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The Senate filibuster—a procedural rule that allows 41 senators to shut the whole place down—is not in the Constitution. James Madison never envisioned the filibuster and was dead and gone before soon-to-be secessionist John C. Calhoun hatched it in the 1830s as a mechanism for blocking civil rights legislation.
The filibuster has evolved into a de facto 60-vote requirement to do essentially anything in a Senate where 51 votes would otherwise constitute a majority. Some cracks have formed in the rule since the 1970s to allow budgetary matters and judicial nominations to go forward on a majority vote, but the filibuster is otherwise intact.
Former Senate aide Adam Jentleson wants the Senate to shatter the filibuster once and for all. In his new book Kill Switch: The Rise of the Modern Senate and in an interview with The Daily Beast, Jentleson argues that obstruction was good politics for Republicans when Barack Obama was president and will be good politics when Joe Biden is president.
“The incentives pushing Republicans to obstruct are so powerful and so immune to everything that’s happening right now that they will continue to obstruct,” Jentleson told me on Thursday in an interview we rescheduled from Wednesday when the Capitol Building was under siege by domestic terrorists. Partisanship is so entrenched, he said, that incoming Vice President Kamala Harris will likely have to break 50-50 ties to confirm numerous Biden appointees.
This is an edited transcript of that conversation.
I didn’t realize that the positions of majority leader and minority leader came so recently in historical terms. How has the Senate evolved in the last hundred years?
The Senate created those two positions because the institution was growing and finding its workload expanding dramatically. From the time the Senate was created in 1789 until the 1920s, it didn’t have leaders. It was generally organized by party, and the committee chairs controlled what bills were reported out and made it to the floor. The number of senators grew as more states were added, and the parties wanted to have a caucus secretary who would keep track of things but not really exercise control over bills.
The filibuster is also fairly recent to the Senate. According to the book, it’s kind of shocking how much the evolution of the Senate tracked segregationist opposition to civil rights laws.
The filibuster is not in the Constitution. It was willed into existence starting around the 1830s after all of the Framers had died, and it went against a lot of their vision for the Senate. The Senate was designed to be an open institution with thoughtful debate, but there was no vision that debate would go on indefinitely or be used to block a bill from a majority vote.
John C. Calhoun, the father of the Confederacy, faced the challenge that the abolitionists and the North’s economic model was putting the South’s slave-based economic model in a bind because the slave states were becoming a minority as more states came into the union. He created what we now call the filibuster as a mechanism for the minority to override the will of the majority.
And the filibuster evolved from there into a general-purpose tool that the minority party could use to block judicial appointments and whatever legislation the majority wants.
The discourse around “minority rights” today would surprise the Founders. James Madison took minority rights the most seriously of the Founders and he is quoted a lot by conservatives, but he wanted things to come up for a majority vote at the end of deliberation.
Today’s Senate doesn’t have deliberation. I don’t mean that in a cynical way, but the Majority Leader and Minority Leader make the important decisions. Senators are not going to the floor to convince anyone to change their mind.
That’s exactly right. The two main forces that have shaped the Senate are the rise of the filibuster and the rise of a top-down leadership structure. It’s the combination of those two things that’s what is really suffocating the Senate. People think of the filibuster as Jimmy Stewart talking for hours in Mr. Smith Goes to Washington, but that’s not today’s filibuster.
Now you just push a button.
Right. You send an email to the cloak room, and the threshold for passage goes from 50 votes to 60 votes. The Senate rules still say that a simple majority is required, but the filibuster rule is used for most bills to kill them before they ever get to the majority vote. Any senator can use it without ever showing up on the floor or even doing it themselves. Their staff can do it.
We have to change both of these forces. We have to change the filibuster, which is critically important, and we have to restore the Senate to being a body where an individual senator can introduce a bill or an amendment. The way to make the Senate a deliberative body again is to make it more possible for legislation to pass.
So if the Senate eliminates the filibuster, when would that likely happen?
It would happen when an unstoppable force meets an unmovable object, when Democrats have a bill they absolutely want to pass and Republicans are absolutely opposed. Where I think that’s likely to happen is civil rights and voting rights, which could involve D.C. statehood. If Democrats don’t do this, you would rightly be able to judge the Biden administration a failure. It has to happen.
Republicans see the filibuster as a matter of political survival for them. They benefit from restrictive rules on voting that are applied against people of color and younger voters. They benefit from an electoral map that privileges rural, white states. They have succeeded without representing a majority of Americans because the playing field is dramatically tilted in their favor. Voting rights is where Republicans may push back.
Do you have a sense of how high voting-rights issues sit on the Biden transition’s priorities and on Nancy Pelosi and Chuck Schumer’s priorities?
I get the sense that it’s very high. I’m not sure that they’re prepared yet to use the nuclear option and eliminate the filibuster to pass that legislation, but the road to reform is paved with senators who swore they’d never reform the Senate’s rules. Chief among them is my former boss, Majority Leader Harry Reid, who said he would never reform the filibuster and then did it in 2013 as it applies to judicial nominations.
How likely is it with Joe Biden and Kamala Harris both coming out of the Senate and the Senate being split 50/50 between Democrats and Republicans that she will function as president of the Senate to a much greater degree than recent vice presidents?
This is very interesting. The vice president is the president of the Senate. That’s in the Constitution. In the early dates of the Senate, the vice president really engaged in that role and presided over the Senate on a day-to-day basis. More recently the vice president presides on ceremonial occasions or to break a tie vote, and there will likely be many times when Vice President Harris will have to break tie votes. I think a large number of Joe Biden’s executive nominees will pass on 50/50 votes with Kamala Harris breaking the tie.
Aren’t the Senate Republicans motivated toward less aggressive obstruction to avoid the Democrats completely eliminating the filibuster?
They may try to cooperate on a small number of issues and maximize the credit they get for that toward a narrative of bipartisanship, but the political reality is that Republicans would benefit in the 2022 midterm elections by making the Democrats fail. That’s what drove their obstruction against President Obama, and retaking the Senate in the 2022 midterms will quickly become their top priority.
Yeah, it’s pretty dark. [Laughs.] I could be wrong, but I think these are very strong incentives that are immune to outside events. The business of politics is winning elections, and that’s what will matter to Republicans the most.
Wouldn’t the Biden administration want to have the filibuster fight as early as possible so that Democrats can be more aggressive with their legislative priorities?
I think they do not want to force this fight early. What’s being discussed is doing a big legislative package through reconciliation, which is a mechanism for budgetary issues that is not subject to the filibuster that can fast-track legislation to the Senate floor. The rules of reconciliation are so restrictive that it could be used to pass a big COVID aid package, but it doesn’t apply to things like civil rights legislation.
Even if the Biden administration is able to get a lot done through reconciliation, the Biden administration will still face the reality that passing civil rights and democracy reforms will require ending the filibuster. I don’t see Republicans ever giving Democrats 10 votes for automatic voter registration or D.C. statehood, and I think sooner or later that will force that debate to a head.
Do you foresee the Biden administration trying to reclaim the Supreme Court seat that Mitch McConnell took by denying Merrick Garland a confirmation vote?
Biden pledged to appoint a commission on judicial reform, and I hope he follows through on that. Having a narrow majority makes it a tough climb, but this is an essential question for the future of democracy. It’s not healthy for a majority-liberal country—Democrats have won the majority of votes in most of the national elections in the last 20-plus years—to be lorded over by conservative judges who will strike down that majority’s laws.