The romantic Mr. Smith Goes to Washington perception of the filibuster is not how it works, though Texas legislator Wendy Davis’ on-her-feet, substantive talking filibuster dramatized how the practice can win, even by losing through highlighting issues and generating support.

In the U.S. Senate there were no historic limits on unlimited debate.  Sen. John Calhoun (D-S.C.) first used the power of extended debate to hold up legislative work in 1841, according to a study by the Alliance for Justice. In 1917, the Senate adopted Rule XXII, cloture, under which unlimited debate could be stopped by a 2/3 vote; in 1975, it was changed to require a 3/5 vote. But the Cloture Rule doesn’t require the delayer-legislator to stand and speak, a la James Stewart or Wendy Davis, nor to deal with important issues on the merit.

One of the reasons legislators do not eliminate the current filibuster practice is that the Senate majority worries about needing it when it becomes a minority. So the pernicious undemocratic power continues, most recently frustrating many of President Obama’s appointments and proposed laws. Some critical observers recommend modifying the cloture rule to require the filibustering legislator to be present (not now the case) and to be discussing the subject, not reading the phone book.

I believe the democratic process should require an up-or-down vote after reasonable debate, letting the political chips – red or blue – fall where they may. Since Obama was elected, and re-elected, Republicans have abused the threat of filibuster power more than at any other time. Interestingly, in 1994, several national Republican figures including former Cabinet officials like Elliott Richardson and Arthur Flemming and Sens. Charles Mathias (Md.) and Robert Stafford (Vt.) criticized the filibuster. Richardson, in 1994, said it “turns democracy on its head…At stake is our government’s ability to make decisions and take action.” He and others urged that the then relatively modest gridlock end, pointing out that between 1990-1994 there were more filibusters than the 140 years before. Recently the numbers have become worse.

Today, the majority doesn’t rule. The so-called tyranny of the minority is unconstitutional, and unwise. Originalist or progressive, it is time for government to govern.
Goldfarb is a Washington attorney and author.