by Adam Jentleson (Liveright 2021)
Jentleson, who worked for Majority Leader Harry Reid of Nevada, had me convinced by the end of the Introduction (“The Little Harm Thesis”) that the filibuster must be abolished . The rest of the book explains what the framers of the Constitution wanted and didn’t want regarding minority rights; details the creation and history of this tool of minority rule; and suggests how to solve the problem of the filibuster in our times.
Part 1, RISE OF THE FILIBUSTER
Chapter One, “Birth of a Notion”: The case of the background checks bill that went down to defeat after the Sandy Hook shooting illustrates how a tiny majority of Senators can doom extremely popular legislation. The Framers of the Constitution, fresh off the failure of the Articles of Confederation, strongly believed in majority rule. However, John C. Calhoun of South Carolina, John Quincy Adams’s Vice President, would create the concept of unlimited debate, a tool with which a small minority could prevent popular legislation from passing.
Chapter Two, “Victorious in the Midst of Unbroken Defeats”: the “previous question rule” was used to control and limit debate when it became obstructionist. In 1806, it was accidentally removed by Aaron Burr. No one really noticed at the time, but this would prove very significant. Calhoun, presiding over the Senate as J. Q. Adams’ VP, weakened the ability of the presiding officer to control obstructionists. Later, as a Senator himself, Calhoun developed the concept of nullification (i.e., individual states could simply nullify laws with which they did not agree) to give the minority (Southern white supremacists) a tool to block legislation, by combining the concepts of extended debate and minority rights: he claimed that the minority have the right to continue debate as long as they like, never accepting the concept of majority rule. His goals were to preserve slavery and the rich planter class to which he belonged. Calhoun had “created a bug in Madison’s code” with his concept of extended or unlimited debate (which was not yet called a filibuster).
Chapter Three, “Dawn of the Supermajority”: In the early part of the 20th century, Senate reformers created Rule 22 as a tool to end debate that went on too long, but obstructionists later used it to block bills from reaching a final vote. They considered a vote for cloture as “toxic”, impinging on the rights of the minority to be heard. Without cloture, however, the minority could hold the entire Senate hostage indefinitely, be refusing to yield the floor.
Until the 20th century, filibusters frequently delayed bills but could not stop them completely, with the exception of civil rights bills. The Southern bloc ensured discrimination against African Americans the Civil Rights Act of 1964, the first time a southern filibuster against a civil rights bill was broken.
Senator Richard Russell, a white supremacist and leader of the Southern Caucus, expanded Rule 22 during the Truman administration to include cabinet and judicial nominations as well as other types of Senate work that had previously been exempted. Russell made it extremely difficult to modify the rule going forward.
Calhoun had wanted a Senate that would “give to each interest or portion of the community a negative on the others.” Russell used Rule 22 to strengthen the minority’s veto power, ensuring that “the supermajority Senate would become an enduring feature of modern American life.”
Chapter Four, “An Idea Whose Time Has Come”: Lyndon Johnson’s improbable rise to power, and how Johnson transformed the Senate, for the first time empowering the Senate Majority Leader to control the body by giving him power over committee assignments. Johnson and Russell worked together to keep Rule 22. After the breaking of the filibuster in 1964, the choice was to end the filibuster or to expand it; they expanded it.
Part 2, TYRANNY OF THE MINORITY
Chapter Five, “The Superminority“: During Obama’s administration, the GOP filibustered all of Obama’s nominees, resulting in hamstrung, understaffed agencies and a critical shortage of federal judges. Finally in 2013, Majority Leader Harry Reid (Jentleson’s boss) employed the so-called “nuclear option” by exempting certain kinds of Senate votes from the filibuster, which was seen by everyone as radical at the time (“the Reid Precedent”). However, polarization (“safe” states vs. “swing” states), negative partisanship (= obstruction > achievement), bias in favor of less populated states, and the power of wealthy white anti-choice conservatives (WWACs) all work against cooperation and progress.
Chapter Six, “Outside In”: The Tea Party “superminority” takes power over establishment Republicans; Speaker Boehner, unable to control his caucus, resigns. Ted Cruz and the newly formed House Freedom Caucus force a government shutdown, and Tea Party candidates start using direct mail fundraising (very successfully) and winning primaries and elections, “surrounding” the establishment GOP with hostile forces that “reveled in defying the establishment.” Jesse Helms created right-wing organizations which made him a force to reckon with and a Senate power broker. It was he who saved Reagan’s floundering campaign, and his organizations funded much of Reagan’s presidential bid. He also brought evangelical Christians into the GOP for the first time. Although the filibuster to stop the ACA was broken, Helms’ superminority remained very powerful in the Senate.
Chapter Seven, “Means of Control”: Harry Reid: his background and how he increased the power of the Majority Leader, who since the 19th century, when the position was created, until the time of Lyndon Johnson, had not held power at all. Johnson gathered power by taking control of committee assignments and doling them out as rewards. Reid controlled his caucus using a method called “filling the tree”, which prevented Senators from amending or voting on bills he didn’t want (think of McConnell’s graveyard for Democratic bills).
Chapter Eight, “What It Takes”: Details McConnell’s rise to power in the Senate, how he got rid of the filibuster for Supreme Court nominations, and how Democrats have used the filibuster.
Chapter Nine, “The Uniter”: Obama’s promise to unite Americans “made gridlock his Achilles’ heel,” and McConnell dedicated himself to exploiting it by filibustering everything, making legislating impossible after the ACA and forcing Obama to govern by executive order. He was able to do this due to rule changes implemented after the breaking of the 1964 filibuster of the Civil Rights Act; these changes made the filibuster much easier to use–“the crucial development that gives the minority veto power over everything.” The changes included a new tracking system which allowed the Senate to go about other business during a filibuster and the “silent filibuster.” Today, the intent to filibuster replaces actual speech. McConnell invoked the “nuclear option” of exempting SCOTUS appointments from the filibuster in 2017. Jentleson writes, McConnell did not transform the Senate himself. He had the foresight to open the floodgates to corporate cash, and to use the blockade of Garland to unify the Tea Party base with the GOP establishment. He pioneered the blanket deployment of the filibuster, far beyond anything contemplated by previous leaders, But McConnell followed generations of white supremacist southern obstructionists who had come before him. Ever since John Calhoun set foot in the Senate, they had fought against Madison’s vision of a majority-rule institution, forging new ways to impose their will on a country where progress threatened their power. Under McConnell, the Senate was finally remade in Calhoun’s vision of minority rule.
Conclusion: How to Save the Senate: Jentleson claims fixing the Senate could be “comparatively easy. All it takes is fifty-one votes, political will, and a reasonable plan.” We only have to (1) restore real, open debate, (2) restore majority rule, which “narrows the minority’s options to helping the majority achieve a victory or sitting on the sidelines,” while making their choice less consequential because one way or another, the legislation supported by the majority will pass, (3) restoring senators’ ability to offer amendments to legislation, (4) take away the leadership’s monopoly on power, (5) eliminating “the incumbent-protection racket”, and (6) approving statehood for DC and other territories that want it. The goal is to make the Senate “capable of producing intelligent solutions.”
Final thought: As long as the Senate remains a kill switch that reactionary white conservatives can hit whenever they choose, it is difficult to see how America can meet the challenges it faces. No kidding!