Filibuster - Let’s End This Debate! (essay)

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1: Avoiding Group-Think

Any group – from a small school or church advisory committee, to the U. S. Congress – needs to be concerned about “group-think,” when everyone agrees so immediately and so enthusiastically that critical thinking goes out the window and the possible arguments to the contrary of the opinion shared by all are never considered. This often leads to future problems that could have been avoided without the group-think.

No one would quarrel with this well-known principle, right? (joking) But for present purposes at least, let us assume we have examined arguments to the contrary – unnecessary delay, waning enthusiasm among supporters, increasing chances nothing will be done, and so on. So we are ready to move on to the next point.

One tried and true means of aiding in the effort to avoid “group-think” lies in the standard, somewhat complicated parliamentary procedure for ending debate. At formally conducted meetings, of course, the group usually follows the compendium of standard parliamentary procedures, Robert’s Rules of Order. In order to help insure that possible downsides to the current consensus have been duly considered, when one member of the group suggests concluding the discussion and moving on to the next issue, perhaps even to the ways the soon-to-be-agreed-upon action will be implemented, that doesn’t "just happen."

When someone, or in fact perhaps all but one person, wants to move on – which often takes the form of saying, “I call the question” – the person chairing the meeting asks those present to vote on whether or not voting on the main issue being discussed should take place without further ado. (It is a wise principle for group members, whenever this happens, to take it as an opportunity to ponder whether or not contrary views to the predominant mind-set have in fact been duly considered.) So, the group needs to vote on whether or not to vote; ending debate should not be allowed to promote a mindless rush to judgment.

Not only that. For debate to be ended at that point, a simple majority vote of those present and voting is not all that’s needed. To stop further discussion of the issue at hand requires a two-thirds majority of those present and voting. In other words, the majority required is what is often called a “super majority” of two-thirds rather than the half - or “simple” - majority. We should also bear in mind that the majorities required for an initiative to succeed are more than half (or two-thirds) of those present and voting rather than half or two-thirds of the entire membership (which is called an absolute majority).

Allowing discussion to be cut off, albeit with a required super-majority, is a procedural support for efficiency, which is often the motive for “calling the question” in the first place.

2: The Quorum

The percentage of a group’s total membership that can make decisions for the whole group is usually half the total of the full membership (“a quorum”). When fewer than half the members are present, no actions may be taken. If the majority required to end debate were two-thirds of the total membership, since attendance at meetings of most groups tends to be closer to half than to all, debate on any issue could go on interminably, even if the vast majority of the membership has made up their minds on the issue long before.

Taking a moment to consider whether or not contrary points of view have been sufficiently taken into account is indeed a good help toward avoiding group-think, and requiring a super majority of those present and voting to agree on cutting off debate is extra insurance; but allowing less than one-third of the total membership to stall action indefinitely would be excessive and impractical.

Let us say, for example, that you are chairing a formal meeting of a group of 30 members. If fewer than 15 members attend a particular meeting, no actions can be taken.

On the other hand, if all 30 members are attending and none are abstaining (because of a conflict of interest, for example), the number of votes required to end debate on a motion is the maximum possible, in this case 20. If only 15 members come to the meeting, which is enough to take actions, the number required to end debate is the minimum required, or 10. That is, with a group of 30 members, the number needed to end debate ranges between 10 and 20, depending on the number of members present and voting. That is a wide range, which allows enough flexibility for the group to proceed efficiently but not recklessly.

Note that, if the super-majority required for ending debate in this group were two-thirds of the whole membership, the votes needed would always be 20, the maximum that may be required, even if only 15 members had even bothered to show up at that meeting. This would seem neither fair nor reasonable, and few organizations would put up with it.

3: Governing in a Representative Democracy

What about debate in Congress?

In a republican democracy like ours, not ending debate too soon is even more important than in other organizations. Group-think should be avoided by any organization; in a democratic government, allowing dissent is also critical. The wise founding fathers responsible for our form of government took care to make sure that even views held by only a minority of citizens that are contrary to the majority view were heard and thus given the opportunity to be taken into account.

When a fundamental change in the government itself is proposed, for example - an amendment to the Constitution - both houses of Congress have rules to protect the minority’s right to be heard. In addition, three-fourths of the states must approve a constitutional change; we might call this an “extra-super majority.” Before such an important decision is made, our Constitution maintains, the will of the minority may not be ignored; debate must not be cut short.

Just more than one-fourth of the states (13, to be exact) can prevent approval of a constitutional change; this might constitute a single region or it might represent a particular minority religious tradition. So the minority view has considerable power in decisions regarding our governing system, which is one reason we have made only a relative few changes in the Constitution adopted over 200 years ago.

Not found in the Constitution but by strong tradition, in considering a possible change in just the law, both houses of Congress also have procedures protecting minority views – whether regional, religious, socio-economic, or something else.

Application of the usual standard for ending debate in each house of Congress would mean that a super-majority of two-thirds would be required for moving on to action, which facilitates timely decisions and which is both a good protection against group-think and an appropriate safeguard of the right of a significant minority to make its reasoning heard, which is essential for social stability in a democratic society. It is important to find the right balance between these conflicting imperatives.

4 – Protecting the Minority vs. the Duty to Make Decisions

The question whether to cut off further discussion addresses a tension between the desire for efficiency and the need to adequately consider opposing viewpoints. Both motives are not only understandable; they are positively good both for those debating the issues, and also for the people who will be affected by their decisions. The right balance between these competing goals must be found.

All Americans, of course, are potentially affected by laws approved by Congress (and approved by the President), which only emphasizes still further the imperative for each house of Congress to find the right balance between the public’s need for decisions and the opportunity for minorities to have their views taken into account.

Neither House of Congress follows the standard system of most organizations, simply requiring a two-thirds majority of those present and voting to cut off debate.

Our House of Representatives addresses the tension between efficiency and respect for opposing views in a complex manner that would seem to weigh the need for efficiency somewhat more heavily than the competing need to protect the minority.

First, in order to facilitate timely action, the House Rules Committee sets a limit on the total time that the proposed law under consideration will be debated by the full membership. Guaranteeing that every bill will be considered for a certain period of time supports the need for a democratic government to provide for minority views to be heard. The fact that the Committee sets this limit on the basis of a simple majority vote within the committee, on the other hand, supports the need for action to be taken.

In like manner, in the full House debate it is possible to extend discussion beyond the limit set by the Committee; on the other hand, such a decision is made by a simple majority of those members present and voting. This seems to recognize the need for timely action predominantly in two ways: by having a predetermined limit on the time for debate, as well as by allowing a simple majority to decide that the pre-set limit will not be extended in a particular case. The balance struck by these House rules does not seem to be controversial.

To be precise, for the House to take action, at least 218 members must be present (some of whom may choose not to vote). Debate on a particular measure will end when a predetermined time limit is reached, unless a simple majority decides to extend the time. So, 110 of the 435 members of Congress – at a minimum – may determine that enough time has already been spent debating the issue. If all members of Congress are present, a simple majority would be 218; thus, at most 218 of the 435 members would be needed to decide whether it was time to move on.

5 – A Problem in the Senate

The situation is different in the Senate. In fact, many feel that the Senate today demonstrates on almost every issue that the current “filibuster rule” that defines the terms under which the members may decide whether or not to end debate on a particular proposal fails to find the right balance with the result that the public’s need for Congressional action on substantive issues facing us all is stymied.

House rules tend slightly to emphasize efficiency. Senate rules seem designed to prevent action.

In the Senate, which again does not follow the usual rules, the method of ending debate has changed only recently.

Unlike the House, there is usually no predetermined limit on the amount of time a proposal may be discussed in the Senate – which certainly guarantees that a minority view will be heard. A minority – even a minority of one – can prevent action being taken by the Senate by speaking and speaking and continuing to speak, refusing to “yield the floor.” This “filibuster” in theory could last forever.

Through a tortuous process (called “cloture”), a Senator’s or a group of Senators’ refusal to yield the floor may in some instances be brought to a close. First, 16 Senators must submit a written petition for the Senate to vote on ending debate. To be approved, this method of “calling the question” requires a super-majority vote of three-fifths or 60 Senators. A minority of 41 Senators, that is, can prevent an end of debate indefinitely. This provision, albeit requiring three-fifths rather than two-thirds, nonetheless also favors the need to hear minority views over the need to take action.

As if these two means of preventing action were not enough, as the numbers just used reveal, the three-fifths super-majority required is 60% of the total Senate membership, not three-fifths of those present and voting!

These provisions have been in place for years. But only recently a change in Senate rules has increased still more the emphasis on minority power to prevent action.

Traditionally, a Senator’s right to refuse to yield the floor was limited to the amount of time that he (or she) could keep on speaking; the Senator could yield a certain number of minutes to a colleague, and that Senator to another, and he or she to another, and so on. Still, this requirement of significant physical effort in practice tended to limit debate and to allow action.

In 1975, however, this one, weak restraint on a minority’s power to prevent action by the majority has been removed. Now, a Senator may “hold the floor” without even being present.

6. To summarize:

Several current Senate rules destroy the necessary balance between the opportunity for minority views to be heard and the need to make decisions.

1. Unlike the House rules, or the standard practice outlined in Robert’s Rules, in the Senate the super-majority required for ending debate is a fraction not of those members present and voting, but of the total membership.

2. Unlike the House procedure, in the Senate there is no limit to the time allotted a member to hold the floor (or to pass it around a group of like-minded minority members).

3. Unlike the House procedure of deciding not to extend debate by (1) a 50% or simple majority (2) of members present and voting – in the Senate, a 60% majority of the total membership is required for ending debate and voting on the action proposed.

If the House procedure favors the need for action a bit more than the protection of the minority’s opportunity to voice its views, more than standard parliamentary procedure; then the Senate procedure favors very significantly the minority power over the need for the whole body to take action.

The result is that in our Congress, we do not have a proper balance between, on the one hand, the need to hear contrary opinions and on the other, the need (of all citizens) for Congress to take action.

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