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In Filibuster We Trust

Hard as one might try, it’s tough to distinguish between principled filibusters and those done out of pique.

July 27, 2015

DC summers are now as predict­able as the first two acts of a Judd Apatow movie. Unruly, mono­ma­ni­acal, barely social­ized man-chil­dren (or women-chil­dren) wreak havoc, disrupt­ing famil­ies, busi­nesses, and threat­en­ing social order.

But watch­ing Senate consid­er­a­tion of educa­tion policy felt like watch­ing a Frank Capra movie. I had the strangest deja vu, like I had just seen someone send a tele­gram or walk down the street carry­ing a para­sol.

Brace yourselves for shock­ing news: the Senate debated and passed educa­tion-related legis­la­tion under regu­lar order. More than 50 amend­ments were considered by the Senate — some adop­ted, some rejec­ted.

It was the first time the Senate as a whole had dealt with the Element­ary and Second­ary Educa­tion Act (also known as “No Child Left Behind”) since 2001. So the debate was long, long over­due. But give the Senat­ors some credit. The proposal not only passed the Senate with more than 80 votes, but it also came out of Commit­tee unan­im­ously. Senator John Cornyn (R-TX), the cham­ber’s major­ity whip, crowed with pride: “It’s another sign that the Senate is back in busi­ness for the Amer­ican people.”

I’m afraid to take issue with someone from Texas. But, no.

The Senate was just in the middle of a brief, vernal holi­day from fili­buster land. Now, it’s time to go back to the real world, snarled in conflict and para­lysis.

The loom­ing fili­buster-fueled dysfunc­tion comes at us from both sides, Repub­lican and Demo­cratic.

Texan Ted Cruz (R-TX) is amping up his pres­id­en­tial campaign, threat­en­ing to fili­buster any effort to reau­thor­ize the now-defunct Export-Import Bank. The chief victim of his threat is likely to be the High­way Trust Fund which expires this month and which does little things like keep our high­ways paved, our bridges stand­ing, and our mass transit systems running. (Will it surprise you to learn that the only reason the bank shut down is tied up in fili­buster mech­an­ics and that the only reason it’s coupled to the High­way Trust Fund is linked to a fili­buster?) .

Mean­while, New York’s Sen. Charles Schu­mer (D-NY) is lead­ing the Demo­crat fili­buster parade. In June, Schu­mer told The Wash­ing­ton Post that the Demo­cratic caucus was united in fili­buster, prepared to oppose all appro­pri­ations bills until spend­ing prior­it­ies had been nego­ti­ated.. The Post dubbed it “fili­buster summer.” Demo­crats made good on their prom­ise by promptly block­ing Senate consid­er­a­tion of fund­ing for the Defense Depart­ment.

Schu­mer and Cruz have more in common than you might think. They are both acting on prin­ciple. And they are both using every weapon at their disposal to fight for some­thing they believe in.

Is there anything that distin­guishes Schu­mer from Cruz in his use of the fili­buster?

To answer that we would need to have a set of stand­ards govern­ing when the use of a fili­buster is appro­pri­ate or obstruc­tion­ist.

Nine years ago a bipar­tisan group of Senat­ors, a “Gang of Four­teen,” tried to construct such a template. The Gang of Four­teen came together amid sustained Demo­cratic fili­busters of Bush-era judi­cial nomin­ees. In an effort to fore­stall a crisis (remem­ber the nuclear option?), the seven Demo­crats and seven Repub­lic­ans agreed not to fili­buster judi­cial nomin­ees.

Except, there had to be some circum­stances when a fili­buster would be appro­pri­ate, right? I can only imagine that the Senat­ors met together and then turned to their collect­ive staff and said: “come on, we write laws and set criteria all the time. Now, let’s do it for when to fili­buster.” And here’s what the cumu­lat­ive wisdom of 14 Senat­ors and their staff with more than a two centur­ies’ collect­ive exper­i­ence in Senate proced­ure came up with: a fili­buster would be A-OK in “extraordin­ary circum­stances” as judged by each indi­vidual Senator.

This ancient history came up because I was talk­ing with a friend and trying to figure out if there was any way to support Schu­mer’s fili­buster but decry Cruz’s and still main­tain a semb­lance of intel­lec­tual integ­rity. My friend and I collect­ively have about 50 years exper­i­ence work­ing around the Senate, and the best we could come up with was this:

A fili­buster is justi­fied if:

  • The bill or nominee is “extreme.”
  • Minor­ity rights or the legis­lat­ive process has been “abused” (and the minor­ity here is a polit­ical party).
  • The prin­ciple at stake is “funda­mental.”
  • The magnitude of the legis­la­tion (or nominee) is enorm­ous.

The prob­lem is that “extreme,” “abuse,” “funda­mental” lie in the eye of the beholder. There are no object­ive criteria to judge abuse of process in the Senate, much less a body or proced­ure for enfor­cing the criteria.

It might normally make sense to revert to core prin­ciples: to judge whether a fili­buster is justi­fied as against the reas­ons for the fili­buster. But there’s the rub. The fili­buster was created by mistake. In 1806, the Senate amended its rule book and, without think­ing much about it, elim­in­ated the proced­ure it had in place for ending debate.

Oops. There is no prin­ciple behind the fili­buster.

In the mean­time, each Senator is master of his or her own prin­ciples, answer­able only to the voters. Each Senator decides whether a fili­buster is justi­fied. And a fili­buster is justi­fied if a Senator can string together a sentence justi­fy­ing it.

Unlike an Apatow movie, the DC summer block­buster does not end with a restor­a­tion of love and moral order after our hero is chas­tised and educated in the proper ways. Our DC movie heads off in another direc­tion. It goes some­thing like this: fili­buster, crisis looms, kick the can down the road, then fili­buster, crisis looms, kick the can down the road. Ad infin­itum.

(Photo: Think­stock)

The views expressed are the author’s own and not neces­sar­ily those of the Bren­nan Center for Justice.

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