Book Review: Kill Switch, the Rise of the Modern Senate and the Crippling of American Democracy

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.

Civics Lesson: First Amendment Freedoms

The First Amendment (as part of the Bill of Rights in the U.S. Constitution) reads as follows:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

But what does it all mean? Am I allowed to say whatever to whoever I please while being protected from any kind of consequence or penalty? What am I assembling? Here are a few explanations for each of the five freedoms within the First Amendment:

Freedom of Religion

This freedom protects U.S. citizens from (1) being subjected to a state-sponsored religion and (2) being prohibited from freely practicing the religion one chooses. However, this freedom does not allow someone to establish say, a religion that involves human sacrifice, or something extreme in nature (I know, it’s crazy that I have to point that one out). It’s important to remember that many of the British colonies in what is the present-day United States were founded for religious reasons (e.g. Pennsylvania, Massachusetts Bay Colony); that is they wanted to protect themselves from the religious persecution that they had endured in Europe. So it should be no surprise that the Founders made sure that this freedom would continue to be protected.

Freedom of Speech

The most widely misunderstood freedom within the First Amendment, freedom of speech simply protects you from being silenced by the government. You can criticize the president in public, and not be fined or thrown in jail for doing so. You can write a blog about how Supreme Court justices should have term limits, and an unmarked white van will not suddenly appear outside your house. I say freedom of speech is widely misunderstood because many people think it protects you from being silenced by your employer or fired for saying something that goes against your employers policies (it does not), or that it allows one to “roast” somebody else, as many students tend to believe. Again, it’s about the freedom to speak freely about government, without repercussions.

Freedom of the Press

Like freedom of speech, freedom of the press ensures that newspapers, magazines, radio shows, podcasts and other publications are free to criticize the government. This is not to be taken for granted, as there are several countries in contemporary times that do not exercise this freedom (China, North Korea, Syria, to name a few). Among other things, the lack of press freedom means that students in China cannot freely look up a YouTube video of the incident known as Tiananmen Square from 1989, when students in Bejing, China (and many other Chinese cities) protested for more democracy and freedom of speech, and one man stood in front of a tank and would not move for several minutes (he was later pulled away by onlookers)! Nor can they find a Chinese newspaper that will explain the history of the incident to them, including how hundreds of protesters were killed.

Freedom of Assembly

This is the right, as Martin Luther King, Jr. said on the night before he died, “to protest for rights!” The amendment is pretty clear on this one: you must do so peacefully. Throwing rocks or other forms of violence are not protected. But standing in front of the White House lawn with your fellow Americans in protest of the policies of the president is protected. So is protesting the lack of bipartisanship in Congress on the steps outside of the Capitol Building (where Congress works).

Freedom of Petition

This freedom is a soft form of political persuasion. Imagine that you have an idea for a law that you would like your member of Congress to introduce in the House. You write a summary of the law, then you go out into your community and pitch the idea to everyone you see. Anyone that thinks it’s a great idea signs their name on a piece of paper (your petition). You get a few thousand signatures and are very proud of what you’ve accomplished. You then mail or hand deliver your idea with the thousands of hard-earned signatures to your member of Congress. You’ve just exercised your freedom of petition!

Teachers – How do you teach?

To any social studies teachers who read this blog, what are your ideas for teaching this critical topic in American government or civics courses? Share them below.

Civics Lesson: What are Checks and Balances?

Checks and balances…to some, it sounds like a personal finance concept. But to social studies teachers, it’s one of the most crucial ideas in American government that serve as an indicator of whether or not a student grasps other fundamental concepts like separation of powers and the three branches. In short, if your students don’t understand the meaning of checks and balances after a semester of civics, it’s time to remediate and fix the error.

Main Idea of Checks and Balances

Checks and balances relies on the constitutional framework that provides for three branches of government, each with its own separate and distinct roles and powers. One Founding Father who detailed this idea while advocating for ratification of the U.S. Constitution was James Madison (see Federalist No. 47). Madison based his ideas about the separation of powers on the writings of French philosopher Montesquieu. In short, to avoid tyranny and absolute power in the hands of one branch or group of people, separate branches with the ability to “check” or cancel the actions of another branch were essential. In historical and modern terms, one quick example is detailed by the process of passing a bill and signing it into law: if a bill passes in Congress, it is up to the president to sign or veto–reject–the bill. It is not law until signed by the president. That’s checks and balances.

James Madison.jpg
James Madison

Example 1: Legislative Checks the Executive

One role of the legislative branch involves the confirmation or rejection of presidential appointments. No, this does not mean that the Speaker of the House confirms that the president has a dentist appointment at 9 AM next Thursday. It means that when a recently elected president nominates someone to be his Cabinet secretary for the Department of Agriculture, the upper chamber in the legislative branch, the Senate, holds hearings to examine the background and qualifications of the nominee, and ultimately votes to confirm or reject the nominee to the position. That’s an example of checks and balances, and one in which the national legislature holds great power over the executive branch.

Example 2: Executive Checks the Legislative

One of the easiest to remember was detailed in the main idea earlier: the president vetoes a bill. In doing so, the president–the chief executive–has “checked” the power of Congress–the national legislature. Of course, as checks and balances go, if Congress can muster 2/3rds of its members to vote to overrule the president’s veto, the bill will become law, which is another way that the legislative branch checks the executive.

Example 3: Judicial Checks the Legislative & Executive

Another lesson for another time will be on the judicial power of judicial review, which was established in 1803 via the Supreme Court’s decision in Marbury v Madison. That said, judicial review is the power of the courts to overturn what are deemed unconstitutional laws. Clearly, the most landmark reversals are initiated by the U.S. Supreme Court, including Brown v Board in 1954, which overturned Plessy v Ferguson (1896, “separate but equal”). Put simply, when the judicial branch throws out an unconstitutional law, it’s a check on the legislative branch that wrote, debated and passed the bill, and the executive who signed it into law. This check illustrates the immense power of the Supreme Court and the judicial branch.

See Articles I, II and III

Of course there are many other examples of the three branches “checking” the powers of each other, and the primary source to those details is the U.S. Constitution, specifically in Articles I, II and III. However, I think the ones above are the easiest for middle school and high school students to grasp. What are some of your favorite examples of checks and balances? Leave your comments below.