Democratizing the Senate from Within

45 Pages Posted: 25 Mar 2021 Last revised: 30 Mar 2021

See all articles by Jonathan Gould

Jonathan Gould

University of California, Berkeley - School of Law

Kenneth Shepsle

Harvard University - Department of Government

Matthew Stephenson

Harvard Law School

Date Written: March 25, 2021

Abstract

The U.S. Senate is an undemocratic institution in two respects. First, the filibuster rule allows a minority of Senators to block a final vote on most measures. Second, the Senate’s malapportionment means that a Senate majority often represents a minority of the population. Eliminating the filibuster would address the first problem but would exacerbate the second. Most proposals for addressing the Senate’s malapportionment either do so only indirectly and contingently, or would require unlikely changes to the Constitution or constitutional doctrine. We therefore propose that the Senate replace its current filibuster rule with what we refer to as a “popular-majoritarian cloture rule.” Under this rule, a motion to close debate and proceed to a final vote would carry if but only if supported by a majority coalition of Senators who collectively represent a larger share of the population than those Senators in opposition. This rule, which would be a constitutional exercise of the Senate’s power to set the rules of its proceedings, would make the body more democratic, legitimate, and functional, and would be prefer-able both to the current filibuster rule and to simple majority rule. The democratic illegitimacy and dysfunction of the U.S. Senate as it currently operates justifies the consideration of institutional reforms that might seem, at the moment, both extreme and unlikely. Repairing American governance requires fixing the Senate, and our proposal illustrates one way to democratize the Senate from within.

Keywords: Filibuster, Senate, Democracy, Cloture, Equality, Legislative Procedure, Constitutional Law

JEL Classification: D72

Suggested Citation

Gould, Jonathan and Shepsle, Kenneth and Stephenson, Matthew Caleb, Democratizing the Senate from Within (March 25, 2021). Available at SSRN: https://ssrn.com/abstract=3812526 or http://dx.doi.org/10.2139/ssrn.3812526

Jonathan Gould

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States

HOME PAGE: http://https://www.law.berkeley.edu/our-faculty/faculty-profiles/jonathan-gould/

Kenneth Shepsle

Harvard University - Department of Government ( email )

1737 Cambridge Street
Cambridge, MA 02138
United States
(617) 495-4928 (Phone)
(617) 496-5149 (Fax)

Matthew Caleb Stephenson (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-495-9863 (Phone)

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