Systematic obstruction of the Senate – a rule of procedure that allows 41 senators to shut down the entire place – is not in the Constitution. James Madison never envisioned filibuster and was dead before future secessionist John C. Calhoun hatched it in the 1830s as a mechanism to block civil rights legislation.
The filibuster has become 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 budget matters and judicial appointments to move forward with a majority vote, but the filibuster is otherwise intact.
Former Senate aide Adam Jentleson wants the Senate to break the obstruction 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 filibuster was good policy for Republicans when Barack Obama was president and that it will be good policy when Joe Biden is president.
“The incentives for Republicans to filibuster are so powerful and so immune to whatever is going on right now that they will continue to stand in the way,” Jentleson told me Thursday in an interview we reported from Wednesday when the Capitol was besieged by national terrorists. Partisanship is so ingrained, he said, that new Vice President Kamala Harris will likely have to cut ties 50-50 to confirm many of the people Biden nominated.
This is an edited transcript of that conversation.
I did not know that the positions of leader of the majority and leader of the minority came so recently in historical terms. How has the Senate evolved over the past hundred years?
The Senate created these two positions because the institution was growing and seeing its workload increase considerably. From the creation of the Senate in 1789 until the 1920s, it had no leaders. It was usually organized by party, and committee chairmen checked and brought forward the reported bills. The number of senators grew as more states were added, and parties wanted to have a caucus secretary who would keep track of things but not really exercise control over bills.
Systematic obstruction is also fairly recent in the Senate. According to the book, it’s quite shocking how much the evolution of the Senate has followed segregationist opposition to civil rights laws.
Systematic obstruction is not enshrined in the Constitution. It was wanted into existence from the 1830s, after the deaths of all drafters, and this went against much of their view of 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 prevent a bill from a majority vote.
John C. Calhoun, the Father of Confederation, took up the challenge that abolitionists and the northern economic model were putting the southern slavery-based economic model at a standstill because slave states were becoming a minority as they grew. more and more states were joining the union. He created what we now call filibuster as a mechanism for the minority to override the will of the majority.
And filibuster evolved from there into a multipurpose tool that the minority party could use to block judicial appointments and any legislation the majority wanted.
The discourse on “minority rights” today would surprise the founders. James Madison took minority rights most seriously of the founders and is cited a lot by Tories, but he wanted things to come back for a majority vote at the end of the proceedings.
Today’s Senate has no deliberation. I don’t mean that in a cynical way, but the majority leader and the minority leader make the important decisions. Senators are not going to stand up to convince anyone to change their mind.
It’s exactly that. The two main forces that have shaped the Senate are the rise of filibuster and the rise of a top-down leadership structure. It is the combination of these two elements that really suffocates the Senate. People think of filibuster like Jimmy Stewart talking for hours Mr. Smith visits Washington, but this is not the filibuster today.
Now just press a button.
Right. You send an email to the cloakroom, and the passing threshold goes from 50 votes to 60 votes. Senate rules still say a simple majority is required, but the filibuster rule is used for most bills to kill them before they even reach a majority vote. Any senator can use it without ever appearing on the floor or even doing it himself. Their staff can do it.
It must change both of these forces. We need to change filibuster, which is critically important, and we need to reestablish the Senate as a body where a senator can introduce a bill or an amendment. The way to make the Senate again a deliberative body is to make the passage of laws more possible.
So if the Senate clears the filibuster, when is it likely to happen?
It would happen when an unstoppable force meets an unshakable object, when Democrats have a bill they absolutely want to pass and Republicans are absolutely opposed. Where I think this is likely to happen is civil rights and voting rights, which could imply DC’s statehood. If Democrats don’t, you would be in a position to rightly judge the failure of the Biden administration. It must happen.
Republicans see systematic obstruction as a matter of political survival for them. They benefit from restrictive voting rules that apply to people of color and young voters. They benefit from an electoral card that favors rural white states. They have succeeded without representing a majority of Americans because the playing field is heavily tilted in their favor. The right to vote is where Republicans can push back.
Do you have any idea how important voting rights issues are to the priorities of the Biden transition and to the priorities of Nancy Pelosi and Chuck Schumer?
I have the impression that it is very high. I’m not sure they’re ready yet to use the nuclear option and eliminate filibuster to pass this bill, but the road to reform is paved with senators who have vowed never to reform the rules. of the Senate. The leader among them is my former boss, Majority Leader Harry Reid, who said he would never reform filibuster and then did so in 2013 as it applies to judicial appointments.
What is the likelihood with Joe Biden and Kamala Harris both stepping out of the Senate and the Senate split 50/50 between Democrats and Republicans that she will function much more as Speaker of the Senate than recent Vice-Presidents?
It’s very interesting. The vice-president is the president of the Senate. It’s in the Constitution. In the early days of the Senate, the Deputy Speaker truly engaged in this role and presided over the Senate from day to day. More recently, the Vice President is presiding on ceremonial or tie-breaking occasions, and there will likely be many times Vice-President Harris has to break the votes. I think a lot of Joe Biden’s executive candidates will pass 50/50 votes with Kamala Harris breaking the tie.
“The policy is to win an election, and that’s what will matter most to Republicans.“
Aren’t Senate Republicans motivated by less aggressive filibustering to keep Democrats from completely eliminating filibuster?
They may try to cooperate on a small number of issues and maximize the credit they get for it towards a two-party narrative, but the political reality is that Republicans would benefit from the 2022 midterm election by defeating Democrats. That’s what motivated their obstruction against President Obama, and taking over the Senate mid-term in 2022 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 external events. The policy is to win an election, and that’s what will matter most to Republicans.
Wouldn’t the Biden administration want to lead the filibuster fight as soon as possible so Democrats can be more aggressive with their legislative priorities?
I think they don’t want to force this fight early. What is being discussed is making a big legislative package through reconciliation, which is a mechanism for budgetary matters that is not subject to the filibuster that can speed up legislation in the Senate. The reconciliation rules are so restrictive they could be used to pass a big COVID aid package, but they don’t apply to things like civil rights law.
Even if the Biden administration is able to do a lot through reconciliation, the Biden administration will always be faced with the reality that enacting civil rights and democratic reforms will require ending the filibuster. I don’t see Republicans giving Democrats 10 votes for automatic voter registration or DC statehood, and I think sooner or later that will force this debate to a head.
Do you think the Biden administration is trying to reclaim the Supreme Court seat that Mitch McConnell occupied by denying Merrick Garland a confirmation vote?
Biden has pledged to appoint a commission on judicial reform, and I hope he follows through on that. Having a small majority makes it difficult to climb, but it is an essential question for the future of democracy. It’s not healthy for a predominantly liberal country – Democrats have won a majority of votes in most national elections over the past 20 years – to be dominated by conservative judges who will overturn that majority’s laws.
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