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A Proposed Compromise on the Filibuster

By / 2.12.2010

Ezra Klein links to a Slate article by Ben Eidelson that, I think, is quietly devastating to the idea that the Senate filibuster has somehow destroyed the democratic process. Eidelson shows that from 1991 to 2008, in the typical successful filibuster, the senators behind the filibuster (i.e., opposing the cloture motion) represented states comprising 46 percent of the U.S. population. If filibustering Senators represented 51 percent of the population, then we would conclude that the typical successful filibuster was supported by senators representing a majority of Americans. In that case, at least by small-r republican principles, the filibuster would protect the will of the majority.

Forty-six percent is not 51 percent, of course. But here’s another way of thinking about the effect of the filibuster. It could be argued that, to account for the fact that most Americans’ views on most issues are only weakly held, we should have a higher threshold for legislation passing than support by a simple majority of senators, or even support by enough senators to represent a simple majority of Americans. Instead, for legislation to pass, we might decide that enough senators representing 55 percent of Americans should support the legislation. If that were the procedural guideline, then on average, the way the filibuster has worked has been consistent with that guideline.

For the practice of the filibuster when Republicans have been in the minority to be consistent with a procedural guideline, the rule would have to be that enough senators to represent 60 percent of Americans should support the legislation (see Eidelson’s table). Interestingly, however, despite the greater use of the filibuster among Republicans, in Eidelson’s data Republican minorities had an average of 20 successful filibusters per Congress, compared with 16.6 successful filibusters per Congress by Democratic minorities. That’s a fairly small difference, although the current Congress is not included in these figures.

Unlike most progressive bloggers, I remain ambivalent about the filibuster. Eidelson’s data shows that Republican filibusters are much more likely to be anti-majoritarian than Democratic filibusters (even if they are not dramatically anti-majoritarian). He proposes as a compromise, replacing the 60-vote rule for cloture votes with a 55-vote rule, which historically would have eliminated most successful Republican filibusters while retaining most successful Democratic ones. Another compromise that’s consistent with small-r republicanism and small-d democracy that might be more palatable to Republicans would be to implement instead something like a 55-percent-of-the-population rule for cloture votes (while still requiring a majority of senators too). This would set a higher threshold for support than simple majority-senator-rule, would ensure that small-state senators could not thwart the preferences of senators representing a solid majority of Americans, and would not have such dramatically partisan consequences compared with a 55-vote rule (meaning it would have a better chance of being implemented).