Broken Systems and Filibusters

The General (of Benjo Blog) wrote me a long e-mail about my comments on judicial nominations in my State of the Union commentary.

I said:

I have never understood why it's so easy for Senators to prevent a vote. I work in validation, so I have an adverse reaction to systems that don't make progress. A system that doesn't make progress is a broken system. There should be limits to delays. If a minority in the Senate was intended to have de facto veto power, it would have been written into the Constitution.

He provided links to several related articles that he's written related to the matter. The key paragraph of his e-mail is this:

I think it is advantageous that Senators can prevent a vote relatively easily. One of the best insights of the founders is the system of checks and balances, to prevent any one branch or group from usurping control of the government. This is especially important today, when the religious right is taking over the Republican party, which is now a majority in both houses of congress. A filibuster, which can indefinitely prevent a nomination or the passage of a bill, can currently be overturned only when 60 or more Senators vote to end it. Anything less, and a Senator can read Atlas Shrugged or the Bible indefinitely. I think this is a good thing. There is no way to prevent a society from going into the crapper; but what you can do, is make damn sure it doesn't go into a crapper just because a popular minority or semi-majority wants it too.

I agree the filibuster has value. But when I put on my architect's hat, it looks like the filibuster is being used as a workaround to a system that had a bug … and the workaround has problems, too.

The original problem is that a slim majority can decide the President's nominations. Today the Republicans have a majority in the Senate, and the President is a Republican, so they can basically do whatever they want — it is undesirable for Republicans to hold so much power, when they are barely the majority.

The workaround is a filibuster, which requires 60 votes to overcome, thereby giving some additional power to the minority. But the problem with the filibuster is that it halts progress on whatever the Senate was currently doing (e.g. it's to block a nomination), and since the floor is tied up, it prevents other work too.

If this were a microprocessor, I'd say the bug is an incorrect threshhold value, and the workaround is to mutex. This is a very big hammer. It hurts the performance of other tasks, and is nearly a deadlock itself, because a filibuster can be indefinitely long.

The fix would be to increase the proportion of yea votes required to confirm a nominee. If 60 votes were required, the minority would have the same amount of power as with the filibuster, but without the negative work-stopping side-effects of using a filibuster. And if 60 isn't the right number, pick your favorite.

Make it easy to get a vote. That enables forward progress. Make it hard to win a vote. That protects minorities.

Would I get strange looks if I referred to amending the Constitution as applying a microcode patch? [wouldn't that be more like a firmware update? -ed]

UPDATE 2005-02-17 08:17:44 UTC: Skip writes with some interesting context on filibusters. I'm increasingly out of my element, here, so I'll just post his comments:

The problem with most discussion of the Seante's fillibuster rule is that it ignores the historical development of the practice. The filibuster itself was not adopted as a positive rule; that is, the Senate didn't sit down and consciously decide to permit them. In the early congresses — in both the House and Senate — the British parliamentary practice of unlimited debate was continued. Even today, Robert's Rules and similar authorities presume debate is unlimited unless the assembly — by a two-thirds vote — restricts debate.

Later in the 19th century, as both houses of Congress expanded with the admission of new states, unlimited debate became unworkable. The House limited debate, first each member to one hour, and today through the use of bill-specific "rules" that limit debate times. The Senate chose to continue unlimited debate, adopting the caveat that a three-fifths vote could set a finite limit for ending debate. (Contrary to popular belief, a filibuster doesn't end debate immediately — that would be a motion for the previous question — but rather sets a definite timetable to close the debate.) The Senate rule is actually more generous than a regular previous question, as it requires six less votes for passage.

My objection to the current filibuster practice is that it doesn't fulfill its intended purpose — preserving the right of members to debate. Today the mere threat of a filibuster usually brings action to a halt; when actual filibusters are performed, they are for show. (Another related practice, which completely contradicts parliamentary law principles, is the use of often-anonymous "holds", where a single senator can delay consideration of almost any bill or nomination.) The filibuster is now simply an obstruction tactic. One way to deal with this would be to simply require opponents of a nomination to debate — no extraneous material (i.e., reading Atlas Shrugged) allowed. A simple enforcement of traditional parliamentary procedure would go a long way.

Okay, I can't resist one cutesy comment. I don't know how reading Atlas Shrugged got into this in the first place, but I would pay real money to see someone read Francisco's speech to Congress during a filibuster. In that case, I would happily (but temporarily) put aside my distaste for filibusters, in favor of some popcorn.