A Creative Solution To Democratize The Senate Filibuster Rule

Jonathan Gould, assistant professor at the UC Berkeley School of Law; Kenneth Shepsle, the George Markham professor of government at Harvard University; and Matthew Stephenson, the Eli Goldston professor of law at Harvard Law School, propose a creative solution to the anti-democratic Jim Crow relic Senate filibuster rule that even Sens. Joe Manchin and Kyrsten Sinema would be hard pressed to argue against. Don’t eliminate the filibuster. Democratize it.

Democrats are frustrated with the Senate filibuster blocking their legislative agenda. But the main problem with the filibuster isn’t that it’s bad for Democrats — it’s that it’s bad for democracy. Not only does the filibuster paralyze the Senate, but the 41-senator minority that can block popular legislation often represents an even smaller minority of Americans. That’s not how representative government is supposed to work.

Yet eliminating the filibuster, as many are now urging, also poses a danger to democracy. Given the Senate’s extreme malapportionment — with two senators per state regardless of population — Senate majorities often represent fewer than half of the country’s citizens. For example, the 2017 tax cut passed with the support of 51 senators who represented only 43 percent of the population. Getting rid of the filibuster would alleviate minority obstruction today, but it would also increase the risk of minority rule in the future.

There is a way out of this dilemma: Democratize the filibuster.

The filibuster exists only because a Senate rule requires the support of a three-fifths majority to cut off debate and hold a final vote. The Senate could change this rule so that ending debate would instead require the support of a majority of senators who collectively represent a majority of the U.S. population, with each senator considered to represent half of his or her state’s residents. This rule, which should be extended to all legislation as well as confirmation of judicial appointments, would allow a bare majority of senators to overcome a filibuster — if those senators together represented a majority of the American people.

This creative solution is far reaching, and easier than trying to amend the Constitution to require apportionment for the Senate like the House. Small states that punch far above their weight because of the inherently anti-democratic structure of the Senate would never vote to ratify such an amendment. The outsized power enjoyed by small states is also why they would never agree to amend the Constitution to do away with the profoundly anti-democratic Electoral College.

Democratizing the filibuster in this way would empower Senate majorities that represent a popular majority to pursue their agenda, while erecting a safeguard against minority rule when a Senate majority represents only a minority of Americans. By doing so, a democratized filibuster would finally bring the Senate into line with foundational principles of equality between all citizens in our democracy.

For Democrats eager to reform Senate rules, democratizing the filibuster is better than simply eliminating it. Today’s 50-member Democratic Senate caucus represents more than 56 percent of the American people. Indeed, every Democratic Senate majority this century has represented more than half of the national population. So during periods of Democratic control, a democratized filibuster would produce the same result as eliminating the filibuster entirely.

But a democratized filibuster would prevent a future Republican Senate majority that represents only a minority of the population from passing, on party-line votes, policies that most Americans don’t support. [A tyranny of the minority.]

For this same reason, one might expect Republicans to oppose a democratized filibuster. Still, Republicans should think twice before dismissing such a reform. Centrist Republicans in particular might actually be better off if Republican Senate majorities needed to attract the support of a few Democrats — just enough to obtain a popular majority — to advance their agenda.

Right now, thanks to Senate malapportionment, the Republican Party rarely pays a political price for adopting positions that are unpopular with most Americans, and this insulation from electoral constraints has empowered the party’s extreme wing. Tying cloture to state population would give Republicans stronger political incentives to tack back toward the center, shifting the balance of power in the Republican Party to the moderates.

Requiring the support of senators who represent a popular majority to overcome a filibuster would thus be better — for Democrats, moderate Republicans and the American people — than either keeping or eliminating the current filibuster.

Doesn’t the Constitution require that each senator have one vote? It does. But the best reading of that requirement is that it applies only to final votes, not to procedural decisions such as determining when debate must end. On those matters, the Constitution gives the Senate broad discretion to make its own procedural rules — including the current super-majoritarian filibuster or our proposed population-based alternative. The current filibuster is an example of how that control over internal procedures can contribute to Senate dysfunction. The Senate could instead use that same power to make itself a more democratic body.

Taking population into account in Senate voting, even on procedural questions, would mark a major change from how the chamber has traditionally worked. Those who benefit from the status quo will undoubtedly resist. But the undemocratic and dysfunctional character of today’s Senate calls for rethinking how the institution operates.

The conversation about filibuster reform shouldn’t focus just on whether to keep it, ditch it or make it harder to use. Reformers should harness the Senate’s power over its own procedural rules to democratize the institution from within.

As Ian Milhiser explains, How Joe Manchin can make the filibuster “more painful” for the GOP without eliminating it (excerpt):

The Senate may effectively change its rules whenever it wants by a simple majority vote, using the same process that Congress used in 2013 and 2017 to allow presidential nominees to be confirmed with only 51 votes. (Technically, when the Senate uses this process, which is colorfully known as the “nuclear option,” it merely reinterprets an existing rule, but the effect is the same as a rule change.) So if the Senate’s narrow Democratic majority wishes to weaken the filibuster, it has the votes to do so.

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And in the present-day Senate, filibuster reforms have been enacted fairly often. In 2011, a narrow Senate majority voted to strip away some of the minority’s power to force votes on amendments to a bill. In 2013, the Senate enacted a temporary measure that limited the minority’s ability to delay confirmation votes once the Senate agreed to end debate on a particular nominee, and a version of this rule was made permanent in 2019 (though nothing is truly permanent because a future Senate could always change this rule again). The Senate voted to allow non-Supreme Court nominees to be confirmed with a simple majority vote in 2013, and it voted to allow Supreme Court justices to be confirmed by a simple majority in 2017.

Indeed, this brief account of the filibuster’s history drastically undersells how often Congress creates exceptions. In her book Exceptions to the Rule: The Politics of Filibuster Limitations in the US Senate, the Brookings Institution’s Molly Reynolds writes that “a careful review of the historical record has identified 161” provisions of law that prevent “some future piece of legislation from being filibustered on the floor of the Senate.” This includes legislation fast-tracking votes on trade negotiations, expediting votes on military base closures, and allowing Congress to bypass the filibuster for certain regulatory and budgetary matters.

Filibuster reforms, in other words, are quite normal.

Voting rights should be aded to this list of exceptions.

Milhiser offers his own series of reforms that the Senate could consider for reforming the filibuster rule.