Richard Arenberg of Brown University criticizes those who contend the filibuster is “undemocratic and unconstitutional.” According to Arenberg, “‘the possibility that senators elected from 21 states that may contain as little as 11 percent of the U.S. population [can have] an absolute veto power over bills, resolutions and presidential appointments supported by senators who represent 83 percent of the people of the United States'” is not necessarily alarming and certainly not unconstitutional. Those who suggest otherwise, he continues, “misrepresent . . . the founding fathers’ design of the Senate.”
The founding fathers greatly feared the “tyranny of the majority” – and they created the Senate to avoid what they deemed the rule of the mob.
The Senate was the result of the “great compromise” at the 1787 Constitutional Convention, which shaped the body to represent the states. Each state has two senators regardless of its population size – an idea so important to the framers that the Constitution in Article V requires that “no State, without its consent, shall be deprived of its equal suffrage in the Senate.” Therefore, changing the Senate’s composition would, in effect, require unanimous consent of the states, not the usual three-fourths needed to ratify a constitutional amendment.
With two senators representing each state, the idea that a Senate majority must somehow reflect a majority of the population is simply wrong. [More here.]
Mathew Yglesias of Slate Magazine responds:
. . . The whole thing hinges on the idea that filibustering defends minority interests and prevents the “tyranny of the majority.” But this is simply wrong. The problem of the tyranny of the majority is the problem that minority groups in society might see their interests trampled. But protecting the interests of the political party that lost the last election doesn’t achieve this goal.
Most people aren’t Jehovah’s Witnesses, and . . . you might see a proposal to trample on Jehovah’s Witnesses interests by banning them from knocking on doors. In this case, the filibuster would defend the interests of a minority group because it makes it harder to pass laws.
On the other hand, most people aren’t gay and some straight people think gay sex is immoral, so gay people may be subject to discrimination in employment and other venues. You might see a proposal to advance gay interests by banning employment discrimination on the basis of sexual orientation. In that case, the filibuster harms the interests of a minority group because it makes it harder to pass laws.
Which is to say that making it harder to pass laws simply makes it harder to pass laws. It has nothing in particular to do with majoritarianism or minority interests or anything else. It’s a status quo measure. To the extent that you think the status quo is great, then maybe you love a 60 vote threshold. Maybe you think it should be raised to 65 or 75 or 95. Or maybe instead of a bicameral legislature we should have a four-chamber legislature. It’s easy to think of new ways to make it harder to change the laws. But that’s the issue. Making it hard to change laws systematically preserves the advantages of whatever groups are advantaged by the status quo.