Filibuster reform isn't enough

On Nov. 21, 2013, the United States Senate voted to scrap the filibuster with regard to presidential nominations of executive branch officials and what the Constitution calls the judges of “inferior” courts (those below the Supreme Court). This welcome decision has already made a difference. Within a month, President Barack Obama was able to fill, with extremely competent and politically liberal judges, three years-long vacancies on the United States Circuit Court for the District of Columbia, often described as the second-most-important court in the country because of its special role in reviewing executive branch actions. The New York Times was not alone in declaring that the limitation of the filibuster represents a “return to democracy” in the United States Senate. There are two things wrong with this analysis. The mistake is to believe either that the Senate was ever democratic or that the recent decision does much to resolve the problem of gridlock in the Senate.

As to the first, one must never forget that one of the two great compromises during the Constitutional Convention of 1787 was equal voting power of the states in the Senate (unlike in the House, where representation is proportionate to the state’s population). The other so-called great compromise gave additional representation to slave states by counting slaves — even if at only three-fifths of a person each — when computing how many representatives each state would get in the House (and therefore how many votes in the Electoral College as well). James Madison was appalled by the first of these compromises, referring to equal voting power in the Senate as a “lesser evil,” the greater evil being the torpedoing of the constitutional project because of the unwillingness of the small states to ratify any constitution that did not include this compromise. But an evil is still an evil, and the disproportions have only grown over the years. In 1790, Virginia had approximately 17 times the population of Delaware, then the least populous state. Today California has well over 65 times the population of Wyoming.

Indeed, in the modern United States, a majority of the roughly 313 million U.S. residents, as counted by the Census Bureau, live in a grand total of only 10 of the states, ranging from California, with its roughly 38 million people making up a bit under 1 in 8 of the national population, to North Carolina, which is edging closer to a population of 10 million. By definition, this means that a majority of the population receives only 20 percent of the votes in the Senate while the remaining 49 percent enjoys 80 percent of the votes in that body. Indeed, one can reach a majority of the Senate (51 votes) with less than 25 percent of the population represented.

There are obvious problems with the filibuster, especially as it has been recently used by Republicans in an across-the-board attempt to hobble the Obama administration. The most dramatic example is surely the relentless attempt by the Republican minority during Obama’s first term to block any and all of its programs (in contrast, say, to the willingness of the late Sen. Ted Kennedy and other Democrats to work with George W. Bush on some of his key programs like No Child Left Behind or the prescription-drug bill). One reason for the patent inadequacies of “Obamacare” is the unwillingness of Senate Republicans to cooperate at all in the legislative process; it was ultimately passed by the use of an extraordinary reconciliation procedure that negated the filibuster but also made it impossible to tinker with the House legislation in beneficial ways. 

Still, it is a mistake to believe that filibusters are always undemocratic even if, again by definition, those engaging in the filibuster are a minority of the voting senators. Imagine, for example, that large-state senators are taking the lead. Given that only 20 such senators could bring us beyond the majority of the electorate, a nonrandom collection of 41 filibustering senators could represent more than seventy-five percent of all Americans. To be sure, this is wildly unrealistic. It may be a long time before the senators from Texas are political allies with those from California. But one need not imagine such unlikely coalitions in order to find particular filibusters that in fact could easily claim to be representing a majority of the electorate. Benjamin Eidelson, a student at the Yale Law School, has examined hundreds of recent filibusters (or threats to filibuster) and determined that, on the basis of numbers of voters represented, Democratic-led filibusters during the Bush administration were marginally more likely to be majoritarian than Republican-led filibusters were.

In any event, the Senate continues to be what it has been from Day One of the United States: a dreadfully undemocratic institution that reinforces what is often a tyranny of the minority — or a tyranny of the status quo — and allows it to run roughshod over what may be the altogether defensible wishes of the majority. One should realize that the U.S. Senate was undemocratic yesterday, it is undemocratic today and, unless there is a major (and altogether unlikely) radical reordering of our basic institutions, it will be undemocratic tomorrow.

But we cannot even say that the decision of Nov. 21 has given power to the majority of the Senate, save for confirming certain appointments, however important that may be. Willful minorities retain (and will undoubtedly use) the power to prevent even the consideration, let alone the passage, of some legislation. After the Sandy Hook school shooting, 90 percent public support for an enhanced ability of the government to check the backgrounds of those purchasing firearms was not enough to defeat a filibuster in the spring of 2013, and it will certainly prove ever more unavailing as memories of Sandy Hook fade. On Jan. 7, the Senate consented to a vote on a Democratic proposal that would extend unemployment benefits, but it was only the first of several required votes, and it is not clear that the bill will continue to have the 60 votes necessary to bring it to the floor for a vote. Nor can one be confident that Republicans will allow Obama proposals on energy policy or the environment — much less any bill that would require raising taxes — to come to a vote.

And, should Justices Stephen Breyer and Ruth Bader Ginsburg offer their welcome retirements from the Supreme Court in what is, respectively, their 20th and 21st years of service, one can be absolutely confident that the Republicans in the Senate will exercise to the full their retained power to filibuster Supreme Court appointments (unless, of course, the Democrats change their minds and decide to apply majority rule with regard to those nominations). I am delighted to have Obama’s three nominees to the Court of Appeals for the District of Columbia join that bench, but I would be even more delighted if I believed that the Senate would be able to function effectively, passing legislation that responds to the significant problems that face us as a country. Without denigrating the importance of the judiciary or the judges who serve there, we should recognize that the problems that most Americans care (and are angry) about are not amenable to judicial resolution and require disciplined action by Congress, ideally working with the president.

The Nov. 21 decision does nothing to make one optimistic, save to demonstrate that angry Senate majorities can become sufficiently frustrated by the hyperpartisanship of their minority opponents that they will act accordingly. This suggests that the Republican Party in the Senate should in general become more willing to back off from bitter-end opposition to any of Obama’s programs, lest the Democrats, having at last displayed some backbone, strike again. We shall see, but I am not holding my breath.