Fix the Senate I: Scrap the filibuster

The United States Senate is a catastrophe.

It is prima facie anti-democratic: 38 million voters in small states have 15 times the representation as California’s 40 million voters. Extra-constitutional Senate rules and practices, most notably the maximalist filibuster, have turned the body into a “kill switch“, one veto point to rule them all. They have enabled a minority faction to block and obstruct, to prevent any constructive governance at all except when it will redound to the political benefit of that faction. Institutions of government matter. “Democracy” is not some free-standing good thing. If it is to be good, and if it is to survive, it must be embodied in particular, functional institutions. In the contemporary United States, that is not the case.

The Senate is hard to fix. Disproportionate representation of citizens in the Senate (described as “equal Suffrage” of states) is specifically excluded from amendment by the Constitution. In this series, I’ll describe three reforms that I think would improve the Senate, ordered from least to most speculative. The first is easy to enact and very widely discussed. I’ll just add my voice to the chorus.

Right now, this week, we should improve the Senate by eliminating the filibuster. Ryan Cooper has an excellent piece on how this would work (with a pointer to Akhil Reed Amar, whom I love for his work on lottery voting).

I’ve come to oppose the filibuster reluctantly and with some sadness. In a better-arranged polity, modest supermajority requirements might play a useful role. A democracy at its healthiest governs by persuading a broad center, rather than lurching back and forth between irreconcilable agendas of hostile but nearly balanced factions. In defiance of the median-voter-theorem, tack-to-the-center claims made on its behalf, the United States’ two-party system, has reshaped us into two hostile factions, nearly balanced not in absolute numbers but in terms of how our system translates numbers into power. We are, as Lee Drutman puts it, caught in a “doom loop” that is entirely an artifact of a bad political system, not the existential struggle between distinct peoples too many of us are lazily permitting themselves to conceive. Simple majoritarianism is a cause of this catastrophe, as it tempts people to govern with 50% + 1 coalitions that entirely ignore the values and interest of the other 50%. This is an ugly kind of polity. However, the Senate’s effective supermajority requirement via the filibuster has not overcome the incentives of the two political parties, and the incumbents they run, to divide us. It has merely incapacitated us. The filibuster has become a minority veto, which, given the disproportionality of representation within the Senate, could in theory be exercised by Senators elected by fewer than 10% of voters. In practice, it’s not quite that bad, but still terrible. Under current circumstances, a blocking coalition of Republicans can be mustered from Senators representing only 25% of the population, elected by a share of voters even smaller than that. (Even in red states, Republican senators occasionally receive less than 100% of the vote.)

There is a case to be made for a supermajority legislative threshold. But an effective 75% threshold in terms of population represented (ignoring incomplete support among voters) is a prescription for paralysis. Worse, the threshold is asymmetric. While Democrats face that 75% threshold, Republican-backed initiatives pass with assent of representatives of only 54% of citizens. This is an institutional embodiment of “my way or the highway” for the Republican Party. Both parties can force inaction, only one can enable it, despite approximately balanced support within the population. [*]

A principled supermajority requirement might be established in the House, rather than the Senate, in combination with redistricting or other reforms that ensure representation in the House is proportionate to voter support. The current Senate filibuster is simply indefensible. The Democratic majority should scrap it, today.

[*] A bit of an irony that I’ve not seen discussed is that in 2020, Democrats gained control of the Senate, but actually lost the chamber’s overall popular vote to Republicans by a slim margin. (The numbers cited exclude the George special election results, but they’d not change the basic picture.) In 2018 and 2016, however, Democrats won more Senate votes than Republicans, by substantial margins, but did not win control the chamber. Obviously, the US Senate’s composition during any given Congress reflects the results of three elections, so even if we adopted a voting system that made representation in the chamber proportional by party to overall votes received, a given cycle’s winners would not necessarily gain control. However it’s a bit weird and wacky that Democrats gained seats and control during a cycle when they lost the popular vote, while in 2018 Democrats lost seats despite a blowout popular vote win. The quirks in our system can cut both ways.


7 Responses to “Fix the Senate I: Scrap the filibuster”

  1. Nicholas Weininger writes:

    “Entirely an artifact of a bad political system” strikes me as way too strong a statement. Certainly the system makes things much worse, but I don’t think there’s any system that would prevent the long legacy of the Confederacy, and the legacy of the Borderer/Cavalier vs Puritan/Quaker cultural conflict before that, from being strongly polarizing forces. We aren’t distinct peoples to the extent of say Jews and Arabs in Israel/Palestine, but this is not simply a Greens vs Blues/Guelphs vs Ghibellines situation either; it’s somewhere in between, and endogeneous feedback loops make it essentially undecidable just where.

  2. Alabamian writes:

    Epistemic value: I am not sure I buy this, but I am thinking out loud.

    Isn’t the specific problem of a small number of voters being able to impose gridlock downstream of the parties’ composition, not any particular institutional rules of the Senate? If the Democrats were more successful in states that were smaller, more rural, etc. (as they have been in the past), minority rule would be a non-issue. Yes, the system makes small state votes disproportionately valuable. But there is no structural reason they go as a bloc, or to a particular party.

    The filibuster is broken as it currently exists. But if minority imposed gridlock is bad, surely we can recognize that minority imposed law is worse? That’s what we could be inviting if and when the Senate flips back to the minority party.

  3. Peter Dorman writes:

    The argument for a supermajority requirement depends on its application to measures that significantly impinge minority rights or values. If it is applied across the board it is a recipe for paralysis.

    The filibuster has evolved from an occasional last resort to a routine blockage. Incidentally, its use in the civil rights era served to suppress, not defend, minority rights given that southern Blacks were disenfranchised.

    The problem with establishing a “good” supermajority rule lies in delineating and enforcing the restrictions on its use. As a first pass, Democrats could demand a numerical limit to Republican filibusters, e.g. two per year. That’s not so wonderful, since supermajorities could be demanded for measures with little justification for them. It might be better to ditch the maneuver altogether.

  4. Chris writes:

    Echoing Alabamian, how sure are you that not having a filibuster is something that won’t be called undemocratic and allowing a minority / narrow majority to impose it’s will on everyone the next time Republicans take power?

    People have been talking about the filibuster for quite a while, but it’s always the side with the narrow majority in favor of it at the moment, and that without the majority that’s against. If it’s a matter of conflict theory, take power when you can, then let’s call it what it is. That does seem to be the nature of the game lately, why bother with the pretense?

  5. albatross writes:

    It seems like one thing that would reduce polarization would be making the votes of Democrats in Republican states/Republicans in Democratic states count more. Doing something about gerrymandering would be a big win there. Another big win would be awarding electoral college votes proportionally based on state votes. Both of those would get us less of the common situation where a lot of voters know that their votes will never count, and would reduce some of the difference between popular vote and outcome.

  6. Detroit Dan writes:

    I like Steve’s proposal and also Albatross’s suggestion. The other comments (cautionary) make sense too, but the important thing is to realize that the national government is broken and to talk plainly about this, and offer constructive solutions to fix it.

  7. Alex R writes:

    Another basic issue with the filibuster or other supermajority requirement is that it intrinsically favors the “conservative” side of any dispute — at least as far as conservative means disfavoring change. In particular, if what you want is for the government to *do* something, the filibuster is your enemy; if you want the government to *not do* something, the filibuster is your friend.