This post is not directly related to security though it does have some connections through the broader concept of governance and leadership. It is something I’ve been think about a lot lately and I feel an obligation to write. For those of you reading just for the tactical security tips, please skip this post.

Recently, there has been a great deal of chatter about eliminating the filibuster – the rule within the Senate that effectively allows a single senator to hold up a bill by continuing to talk about it for hours, days or even weeks on end. The filibuster has been rather famously used to disrupt the passage of key bills and nominations proposed by the majority power. Filibusters are being described as a prime example of partisan bickering and legislative gridlock.

I disagree. Yes, the filibuster can be abused for purely partisan purposes but at its core the filibuster is a way for the minority party (whether currently Democrat, Republican, Whig or Federalist) to keep a stake in the operations of government and to continue to influence debate. Despite the threats about the “nuclear option”, neither party would be served by the elimination of the filibuster.

Much more importantly, the filibuster is a check against the tyranny of the majority. By allowing a mechanism to raise the threshold for a vote from simple majority (50% plus 1) to a super-majority, it acts as a check against the ability of the majority to vote themselves unlimited privileges. 51% of the population could, for example, decide to fund the government by taxing just the other 49% – or less obviously, to skew the burden of taxation onto the minority. Or the 51% could vote in a particular moral code which may not be held by – may even be anathema to – the 49%.

The majority could do so even in a situation where the the 51% felt only weak agreement but the 49% disagreed vehemently. Our simple majority voting system is prone to bias and sub-optimal decisions when the voting groups have different degrees of preference for a result or where multiple options could/should be considered. (Wikipedia has an excellent discussion of alternative voting structures, some of which are less susceptible to this bias though they each have their own limitations in turn.)

Our legislative system is also susceptible to a recency bias. Get 51% today and even if you can only keep your majority for the time it takes to vote, the effects will long outlast the majority opinion. In theory, it should be as easy to rescind a law as it was to pass it but in practice, it is remarkably hard to undo a law even in the face of convincing evidence that it is ineffective.

The filibuster is not the only check and balance in our system against the tyranny of the majority and recency bias and it’s not a perfect one but it is an important one. A 61% majority might still impose their will on the remaining 39% but that higher threshold gives the affected minority a chance to raise the stakes and to force additional scrutiny on the debate.

Now there are those who say that the filibuster was a mistake – a minor omission in the procedural rules of the Senate that took on a life of its own. If it was a mistake, it ranks as an outstanding example of serendipity. It subtly encourages one arm of the government to be more deliberative and circumspect in their aims.

I will concede, however, that some of the procedural rules changes within the Senate make it easier to use than was historically the case. In particular, when the Senate allowed “tracking” in early 1960s, the connection between the objection and visible debate was broken. Jimmy Stewart in Mr Smith Goes to Washington is no more. Under the current rules, a Senator lodges a procedural filibuster, the bill is tabled and the Senate moves on to other business. No dramatic and colorful endurance exercises on the floor. No pain at all, either for the Senator doing the filibustering or for his peers who should be listening to it. Perhaps they should feel some pain though. It might encourage them to actually address the underlying issues instead of adopting waiting games and back-room deals for votes. A little bit of pain and a lot of visibility might might put some skin back in the game. It might return the filibuster to the status it once held – an important and special legislative tactic to be used only when truly needed.

Either way, it remains an invaluable protection for the rights of the minority.

Leave a Reply