The Majoritarian Filibuster

By Eidelson, Benjamin | The Yale Law Journal, January 2013 | Go to article overview

The Majoritarian Filibuster


Eidelson, Benjamin, The Yale Law Journal


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. …

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