The Mystery of the Filibuster

Why does the Senate have a filibuster, but not the House? As I have argued with regards to amendment procedures, supermajoritarianism and inequality are linked. By analogy, on an intuitive level, I have long suspected that Senate malapportionment and the filibuster are linked as well, but the mechanism is more elusive. Supermajoritarianism in Article V clearly protects the representational design of the Senate; the filibuster clearly does not, since the cloture threshold (60%) is less than the two-thirds of the Senate necessary to propose amendments.

Forget about why the filibuster started, or the way it was used from Reconstruction to 1965 to block civil rights legislation. Why has it endured over the last forty years or so, particularly considering that the nuclear/constitutional option suggests that any simple majority can vote it out of existence? It has been suggested that members of the majority want to preserve the filibuster in case they later become members of the minority, but this explanation is unsatisfactory. When you are a member of the majority, that is a certainty, while future minority status is speculative. Further, constituents surely put more pressure on senators for immediate results than for preservation of the filibuster. The rational strategy for any majority should be to end the filibuster, to govern, and to try to win the next election.

Another suggestion is that the filibuster is inherently conservative and thus favors Republicans. Maybe this is so, and maybe this explains why the Lott/Frist Senates were reluctant to end the filibuster. However, this suggests that Democratic senators should want to end it, which does not seem to be the case.

So let me try to develop an alternate explanation. About 66 senators come from small states, and 34 come from large states. Small-state senators, consciously or not, have an interest in a never-ending, intermittent debate about the filibuster. They talk about ending it for executive appointments only, or ending it for judicial appointments only, or letting cloture decline from 60% to something else after several days, or forcing filibusterers to actually stand up and talk. The media talks about Wendy Davis’s pink shoes, Rand Paul, Jimmy Stewart, etc. It is great theater, and some people think it is all charming and quirky and interesting, but it is all a distraction from the greater rot: malapportionment.

Look at it this way. Suppose that Harry Reid entirely ends the filibuster tomorrow. Within a few years, there would be a very prominent, close Senate vote which primarily small-state senators will vote down, against the wishes of the House, the president, and a majority of the people. In other words, Senate malapportionment would suddenly appear to be very wrong to a lot of voters. The filibuster would not have obscured it.

That’s the purpose of the filibuster: to obscure malapportionment.

At any rate, the Democratic caucus in the Senate is dominated by senators from small states, just as the Republican caucus is. They are not going to get rid of the filibuster.

Maybe this is giving senators too much credit. Maybe they have not gamed out the end of the filibuster. Maybe their opposition to ending the filibuster is more a matter of instinct, or intellectual confusion. Maybe they suspected that equal state suffrage in the Senate was wrong when they learned it as teenagers in Civics class, but they have long since learned that it is immutable and have stopped questioning it, and, unable or unwilling to understand the principles of political equality, they decide to stick with tradition, including the filibuster.

Thomas-Reed

Pictured is Thomas Reed, the man who broke a different type of filibuster in the House in the 1890s. Money quote: “The best system is to have one party govern and the other party watch…”

The Illogic of Using Article V to Amend or Repeal Article V

I think there are three basic positions that one could take on Article V:

1. It should not be reformed because it has worked well enough.

2. It should be reformed because it violates equality over the law and/or because it is too hard to amend the Constitution, but we should amend or repeal it according to the procedures of Article V.

3. It should be reformed because it violates equality over the law, and we should amend it according to the principles of equality over the law.

Suppose that there is a national debate about the representational design of the Senate and Article V. The #2 people are not going to have any success because it does not make any logical sense to declare that Article V is so bad that it must be amended or repealed, while declaring that Article V is good enough to be used to amend Article V. Plus, the numbers just don’t work out for #2.

Soon after debate starts, #1 v. #3 will be the only game in town.

 

How Article V Violates Equality Over the Law

It is necessary to more fully judge Article V by the standard of equality over the law.

Article V Text Equality Over the Law
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, Small state citizens are overrepresented in the Senate, and are therefore overrepresented in the proposal of amendments. D.C. and territorial residents have no vote in Congress. Plus, it is a supermajoritarian rule, alone capable of denying reform of the election of the President and the design of the Senate.
or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, Each state legislature has one vote by this method; small-state citizens are therefore overrepresented. D.C. and territorial residents have no state. It is supermajoritarian. Representational rules within such a convention are undefined, and we have never had such a convention.
which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Equal state suffrage again…This rule is even more strongly supermajoritarian. It may be argued that a supermajority rule was once appropriate here because of the different sizes of the states, or because states in favor might be barely so, and those opposed strongly so, but I think this argument should lead one to support ratification by direct vote of the people.
Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; No amendment before 1808 could end the slave trade or allow Congress to challenge slavery by disproportionately taxing slave-owners. This is obsolete, of course, and it also clearly violated human equality.
and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate. This super-duper-majoritarian rule protects a rule that violates human equality, and violates human equality itself.

This is all fixable. We can bring our Constitution in line with our values. We can do it.

The Futility of Trying to Use Article V to Reform Article V or the Senate

The closest the Electoral College ever came to being abolished was in 1970. An amendment proposal known as the Bayh-Celler Amendment passed the House in 1970 by a vote of 339-70. It narrowly failed to pass cloture votes in the Senate, by votes of 54-36 and 53-34. According to The New York Times, the first vote of 36 in opposition consisted of 18 Democrats and 18 Republicans, and was “almost entirely a coalition of Southerners and conservatives from small states who had protested that abolishing the Electoral College would reduce their states’ political influence.” Because roughly two-thirds of all members of the House come from large states, and one-third of all members of the Senate come from large states, that means that as many as 60 representatives and 20 senators from small states must have voted for the amendment. These votes constitute perhaps the high-water mark in all U.S. history of elected officials from small states volunteering to relinquish disproportionate constitutional voting power over the law.

The good news is that not everyone votes to preserve their disproportionate voting power. The bad news is that 61% of the Senate (53-34) is the best vote to reduce the disproportionate power of small-state citizens in over 200 years. That means that a strategy that relies on getting to 67% (2/3 of the Senate for amendment proposal, or 2/3 of the states to call an amendment convention), or to 75% (3/4 of state legislatures or conventions for ratification) is, well, not a strategy at all. It is an appeal to magic. It amounts to acquiescence in inequality.

I should acknowledge and endorse another plan for equality over the law that avoids Article V: National Popular Vote. It would ensure that the presidential candidate who gets the most votes will win. Maybe it will work.

Malapportionment and Amendment Procedures Around the World

Other countries have malapportioned upper chambers of the legislature. They also have supermajoritarian amendment procedures which protect the representational design of those upper chambers. If they did not have such procedures, then their upper chambers would have been reformed already.

Citizens in these countries are distributed among the states (provinces, cantons, etc.) in a manner similar to the U.S.: a majority of citizens live in large states and are underrepresented, while a strong majority of states are small. An amendment provision as simple as requiring that a majority of states or cantons must approve, as Australia and Switzerland have, seems to be enough to prevent reform.

Country Upper Chamber
Design
Most Over-
represented
Most Under-
represented
Amendment
Procedure
USA 2 senators per state Wyoming
(1 per 290,000
residents)
California
(1 per 19 million),
D.C. and territories
unrepresented
2/3 of each house and
3/4 of state legislatures
(most common),
unanimous state consent
regarding changing the Senate
Argentina 3 per province Tierra del Fuego
(1 per 40,000)
Buenos Aires
(1 per 5 million)
2/3 of each house
Brazil 3 per state Roraima
(1 per 150,000)
Sao Paulo
(1 per 14 million)
1/3 of House or Senate
or 1/2 of states,
then 3/5 of both houses
Germany 3-6 per state Bremen
(1 per 220,000)
North Rhine-Westphalia
(1 per 3 million)
2/3 of both houses
Switzerland 2 per canton,
1 for small cantons
Appenzell
Innerrhoden
(1 per 15,000)
Zurich
(1 per 700,000)
a majority of people and
a majority of cantons
Australia 12 per state,
2 per territory
Tasmania
(1 per 43,000)
New South Wales
(1 per 600,000)
a majority of people and
a majority of people
in a majority of states
Mexico 3 per state (96)
plus 32 at-large
Colima
(1 per 220,000)
Mexico
(1 per 5 million)
2/3 of Congress,
a majority of state legislatures

Here are selected countries without powerful malapportioned upper chambers, and without overly difficult amendment procedures. They seem to be relatively stable and free.

Country Upper Chamber Amendment Procedure
UK the House of Lords has no real power no written constitution
New Zealand unicameral no written constitution
France disproportionate upper chamber,
but lower house has final say
when houses cannot agree
a majority of each house (one method)
and a majority of voters
Sweden unicameral a majority of Parliament,
then a majority of voters
Ireland upper house is complicated,
lower house can override
a majority of each house,
then a majority of voters
Italy upper chamber allocated by population a majority of each house, twice,
then a majority of voters required in some cases

Democratic majorities in these countries generally protect essential minority rights because a majority of the citizens in these countries are good and fair people. The same is true for a majority of American citizens.

D.C. Strategies

D.C. citizens have struggled for congressional representation for a long time. Let’s take stock of the failures.

1. Congress proposed the District of Columbia Voting Rights Amendment in 1978. It would have treated D.C. as a state for congressional representation and the amendment process. It was ratified by only 16 states, expiring in 1985.

Why did this fail? Perhaps it is because D.C., with 0.2% of the nation’s population, would have had 2% of the voting power in the Senate – gross overrepresentation. Wyoming’s overrepresentation in the Senate is obnoxious enough. And the large states – so underrepresented in the Senate – would have had to put up with two more senators from a tiny place. It should not be surprising that none of the largest states at the time (California, New York, Texas, Pennsylvania, Illinois) were among the 16 states that voted for ratification.

2. D.C. applied for statehood under the name New Columbia. More technically, D.C. would have been shrunk to its monumental core, with the inhabited parts to become New Columbia. This measure was last defeated in the House in 1993 by a vote of 277 to 153.

Why did this fail? Again, this would have led to more malapportionment in the Senate.

But there is an additional cruel and ironic reason. The Twenty-third Amendment, which grants participation in the Electoral College to D.C., seems to treat D.C. as a permanently unique political entity. It would probably have to be repealed before statehood could be granted.

3. In Adams v. Clinton (2000), residents of D.C. sued for congressional representation, arguing that it was necessary because of the equal protection, privileges or immunities, due process, and/or republican guarantee clauses. They further argued that they should be able to vote in Maryland because they had “residual citizenship” in that state, due to Maryland’s land grant of D.C. of 1790. The U.S. District Court of D.C. Court rejected these arguments by a vote of 2-1.

Why did this fail? Those arguments are complicated.

The Fourteenth Amendment declares that Representatives shall be apportioned among the several States… The Seventeenth declares that the Senate of the United States shall be composed of two Senators from each State… This text seems to explicitly exclude representation for citizens in D.C.

4. Various proposals to grant D.C.a representative by federal statute have failed and will likely continue to fail. Look at the sad history.

Why did these fail? Again, they rely on a strained reading of (or blindness to) Fourteenth Amendment text.

5. Proposals for retrocession (for D.C. to rejoin Maryland) have gone nowhere.

Why? In part, neither D.C. nor Maryland seem very enthusiastic about it. Both have developed their own institutions and political identity; retrocession may seem unnatural. Also, because the current citizens of Maryland would have to share their two senators with these new voters, they would experience diminished voting power over the law.

This proposal of this website aligns the interests of D.C. with those of citizens of large states. Roughly two-thirds of U.S. citizens are underrepresented in the Senate. D.C. citizens would be wise to make them natural allies.

This proposal demonstrates seriousness about constitutional text. Article V does not claim to be exclusive and is not. The Twenty-third Amendment will be nullified by this proposed Section 4. Congressional representation for all citizens will be guaranteed by constitutional text. We should combine our fidelity to written constitutionalism with our commitment to political equality.

This proposal realizes a more rigorous standard of political equality than any of D.C.’s previous attempts. All citizens should be citizens of a state. Congress will no longer have plenary authority over the people in D.C. or the territories; congressional authority will be limited and enumerated over all citizens. All citizens should have representation in proportion to their numbers in both branches of Congress.

This will take courage. D.C. citizens should take a leap of faith and trust that majority of Americans are good and will eventually join in this endeavor. If courage is lacking, or clarity on political equality is absent, failure will likely continue.

It has been a long time. It is time to try something new.

 

Numbers, Strategy

States and D.C. sized by population (2010 census), grouped by underrepresentation or overepresentation in the Senate.

States and D.C. sized by population (2010 census), grouped by underrepresentation or overepresentation in the Senate.

This is basic representational and strategic numeracy for the purposes of this project.

The population of the U.S. is a little over 300 million.

A state is small (and therefore its citizens are overrepresented in the Senate, Electoral College, and amendment power) if it has less than 2% of the U.S. population, or less than about 6 million people.

A state is large (and its citizens underrepresented) if it has more than 2% of the U.S. population.

About one-third of states are large, and two-thirds are small.

About two-thirds of U.S. citizens live in large states (and the territories and D.C.); one-third of citizens live in small states.

According to Article V, ratification is by three-fourths of state legislatures or conventions.

If we insist on using Article V to make Article V, the Senate, or the Electoral College proportional, a whole bunch of small states would have to vote against their own interests in relinquishing disproportionate political power. It has not happened.

If, on the other hand, we vote by citizen, it is a lot easier. Two-thirds of citizens can vote themselves more power – proportional to their numbers. No voting against personal interests is required.