A majority being held hostage by a political minority. That’s the story told in Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy by Adam Jentleson, a former deputy chief of staff for the (just recently) late U.S. Senator Harry Reid.
Jentleson’s clearest example for how the modern Senate hurts and holds back America is told through the story of the “background checks” bill from 2013. In the wake of the unspeakable brutal massacre of school children and adults at Sandy Hook Elementary, the bill was a bipartisan effort that had the support of Republican Senator Pat Toomey and Democratic Senator Joe Mancin. A right-wing, 2nd Amendment rights group even supported it. 55 senators were ready to vote in favor of universal background checks for gun purchases, while 45 were not. Because of the super majority needed to end a filibuster, Republicans didn’t even have to debate it, or stand on the floor of the Senate to explain to the American people why they opposed it. As the author notes,
“it had not mattered that the opponents of the bill lost the debate in the court of public opinion by a landslide…All they needed to do was hold together a minority of senators, most of whom would not face voters at the polls for several years…they were accountable almost exclusively to people who looked and thought like they did: white conservatives.”
According to Jentleson, the bill was “supported by 90 percent of Americans.” (p. 19)
Contrast that bipartisan effort with the legislative actions by Republican-controlled legislatures across the country since former president Donald J. Trump lost, but refused to concede the 2020 election. After he led an insurrection at the Capitol on January 6th, 148 members of Congress, all Republican, voted against certifying the election results in states like my own, Pennsylvania, and Arizona. Since then, dozens of voter suppression bills have either been proposed or passed. The literature on the new Jim Crow is plentiful, with authors like Carol Anderson and Ari Berman documenting the multitude of ways in which the Republican Party makes it harder to vote. These tactics include the shutting down of hundreds of precincts since the Supreme Court gutted parts of the Voting Rights Act in 2013 as well as the inconsistent and inequitable list of acceptable forms of ID (e.g. some states allow a hunting license, while prohibiting a college ID). Even ultra-conservative Supreme Court Justice Clarence Thomas sided with a Court of Appeals a few years ago that had declared a voter-ID law in North Carolina violated the 14th Amendment and aimed to eliminate minority votes with “surgical precision”. Mail-in ballots are also a large target, given that many states made it universal during the pandemic, even though the red state of Utah provides for universal mail-in, something Republican Senator Mitt Romney is very proud of, but Republicans don’t bat an eyebrow in that case. The GOP has even aimed its sights at limiting who can drop-off ballots and prohibiting the vanpooling of Native Americans from reservations to polling places.
How the Filibuster Was Established
The filibuster originated via the machinations of John C. Calhoun, who as vice president under President Andrew Jackson (his first term) and president of the Senate, allowed one member after another from the minority to debate a bill that would charter the Bank of the United States, in the hopes that the Great Compromiser, Henry Clay, would miss the summer deadline. Eventually the majority would cough or make noises signaling for the filibustering members to shut up and end debate. However, the scheme had established a tactic not yet named, and “sparked a feeling of camaraderie among the minority of filibustering senators, even though they had no hope of actually defeating the bill.” (p. 51) Then, what’s called the last question rule was established that allowed a simple majority to end this intentional delay, but during the time of Woodrow Wilson in 1917, another change was made, Rule 22, which required that a super majority agree to end debate, at first 2/3rds then later reduced to what a super majority means in the Senate now, 3/5ths or 60 votes.
Though I knew that Republican obstruction in the Senate was a major problem during the Obama Years, I wasn’t aware of the extent until now. Jentleson pointed out that by the time Harry Reid had adopted the nuclear option for the purpose of presidential appointments in 2013, half of all the appointments that had been filibustered in the nation’s history occurred while Obama was president. That’s truly remarkable, and a sure sign that it is indeed the Republican Party that is the problem.
How to Define Corruption
Among the best examples of political history in the book centers around a dispute between Senators John McCain (R-Arizona) and Mitch McConnell (R-Kentucky). At the time, McCain was implicated, among other senators, in a financial and federal oversight scandal that was a clear case of multiple conflicts of interest related to a businessman named Charles Keating. As a result, and likely motivated by a level of political expediency, McCain became one of the few Republicans who believed campaign finance reform was a necessity due to what he viewed as corruption: pork barrel spending and corporate lobbying. He and Democratic Senator Diane Feingold would champion what would be known as the Bipartisan Campaign Reform Act, or McCain-Feingold for short. In 1999, Mitch McConnell called out McCain on the Senate floor, demanding that he name names to explain his general allegations of Senate corruption. (pp. 194-95) The dispute could be narrowed down to two definitions of corruption: the McConnell version, where there’s an explicit understanding that a lobbyist is handing over campaign contributions in exchange for either support or opposition to a piece of legislation, and the McCain version, which according to the author, lines up with the view of the Founders: that excessive amounts of money contributed to campaigns serve as a violation of the public trust in leaders and institutions that should put the interests of the country over their self-interest and preservation. (pp. 196-197) The Supreme Court would later side with McCain in McConnell v. FEC, but only a handful of years later, effectively overturn that decision with the disastrous Citizens United decision (2009) in which the conservative wing of the Supreme Court equated unlimited and corporate contributions to American politics with free speech.
Thoughts This Book Provoked
1. What I’ve realized is we’re a better country than the modern Senate allows.
2. One important takeaway from the book is the fact that American sentiment has often been ahead of the laws its country’s legislators have passed. Anti-lynching legislation and laws to end poll taxes were supported by a majority of Americans in the 1930s/40s, but a majority of U.S. senators were stopped by the minority’s use of the filibuster. In short, the filibuster added decades to the needless suffering of and lack of protection for Black and Brown Americans.
3. How radical it is that in the American system a person can be elected president with less than 50% of the vote, yet a simple majority in the Senate can be blocked from voting on legislation supported by an overwhelming majority of Americans by a super minority of senators, or more specifically, one objection in the form of a phone call or email.
4. You tell me how it makes any sense that the Senate requires 60 votes to end a filibuster, but the Republican Party can go nuclear on Supreme Court nominations, resulting in the confirmation of Justices Neil Gorsuch and Brett Kavanaugh with just a simple majority, 54 and 50 votes, respectively (pp. 230 and 232).
5. I’m reminded of the common refrain that “historians today are revisionist,” which might as well be an insult because it suggests that historians are lying through their coffee stained teeth. A good analogy for why this is wrongheaded begins with the famous painting titled Scene at the Signing of the Constitution of the United States. The Founders are standing in Independence Hall in Philadelphia, Pennsylvania. The signing of perhaps the greatest document, second only to the Declaration of Independence, occurs. And you know what? It never happened that way. It’s a microcosm of the kind of job that historians are tasked with: uncovering the falsehoods, sharing the facts and providing real context. If that’s “revisionism,” well then, so be it.
