Reviewed in the United States on February 23, 2021
Which form of government is preferable -- rule by the majority or by the minority? Most Americans would say the former, so long as there were protections for minority rights. Most contemporary Republicans, however, prefer the later -- and they get it. As Adam Jentleson puts it, "Minority rule is a defining feature of our era."
The fact is that GOP presidential candidates have lost the popular vote in seven of the last eight elections. Though Republicans controlled the Senate for ten years since 2000, Senate Democrats have represented a majority of the American population every year. One indicator of this anti-democratic streak came in 2016 when the GOP cancelled Republican presidential primaries and caucuses in 22 states. Another indicator is Republican eagerness to enact legislation at the state level making it harder to vote.
The filibuster is the quintessential tool of minority rule. It allows 41 senators to block the wishes of 59 colleagues, the president, and the majority of Americans. In the current era, Republicans are the filibuster's chief defenders. They operate the kill switch to prevent progressive legislation from passing.
Jentleson is the former deputy chief of staff to Senator Harry Reid. His book describes in detail the history of the filibuster, and how it has been used.
Though defenders cite tradition, the filibuster is not authorized by the COTUS. Instead, it evolved over two centuries into the tool it is today. One constant is that the filibuster is primarily weilded by white conservatives. Jentleson puts it this way:
"From its inception to today, the filibuster has mainly served to empower a minority of predominantly white conservatives to override our democratic system when they found themselves outnumbered, blocking progress that threatened their power, their way of life, and the priorities of their wealthy benefactors, from the slaveholders of the nineteenth century to the conservative billionaires of today."
Jentleson makes a strong case that the Framers intended majority rule to prevail in the Senate, with a few explicit exceptions, such as the two-thirds vote to convict on impeachment.
"The Framers were realists who wrote the Constitution in the shadow of the Articles of Confederation, the disastrously ineffective system of government that allowed a minority of members of Congress to block the majority from acting. They had seen firsthand that allowing a minority to block the majority did not promote deliberation. Instead, they warned that it would create an irresistible temptation for (what Hamilton called) a 'pertinacious minority' to sabotage the majority, leading to 'contemptible compromises of the public good' and eroding majority rule, which they widely regarded as the 'first principle' of the democracy they created."
Majority rule does not determine what passes in the Senate nowadays. Jentleson gives as an example a vote in 2012 on a bill to require universal background checks before buying a gun. The bill had bipartisan support and 90 percent approval in the polls. It got 55 votes. The majority was defeated by 45 senators who represented 38 percent of the population. In short, the minority rules.
Isn't that how a "republic" is supposed to work? The Framers understand democracy to mean direct democracy as in Athens. They understood republic to mean what we call a democracy today, where people elect representatives who make the laws.
James Madison, known as the Father of the Constitution, called majority rule “the republican principle.” He wrote, “In Republics, where the people govern themselves, and where, of course, the majority govern...The vital principle of Republican Government is the lex majoris partis, the will of the majority.”
Thomas Jefferson believed that majority rule was “founded in common law as well as common right” and “is the natural law of every assembly of men.” TJ wrote to Madison: “It is my principle that the will of the majority should always prevail.”
The first constitution of the United States was the Articles of Confederation. It contained a fatal flaw, namely that support from two-thirds of the states was required to pass tax and spending legislation. The result was gridlock. Consequently, the Framers were determined not to repeat the mistake of a supermajority requirement. At the Con-Con, proposals by southern delegates for supermajority votes for regular legislation were defeated.
In Federalist #22, Hamiton rejected the arguments for a supermajority rule, Madison did likewise in Federalist #58. If a minority was allowed to block a majority, Madison writes, then “in all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority.”
Minority rule is exactly what filibuster fans favor, even though it is contrary to original intent. Senators representing as little as 11 percent of the population can obstruct the will of colleagues representing 89 percent of Americans.
Since the filibuster is not in the COTUS, where did it come from? To make a long story short, the filibuster came into existence in the nineteenth century, "as part of white supremacists’ mission to preserve slavery, and then their efforts to strengthen it during the early twentieth century to maintain Jim Crow. (Then) the modern, post–civil rights Senate began applying the filibuster to a broadening range of bills and issues, and married the old vision of minority rule with new, rigid leadership structures."
Details are in the book about the roles of John C. Calhoun and Richard Russell in creating the filibuster. The good news is that unlike some other political problems, fixing the filibuster does not require amending the COTUS. Weakening or abolishing the filibuster takes only 51 votes.
It was weakened in 2013 after an historic and unprecedented number of presidential nominees had been blocked by GOP filibusters.There had been 82 Obama nominees blocked, compared to a total of 86 nominees for all previous presidents. Consequently, Majority Leader Harry Reid invoked the so-called nuclear option and changed Senate rules to exempt nominees, except for the SCOTUS, from the filibuster.
Negative partisanship combined with the filibuster gives conservatives a distinct advantage. Unlike Democrats, Republicans aren't trying to pass sweeping new programs for health care or other things. Under the current filibuster, the GOP can still achieve its top three priorities: approval of tax cuts, approval of conservative judicial nominees, and the ability to prevent Democratic social programs from passing.
For Democrats, the filibuster is a lose, lose proposition When in the minority, they can't stop GOP tax cuts and judicial nominees. When in the majority, they can't enact social programs. Finding 41 votes to block legislation is much easier than finding 60 votes to pass it. Advantage GOP..
President Obama rightly called the filibuster a “Jim Crow relic.” It clearly delayed passage of civil rights legislation for many years, and prevented an anti-lynching law for generations. It preserved the Electoral College in 1969, and continues to primarily benefit white conservatives.
The plan for reform is simple: Restore the requirement for actual debate to replace the anonymous hold. This gives the minority every opportunity to state its case. Then amend the rules to provide a cloture vote after a certain number of days, using a simple majority.
Hamilton and Madison were right in opposing a supermajority requirement. The argument that it promotes compromise does not apply in our era of hyper-polarization and negative partisanship. The country would benefit from a productive, functioning Senate. ###