Can Democrats Fix the Senate?

The filibuster’s institutionalist defenders love to invoke the principle of unlimited debate. Yet it is nowhere to be found in the debates of 1787 or the Federalist. George Washington’s description of the Senate as the cooling saucer for the House’s coffee is as fake as the cherry tree story.

Zoom out from the courtier’s well-crafted call for reform

Senate Chamber, 1923. Via Library of Congress.

Adam Jentleson. Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy. Liveright, 2021.

Democrats had their sixty votes for a mere 212 days. From July 7, 2009, when Al Franken of Minnesota was finally sworn into office after winning by 312 votes, until February 4, 2010, when Scott Brown of Massachusetts took his seat after a shock win in a special election, the party had a sufficient majority to invoke cloture under the US Senate’s Rule 22 and close debate on legislation without needing votes from the other side. The last time either party had held sixty seats was in 1979. Given partisan sorting by geography and increased straight-ticket voting, Democrats will never pull it off again in any of our political lifetimes.

The fruit of that supermajority was the Affordable Care Act, a mammoth 21st-century bill passed through decidedly 19th-century state-by-state horse trading. And then, in extraordinarily short order, the window closed and the obstruction set in. Over the following six years, Senate Republicans, led by Mitch McConnell, denied Barack Obama, that deep believer in Americans’ common purpose, the imprimatur of bipartisanship. Though the filibuster’s effects were plain to see, Democrats in 2010 had not yet coalesced around a sustained effort to kill it. The man who set them on that path was Harry Reid, the canny Nevadan who led Senate Democrats from 2005 to 2017. In 2013, as Republicans refused to allow votes on Obama’s judicial nominees, Reid whipped his caucus so that they would approve a motion that overruled the chair to allow debate on nominations other than those to the Supreme Court to end with a simple majority. Reid had, in Senate parlance, “gone nuclear.”

Behind Reid as deputy chief of staff was Adam Jentleson, who has now written a lively and effective evisceration of his boss’s great procedural antagonist. Kill Switch is well-sourced for a non-academic text, and enlivened with war stories while avoiding solipsism. The topic is the filibuster, which means that there will be no movie rights, but Jentleson is a good explainer as he unravels unanimous consent agreements, “filling the tree” (a tactic of agenda control over floor amendments), and so on. But Jentleson is not aiming for the general reader. For all the importance of process issues, Americans—beyond a small core of activists and experts—do not like to see the legislative sausage being made.1 They like agreement and dislike knowing too much about the squabbling behind the scenes. So in the long tradition of the courtier writing for the prince, Jentleson writes for those in power. He tells them what they want to hear so they will do what he wants them to do. His audience is the small set of people close to the top of the political pyramid—donors with a substantive agenda, aides eager to get things done, fixers wanting to game things out—with the direct ear of Democratic senators. If Jentleson flatters the Senate and inflates the possibilities for change in a post-filibuster world, those are not straightforwardly flaws but rather all of a piece with his purposes. At times, the sense of writing in and for a bubble can feel intense for a reader outside it. The storming of the Capitol a week before Kill Switch’s publication makes the book feel almost out of time, a guide to a world less crazy than our own, one in which institutional reform, however necessary, can feel mighty insufficient.

Jentleson’s direct antagonists are the filibuster’s high-minded defenders. He debates the senior aides and parliamentarians who remember a less divided body and look with horror at the prospect of a majoritarian Senate.2 Behind them stand phalanxes of lobbying shops filled with retired members, editorial boards, and other professional preachers of moderation and greasers of wheels, all eager for things to happen when people—good people—rub shoulders with one another, rather than when disciplined majorities ruthlessly carry out the people’s business. Collectively these defenders of Senate rules as they now stand spend a lot of time—and carry a lot of weight—with Jentleson’s audience. To show why they’re wrong, he goes beyond their bromides. He tells the filibuster’s history through the capsule sagas of three worthy adversaries: John C. Calhoun of South Carolina, who in defense of slavery first made “the fusion of speechifying with the principle of minority rights that came to define the filibuster and give it its enduring power”; Richard Russell of Georgia, who led the Southern Democratic bloc at midcentury that wielded the filibuster to defend Jim Crow; and Mitch McConnell, who brought his caucus together in common purpose to make obstruction ordinary. These adversaries have all couched their claims in high principle. Yet behind them lurk the darker forces in American life.

The filibuster’s institutionalist defenders love to invoke the principle of unlimited debate. Yet it is nowhere to be found in the debates of 1787 or the Federalist. George Washington’s description of the Senate as the cooling saucer for the House’s coffee is as fake as the cherry tree story. The Constitution explicitly lists the conditions for Senate supermajorities—treaties, veto overrides—and protection for floor debate is explicitly not among them. When the Senate convened in 1789, its rules included a “previous question” rule allowing a majority of the body to close debate. Thomas Jefferson, as presiding officer (when he served as Vice President) wrote in a manual on procedure that “No one is to speak impertinently or beside the question, superfluously or tediously.”

The filibuster arrived by accident. In 1806, Aaron Burr, as Vice President, revised the Senate’s rules and accidentally removed the previous question rule. This went unnoticed at first. The early Senate continued to follow the practice of closing debate after all sides had had their say. Calhoun spotted the opening. He first developed the strategy of floor obstruction as a means to protect minority rights, of a piece with his doctrine of “concurrent majorities.” The decisive failure to re-insert a previous question rule came in 1891 as part of the doomed push for the Federal Elections Bill, the Republican Party’s last attempt to protect Black men’s suffrage in the South. In 1917, as the country prepared to enter the First World War, Rule 22 formally established a two-thirds threshold to close debate. In the initial decades, use of Rule 22 was rare—and almost always limited to civil rights. Southerners would take their time on the floor, slow debate, and then withdraw. Theirs was coordinated effort designed to shape floor consideration, not individual talking. When Strom Thurmond delivered his 24-hour stem-winder against the Civil Rights Act of 1957, his fellow Southerners deemed him an irrelevant showboater. Northern liberal reformers like Hubert Humphrey, supported by the United Auto Workers and the NAACP, homed in on Rule 22. In response, “Dick Russell’s Dixieland Band,” as reporters dubbed it, recast unlimited floor debate as the essence of Cold War principle. “There is no greater bulwark of constitutional government than is [sic] freedom of debate in the Senate,” Russell intoned in 1948. Though civil rights legislation eventually overcame the formidable parliamentary obstacles thrown in its path, reformers never punctured the citadel of Rule 22.

By 1975, with Jim Crow and Dick Russell dead, and after decades of effort, reformers finally succeeded in lowering the threshold to close debate from two-thirds of members present and voting to three-fifths of the chamber’s membership. Partisanship in the Senate was at its nadir, and decentralizing reforms aimed to take control away from the committee barons and allow more members to get a piece of the action. Meanwhile, the genial majority leader, Mike Mansfield of Montana, and his deputy, Robert Byrd of West Virginia, who had learned Senate procedure from the Southerners but moderated with time, developed new “multitrack” procedures that allowed the Senate to conduct its floor business even as some bills ran into extended-debate problems. But soon enough, the new realities became clear. In the spring of 1978, Orrin Hatch and Richard Lugar, now thought of as genial dealmakers but then still young right-wing enfants terribles, engineered a filibuster against a modest labor law reform. After Byrd’s fourth attempt to invoke cloture failed with fifty-eight votes, he withdrew the bill, and with it ended the hopes of labor-liberalism to shape the coming political economy. Jentleson traces how increased partisanship helped to make the filibuster routine, and to reward obstruction. Again, the genealogy clarifies the story. Jesse Helms, “Senator No,” the courtly racist Republican from North Carolina, learned his parliamentary tricks from the right-wing Democrat James Allen of Alabama and passed them on to the swelling cohorts of conservatives who followed. “We need one hundred more like Jesse Helms in the US Senate,” Ted Cruz implored in 2013, speaking at the Heritage Foundation’s Jesse Helms lecture series.

As a sixty-vote margin became normal, ordinary legislation increasingly ran into extended-debate trouble. Long a hallmark of Senate debate, floor amendments declined. Legislation happened in big omnibus bills, bypassing committees and subject to limited amendment on the floor. The new budget process created in 1974 allowed simple majorities to make budgetary changes by squeezing through a procedure called budget reconciliation, though Byrd ensured hard limits on its use. (This is the “Byrd Rule.”) In practice, it has eased the passage of tax cuts, though parliamentary legerdemain also meant that it got the Affordable Care Act over the top.3

That filibuster reform was not a higher priority in the early Obama years poses a conundrum. What had been a great cause of postwar liberalism had faded away even as extended-debate problems increasingly impinged on the Senate’s business and the parties divided. Jentleson treads gently here and emphasizes internal explanations—that senior senators still remembered the more freewheeling days of the 1970s and 1980s and persuaded their colleagues they could somehow go home again. One might expand the story. Unified government in the Bush years, with the immediate fear that things could have been worse, was close at hand. The Senate Democratic caucus still had a hefty slug of old-time moderates more anxious about protecting their personal brands than pushing partisan priorities, among them Max Baucus of Montana and Kent Conrad of North Dakota, chairs of Finance and Budget respectively. The first of the new generation of anti-filibuster crusaders—Jeff Merkley of Oregon deserves a shout-out—had arrived only in 2006, without seniority or allies across the caucus. American liberalism in the 2000s was less concerned with thinking through its own distinctive dilemmas than with building institutions that would replicate opponents on the right. The Center for American Progress served as a counter to the Heritage Foundation, for instance, and the short-lived Air America Radio aimed to take on Rush Limbaugh. Daniel Patrick Moynihan called this process “the iron law of emulation.”

It took the hard, grinding lived experience of relentless obstruction, rather than the blindingly obvious prospect of it, to get the Democrats to move. Having refused to allow Merrick Garland a vote in 2016, Mitch McConnell orchestrated his own version of Reid’s reform-by-ruling in 2017, extending the simple-majority rule to the high court. As the logic of 2013 shows, the filibuster is ultimately a choice, and a choice that the majority can overrule. (Needless to say, the notion that McConnell would have let a filibuster derail Donald Trump’s Supreme Court nominations is risible.) The implications extend beyond Rule 22. Contemporary Republicans’ great innovation has been to connect the filibuster to their other forms of parliamentary and constitutional hardball, as they confirm right-wing judicial nominees and administrative appointees and block ordinary legislation. “Since much of Republicans’ agenda consists of blocking progress while dismantling the regulatory state,” Jentleson writes, “it can be accomplished predominantly through filibuster-proof means, such as regulatory rollbacks, executive actions, and simply refusing to take action on pressing issues.” It has been a toxic mix. The Senate has abrogated its own role as a solver of problems, steward of republicanism, and shaper of democracy.

Jentleson’s point in retelling the history is to drive a truck through defenders’ two leading talking points. First, the filibuster was never about the principle of unlimited debate. That was always a fig leaf for minority power. Second, its effects are not symmetric; no reason to cool it on reform because the shoe will eventually be on the other foot. Democrats want more from the federal government and need legislation to enact it. The Republican Party failed to adopt a platform in 2020 because they have no legislation in particular they want to pass beyond some tax cuts if they get the chance. Indeed, the problem is even worse than that. As half-solutions, carve-outs, tax credits, grant programs, and the like all accrete, it becomes ever harder to enact programs that will build durable political constituencies.

Zoom out from the courtier’s well-crafted call for reform, however, and the filibuster appears less as an obstacle on its own than as a piece of all the obstacles that the Madisonian system throws up. Everybody’s power is dependent on everybody else’s. Contra any number of nostalgists, the Senate has no real usable past, so, more than his audience wants to acknowledge, Jentleson’s calls to restore its finest traditions march straight into a cul-de-sac. He wants more debate, and makes perfectly reasonable suggestions for it, but extended floor debate has more appeal when cross-cutting coalitions can coalesce on different amendments than they do at a time of disciplined and internally coherent parties. And beyond Congress, a Senate under unified government capable of moving with dispatch would accelerate tendencies toward presidentialism. Midcentury liberal reformers saw no contradiction between their desire to unblock the Southern stranglehold over Congress and their comfort with executive and administrative power. After Vietnam and Watergate, that confidence shattered. Jentleson is right that a majoritarian institution restores rather than frustrates the Framers’ designs. But in a partisan and plebiscitary politics, that argument serves better as a debater’s point than as a guide to the real operation of institutions. There the brute fact that our side will win more than it will lose from abolishing the filibuster, rather than any claims about the balance across chambers and branches, will have to suffice.

Jentleson writes from a very specific place in the polity to another, and that place makes sense only by shifting the gaze. He is a down-the-line insider liberal writing to his less ideological fellow partisans. Look first from pragmatic centrist eyes. The filibuster doesn’t stick around only because its defenders have assimilated bad history. It serves members’ interest. Supermajority rules prevent vulnerable members of the minority from casting tough votes where they’d rather not go on the record, or else allow them to grandstand without consequences. Gun control, for example, is popular among Democrats. They were aghast that nothing was done after the Newtown shootings in 2012. Support from fifty-five Senators wasn’t enough to break a filibuster. The most poignant moments in Jentleson’s down-to-business book come in recalling that excruciating saga. But gun control is also a loser for rural Democrats, who would rather not cast tough votes that will hurt them at home. And beyond guns looms climate, where the three remaining Democrats from states that Trump won—Sherrod Brown of Ohio, Jon Tester of Montana, and Joe Manchin of West Virginia—all represent substantial emitters of greenhouse gases, loath to impose visible, first-order costs on their constituents, and risk losing reelection—and with it Democratic chances to control the chamber. The specific lesson is to accommodate even the more recalcitrant portions of American labor. The general one is that if you open up the procedural sluice gates, you had better be ready to control the flood.

Looking from the left raises a different set of concerns. These are less about legislative strategy per se—none of the “Force the Vote” nonsense around Medicare for All—than their place in politics. Legislative leaders—with limited time on the calendar, many constituencies to assuage, only so many favors to disperse, and uncertainty around blame if deals don’t get struck—have to decide when to push hard and when gently does it. This is no easy task. The answers can change fast, which is why politics is complicated and, occasionally, exhilarating. Though procedure dictates the terms for substance, neither is it identical. As a resurgent American left turns to Congress, those asking a cautious leadership for a maximalist strategy, raising the temperature at every outrage, can suffer from excessive confidence. But more than personality or gerontocracy, the problem is “the map.” Winning an ongoing Senate majority means trimming our sails more than we wish. As split-ticket voting becomes rarer and Democrats find it harder to craft winning appeals in rural America, Senate majorities prove evanescent. This one emerged from a D+4 environment, hardly typical. Just a wisp of a worse electoral environment and there it goes. All the attention to presidential nominating politics and to the Squad, and with them heady questions about the left, obscures the harsh and banal reality that the Senate will, in the 117th Congress and for the foreseeable future, be the burying ground of progressive ambition. Though hardcore leftists are not Jentleson’s intended audience, his book well teaches that lesson. Yet high politics, even in its Biden-era restorationism, need not mean abandoning the terrain of social struggle. In line with the gruesome electoral realities of the Senate, it suggests, rather, the need to shape that struggle, even accepting apostasy on core party priorities from members who can win tough races.

What Adam Jentleson finds in Mitch McConnell is not quite the devil in Paradise Lost. McConnell is a truly worthy adversary, yes, but not a particularly interesting person. He is interested in gaining and holding power, not a man in full. Jentleson notes with something like envy McConnell’s skill in managing his caucus. The moderates get kept in line with reminders that they could incur their colleagues’ wrath and lose the chairmanships they value. By denying a hearing to Merrick Garland, McConnell firmed up his credentials with the rising cohort of Tea Party–inflected members who had little love lost for his dour insider’s game.

In the Trump era, McConnell ruthlessly delivered the Republicans’ policy achievements: tax cuts, deregulators, and, above all, judges. For all his distaste, as long as Trump had the prospect of delivering his vaunted majority, McConnell never broke. When the Senate occasionally overrode Trump, it was on his idiosyncrasies (the occasional Fed nominee, say), not the core agenda that they shared. The story of the American right is the story of its constituent pieces and how they found common cause with one another, with no clear-cut boundary that separates out mainstream and fringe elements. They come from different backgrounds and espouse different grievances. Again, McConnell represents a piece of the puzzle, notable for his institutional position and his tactical acumen—not for his distinctive preferences.

In that sense, while McConnell hardly explains the insurrection on the Capitol, it is unthinkable without him. The House GOP caucus, whose members are younger and more attuned to primary challenges from the right, embraced it more openly, while Ted Cruz and Josh Hawley were joined only by a ragtag few. State legislatures portend a still-wilder politics. But the Senate is the key to the entente that protected and nurtured the hard right. The strategy of obstruction welcomed in the bomb-throwers, while the coalition between Democrats and a wide swath of reasonable Republicans, so often urged by the same eminences who defend the filibuster, has been conspicuous by its absence. If the Senate’s florid defenders were right, that it were really a place where unlimited debate and old-fashioned courtesy served as democracy’s essential guardians, then the Trump era should have played out very differently.

As a second impeachment trial heads to the Senate, McConnell is playing cards close to the vest. He wants to win back the chamber, and now deems the Trumps expendable in that effort. The puffery about legacy to the contrary, McConnell understands that a decisive break with leading businesses and funders is bad news for his party. If the long-united Senate Republican caucus actually fractures and McConnell votes yes on conviction, then, certainly, credit where due. But in the chamber and in his party, the ship has long since sailed.

The galleys for Kill Switch arrived in September 2020, not exactly an age of innocence, but still a time when a working Democratic majority in the Senate seemed like a live possibility. Now, Democrats assume the majority with only fifty seats, thanks to the victories of Raphael Warnock and Jon Ossoff in Richard Russell’s Georgia. They will rely on the Vice President (who would rather be in the White House than the presiding officer’s chair) to break ties. Some version of a supermajority requirement in Rule 22 will likely endure. The pivotal member (though other moderates—Kyrsten Sinema of Arizona and Chris Coons of Delaware, for instance—are also capable of making trouble), Joe Manchin, represents a deep-red state. He is substantially the best possible senator who could possibly get elected from that state given its present alignment—but he is also an inconstant friend. If more conservative than the fiftieth senator in 2009, he is also more aware than plenty of members of that short-lived supermajority of just what game the other side plays. Manchin has made clear that he will not rip up Rule 22 entirely or clip the wings of the Supreme Court. But he will deal, which may mean further selective reform-by-ruling that limits the filibuster under certain circumstances or for particular classes of legislation. The Byrd rule can be changed, too. It’s a mistake to say that it is somehow any more or less sacrosanct than Rule 22. They’re all part of the accreted collection of rules, precedents, and norms that together shape the Senate’s work.

Exactly what moment and maneuver might give the opportunity for reform-by-ruling is hard to predict. Having a feel for it is the essence of parliamentary leadership. The minimum wage is popular, so perhaps that will offer an opportunity. Again, process issues loom large in shaping the rules of the game, even if most voters aren’t paying attention. Given the history of Rule 22 as an instrument of Jim Crow, eliminating supermajority requirements for voting-rights bills would be a good start. That bill had better ensure against party bias in redistricting and admit some new states, which wouldn’t solve the problem—but would help.4 (The presence of the Senate, with its two members per state, also suggests the limits of various schemes for proportional representation in the House.) American democracy is in a parlous state, and the enormity of the task to rescue it can seem overwhelming. It goes far beyond the confines of institutional reform. Though an exceptionally strong recovery—aided, needless to say, by lenient fiscal policy—might allow for a reversal of historical trends, the pattern of midterm loss is real. Democrats should expect to lose both chambers in Congress. In 2009 and 2010, time seemed to be on our side. That illusion is gone. But from the Senate chamber, just as the cavalry of unified government peeks over the horizon, the conclusion is also disarmingly simple. The Democrats have two years. They may not get another chance for a while. Time to give it their best shot.

  1. See John R. Hibbing and Elizabeth Theiss-Morse, Stealth Democracy: Americans’ Beliefs About How Government Should Work

  2. See, for example, Richard A. Arenberg and Robert B. Dove, Defending the Filibuster: The Soul of the Senate

  3. I wrote about reconciliation in 2017. See https://nplusonemag.com/online-only/online-only/irregular-order/

  4. Statehood for the Virgin Islands was a plot point in an otherwise forgettable Christopher Buckley novel (The White House Mess). 

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