The Rise of the Modern Senate and the Crippling of American Democracy”, Liveright Publishing, 2021, 407 pp.
The author served as a senior aide to the former Senate Majority leader Harry Reid. Jentleson explains how “the world’s greatest deliberative body” has come to carry out its work without much greatness or even deliberation, serving instead as a place where ambitious legislation goes to die. The filibuster as it is currently used must be modified or ended. This book could not have come out at a more opportune time.
Only a small number of super-majority voting requirements were explicitly stated in the Constitution, including conviction on impeachment charges (requires 2/3 of Senate), expelling a member of Congress (2/3 of the chamber in question), overriding presidential vetoes (2/3 of both Houses), ratifying treaties (2/3 of Senate) and proposing constitutional amendments (2/3 of both Houses). Through negative textual implication, the Constitution also gives a simple majority the power to set procedural rules: "Each House may determine the Rules of its Proceedings, punish its Members for disorderly Behavior, and, with the Concurrence of two thirds, expel a Member."
In 1789, the first U.S. Senate adopted rules allowing senators to move the previous question (by simple majority vote), which meant ending debate and proceeding to a vote. When the “previous question” rule was eliminated in 1806 during a clean-up of the rules, no alternative mechanism for terminating debate remained and what later became known as a filibuster became theoretically possible.
The 1917 cloture rule–Rule 22–is the only formal procedure that Senate rules provide for breaking a filibuster after “The Previous Question” had mistakenly been eliminated from the Senate rules in 1806. A filibuster is an attempt to block or delay Senate action on a bill or other matter. Under cloture, the Senate may limit consideration of a pending matter to 30 additional hours of debate.
There is, of course, the structural imbalance baked into the institution itself: Electing two senators per state, regardless of population, has meant that Republican senators since 2000 have represented a minority of Americans — even when Republicans have controlled a majority of the seats. But Jentleson says that it’s ultimately the filibuster that has endowed those Republican senators with formidable powers of obstruction. “The filibuster,” he writes, “has mainly served to empower a minority of predominantly white conservatives to override our democratic system when they found themselves outnumbered.”
The book is divided into two parts: The first traces the rise of the filibuster in the 19th century and its use in the early 20th century, particularly in maintaining Jim Crow; the second follows the fate of the filibuster after President Lyndon Johnson signed the Civil Rights Act of 1964.
Republicans eager to preserve the filibuster have talked about it with such reverence that it’s easy to forget it only appeared after all of the Constitution’s framers had died. Long-held norms against “superfluous debate” meant that even after the Senate got rid of a rule that limited debate in 1806, it was several decades before John C. Calhoun deigned to wield extended speechifying as a political tool, making high-minded appeals to the principle of minority rights.
Not just any minority, though. “Calhoun deployed his concern for the underdog only to help the overdog,” Jentleson writes. The South Carolina senator’s soaring rhetoric about minority rights revolved around protecting the interests of wealthy slavers in the South and their vision of white supremacy. It’s not for nothing that the historian Richard Hofstadter called Calhoun “the Marx of the Master Class.”
Jentleson ably narrates this history, with all of its ironies and unintended consequences. In 1917, the Senate introduced Rule 22, allowing senators to call a vote for cloture — to end debate — but only if they could muster a supermajority of two-thirds (a threshold that has since been lowered to three-fifths, or 60 senators). The supermajority threshold was the result of a compromise in the Senate — “a reasonable thing to do at a time when Senate norms still compelled minorities to eventually yield to the majority,” Jentleson writes. But as those norms degraded over the ensuing decades, Rule 22 placed the onus on supporters of a bill to whip up not just a majority but a supermajority in order to end debate and get to a vote. What started out as an attempt to reform the filibuster and erode its power perversely became a facilitator of it.
“In the 87 years between the end of Reconstruction and 1964,” Jentleson writes, “the only bills that were stopped by filibusters were civil rights bills.” No other issue seemed to motivate obstructionists. However, since the Civil Rights Act of 1964 things changed and the focus changed mostly to obstruct progressive legislation. The modern Senate has become so efficient (in one sense of the word) and the filibuster so streamlined that senators seeking to block or delay legislation don’t have to bother with an actual speech; they can silently filibuster a bill, and as if that weren’t enough of an oxymoron, there’s even a “hotline” to do it.
Jentleson slowly builds his case, biding his time so that when he arrives at the decision by Reid, a Democrat, to “go nuclear” in November 2013 — eliminating the filibuster for White House nominees, save those to the Supreme Court — Reid’s actions seem all but inevitable. Under the leadership of Mitch McConnell, Senate Republicans tried to block President Obama’s nominees “with unprecedented frequency,” Jentleson writes, and he offers the numbers to prove it. “All other presidents combined had endured a total of 82 filibusters against their nominees. But from 2009 to 2013, President Obama alone faced 86.”
My Notes:
Pg. 2: From the era of civil rights and the Great Society to our current era, the Senate has been in a state of steady decline, as the decentralized, open, and relatively obstruction-free institution that the Framers created was transformed into something altogether unrecognizable. Today’s Senate has become utterly calcified. However, not all the changes have come from within the institution itself. Today’s gerrymandering caused its share of calcification (not to mention methods of raising money).
Pg. 4-9: The tool that white supremacist senators honed in the Jim Crow era to defy the majority is the filibuster. The focus of much of this book, the filibuster, has become the Senate’s most identifying feature. Using the filibuster, the Senate has become a kill switch that cuts off broad-based solutions and shuts down our democratic process. (Note: the filibuster had been discontinued in the House by Speaker Thomas Reed in the late 1900s so is only a Senate tool today).
Pg. 11: The author as the senior aide to the former Senate Majority leader Harry Reid was a witness to the decline of the senate. He documents that decline in two parts. The first narrates the struggle to bring the filibuster into existence in the nineteenth-century, as part of white supremacists’ mission to preserve slavery, and then their efforts to strengthen it during the early twentieth century to maintain Jim Crow. The second part shows how the modern, post-civil rights Senate began applying the filibuster to a broadening range of bills and issues and married the old vision of minority rule with new, rigid leadership structures.
Pg. 18ff: In Newtown, Connecticut at the Sandy Hook school on December 14, 2012, 20 students and 6 adults were shot and killed. After this massacre, fifty-five senators from every region of the country supported a bill to enact universal background checks on gun purchases, a policy supported by 9 in 10 Americans. The bill secured the support of left-leaning gun control groups like the Brady Campaign, and of right-leaning gun rights groups like the Citizens Committee for the Right to Keep and Bear Arms. Because of the filibuster, the bill was defeated, despite a majority in favor of it. The forty-five senators who defeated the bill represented just 38 percent of the American people.
Pg. 20: The shootings continued. On June 12, 2016, at the Pulse Nightclub in Orlando, Florida, a gunman shot forty-nine people dead. On October 1, 2017, a gunman fired into a crowd at a music festival in Las Vegas, killing fifty-eight concertgoers. On February 14, 2018, a gunman walked into Marjory Stoneman Douglas High School in Parkland, Florida, and killed seventeen students and staff. Overall, between the 2012 Newtown massacre and July 2020, more than twenty-six hundred people would be killed in mass shootings in America. The AR-15 assault rifle was used in many of the attacks.
Pg. 45ff: The origins of the filibuster begin with Thomas Jefferson who, as Vice President and chair of the Senate, wrote a manual on congressional procedure that includes a number of restrictions on debate. The most consequential of the Senate’s early rules governing debate was called the “previous question” rule. It is a warning to wrap up debate and move to the final vote that will decide the fate of the bill at hand. It is commonly used throughout the country and around the globe. In any event, in one of the most significant copy edits in American history, the Senate got rid of the previous question motion, at Aaron Burr’s suggestion, while it was cleaning up its rule books. This created a loophole that went unnoticed for years, as the Senate continued to adhere to the prevailing norms against superfluous debate even though the elimination now left no way to stop debate other than good manners. Then John Calhoun became vice-president and president of the Senate. While historians have identified a few instances in the five decades between the founding and 1841 where senators spoke at length to delay a measure they opposed, it is (John Calhoun’s) fusion of speechifying with the principle of minority rights that came to define the filibuster and give it its enduring power.
Pg. 108: From the end of Reconstruction in 1877 and continuing until 1964, the only bills that were ever stopped by filibusters were civil rights bills. After southerner’s blockade of civil rights was finally broken in 1964, conservatives turned to blocking bills other than civil rights legislation: everything became fair game.
Pg. 119: Senate Majority leader Reid finally had enough from the Republicans blocking nominations. So in 2013 he brought up a vote on a nomination and asked the presiding officer, Senator Leahy, for a ruling on whether it took a supermajority to invoke cloture. Leahy ruled that it did. Reid then called for a vote to overturn the ruling of the chair and it passed 52 to 48, (a supermajority is not needed when voting on rules). This method of changing the rules became known as the nuclear option. From that time on, Presidential nominations, excluding Supreme Court nominations, only need a majority to pass
Pg. 129: WWACs: The minority of voters putting Republican senators in office are not representative of a rapidly diversifying America riven by income inequality and stagnant wages. They are predominantly white, anti-choice conservatives serving wealthy interests, whom the author calls WWACs for efficiency sake.
Pg. 132: According to a 2019 NYT analysis of data collected by the Manifesto Project, a group that track party-policy positions around the globe, the modern Republican Party is more extreme than Britain’s Independence Party and France’s National Rally party, both of which are far-right populist parties that verge on neofascism. The Republican Party has moved much farther right than the Democratic Party has moved left.
Pg. 168: Until 1980, Democratic control of Congress seemed like a fact of life. Starting in 1955, Democrats held unbroken control of the Senate for twenty-six years. The House was more extreme: between 1933 and 1995 Democrats controlled rhe House for all but four years. However that has changed; between 1980 and 2018 control of the Senate majority has changed hands nine times.
Pg. 173: Bush’s plan to privatize social security never even succeeded in getting a bill passed in the House, so no filibuster in the Senate was needed. Bush’s ratings plunged below 50% and never recovered. He was busy with the Iraq war and Hurricane Katrina.
Pg. 185f: Reagan’s nomination of Bork to the Supreme Court was an odd choice. Bork had wielded the knife in Nixon’s Saturday Night Massacre. In 1982 Bork had been confirmed to the US Court of Appeals D.C. Circuit, the second-highest court in the land. Bork handed down a series of doctrinaire conservative decisions, including ones that declared both the Supreme Court’s decision in Roe v. Wade and the notion of ‘private, consensual, homosexual conduct’ unconstitutional. Bork’s nomination did not face a filibuster. In fact, it was defeated on the final confirmation vote, mustering just 42 yeas against 58 nays, which remains the largest margin of defeat ever suffered by a Supreme Court nominee. Yet, Conservatives still use the term ‘Borked’ to indicate how unfair it was. The subsequent appointment of Anthony Kennedy by Reagan was confirmed by a unanimous vote: 97-0.
Pg. 208: “The single most important thing we want to achieve is for President Obama to be a one-term president,” Mitch McConnell stated to Major Garrett of the National Journal in 2010. Thus in McConnell’s first six years as minority leader, he nearly doubled the rate of filibustering by enacting it ninety-two times per two-year session of Congress. This went up to 137 filibusters in two years deployed against Obama from 2009 through 2010. After Johnson had broken the South’s 1964 filibuster against civil rights, changes to the Senate’s rules made the filibuster easier than ever to use. A series of these reforms in the 70s erased most of the downsides of using the filibuster while preserving the benefits. Previously the filibuster had taken a lot of time and effort and generated a lot of attention if you used it. Now the ‘tracking system’ was introduced that allowed the Senate to process other business during a filibuster by creating separate legislative tracks where other business could move along while one track remained blocked by a filibuster. As a result of these changes the silent filibuster we know today began to emerge.
Note: The “silent filibuster,” as we now know it, actually stemmed from another effort to scale back the filibuster. In the mid-1970s, the increasing use of the filibuster led to a bipartisan effort to rein it in. The two-thirds threshold to overcome it was reduced to three-fifths (60 votes). But in another perhaps well-intentioned effort to reduce the filibuster’s influence, senators voted to allow other business of the Senate to proceed even as legislation was being held up. This, rather quickly, became the “silent filibuster” that is pervasive today, and it increased the use of the tactic. Presidents of both parties have increasingly filled the policymaking vacuum with expanded use of executive power, including executive orders in areas that had traditionally been handled through legislation.
Pg. 225ff: In February 2016 Scalia died. McConnell within an hour announced that the position on the Supreme Court should not be filled until a new president was elected: almost a year in the future.
Pg. 240: In 1970, America was on track to eliminate the Electoral College. The messy 1968 election had spooked Republicans and Democrats alike when Governor Wallace threatened to deny an Electoral College majority to either Nixon or Humphrey. America’s two major parties were ready to sanction direct popular voting for president. Thirty-eight states were necessary to pass a Constitutional amendment and thirty were already signaling they were in favor. Again, a filibuster ended this effort.
Addenda:
Pg. 88: “Landslide Johnson”: Johnson won his run for a Senate seat in Texas with the help of 202 ballots that appeared in Texas’s 13th precinct, in a town called Alice six days after the election—when Johnson happened to be down by about 150 votes. All of these votes were cast for Johnson, and miraculously the voters had all managed to cast their ballots in alphabetical order.
The influential position of Senate Majority Leader (ala Mitch McConnell) is a relatively new phenomenon, essentially brought into existence by Lyndon Johnson in the 1950s. Before Johnson, the all-important committee assignments were based solely on seniority. When Eisenhower overwhelming won the 1952 election, including majorities in the House and Senate, the Democrats were so alarmed that Johnson was able to substantially reform the Senate. He also took control of which bill got a vote and which Senator would get funding for election.
In 2009–10, President Barack Obama briefly enjoyed an effective 60-vote Democratic majority (including independents) in the Senate during the 111th Congress. During that time period, the Senate passed the Patient Protection and Affordable Care Act (ACA), commonly known as "Obamacare," on December 24, 2009 by a vote of 60-39 (after invoking cloture by the same 60-39 margin). However, Obama's proposal to create a public health insurance option was removed from the health care legislation because it could not command 60-vote support.
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