Two Arguments for the Filibuster

February 18, 2010

There are two arguments in favor of the filibuster that are reasonable and merit consideration. I’m not persuaded by either one, but they do give me pause. Each in its own way advocates the filibuster as a tool that promotes rather than obstructs democratic or just outcomes in the legislative process. Each addresses special cases where simple majorities in the Senate are less likely to yield the desired democratic outcome.

1. The argument from intense minorities

The first argument, summarized here by filibuster expert Greg Koger, takes aim at simple-majority rule for inadequately accounting for the quality of support for a measure, rather than just the quantity of votes for it. Koger:

For some policy questions, some voters have a deeper stake than others. Last November, Californians voted on whether to allow same-sex marriage; isn’t it fair to say that people in same-sex relationships had a deep, personal stake in the question while heterosexual voters had an abstract (and typically less intense) interest in the issue? In a perfect world, we might recognize this asymmetry and attach special weight to the preferences of intense voters.

This is pretty much on a par with other anti-majoritarian arguments. There’s certainly a healthy strain of this thinking in constitutional law, where supermajority requirements can be justified as entrenched protections of minority rights. In general, I’m really not sure there’s a content-neutral way to resolve the debate. That is, such arguments tend to be dependent on evoking your sympathy for the minority. But flip the status quo to favor an unsympathetic minority (like Jim Crow racists), and the supermajority requirement doesn’t look so good anymore. (The First Amendment context is different, because, you know, that whole thing about sticks and stones….)

There’s a lot more to it, but I’ll just say this: I’m deeply skeptical that there could be an even remotely satisfying, policy-neutral justification of supermajority requirements.

I suppose there would be more to say for this view had the filibuster not evolved (as it appears to have now) into a straight supermajority requirement. If the process allowed for differentiation of substantive policy-based obstruction and partisan politics-based obstruction, then resorting to a filibuster might reflect intensity. Maybe. But surely there is not inherent democratic value in the intensity of views per se. It is only intense views that are “right” or “just” by our standards that deserve protections that depart from majoritarian norms.

2. The argument from malapportionment

The second argument, offered by Ben Eidelson at Slate, posits the filibuster as a democratic corrective against the inherent malapportionment of the Senate. Eidelson finds that the filibuster often serves to enforce the preferences of electoral majorities.

In fact, in 40 percent of the filibusters since 1991, the senators making up the “obstructionist” minority represented more people than the majority they defeated.

The traditional debate over the filibuster—which equates filibustering with a minority veto, and then argues the merits of giving the minority such a prerogative—entirely misses this fact. Democratic filibusters against President Bush’s judicial nominees were decried as undemocratic usurpations, for example. But nearly all of them fell into this category of “majority rule filibusters.”

I guess that makes this argument a Democratic corrective as well as a democratic corrective. But the obvious problem is, again, there seems to be no way to distinguish in principle between good and bad filibusters. They might correct malapportionment, or make it worse. I’m willing to live with the constitutional bias against electoral majorities if we can get rid of the excessive institutional ones like the filibuster.

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