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The Majoritarian Filibuster

44 Pages Posted: 19 Jan 2013 Last revised: 21 May 2013

Benjamin Eidelson

Independent

Abstract

The debate over the Senate filibuster revolves around its apparent conflict with the principle of majority rule. Because narrow Senate majorities often represent only a minority of Americans, however, many filibusters are not at odds with majority rule at all. By paying attention to such “majoritarian filibusters,” this Note aims to disrupt the terms of the traditional debate and open up a new space for potential compromise. The Note reports the first empirical study of the majoritarian or countermajoritarian character of recent filibusters. These data reveal that, in half of the Congresses over the past two decades, successful filibustering minorities usually represented more people than the majorities they defeated. The choice whether to preserve the filibuster therefore cannot be reduced to a simple choice between majority rule and minority rights. After exploring the distribution of majoritarian and countermajoritarian filibusters along other dimensions of interest, the Note proposes that the majority-rule principle might be better served by simply reducing the sixty-vote cloture threshold — thereby shifting the balance toward majoritarian as opposed to countermajoritarian filibusters — than by abolishing the filibuster altogether.

Keywords: Filibuster, Senate, cloture, countermajoritarian

Suggested Citation

Eidelson, Benjamin, The Majoritarian Filibuster. Yale Law Journal, Vol. 122, No. 4, 2013. Available at SSRN: https://ssrn.com/abstract=2202791

Benjamin Eidelson (Contact Author)

Independent ( email )

No Address Available

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