Filibuster 2005 - Who Represents America?
Filibuster 2005Introduction: Periodically, debate over minority party Senators filibustering presidential nominees rears its head. In 2005, this issue climaxed with the Democrats filibustering a handful of President Bush's judicial nominees, and Senate Republicans threatening to change the rules to prevent such a scenario. The partisan polarization and the looming threat of a Senate shutdown over the issue was temporarily averted by a compromise between a bipartisan group of Senators. Nevertheless, this sparked a debate about the role and fairness of filibusters in our political system, especially given their seemingly forgotten past use by minority party Senators to block civil rights legislation and the nominees and policies of the Democratic majority during the Clinton-era.

With the rhetoric surrounding Supreme Court nominations once again heating up, FairVote's Filibuster 2005 Report cuts through the partisan rhetoric to give an honest assessment of the role of filibusters in judicial nominations. Our report studies how representative various groupings of Senators actually are when the amount of votes they received are compared to a) the total voting population in Senate elections, b) the combined voting strength of each party's votes cast for its candidates in Senate elections, and c) the combined voting strength of each party's votes cast for its winning candidates in Senate elections.

The Next Nominee Holds the Balance:With the retirement of crucial swing-Justice Sandra Day O'Connor, the balance of the court now hangs on the fate of President Bush's nominee, Samuel Alito. After the withdrawal of Bush's first pick, Harriet Miers, both Republicans and Democrats are bracing themselves for a bruising battle - but that is precisely why now is the time for Senators and party leaders to pause and seek cooperative reforms for future judicial nominees. Both parties are, not surprisingly, claiming to represent the mainstream of American voters' interests on the high court, and the threat of a filibuster or Senate meltdown has once again emerged. At the center of this partisan divide has been whether minority party Senators should have the right to filibuster a president's nominees, who they believe to be outside of the mainstream, under their Constitutional power to "advise and consent" to nominations. This debate raises clear issues of representation and places the question of who represents the majority at the center of this analysis.

A Majority Party with a Minority of Votes: Our new report on the last decade of U.S. Senate elections cuts through the partisan rhetoric to show how the question of “majority rule” is problematic in the U.S. Senate. Although the Republican Party holds a clear majority of Senate seats, its members in fact did not win a majority of the votes -- the Democratic Party Senators represent thousands more voters than their counterparts across the aisle. Through our state-by-state, winner-take-all elections, combined with the Senate’s gross distortions of the commonly accepted principle of equal representation based on population, one party can easily win a disproportionate number of seats.

A Potential Filibuster Minority: On the flip side, our report shows how relatively few people can be represented by Senators able to uphold a filibuster. This raises questions both about the democratic legitimacy of some filibusters (those where the minority senators represent an even smaller minority of people, as was historically the case with some filibusters against civil rights legislation) and legitimacy of some attempts to end filibusters (those where the minority senators in fact represent a majority of voters). The lesson for FairVote is that we should shift the frame of the debate. Hence, before a meaningful discussion can ever be had about the fairness of a filibuster, the conversation must first be started about the fairness of representation in the Senate.

Brief Origins of Senate Elections
: In what came to be known as the Connecticut, or Great, Compromise, a fledging nation decided to implement a bicameral legislature that stipulates equal representation for all states in the Senate, and population-adjusted representation in the House of Representatives.  While there was little argument as to the population-based representation in the House, there was considerable debate over the nature of equal representation in the Senate, to which it was finally agreed on, much to the chagrin of heavily-populated states.  It was a concession forged in the spirit of adaquete distributions of power within Congress, especially regarding the concerns of the lesser populated states, to which Alexander Hamilton declared "the truth is that it is a contest for power, not for liberty . . . the State of Delaware having 40,000 souls will lose power, if she has 1/10 only of the votes allowed to Pennsylvania having 400,000".  This foundation for the American legislative branch has persisted to this day, despite historical developments such as the increasing disparity between larger/small state populations and the rise of a two-party political establishment.

Methodology of the Report: The method was to review the Senate compositions of the 103rd Congress (the last Congressional session when the Democrats had a Senate majority), the 107th Congress (when the Republicans and Democrats split an even 50/50 Senate breakdown), and the current 109th Congress (Republican majority).  Each Senator was assigned their votes in their most recent election—for example, a candidate like Barack Obama was assigned the number of voters who supported him in the most recent 2004 Senate election in Illinois, as an indicator of how many constituents he represents.  Note that Obama would, in the theory of a winner-take-all plurality system, represent all of Illinois’s residents, but this study employed only a consideration of how many people actually voted for Obama (a more accurate reading of the popular vote, especially when the two senators from a state are from different parties). We used these figures to study the following issues, within the 103rd, 107th, and 109th Congress:

  • When the two major party's aggregate votes are compared, who represents more voters?
  • What is the distortion between the percentage of votes that a party received and the percentage of seats that it received?
  • How many voters are represented by the minimum number of Senators (40) needed to sustain a filibuster?

Key Findings

A Distorted Senate with a Filibuster Majority

  • The number of Senate seats represented by the majority party is wildly inconsistent with the actual number of votes those Senators received.  In the 109th Congress, for example, the 45 Democratic Senators who won election received the votes of 63 million Americans, while the 55 Republican Senators who won election only received 58 million votes. In fact, combining the winning and non-winning votes of each party's candidates (whether they won or lost) reveals that in the last 100 Senate races, the Democrats received 99,088,108 votes, while the Republicans received 97,069,157 votes. In spite of this, the Republicans hold a ten seat majority in the Senate.
  • In the 103rd Congress, given the total votes received by each respective political party, the Democrats should have received 66 seats in the Senate, while the Republicans should have received only 33 seats.  The actual configuration, however, led to a drastic 10% under-representation for the Democrats and a 11% over-representation for the Republicans.

The Potential for a Tyranny of the Minority
  • On both sides of the political spectrum, filibusters threaten to undermine democratic values, when a bare minimum of 40 Senators who represent a miniscule fraction of voters, can undercut the majority will. In the 103rd Congress (when Republican filibusters attempted to derail Clinton Administration policies), the lowest 40 vote-getting Republican Senators could mount a filibuster while only representing 13.60% of all voters in Senate elections. 
  • Meanwhile, in the 109th Congress, a bare 40 Democrats could attempt a filibuster of Bush's Supreme Court nominee, while only representing a dismal 20.58% of all voters in Senate elections (ie: votes cast for Senate candidates of either party, regardless of whether the candidate won or not)..

Conclusions from this study are described in subsequent sections, including the breakdown of how the election cycles of the last decade have fared, as well as individual reviews of the separate Congressional sessions.  Through our analysis, we have uncovered many instances where the will of the voters was not reflected in the makeup of the Senate. Analyzing specific election cycles yielded several instances where there existed a large distortion between a party's percentage of the vote and their percentage of seats (ie: they won a majority of votes, but did not receive a majority of seats).  Likewise, the cumulative effect of these skewed elections revealed that the resulting composition of three Congresses were plagued by partisan Senate makeups inconsistent to the number of voters representated by a particular party.

Speculations into what drives this startling disproportionate makeup in Senate representation owes to the fact that, in the last decade at least, the Democrats tend to secure wins in the most densely populated states—California, New York, Illinois, New Jersey, and Maryland are popular examples—while the Republicans often garner wins in less populated states like Montana or Idaho.  This accumulation of smaller state winnings, however, guarantees the likelihood that Republicans are usually over-represented in the Senate.  An interesting population statistic to note when evaluating the efficacy of Senate-based equal representation is that while the 21 least-populated states in the nation comprises an aggregate population equal to that of the entire population of California, they secure 42 Senators in the Senate, compared to the 2 that California currently has.