Jonathan Bernstein has written a very good piece recently on the dangers of “strict” majoritarianism in democracies. He lays out a good case for how the Founders attempted to alleviate those dangers by embedding anti-majoritarian principles in our constitutional structure. Powers are separated, balanced, and checked in various ways to prevent any one election from becoming a decisive turning point. Bernstein points to separate branches of government (legislative, executive, judicial), separate levels of government (Federal, state, local), and the bicameralism of our national legislature as key features of this Madisonian system of government. He is certainly correct that, by dispersing power in these ways, we get closer to rule by “the people” rather than just rule by “the majority.”
But one item of Bernstein’s list seems like an outlier: the Senate filibuster. In the first place, it is not a Madisonian invention – it is not part of the constitutional structure envisioned by the Founders, but a later addition developed through decades of Senate practice. But the question is more fundamental: is the filibuster really anti-majoritarian? I would argue that it is not. The filibuster is simply a tool for achieving “minoritarianism” – majoritarianism’s pale (and equally troubling) cousin.
The actual anti-majoritarian structures – bicameralism, federalism, separation of powers – all have one thing in common: they balance different majorities against one another. These majorities operate in different spheres and exercise different powers. One majority at the state level can resist encroachment by a different majority at the Federal level. The President is elected by one majority, Congress is elected by various different majorities, and yet both must work together in order to pass legislation.
The filibuster does not have this same feature of balancing different majorities against one another. Rather, it attempts to reset the balance between a majority and a minority (by effectively giving the minority a veto power). This is anti-majoritarian only in the sense that it prevents the majority in the Senate from getting its way. But it is a blunt tool for achieving this goal – one that does not actually support any parliamentary values regarding minority rights to deliberate and offer alternatives. In fact, I would argue that supermajority requirements tend to decrease incentives for the majority to respect the rights of the minority.
An Arbitrary Historical Artifact
Mathematically speaking, a simple majority is clear and easily defined (50%+1). As such, it is defensible in and of itself, which is why it is so inherently attractive as a governing principle. If there is disagreement, we take a vote, and whichever side has the most votes wins. Clear and easily understood.
No such clarity attaches to a supermajority requirement. It is always arbitrary. If the Senate filibuster is a useful tool at forging compromise (as its defenders often claim), then why is 60 votes the appropriate threshold? Perhaps we would get better compromises if the requirement were 2/3rds of Senators (as it once was). Or perhaps 3/4ths? Indeed, if Bernstein’s goal of “rule by the people” (not just some of the people) is to be achieved, why not require that all legislation considered by the Senate be passed by a unanimous vote? Surely that would create the broadest and thus most acceptable compromise of all.
In a similar vein, it is always curious that no defender of the filibuster ever suggests that this wonderful procedural tool should be imported to the House of Representatives. But if we are so concerned with the rights of the minority and forging broad compromises, surely our national legislature would be better served if both Houses of Congress had this useful feature, no? If we desperately need to check majorities wherever they exercise power, why are majorities in the House allowed free reign? Do we just not care about the rights of the minority in the House?
Or is it simply the case that the Senate filibuster is a historical artifact – one that no one devising the procedural rules of a legislative assembly would ever seriously consider adopting? The only defense of the filibuster (“It’s tradition!”) is no real defense at all.
Not All Majorities Are Created Equal
What is the true danger of “majoritarianism”? As Bernstein articulates in his essay, the Founders wanted to “lower the stakes for any particular election.” It seems to me that the danger that the Founders were trying to guard against was the danger of quick, ill-considered actions by temporary majorities. One can imagine the scenario quite clearly: a turbulent populace struggles over some controversial issue and a momentary upswell of popular passion succeeds in securing power for one side. Giving no serious thought to the issue, this insecure, fleeting majority barrels forward, ignoring all protests, sidelining the minority, and swiftly enacts its preferred policy. It acts rashly, imprudently, with no regard of the opinion of others – and yet is able to impose its will on all. This is the tyranny of the majority that the Founders feared.
The anti-majoritarian structures in our Constitution do a great job at preventing this scenario from happening. Due to the different terms of office for House Members, Senators, and the President, a single election is unlikely to sweep into power such irresponsible majorities at all the required levels. Instead, the Constitution favors sustained majorities – gradually assembling necessary coalitions over time through continued electoral success. Fits of popular passion that swing power back and forth do not empower such temporary majorities to impose their will – at least not for very long.
But if we can posit temporary, rash, irresponsible, imprudent majorities, we can also imagine sustained, sensible, rational, prudent, responsible majorities as well. In short, not all majorities are created equal. If a majority is acting in good faith, devotes the necessary time and energy to study an issue and develop solutions, permits the minority to freely debate the proposals and offer alternatives, on what basis should we say that this majority is not entitled to a simple up-or-down vote on the final product? Should the minority at any time be allowed to thwart the will of this type of majority?
One possible counter to this: we can never be sure what type of majority we’re dealing with. Given the dangers, it is best to assume that every majority is a “bad” majority (rash, imprudent, etc.) and put in place mechanisms (such as the filibuster) to make it difficult for any majority to work its will. I find this unconvincing. If we have to assume bad faith on the part of majorities, we must do the same for minorities as well. Yes, a responsible minority may utilize the filibuster to prevent an irresponsible majority from blindly charging ahead. But an irresponsible minority could also use the filibuster to prevent a responsible majority from enacting a thoroughly-vetted and prudently-considered agenda. We may think that it’s a good idea for an intense minority to be able to overcome an indifferent majority. But the filibuster is equally good at allowing an indifferent minority to block an intense majority. Majoritarianism and minoritarianism are two sides of the same coin. If you’re against one, you’re against both.
Process for the Sake of Process
So what is the real solution to the problem of “bad” majorities? I would argue that it is process – what people often refer to as “regular order.” No one put the case better than Thomas Jefferson in his Manual of Parliamentary Practice. His observations are worth quoting at length (emphasis mine):
“Mr. Onslow, the ablest among the Speakers of the House of Commons, used to say,
“It was a maxim he had often heard when he was a young man, from old
and experienced Members, that nothing tended more to throw power into
the hands of administration, and those who acted with the majority of
the House of Commons, than a neglect of, or departure from, the rules of
proceeding; that these forms, as instituted by our ancestors, operated
as a check and control on the actions of the majority, and that they
were, in many instances, a shelter and protection to the minority,
against the attempts of power.” So far the maxim is certainly true, and
is founded in good sense, that as it is always in the power of the
majority, by their numbers, to stop any improper measures proposed on
the part of their opponents, the only weapons by which the minority can
defend themselves against similar attempts from those in power are the
forms and rules of proceeding which have been adopted as they were found
necessary, from time to time, and are become the law of the House, by a
strict adherence to which the weaker party can only be protected from
those irregularities and abuses which these forms were intended to
check, and which the wantonness of power is but too often apt to suggest
to large and successful majorities…
And whether these forms be in all cases the most rational or not is really
not of so great importance. It is much more material that there should be
a rule to go by than what that rule is; that there may be a uniformity of
proceeding in business not subject to the caprice of the Speaker or
captiousness of the members. It is very material that order, decency,
and regularity be preserved in a dignified public body.”
Jefferson gets to the heart of the matter: a “bad” majority is properly constrained by rules. We certainly cannot assume that every majority will act responsibly and respect the minority’s right to deliberate and offer alternatives. But we can force all majorities to jump through a variety of procedural hoops – hoops that support and protect these parliamentary values. We can demand due process. If we don’t want majorities to rush, we can slow them down – by imposing on them regular (and unalterable) rules of proceeding.
Regular order also has a tendency to reveal which majorities are acting prudently and in good faith, and which are trying to ram things through without proper scrutiny. A “good” majority will have no issue with regular order. A “good” majority by definition wants to do its homework, gather appropriate information, hear from relevant stakeholders, seek out alternative viewpoints, and deliberate on the issue until a solution is perfected. Jumping through procedural hoops should therefore be welcomed by such a majority – it proves that they are doing their due diligence. And, at least in theory, the process will lead to an improved product. What responsible legislator wouldn’t want that?
A “bad” majority, by contrast, sees these procedural hoops as annoying impediments to the exercise of power. They don’t want to hold hearings, or committee markups, or allow people to read the bill. They don’t want a free and open debate, nor do they want alternative solutions to be considered. A “bad” majority knows that it is temporary and that its proposals cannot withstand scrutiny. A “bad” majority doesn’t trust its members to vote again and again to move proposals through the necessary procedural steps. A “bad” majority doesn’t care about improving whatever legislation it wants to rush through – it just wants to get it done, as quickly as possible, no (or at least few) questions asked.
The filibuster is not an important procedural hoop that the majority needs to jump through. It is simply a hurdle the majority can never clear. It doesn’t in and of itself support any procedural values (the filibuster doesn’t magically require committee consideration or allow the minority to offer additional amendments). Rather, it undermines them. If the minority requires a supermajority vote to pass all legislation, what incentive does the majority have to give that minority greater opportunities for debate and deliberation? Rampant use of the filibuster points in precisely the opposite direction: it makes majorities more intent on getting around the rules – using specialized (non-filibusterable) procedures like budget reconciliation and those contained in the Congressional Review Act. The filibuster, in short, promotes the worst forms of irregular order.
Trade the Filibuster for Regular Order
There is little doubt that the filibuster is on its last legs. That it has survived this long is a testament more to the cowardice of recent Senate majorities than anything else – they would rather complain that the minority is unjustifiably obstructing them then actually see their agenda enacted. But sooner or later, there will be some legislative goal that the majority will agree should be passed by any means necessary, and the “nuclear option” for regular legislation will be detonated. It is only a matter of time.
This would be a disaster for the Senate – not because the filibuster is some linchpin holding our democracy together, but because the Senate is not equipped to properly legislate without it. Without the filibuster, unfettered majorities would do precisely what the Founders feared – rush forward to secure some political goal without so much as consulting the minority. Any norms that might have prevented this outcome are long gone. The “Housification” of the Senate would be complete.
If there are to be changes to Senate rules, the best way forward would be to eliminate the filibuster in exchange for regular order. The specifics of what should define “regular order” are not especially important, and the basics are well-known. One could simply write up a list of all the process complaints that Senators have expressed in the past year. Senators would seem to want things like: committee hearings; committee markups and reports; making bills available for inspection long before floor consideration; amendment opportunities on the floor of the Senate; and full, open, and free debate. These procedural hoops can easily be baked into the system. Indeed, much of this procedural architecture is already present in the Senate rules and precedents. They just need to be strengthened and insisted upon by all parties.
At the end of the day, we are right to be skeptical of pure majoritarianism. But the solution is not the inverted world of minoritarianism. It is regular order. Both the majority and the minority need to believe in something higher than pure political power. They need to believe that they are constrained not by each other, but by mutual agreement to be bound by rules, to be bound by law. This, more than anything else, is the essence of our constitutional democracy.