A Big Filibuster Reform

Making the Senate more democratic via the filibuster

Michael Ettlinger

One of the reasons some Democrats have opposed eliminating or weakening the filibuster is that it would allow Republicans as well as Democrats to more easily pass legislation. They look at various legislation that Democrats have blocked with the current filibuster rule and fear passage of their like in a filibuster-free Senate.

There is a principled reform, however, that would distinguish between Democratic and Republican filibusters. It is possible because the two parties, at least in recent years, use the filibuster for different purposes. Republicans use it to block the will of senators who represent the majority of the public, Democrats use it to express that will. For example, in the last Senate we had a Democratic Senate minority of 47 senators who could block legislation favored by the 53 Republican senators — but those Democratic senators represented states with 196 million people while the Republican senators represented states with only 184 million people. When the Democrats filibustered, they were representing the majority. With the Senate now tied, Democratic Senators represent states with a combined population of 202 million while Republicans represent states with 160 million people . Even with Democratic Vice-President Harris casting the tie-breaking vote, Republicans will still be able to filibuster, and block, legislation.

The way to address this asymmetry is to allow any group of at least 41 senators who represent more people than the other 59 senators to block legislation — but if they don’t represent more people they can’t block. Taking the last Congress and the current one as examples, Democrats would have been able to filibuster in the last Senate because they represented more people than their Republican colleagues. Republicans could not successfuly block legislation through the filibuster in the current Senate because they represent far fewer people than the Democratic senators.

(For a more fully developed and analyzed version of this basic idea, see Democratizing the Senate from Within by Gould, Shepsle and Stephenson.)