Earlier this month, the Republican “skinny” COVID-19 relief package failed in the Senate, losing to a Democratic filibuster, 52-47 (when 60 votes were required). On the one hand, this fits a standard way of understanding the filibuster: a minority blocked the majority from advancing legislation. Typically, the filibuster is described as a tool of the minority party, obstructing majority-rule, or “majoritarian,” policy-making. Yet, we can flip this framing around and see that, sometimes, the filibuster serves a majoritarian function, and has been doing so for the entire Trump presidency. This is a population majoritarian function.
The 52 Republican votes for the “skinny” relief package (with only Senator Rand Paul [KY] voting against) were a majority in the chamber. Still, they represented only about 155 million people based on 2019 Census estimates of the U.S. population, less than half of the country’s estimated 327 million person population. If we assume that vice presidential candidate Senator Kamala Harris (CA) would also vote “nay” if she were present (a near certainty), the total senators opposed represented about 172 million people–a considerably larger number. Thus, in this case, the filibuster served a population majoritarian purpose. If not for the filibuster, a majority of senators, representing a minority of the population, would be able to pass bills as they wish (so long as a bare majority could agree).
And Thursday’s vote was not an isolated incident. Despite countless discussions of the filibuster’s anti-majoritarian function by media, academics, and politicians, it has actually been serving a population majoritarian purpose for the entire Trump Administration. The Republican Party took power in January 2017 with a President who had lost the popular vote, a House majority likely inflated by gerrymandering, and a Senate majority that represented a minority of the population. The party held governing power through the narrowest electoral margins. But what came of this in legislative policy terms? Not a lot.
Much has been made recently about the Republican Party’s lack of a policy agenda–and indeed, this year, they failed to even write a new party platform–but the simplest explanation for this lack of policy success is the filibuster. A large minority–representing a majority of the country’s population–held an effective veto on legislation in Congress in 2017 and 2018, thwarting any efforts by Republicans to get laws passed. Like his predecessors before him, Senate Majority Leader Mitch McConnell (KY) chose to keep the filibuster in place rather than seek additional policy gains by getting rid of it. He has been a vocal proponent of keeping the filibuster.
To see an alternate world with no filibuster, we can look to an area where the filibuster doesn’t apply, and the Republican party is unified: confirmations of conservative judges. Here, the party has racked up continuous victories in the Senate. Some confirmed judges have been opposed by senators representing a majority of the population, but they will sit on the bench for the rest of their lives regardless. However, the legislative cupboard remains very bare, thanks to the filibuster.
These experiences show that the filibuster can have majoritarian and minoritarian functions, depending on the Senate’s partisan distribution. While normally it is the House’s responsibility to be the population majority’s check on the legislative process, this has been imperfect historically due to the warped drawing of Congressional districts. The filibuster can be a version of a population veto within the Senate chamber itself. In short, one thing the filibuster does is limit the worst excesses of a state- rather than population-derived membership. The Senate’s anti-democratic potential, where small population states can exert outsize influence, is limited by the filibuster’s supermajority requirement.
Given the current arrangement of state populations and partisanships, it is likely that small Republican majorities in the Senate, of the kind they hold today and that they are reasonably likely to hold in 2021, will represent a minority of the population. Democratic majorities are likely to represent population majorities (though this situation can change). In these circumstances, the filibuster would shift back to performing its much-discussed function of empowering minorities to obstruct change.
The arguments for ending the filibuster offered by Democratic and left-leaning politicians and activists frame the filibuster in this common anti-majoritarian way. Still, they do so at the end of a four-year period in which it served a clear population majoritarian purpose while also protecting Democratic interests – as it did on the defeat of the GOP’s “skinny” COVID-19 relief package.
Eliminating the filibuster–a strategy that has gained momentum as the Republicans look to fill the Supreme Court vacancy created by Ruth Bader Ginsburg’s recent passing–may yield Democratic gains by tearing down one anti-majoritarian barrier to progressive policy making. But it will also exacerbate the Senate’s ability to enact policy with only minority support, something that is today very difficult. It is possible to conceive of a future governing party that could hold a majority in the Senate with only 40-45% of the population. Combined with gerrymander-aided majorities in the House and the Electoral College penchant to generate popular-vote losing presidents, a filibuster-less Senate would allow for a true governing minority.
Presently, the filibuster serves as a majoritarian–not anti-majoritarian–check on this possibility. If removed, Democrats would have to accept such a government’s plausible scenario in 2024 or 2028 that could work decidedly against their interests. The filibuster’s two-sided nature, and the potential costs of its removal, should be made more explicit in discussions of filibuster reform.
Jeffery A. Jenkins (@jaj7d) is Provost Professor of Public Policy, Political Science, and Law; Judith & John Bedrosian Chair of Governance and the Public Enterprise; Director of the Bedrosian Center; and Director of the Political Institutions and Political Economy (PIPE) Collaborative at the Sol Price School of Public Policy, University of Southern California.
Photo Credit: United States House of Representatives or Office of the Speaker of the House / Public domain