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I'm Strongly (For) (Against) Filibusters

07/19/2013 11:18 am ET | Updated Sep 17, 2013

We are instructed that "A Foolish Consistency Is The Hobgoblin Of Small Minds". But recent events in Washington, D.C., and Austin, Texas force us to figure out what a consistent position on the use of filibusters would look like.

The word itself derives from European descriptions of pirates and robbers ("freebooters" has the same derivation). The use of long speeches to delay or defeat legislation is older. It began in the Roman Senate and exists just about everywhere nowadays. At its heart is the notion that legislative bodies ought not to act by simple majority. In some cases, a supermajority has to be assembled and in extreme cases, one passionate opponent can thwart the will of the majority.

Sometimes we love them. (See Mr. Smith Goes to Washington, 1939, or Sen. Wendy Davis, Texas 2013). Sometimes we hate them. (See the Civil Rights Era or Sen. Mitch McConnell, anytime).

It's useful to figure out what's at stake. Filibusters undercut the bedrock and unexamined principle we believe governs democratic institutions, the Rule Of The Majority. At the heart of our institutions is the principal embraced by winners and losers alike, that the majority decides what happens to the rest of us. Or is it?

Of course, things don't work that way. The power of the majority is intentionally restricted throughout our system. The Senate can be ruled by a majority of senators representing states with 18 percent of the national population; the Electoral College elects a president with fewer votes than his opponent; the Supreme Court undoes policy decisions voted by a majority of representatives. We are not strict majoritarians by a long shot.

I served in the Democratic Majority of the New York State Assembly for over 25 years, and never a filibuster did I see. Both the Assembly rules and culture limited the Republican Minority to irritating but ultimately fruitless debate which extended to a few hours at worst. And it was the culture of the Assembly that proved decisive, and illuminates what is wrong with the Senate today.

What Senate Republicans have done is to intentionally turn the filibuster into a tool to stop the function of government. Put aside that the filibusters are fake, no one actually talks; put aside their use to thwart lifetime appointments; even put aside their use to stop certain policy decisions. Mitch McConnell and his Tea Party caucus figured out that the filibuster can be used to shut down disfavored government agencies. The filibuster against Richard Cordray as head of the Consumer Financial Protection Bureau was not about his qualifications but an explicit attempt to stop an agency from doing the job that the Congress and president has already lawfully instructed it to do. The filibuster against NLRB nominees was intended to stop enforcement of existing labor laws.

This new and repeated use of the filibuster was perfectly consistent with the letter of Senate Rules. It was, however, a violation of the legislative culture that had survived partisan and ideological shifts in the Senate. It dawned on the Democratic Majority that this was a transformational abuse of the filibuster that could not be accepted. It dawned on sufficient Republicans that the tactic was illegitimate and not just inside baseball of no interest to the American public. A reasoned, if small, compromise was forged and a bunch of Executive Branch nominees was confirmed.

This leaves us free to indulge our inconsistencies. We can cheer for Wendy Davis' filibuster against the Texas Republican Neanderthal majority, and boo various Tea Party filibusters trying to stop the country from proceeding through the 21st century.

And it reminds us that the culture wars are about more than abortion and gay rights. At the heart of the Tea Party movement is a strong conviction that government itself is illegitimate. Any tactic which slows it down or reduces its scope is a good thing. Compromise and governance are bad things.

That gives me a principled explanation of my filibuster position. I am For filibusters that constrain the tyranny of the majority. The way in which the House Republican Majority now dominates is so disciplined and forceful that it looks like the English Parliament rather than an American Congress. I am Against Filibusters that re-litigate settled questions and stop the authorized function of government agencies.

This is what has to pass as a principled, if somewhat inconsistent, position on filibusters. What it really means is that the institutional culture of our legislative bodies matters more than any particular Rule, and that the Washington fight is about those who reject a culture of compromise. No democracy can survive under that cultural norm. The Founders understood it, the New York Legislature understands it, some Republicans understand it. The Tea Party rejects it. That's the real fight we're in, in Texas as well as Washington, D.C. Filibusters, as energizing as they may be, are a symbol of a great divide. The Washington filibuster compromise is a sign that we are capable of bridging that divide.