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 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
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
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
Skip writes with some interesting context on
filibusters. I'm increasingly out of my element, here, so I'll just post his
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
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.