The majoritarian filibuster.

• Author: Eidelson, Benjamin

NOTE CONTENTS INTRODUCTION I. THE FILIBUSTER AND THE FILIBUSTER DEBATE A. The Filibuster and the Cloture Rule B. Internal and External Majoritarianism II. QUANTIFYING THE FILIBUSTER'S EFFECT ON MAJORITY RULE A. Conceptual Overview B. Operationalizing the Filibuster III. RESULTS A. Overview of the Data B. The Countermajoritarian Filibuster C. The Majoritarian Filibuster D. Rethinking the Filibuster Debate IV. IMPLICATIONS FOR REFORM A. Abolishing the Filibuster B. Reducing the Cloture Threshold C. The Sliding-Scale Proposals 1. The Harkin-Lieberman Proposal 2. The Frist Proposal CONCLUSION APPENDIX: FILIBUSTERS OF PRESIDENTIAL NOMINATIONS INTRODUCTION

The basic contours of the debate over the Senate filibuster are settled and familiar. Critics argue that the filibuster undermines democratic values by allowing a minority to veto legislation or nominees favored by the majority. (1) As one academic critic recently put it, the filibuster poses the "most troubling countermajoritarian difficulty in modern constitutional law." (2) Moreover, according to its detractors, the filibuster is particularly indefensible because it compounds the malapportionment that is hardwired into the Senate's design. "[I]t is now possible," we are told, "for the senators representing ... a little more than 11 percent of the nation's population ... to nullify the wishes of the representatives of the remaining 88 percent of Americans." (3)

The standard reply, of course, is that a measure of countermajoritarianism isn't such a bad thing. The filibuster prevents a narrow Senate majority from enacting an ideological agenda out of proportion to its electoral mandate. (4) It forces the majority to compromise with the minority, and thereby "keeps whimsical, immature, and ultimately unpopular bills out of the statute books." (5) Indeed, as we are also often told, the whole design of our constitutional system--including of the Senate itself--evinces a distrust of simple majorities. (6)

This familiar debate has grown increasingly stale. There is another response to the filibuster critics, however, that has received far less attention. In 1918, confronted with a measure that would curtail filibusters in the name of "the rule of the majority," Senator Lawrence Sherman responded:

I am moved to inquire a majority of what? If it promotes the rule of a majority of States, the Senator from Oklahoma is correct. If it promotes the rule of a majority of the people of the United States, he is inaccurate, because the latter is far from being the truth. (7) Taking the successful filibuster of the 1915 Ship Purchase Bill as an example, Senator Sherman proceeded to enumerate "with mathematical accuracy" the populations represented by the bill's supporters and opponents. (8) This evidence, he said, demonstrated "the paradox" that the filibuster "is an ally of the majority of the people of the United States." (9) As he explained:

The 36 Democratic Senators in the first group of States voting for the shipping bill represented a population of 37,000,000, and the 30 Republican Senators and 1 Progressive Senator in the second group voting against the bill represented a population of 41,000,000.... Can it be said that it is promoting the rule of the majority to ... promote the rule of 37,000,000 people over 40,000,000? That is not the way majorities rule in democracies. (10) Nearly eighty years later, the New York Times defended filibusters against President George W. Bush's judicial nominees on precisely the same ground: the filibusters had "allow[ed] a minority that actually represents more American people to veto lifetime appointments of judges who are far outside the mainstream of American thinking." (11)

Although this majoritarian defense of the filibuster has surfaced occasionally--and usually opportunistically--it has received no systematic investigation. (12) It is potentially a very powerful argument, however, since it appeals to the critics' own commitment to the principle of majority rule. The basic logic of the argument is simple: although the filibuster is a countermajoritarian prerogative within the Senate, it can sometimes be invoked to counteract the structural countermajoritarianism of the Senate. In this way the filibuster can function as a democratic backstop, obstructing narrow Senate majorities that represent only a minority of Americans. What's more, because of the constitutionally limited role of the House of Representatives, a Senate filibuster of this kind offers the only veto point at which the elected representatives of a majority of Americans can deny life tenure to a presidential nominee for the federal bench.

As the momentum toward reforming or abolishing the filibuster builds, (13) this majoritarian side of the institution warrants closer study. To that end, this Note follows Senator Sherman's example and presents the first empirical evidence measuring the majoritarian or countermajoritarian character of actual Senate filibusters in recent years. (14) The data show that many recent filibusters have served to obstruct unrepresentative Senate majorities--effectively furthering, rather than thwarting, majority rule at the national level--and that these cases are clustered in ways that bear on the merits of different proposals for reform.

Part I offers some background on the filibuster and the ongoing debate over its legitimacy. Part II describes a simple research method for quantifying the countermajoritarianism of recent filibusters: calculating the populations represented by the supporters and opponents of cloture. These new data, drawn from the period from 1991 to 2010, allow us to ask natural but neglected questions. How rare is it for a filibustering minority to represent more people than the majority it defeats? How severely countermajoritarian have filibusters tended to be--on average, at their best, and at their worst? What were the most and least undemocratic filibusters in recent history? How does the majoritarianism of filibusters vary across legislative and political contexts?

Part III offers answers to these questions. As it turns out, in half of the Congresses over the past two decades, most successful filibustering minorities represented more Americans than the majorities they obstructed. Such cases, which I call majoritarian filibusters, are thus strikingly common--particularly for a phenomenon previously deemed "conceivable" but "probably rare." (15)

Overall, roughly one-third of all successful filibusters from 1991 to 2010 were majoritarian in character. More than half of the failed attempts by a Senate majority to invoke cloture on presidential nominees during this period have reflected majoritarian filibusters as well. And, interestingly, few if any filibusters in this period were as severely countermajoritarian as the theoretical scenarios deployed by the institution's critics would suggest.

Finally, the data also reveal a significant partisan asymmetry that has not previously been quantified. Because of the distribution of party support across large and small states in recent years, filibusters undertaken by Republicans have typically been much more strongly countermajoritarian than those undertaken by Democrats. This pattern may offer a broader lesson: whenever one of the major parties holds a consistent advantage in low-population states, the filibuster serves as an underappreciated check on that party's power to enact its agenda and confirm nominees without the acquiescence of most Americans.

Part IV begins to explore how a greater awareness of majoritarian filibusters should bear on our views of certain pending reform proposals, offering two particular suggestions. First, simply lowering the cloture threshold, rather than abolishing the filibuster altogether, would likely shift the balance significantly towards majoritarian filibusters. Such a compromise reform is therefore much more favorable, from the perspective of those committed to majority rule, than it may appear on the surface. Second, even if reformers aim to curtail or abolish the filibuster for legislation, they should strongly consider preserving it for presidential nominees because of the unique role majoritarian filibusters play in this context. In sum, this Note aims to furnish the information necessary for a more nuanced understanding of the tradeoffs among competing democratic values that are posed by the ongoing filibuster debate.

1. THE FILIBUSTER AND THE FILIBUSTER DEBATE

   Because a measure must win sixty votes to overcome a Senate filibuster, proposed legislation and nominees are routinely held to a supermajority standard in one house of Congress. (16) This is a remarkable feature of contemporary American government, and several detailed histories of its emergence have been written. (17) Without rehearsing the whole story, this Part aims to offer some general background on the advent of the modern filibuster and the recent evolution in its institutional character. It then turns to the debate about the filibuster, which provides necessary context for the data that follow. In short, as the filibuster has evolved from a tool of delay into an effective minority veto, the debate over its legitimacy has shifted in character as well--focusing less on the necessity of expeditious action, and more on the institution's perceived countermajoritarian aspect. If the problem with the filibuster is that it undermines the democratic value of majority rule, however, that problem cannot be understood, much less measured, without taking account of the interaction between the filibuster's supermajority requirement and the structural disproportionality of the Senate itself.

   1. The Filibuster and the Cloture Rule

      The Constitution empowers "[e]ach House" of Congress to "determine the Rules of its Proceedings." (18) The "filibuster" as such makes no appearance in the rules adopted by the Senate, however. (19) Rather, "possibilities for filibustering exist...