Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy. Adam Jentleson.
As America faces enormous challenges, the Senate has become a kill switch that cuts off broad-based solutions and shuts down our democratic process. Consequently, dysfunctional government and gridlock frustrate the wishes of sizable majorities in our democracy for solutions to climate change, gun violence, failure to tax the super-rich, and many other issues. A major cause of this gridlock is Senate procedure that allows a minority to block bills by requiring a supermajority for passage, rather than the simple majority envisioned by our founders in the Constitution. The most destructive tactic is the filibuster, recently augmented by all-or-none hierarchical party voting directed by the minority leader.
When first invented, the filibuster merely artificially prolonged debate to prevent or delay passage of a bill. Initially, this imposed a considerable burden on the filibustering senator, who had to keep talking, and the senators of his party, who had to remain in attendance to prevent a successful vote to end debate. Eventually, rules were eased so the purpose of the filibuster could be achieved by just threatening it, without requiring the speaker to speak, the remaining senators to attend, or delaying other business of the Senate. In addition, a single senator could now deter action on a bill by simply placing a “hold” that signaled the intent to filibuster. Nevertheless, the mere threat of the filibuster still forced a supermajority vote of 60% for “cloture” to end it and allow enactment of the contested bill.
The founding fathers created a constitution for a democratic republic for which the defining feature was majority rule. Supermajority thresholds were not required to limit debate, but were reserved for matters of greatest consequence, such as impeachment, treaties with foreign nations, and amendments to the Constitution. On all other matters, the Senate was to be a strictly majority-rule institution. Hence, the Constitution includes no mention of additional supermajority thresholds, the filibuster, or even the principle of unlimited debate.
The Framers saw debate as a critical protection for the minority to make its voices heard, not to block or nullify, but to persuade. However, they also feared the possibility of abuse of this protection by using endless debate to obstruct majority rule democracy. Five of the original nineteen rules the Senate adopted in 1789 placed limits on debate. The filibuster, which attempted to obstruct legislation by limitless debate, did not appear until the 1830s, after Senate rules limiting debate were inadvertently weakened. The term filibuster did not reach common usage until the 1850s.
Until the late 20th Century, the filibuster was used almost entirely by Southern Democrats in service of one cause—White supremacy. It was introduced in the 1830s by Senator John Calhoun of South Carolina as he led Southern efforts to defend slavery prior to the Civil War. Its use was later resumed by Southern Democrats, particularly Richard Russell of Georgia, to defend the racist Jim Crow system that replaced slavery after the Civil War. Major defeats of these forces finally occurred when master Democratic politician Lyndon Johnson managed to pass the Civil Rights and Voting Rights laws of 1964 and 1965 by garnering the 67% of votes needed in the Senate to end the filibuster.
A predictable backlash from the Civil Rights victories of the 1960s resulted in a great realignment of racially motivated Southern senators from the Democrats to the Republicans. The filibuster was still used, but now by newly Republican senators, for some additional White supremacy causes, such as the filibuster that defeated efforts in 1970 to end the Electoral College (which was perceived as favoring anti-civil rights forces). However, by the 21st Century, use of the filibuster had greatly expanded to block any achievements by opposing parties for almost all areas of governance, not just civil rights.
This new extensive use of the filibuster is compounded by mal-allocation of seats for votes in the Senate due to marked over representation of small, rural states. Throughout the 21st Century, Republicans have managed only 35-45% of the vote for senators, but have received disproportionately larger numbers of seats, sometimes enough to claim the majority, and always enough to prevent ending a filibuster.
Also, Senate leadership has taken control of campaign funding to enforce a hierarchical system over senator’s voting. This was pioneered by Lyndon Johnson and Harry Reid but taken to new heights by Mitch McConnell. Consequently, McConnell can now ensure the votes of all Republican senators to prevent ending the filibuster for any legislation by Democrats, even against the wishes of Republican constituents.
The filibuster benefits conservatives far more than progressives. Republicans mostly serve their wealthy donors by using procedure such as the filibuster to block Democratic efforts to increase expenditures for the safety net, to regulate their industrial and financial empires, and to extend fair taxation to their fortunes. This is much easier than enacting constructive solutions to the nation’s problems, particularly if they may be undermined by the filibuster. Also, the procedure has been used shamelessly to deny Democratic presidents Obama and Biden any legislative accomplishments, even those supported by most Republicans.
The author acknowledges that the outlook for the Senate and our democracy is grim. The decline began in the early 19th Century with the invention by White supremacists and subsequent strengthening of the filibuster, accelerated in the mid-20th and early 21st Centuries with consolidation of Senate leadership power by Lyndon Johnson and Harry Reid, and reached its zenith with the pairing of those tools by Mitch McConnell to give a reactionary minority veto power over everything the majority attempts to accomplish.
However, while broader developments such as polarization may seem intractable, the Senate could be fixed. It will not require Constitutional amendments, fox news ceasing to exist, or even a supermajority vote. All it takes to fix it is fifty-one votes, political will, and a reasonable plan to restore the Framer’s vision of a majority rule Senate with real extended debate for minorities and Senators free of hierarchical control.
The plan to fix the Senate centers on the filibuster. If senators claim to be delaying a bill to debate it, they should actually debate it. After a minimum period for debate, say five days, a cloture vote with a majority threshold should automatically occur. To reclaim status as a deliberative body, Senators need to be present during filibusters to act. Every Senate decision point should be majority rule, except for those assigned supermajority thresholds by the Constitution. Leadership power and control of information should be democratized to facilitate Senator’s independent action.
