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Analysis

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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