From 2013... Do not end the filibuster: Because narrow Senate majorities often represent only a minority of Americans, many filibusters are not at odds with majority rule at all

The Majoritarian Filibuster. Benjamin Eidelson. Yale Law Journal (2013), Volume 122, Issue 4. https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=5549&context=ylj

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. Bypaying 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. This 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 choicewhether 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, this Note proposes that themajority-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.