Majority of a Majority
Over on Balkinization, I posted yesterday about the idea of a constitutional “deep state.” The question is what are the institutions and norms in our system that are not a part of standard constitutional analysis? (The Federal Reserve is one example.)
Here’s another possibility, though I’m not sure how important it is. It is now a well-accepted practice on Capitol Hill that the leadership will not bring a bill to the floor if a majority of the majority party is opposed. In other words, a bill that is supported by House Democrats and by many House Republicans–enough to create a majority in the House as a whole–goes nowhere if most House Republicans say no. In theory, this means that slightly more than one-quarter of the House or Senate can block any bill.
The Senate filibuster gets a lot of attention, but this “majority of the majority” norm could be a much greater obstacle because it reaches into both Houses of Congress and requires a smaller faction to succeed. I say “could be” because I don’t know as an empirical matter how often this custom stops proposals from being enacted. The answer may be “hardly ever.” It’s a good topic for someone to research.