The Ted Cruz Standard For Filibusters

While we are on the subject of filibusters, one of the early supporters of the one just overcome in the Senate, Ted Cruz of Texas, had this illuminating comment on why the dilatory tactic was necessary, according to the Daily Caller‘s Jeff Poor:

Cruz…responded to criticisms from his Republican colleague Sen. John McCain and the Wall Street Journal over a potential filibustering of the proposed gun control laws.

“I think the criticism has been silly,” he said. “The critics have said ‘we need to have a debate, we need to have a vote.’ We are having a debate and we are having a vote. We’re going to have a vote on cloture tomorrow and we are debating it. The only question is, ‘what should the vote threshold be for legislation that would violate potentially the Bill of Rights?’ I think it should be a minimum of 60 votes.

Hmmmm. This raises two questions:

First, “violating potentially” the Bill of Rights is a pretty subjective standard. We do have courts to protect citizens from unconstitutional legislation, as Cruz presumably learned at Harvard Law School. Yes, it’s legitimate to object to a bill as theoretically unconstitutional on grounds that it would create confusion and costs by generating unnecessary litigation. But why does that suddenly raise the voting threshold for a bill?

Second, and more importantly, does this mean (by negative inference) Cruz thinks the filibuster should be reserved for legislation that might violate the Bill of Rights? Now granted, as a “constitutional conservative” Ted Cruz probably thinks an awful lot of legislation (including, retrospectively, the New Deal and Great Society legislation) is unconstitutional, so he’s cutting himself a lot of slack. But what about the routine executive-branch and judicial appointments that his Republican colleagues have just as routinely blocked? Will he oppose those?

Of course not. It would be refreshing if Republican senators just came out and admitted they favor the right to filibuster everything when they’re in the minority, and oppose the right of Democrats to filibuster anything when the GOP has the controls. Indeed, Democrats should make their own position on the subject known, although they’ve never abused the filibuster remotely as much as those fine traditionalists on the other side of the aisle. But let’s don’t come up with a new excuse every time this weapon is deployed.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.