A former insider explains how the senate became a threat to American democracy

President Joe Biden has promised swift action on the pandemic, the economic crisis and more, but much of his agenda hinges on whether he can get enough support in the Senate, where an unprecedented number of bills in recent years has required a 60-vote supermajority in order to overcome filibusters. Many progressives and civil rights groups have urged Democratic leaders to kill the filibuster, warning that if they don't, Senate Republicans will obstruct Biden's plans just as they did with the Obama administration. Former Senate aide Adam Jentleson, author of the new book "Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy," says the filibuster has historically been used to stop racial progress and thwart majority opinion. "The framers … did not want the filibuster to exist," he says. "When they created the Senate, it was an institution that had no filibuster power. It was designed to be a majority-rule body."

Transcript

This is a rush transcript. Copy may not be in its final form.

AMY GOODMAN: This is Democracy Now! The Quarantine Report. I'm Amy Goodman.

Democratic lawmakers are moving ahead with plans to hold an impeachment trial of former President Trump for inciting the deadly January 6th insurrection at the U.S. Capitol. House impeachment managers are walking the single article of impeachment to the Senate today. The Senate trial will begin the week of February 8th. Senate Majority Leader Chuck Schumer spoke Friday.

MAJORITY LEADER CHUCK SCHUMER: Now, as I mentioned, the Senate will also conduct a second impeachment trial for Donald Trump. I've been speaking to the Republican leader about the timing and duration of the trial. But, make no mistake, a trial will be held in the United States Senate, and there will be a vote on whether to convict the president.

AMY GOODMAN: As senators prepare for the impeachment trial, lawmakers are also debating how to move forward on President Biden's proposed $1.9 trillion COVID relief bill. The Senate is split 50-50, but the Democrats control the Senate, with Vice President Kamala Harris serving as a tiebreaking vote.

Schumer and former Senate Majority Leader Mitch McConnell are locked in negotiations over how the Senate will be run over the next two years. McConnell is pushing to preserve the filibuster, which allows any senator to block a bill's passage unless it's supported by 60 senators. Critics say the filibuster is a relic of the Jim Crow era that preserves minority rule. A group of civil rights and social justice groups are pushing Democrats to eliminate the filibuster to limit McConnell's power and give Biden a chance to enact his agenda.

On Sunday, Senator Bernie Sanders, who's the incoming Senate Budget Committee chair, appeared on CNN and promoted using a process known as reconciliation to quickly pass part of Biden's COVID relief plan.

SEN. BERNIE SANDERS: What we cannot do is wait weeks and weeks and months and months to go forward. We have got to act now. That is what the American people want. Now, as you know, reconciliation, which is a Senate rule, was used by the Republicans, under Trump, to pass massive tax breaks for the rich and large corporations. It was used as an attempt to repeal the Affordable Care Act. And what we are saying is, "You used it for that. That's fine. We're going to use reconciliation — that is, 50 votes in the Senate plus the vice president — to pass legislation desperately needed by working families in this country right now. You did it. We're going to do it. But we're going to do it to protect ordinary people, not just the rich and the powerful."

AMY GOODMAN: To talk more about the state of the Senate, we're joined by Adam Jentleson, the public affairs director at Democracy Forward, former deputy chief of staff to Democratic Senator Harry Reid of Nevada. Jentleson's new book is titled Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.

So, let's start with what's happening in the Senate right now. You say it's the most unequal body in the U.S. federal government. Explain why, and how that impacts everything from reconciliation to the filibuster.

ADAM JENTLESON: That's right. And thanks for having me here. It's great to join you today.

So, you know, the Senate was created to provide a counterbalance to the House, which was supposed to be — the House was supposed to be sort of the direct body that represented the people. And the Senate was always designed to provide sort of an elite counterweight. And it was designed to be a little bit anti-democratic, in its inception.

You know, in the House, apportionment is determined by population, so every district is about the same size, and every state has about the same number of House members proportional to their population, so the bigger states have a lot more representatives. California has many more representatives in the House than, say, Wyoming, which has one representative.

In the Senate, every state gets equal representation. So, Wyoming has two senators, and California has two senators. California's population is about 39 million people. Wyoming's population is about 600,000 people. So, by that proportionate representation, it actually creates a disproportionate voting power. So, every citizen in Wyoming has many more times the voting power than a citizen in California.

This was something that the framers were aware of when they created it, but some of them decried it at the time and said this is a big problem. Madison, who's often cited as the chief framer and constructor of the Senate, actually strongly opposed this kind of equal representation. And when I say "equal," I mean the same number of senators; the way it plays out is actually, you know, dramatically unequal representation for the actual voters. Madison, at the time, said that it would be a great source of — he used the word — "injustice" to give states equal representation. At the time that he called this an injustice, the biggest state was Virginia, and it was about 10 times as big as the smallest state, Delaware. Madison was right that it creates an injustice, but that injustice is several orders of magnitude bigger now than at the time. You know, Virginia was 10 times the size of Delaware in 1789. Today, California is about 70 times the size of Wyoming. So, it is an unequal body. The way this —

AMY GOODMAN: Seventy times the size. And for people who listen to this globally, each of them, because they're each a state, have two senators, have equal representation in the Senate.

ADAM JENTLESON: That's right. And because a lot of — and, you know, the way this plays out is that what that translates to is not just disproportionate representation geographically, but disproportionate presentation in terms of racial, ethnic, minority voting power. California, obviously, is an incredibly diverse state. Wyoming is an incredibly monolithic state demographically. But Wyoming has equal voting power to California. And this continues throughout, if you go down the chamber, because the general pattern is that the more rural states, the lower-population states, tend to be overwhelmingly white. And so, what that translates to in our modern era is a dramatically disproportionate amount of voting power to white conservatives in America.

AMY GOODMAN: So, take this to the history of the filibuster. I want to play just a clip of President Obama speaking about the filibuster at the funeral of the late Georgia Congressmember John Lewis.

PRESIDENT BARACK OBAMA: And if all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that's what we should do.

AMY GOODMAN: "Another Jim Crow relic," says Obama. You take this back, Adam, to slavery.

ADAM JENTLESON: That's right. And Obama is 100% right. He's been consistent on the filibuster. He's always wanted to get rid of it. In his new memoir, he says he wishes he had started his first administration by rallying Democrats to get rid of it, so that he could have passed more and bigger things. But, yes, he's absolutely right about the history.

The history, you know, it's important to understand that the framers, for all their own racism and slaveholding status, even they did not want the filibuster to exist. When they created the Senate, it was an institution that had no filibuster power. It was designed to be a majority-rule body. It was designed to discourage obstruction. They were very clear about this; this wasn't just sort of a coincidence or sort of a gray area. The reason they were clear about it was that they created the Constitution in the shadows of the Articles of Confederation, and the widespread view at the time was that the reason the Articles of Confederation failed was that its Congress required a supermajority threshold to pass most major legislation. And so, the framers saw that that had been a disaster, and they created a Senate that was majority rule.

And they wrote very clearly in The Federalist Papers, in their own correspondence and other sources that they believed that a minority, a numerical minority, in the Senate should not be given the power to obstruct what the majority wanted to do. By all means, the Senate was supposed to be deliberative. It was supposed to be thoughtful. It was supposed to take things a little slower than the House. But there was a certain point at which debate was considered to have run its course. And at that point, a majority was allowed to end debate, bring the bill up for a vote and pass or fail it on a majority vote.

What happened was, over the course of several decades, after all the framers had passed away, other senators did use some obstructive tactics over the early decades, but it was very rare. John C. Calhoun came along, the "Great Nullifier," senator from South Carolina, sort of a grandfather of the Confederacy, and he innovated some of the tactics that became known as the modern filibuster. And he did it for the express purpose of increasing the power of the slaveholding class. What he saw at this time — this was around the 1830s and 1840s — was that slaveholders and slave states were becoming steadily outpowered in Congress. And so, he knew that if majority rule was allowed to continue, slavery was going to end. And they needed to — he felt a very compelling desire, from his perspective, to increase their power in the Senate.

And so, what he did was innovate what we would describe as the modern talking filibuster, the sort of Jimmy Stewart-style holding the floor, joining with allies, to delay a bill that he opposed, and, at the same time, doing it all in the service of this lofty principle of minority rights. And what he — the minority that he sought to protect was not a vulnerable population, by any means. It was the planter class, the slaveholders. And so, that was the origin of this essential principle of minority rights being tied to the filibuster. It was a desire to protect not a vulnerable minority, but the minority of the planter class against the march of progress, that Calhoun thought would progress under a majority-rule system.

AMY GOODMAN: So, take that to today and this battle over the filibuster in the Senate, the trajectory you see from slavery to Jim Crow to the new Biden administration and the Democratic majority, and what they're trying to do —

ADAM JENTLESON: Sure.

AMY GOODMAN: — whether we're talking about COVID relief or talking, for example, about impeachment.

ADAM JENTLESON: Sure. So, the key development in the history of the filibuster, from the time of Calhoun to now, is the transition from this talking filibuster, you know, the Jimmy Stewart-style holding the floor, into a supermajority threshold that can be applied to block any bill. And just to underscore, for the first 200 years of its existence or so, the Senate was majority rule. Even as the filibuster started to develop in Calhoun's time, all that senators could do was delay a bill. They had to talk on the floor, and eventually they had to give up. There was no ability to impose a supermajority threshold.

That didn't arise until after 1917, when the Senate put a rule on the books that, ironically, was designed to end filibusters. It implemented a supermajority threshold under the principle that after debate had gone for long enough, two-thirds of the body would be able to come together and say, "You know what? This is enough. Let's cut this off. Let's move to a final debate — a final vote on the bill."

It took a long time for this to happen, but Southern senators, in the Jim Crow era — and this gets back to what President Obama was talking about — started to reverse the purpose of that rule, and instead of using it to end debate, as it had been designed to do, started using it as a higher threshold for civil rights bills to have to clear. And it's important to underscore how transformative the power of racism was in this evolution. The only category —

AMY GOODMAN: And then, we just have a minute.

ADAM JENTLESON: Oh, OK.

AMY GOODMAN: We just have a minute, but I wanted to take this forward to what's happening now and play a clip of the incoming Senate Budget Committee chair, Bernie Sanders, speaking on CNN, defending his call for using reconciliation to pass the COVID relief bill, and then ask how that fits into this paradigm you're describing.

SEN. BERNIE SANDERS: And I criticized the Republicans, yeah, for using reconciliation to give tax breaks to billionaires, to create a situation where large, profitable corporations now pay zero in federal income taxes. Yes, I did criticize them for that. And if they want to criticize me for helping to feed children who are hungry, or senior citizens in this country who are isolated and alone and don't have enough food, they can criticize me. I think it's the appropriate step forward.

AMY GOODMAN: So, that is Bernie Sanders, yes, Senator Mittens, for those who have been following the, to say the least, viral meme of him wearing his Vermont mittens at the inauguration. But, Adam Jentleson, if you could end by talking about what this means for the COVID relief bill, who gets helped, and who doesn't?

ADAM JENTLESON: Sure. So, what Sanders has done is accurately identify a process called budget reconciliation, that is an end run around this supermajority threshold that I was describing. That threshold has gone, from the Jim Crow era, from being only applied to civil rights bills to today being applied to every bill. And this is the primary source of gridlock in the Senate.

As the budget chair, Sanders can use reconciliation to go around it. That can be used for the COVID relief bill. He's absolutely right about that. That may be where we go. It will enable us to pass COVID relief over the objections of Republicans and not have to clear a 60-vote threshold.

Long term, though, the filibuster will rear its head, because anything involving civil rights, democracy reforms or those types of reforms cannot go through reconciliation. Reconciliation is a restrictive process that has tight rules. They have to be budgetary items to conform with its rules. So, ultimately, we're going to have to face this question of the filibuster, if we want to do things like D.C. statehood, Puerto Rico statehood, any kind of civil rights expansions, automatic voter registration. All of that stuff can't go through reconciliation. If we don't reform the filibuster, it will die by the filibuster. So, that's where this issue will really come to a head for Democrats.

AMY GOODMAN: Well, Adam Jentleson, I want to thank you for being with us, public affairs director for Democracy Forward, former deputy chief of staff to the Democratic majority leader, Senator Harry Reid. His new book, Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.

Next up, as the number of U.S. COVID cases hits 25 million, we'll speak to the Reverend Barber about the challenges ahead. He gave the homily at the post-inaugural prayer breakfast. We'll talk about inequality. And what does unity really mean? Stay with us.