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Legal Commentary

: Balkinization

Data on filibusters

By Jack M. Balkin

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A fascinating posting by Ben Eidelson, a graduate student at Oxford, presents some illuminating empirical information about the (un)democratic character of filibusters. It turns out that the vagaries of the equal vote rule currently "favor" Republicans inasmuch as Republican filibusters (which, by definition, require 41 senators to vote against cloture for a bill favored by a majority of Democrats (and, perhaps, a Republican ally or two) are possible with senators who are significantly less likely, in toto, to represent a majority of the American public than is the case with Democratic filibusters. Obviously, Democrats represent far more of the larger states than do Republicans, even though, as noted in my earlier posting, Democrats (or sympathetic independents) do control Vermont, North Dakota, and Montana, while the only one-representative state currently controlled by Republicans is Wyoming). At the very least, this suggests a complexity in any argument about whether filibusters are per se "undemocratic," since we also have to confront, as part of any answer, the extent to which the Senate itself is so obviously undemocratic because of the equal-vote rule.

Incidentally, while I'm at it, let me answer the snarky questions from people who believe that every one of my positions is motivated by simple short-run partisanship: As a matter of fact, I was rather eager for the Republicans to invoke the "nuclear option" and break the filibuster with regard to judicial nominations, for two quite different reasons: a) sooner or later there would be a Democratic President, who should have a relatively free hand to name appointees, subject to majority approval by the Senate; and b) I had an altogether justified lack of confidence in the backbone of Senate Democrats re how they would define "so out of the mainstream" with regard to a "legitimate" filibuster. They rolled over and played dead on Roberts and Alito for the Supreme Court and accepted a number of bad nominees to the circuit courts, even if they did force Bush to sacrifice a couple of his nominees.

Furthermore, one of my political memories goes back to 1962, when I was working in DC and was lucky enough to be watching the Senate during a filibuster on a communications bill, which was being led by, among others, Paul Douglas, the liberal senator from Illinois who opposed the filibuster. What he said, I well remember, is that he didn't believe in "unilateral disarmament." Neither do I. This doesn't entail that the whole world wouldn't be better off with bilateral disarmament or with a less minority-protective filibuster (even if I have the satisfaction of knowing, thanks to Eidelson's data, that Democratic filibusters are less exemplary of minority tyranny than are Republican filibusters),

Full post as published by Balkinization on March 06, 2009 (boomark / email).