In Texas Filibuster, How Is Democracy Served?
Wendy Davis’ filibuster in the Texas state Senate has been a great story from the perspective of democratic theory because it requires people to really think about what’s fundamental in a democracy. If you haven’t been following the story, here’s a link to the Dallas Morning News story from the day after. The basics of the story are:
- The Texas legislature wanted to pass Senate Bill 5, a bill that introduced several severe restrictions to abortion rights. The Republican majority in the state Senate easily had enough votes to pass the bill.
- The rules of the state Senate required that the Senate needed to pass SB5 before midnight, when the session ended. So Democratic state senator Wendy Davis attempted to filibuster for 13 straight hours in order to run out the clock on the session.
- The state Senate’s filibuster rules are much stricter than those in the U.S. Senate. With about two hours to go before the midnight deadline, the chair (Texas’ lieutenant governor, David Dewhurst) ruled that Davis had violated the rules three times and that therefore she had lost the floor.
- Other Democrats in the state Senate tried to draw things out by raising points of order and debating whether Davis really had violated the rules three times, but with about fifteen minutes left before the deadline they appeared to have exhausted all avenues. As Dewhurst prepared to conduct the vote, the crowd in the gallery began chanting and cheering so loudly that no one could hear the roll call.
- Dewhurst tried to get the vote finished by midnight by calling legislators up one by one to record their vote, and claimed that the bill had been passed.
- However, after the Senate’s own website showed that the vote was originally recorded after midnight – and then backdated to show that it made the deadline – Dewhurst had to declare that the bill had failed.
There is a lot more detail that’s worth reading, but one thing I find fascinating about the story is that for every step of the process, you could make an argument that the action was pro-democratic or anti-democratic.
Let’s start at the beginning. The pro-democratic argument for the Republicans is pretty straightforward – a majority of senators wanted to pass the bill. Governor Rick Perry, who was elected with a majority of votes, wanted to sign it. So if this bill is what the people, through their duly elected representatives, want to pass, then it should pass.
On the flip side, the pro-democratic argument for Davis’ filibuster is that even in a democracy, certain individual rights must be protected against a tyranny of the majority. Senate Bill 5 severely restricted women’s access to abortion, and therefore interfered with their basic right to make decisions about their own health care and indeed their own bodies. So respect for individual rights must trump respect for majority rule, and Davis was protecting democracy by acting to block the bill. Furthermore, by attracting news coverage of the issue, she enabled the public to become more aware of the bill and the Senate procedures involved, and a more informed public is also a major good for democracy.
(Let me make a quick side note here that is separate from the proceedings in Texas. In the United States, the judicial system can act as another check on the majority in order to protect the rights of the individual citizen. Pro-choice groups have filed lawsuits in other states that passed laws similar to SB 5, and would presumably do so in Texas if SB 5 ultimately passes. I’m moving that issue to the side here for two reasons: 1) Judicial review is a different, although worthwhile, topic to discuss in democratic theory, and 2) I don’t want to bet much on what the current Supreme Court would rule.)
Obviously, whether access to abortion is such a fundamental right that it supersedes the default respect for majority rule is an unsettled question in our democracy. As an individual, I agree with Davis. But a democratic society simply can’t function if any one person gets to impose his or her belief about what is right on the rest of the public. So you can defend Dewhurst and the Republicans for using points of order to try to derail the filibuster by saying that, while a filibuster might be acceptable in extreme cases, it should be onerous and difficult enough that it is only used in extreme circumstances. Thus, if Davis can not follow the accepted rules, then deference to majority rule should come into play.
The efforts by Davis’ Democratic colleagues can be defended on similar lines as the original filibuster, but the final fifteen minutes when the gallery effectively blocked the passage of the bill is an entirely different case. Here you have an example of the citizens literally using their voices to affect legislation and be involved in the process beyond the simple procedure of electing representatives, which points to a more vibrant and participatory vision of democracy.
However, there is no way of knowing if the crowd in the gallery was in any way representative of the people of Texas. The Republicans in favor of SB 5 clearly did not think so. So at the end of the day, if Davis’ filibuster had not persuaded them, it makes sense that they would try to carry out the vote that they had believed fulfilled the democratic process from day one. And even if the vote concluded at 12:02 AM rather than 11:59 PM, isn’t it worth allowing for some human flexibility so that we can follow the spirit of the rules rather than get trapped by the letter?
But in the end, we have rules and procedures to ensure that both sides of a debate can be fairly heard, and they are an important safeguard. So by highlighting the violation of the rule, the people who took screenshots of the website and shared them on social media were performing an important role in the functioning of a democratic government.
In the end, I am relatively comfortable with how the story has played out. SB 5 has only been delayed, not stopped altogether. Governor Perry has already called for another session of the legislature. If the attention mobilizes a group of voters to put pressure on the legislature, that might stop the bill. Or it is possible that this story might galvanize voters who make changes in the composition of the Texas government – there is already a movement on Daily Kos to draft Davis for a gubernatorial run. If none of that happens, then we have to assume that Davis and the gallery crowd were only speaking for a passionate minority. Again, I will not personally approve of the result, but being in a democracy requires accepting policy outcomes you don’t like. In those cases, you have to hope that everyone made their choices after careful thought and with as much information as possible. At the moment, I think the events in Texas have made that more likely than not.
About Dave Thomer
Born and raised in Philadelphia. Studied philosophy at Fordham University in the Bronx, where I made many great friends and met my wonderful wife. We moved back to Philadelphia, where I studied philosophy some more and became a teacher. Online and off, I'm looking for ways that we can be better citizens and build stronger communities.