In a democracy, what percentage of the people should have to support a measure to insure that it passes? Is it 51%? Should a 60% vote be needed if a measure is really important? Or if it is a fundamental change, should two-thirds of the people have to agree?
In the last few days, and over the last two years, we have seen measure after measure defeated because members of the US Senate opposed a bill. When a bill is defeated because the US Senate favors the measure by a vote of 59-41, there is a sense of frustration that an albeit large minority is blocking majority rule. And we wonder why there can be a successful filibuster even on legislation that is supported by two-thirds or three-quarters of the American public.
The ability of 40 US Senators to block a bill actually permits a much smaller part of our population to decide the course of our democracy. By my calculation, the 40 vote rule permits about 5% of the population to thwart majority rule. The filibuster rule is not a rule that permits a 40% minority to block legislation. Under our democratic system, a minority as small as 5% is allowed to thwart the will of the majority. Here's the calculation.
For starters, the US Senate is not exactly the institution you would create if you were trying to build a representative democracy. For example, I happen to live in the state of California, with an estimated population of almost 37 million. (All population figures in this diary are based upon US Census estimates for July 2009, which can be found in spreadsheet form on Google.) I can vote to elect two Senators. An American who lives in Wyoming is part of a state with an estimated 544,270 residents, and also gets to vote for 2 Senators. Even though my fellow citizen in Wyoming presumably has no greater value or worth than a voter in California, the Wyoming voter has a much greater representation in the Senate. Given the relative population of California and Wyoming, the voter in Wyoming has a voice that is 68 times more powerful than the citizen in California.
So let's try an exercise. Consider a major corporation with the modest desire to protect its interests on a few unpopular matters. This company wants to exercise its rights under Citizens United, and finance campaigns with the goal of electing a US Senate that will use the filibuster power to shut down government unless the company gets what it wants. For example, the company just wants to control 40 Senators who can threaten that they can block any increase in the debt ceiling, any defense authorization bill, any unemployment benefits, any Medicare benefits, or any social security benefits. Of course, the company wants to keep its expenses low, so it wants to find the cheapest way to buy the 40 votes it needs.
So what percentage of the American population can block a bill under the current Senate rules? Look at the twenty states with the smallest population:
Mississippi 2,951,996
Arkansas 2,889,450
Kansas 2,818,747
Utah 2,784,572
Nevada 2,643,085
New Mexico 2,009,671
West Virginia 1,819,777
Nebraska 1,796,619
Idaho 1,545,801
New Hampshire 1,324,575
Maine 1,318,301
Hawaii 1,295,178
Rhode Island 1,053,209
Montana 974,989
Delaware 885,122
South Dakota 812,383
Alaska 698,473
North Dakota 646,844
Vermont 621,760
Wyoming 544,270
That's a total of 31,434,822 out of an 307,006,550 people in the United States, or about 10.2% of the population. Of course, to elect 40 senators in those state, there is no need to win the votes of 100% of the population. To elect a Senator, the candidate with the most votes wins. Assuming that, unlike the recent election in Alaska, there are only 2 candidates in each race, you need slightly more than half the votes. Control of the Senate through the power of filibuster can therefore be achieved with support of 5.1% of the voters.
If you want to feel confident about getting through a Senate filibuster, you shouldn't think of a 40 vote test. Support from three-quarters of the people may not be enough. You should be thinking of issues with support from 95% of the population.
And what is it that 95% of the American people agree upon anyway? We know that only 88% of the population agrees that British Petroleum was involved in the oil well that exploded in the Gulf (Pew), that only 64% think that the US imports more than it exports, that 18% think Obama is a Muslim (Pew).
Are you thinking that a bill on global warming or some other scientific issue can survive a Senate filibuster? You might want to consider that about a third of Texans believe that humans and dinosaurs lived at the same time.
But if you think that poll result was influenced by religious views, you still might want to consider that according to Gallup, only 79% of Americans think the earth revolves around the sun, while a substantial minority of 18% say it is the other way around.
If you want to pass a resolution commemorating the death of Elvis Presley, don't count on it getting through the Senate. According to a CBS poll, 7% of your fellow Americans think he may still be alive.
This 95% threshold, of course, is not entirely fair. It is completely unlikely that an issue has support of no one but 51% of the people in each of the smallest 20 states. But at the same time, the Senate is not structured to reflect a fair proxy for representation of the American people. For example, 4 Democratic Senators in California and New York represent 18.4% of the voters, but 4% of the Senate. Ten senators in the Democratic leaning states of California, New York, Illinois, Pennsylvania and Michigan represent 30% of the voters.
While some of the states on the bottom 20 list are competitive or lean Democratic, many of the bottom 20 give conservatives a huge head start on gathering 40 votes to block the passage of any progressive legislation. Wyoming, Alaska, Idaho, Kansas, Utah and Nebraska represent 12% of the Senate, or 30% of what is needed to filibuster, with about 3.3% of the population.
We should never confuse a majority in the Senate with a majority in the country. Our nine largest states represent 51% of the US population, and are awarded a voice in the US Senate of 18 seats. That is the same voice as given to the population of the 9 smallest states, which represent less than 2.9% of our country.
The US Senate was created as a compromise to protect a few small states from being overwhelmed by the larger states. But the population differences among the original 13 colonies then did not create the disparities that exist in the US Senate today. The counterpart to today's California/Wyoming example of 68 times difference would have been a Virginia/Delaware disparity of less that 12 times. The rule that permits 40 Senators to block legislation only exacerbates the basic flaws of the institution. The filibuster rule is simply inconsistent with the goal of achieving a representative democracy.