How the Filibuster Became the Biggest Threat to American Democracy

Sen. Joe Manchin (D-W.V.) offered a ray of hope for President Joe Biden’s nascent administration March 7 during an interview with Chuck Todd on Meet the Press.

Asked whether he’d be willing to exempt certain forms of legislation from the filibuster — which functionally allows any senator to ​“veto” a bill that doesn’t have a 60-vote majority of support — the mercurially moderate Manchin answered: ​“If you want to make [the filibuster] a little bit more painful — make him stand there and talk — I’m willing to look at [it].” (Manchin then reiterated his commitment to the ​“involvement of the minority [party].”)

Despite winning full control of the federal government for the first time since 2008, Democrats face a firm limit on how much they can accomplish in office. So long as Democratic senators like Manchin and Kyrsten Sinema (Ariz.) cling to the arcane Senate tradition of filibustering, the party is unlikely to pass major legislation on healthcare, immigration, infrastructure and more.

Adam Jentleson knows the stakes all too well. As the deputy chief of staff to former Democratic Senate Majority Leader Harry Reid (Nev.), Jentleson had a front-row seat to the Republican Party’s obstructionism during the Obama years, from basic gun reform (which Republican Senate Majority Leader Mitch McConnell (Ky.) helped defeat in the wake of the Sandy Hook massacre) to the nomination of Merrick Garland to the Supreme Court (which McConnell, again, helped defeat).

Now, Jentleson has written a book about the filibuster, ​“Kill Switch.” In it, he explores the ways in which this parliamentary procedure has been used by reactionaries throughout America’s history as an instrument to bludgeon democracy. Over the phone, Jentleson spoke with In These Times about how Biden’s history in the Senate could inform his presidency, where Democrats went wrong under President Barack Obama and why they must correct course. 

The following interview has been edited for length and clarity.

Paul Blest: Part of the reason the filibuster is so dangerous is that few people understand how it works. Can you explain what it is?

Adam Jentleson: Senate rules technically require only a majority to pass legislation, but the application of the filibuster raises that threshold to 60 votes. In the past, you had to stand on the floor and try to persuade the public to come over to your side. You’d be accountable for your opposition. None of that happens today. All it takes to kill a bill is an email or a conversation in the hallway. This is a recent development that’s only really become the accepted norm in the last few decades and especially under Mitch McConnell. 

PB: You trace the origins of the filibuster to the 19^th century. How has the very threat of its use become enough to kill legislation?

AJ: Two centuries of power plays and procedural developments with unintended consequences have led us here. It wasn’t a conscious decision. From the very beginning of the Republic, rich, white, reactionary conservatives have sought to increase their power. The filibuster has been their project since the days of John Calhoun, who was the leading advocate for slaveholders in the antebellum Senate and sort of the spiritual godfather of the Confederacy. Calhoun and his ilk thought that the Madisonian system did not give enough power to minority factions to veto the will of the majority. They invented the filibuster to achieve that aim, and it has become more powerful than ever.

PB: The book explores how Sen. Henry Clay valiantly fought the filibuster. When did it gain acceptance from those who weren’t so explicitly reactionary? 

AJ: It’s never been fully accepted. There are still a large number of senators fighting against it. But I would say that the filibuster was pursued more frequently after the 1970s. Prior to that, it was used almost exclusively to stop the expansion of civil rights. Then the Senate began experimenting a bit more with other kinds of legislation until it was filibustering a few dozen bills a year by the1990s and early 2000s. Those numbers skyrocketed after McConnell became Senate majority leader. 

What I want to underscore is that, at every point in its history, there has been a substantial number of senators who wanted to do away with the filibuster. Henry Clay, the Great Compromiser, was the first, but folks like Henry Cabot Lodge and Nelson Aldrich — Republicans and scions of the moneyed establishment on the East Coast — launched a separate bid in the 1890s. The filibuster has always had its discontents. 

PB: ​“Kill Switch” opens with an emotional anecdote about the filibuster derailing the Manchin-Toomey gun bill that had gained support from the parents of Sandy Hook. Did you realize in that moment how difficult it would make passing any kind of progressive legislation? 

AJ: That moment and the 2016 election bookended an awakening of sorts. The Manchin-Toomey amendment showed how Kafkaesque and incapable of responding to basic challenges the Senate had become, but it seemed like things were going to get better, even after Republicans blocked Merrick Garland’s nomination to the Supreme Court. Most people predicted that Hillary would win and that Democrats would retake the Senate — that they’d have the chance to right a lot of those wrongs. Watching Republicans benefit from this gridlock made me realize that things had really gone awry.

PB: Republicans like to say that Democrats were the ones who ​“ruined the filibuster” because they used the nuclear option for executive orders and judicial nominees under Obama. Did Sen. Harry Reid or anyone else in the Democratic leadership consider nuking the procedure altogether? 

AJ: To put it bluntly, we didn’t have the votes and we weren’t even close, so it wasn’t really a topic of conversation. There have always been senators advocating for it, but it was just out of the realm of possibility. It was hard enough to get the votes to go nuclear on nominations, and I don’t think Sen. Reid himself would have supported getting rid of the legislative filibuster in 2013.

I understand why everyone is freaking out about Sens. [Joe] Manchin and [Kyrsten] Sinema now, but we’re in a better spot than we were then. I think that we’re in shouting distance of having the votes to get rid of the filibuster. People realize just how dysfunctional the Republican Party has become. There was a feeling in 2012, after Obama was reelected and Democrats did well in the House and Senate elections, that the fever was going to break and the Tea Party fad was going to pass. It took several years to realize that wasn’t happening, and by then it was too late. 

I vividly remember the 2014 midterms. There were a lot of Democrats who believed Harry Reid’s iron-fisted Senate leadership was the reason the body had grown so dysfunctional. Republicans did a good job of gaslighting everybody about it at the time, when in fact [Republicans] were dead set on obstruction.

PB: One of the arguments you hear from even liberal supporters of the filibuster is that it can stop the GOP from carrying out some of the worst parts of its agenda. Why are you less convinced?

AJ: The courts. [Laughs]

There are really two things to consider: There’s not a lot of evidence that the filibuster has played a significant role in slowing the Republican agenda. Republicans simply don’t have the votes to pass a lot of bad stuff that they advocate for. A good example of this is the repeal of Obamacare, which they made their number one priority for seven years. When push came to shove, they were unable to get even a majority of votes to repeal it. They also tried to do it through budget reconciliation, so the filibuster wasn’t any use to Democrats anyway.

I also think that episode showed that benefits are very hard to take away once they’re in place. It’s politically unpopular to repeal those things and to take away people’s rights. The easiest way to do it is through the courts, and most of the things progressive care about are vulnerable to being struck down. The only way to stop that is to pass more and better legislation that can help people solve the challenges they face. If we leave the filibuster in place, we won’t be able to pass the legislation we need, and Republicans will just get rid of it when it suits their purposes in the future. If McConnell is working with a Republican president with whom he’s better aligned, he’ll jettison the filibuster immediately and jam through whatever that president wants, like he did with Amy Coney Barrett a few weeks before the election.

PB: It​’s striking to me that Joe Biden was in the Senate for 36 years, three times as long as Lyndon B. Johnson before him. How do you think his time there and his work as Obama’s vice president will inform his approach to the filibuster? Do you see him evolving?

AJ: I have a lot of hope that he will. If you read some of the things he’s said, he seems open to that conversation if Republicans are obstructionist. Clearly, he would rather get things done on a bipartisan basis, but I think his early actions have shown that he’s more focused on delivering results. And I think that’s the right approach. 

As far as Biden’s experience in the Senate goes, we need to remember that he came up during an age defined by politicians like [Mike] Mansfield and [Robert] Byrd. It was a glorious period of bipartisanship, but it was also anomalous — particularly with regard to the filibuster. Both sides used it equally, albeit conservatives more effectively than progressives. It wasn’t like the previous era, when the filibuster was used to block civil rights legislation.

McConnell has conducted an experiment in full view of the public, and we’ve learned that systematic obstruction produces enormous political benefits for Republicans, with virtually no downside. That has fundamentally changed the Senate and how Democratic leadership treats the filibuster. I can see Biden trying to bring things back like the Mansfield era, but it’s just not possible anymore. Senators have learned how effective obstruction can be, and they’re going to continue to pursue it. 

PB: It does seem as though the $15 minimum wage is dead on arrival if Democrats don’t ditch the filibuster. Short of killing it outright, is there anything that can be done to break its lock on the Senate?

AJ: There are a number of reforms that we could use as off-ramps. I also think holdouts like Manchin and Sinema will feel the pressure of their colleagues who are up [for re-election] in 2022 and don’t want to go to their voters empty-handed. There are a lot of good things in this reconciliation bill, but you can’t go from April 2021 to November 2022 with a string of failures. I think about somebody like Mark Kelly, Sinema’s fellow senator in Arizona. I seriously doubt that she’s going to leave him empty-handed.

The same is true of the White House. The filibuster is going to prevent it from passing all kinds of legislation. Civil and voting rights are essential for the survival of the Democratic Party, and neither has a chance of passing through budget reconciliation. There’s no way to go over, around or under that issue. You just have to go through it. 

PB: So how do you rally public support to change something so arcane and inscrutable to the general public?

AJ: I think you keep it attached to popular issues. You need to explain to people what it’s blocking because most don’t have the luxury of caring about Senate process and procedure. They want to know what their elected representatives are doing to help them with the challenges they face in their daily lives. And that’s where I think the public’s focus on results can be a positive thing for Democrats. If they go to voters and say, ​“we wanted to raise your minimum wage, but Republicans blocked us,” that’s not an effective message. But if they say, ​“We wanted to raise the wage and Republicans blocked us, so we reformed our rules in order to pass it. Here’s your higher wage,” voters will respond, ​“Great, thank you.” And when Republicans yell and scream about reforming the rules, the public will not care.