27. From Filibuster to Representation: Is the Senate Broken? (with Rick Hasen, Barbara Arnwine and Cynthia Richie Terrell)

With Guests:

  • Rick Hasen, chancellor’s professor of law and political science at the University of California, Irvine and a nationally recognized expert in election law and campaign finance regulation. He is co-author of leading casebooks in election law and remedies, and served in 2020 as a CNN election law analyst. He has authored over 100 articles on election law issues, published in numerous journals including the Harvard Law Review, Stanford Law Review and Supreme Court Review.
  • Barbara R. Arnwine, president and founder of the Transformative Justice Coalition. She also served as the executive director of the Lawyers’ Committee for Civil Rights Under Law from 1989 until 2015. Arnwine is internationally renowned for contributions on critical justice issues, including the passage of the landmark Civil Rights Act of 1991 and the 2006 reauthorization of provisions of the Voting Rights Act. She also serves as co-chair and facilitator of the National Commission for Voter Justice, the Millennial Votes Matters Convenings and the Voting Rights Alliance. She is the radio host of Igniting Change and is a regular presence in the national media.
  • Cynthia Richie Terrell, founder and executive director of RepresentWomen (formerly Representation2020), a regular Ms. contributor and an outspoken advocate for rules and systems reforms to advance women’s representation and leadership in the United States. Terrell has been published in numerous print journals; appeared on C-SPAN’s Washington Journal; and has participated in numerous radio shows and panel discussions on the topics of electoral reform and structural strategies to elect more women.

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In this Episode:

The 2020 election revealed the deep fractures in U.S. democracy and its electoral system. Many were already there, but this past election truly pushed our voting system to its limits.

“Many of the familiar procedures for translating the people’s will into the choice of a president depend on norms of behavior, not laws,” guest Rick Hasen put it—evident from the significant efforts undertaken to undermine and interfere with the results of the election.

Part of this dysfunction played out in the Senate, where the institution itself protects arcane rules and undemocratic processes. Is the Senate truly representative? Is the electoral system fair? Is it time to eliminate the electoral college? What other electoral reforms should we be considering? What does contemporary voter suppression look like?

One of the important Senate rules at issue today is the filibuster, which has been weaponized at various times to defeat important legislation. What purpose does the filibuster serve? Is it a barrier to real progress?

Have a topic you’d like us to delve into, a guest recommendation, or just want to say hi? Drop us a line at [email protected]

Background Reading:

Transcript:

0:00:04.8 Michele Goodwin: 

Welcome to “On the Issues with Michele Goodwin” at Ms. Magazine, a show where we report, rebel and tell it like it is. On this show, we center your concerns about rebuilding our nation and advancing the promise of equality. Join me as we tackle the most compelling issues of our times. On our show, history matters. We examine the past as we pivot to the future. On today’s show, we focus on the question: From Filibuster to Representation, is the Senate Broken? 

The 2020 election revealed the deep fractures and fissures in our democracy and electoral system. Many were already there, but this past election has truly pushed our voting system to its limits, and the filibuster, which we now see being triggered up, has a long and storied history of being used to stand in the way of some of the most significant initiatives to face our country including the 1964 Civil Rights Act, and the filibuster continues to stand in the way of important legislation.

So here’s how we’re going to break this show down for you, we’re going to ask really important questions to our guests: Is the senate truly representative? What purpose does the filibuster serve? Is it a barrier to progress? And, is our current electoral system fair? We’re going to be looking at these questions from a variety of angles, and helping us to sort out these questions and more how we should think about these issues are very important guests. 

I’m joined by Rick Hasen, he happens to be a colleague. He’s also the chancellor’s professor of law and political science at the University of California, Irvine. Much more than that and including that, he’s also co-author of the leading casebook on election law and also one on remedies. You know him also from CNN. He’s an election law analyst, and he’s just plain old brilliant. 

I’m also joined by the fabulous Barbara Arnwine. She is president and founder of the Transformative Justice Coalition. She also served as the executive director of the Lawyers Committee for Civil Rights Under Law from 1989 until 2015. She is an internationally renowned contributor for critical justice issues including the passage of the landmark Civil Rights Act of 1991 and the 2006 reauthorization of provisions for the Voting Rights Act.

And last but certainly not least, we’re joined by Cynthia Richie Terrell. She is the founder and executive director of Represent Women, which was formally known as Representation 2020, and is an outspoken advocate for rules and system reforms that advance women’s representation and leadership in the United States, and you’ve also seen her in print, you’ve seen on C-SPAN, and the Washington Journal. I’m so pleased to have her on the show, and all of my guests, so thank you all for being with us at Ms. magazine for this very important conversation.

So, let’s start by talking civics 101. Historically, the filibuster has been used as a tool to block civil rights legislation, let’s just be clear about that, and today could be and has been used to block similarly important legislation like HR1, which according to the New York Times is a comprehensive and desperately needed set of reforms that would strengthen voting rights and election security, ban partisan gerrymandering, reduce big money in politics, and establish ethic codes for the Supreme Court justices, the president, and executive branch officials. That all sounds really good, but I want to start first with you, Rick, with telling us: What is the filibuster?

0:03:54.7 Rick Hasen: 

Sure. So, just starting very basically, in order for a bill become a law, it has to pass both the House and the Senate, and then it has to be signed by the president, and if the president vetoes the law, then the veto has to be overridden by a supermajority vote in both houses.

For normal legislation to get through the House, it goes to a committee, typically, or multiple committees, and then if it gets a majority vote, it gets out of the House.

In the Senate, things are more complicated. Things usually start in committee, as well, they don’t have to but they usually do, and then they come up for a series of votes—and thanks to a set of internal rules at the Senate, these are rules that the senators have adopted, and they’ve changed over time, they haven’t been static over time, but under the current rules, in order for a piece of legislation to be able to advance to be voted on, there has to be a 60-vote majority rather than a 50-vote majority, so it’s a requirement that you get more than a majority vote in order for legislation to be considered, and so enough senators can block things that things never make it to the floor. And it’s become so routinized that you don’t even bother trying to bring up a number of measures if you don’t think you’re going to get 60 votes.

I should just say that there are exceptions to this filibuster rule. The one that just came in play in the COVID bill that passed is that certain bills related to the budget go through a process called reconciliation, they require only a majority vote, but there are only certain kinds of things that can be included in that bill. So you may remember a few weeks ago, the Senate parliamentarian said that a hiking of the minimum wage to $15 was not properly included in a bill that would be subject to this rule, so that would require 60 votes, and so that was not included in the bill. 

The other notable change is related to nominations. Nominations to the courts or executive nominations also used to be subject to a 60-person vote. The Democrats seeing what they thought was obstruction by Republicans eliminated the filibuster as to nominations other than Supreme Court justices. When Republicans came into power, they eliminated the filibuster as to Supreme Court Justices, as well. That’s how the last three justices were able to get through without a 60 majority vote, and now, there’s talk about whether voting rights legislation should be subject to another exception—as you mentioned, HR1 is a possibility—and also you know potentially other pieces of legislation, there’s talk about even blowing up the filibuster.

But, this will be the last point I’ll make on this: The Senate right now is divided exactly 50-50, 50 senators who are either Democrats or two Independents who caucus with Democrats, 50 Republicans. Vice President Harris can cast the deciding vote if there’s a 50-50 tie, but this means that Democrats have no margin to spare. And not only do you have a certain number of senators who are not willing to talk about further getting rid of the filibuster; you also have Democrats who might not agree with the substance of some of these laws, like the 15 dollar minimum wage or HR1, and so it’s going to be very unlikely you’re going to see a vote to eliminate the filibuster on something where you don’t even have all 50 Democrats agree. 

0:07:49.2 Michele Goodwin: 

Well, I want to follow up with you quickly on that and then open it up to all of our fabulous guests today; I’m so excited that you’re with us. So, Rick, you’ve actually been advocating for the end of the filibuster for voting reform legislation since at least 2018 and likely before that. In a recent article you wrote, “In the Senate, small Republican states like Wyoming with fewer than 600 thousand people can join together to thwart the voting rights of states like California with nearly 40 million people.” So Rick, tell us a little bit more about that particular article that you were writing and what’s behind your thought that, you know, you have smaller states, fewer number of people, and they undermine the voting rights in states like California that are more populous.  

0:08:42.1 Rick Hasen: 

Sure, so the House, when you think about how members of the House are chosen, we have 435 members of the House. Every state gets at least one member of the House. But then beyond that, the way that House members, the number that each state gets in the house is based on population, so a state like California is going to have many more members of the House than a state like Wyoming or a state like Rhode Island that has a much smaller population.

In the Senate, though, we have every state gets two senators regardless of size, so if you’re Montana or you’re South Dakota or you’re Hawaii or Alaska, all small states, you’re getting the same amount of representation in the Senate as if you’re California, Texas, Florida, New York, states with very large populations, and this is kind of baked into the Constitution. There’s even a part of the Constitution that says you can’t eliminate the equal representation for states for the Senate, so you know and now there’s a question about whether the Constitution could prevent amending the Constitution, that’s a topic for another day, but the idea is that…

0:09:59.7 Michele Goodwin: 

We need to have that conversation on another day, actually. Yeah. 

0:10:02.9 Rick Hasen: 

But the idea is that states are being represented as states in the Senate, and so it is one of the two ways in the country in which we do not follow what’s called the one-person, one-vote rule, the idea that people have equal voting power. In the House, it’s pretty much equal voting power, in state legislative districts, right, you have to have the same number of people in each district that sort of thing.

But the Senate is wildly unequal, and it turns out that more Republican senators come from smaller states, and so if you look at the number of people being represented by those 50 Democratic senators, it is many more people than the number represented by the Republican senators.

And so you know if you’re talking about majority rule, then eliminating the filibuster would seem to be in line with majority rule because then you have senators representing more people being the ones that would have the power and not allowing a minority to block majority legislation.

That could flip. Just a few years ago or last year, Republicans were in charge of the Senate, and if you didn’t have a filibuster then, you’d be giving even more power to the minority to be able to push through legislation. Then, you know, there was at least a time when Republicans controlled all branches of government. We’ve had that in the past, and so eliminating the filibuster doesn’t necessarily deal with the problem of minority rule. It would right now, but it wouldn’t necessarily in all times, and so what you’d really need to do, if you cared about majority representation of the one-person, one-vote rule, is you’d have to change representation in the Senate.

0:11:56.0 Michele Goodwin: 

Well, we’re actually going to get to that in the show because that’s a really important issue. You really get to see the disparities and who commands the Senate when thinking about the issues that have just been raised with such power coming from the states with smaller populations.

Barbara, I want to turn to you, and I wonder if you could expound upon this conversation with regard to the filibuster, and that is to say, our listeners are curious about how this relates to civil rights, how the filibuster relates to racial justice. It’s not something that’s necessarily always lifted up in the news, and so we want to lift it up here in this show, so Barbara, can you tell us a little bit about how filibuster connects to Civil Rights?

0:12:45.7 Barbara Arnwine: 

Well, you know, the most famous use of the filibuster was by Jesse Helms, right?

It’s Time to Confront Senator Helms’s Sexist, Racist and Homophobic Legacy
Sen. Helms between Miss North Carolina and Miss Watermelon in July 1991. (Wikimedia Commons)

0:12:51.4 Michele Goodwin: 

Oh, Jesse Helms. Oh, my goodness, chills in my spine.

0:12:56.0 Barbara Arnwine: 

North Carolina senator, anti-civil rights to the core, hateful, used racist appeals to run for office, all the way opposed civil rights legislation all the way, once took to the floor, right, if I’m right, Rick, and held the floor for 24 hours, the longest in-person spoken filibuster in our history, all to block civil rights progress, you know, opposed everything civil rights, and he was a popular, let’s be very clear, popular North Carolina senator. I lived in North Carolina for 10 years. 

0:13:36.9 Michele Goodwin:  

During the Helms era?

0:13:38.8 Barbara Arnwine: 

I was there for the end of the Helms era. 

0:13:43.0 Michele Goodwin: 

Oh my gosh.

0:13:43.0 Barbara Arnwine: 

It was horrific. It was horrific, and you know I just want people to understand, you know, what it means to have a filibuster where the underlying codes, you know, that’s all these racial codes in America, you know, coded language, coded practices, coded procedures, and not even to mention the Constitution itself…

0:14:05.4 Michele Goodwin: 

Coded. 

0:14:06.3 Barbara Arnwine: 

Coded with racial, slavery-based provisions that are still active, and so we got to, you know, understand that there’s all this racial coding, and the filibuster has been that. You know, HR1, which is the target of our discussion, right at the moment, because it’s hot, it is, you know, the…

0:14:26.8 Michele Goodwin: 

Hot potato. 

0:14:28.2 Barbara Arnwine: 

For the People Act, it would do several things that would have huge impacts on racial justice. It would address the felony disenfranchisement issue. There are six million people roughly in the United States who are barred from voting because of having had a former felony conviction. Disproportionately, those people are people of color. Disproportionately, although there’s still more whites who have been banned in that manner. 

I want it also to be clear that the other thing it does is that it addresses D.C. statehood. We’re talking about statehood, everybody. D.C. has no senator, no U.S. senator who is a voting member of Congress, so we have none, not one. We don’t have two, we don’t even have one, and as a consequence that means that we have a significant amount of the population that’s not represented, yet we are happy to do that because we fear that DC senators would be what, would be too liberal, I mean, so let’s think about it, you know, when you look at Rhode Island and D.C. population wise, it’s not hugely significant the difference, so I think, you know, people need to understand that that’s a problem. There should not be 100 senators; there should be 102. So we need to really look at that. There should be 51 states that are covered, so that’s in HR1, moving toward D.C. statehood. 

The other thing that’s in HR1 is early voting, you know, two mandatory weeks of early voting. Why does that have a racial impact everybody? Because based on all the studies we know, if you offer early voting in states where you have African American populations, 50 percent or more of all African American voters will vote early. 50 percent or more. In some states, it’s at 70 to 80 percent will vote early, and there’s many economic, and racial, and other procedural reasons why that is true.

And it also has an impact on Latino voters. We know that over 35 percent of Latino voters will use early voting. All Latino voters in a state will use early voting. Guess what? Why is it that all these states have blockages on Sunday voting, Souls to the Polls voting? Because of that number of African American and Latino voters, who like to vote early, they love Sunday voting. Some 35 percent of all the voting is going to happen on a Sunday, so there’s, you know, real reasons why HR1 is more than just a good government bill, and it’s more than that, it has serious racial implications, and I could talk about absentee balloting, but I’m going to stop there.

"Anti-Democratic and Racist": Nationwide Push for Voting Restrictions Barrels Forward
(Black Voters Matter, @BlackVotersMtr / Twitter)

0:17:55.2 Michele Goodwin: 

Well, all right, and we’re going to come back to these issues, too, and I’m really happy that you raised the issue of code. 

0:18:01.2 Barbara Arnwine: 

Yes. 

0:18:01.6 Michele Goodwin:

And coding and racial codes, and in the Constitution because these are issues that we come to in the show, and we’ll come back to. One that comes right to mind, it’s not the topic of this show, but it makes me think about it is the 13th Amendment itself, which abolishes slavery but has code because on one end it abolishes slavery and on the other end, it re-instantiates slavery, you know, in saying, except if convicted of a crime, then you can be a slave in the United States, and that continues. We see it in our prisons, and we know that after the ratification of the 13th Amendment, plantations actually expanded in size, there was convict leasing, and so much more, which was all directly racially implicated, and after the 13th Amendment, it became illegal for Black people, depending upon the state, to even sell corn or rice, could be something that you could be convicted of a crime for, but anyway, I digress, we’ll leave that part for another show, but…

0:19:01.2 Barbara Arnwine: 

That’s a good one. 

0:19:02.3 Michele Goodwin: 

That’s a good one, but Cynthia, I want to bring you into this conversation about filibuster before we get to more on the two senator per state model because you’re the founder and executive director of Represent Women. Clearly, the conversation that we’re talking about has implications, as well, for thinking about gender justice, sex equality, and so just on that point of filibuster: Can you tell us a little bit about how your organization sees the types of challenges that have been presented by both Rick and Barbara when thinking about filibuster? 

0:19:41.5 Cynthia Richie Terrell: 

Yeah, that’s a great lens into the filibuster. I think it’s important to point out, I’m sure your listeners are pretty astute on these kinds of statistics, but there are no Black women in the Senate. I think we need to say that again and again. There was an all-time high of about a quarter of women in the senate in the last congress, now there are 24 women in the U.S. Senate, so the US Senate is definitely not a portrait of the people in miniature, as John Adams had dreamed of.

0:20:18.3 Michele Goodwin: 

Can you just say that again, so it can really resonate with folks that in 2021, there are 24 women in the United States Senate?

0:20:28.9 Cynthia Richie Terrell: 

Yes. In 2021, there are 24 women in the U.S. Senate, there are zero Black women in the U.S. Senate, there have only been two Black women in the US Senate, and I’ll talk about a favorite topic of mine that you didn’t ask me about, but I’ll just insert it and maybe we can talk about it…

As Kamala Harris Heads to the White House, Feminists Urge Gov. Newsom to #AppointABlackWoman in Her Place
Kamala Harris speaking with attendees at a fundraiser hosted by the Iowa Asian and Latino Coalition in Des Moines, Iowa, in August 2019. Harris, formerly the only Black woman (and one of two overall to serve) in the U.S. Senate, gave up her seat when she was sworn in as Vice President in January. (Gage Skidmore / Flickr)

0:20:45.4 Michele Goodwin: 

Go right on ahead.

0:20:46.4 Cynthia Richie Terrell: 

Is that the fact of the…you know, we’ve had this record numbers of women running, blah, blah, blah, in the last couple election cycles, the U.S. now ranks about 70th worldwide for women’s representation. We have 27 percent of women in the House of Representatives, and just to further devolve away from the filibuster, though I promise I’ll get back to it, there were 180 women who ran as challengers in the 2020 election cycle for House seats, they spent $443 million on those House seats, and 4 percent of them won.

Not that the women weren’t ambitious and empowered and skilled and prepared and trained—it’s that we have a voting system that really constrains competition and really precludes people from having equal opportunities, and that gets us back to the Senate…

0:21:46.2 Michele Goodwin: 

Absolutely, and just to underscore that, but just to pin on that, because it’s really important that people understand that, you’re talking about over…did you say over $480 million?

0:21:56.8 Cynthia Richie Terrell: 

$443 million, according to…

0:21:59.4 Michele Goodwin: 

Four hundred. Okay.

0:22:00.6 Cynthia Richie Terrell: 

Yeah. 

0:22:00.9 Michele Goodwin: 

Okay. All right, $443 million put into women running and the result was about 4 percent…

0:22:10.2 Cynthia Richie Terrell: 

Yes. 

0:22:10.7 Michele Goodwin:

Of women being successful in those bids.

0:22:11.9 Cynthia Richie Terrell: 

In the House, yes. So, that puts us, we’re actually tied with Mali, right now. Other countries in our bracket are Bulgaria, Vietnam, Kazakhstan, Iraq and Afghanistan all have about that. I’m not meaning to impugn those other countries, but clearly, we have our work to do on creating more diversity in Congress, and diversity, I would say, you know, across the geographic and ideological and racial spectrum. There are lots of kinds of diversities we’re lacking, there’s not any single one that’s the most important kind.

But as it relates to the filibuster, getting back to that question, I think we can, as Rick so aptly said, it’s super hard to change that, incredibly hard, but we can in terms of the current composition of it, we could think about a commitment from states to nominate a woman and a man for both those seats, that’s certainly something that at least in women’s representation circles, that’s how there’s greater diversity in those 70 or so countries is that they use gender targets or gender quotas or recruitment. I don’t want to go down that lane, right now, but we do have, of course, a geographic quota for the U.S. Senate, I’ll just put that out there.

But what we can do as a way of dealing with the current situation is making at least the people who are in the senate less beholden to their party base. We’ve seen some interesting impact of the ranked-choice voting measure that was passed in Alaska, which seems to be providing a little bit more wiggle room in terms of leadership from some Alaska senators. I won’t overpromise there, but that’s an interesting thing to think about is how do we free senators to be less beholden to the party base, and then another I think workaround until we solve some of the deeper issues are giving the House of Representatives more power and making it more…well, excuse me, I’ll take that back, not giving it more power, making it more representative—so that at least we have in Congress more people from across those different diversity demographics, age, race, income level, gender represented in Congress. 

0:24:39.6 Michele Goodwin: 

So, with that, I want to put this question then to you, Rick, because you started us out with level-setting here, so what are the options for doing away with filibuster. Is there some nuclear option or is there some method that might be more methodical, which some might say piecemeal, what does it look like doing what you’ve advocated for?

0:25:04.2 Rick Hasen: 

Well, first of all, the normal way that rules in the Senate are changed is that 67 senators have to agree to a change, that’s two-thirds of senators have to agree to change. Unlike the House, which starts anew every two years, the senate is a continuing body—or they see themselves that way—because we only elect one-third of the senators in each election, you know, because senators serve six-year terms. We have such a complicated system, like sometimes I try explaining it to people outside the country, and you know sometimes I try explaining it to people inside the country, and everybody’s scratching their heads. It’s a pretty old system, and it’s kind of a strange way of having representation.

But the senate, there’s six-year terms instead of the house that has two-year terms. That’s supposed to create more room for deliberation and you know the senate is the place where people can have reasoned discussions. It doesn’t look like that so much today, but you know that’s the kind of…the Senate’s own ideal of itself, so they have all of these rules that basically don’t allow lots of things to happen unless there’s unanimous consent, and if there’s not unanimous consent, they have to go through a whole procedure.

So the normal way to change a rule would require 67 votes. Republicans and some Democrats are very opposed to the filibuster, there certainly are not 67 votes right now to eliminate the filibuster, so the alternative is what’s come to be known as the nuclear option, and it’s now been used twice, and I should say that the filibuster has been changed before through the regular process. It used to be you needed 67 votes to get something through, now it’s only 60. 

So, the way that this would work is that the nuclear option requires only 51 votes where the claim would be made, you know, we’re changing the rules, and it only requires a majority vote, and then the president of the Senate, who happens to be Vice President Harris, she would be asked to rule on the motion, and she would be able to say, yeah, a majority vote is good enough. That’s exactly how how Democrats got rid of the filibuster and how Republicans got rid of the filibuster, as to other things that we’ve talked about, the nominations process. 

So, you could do it, you know, it’s been done before, but it requires every Democrat to agree—unless you get some Republicans to go along, which seems very unlikely. You need every Democrat to be onboard, and right now, Senator Manchin, for example, and Senator Sinema, Manchin from West Virginia and Sinema from Arizona, are resistant. Senator Manchin has said that he might entertain changes to the filibuster. So, right now it’s very easy to filibuster, you just basically indicate your desire to block legislation, he said, maybe we should go back to a talking filibuster where you have to be like Jesse Helms, go to the floor of the Senate and read from the phone book or do whatever it is that you’re going to do, and you know that has a kind of political price. Not clear that that would make a huge difference, you know, to move to the talking filibuster, but the other idea is, you know, there are all kinds of proposals out there like let’s start debate and if it’s still blocked, you’re going to lower the number of people you need to 55 from 60.

I mean, there’s all kinds of ways that we can creatively think about this, but none of this is going to happen in this Senate if you don’t have at least every Democratic senator agreeing, and that’s a tall order because you’ve got, I think six Democratic senators who either opposed or have not expressed an opinion on filibuster reform. The Democrats are closer than they’ve been before on this question, I think, because they see the Republicans as playing hardball…

0:28:54.2 Michele Goodwin: 

Yeah, well, Republicans have been playing hardball in a number of ways we’ve seen. Let’s not forget that Merrick Garland never got the opportunity during the Obama administration to come before the Senate and to make the case for the Supreme Court, and it’s only been recently that Merrick Garland has been able to be before the Senate, and of course, that’s not for the Supreme Court but to serve as the nation’s chief lawyer, so these are serious kinds of questions that are coming up, and in fact, as one thinks about the courts, it’s certainly been one of the areas in which Democrats have not necessarily been as forceful as their Republican counterparts, and I think that says a lot considering the following backdrop, which is that during the Trump administration, President Trump had the opportunity and did nominate more people for the federal bench than any other president, save George Washington, and with the support of Mitch McConnell and a very strong allied Republican bench on the Senate got those folks through. 

U.S. Supreme Court nominee Judge Merrick Garland meets with former Sen. Heidi Heitkamp (D-Minn.) on April 7, 2016. (Flickr)

0:30:05.3 Barbara Arnwine: 

And can we point out that they were ideological conservatives. Some of them were clearly unqualified to be on the bench, and these were not the highest qualified people. In fact, some of them had ratings of unqualified from the [American Bar Association], and they pushed them through. I just want to make that point that these were…

0:30:26.8 Michele Goodwin: 

You’re bringing in the code. You’re exposing the code, Barbara, on today’s show over and over again. But I guess, you know, that would be the point, the kind of alliedness, and I guess, to even just underscore that point, as we transition to thinking about states and senators, is that we’re at a time in which there’s such deep partisanship within our government, and we see this across lines involving immigration, voting, reproductive health and rights, the environment. Certainly, as I point out with regard to the reproductive health and rights space, if we were to think about government, think about our courts even, Roe v. Wade was a 7-2 opinion and five of those justices were Republican appointed of that seven, and Prescott Bush, the father of George H. W. Bush was the treasurer of Planned Parenthood.

So what we see today is something that is far deeper ideological bench, and I just close off that point before going to our divided, our senate model, is just to say that George H. W. Bush actually shepherded Title X through Congress, which provided reproductive health care for the poorest of Americans, and that was signed into law by Richard Nixon, who later told the New York Times and Washington Post that this was just basic common sense and basic public health. And so we’re far removed from that kind of sense of being able to talk substantively about issues—they’ve become far more ideologically embedded in the nature of government, both in the legislature and also in our courts.

But each of you have raised this issue that relates to representation—Rick, you talked about one-person, one-vote; Barbara, you talked about Civil Rights and Jesse Helms, who was a self-pronounced bigot. He had no problem with people calling him a bigot and a homophobe, and everything else. He had no problem singing, whistling Dixie, right, to Senator Carol Moseley Braun in an elevator, and Cynthia, you’ve made very clear why these issues break down for with regard to representation of women in government, so let’s talk about this one-person, one-model, and you know this one person, one vote, and what it means to be represented.

So, Puerto Rico’s population is larger than 20 states, and if you toss in Washington D.C. there, then you have these two communities, these two places, these two areas of our country where there’s no possibility, as exists right now, of the election of senators, so can you tell us a bit more about what that all means, Barbara, you’re in D.C. now, am I correct with that?

0:33:45.8 Barbara Arnwine: 

Well, it means a lot of things. I mean, people got to understand, you know, the stacking of the courts is not just something academic, it has real impact on people’s lives and real impact on the rulings. Right now, the Supreme Court is listening, getting ready to decide this year, this term, they will decide what’s called the Brnovich v. the Democratic National Committee case. They just had an argument on it on March the 2nd, and this is a case challenging Section 2 of the Voting Rights Act, and Section 2 of the Voting Rights Act is the foundational part of the Act that sets forth what is the standard of liability for engaging in racial discrimination in voting. It basically prohibits racial discrimination in voting, and the court is trying to chop at the edges by looking at whether or not they can impose an intent standard into the Section 2, which now not only allows you to find intent, purpose, et cetera, but it also allows you to look at the effect of various measures and how they impact upon voters of color because of the…once again, the racial coding, people don’t say out loud that they’re trying to discriminate, although they do discriminatory things, so that’s, you know, just one of the problems is the courts, but let’s also talk about the impeachment that just happened. 

I don’t know if most Americans realize that we have this disparity that in our Senate, you have more population, remember, you know, the Senate composition is based on statehood not population, so you have this real disparity that in the senate, you know, California, where you sit, has 40 million voters but you get only two senators.

There are 15 states where the combination of all the population, it’s only 30 million. Fifteen states, that means they got, what? They’re sitting up there with 30 senators, and they have less population by far than the one state, that’s the…right, but California, that’s the discrepancy that we’re not talking about because if you look at the impeachment vote—and especially if you look at the vote for conviction in the Senate—you will realize that of the senators who voted, you know, for the conviction, that they represented 76 percent of all of the United States population—76 percent! Yet, they were defeated by people who represented less than that. That’s what wrong with our system.

You know, remember, the republican system of government that we have, this democracy, this republican democracy is meant to be representative, that you elect representatives to represent the people in the governing bodies of the House and the Senate. Unfortunately, that is totally askew. It is totally whacked in our face, right now, and it’s getting worse, by the way. It’s going to be much worse in the next four years. 

0:37:38.5 Michele Goodwin: 

So Rick, let me turn back to you again, you’ve recently written a piece in Slate. Of course, you’ve recently written a piece in Slate, you have so much great opinion editorials out there in scholarship. But let’s turn back to something that we’ve heard just now from Barbara and that we’ve heard earlier in the show from you, which is that California is the fifth largest economy in the world. And as the fifth largest economy in the world, it’s home of almost 40 million people. 39.5 million people to be exact, or according to your article. And when you think about it, Wyoming has the same number of senators, as does California. And Wyoming is so drastically different in terms of its population. It has 600,000 people. So what’s the point then that you’re trying to drive home in this work that you’ve been doing? It might seem obvious to some, but clearly, it’s a point of debate. And so I’d like to hear you say a little bit more about what you’re trying to drive home and please express it for our listeners.

0:38:34.8 Rick Hasen: 

Well, I think the idea is that if we’re going to take ourselves seriously as a democracy, democracy is a place where the people rule, and of course, we have to protect minority rights—but when a majority of the population wants something, you know, democratic principles are that they should get it, and that’s pretty much how things work in a system where each person has an equally weighted vote, but then there are things that can distort that.

You know, one thing, which has been mentioned briefly is partisan gerrymandering in the house where lines are drawn in certain ways to try to manipulate the process, and there are ways to get around that, as Cynthia mentioned, like ranked-choice voting, as an alternative to using regular districts. There are all kinds of things that we could do to make things more democratic, but in the Senate, we’re really stymied because the two senators per state rule is just a huge impediment because of what’s called bicameralism, the fact that you need everything to pass the House and the Senate. The Senate is the major roadblock to reform. 

The other place where we see this is in the electoral college, because the electoral college uses…every state gets a number of electoral college votes for choosing the president. That equals the number of the members of the House and the two senators, so it’s a system that builds on the inequality in the Senate, and then parlays that into a choice of president, so you know President Trump could have gotten, in some scenarios, 7 percent fewer votes overall and still become president, and you know a shift of 50 thousand votes in the last election, and he would still be president today, so you know we’ve got all of these systems that are unequal, and they may have made sense at the time that the Constitution was established.

Remember when the Constitution was established, only property ownered white men were voting, so you know, obviously, our sense of what democracy is has changed in lots of ways, fortunately, since then, but this has continued to stick, and so the reason I’ve suggested blowing up the filibuster for voting rights reform, in particular, is because it’s a way to try to prevent further anti-Democratic measures, which are being considered. We know there are something like 250 bills being considered in states, right now, to make it harder for people to register to vote, and Congress could block a lot of that through a piece of legislation, whether it’s HR1 or a narrower piece of legislation, which I would favor, so there’s lots of things that could be done and should be done now so that we don’t perpetuate the anti-democratic features of our American political system. 

0:41:32.8 Michele Goodwin: 

So, with that, Cynthia, you have been articulating about increasing the number of seats in the House of Representatives, and in part, this is because of a lack of gender sex equality or representation that you’ve seen in that body, and you know what you’ve said is that there is a disadvantage in the way in which we see women in power, basically, in Congress.

So given the conversation that we’re having, as we’re thinking about racial equality, as we’re thinking about one-person, one-vote, how does this set the stage for the work that you’re doing and why do you think it’s so important that the system … that we shift in the system to provide for something more aggressive in terms of women’s representation. Some would say these models work, just give them time to work, but it seems that what you all are saying is that that’s just not where we are today, these are broken systems?

0:42:45.4 Cynthia Richie Terrell: 

Yeah, I’m not sure who is saying these systems work. I suspect I wouldn’t want to have dinner with these people, whoever those people are. But I think that we, as Rick said, at the outstart of this nation, there were very restrictive rules as to who could participate and who had power, and we’ve seen a slow but steady expansion of the franchise in the last 250 years or so.

The 15th Amendment was passed, and the 19th Amendment was passed, and we lowered the voting age, and we have adopted reforms that we thought ensured more ability for people to participate, whether that’s the Voting Rights Act, and then in response to the COVID crisis, a big expansion of the vote-by-mail program to make sure that anybody who was eligible to vote had a ballot and could cast that ballot, and I think we have an opportunity now to recognize that we do have a lot of antiquated rules.

One of the consequences of being one of the oldest democracies is that our rules are among the most antiquated. There’s no country in the world with an electoral college. If we started using an electoral college to elect governors, I suspect there’d be a hue and cry, people would say, wait, that’s ridiculous, who, what, that doesn’t make sense, we’re not going to like let counties elect the governor. 

So we have old rules, and that’s a challenge, and that’s unfortunate, but the good news is, I think, the direction this conversation can go now is there are a lot of opportunities to be focused and collaborative and recognize that building new systems and new rules benefits everybody. It benefits people who’ve been marginalized by the process, it benefits people who are currently part of the process by giving government more agency and giving people more faith in government when they see people who look like them or talk like them or act like them, that enables the United States to more effectively do our work together, I think, so not to be too grandiose about it, but I think that it’s incumbent upon us…those of us on this call and many others, who care about not only democracy internally here in the United States but the kind of outsize impact we have on the rest of the world to come to terms with what we can do together, and you know there are lots of things, I suspect, the three of you are more expert on this, but certainly, things around restoring the pre-clearance in the Voting Rights Act is a place to start, and many of the provisions in HR1.

I would say there are some important things to do that address some of the root causes of the problem that HR1 doesn’t quite get to, and happy to talk more about that, but some of the problems around our winner-take-all system, and I would argue the single-winner system, which really limits competition and makes parties safe for one seat or the other is part of the problem.

But part of the solution to that has got to be a system that’s fair to all, and I would argue a multi-seat ranked-choice voting system that creates a five-seat district, just as an example where moderate Republicans can get elected in New York City or in Massachusetts or in Maryland, and Democrats would be elected from Oklahoma, you’d have multiple constituencies of color having enough voting power to elect candidates of choice, and you’d likely see about a 40 percent increase in the number of women serving in that model, so those are three core elements—partisan fairness, racial fairness and gender fairness—that I think have the power to come together to work for reforms that better reflect all of our interests. 

And I think when the situation is as dire as it is, is no time for incremental change, but it is time for thoughtful targeted reform, and we can do that change, we can make those changes, at least in the House of Representatives.

I’ll add, and I’m curious to know what my fellow panelists think of this, but we haven’t expanded the House of Representatives since 1910, and each decade prior to that, we’d added members to make it more proportional to the population. Now, we have one of the highest ratios of constituents to members of Congress, members of the House, of any country in the world, and I and my organization Represent Women, supports expanding the size of the House partly because I think it would create a lot of open seats that women and people of color could run in and win, but I think that also having that conversation now is a way to open the door to the greater conversation.

0:48:07.0 Michele Goodwin: 

Well, it’s interesting that you should say that and as we begin the process of wrapping up this show, and boy, we really could spend far more time on these issues. They deserve more time. This is really a civics lesson also for a lot of people, including our listeners, and people that will hear this because our listeners are sharing it with their friends. I mean even thinking about the Electoral College, and what we’ve been talking about. Rick, I wonder if you could just give us a really quick explanation of exactly what the electoral college is and what that voting structure happens to be because many of our listeners may not know how that’s implicated in a longer, larger history in our country, and how it ties together today with questions regarding voter suppression. So, Rick, can I turn to you really quickly, to just help our listeners understand the electoral college.

0:48:59.2 Rick Hasen: 

All right, so the electoral college is part of kind of the same pieces of the Constitution that don’t have direct voting based on a majority vote, so we don’t just have a national popular vote where whoever gets the most votes win. If we had that, then Joe Biden under…you know, maybe things would look different if both candidates were campaigning for the national popular vote, but we did have Biden winning many millions more votes than Trump did. 

The way it works is people vote in their states, and each state gets a number of electoral college votes equal to the number of senators, which is two, plus the number of Members of Congress, so each state has at least three votes, D.C. also has three votes even though they don’t have representation in these other values, but they do get to vote for president. Puerto Rico gets no vote, you know, the other U.S. territories get no vote, Guam, Virgin Islands, they get no vote.

And then it takes 270 to win, and so it is…there are 538 total electoral votes, and so you have to create a coalition across states to be able to win in this way, and so it’s, rather than again appealing to what the majority of Americans want, you have to appeal to what majorities want in each of a number of states to make up your building blocks, and that’s why, you know, things turned on a few states this time, you know, about 11,000 votes in Georgia and 14,000 votes in Arizona, those had been different, you know, we’d be looking at a completely different system.

And even on top of this, and I’ve written a lot about this, it’s not automatic that once those votes are recorded that we have the choice of president. There have been all kinds of roadblocks, and we saw this even in the counting of the electoral college votes on January 6, when we had that terrible insurrection, and we shouldn’t allow that moment to pass, but…

0:51:01.8 Michele Goodwin: 

Horrible. Horrific. 

0:51:03.3 Rick Hasen: 

There were 147 members of the House and Senate who objected to the counting of votes in Arizona and in Pennsylvania even though there was no basis whatsoever to believe that the electoral college votes in those states were somehow illegitimate, and I mean, that is a topic for another show, but it just shows you that our system of democracy is very creaky in terms of its procedures, and it shouldn’t be that some senators and representatives can mess with the will of the people, or the will of the people as expressed through the states, by raising totally bogus objections and potentially trying to manipulate election results, so we’ve got a lot of problems. Even if we wanted to stick with the electoral college, we’ve got a lot problems with how we implement the electoral college that creates lots of room for mischief the next time around. 

0:51:49.5 Michele Goodwin: 

All right. So just a really quick follow up. I want to get to voter suppression before we end in our silver linings. What would it take to change that, Rick? I mean, I think you make a very strong case, and you have across books and articles, that this is a flawed system. Its legacy comes from a time in antebellum history in our country, slave history in our country. What would it take to change that?

0:52:13.0 Rick Hasen: 

Well, you’d need a constitutional amendment. There is a proposal for something called the National Popular Vote Compact, which would be an agreement within states to try to get around the electoral college votes. I’m not a supporter even though I would support amending the Constitution because I think states could try to pull out of the compact at the last minute and there are Constitutional questions about it.

We’re really stuck, and you know I think it’s going to take more national crises before we could actually change it, because to change the electoral college, to amend the Constitution, you need super majority vote in Congress and you need three-quarters of state legislatures to agree, and there are lots of states, that small states and battleground states, that benefit under the electoral college system, but they wouldn’t agree to change, so we have a Constitution that is too hard to amend, and so we’re stuck with a system that has many anti-democratic features and no easy way around them.

0:53:06.1 Michele Goodwin: 

That’s interesting. I mean, some people would argue that it’s good to have a constitution that’s not easy to amend. And what you’ve put on the table for this show certainly makes it clear that we’ve got some trouble that will continue ahead. And on that note, Barbara, I’d like to turn to you and then also Cynthia with regard to voter suppression, because we’ve talked about the filibuster. We’ve talked about the two state senator model, and we’ve talked about the electoral college and yet, how many parts of the country do we see people standing in line seven hours waiting to vote? We see so many barriers to voting. Can you give us some sense of what you’re fighting for?

0:53:49.5 Barbara Arnwine: 

A couple things, really quick, the electoral college is a slavery provision. People need to understand that, that we have an electoral college because it is based on our history of slavery. It was to give the southern states power, unusual power to make sure that they could dominate within our legislature, so we need to be very clear about the origin of where the electoral college comes from—that it was never meant to be a democratic measure. It was in fact meant to be a racial control measure. 

In fact, you know, I have a lot of problems calling a lot of what we’re dealing with bipartisanship or partisanship because a lot of this, as we saw at the Capital during the insurrection, is white supremacy voting rules, it is the effort to enshrine and to encapsulate and to preserve white supremacy in this country.

So that’s why we’re seeing the 250 bills and 43, some people say it’s 45 states, they’re growing every day, people are calling me, you know, I work in this area, and you can read my 61 forms of voter suppression, which, frankly, Rick and Cynthia, is out of date, I need to add at least seven more because these states have gotten really creative in their voter suppression, but that, you can find at votingrightsalliance.org. But that shows, you know, what’s going on.

This battle over voter suppression is not new: We are in fact in the 10th year of the modern era of voter suppression, and it’s the 10th year, and people need to understand that they’ve been building this process now for 10 years based on fear of demographic change, based on fear of a more representative America, based on the desire to have an artificially constrained electorate, so you know when people are saying as David Ralston allegedly said in a meeting of the Republicans in Georgia that his objective was to cut the Black vote by 40 to 50 percent, that is what they’re doing. When they talk about shrinking the electorate to have a quality electorate, that’s what they’re talking about.

0:56:16.2 Michele Goodwin: 

It sounds like apartheid-type politics.

0:56:18.3 Barbara Arnwine: 

Oh, absolutely. I’ve been warning about this, and people have been saying that Arnwine is just crazy, but I have been warning that, you know, with demographic change, that we would see a reaction where the upcoming minority in response to the ascendant majority would in fact get worse and double down on voter suppression and voter restrictions. 

I also want to say that, you know, Cynthia, when we’re talking about women, you know, I’m a Black feminist, right, and when we talk about women, one thing we got to be very clear about is that we got to really look at the special barriers that exist for women of color, and you know I don’t have any affinity with a Marjorie Taylor Greene, none. You know, we may be the same gender, but she is about a white supremacist culture, and that’s why I said it’s not partisan because it’s not just Republican, I mean, this girl believes in QAnon, I mean, QAnon, I mean, this is some crazy stuff.

So we need to understand what’s going on in our society and that there needs to be, you know, if we’re going to have a representative government, we really got to look at removing all the barriers that attempt to restrict and constrain the emerging power of African Americans, Latinos, Asian Americans, Native Americans and youth voters. Let it be very clear, a lot of the racial discrimination is against people of color, but a lot of it also is against young voters because they don’t like the way young voters vote, and so much of this is party, what I call result oriented, and white supremacy is at the bottom of everything we’re talking about.

0:57:58.9 Michele Goodwin: 

My goodness. On that note, we’ve come to a time in our show where we wrap up on a question with regard to silver linings and this could go on, we could do another half hour but we’re going to wrap up here on that note. So I want to start with you, Cynthia first. Even with everything that we have put on the table in the show, that you’ve articulated, that Barbara has articulated, that Rick has, what’s a silver lining? Do you see a silver lining coming forward?

0:58:32.4 Cynthia Richie Terrell: 

It’s not that I’m spellbound, it’s that I just…I…I hope so. I hope that the assault on our democratic norms is an opportunity for people from some width of the American political spectrum to come together to support the rules of the game as they have evolved. Sports is so popular, I’ll use that as an analogy: Once you agree to play sports together, you agree on the rules, you respect the rules, if you lose, you don’t call the other team a cheater, you know, I feel like if, you know, people who are fans of football or soccer or women’s basketball or whatever can agree on rules, we as small-D democrats can do the same,

Another silver lining for me, at least, is that there’s greater awareness. I believe from some in the nonprofit community that there are models outside of the United States that are working to enfranchise more people, to elect more people to office, to create more accountable and transparent democracies, and I support that work, and I applaud that work, and whether it’s on racial and ethnic representation or better processes of government, or women’s representation, I think we have a lot to learn from what’s going on outside the United States borders. Not to say that we can just lift that up and adapt it miraculously for use in the United States, but I guess, that’s where I actually see the most hope is not only in the movements that are outside of governments around the world, Climate Clock that my daughter’s helping to run, you know, getting young people involved, but also the processes within government, so that’s my silver lining. 

1:00:19.0 Michele Goodwin:

Thanks so much, and Rick, what about you: silver lining?

1:00:22.6 Rick Hasen: 

So, I think we’re aware of problems with voting rights in a way that we haven’t been before. It was a major issue in the 2020 election, and a lot of these…we can’t count on the courts to save us, we can’t count on the Constitution to be amended, so a lot of this is going to be a political battle, and so there was an article that recently appeared in CNBC about how voting rights activists in Georgia are pressuring Coca-Cola and Delta and UPS, big companies in Georgia, saying look, either stand with voting rights or we’ll let it be known that you’re not, and I think political action on the ground, I think of the Moral Mondays Movement in North Carolina and Reverend Barber—it’s activism that is going to be what’s going to save voting rights in a lot of parts of this country. It’s not going to be John Roberts Supreme Court, and it’s not going to be an amendment to the Constitution, and it’s likely not going to be a blowing up of the filibuster. It’s going to take a lot of hard work on the ground, there are going to be some losses, but there are going to be some victories, and there already have been.

1:01:27.4 Michele Goodwin: 

Thank you for that, Rick, and then, Barbara, closing off with you with a quick silver lining, what lies ahead?

1:01:33.4 Barbara Arnwine: 

Well, the silver lining, we saw it in 2020, it’s American voters, you know, American voters got out there and voted like hell, they voted in COVID, they taught themselves how to vote early, and we, the groups, take a lot of credit for that, too, because the states weren’t doing what we did, which was to tell people to vote early. We told them to avoid the USPS, we taught people how to use an absentee ballot, how to vote by mail, and remember, I mean, I could go into a lot of this, but also, you know, we taught people to be safe when they were voting in person, so we got the PPE, we put millions of dollars into protecting voters.

I just think that people need to really understand that the American voter…I mean, the truth of the matter is those extra 7 million, you know, the 81 million voted the right way, in my opinion, to do the right thing, that they took huge risks to make that happen.

 The 2020 election saw a massive expansion in vote by mail nationwide. (Holly Hayes / Flickr)

The only way we’re going to beat voter suppression in this country is we got to show them that no matter what they throw at us, we overcome it, that no matter how they do it, we overcome it, that we still will vote, we still will be out there, we’re still going to do what’s necessary, that we’re going to fight for a real democracy. We’re not going to take this nonsense of unrepresentative government, that we’re going to fight back on the voter suppressors, and we’re going to win, like we’ve been winning, like we won in 2020, like we won in 2021, like we’re going to win in 2021, and like we’re going to win in 2022. We’re not playing.

You know, women’s representation was 104th in America before the 2018 elections, it’s now 75th roughly, you know, in the world or less. I mean, that’s us, we did that. We will continue to fight, and leaders like me and all my colleagues all over the country, we’re not giving up, we’re audacious, we’re unstoppable, the people are unstoppable. 

1:03:38.6 Michele Goodwin:

On that note, I want to thank my guests for being with me today for our show, for the work that you do, thank you, Cynthia, thank you, Rick, thank you, Barbara. 

Guests and listeners, that’s it for today’s episode of “On the Issues with Michele Goodwin.” I want to thank my guests, Barbara Arnwine, Rick Hasen, and Cynthia Richie Terrell for joining us and being part of this critical and insightful conversation. And to our listeners, I thank you for tuning in for the full story, we hope you will join us again for our next episode where we will be reporting, rebelling and telling it like it is with special guests tackling issues related to how do we dismantle a culture of sexual violence. We’ll be joined by Carmen Valentine and Dr. Terrion Williamson. It will be an episode you will not want to miss, and for more information about what we discussed today, please head to msmagazine.com. 

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This has been your host, Michele Goodwin, reporting, rebelling, and telling it like it is. “On the Issues with Michele Goodwin” is a Ms. Magazine joint production. Kathy Spillar and Michele Goodwin are our executive producers. Our producers for this episode for Roxy Szal and Mariah Lindsay. We thank Oliver Haug for research and digital assistance. The creative vision behind our work includes art and design by Brandi Phipps, editing by Will Alvarez and Marsh Allen, and music by Chris J. Lee. Stephanie Wilner provides executive assistance.