I have proposed the following constitutional text as a means to end the filibuster.

Section 5. Neither House may have or establish any rule which prevents a majority from proceeding with a vote.

There is actually more to this than ending the filibuster. Sometimes, the Speaker of the House has a policy to not bring a measure to the floor of the House unless it has the support of a majority of the members of the party in power. (See the Hastert Rule. It was followed more by Newt Gingrich and Dennis Hastert than by any Speaker before or since.) When such a measure has the strong support of the minority party and a minority of the majority party, the effect is to deny the will of a majority of the House, and, to the extent that the House perfectly represents the people, to deny the will of the people.

The minority party can get around this by filing something called a discharge petition, which a majority of the members of the House must sign in order to bring a bill to the floor. Obviously, some members of the majority party must sign as well. This process has some timing issues: the bill must have been stuck in committee for 30 days in most cases, and it is handled by the House on only the second or fourth Monday of the month in most cases.

This proposed text would constitutionalize the discharge petition and remove all timing limitations on the will of the majority. Suppose the petition says, “We want to debate and vote on H.R. 1234 now.” The speaker would be constitutionally required to comply immediately, regardless of what the House is doing at the time, because this new rule would trump all other House rules. Of course, the petition could just as easily say, “We want to debate and vote on H.R. 1234 within the next two weeks.”

This may sound like a recipe for chaos, but it isn’t. A majority of the House would be required. It would be a rare event. Consider that a Speaker would only receive a document like this after repeated requests by the minority party to bring a given issue to the floor. If he repeatedly refused, and then a majority of the House signed such a document, it would be a major embarrassment to the Speaker. It would make him seem dictatorial and anti-majoritarian. He could lose the speakership. It is much more likely that the Speaker will permit certain bills to come to the floor that do not have the support of the majority of the majority party. It will be in his interest to do so.

All of the above dynamics would also apply to the Senate.

In cases like the current government shutdown, this proposed constitutional text would make it somewhat more likely that the two houses of Congress would be able to agree on a solution. The Democrats in the House could find 17 House Republicans willing to back an alternative proposal, or Republicans in the Senate could find 5 Senate Democrats willing to back an alternative proposal. The leadership of both houses would be powerless to prevent these proposals from coming to the floor for a vote. It could happen as quickly as a majority of either house wants it to happen.

Here is an opinion that the timing limitations on the current discharge petition rule effectively prevent it from being used to avert the shutdown. There’s more to say about the shutdown. Some other time.

Dennis Hastert, Speaker of the House from 1999 to 2007.

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.

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…”