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The Filibuster and Unwritten Laws: Who's an Oxymoron?

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For my sins, I served over twenty-five years in a powerful legislative body, the New York State Assembly. A lot got done. A lot didn't. It's a unique and decidedly American experience. Power is real, but diffuse. Losing is more common than winning. And it works. But it works in spite of its rules and formalities. It works because almost everybody serving is committed to more than policies and politics, but to a larger goal, a functioning democracy.

In that light, the move to limit the filibuster by Senate Democrats is an earthquake. Its practical consequences are real but not overwhelming. A spate of judges and executive branch employees will take office, for better or worse. But it will unleash the darkest side of the legislative process, and it will be years before we know if it was worth it.

Rules are never a substitute for culture. Lawyers rule the earth because they've mastered the rules. They wreak havoc when they lose sight of what the rules are for. So it is with the filibuster. It's an odd, seemingly un-democratic process by which a small minority can frustrate the majority's ability to govern. But it has virtues. It slows things down, it requires consideration of the views of the minority, it stops the occasional horrendous mistake. Just think of Jimmy Stewart standing alone on the Senate floor to stop a corrupt deal and you see the "good" filibuster.

But recent events have shown us the true dark side of minority rule. It was one thing to oppose nominees for ideological or other flaws. But when a political party decides to use its minority status to prevent a president from fulfilling his constitutional obligations, we're in a whole different world. Republicans, every one of them, were unconscionably wrong to refuse to allow a vote on nominees to the D.C. Circuit. The filibuster was never intended, nor used in recent memory, for such a purpose. Something had to be done.

The remedy is itself minor. But it illuminated the real crisis and began a process of political annihilation that's in no one's interest. Republicans will surely double down when they next take power. It won't just be on some judges and cabinet secretaries. It will be on Supreme Court nominees and maybe even on substantive legislation. And worse, it lays bare the poverty of our politics and our political leadership. There are unwritten laws that matter more than the things written down. There ought to be things that Senators won't do because they're wrong and bad for the country. Tea Party politics ended that in the Republican Party. Its' most lasting contribution to the nation will be the elevation of ideology over democratic values. If no tactic is out of bounds, if any action can be taken in the name of truth, then democracy will perish.

Democrats aren't innocent victims. They abused the filibuster too. And Republicans like John McCain used to have enough clout to tamp down the excesses. No more. We're headed to democracy by gladiator, where we all watch to see who gets killed and who gets to fight another day.

During Assembly debates on abortion, or taxes, or the death penalty or health care, lots of bad things were said, lots of heat and anger generated. But in the end, Republicans and Democrats alike had learned that in a democracy, the way leaders treat each other and the ability to forego immediate advantage were the decisive factors in success or failure.

That's been lost in Washington. And the consequences will be felt for generations.