Let's just get this out of the way at the top.
There is no way to have a blanket objection to the filibuster in principle and not object to the actions of Democratic state legislators in Texas. If you use the framing of anti-majoritarian = bad then there is simply no way to support (or even defend) this tactic. Under these assumptions, placing constraints on the will of the majority is simply wrong. They also make the Bill of Rights more than a bit problematic (it's basically just a list of things even a democratically elected government isn't allowed to do), but that's a topic for another day.
Josh Marshall is a more nuanced thinker.
We’re witnessing another of these state legislators abscond across state lines dramas in Texas. As I mentioned a few weeks ago, it hearkens back to a similar drama in 2003 which presaged much of our current politics. But I’d like to take this in a different direction. What we’re seeing right now with these efforts to short-circuit the legislative process is what the legislative filibuster in the Senate should be like.
Now, I’m not suggesting that we move to a system where Senators run off to Canada or I guess in some cases Russia. It gets a bit more complicated in jurisdictional terms. But Texas Democrats clearly believe these laws are of an extraordinary character. Texas legislative Democrats get outvoted all the time. But they view this law as different from other laws they oppose. And most critically their actions are public and self-limiting.
It’s very publicly clear what’s happening here. Democrats are making a huge spectacle. No one’s going to miss that. They also have to be very clear why they’re doing it. It’s because of an assault on voting rights in the state. They have to own that. And they’re taking this step because they’re clearly quite willing to own that.
Just as clear, this can only go on for so long. How do I know? Basically logic really but also history. We’ve seen this in Texas, Oregon, Wisconsin and various other places. Legislators are only willing to stay on the lam for so long. Over time there are various tools legislative majorities can use to get their way. (That’s not a bad thing. Majority rule is our fundamental system.) You also need a really good reason for doing it. Otherwise public opinion will rapidly turn against you.
The whole effort is best seen as an effort to stall, buy some time and they hope either slow the process down or shift public opinion in their favor. It’s not pretty but there’s some value in having that kind of escape valve in the legislative process. It’s public. It’s self-limiting. You have to own it and be politically accountable for your actions.
Reading between the lines a bit (because the post, while well reasoned, does not follow through with what seem like fairly obvious conclusions), Marshall apparently sees the filibuster as bad because it can be used by a minority without restraint, transparency or cost. Since the Texas action looks like a good filibuster, this implies good filibuster is possible.
It's also worth noting that, as far as I can tell, everything Marshall says about what a filibuster should be applies to the talking filibuster. He stops short of an endorsement but it's pretty much the inescapable next step.
I believe the underlying logic here (which I happen to agree with) is that while the support of 50.01% of the population should not give you unconstrained power and there are rare cases where a minority should be able to at least delay the majority's will, there must be constraints on those constraints. The process has got to be transparent, costly and difficult to sustain and it must come with real accountability. A talking filibuster meets these conditions; supermajority rules do not.
I realize abolishing any form of the filibuster has become a point of principle for many. I'm just not sure if those principles are well thought out, let alone a hill worth dying on.
