A History of the Filibuster as the Root of Senate Dysfunction
(Bloomberg Businessweek) -- “This is not a particularly uplifting history,” Adam Jentleson warns at the beginning of Kill Switch: The Rise of the Modern Senate, his new book about partisan dysfunction in the Senate and how to fix it. Last week’s violent attack on the Capitol illustrates his point. Senate Democrats began the week exultant that twin victories in Georgia would give them control of the chamber under President Joe Biden. They ended it in an outraged clamor to expel two Republicans, Josh Hawley of Missouri and Ted Cruz of Texas, and likely headed for another impeachment trial.
Jentleson wasn’t surprised. “What we’re seeing today is really the culmination of centuries-long historical trends,” he says the day after the attack, as images of the pro-Trump mob blanketed cable television. For seven years, Jentleson, 39, had an up-close view of growing Senate dysfunction as a top aide to former Democratic Majority Leader Harry Reid of Nevada. He left with a healthy contempt for how both parties operate and a clear diagnosis of the institution’s primary ailment. The success of Biden’s presidency, he believes, will hinge on whether Democrats recognize it and commit to reform.
Kill Switch traces the rise of toxic partisanship—and the ebb of productive legislation—to the emergence of the filibuster in the middle of the 19th century. In Jentleson’s telling, it’s a long, sordid tale. The filibuster wasn’t envisioned by the framers. It isn’t in the Constitution. “It arose as the need to maintain slavery led Southerners to search for new ways to defy the majority,” he says. Throughout most of the 20th century it was used almost exclusively by segregationists to stop civil rights legislation.
But in the 1970s, it began to be deployed on other issues and shed its racist taint. Over the years, canny insiders like Senator Richard Russell of Georgia, the Democratic segregationist, quietly tweaked Senate rules to change the filibuster from a measure that guaranteed the minority an opportunity to debate bills (a delaying mechanism) to one that obligated the majority to amass 60 votes to end that debate and proceed to a vote—a requirement that could be used to kill all but the most popular legislation.
By the time Jentleson arrived in the Senate in 2010, the Republican leader, Mitch McConnell of Kentucky, was aggressively undermining President Barack Obama’s promise to unite the country by deploying the filibuster to block or limit almost every piece of major legislation. For his part, McConnell was happy to cop to what he was doing. “When you hang the bipartisan tag on something,” he said in 2011, “the perception is that differences have been worked out and there’s a broad agreement that that’s the way forward.”
Jentleson’s formative experience in the Senate was watching McConnell wield the filibuster with impunity to kill much of Obama’s agenda, while also blocking him from filling an open Supreme Court seat in 2016. Because most people pay no attention to Senate procedure, what was seen as a failure to fulfill his campaign promises ultimately caused many people to sour on Obama and his party.
Since leaving the Senate in 2017, Jentleson has assumed a role as an outspoken critic not just of Senate dysfunction but of his own party’s guilelessness and gullibility when dealing with McConnell and Republicans. Too often, he says, Democrats have fallen prey to a collective amnesia and allowed themselves to be swayed by McConnell’s claims that a 60-vote threshold is a sacred American principle rather an expediency crafted by a determined, obstructive minority.
“It’s remarkable how, despite everything we’ve seen over the last 10 years, Democrats will still engage with McConnell in the very next negotiation as if he’s a good-faith negotiating partner,” Jentleson says. “It’s like Lucy and the football. McConnell’s single most effective skill is getting inside the heads of Democratic leaders and making them think that beneath the surface he really is an institutionalist who really does want to cut bipartisan deals.”
Jentleson’s frustration is increasingly common among Democrats of his generation. So is his proposed solution. “Any path to a functional Senate,” he says, “entails eliminating or reforming the filibuster to restore the framers’ vision of a place where votes are decided on a majority rule basis.”
Biden in particular worries reformers because he hails from the older generation of Democrats who, they contend, prize bipartisanship above all else, hold a benign and outdated view of the filibuster, and refuse to see McConnell for the savvy, cold-blooded realist they believe he is. True to form, Biden has insisted that his negotiating prowess and long relationship with McConnell and other Republican Senate veterans will allow him to forge deals that eluded Obama and avoid having to blow up the Senate rule that’s supplied so much of McConnell’s power.
Jentleson says this view is typical among Democrats of Biden’s generation who first came to power in the 1970s. “The ’70s and ’80s were a unique period,” he says, “because you had two conditions prevailing simultaneously that are unlikely to ever prevail together again: the filibuster coming into common use and relatively low levels of partisan polarization. It’s easy to forget now, but when Biden arrived in Washington, many of the most conservative members of the Senate were Democrats and some of the most liberal were Republicans.”
In that environment, neither party gained a clear advantage by using the filibuster, so the rule wasn’t abused. It was simply one negotiating tactic among many. “It always had the potential to become the tool that the minority wields to block everything the majority wants to do, but it didn’t yet operate in that way,” Jentleson says. Not until decades later, when the parties had sorted themselves, did the temptation to routinely block the majority prove irresistible.
Despite all of Biden’s backslapping, old-school Senate know-how, with the parties now so bitterly divided, his gamble that he can achieve bipartisan comity a risky one. It’s the same bet Obama made, and lost. Even aside from Donald Trump’s possible impeachment trial, Biden’s stated priorities—major climate legislation, new voting rights, deficit-funded stimulus to the tune of trillions of dollars—run directly counter to Republican goals and are sure to meet firm resistance. What then?
Witnessing Republicans obstruct Obama’s agenda gradually convinced some Democratic traditionalists that reform was necessary. In 2013, Jentleson’s boss Reid triggered the “nuclear option,” changing Senate rules by a majority vote to eliminate the filibustering of presidential nominees, excluding Supreme Court nominees (by that point, Jentleson writes, half the filibusters against nominees in U.S. history had been waged by Republicans against Obama’s). McConnell and Republicans extended the rule to include Supreme Court nominees in 2017 to confirm Neil Gorsuch. Doing away with the legislative filibuster is a step many senators still prefer to avoid, although previous Democratic skeptics, such as Biden’s ally and fellow Delaware senator, Chris Coons, hinted over the summer that reform may finally be necessary.
Jentleson, a habitual cynic, is uncharacteristically optimistic about the potential for reform in the not-too-distant future. The next few months, he says, will reveal whether Biden’s throwback approach is a viable one or whether he’s just the latest Democratic president to be gulled by McConnell’s slow-walking and continual promises that a deal is just out of reach. Jentleson has little doubt about how that will unfold.
This time, he believes, Democrats will have no choice but to force a resolution. “The issue will become very acute until you either have to reform the filibuster,” he says, “or give up and accept nothing is going to happen.”
©2021 Bloomberg L.P.