Why the filibuster is OK for Democrats but not for Republicans.

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Feb. 8 2010 4:31 PM

Let the Majority Rule

Why the filibuster is OK for Democrats but not for Republicans.

The unraveling of the congressional debate over health care reform is already renewing calls to abolish the Senate filibuster. As many have argued, the filibuster undermines the democratic principle of majority rule and compounds the unrepresentative character of the Senate's design. The health care debacle suggests that the filibuster may also be rendering our country ungovernable. So why not just do away with it?

Because one of the most entrenched assumptions about the filibuster—that it thwarts majority rule—is only half-true. When you crunch the numbers, it turns out that the filibuster has often served to enforce majority rule in recent years, not to undermine it. Instead of abolishing the filibuster, we should try to curb its undemocratic excesses while preserving its role as a democratic check.

Of course, the filibuster is by definition a tool for a Senate minority to obstruct a Senate majority. But since Rhode Island and California enjoy equal representation in the Senate, a majority of senators isn't the same as a majority of Americans. To gauge the relationship between the filibuster and national majority rule—the kind where everybody counts equally, and the representatives of the majority carry the day—it's necessary to look at the data.

Majority Party Successful Filibusters Average Percentage of National Population Represented Do Opponents of Filibuster Represent National Majority?
           
Democrat 63 Opponents of Filibuster: 59% Yes: 97%
Supporters of Filibuster: 41% No: 3%
   Republican  89  Opponents of Filibuster:  50%  Yes:  36%
 Supporters of Filibuster:  50%  No:  64%
 

Data from 1991-2008. All figures are rounded to the nearest whole number. "Successful filibusters" are defined as cloture votes in which there were more than 50 but less than 60 yea votes, with repeated votes on the same measure at the same procedural stage excluded.

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To do this, I downloaded records of all Senate votes on cloture motions—used to limit debate—from 1991 to 2008. For each of the 152 votes where a filibuster successfully thwarted a Senate majority, I tallied the populations represented by the senators who supported the filibuster. (A more technical explanation—including some significant details I've glossed over—is available here.)

What do these calculations reveal? First, over the past two decades or so, the senators who successfully filibustered something represented about 46 percent of Americans on average. Yes, that is a minority—but it is a far cry from the nightmare scenarios sometimes deployed by opponents of the filibuster, who worry that as little as 11 percent or 12 percent of the country could obstruct popular legislation. Since 1991, in fact, there have been only four filibusters—3 percent of the total—that thwarted senators representing more than 65 percent of the American people.*

What's most striking, though, are the many cases in which the filibustering Senate minority has actually represented a majority of Americans. In fact, in 40 percent of the filibusters since 1991, the senators making up the "obstructionist" minority represented more people than the majority they defeated.

The traditional debate over the filibuster—which equates filibustering with a minority veto, and then argues the merits of giving the minority such a prerogative—entirely misses this fact. Democratic filibusters against President Bush's judicial nominees were decried as undemocratic usurpations, for example. But nearly all of them fell into this category of "majority rule filibusters."

This example is typical of a more general partisan pattern. When Republicans have been in the majority, the filibustering minority has actually represented the majority of Americans 64 percent of the time. When Democrats have been in the majority, that figure plummets to 3 percent. So the charge that it is somehow hypocritical for Democrats to decry Republican filibusters as affronts to majority rule—if they also stand by their past decisions to filibuster the Republicans—is easily answered. When Democrats have filibustered Republicans in recent years, they have very often represented more Americans than the Republican majority; the same is almost never true in reverse.

All of this suggests that reformers should not be too quick to reject the filibuster outright as an impediment to democracy. During recent periods of Republican control, the filibuster has served as a democratic backstop that counteracts the structural inequality of the Senate—often empowering a majority of Americans, acting through their senators, to veto extremist bills or nominees.

It's difficult to weigh this counterintuitive benefit of the filibuster against its obvious democratic costs. Fortunately, however, retaining the filibuster in its current form and eliminating it are not the only options. Indeed, politically speaking, abolishing the filibuster outright may not be an option at all. Instead, then, frustrated progressives should propose to simply reduce the 60-vote threshold. Such a change could preclude many of the most tyrannical minority filibusters while retaining most of the filibusters that enable national majorities to exercise a democratic veto.

After all, the larger a Senate majority is, the more likely it is to represent a majority of Americans. So if 55 votes were required to break a filibuster, rather than 60, many filibusters would be prevented—but most of the filibusters that block unrepresentative Senate majorities would be preserved. The evidence from the past 18 years bears out this theory. With a 55-vote threshold, 60 percent of the "minority rule" filibusters would have been prevented, but 78 percent of the "majority rule" filibusters would have remained intact.

Even if it is interpreted conservatively, this historical thought experiment illustrates a crucial point. If lowering the cloture threshold represents a compromise relative to the principled goal of abolishing the filibuster, it is not nearly as large a compromise as we might have thought. Despite the conventional wisdom, many of the filibusters that would remain with a reduced cloture threshold would be perfectly consistent with majority rule—and a small-d democrat should generally applaud these, not regret them. At the very least, those who would abolish the filibuster for ordinary legislation should consider retaining it, with a reduced cloture threshold, for approval of presidential nominees. Because the House of Representatives has no say in these cases, filibusters can impose a vital democratic check on narrow Senate majorities that represent a minority of the American people.

The fact that the conversation over Washington's paralysis is turning to institutional reforms is a hopeful sign. As this discussion gets under way, however, reformers should remember that the filibuster sometimes protects the kind of majority rule that it is usually assumed to undercut. We should do what we can to preserve this democratic function. That might mean pursuing the kind of moderate compromise—simply reducing the number of votes needed to end a filibuster—that has the best chance of succeeding anyway.

Correction, Jan. 3, 3014: This article originally misstated that since 1991 there have only been four filibusters, making it 0.03 percent of the total. It represents 3 percent of the total. (Return.)

Ben Eidelson is a graduate student in political philosophy at Oxford University.

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