that most undemocratic body could be right at the forefront of our politics. And not in a good way. 

This year’s presidential race is essentially a toss-up; you can construct a reasonable argument for why either Joe Biden or Donald Trump is going to win, but at this point it’s all guesswork. But I want to lay out what I believe is the most likely scenario for Congress, one that is deeply troubling.

Right now Republicans are hanging on to control of the House by a thread; after a number of their members decided to bail out mid-session, their current majority is only 217-213. So let’s imagine Biden wins the election by something like the margin he did four years ago, and Democrats net the few seats they need to take control of the House. Unfortunately, the Senate is a far different story. I don’t want to say it will take a miracle for Democrats to hold on to their 51-49 majority, but they’ll need something close. 

There are 34 Senate elections this year, most of which are irrelevant because they’re in blue or red states where the outcome is essentially assured. There are 7 states with races where the outcome is genuinely in doubt: Arizona, Michigan, Montana, Nevada, Ohio, Pennsylvania, and Wisconsin. There might be a couple more like Texas (Ted Cruz is up for reelection) where that might change, but those seven are the real question marks. All are currently held by Democrats.

Now add in the fact that the seat in West Virginia, where Joe Manchin is retiring and Gov. Jim Justice is the Republican nominee to replace him, is essentially guaranteed to flip. If Democrats run the table on every other contested race, that leaves the chamber at 50-50, which would mean that a reelected Vice President Kamala Harris would have to break the tie on every contested nomination and piece of legislation (since Republicans will be in lockstep opposition to anything that might allow the Biden administration to function). That’s the best case scenario.

If that didn’t make you uneasy enough, consider this Washington Post poll in Maryland, where recently departed Republican governor Larry Hogan leads the Democratic candidates in general election matchups; Hogan is beating Rep. David Trone by 12 points and Prince George’s County Executive Angela Alsobrooks by 14.

There are reasons not to panic about Maryland. Biden won the state by 33 points in 2020, and the presidential election will bring a lot of Democrats to the polls. Most voters know little about Trone or Alsobrooks (though Trone, whose primary qualification is his substantial wealth, has been blanketing the airwaves with ads). That will change at least somewhat between now and November. On the other hand, Hogan is very familiar and reasonably popular; while there are plenty of reasons to dislike him, he’s a smart politician who avoided looking too much like a Republican during his time in office.

If Hogan does win, Republicans control the Senate, period. 

The result — and remember, we’re talking about a second Biden term — would be utterly awful. The Senate is the more important chamber, because while it’s on equal footing with the House when it comes to legislation, it confirms executive branch appointments. If Republicans control it, conservative media and activists will demand that Republicans use their power to vote down any cabinet nominee who has displayed even the barest progressive impulses, and the senators will respond. Some of Biden’s current cabinet could be prevailed upon to stay, but many will probably not want to (most cabinet officials don’t serve an entire two terms). 

There are also the thousands of other officials requiring Senate confirmation; you can bet they’ll be met with a stonewall from a Republican Senate. And judges? Forget about it. You can expect Republicans to say the current judiciary is just fine, vacancies can be left open, and they’ll just wait until there’s a Republican in the White House to start confirming them again. 

The Senate is an anti-democratic, and anti-Democratic, abomination

Much of what happens to the federal government will be determined by the outcome of one or two Senate races, and to understand just how offensive this is to any notion of popular representation, we have to look at some numbers. As everyone knows, the Senate gives the same two seats to every state, meaning that Wyoming’s 580,000 residents get the same power as California’s 39 million. But how bad is it? Aren’t there some small liberal states too, like Rhode Island and Delaware? 

There are, but the imbalance is still enormous. Let’s examine this in terms of both population and votes. 

We can divide the states into three groups: those represented by two Democratic senators, those represented by two Republicans, and the five states (Montana, Wisconsin, Ohio, West Virginia, and Maine) that currently have one Republican and one Democrat or Democrat-caucusing independent.¹ For the purposes of calculating Republican overrepresentation, the cleanest way to account for those five is to simply remove them; one could allot half their population to each party, but the relative sums would be the same. I’ve used the Census’ 2023 population estimates, and I have also not included the District of Columbia, though if its 680,000 residents were granted full voting rights they would almost certainly elect two Democrats.

Here’s what the numbers look like for those 45 states:

Even though Democrats have a razor-thin majority, they represent an astounding 51.6 million more Americans than Republican senators do. 

What about votes? Things get closer there, since a senator who won their seat by 55-45 still had lots of opposition. I ran the totals for the last three election cycles, which put the current Senate in place (since one-third of the Senate is up for reelection in a given year), and what you get is that Democrats received 7.2 million more votes to put in place the current 51-49 Senate than Republicans did.² Or more than the populations of Wyoming, Alaska, North Dakota, South Dakota, Idaho, and Nebraska — and their 12 GOP senators — combined.

It hasn’t always been this way

The Senate hasn’t always been skewed in Republicans’ favor. As political scientist Lee Drutman notes in a forthcoming book chapter, until the middle of the 20th century, small states were about equally likely to lean Republican or Democrat. But then things began to change, and before long the Republican advantage in small states enabled them to gain Senate majorities even when Democrats represented most Americans:

Though Republicans have often controlled a majority of seats in the Senate since 1980, Republican Senators have only once represented a very slim majority of the US population (in 1997-1998), when Republican Senators represented 50.2 percent of the US population (and 55 seats in the Senate). Prior to that, the last time Republican senators represented a majority of the US population was 1957-1958 (52.5 percent). 

To focus on more recent years, though Republicans have controlled the Senate for about half the time since 2000, never in that time have they represented a majority of the population or won a majority of the popular vote over a three-cycle span.

That’s not going to change after this election. Republicans could take just one more seat in addition to West Virginia — say, by beating Jon Tester in Montana — and they’d control the Senate while Democrats represented 49 million more Americans. They would then make Biden’s second term a nightmare, and after four years of frustration and crisis, Republican would probably win the presidency in 2028.

That’s what a “rigged” system really looks like.

1. There are two independents (Angus King of Maine and Bernie Sanders of Vermont) who caucus with Democrats, and one (Kyrsten Sinema of Arizona) who until recently caucused with Democrats; for the purposes of this analysis I’m placing them all in the D column since that’s what they’ve functionally been.

2. This includes a couple of senators who are no longer in office: In Nebraska, Pete Ricketts is currently serving the remainder of Ben Sasse’s seat, and in California, Laphonza Butler is serving out Dianne Feinstein’s term. In addition, because California uses a ridiculous “jungle primary” and Feinstein faced another Democrat in the 2018 general election, it would be unfair to allot the Republicans zero votes. So for that year, I used the primary totals for all Democrats and all Republicans rather than the general election results. This was not necessary for the 2022 California results because Sen. Alex Padilla faced a Republican in the general election. Vote totals for 2018 and 2020 are from the Federal Election Commission; 2022 results come from the Clerk of the House.