Filibuster or Bust

Senate obstructionists have long depended on the parliamentary tactic to block progressive legislation. Is it time to end it?

Photo illustration: Soohee Cho/The Intercept, Getty Images


If President Joe Biden is going to be able to pass any part of his agenda, he’ll need to get it past the Senate filibuster. That’s likely impossible given the chamber’s 50-50 split. Is it time to finally change the Senate rules and allow the body to operate on a simple majority basis? Oregon Sen. Jeff Merkley and author Adam Jentleson join Ryan Grim to discuss.

[Introduction music.]

Ryan Grim: For the first major legislative effort of his presidency, Joe Biden proposed a $1.9 trillion Covid relief package, partly made up of billions in state and local aid, billions more for vaccine production and distribution, and direct checks to tens of millions of people to honor his campaign promise.

A group of Republicans countered with their own plan, suggesting he cut it down by more than two-thirds. In exchange, they’d support the bill and give him the 60 votes he’d need to end a filibuster.

Then, something strange happened: Biden met with the Republicans, heard them out, and more or less said no. Jon Tester, a Democrat who represents Montana, said no.

Senator Jon Tester: I don’t think $1.9 trillion, even though it is a boatload of money, is too much money.

RG: Joe Manchin, from West Virginia, said no.

Senator Joe Manchin: If it’s $1.9 trillion, so be it.

RG: Chuck Schumer, the Senate majority leader, said no.

Senator Chuck Schumer: There’s agreement, universal agreement: we must go big and bold.

RG: Democrats have no desire to relive the hell that was 2009. Back then, Republicans strung Democrats along, sometimes for months, only to ditch them at the last minute or, as they did with Obama’s stimulus, make it too small to do the job effectively.

And so Democrats are now embarking on a complicated, multi-week parliamentary process called budget reconciliation, which is not subject to the filibuster, meaning the stimulus can be passed with a simple majority.

But a lot of it will likely be tossed out by the parliamentarian, who will rule that pieces that don’t have a direct impact on the deficit have to go through regular order.

Besides that, the chamber only gets a few bites at reconciliation through the entire first two years of Biden’s presidency, meaning the rest of Biden’s agenda will be subject to the filibuster.

The availability of reconciliation has allowed the party to dodge the question so far of what to do about the filibuster, but that won’t last for long. Soon enough, unless Republicans have some sort of weird, bipartisan epiphany, Democrats will face a choice: They can either keep the filibuster in place, or they can implement Biden’s agenda. They can’t do both.

Earlier this week, we talked with Rep. John Sarbanes about his legislation that would rebalance the democratic process. Without it, Democrats could soon be relegated to permanent minority status. That legislation, too, can’t be done as long as the filibuster is in place.

But there are serious efforts to do something about that underway. Oregon Senator Jeff Merkley has been the leading voice inside his caucus for reforming or abolishing the filibuster. It was a lonely battle a decade ago, but the effort is on the cusp of victory. And, perhaps, not a moment too soon.

Meanwhile, a timely new book has arrived on the scene, written by Adam Jentleson, a former deputy chief of staff to Harry Reid. It’s called “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.” Jentleson joins us later in the show, but first, we talk with Jeff Merkley about his push against the filibuster.

Senator Merkley, welcome back to Deconstructed.

Senator Jeff Merkley: Thank you. It’s great to be with you.

RG: What was the moment for you when you realized that something was off about the idea of the filibuster?

JM: Well, it’s really when I came back to the Senate in 2009 when I was first elected. I had seen the Senate operating in the 70s when I was an intern for Senator Hatfield; I worked for Congress in the 1980s, I saw the Senate function as a legislative body.

Think about the fact that when Lyndon Johnson was majority leader, for six years, he had to file cloture to close debate one time, one time in six years. Harry Reid for six years had to file cloture 400 times. That kind of represents the decline of the Senate as a functioning legislative body.

RG: So you finally succeeded in getting Harry Reid to reform the filibuster in 2013. It only applied to nominations and it exempted Supreme Court nominations, but it was still a major step forward.

And just weeks before that happened, lots of people in Washington said: “This will never happen.” And then weeks later, it happened. What changed to make it possible? What got you from a place of people being concerned to saying: “OK. We actually have 51 votes to change the rules.”

JM: What happened was the complete dedication of Mitch McConnell to delay and obstruct strategy. And he was just blocking all kinds of nominations to the court, certainly to the executive branch positions, and really trying to hamstring the Obama administration in any ability to fill court seats. And that led to a conversation of all the senators in the old Senate chambers — very rare thing, no staff, no reporters, everybody bared their souls — and said, “This is just a dysfunctional Senate. It can’t be allowed to operate like this.” And the Republicans agreed and said, “OK, we’re going to quit being just a determined effort to block everything.”

And I can remember John McCain grabbing a fellow Republican senator who was about to try to launch an effort to block another nominee and saying, “You can’t do that! We must not do this. We’re just going to destroy this place.”

And it was only a few weeks after that, that Mitch McConnell issued his edict that there was going to be an absolute ban on any nominees to the D.C. Circuit Court, the second most important court in our country. And that was really the straw that broke the camel’s back, and caused Harry Reid to say: OK, we tried, we did everything we possibly could to work this out. But Mitch McConnell is determined to damage the courts and damage the executive branch, and that cannot stand, and we thus must change how this works.

RG: What is the fact that the Senate Democrats are willing to use reconciliation, this time around, to get the Covid relief bill through say about their willingness to actually reform the filibuster? Because both create a majority-only process and reconciliation could have been used in 2009 for the stimulus, but Democrats decided against it then. So what has changed in the thinking? And what can we learn from that about where they stand when it comes to the filibuster?

JM: Well, reconciliation initially had a very limited role. And that was it could be used to decrease the deficit, so a special bypass of the filibuster to decrease the deficit.

Then what happened was that when Trent Lott was majority leader, he brought in a new parliamentarian who ruled that you could also do tax cuts that increase the deficit in reconciliation, paving the way for the 2001 tax cuts.

The Democrats changed the law back, it was a Conrad rule, when Conrad was head of the Budget Committee. And then the Republicans got in power, and they changed the rule, again, to prepare the way for the 2017 tax breaks for the rich.

And so we’ve watched reconciliation be used for basically raiding the National Treasury to give more money to the richest Americans. Doesn’t it make sense that it should be able to be used to do fundamental good work in health care, housing, education, living wage jobs for ordinary Americans?

And so there’s no hesitation in terms of it being a legitimate pathway to try to address these issues. But reconciliation can only be used on things that have a financial impact, either through spending or through taxes. And so it doesn’t help us on the policy front.

RG: One thing that Adam Jentleson talks about in his new book, and that former President Obama has talked about as well, is the link between the filibuster and Jim Crow and the filibuster and hostility to civil rights, and that you can’t separate the the histories of those two things from each other. As that’s becoming more broadly understood, is it having an effect on senators’ opinion of the filibuster? Or are they still stuck in this idea that the filibuster is what makes the Senate special?

JM: I’ve met with almost all of my Democratic colleagues to go over the history of the filibuster. And you’re absolutely right that is deeply tied to discrimination, to systemic racism, to the strategy of trying to keep Black Americans from voting. Essentially, for an 80-year period, the only thing that was blocked by the filibuster — the supermajority — was the voting rights for Black Americans, civil rights for Black Americans.

It was a courtesy that everyone should be heard before a vote was taken that worked fine in the early Senate, and it worked pretty well well into the 1900s. But as Southern Democrats were looking for new ways to block Black political power in the South, they decided the filibuster was the tool, and that they could dress up their racism, their bigotry, with the argument that this is just freedom of speech, being able to speak for as long as you want on the on the floor.

And then that tool went through a renovation in the mid-70s. And something happened that nobody really understood at the time, and most people don’t understand now. But it went from being to close the bait from two-thirds of those present voting to three-fifths of the body. And that little tiny change doesn’t sound [like] much, but what it said was that previously, if you wanted to block debate, you had to be ready for a surprise vote at any point and you had to have one-third of the senators present who wanted to keep obstructing ready to provide that blockade. Once it was the members, you had to have 60 votes of the members of the body then who were “No” votes — “No” for closing debate, in other words they wanted to continue debate — they didn’t have to show up. They were a “No” whether they were there to vote or not. So this meant there was no effort required to construct a blockade. And it’s this no-show form of the filibuster that really enabled it to become such a powerful tool of obstruction.

And by the way, it’s important to remember this is absolutely in the face of our Founders’ vision for our country. So often we hear, “Isn’t the filibuster how the Founders designed the Senate?” And the answer is: No! Hell no! Absolutely not!

We had a supermajority under the Articles of Confederation, and that supermajority paralyzed the Congress. And so when they were in place leading up to 1787, they said: Absolutely can’t let this happen for laws in the future, it needs to be a simple majority. So they had a supermajority for special circumstances like treaties or overriding a veto, but they were insistent that in a republic you can’t have the will of the majority bow to the will of the minority. And you can see that in the writings of Hamilton and Madison and other Founders.

RG: That history that you talk about is finally being unearthed and circulating at popular levels. How much does that matter to your colleagues when it comes to making the final decision whether or not to basically end the filibuster or to reform the filibuster? And how much do kind of pragmatic and practical arguments either work or work against the argument in your experience?

JM: Well, both are very important. As I met with colleague after colleague, and went through the history, people go, “Oh, my goodness. I never realized that this really came into force as a racist tool to block civil rights for Black Americans.” “I never realized the Senate wasn’t designed this way from the beginning. I thought this was the design.” “I never realized that the Founders said: ‘Don’t let this happen.’” So that was helpful to set the stage in that manner.

The other thing that was very helpful is people saw the horror show of the way McConnell in the minority exercised what I like to refer to the filibuster as the “McConnell veto.” And people are understanding more and more that McConnell, as an instrument of powerful rich Americans, as an instrument of the fossil fuel industry and the banking industry, is basically saying: Hey, support my team, I can block bills. Even if I’m in the minority, I’m that powerful — I can block bills you don’t like. I can prevent them from ever getting off this floor, so keep, keep backing me. And it’s a kind of deep form of corruption. And watching McConnell exercise this delay and obstruct strategy previously, now Democratic senators are going: We get the game. We understand the game that’s going on here. We have to actually do these things. And we can’t let the McConnell veto stand in the way.

So the combination of the sordid history of the filibuster, and the way it’s been absolutely abused by Mitch McConnell, have come together and shifted the views of a huge number of my colleagues.

RG: And speaking of anti-democratic practice, last episode, we focused on the For the People Act, and I think of that as a part one, and this as a part two, of two thematic episodes together. I’ve heard people say that, at minimum, there ought to be a democracy exception to the filibuster; that you can’t give the minority the ability to tilt the democratic playing field in their favor, structurally and permanently. Is that being talked about around H.R.1 and S.1? Or is your objective, no, we just have to go for full reform?

JM: There’s many potential pathways and they’re all being talked about. And, to your point, we have a responsibility to defend the integrity of the voting system. It is the foundation of our republic, we take an oath to the Constitution, and gerrymandering, and voter suppression, and dark money have done incredible damage to the credibility of the system.

Before the 1975 revision, if you wanted to block a bill, you had to actually show up, you had to speak, you had to talk, and the imbalance that was created by the change to where you have now the no-show filibuster. If you really believe in the filibuster, let’s return it to the talking filibuster, where those who want to obstruct through additional speech get to do so, but they are going to have to be there. And we’re going to have an old-fashioned, multi-week battle in an effort to say how important this is. And hopefully during that battle, the American people will say, “What is this? The Republican Party is trying to perpetuate gerrymandering. They’re trying to perpetuate dark money. They’re trying to — particularly — destroy our ability to vote.” And so that there will be a cost to having that public ballot in time and in terms of the debate with the public, and hopefully, we would come out on top and make it to a simple majority vote in the end.

RG: The real Exhibit A of everything you’re talking about is Georgia, both when it comes to voting rights and what the possibility of voting rights can do for the electorate, and also the Republican response. They are very busy, right now, writing all sorts of rules that are basically trying to eliminate mail voting in Georgia so that they can continue with minority rule down there.

The way that Democrats ended up winning in Georgia and taking over the Senate was really by promising these $2,000 checks: McConnell is obstructing this, he’s only offering $600; elect us, we’ll do the full $2,000.

You now have Democrats who are saying: Well, OK, we’ll do that. But we’re going to significantly narrow who we give the checks to — which strikes me as breaking that campaign promise. I want to get your take on that, too. And could you support a bill that ends up breaking that campaign promise in the end? And what would be the repercussions if that’s how Democrats launched Biden’s presidency?

JM: Listen, I understand what President Biden is reaching out, trying to find compromise on the $1.9 trillion, and he floated this trial balloon about changing the target audience for the direct payments as you’ve described. I would advise him, if he were to ask me, that that is not the place to compromise, that if you want to see us lose a Senate race in Georgia in two years, when Reverend Warnock has to fight the battle again, then modify the promise made — break the promise made — during the Georgia runoff.

There’s a lot in that bill that one could argue a little more here or a little less there, but I think when you have made that a central point of a key election, and narrowly won that election, we all together better deliver on the promise.

RG: And are there enough Democrats, you think, who believe that? That they would say, “Look, this is so important, we will block you from making this mistake?”

JM: Well, here’s what’s going to happen, Ryan. The Republican 10, they’re not going to bend on the basic issue of their $600 million — they’re not going to bend much, because, ultimately, Mitch McConnell is there with his obstruct-and-delay strategy. And his theory of power is: Prevent Democrats when they’re in office from solving problems, because it strengthens our case for replacing them. From the time he started applauding Gingrich with obstruction in the House under Gingrich’s theory that if you work with the majority, you don’t really have a case for replacing them, because things get done.

RG: Right.

JM: And then in the Senate, he had tools that Gingrich didn’t have. He had the nominations, which can take up an enormous time when there’s no cooperation. And you had the filibuster or what we now should call the McConnell veto. Under that theory, they will never get to “Yes” with Joe Biden. Joe Biden will make an earnest effort, it will fail, and then we need to pass this in reconciliation and we need to make sure as we pass it reconciliation that we have the full promise that was put forward in the Georgia campaign.

RG: Well, Senator Merkley, thanks so much for joining us on Deconstructed.

JM: You’re welcome. Thank you.

[Musical interlude.]

RG: That was Senator Jeff Merkley.

Adam Jentleson is the author of the new book “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.” Adam served as deputy chief of staff to former Senate Majority Leader Harry Reid.

Adam, welcome to the show.

Adam Jentleson: Thanks for having me.

RG: So there was a section of your book where I kind of laughed out loud. And that might be a strange thing to say about a book about Senate history and Senate procedure. But, first of all, the book is terrifically well done. And congratulations to you on that.

AJ: Thanks, man.

RG: But the section comes where you say that for centuries, people have been reaching back to the Founders, and specifically to Madison, to kind of ground whatever it is that they’re trying to argue. To say like: Look, the Founders were with me. Here are some quotes from Madison that support me. You do the same thing, I’ve done it, everybody does it. Calhoun starts to try to do it in advocating for what becomes the filibuster. And you write, that Calhoun had a problem that contemporaries like us who cite Madison didn’t, and that was that Madison was still alive.

AJ: [Laughs.] Yeah.

RG: Because he was one of the youngest Founders and lives to a very old age. So he starts responding to Calhoun and tells him: Look, you’re wrong. And it reminded me of that famous scene from the Woody Allen movie.

Woody Allen [playing “Alvy Singer” in Annie Hall]: You don’t know anything about Marshall McLuhan’s work.

Man in Theater Line: Really? Really? I happen to teach a class at Columbia called “TV, Media, and Culture.” So I think that my insights into Mr. McLuhan have a great deal of validity.

WA: Oh, do you? That’s funny, because I happen to have Mr. McLuhan right here. So, yeah, yeah, just let me — come over here for a second. Tell him.

Marshall McLuhan: I heard what you’re saying. You know nothing of my work. How you ever got to teach a course in anything is totally amazing.

WA: Boy, if life were only like this.

RG: I have James Madison right here!

AJ: Yeah. [Laughs.]

RG: I happen to be James Madison! You know nothing of my work.

And so tell us a little bit about who Calhoun is and why Madison was so quick to tell him that he was wrong about how he was interpreting his views on minority rights in the Senate.

AJ: Sure. And I think I’ll start by laying out sort of what Madison intended. And this is sort of awkward for me as I was writing the book, because I’m not an originalist by any stretch of the imagination. But this debate gets so wrapped up in statements about how the Senate was supposed to be, and the defenders of the status quo are so invested in claiming the mantle of Senate tradition that I thought it was useful to go back and look at it. And I was surprised when you looked at the historical record that it’s not really a close call, that the framers did not want the filibuster to exist and they did not want a minority to be able to block the majority. And so this is the system that Madison, more than any other individual, designed.

And the vulnerability of the Madison system was always that it’s a delicate balance. And he obviously wanted there to be checks and balances in the system. And he did intend the Senate to be the proverbial cooling saucer in a place where things were slowed down, a body that was more deliberative than the House, all of that is true. But what has happened, and what Calhoun started to do, and what has happened since then, is that those protections for minority factions have been dramatically expanded far beyond what Madison intended — to create, essentially, a veto power for the minority.

And so Calhoun was the one who started to expand those minority protections into a minority veto. And so the incident you’re talking about was in the 1830s, when Calhoun — the funny thing about Calhoun is he was a senator from South Carolina, he was sort of the principal defender of slavery in the Senate, he was a virulent racist. At the time when abolition was starting to take hold, this is not exactly an enlightened state in America, but there was still an emerging consensus that slavery is not good, even if for the only reason that it’s bad for white people and teaches them bad lessons, Calhoun takes it upon himself to turn that around and argue that slavery is unabashedly good. He gives a speech on the Senate floor, calling it a positive good, rejecting all arguments against it.

But the problem that Calhoun has at this point in history is that he represents a minority and slave owners represent a minority in Congress. So he desperately needs to increase the power of a numerical minority in the Senate. And so he starts expanding Madison’s protections for minority factions into a veto. He does this by arguing for the idea of nullification, which led to the Civil War. And that was the argument Madison responded to. And Madison basically said: Look, I think that there should be a role for the minority in the process — they should be able to state their views, they should be able to influence the process — but I resoundingly reject the idea that they should be able to stop the majority from doing what the majority wants to do. Hear the minority out, let them have their say, but at the end of the day, majority rule is the republican principle, it’s the basis of democracy — small “r” republican, there.

So yeah, it was an interesting exchange. Unfortunately, Madison did pass away in the 1830s. So he overlapped with Calhoun for a few years, but when Madison passed away, Calhoun was just getting started. And so with Madison out of the picture, Calhoun proceeded to basically invent the filibuster as we know it today, and start expanding these minority protections to the point that they’ve gotten completely out of control today.

RG: You’re somebody who knows Mitch McConnell well, from your time in the Senate. McConnell and Abraham Lincoln don’t have much in common. But one thing I can think of is that they both idolized Senator Clay —

AJ: Yes.

RG: — as their role model, as a great statesman. Henry Clay, kind of the lead advocate of the American system. No, which kind of comes from Hamilton comes from Hamilton’s idea that the federal government needs to be strong, needs to build infrastructure, he’s the leader of the Whig Party.

In the book, you talk about him recognizing what Calhoun is up to, and the threat that he poses to the functioning of the Senate and trying to stop it. So what did Clay do and why?

AJ: This is an important point, because I think people tend to think that folks who want to get rid of the filibuster and sort of restore majority rule to the Senate are often cast as the radicals and the rebels. But Henry Clay, “the Great Compromiser,” was the very first person to try to get rid of the filibuster.

One of the very first filibusters that Calhoun launched was in 184; it was against Henry Clay. Clay was trying to pass a bank bill. This was during the debates of establishing a bank of the United States and Calhoun opposed it. This wasn’t about slavery, but it was really about slavery, just as sort of most major issues were at the time.

RG: Right, because the planter class didn’t want to lose power.

AJ: Exactly. And the bank would have been a shift to the Northern, industrial, capital-based economy. And Calhoun opposed it because it was going to lead to the end of slavery in his mind, and he was probably right about that. And so he launched what is often recognized as one of the first modern filibusters, of the sort of filibusters we’d recognize today. There were sort of isolated incidents of obstruction before this, but this was Calhoun taking obstruction and marrying it to the idea of minority rights and protections for minority factions, and their right to unlimited speech and all the stuff that we hear about from today, often from McConnell himself.

And Clay was horrified. He did not think that this was the purpose of the Senate. Hse thought that what was happening was debate for the sake of obstruction, not debate for the sake of persuasion. And he moved to, essentially, what we would describe today as “go nuclear.” The Senate, originally, was not intended to have the filibuster, as we’ve discussed. And one of the ways we know that is that it had a rule in the original Senate that would allow a majority to vote to cut off debate and essentially end a filibuster. This rule was eliminated in 1806, because it was never being used; obstruction wasn’t a major problem in the Senate at the time. But here in the 1840s, obstruction had become a problem.

So Clay, in the face of this new filibuster by Calhoun, moved to restore this rule that would allow a majority to end debate. Calhoun is able to outmaneuver Clay and force him to give up on reform, basically by using the age-old tactic of delaying long enough that Clay had to choose between passing the bank bill, which was his top legislative priority, and the more abstract goal of reform. And as many folks have done over the course of the last few centuries, faced with this sort of Sophie’s Choice, they chose their most immediate concrete priority over reform.

But this was such a change in the way that the Senate did business at the time that they still didn’t even have a name for this. No one called it filibuster at the time, because it wasn’t happening frequently enough to deserve a name; the name didn’t come for another 10 or 20 years later. But it was something that Clay was horrified by. So if you are the type of senator who likes to style themselves in the tradition of Henry Clay, as many do, particularly Mitch McConnell, you should be an advocate of getting rid of the filibuster and restoring majority rule, because that’s what Clay wanted.

RG: And so Calhoun dies in the 1850s, but later he does get the Civil War that he had been longing for, then you have Reconstruction. And so the filibuster kind of fades at that point, because you’ve effectively the Confederate members of the Senate have left, and they only are allowed to come back to the Senate through the 1870s. So they don’t have enough people to even marshal a filibuster.

So Reconstruction ends in 1876, and a lot of people think that Jim Crow just sets in overnight, but not really the case. Black Americans allied with white, radical Republicans, kept fighting on behalf of freedom for many years after that, and the campaign of white terror continued for many years after that, too.

And so you write about this pivotal moment in 1891, which becomes the Republican Party’s last major effort to restore voting rights to Black Americans across the country, but particularly in the South. They had not completely given up on being the party of Lincoln. And so Henry Cabot Lodge is pushing this bill, which the Southerners start calling the Force Bill. It’s basically a voting rights, putting the federal government back in the business of actually enforcing the voting rights, and other Constitutional rights that were in law. And again, the Southern senators marshal an historic filibuster, and for the first time since Clay, there was an attempt to abolish the filibuster.

Do I have that about right?

AJ: Yeah. Yeah. That’s about right. I mean, there were some attempts in the intervening years. But what’s notable about this one is that this is one time where we actually had a recorded vote so we could see that there was a majority of the Senate in favor of essentially abolishing the filibuster, and the majority in favor of passing this bill to end poll taxes and restore voting rights or give voting rights to Black Americans in the South. And once again, it wasn’t like the radicals pushing this. It was Henry Cabot Lodge, who is a scion of the Northeastern establishment, backed by Nelson Aldrich from Rhode Island, who is the senator who went on to establish the Federal Reserve. And it’s the two of them, it’s Aldrich and Lodge leading this effort to reform the Senate, because, once again, they just were appalled at the use of obstruction that was going on here.

RG: And you write about how they felt that they had won, and what’s so fascinating about Senate history is how so much can hinge on just a few very tactical blunders.

AJ: Yeah.

RG: Like on Friday, they locked it down. And then they went home to celebrate.

AJ: Yeah.

RG: While the obstructionists organized, rushed back, basically called a vote and the Cabot Lodge side wasn’t ready, and ends up snatching defeat from the jaws of victory.

AJ: Yeah. Like you said, the Friday before they had the votes, they started bragging about it, and they let some of their members leave town. And so the opponents realized that the reform side didn’t have the numbers physically present for a vote. And so they rushed to call a vote when they knew that the reformers wouldn’t be able to muster a majority, and they were able to scuttle the effort.

This is one of those moments in history where you really can sort of, hypotheticals are always hard, but you can sort of wonder what could have been different because, look, the history is that federal interventions to establish voting rights are generally successful. They were successful previous to this 1891 fight during Reconstruction, and they were successful after this fight, after 1964. When the federal government decides it wants to do this, it’s not perfect by any means, but it does effectively extend the right to vote to people who were denied it, especially Black Americans. And this was at a time when the Black population in the South was at 50 percent in some of these states. In Mississippi, the Black population was 50 percent. In Alabama, it was like 36 percent. In Georgia and the Carolinas it was about the same, in the sort of mid-30s. So you wonder how the course of American history would have been different if elected officials in the South had started having to cater to Black Americans as early as 1891. The George Wallaces and the segregationist senators who represented these states that had enormous Black populations, would they have ever been elected? How would Jim Crow have been affected? Could it have been ended earlier? And it’s not going out on a limb to say that if even a fraction of these enormous Black populations in these states have been able to vote as early as 1891 — if even a fraction of them had able to vote — Southern representation in the South might have looked very different in the decades that followed.

RG: And it’s important to put this moment in its historical context, too. And people who didn’t listen to our episode on the political history of Georgia can get more of that LINK back there. But this is a time period where there’s a genuine, multiracial populist movement going on, it’s called the Populist Party. And it starts out, led by this Georgian congressman named Tom Watson, as this effort to bring together former slaves and white, working class, poor whites in the South to say: Look, your common enemy is this person. They’re trying to keep you apart.

And so this project, there’s every reason to believe, would have been further fueled by allowing half of that coalition to actually vote. When it couldn’t vote, it descended into racist populism. And so you see the Democratic Party absorb all of the populist elements of that movement, but they also absorb the racism of it. They say, we’re going to do this populism vote, it’s going to be white populism. And you wind up with the Great Migration.

AJ: Right, and they start putting in statute, essentially, the wages of whiteness. I mean, it was because the segregationist, white supremacist senators were elected in states that had enormous Black populations, those senators were the ones who went on to ensure that Black Americans were cut out of the New Deal programs and continued to block anti-lynching legislation and other anti-poll tax legislation that continued to come over in the 1920s and 30s. And one thing I want to emphasize to your listeners is that this isn’t, like, pie-in-the-sky hypotheticals, these bills were passing the House by wide margins. Like, it wasn’t close.

You had broad consensus in favor of anti-poll tax bills, of anti-lynching legislation and even, starting the 1940s, legislation to end workplace discrimination. They passed the House by wide margins, they came over to the Senate, where they appeared to have the support of a majority of senators and they had presidents of both parties ready to sign them. So it was only because Southern senators, who represented these states with enormous Black populations that couldn’t vote, innovated new ways —

RG: I think you’ve conclusively demonstrated that there’s a unique relationship between racism, hostility to civil rights, white supremacy, and the rise of the filibuster.

But Madison, too, was a slave owner. So for people who say: OK, yes, I agree. It’s rooted in the racism of this country. But we’re a different country today, so that’s not an argument to get rid of the filibuster today. How would you respond to that counter-argument?

AJ: I would respond that the use of the filibuster is less explicit today. But what it continues to do is serve the same principle that John Calhoun sought to establish, which is to give minority faction veto power over what the diverse majority wants to do. And there is a structural imbalance in the way the filibuster distributes power that is still true today. Conservatives and reactionaries benefit far more from the ability to obstruct than progressives do. It’s just a fact of what the project of the two parties are on a basic philosophical level. There’s obviously some bad things that conservatives want to pass, but, on balance, they’re there to stop progress, to stop the expansion of the social safety net, to stop the expansion of civil rights, and to maintain the status quo.

RG: You write that the modern filibuster is, “quieter, and far more lethal” than the old kind. I think when people think of the filibuster today, they still think of the old “Mr. Smith Goes to Washington.”

James Stewart [playing Jefferson Smith in “Mr. Smith Goes to Washington”]: No sir, I will not yield.

RG: Or even Rand Paul, or Bernie Sanders on the Senate floor, just speaking forever. Ted Cruz —

Senator Ted Cruz: When Americans tried it, they discovered they did not like green eggs and ham and they did not like Obamacare, either. They did not like Obamacare in a box with a fox, in a house, or with a mouse.

RG: But what do you mean by the distinction between the old filibuster and today’s filibuster? How do we get there?

AJ: The main distinction is that you don’t have to do anything to implement the filibuster today — all you have to do is send an email, I should correct that. You do have to do one thing, which is to send an email. But you certainly don’t have to stand on the Senate floor. And you certainly don’t have to hold the floor for hours and hours. And then, on top of that, not only is it easier to use, it’s much more powerful because, in the old days, you had to go to the floor, and you had to hold the floor, speak at length, and physically occupy the floor to delay the bill. And even if you did all that, the best you could do was delay the bill for a certain amount of time. Eventually, you had to stop talking, right? Even if you coordinated with some allies, eventually this had to come to an end, for the simple reason that they were unable to raise the threshold for passage. The Senate was a majority-vote institution for the first 200 years of its existence, and so once the filibuster is, in the old days, stop talking, the bill would come up for a majority vote, and pass or fail on that basis.

Today, not only do you not have to talk, but what you can do by just sending that email is raise the number of votes that it takes to pass the bill from a simple majority to 60 votes. And we’ve come to accept this idea that things need 60 votes in the Senate as normal, but this is a very recent phenomenon. It didn’t used to be this way. Everything you think of when you think of Senate history in terms of the great legislation that it passed, like Medicare, Great Society, the Great Compromises of the Golden Age in the 19th century, all of these things passed in a Senate where you just needed a majority to pass bills.

RG: Even well into the Bush administration. You go back and look at votes, you see it passed 52-48. And you’re like, “What?”

AJ: Right. It started to become more common in the 70s and 80s, but it still was not considered normal, it was still considered exceptional for things to have to clear 60 votes. So the reason the filibuster today is both easier to use and more powerful is that all you got to do is to implement it is send an email — you never have to show your face, you never have to sit on the floor. And what you do by sending that email, it’s not just delay the bill, but actually block it altogether, because you’re raising the number of votes it takes to pass.

This happened before McConnell became Senate leader, but this is what set him up to be able to deploy it as a weapon of mass obstruction against President Obama, because all he had to do was make sure that one senator on his side sent that email, raising the objection to whatever Democrats are trying to do, and that one email raised the threshold for every piece of business the Senate was conducting from a simple majority up to 60 votes. And in our partisan, polarized era, it’s nearly impossible to get 60 votes for things. So he was able to block much of Obama’s agenda by doing this.

RG: The other main argument you hear — and you touched on this briefly — but the main argument you hear is, well, it’s going to come back to bite Democrats if they do this. And it’s certainly true that Democrats are trying to build things, Republicans are trying to block things. And so the balance of power when it comes to legislation, a 50-vote threshold, is toward Democrats. And so they would benefit more often than not.

But what if you say, OK, Republicans come in, and the first thing they do is they want to abolish all mail-in voting, or they want to do national voter ID — basically, they want to take everything they’ve learned about voter suppression for the last 20 years, things that have been stopped by courts before they held a supermajority on the Supreme Court, and jam it through on a party-line vote, and lock in a permanent minority status. What’s the argument for that? That they’re gonna do that no matter what.

AJ: Yeah, I mean, that’s part of it, is that if you’re hoping for forbearance from Mitch McConnell, or whoever would succeed him, who’s probably going to be even worse, than I think you’re pursuing a short-sighted strategy.

The idea that if we don’t get rid of it now, that it will be there for us when we need it, I think is wrong. I think that as soon as Republicans regain a trifecta, and have something they want to pass that can get 51 votes, but not 60, they’re going to immediately get rid of the filibuster. They didn’t do it under Trump on legislation because they didn’t want to have to pass a lot of the stuff Trump was trying to make them pass. They got their tax cuts through reconciliation, which is an end-run around the filibuster, so that passed the majority vote. They tried to repeal Obamacare, also on a majority vote; they did that through reconciliation, too, so the filibuster was no use to Democrats in trying to block it, they failed. After they got their tax cuts, they were happy. They nuked the filibuster for Supreme Court justices to get Gorsuch and Kavanaugh confirmed. So they got their tax cuts, they got their judges, they were happy.

I think that they will get rid of it the next time they’re in power. Our time in power we need to use to get as much done as we possibly can.

And the other thing that I think is important, this is a little fluffier, but it’s really hard to take things away once they’re in place. A friend of mine described progressive policies as a one-way ratchet. Once you ratchet it up a little bit, it’s really hard to get it down. It’s generally politically unpopular to do it; the politics of undoing Obamacare were horrendous, and that’s essentially what blocked Republicans from doing it.

So I don’t think Republicans look at that effort to repeal Obamacare, which took eight months out of political capital and just completely squandered it, and think that that’s a good thing to repeat.

RG: Right.

AJ: I think Democrats should use their power aggressively, pass things they want to pass, try to reform the system as much as they can while they have power, because Republicans are simply going to get rid of the filibuster and do whatever they want when they have power back.

RG: So in your chapter on the 1970s you talk a lot about North Carolina Senator Jesse Helms who presents a really interesting contradiction for senators who think of the filibuster as part of the essence of the Senate. You note that he was the Chamber’s master of the filibuster, but also that he’s not really honored anywhere in the building. And it’s not a high bar to get honored there. Calhoun has two portraits in prominent places. In fact, some of the photos of that insurrectionist running through the halls of Congress with the Confederate flag, you see Calhoun in the background of them. And so Calhoun gets honored, but not Jesse Helms, the master of the filibuster from the 70s. And so why is that?

AJ: Right. Dixiecrat Strom Thurmond, a contemporary of Helms, has a room named after him. Being a horrible racist — I mean, Richard Russell, who stated —

RG: Building.

AJ: Yeah, he’s got a building named after him. I mean, these guys were avowed white supremacists. They describe themselves as that in their own words, and they were honored. But Helms was not.

I think the reason is that what the other guys did, what Russell and Thurmond and Calhoun all did successfully, was they cloaked their white supremacy in the institutional myths and legends of the Senate. And Helms did not. Helms reveled in sort of tweaking the institution and sticking a thumb in the eye of its self-seriousness. And so I think it’s his failure to sort of engage in the self-mythologizing of the Senate that has caused him to be sort of erased from the institutional memory of the Chamber, because he really should be recognized, because he did more to change — and I’m not saying honored — he was a very bad senator who was personally racist, he filibustered the Martin Luther King, Jr. holiday in the 80s, many other things in addition to that, but he changed the Senate and influenced it more than any other senator of his era.

What he did was he pioneered what we would now associate with the Ted Cruz wing of the party of forcing politically difficult votes, and then taking those votes and feeding them into a grassroots fundraising machine. I think a lot of the emails that clog our inbox today can be traced back to Jesse Helms. He wasn’t doing it through email in the 1970s, he was doing it through it was called direct mail, which is literally mailing somebody a postcard and asking them to put $5 in cash in an envelope and send it back to you. He was the first senator to use this system. Richard Viguerie, who’s sort of a famous Republican consultant who worked for Goldwater and then Reagan, built the system for Helms, and Helms would take these votes and feed them into Viguerie’s system, and he would use this very dark, Gothic language, heavily laden with racism, to say liberals are taking over the country, they’re destroying America, Black radical activists like Jesse Jackson, are running the country, send us $5 immediately so that we can stop it.

And he raised so much money that he was, as an individual senator, on par as a fundraising powerhouse with the entire national Republican Party. And he used this influence to start handpicking senators in other races, the same way that you see the Tea Party movement doing today. And he became deeply influential both in the chamber of using these obstructionist tactics and forcing these bad votes, and in shaping our larger political system.

In that chapter, I talked about Ted Cruz sort of single-handedly forcing a government shutdown working with his colleagues in the House to do this in 2013. And I think that that sort of inside-outside strategy that they deployed was modeled on Jesse Helms.

RG: And so you were heavily involved with Reid’s decision to “go nuclear,” or what you guys were calling “the constitutional option,” back in 2013. Do you think it’s going to happen this time around? Do you see the same conditions in place to now remove the filibuster for legislation?

AJ: Yes, I do. I think it is going to happen. Unless there’s some spontaneous outburst of bipartisanship, which I don’t think is gonna happen. But I think it’s gonna happen for the same reason that it happened in 2013, which is that people look back and think that we had a bunch of senators clamoring for reform in 2013. That’s not the case. Most of the caucus was reluctant to do it. Reid himself was on the record being opposed to the nuclear option for years. And it took five years of Republican obstruction under Obama for them to come around.

I don’t think it’ll take that long this time, but the same conditions prevail, which is that senators are going to try to get stuff done through the other means with the filibuster in place, it’s not going to happen, and they’re going to face a choice between essentially giving up on their agenda, or reforming the filibuster to get things done. And I’m well aware of the statements that Senator Manchin and Senator Sinema and others have made.

Sen. Joe Manchin: I’m happy to start this process. But I’m not going to bust the Byrd rule; I’m not going to basically get rid of the filibuster. We are going to work in a bipartisan way.

AJ: But, [laughs] the same stuff was happening in 2013. You had many senators saying they would never do it. You had Reid saying he would never do it. And circumstances change. And I think that Manchin and Sinema, for better or for worse, I genuinely believe that they can sort of facilitate a return to bipartisanship. But I think we’re rapidly seeing that’s not going to happen.

And look: If this was about Medicare for All, or the Green New Deal, do I think that Manchin and Sinema would happily stand in the way? Absolutely. But what’s going to become evident over the coming months is that they’re not standing in the way of Medicare for All and the Green New Deal. They’re standing in the way of the Biden agenda. And the basic success or failure of the Biden administration.

Kyrsten Sinema’s Arizona colleague, Mark Kelly, is up for reelection again in 2022. If he wants to get reelected Democrats are gonna need to pass things and do more than they can do through reconciliation. So at the end of the day, I don’t think that Joe Manchin and Kristen Sinema are going to go to Mark Kelly and every other Democrat who’s up in 2022, and to Joe Biden and say: Sorry, we just have to sit here and stare at each other and not get anything done for two years, because we have this deep commitment to this Jim Crow relic. I just don’t think that that’s going to happen. It will take time for those conditions to build, but not that long. I think we’re talking a matter of months before the pressure gets intense.

RG: Right. Timeline is really important here, because my understanding is that for H.R.1 and S.1 to be able to go into effect — this is the For the People Act we’ve talked about before — for the 2022 election, to get in the way of some of the gerrymandering efforts that are going to be flowing once all of the census numbers are out, it kind of needs to be done by say, April. It needs to be enacted into law. April is not a hard deadline, but you can’t do it, obviously, in the summer of 2022, and expect it to be implemented in time for the next election.

So do you think the timeline around the filibuster and the timeline for the necessity of that reform law is going to line up?

AJ: I hope so. I think in the sort of lifecycle of Congress, the summer is sort of the unofficial deadline for this stuff. I think that enough people have memories of the summer of 2009 of going home for the Congress’s month-long August recess in the summer of 2009, with Obamacare unfinished, and having the Tea Party rise up out of nowhere and just completely change the political dynamics and basically destroy all the of the Democrat’s political capital that they could never really claw back.

So I think that we’re going to go through the reconciliation process in the next few weeks and months. That’s good. I’m glad they’re doing that. I have reservations about the process, but it’s fine to use as a stopgap. But I think that fewer things will get done in reconciliation than people expect — I think a lot of things will not comply with its very restrictive rules — so once you’re done with reconciliation, say, end of March, April, something like that, you’re going to be staring at a pile of stuff that has to get done. Must pass bills — maybe not for Joe Manchin, like maybe Manchin doesn’t care, if D.C. statehood or civil rights bills don’t pass, but Biden cares. Biden cannot let these things go. And so by late spring, early summer, you’re going to have a pile of must-pass legislation that’s not going anywhere. And senators are going to face a choice between reforming the rules, and giving up essentially, on the Biden administration a few months in.

And look, like I said, if what was at stake here were sort of lefty priorities, which I personally believe in, I wouldn’t have much faith that they’re going to do it. But because it’s the basic success of the Biden administration, I think they’re gonna have to do it. And once that starts to come into view, and the necessity of getting it done to pass anything starts to sort of settle in with senators, then you sort of enter this phase where there’s a YOLO aspect to it, which is like, if we’re gonna do it, do it, and then pass a ton of stuff, and pass the stuff that’s really going to matter when it comes to elections, and trying to tilt this playing field back closer to even instead of being dramatically favoring Republicans. So the political reality of it starts to set in, and I think the incentives take hold pretty strongly.

RG: We’ll see. The book is called “Kill Switch The Rise of the Modern Senate and the Crippling of American Democracy.” I’ve read a decent number of books by former Hill staff, and most of them are not any good.

AJ: [Laughs.] Well —

RG: And they’re useful for like tidbits that you can incorporate in pieces, or in my own book, but this is — it’s a very good and readable book.

AJ: Thanks, man. I appreciate that. Well, I was thinking about yours as I was writing it.

RG: Oh well, there you go.

AJ: So I wanted it to be readable and fun like yours.

RG: Cool. Well, that’s nice of you to say. Adam Jentleson, thanks for joining us on Deconstructed.

AJ: Thanks, Ryan. It’s great to be here.

[Credits music.]

RG: That was Adam Jentleson, and that’s our show.

Deconstructed is a production of First Look Media and The Intercept. Our producer is Zach Young. The show was mixed by Bryan Pugh. Our theme music was composed by Bart Warshaw. Betsy Reed is The Intercept’s editor in chief.

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