Congress · Filibuster · Leverage

Senate Filibuster Rules, or How to Reward Obstruction

Mr smith

In Mr. Smith goes to Washington, the lead character launched into an old fashioned filibuster  This was to save his own career.  On the other hand, filibusters have a long and storied history, wherein one or more Senators takes to the floor and talks forever in order to stall some piece of legislation.

Throughout history, filibusters were rare. Why? Because under the rules, a filibuster stopped all senate business. No other bills moved. No advice and consent. No nominations. Nothing. Senate business just stopped until the filibuster was over or ended via cloture vote.

Obviously, one or more senators stopping everything for a filibuster was a major risk for that senator. Thus, the senators had to either compromise, forget it or filibuster. A senator may truly risk a career in the performance of a filibuster.  Not only would other Senators view him or her with contempt and not agree with that Senator’s legislative efforts (a quid pro quo, if you will) but the Senator’s constituents may also view an unsuccessful filibuster as a stain.  And not doubt, the loss of political favor that would go with it was also something to negatively affect constituents.

In the 1970s, legendary West Virginia Senator Robert Byrd changed the rules of filibuster and created dual tracking. Filibuster was always controlled by Rule.  This meant that if a senator wanted to filibuster, everything else went on. The filibustered action stopped but nothing else did. This was an effort to make things more efficient. Then the law of unintended consequences took over.

It had nasty effects.  First and foremost, it took away the nasty consequences of filibuster. Filibuster moved from the realm of political tool and became a political sideshow as a result. And it led to further polarization because the opposing sides could just threaten filibuster at will!  No consequence, no team building, no collaboration.  Just the threat of filibuster was enough to stall something and let other things move on.  The longstanding effect was one of greater polarization, greater partisan bickering, and a massive increase in the use of filibuster.

Because there is everything to gain.  And there was nothing to lose.

If dual tracking was eliminated, a filibuster would amount to a either: (a) a Senate shutdown: or (b) the Senators playing nice unless it’s enough for them to stake their careers on the move.

Threatening filibuster is easy. And what did Senator Reid do a while back?  The “Nuclear Option.” This removed filibuster for many things.  Instead of actually repealing the Rule that caused this in the first place, the Senate kept the trouble maker and made more trouble.

The point is that one can rarely successfully negotiate with a person who has nothing to lose by delay and stalling.  This applies in two scenarios: (1) when a person has all of the power; and (2) when a person has no power.  Give a person all the power, the person will have all of the leverage and have no reason to negotiate.  On the flip side, when a person has lost everything, that person has nothing left to lose!

Negotiation only works when there is a chance for both sides to lose a lot.  Much like a filibuster, when a person faces no negative consequence for vexatious behavior, that person will vex.

When entering a negotiation, allow that person to see that there is something to gain.


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