Yet eliminating the filibuster, as many are now urging, also poses a danger to democracy. Given the Senate’s extreme malapportionment — with two senators per state regardless of population — Senate majorities often represent fewer than half of the country’s citizens. For example, the 2017 tax cut passed with the support of 51 senators who represented only 43 percent of the population. Getting rid of the filibuster would alleviate minority obstruction today, but it would also increase the risk of minority rule in the future.
There is a way out of this dilemma: Democratize the filibuster.
The filibuster exists only because a Senate rule requires the support of a three-fifths majority to cut off debate and hold a final vote. The Senate could change this rule so that ending debate would instead require the support of a majority of senators who collectively represent a majority of the U.S. population, with each senator considered to represent half of his or her state’s residents. This rule, which should be extended to all legislation as well as confirmation of judicial appointments, would allow a bare majority of senators to overcome a filibuster — if those senators together represented a majority of the American people.
Democratizing the filibuster in this way would empower Senate majorities that represent a popular majority to pursue their agenda, while erecting a safeguard against minority rule when a Senate majority represents only a minority of Americans. By doing so, a democratized filibuster would finally bring the Senate into line with foundational principles of equality between all citizens in our democracy.
For Democrats eager to reform Senate rules, democratizing the filibuster is better than simply eliminating it. Today’s 50-member Democratic Senate caucus represents more than 56 percent of the American people. Indeed, every Democratic Senate majority this century has represented more than half of the national population. So during periods of Democratic control, a democratized filibuster would produce the same result as eliminating the filibuster entirely.
But a democratized filibuster would prevent a future Republican Senate majority that represents only a minority of the population from passing, on party-line votes, policies that most Americans don’t support.
For this same reason, one might expect Republicans to oppose a democratized filibuster. Still, Republicans should think twice before dismissing such a reform. Centrist Republicans in particular might actually be better off if Republican Senate majorities needed to attract the support of a few Democrats — just enough to obtain a popular majority — to advance their agenda.
Right now, thanks to Senate malapportionment, the Republican Party rarely pays a political price for adopting positions that are unpopular with most Americans, and this insulation from electoral constraints has empowered the party’s extreme wing. Tying cloture to state population would give Republicans stronger political incentives to tack back toward the center, shifting the balance of power in the Republican Party to the moderates.
Requiring the support of senators who represent a popular majority to overcome a filibuster would thus be better — for Democrats, moderate Republicans and the American people — than either keeping or eliminating the current filibuster.
Doesn’t the Constitution require that each senator have one vote? It does. But the best reading of that requirement is that it applies only to final votes, not to procedural decisions such as determining when debate must end. On those matters, the Constitution gives the Senate broad discretion to make its own procedural rules — including the current super-majoritarian filibuster or our proposed population-based alternative. The current filibuster is an example of how that control over internal procedures can contribute to Senate dysfunction. The Senate could instead use that same power to make itself a more democratic body.
Taking population into account in Senate voting, even on procedural questions, would mark a major change from how the chamber has traditionally worked. Those who benefit from the status quo will undoubtedly resist. But the undemocratic and dysfunctional character of today’s Senate calls for rethinking how the institution operates.
The conversation about filibuster reform shouldn’t focus just on whether to keep it, ditch it or make it harder to use. Reformers should harness the Senate’s power over its own procedural rules to democratize the institution from within.