Democrats in the Senate have used the power of the filibuster to block from office the 10 most ideologically extreme of President Bush’s nominees for federal judgeships, while approving a vast majority of his nominees. In response, some Republicans have threatened to change the filibuster rules in the name of “majority rule,” and Democrats have countered by saying they will grind the chamber’s business to a halt if the GOP eliminates the filibuster on judicial nominations.
Some Democrats have argued that Republican appeals to majority rule are hypocritical: If Republicans really subscribed to majority rule principles, the argument goes, they would support a constitutional amendment to abolish the Senate itself.
Actually, we should take the question of abolishing the Senate more seriously — not because it proves Republican hypocrisy, but because it helps us to understand the value of the filibuster. It turns out that the reason Americans would likely oppose abolishing the Senate — because it allows an intense minority to have its opinion taken into account — applies equally to the filibuster.
First, a bit of background. As most Roll Call readers know, under the Senate’s “cloture” rule, it takes 60 affirmative votes out of 100 Senators voting to pass most pieces of legislation, including approval of presidential nominees for federal judgeships.
Although current Senate rules would require a two-thirds vote to change the cloture rule, Senate Republicans may soon invoke the “nuclear option” — that is, using a simple 51-vote majority to eliminate the ability to filibuster judicial nominees.
The proposed change would alter the fundamental nature of the Senate. Right now, the Senate is a more collegial institution than the House of Representatives. The rules allow greater time for debate, and each Senator’s views must be taken into account to get most legislation passed.
The Republicans’ primary defense of the nuclear option is that the filibuster thwarts majority rule: Why should 41 Senators have the power to block the wishes of 59? That would be a sensible argument to apply if the Senate were itself a majority institution. But it is not.
Instead, every state gets two Senators, regardless of population. So California and Wyoming each get two Senators, even though the population of California is 70 times larger than the population of Wyoming.
Indeed, many opponents of the nuclear option have noted that the 44 Democratic Senators, plus Independent Sen. Jim Jeffords (Vt.), represent more people in the Senate than the Senate’s 55 Republican members. So if we are really concerned with representing a majority of Americans, a Democratic filibuster could be viewed as furthering majority rule.
Some of these opponents have asked rhetorically why Republicans don’t support eliminating the Senate altogether. Let’s put aside the practical difficulties with abolishing the Senate through constitutional amendment — the small states that get disproportionate representation in the Senate would hardly agree to such a change. Consider the question only as one of policy. Why not eliminate the Senate?
Vice President Joe Biden waits to conduct a mock swearing-in ceremony with Sen. Brian Schatz, D-Hawaii, in the Capitol's Old Senate Chamber, December 2, 2014. Schatz was sworn in to serve the remainder of his term since he was appointed to the seat after Sen. Daniel Inouye, D-Hawaii, passed away.