The Senate Has Surrendered Its Constitutional Responsibilities

If Senators were elected using Condorcet-based voting methods, they would be able to perform their constitutional duty to thwart presidential despotism.

There may be no more urgent task at the current moment than enabling Americans to understand why the nation is in its current predicament and what is the remedy. If you agree with the analysis in this essay, please share it with others. Thank you.

The Senate is failing America again and again, but electoral reform can restore the Senate to its essential role of protecting against an autocratic president.

By confirming presidential nominees they know are not just unqualified but dangerously so, Republican senators are abandoning their “advice and consent” function. Their own former leader, Mitch McConnell, excoriated Tulsi Gabbard as an “unnecessary risk” prone to “alarming lapses in judgment”, yet he was the sole Republican senator to vote against her becoming director of national intelligence. McConnell likewise condemned Robert F. Kennedy, Jr. for his “record of trafficking in dangerous conspiracy theories and eroding trust in public health institutions”, but again no other GOP senator joined him in opposing Kennedy’s nomination to head the Department of Health and Human Services.

Earlier, only three Republicans (including McConnell) voted against Pete Hegseth for Secretary of Defense, despite his record of reckless behavior that makes him not merely ill-suited to run the Pentagon, but a blackmail risk or a threat of being incapacitated from alcohol abuse at a moment of national emergency. Kash Patel’s exceptionally poor judgment caused Bill Barr, attorney general in Trump’s first administration, to declare that Patel would become the FBI’s deputy director “over my dead body,” yet the Senate is now poised to confirm him for the FBI’s top position. The abdication by Senate Republicans of their constitutional duty to block irresponsible presidential appointments is only the most recent sign that the Senate has become incapable of performing its crucial part in the Constitution’s system of checks and balances.

Republican senators failed even more catastrophically when, in the context of impeachment, they refused to disqualify Trump after his concerted efforts to overturn his defeat in the 2020 election. Once Trump demonstrated his willingness to destroy the Constitution in order to cling to power, no reasonable senator could have believed that it was safe to let Trump become president again. Yet only seven Republican senators joined all fifty Democrats in voting to convict Trump for instigating the January 6 insurrection, falling ten votes short of the constitutionally necessary number—because no other Republicans were willing to cross Trump.

The problem is not that Republican senators don’t know what they should do to safeguard the nation from Trump. It’s that the senators refuse to act in accordance with their own beliefs. The reason for their refusal is obvious. As longtime political analyst Charlie Cook observed, “You sit down with Republican senators and one thing that comes through—they are absolutely terrified of a primary challenge.”

To repair the broken Senate, we need to change the way senators are elected. Recall that senators have been popularly elected only since the Seventeenth Amendment to the Constitution was ratified in 1913. (Originally, senators were elected by state legislatures.) For most of the twentieth-century, partisan polarization was relatively low, so the specific method of popularly electing senators didn’t make much difference. (When polarization is low, moderates are generally elected whatever method is used.) Now that polarization has skyrocketed in this century, the way most states elect senators—which includes partisan primaries as the first step of the process—has caught up with us and prevents the Senate from performing its constitutional duty of thwarting presidential despotism.

It’s possible to replace partisan primaries for Senate elections nationwide with nonpartisan primaries like those in California and Alaska. These nonpartisan primaries, which have all candidates run against each other regardless of their party affiliation, give Republican senators a chance to appeal to their state’s entire electorate without first clearing the hurdle of winning a MAGA-dominated GOP primary. But, depending on how many candidates advance from the nonpartisan primary to the general election and how the winning candidate in the general election is determined, the system may not enable candidates to demonstrate that they are preferred by a majority of voters to each of their competitors.

In California, only two candidates advance from the nonpartisan primary to the general election. The consequence can be that a third candidate whom a majority of voters prefer to each of the other two is left behind. This “center squeeze” is most likely to occur under conditions of polarization. Voters on the left support a Democrat, voters on the right support a MAGA candidate, these two advance, and a more moderate non-MAGA Republican in third place doesn’t. Yet a majority coalition of Democrats and centrist voters would prefer the non-MAGA over the MAGA Republican, and a majority coalition of MAGA and centrist voters would prefer the non-MAGA Republican over the Democrat, making the non-MAGA Republican the only candidate favored by a majority against each opponent.

In Alaska, four candidates advance from the nonpartisan primary to the general election, where “instant runoff voting” is used to determine the winner. But the instant runoff replicates the center squeeze. This procedure has voters rank candidates in order of preference and then eliminates candidates with the fewest first-choice votes. When the electorate is polarized, candidates in the center are eliminated, and the election ends up between one candidate from the left against one from the right.

There is an election procedure that eliminates this center squeeze. It stems from the work of an eighteenth-century French mathematician, the Marquis de Condorcet. Condorcet’s great insight was that in any election involving more than two candidates, the candidate most representative of the electorate as a whole—and thus deserving to win—is a candidate whom a majority of voters prefer to each other candidate when candidates are compared head-to-head, two at a time.

After Condorcet, scholars have developed various voting methods that ensure the election of a Condorcet winner. The simplest would be a nonpartisan primary of the kind that California and Alaska use with three candidates advancing to the general election rather than two or four. In the general election, voters would directly express their preference for each pair of candidates: A versus B, A versus C, and B versus C. The candidate who receives more votes against each opponent would be the Condorcet winner. (In the case that none of the three candidates beats both opponents, which would be rare, the candidate who comes closest to being a Condorcet winner by having the smallest margin of defeat would win the election.)

It is instructive to consider how different the Senate would be if this Condorcet-based electoral system were in place. Senators Cassidy and Collins, for example, wouldn’t have to worry about voting against the nominations of Robert Kennedy, Jr. and Tulsi Gabbard. It’s clear that they didn’t want to support these nominations but did anyway to avoid the threat of a primary challenge from Trump’s MAGA supporters. Senators Cassidy and Collins would most likely be Condorcet winners against both a MAGA opponent and a Democrat, but they would have trouble surviving a center squeeze. A Condorcet-based system would give them—and many other non-MAGA Republicans, like Joni Ernst, who under pressure abandoned her opposition to Pete Hegseth’s nomination—the fortitude to stand up to Trump.

If we had already been conducting Condorcet-based elections for senators, there would be more non-MAGA Republicans and fewer MAGA ones in the Senate. In North Carolina’s 2022 Senate election, for example, Trump-endorsed Ted Budd, one of the election denialists who supported Trump’s attempt to subvert the 2020 election, beat a traditional Republican, former governor Pat McCrory, in the GOP primary and then beat the Democrat in the general election. But McCrory would have been the Condorcet winner in that race. Likewise, in Ohio’s 2024 Senate election, Trump-endorsed Bernie Moreno beat non-MAGA Matt Dolan in the Republican primary and then unseated Sherrod Brown, the incumbent Democrat. Dolan, too, would have been a Condorcet winner.

Using a Condorcet-based system for Senate elections, in sum, would give us a fundamentally altered Senate—one not beholden to Trump. The senators elected in that system would better represent their constituents because they would be the candidates preferred by more voters against each opponent, rather than candidates benefitting from an unrepresentative center squeeze. More importantly, once in office, senators would be immunized against the electoral pressure that prevents them from counteracting a dictatorial president.

James Madison in the Federalist Papers explained that the Constitution’s separation of powers would shield the Republic from tyranny. If we are to save the Madisonian system of checks and balances, we need Condorcet-based elections for the Senate. Indeed, late in life, Madison himself acknowledged the virtue of Condorcet-based voting. Writing to a friend, Madison observed that “it not unfrequently happens, that the Candidate third on the list of votes, would in a question with either of the two first, outvote him, & consequently be the real preference of the Voters.”

The Constitution grants states the power to enact the procedures for Senate elections. States where Democrats, independents and non-MAGA Republicans collectively form a majority of voters—which is true of many states—should exercise this power as quickly as possible to adopt the electoral method that Madison, long after he helped write the Constitution, recognized is the best way to ascertain “the real preference of the Voters.” Otherwise, we may no longer have a Senate capable of preserving the Constitution from a president determined to destroy it.