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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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