WHAT filibusters?

Saw a hilarious claim made by Fox News being debunked on MMFA today. Apparently the Republicans have NOT, in fact, been using the filibuster, the hold or any other tactics in an effort obstruct the Obama administration who, in fact has accomplished all of his major gosls. I left my two cents on that nonsense there, but it got me thinking…
You may not remember, but like a year and a half ago, ClassicLiberal and I had a disagreement about filibusters. (Steeve said I got ‘owned,’ but hey: it wouldn’t be the first time he and I disagreed.) Anyway, I’ve been meaning to address Classic’s points in that discussion for a LONG time now. To recap (and Classic should PLEASE correct me here, if I’m being inaccurate) his position was that the filibuster should be eliminated. Now, this discussion was happening in the context of filibuster REFORM (which I applauded, at the time) and coming on the heels of a record number of filibusters being waged and anonymous holds being placed on appointees (which amounts to the same thing) I responded that he was only bitter about how the Republicans were USING IT, and about the fact the Democrats never seem to be able to do the same. ‘Not so,’ he answered, and pointed out that the very idea of allowing the minority to override the will of the majority simply goes against the idea of Democracy. And my reaction to that intially was one of pragmatism versus principle. I agreed with him in principle, but felt that I still wanted the filibuster in ‘our’ arsenal, just in case, even at the risk that it gets used against us. (And of course if there was a way to make it less politicized and less AUTOMATIC, I have no problem with that. And that’s why I remain in favor of reform over abolition.)
But over the past year and a half, as I’ve thought about it, I started to wonder if the difference between having a 40-vote filibuster or a 50-Vote filibuster-proof majority is really all that different. So today I did a little exercise. I found some numbers from the2008 electoral roles (from here). And what I wanted to know was this: What would be the absolute minimum number of votes a Party would need to get to achieve the 40 votes needed for a filibuster, vs. the 50 votes they’d need to enact legislation, if the filibuster was eliminated.
[You can skip this paragraph if you’re not interested in the methodology] So I ranked the states by population, skipping DC, which doesn’t have a Senator. Using only the percentage of registered voters who actually voted, I cut that in half and then took THAT number of votes as a percentage of each State’s total (18+) population. I then SUMMED those totals to get these votes as a percentage of the Total U.S. (18+) Population.
Giving no consideration to the partisan leaning of each state in question, I was SHOCKED to learn that a 40-Vote Filibuster could be achieved by Senators voted in by a mere 2.3% of the population. DAMN! On a purely theoretical level, that’s a pretty solid argument against the filibuster even if it is an unrealistic scenario. And if I only used the 20 smallest, traditionally RED States, that number only goes up to 4.0%. Obviously still an absurdly small number to be able to derail popular legislation.
Now let’s say there’s no filibuster. If you take the 25 smallest States, giving no consideration to their partisan leaning, you can achieve a 50-Vote, now filibuster-proof, majority (assuming you hold the Vice-Presidency) with a number of votes totaling just 5.7% of the Population. This goes up to 9.8% if I assume only Red States. And just as a reference, a 60-Vote, filibuster-proof majority under the current system could be achieved with the support of just 10.8% of the Population, (16.0% assuming Red States only,) using the same methodology.
So the way I see it, here’s the big question on the purely theoretical level:
Would you rather have a system where just 2-4% of the population could STOP something from being enacted, or a system where just 6-10% of the population could enact ANYTHING they wanted to?
(And remember that, under the current system of assuming a filibuster every time, and using this methodology, you need just 11-16% of the population to achieve the filibuster-proof majority needed to do anything at all.)
And I don’t think this is a simple question by any means. Neither case resembles by a long shot a populist democracy, where the majority vote should be the deciding factor. In each case, I’m sure either side of the political spectrum (and the center) can conjure up all kinds of nightmare scenarios, about hos the other might use this power; some reasonable, some incredible and some which have already happened. My initial thought was a bit along the lines of a morally relative argument: That it depends on the times.
Suppose it’s the 1850’s. The country has been expanding, but the question of that abhorrent practice of slavery is threatening to come to a head and many fear that this issue may one day tear the country apart. And let’s say I’m President Pierce (or better yet, a hypothetical President Scott) and I want this issue RESOLVED. Well… I could see that the representatives of that mere 2-4% of the population being able to hold up any legislation that could resolve this issue as being far more than a mere thorn in my side. After all: blood will be shed over this, and I want ACTION! From that point of view, I might be inclined to agree with ClassicLiberal, or at least view this as a scenario in which the filibuster MUST be stopped.
BUT… Notice I didn’t say “slavery abolished,” I merely said, “resolved.” President Pierce had Southern Sympathies. And while this pretty much guaranteed the status quo would be maintained, let’s say he had enough voted to, oh... I don’t know… force Northerners to return escaped Slaves to the South or something, thus forcing them to not only enable, but participate directly in this abhorrent practice or else face ciminal prosecution? Oh wait… They had ALREADY DONE THAT! And President Fillmore signed it into law in 1850! Hmmm… Well, it seems that in that case the filibuster might have come in pretty handy to the abolitionists, would they had been able to muster one.
Does that close the case though? Not remotely. Because, I mentioned that hypothetical President Scott. And Winfield Scott was an abolitionist himself. So let’s say he’s the one setting his party’s agenda. If he needed just the representation of 5-10% of the population to END SLAVERY FOREVER? Maybe the Civil War never happens. Or maybe it happens earlier. Who knows?
(And please don’t waste anyone’s time giving me a pre-civil war American history lesson. I’m just using this all as a hypothetical example. I’m not suggesting this is how things actually happened or even worked back then. And I fully realize that I've used it in a somewhat absurd manner.)
And in either case, it doesn’t mean that either of these powers could not be abused. We don’t live in a time where we deal with an issue so fundamentally evil as slavery. And while I’m sure William will yell, “Abortion,” the FACT is that this country is not headed towards a Civil War over that issue or any other. And while we’ve seen filibusters used in an attempt to block undeniably GOOD legislation, such as the Civil Rights Act in the 60’s (and likely any legislation granting full and equal right to the LBGT population today, if the Democrats or Obama had the stones to propose anything,) without the filibuster (or the hold) we’d have had Robert Bork instead of David Souter on the Supreme Court for most of the last 25 years, and no Natural Land Reserves left ANYWHERE that don’t have oil and gas wells on them. And if we’d had a long history of such controversial legislation passing on a mere senate majority, I’m afraid to imagine what we might have seen following 9-11, for example. As bad as it was (and a lot of it WAS and REMAINS pretty bad!) concessions WERE made to get necessary Democratic support. You can question the VALUE of those concessions but that has more to do with the Democrats in question than with the system, IMHO.

If I have to choose? I’ll take the system where 2-4% can shut something down than the alternative of 6-10% being able to enact whatever they want to. Even if I assume a “we’ll clean up there messes” mentality, given the cyclical nature of American Politics the constant chaos of programs and laws and regulations beings enacted and then struck down, every 4-8 years… Well, over time, nothing gets done that way either! But I feel – and this is purely my judgment and opinion based on the facts as I see them, and I’m sure many will disagree with me – that less damage can be done by holding up progress for a few years than by the constant back-and-froth that would result for a pure majority-vote-rules Senate. In that case? Each side would spend their entire first term undoing what the opposition had done in their last term, and basically NOTHING would EVER get done in the long term.
However… I would like to give ClassicLiberals Democratic principles a nod here. Because in truth the whole IDEA of the Senate IS anti-democratic by design. So let me propose an admitedly radical third option to keeping the filibuster as it is or removing it entirely:
1) Eliminate the Senate.
2) Expand the membership in the House of Representatives so that no member has a Constituency larger than 50,000 citizens or smaller than 30,000.
For more information on step (2) please refer to the fine people over at [IMHO Hall of Famer] The 30,000. Aside from a lack of office space, there was really never any reason, nor Constitutional justification, to limit the number of Representatives. Now they don’t go so far as to suggest eliminating the Senate, but consider how much closer we would get to one-person / one-vote if we did. And consider how much less influence Political Parties and Special Interest groups would have (which in general I would say is either a good thing, or at a minimum good for democracy) if all a Representative needed to win was 50% of (whatever percentage was registered and voted) of 30-50,000. That might be as small as 10,000 people. Well… no matter how much money you have and how many mudslinging ads you run, I can go out and personally sit down with 10,000 people, answer their concerns face-to-face, educate them on the issues, explain how the ads are misleading, etc… And you can’t fight that kind of campaigning with propaganda! OTOH, if I need to get the majority of 5,000,000 people? Well… There’s no way I can combat the glut of Negative Ads and Hatchet pieces in the press on a one-by-one, face-to-face basis. So the big money and the big-connections will always to win out. Also – with literally THOUSANDS of seats up for grabs, it becomes WAAAY too expensive for even the BIG money to fight enough of those battles to win enough control by themselves. The way it is now? With so many (~1/10 as many) fewer battles to fight, it’s become VERY practical – easy, even – for the big money to wield WAAAY to much influence in the elections.
In any case, on a basic political system design level, I would not want to eliminate the filibuster altogether unless the Senate were eliminated and the House of Representatives expanded as I’ve described. Otherwise the Senate just has too much power, and represetns fro too few people. Though on a practical level I would still support the proposals of Senator Bennet (D-CO) that were being made way back when.

Too bad they didn’t go anywhere.