
From NYRB Michael Tomasky writes about KillSwitch, Adam Jentleson's book about the filabuster:
Adam Jentleson’s Kill Switch is the most exquisitely timed book I’ve encountered in years. Jentleson’s explanation of the filibuster’s ignominious roots, and of the mendacious arguments made today by its defenders, is careful and thorough and exacting. Every senator should be forced to read it and then reread it.
If they did, they would know that the notion of “unlimited debate”—the claim that the Senate is a special institution because it accommodates endless discussion of legislation—is a lie. They would know that the idea that the Senate was somehow designed to defend the rights of the minority is also a lie, and a particularly pernicious one, as the filibuster was invented by John C. Calhoun to uphold slavery and white supremacy. They would know how the Senate, sometimes by unhappy accident and sometimes by the malevolent design of those who exploited its rules, has become the graveyard of progressive legislation.
Jentleson, a former aide to Democratic senator Harry Reid, begins Kill Switch by emphasizing that the Founders were opponents of supermajorities, precisely because they gave a minority the power of a majority. In today’s Senate, the “cloture” procedure, which ends debate and calls for a final-passage vote, requires sixty votes, which in essence means that forty-one senators can block legislation. Jentleson demonstrates that, with very few exceptions, “whenever proposals for supermajority thresholds were raised at the [constitutional] convention they were summarily dismissed.” James Madison, the father of the Constitution and its leading theorist, was a firm opponent of minority rule from 1787 (the year of the convention) until his death. “To establish a positive and permanent rule giving such a power, to such a minority, over such a majority,” he wrote, “would overturn the first principle of free government, and in practice necessarily overturn the government itself.”
Originally, the Senate had a rule, called the “previous question” rule, that held that after sufficient debate, the president of the Senate could decide to force a vote. It was the precursor to today’s cloture vote—the crucial difference being that a simple majority could then call the question. By design, debate in the Senate was allowed to carry on, but with firm limits. Five of the original nineteen Senate rules placed limits on debate. And a certain decorum obtained such that senators—gentlemen all, in those days—agreed when it seemed about time to vote. So in 1806, in an effort to clear away some rules that were thought unnecessary, the Senate ended the previous question motion.
With this stroke, there was no way to cut off debate—but no one really exploited this change until Calhoun, representing South Carolina, did so in 1841. His opposition was to a bank bill, though the fight, as Jentleson notes, “was really about slavery” and the southern planters’ fear that a national bank would erode the power of the slave states. Calhoun organized the southern senators to speak and speak and speak, hoping to run out the clock until a scheduled summer adjournment. Henry Clay of Kentucky moved to restore the previous question rule, and Calhoun, in Jentleson’s words, “erupted. He invoked the loftiest of principles to cast Clay as a tyrant, and himself as the oppressed minority guarding Senate tradition.” The bank bill ultimately passed, but the filibuster, even though it had no name yet, was born. After an (also unsuccessful) 1848 filibuster against a bill banning slavery in the Oregon territory, Calhoun wrote a treatise making an unapologetic case for minority rule, all in the name of defending slavery and white supremacy.
Throughout the nineteenth century, senators occasionally attempted reform. One fateful Friday in 1891, the powerful senator Nelson Aldrich of Rhode Island left work thinking that he had the votes to restore the previous question rule. But his opponents—again, chiefly racist southerners—spent the weekend organizing, and Aldrich’s motion failed by one vote. Another pivotal moment came in 1917, when President Woodrow Wilson, in the waning days of the Sixty-Fourth Congress, sought a bill to arm American merchant ships. This time it was progressives who filibustered, led by Wisconsin senator Robert LaFollette, running out the clock on the session. This inspired Wilson’s famous remark that “a little group of willful men, representing no opinion but their own, have rendered the great government of the United States helpless and contemptible.” It led the Senate to pass Rule 22, a formal procedure through which to end filibusters. However, whereas the old previous question motion could be invoked by a simple majority, the 1917 Senate decided that all debate could be ended by a two-thirds majority (reduced in 1975 to the three fifths of today). Ironically, a majority of the committee that wrote Rule 22 wanted the threshold to be a simple majority, but they compromised with the minority.
The more recent villain of the story is master of Senate rules Richard Russell of Georgia, like Calhoun an avowed white supremacist. In 1949 Russell fought an attempt by President Harry Truman’s administration to pass an anti–poll tax bill by expanding and strengthening Rule 22 and making it almost impossible to change. Russell, Jentleson writes, “had not just won a skirmish over an obscure rule, he had chosen the Senate’s future.”
The filibuster had chiefly been used to block civil rights legislation. But once the 1964 Civil Rights Act was passed, something odd and important happened. The filibuster lost much of its stigma as a tool of white supremacy. Jentleson quotes the CBS News reporter Roger Mudd, who passed away on March 9: “The filibuster began to lose its mystique, and without its mystique it slowly became just another run-of-the-mill legislative tactic of delay, no longer the exclusive weapon of the South.” As a result of other rule changes, senators no longer had to execute a real, “talking” filibuster. Now the mere threat is enough, and it can be made by Senate aides: “All you have to do,” writes Jentleson, “is call the cloakroom, tell them the senator you work for intends to place a hold on the bill, and the bill is filibustered.”