A new impeachment, a new administration, new policy initiatives — and it’s all under new management. All part of today’s United States Senate. The body that George Washington once called a “cooling saucer” has today become a political graveyard.
But how did things get this bad? In this week’s WhoWhatWhy podcast, we talk with Adam Jentleson, former deputy chief of staff to onetime Senate Majority Leader Harry Reid. Jentleson is the author of Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.
Jentleson understands the working of the Senate at its most granular. He lays bare the history of the filibuster and supermajorities, and explains why, like most things that have gone wrong in our governing structure, race lies at the heart of the Senate’s deep dysfunction.
According to Jentleson, the modern Senate went astray in 1964 and has gotten worse ever since. He talks about its structural imbalance with respect to the nation’s population, the corrosive role of money, its three-day work week, its aging members, its arcane rules — and why the founders never intended the majority leader of the Senate to have so much power.
Our conversation with Jentleson is both a primer on the Senate and a peek at what the coming months may hold for our bruised and battered country.
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|Jeff Schechtman:||Welcome to the WhoWhatWhy podcast. I’m your host, Jeff Schechtman. This week as in many weeks passed, the nation turns its lonely eyes to the United States Senate. Not just with respect to the impeachment trial of Donald Trump, but to the confirmation of Joe Biden’s cabinet and a host of policy initiatives that will be put forth by a new administration. It’s one of the ironies of modern politics that as we worry about the increasing power of executive orders and what some have called the imperial presidency, the United States Senate has essentially ceded power by nature of its arcane rules, of its obstructionism, its insistence on a super majority, its structural inconsistency with the nation’s demography, and its completely sacrificing its role as the deliberative body our founders intended. What George Washington imagined as a body to act as a cooling saucer for political passions has instead become a political graveyard.|
|Jeff Schechtman:||Is there any hope for the institution even under new management in the coming two years? We’re going to discuss that today with a man who knows the Senate well. He is Adam Jentleson. He’s the former deputy chief of staff for a long time Senator and Senate majority leader, Harry Reid. He’s a columnist for GQ, a frequent political commentator on television, and the author of Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy. Adam Jentleson, thanks so much for joining us here on the WhoWhatWhy podcast.|
|Adam Jentleson:||Thanks. It’s great to be here.|
|Jeff Schechtman:||It’s great to have you here. When we talk about the modern Senate, the problems that the Senate phases today, which we’ll talk about, is there a tipping point when this happened? Is there an inflection point that we can look to where things changed?|
|Adam Jentleson:||Yes. There are trends that start way back in the middle of the 19th century with John Calhoun. The tipping point that I would point to in more modern times when the Senate really started to become the paralyzed institution it is today is actually somewhat unexpected. I would point to 1964, when for the first time in what was a very good thing, Lyndon Johnson working with both Democrats and Republicans in the Senate broke for the first time a Southern filibuster against civil rights bills. Southerners had succeeded in filibustering every civil rights bill that had come before the Senate from the 87 years from the end of reconstruction, 1877, all the way up to 1964.|
|Adam Jentleson:||So this was a great thing that finally this filibuster was broken. But something very unexpected happened after that. Most people, observers at the time, expected that the filibuster would start to be used less frequently after this defeat. But unexpectedly, the opposite started to happen. Because the filibuster lost its association with the segregationist cost, and because other senators who had other pet issues had seen how powerful it was in the hands of the South against civil rights, senators started to experiment with the filibuster on their own pet issues, things completely unrelated to civil rights. And this started a trend that has culminated today where the filibuster started to come into regular use.|
|Adam Jentleson:||Back in the 60s, it was used maybe once or twice a session, per two year session of Congress. And at that time, almost always only against civil rights. After 1964, the filibuster started to become used on every issue, it became commonplace. And then a series of reforms happen over the succeeding decades it also made it much easier to use.|
|Adam Jentleson:||And so these two trends combined, both of which can be dated to 1964 have created the Senate we know today where the filibuster is applied to virtually every bill that comes to the floor, and it is not the talking filibuster that we know and associate with Jimmy Stewart in Mr. Smith Goes to Washington. It is a silent filibuster that doesn’t require senators to talk. It doesn’t require them to make their case in public view. There’s no transparency involved. But it’s even more powerful because what they’re able to do is raise the threshold for passing any bill from a simple majority, which is where the framers set it and where it was for most of the Senate’s existence, up to the 60 votes that we’ve now come to accept as normal. But this was not normal, it is not the way it was supposed to be. As I argue in the book, it’s time to change that.|
|Jeff Schechtman:||As this evolved, as it moved from 1964 when it was used and then use judiciously as you talk about, a few times and that a few more times, was there ever a significant pushback during that period? Anybody that would come forth and say, this is where we’re heading, anybody that could see around the corners that would lead to what we face today?|
|Adam Jentleson:||Yes, there was. Something you see in the history of the Senate, as I trace in the book, is there were always people who were standing up and then waving their arms figuratively at least, that’s not typically something that’s done on the Senate floor, but verbally trying to signal to the Senate and to the world that they were headed in a bad direction. This goes all the way back to Henry Clay, regarded as one of the leading lights of the Senate, the great compromiser from Kentucky, who when John Calhoun started to innovate the filibuster in the 1830s and 40s, Henry Clay stood up and said, no, this is a very bad thing, we have to stop it, and tried to stop it.|
|Adam Jentleson:||So, you did see that after 1964 as well, where you had reformers, Senator Robert Byrd, when he was Senate leader, Senator Ted Kennedy, folks on the Republican side too, it wasn’t just Democrats, it was a bipartisan effort, stood up and said, we are headed in the bad direction, we are headed towards paralysis. Some of those efforts resulted in limited changes, but those changes really didn’t have effect on the overall direction of the Senate. One of the other trends that you have seen consistently is that reform is very hard, and it’s an abstract concept. The issue usually comes up when there’s a hot and heavy debate about a particular issue. And what tends to happen is reformers say, we need reform. Opponents say, are able to maneuver them into choosing between whatever the bill itself on the floor is and the more abstract goal of reform, and reformers generally concede the reform cause and choose to take the substantive issue.|
|Adam Jentleson:||This is what happened with Clay in Calhoun. Clay was advancing a bank bill, Calhoun filibustered it. Clay tried to enact reform, Calhoun maneuvered clay into saying, okay, you have a choice between the bank bill that you want so desperately and reform, and Clay chose the bank bill. So it’s very hard to, to get enough momentum behind reform. But I think that things have gotten so bad today that it is necessary, and you might see more of a movement to change.|
|Jeff Schechtman:||To what extent is there a nexus between the kind of zero sum game negative partisanship that we see today and this reality of the Senate? Is one the cause or the effect?|
|Adam Jentleson:||Well, that’s a really good question. If I had to choose, I would say that partisanship and polarization are the cause, because on principle, there’s nothing wrong with requiring 60 votes, which of course, the Senate is 100 member body so 60 votes is a super majority. It’s a three fifths majority. So there’s nothing on principle wrong with that idea. And intuitively, you would just think, well, that means that Republicans and Democrats have to work together to get anything done.|
|Adam Jentleson:||But the problem is, where that goes off the rails and doesn’t prove to be the reality, is that what that super majority threshold also does is it gives the party that’s in the minority the ability to block anything that the party in power wants to do. And so, if this 60 vote threshold existed as it did for a while in a less partisan environment, it would actually have the effect of creating compromise. It did, for a few decades after 1964, it sort of had that effect, when things were less polarized. But things have become extremely polarized just in the last decade or so. And so, in that polarized environment, it had the effect of killing off compromise because it gives the party out of power a massive political incentive. All they have to do is refuse to cooperate and they can make the party in power look bad.|
|Adam Jentleson:||The other factor at play here is that in this polarized environment, control of the Senate often hinges on just a few seats. There’s no better example of that than the Senate right now, which is divided straight down the middle. So what that does, again, you might think that means, oh, they’re relatively evenly represented, they might compromise with each other. The reality is, Republicans who know they are only one or two seats away from regaining the majority in the very next midterm elections in 2022, they have an incentive to make the party in power look bad, to manufacture gridlock so that when the voters get angry that the party in power isn’t delivering anything, Republicans can ride that to take back just the one or two seats that they need to regain majority control of the Senate.|
|Adam Jentleson:||So there’re very perverse dynamics at play here, but I would say that most of those dynamics stem from the polarized environment we live in.|
|Jeff Schechtman:||The other thing that lies at a core of this is the structural imbalance in the Senate.|
|Adam Jentleson:||Yes, yes. And so, this dates to its very inception, where every state was given equal representation. So you have a situation where Wyoming, which has about 600,000 people, has the same number of senators as California, which has about 39 million people. So that means Wyoming’s senators have 70 times the voting power of California senators.|
|Adam Jentleson:||This is very interesting because this was a very controversial topic at the time of the constitutional convention in 1787. And Madison is sort of widely regarded as the founder, as the framer chiefly responsible for designing the Senate, ardently opposed the idea of giving States equal representation. He almost walked out of the convention over it. And when it came to a vote, it almost didn’t pass. It passed ironically by the barest of majorities, by one vote.|
|Adam Jentleson:||Madison at the time railed against it. He said, this would lead to injustice, his words. And this was at a time when the discrepancy, Virginia was the most populous state at the time and Delaware was the least populous. Virginia was about 10 times bigger than Delaware. So, on the basis of that discrepancy, Madison thought this was a massive injustice. He would be appalled now today when you have the biggest state being 70 times the size of the smallest state. But yes, this is a baked in structural imbalance that gives much more power to rural predominantly white conservative states.|
|Jeff Schechtman:||When you layer on all the things that we’ve been talking about, Adam, the structural imbalance, the filibuster, how pervasive it’s become, and then add on top of that, the arcane rules of the Senate as they’ve evolved, it seems that it’s almost impossible to dig out from so many layers.|
|Adam Jentleson:||Yes, it can be very disheartening [inaudible] not an uplifting history. [inaudible] this is so depressing. But I think it’s necessary. I do think it is essential for people to understand because people are generally dissatisfied with the state of our politics today on both ends of the spectrum. And the Senate is essential to understanding how we got here. It is I think one of the least well understood parts of it, but it is one of the most important. So I think it’s essential to learn.|
|Adam Jentleson:||The good news is that, as I lay out in the book, the path to fixing it is not that hard. Some problems you face, you can get this [inaudible] say, oh, this is going to take a constitutional amendment, this is going to take fundamental structural change in our society. And that is all possible. But in the Senate, all you need to change the way the institution works is a majority of senators. The irony of the fact that it is a super majority threshold of 60 votes that is paralyzing the Senate is that you could do away with that threshold with just a majority of senators.|
|Adam Jentleson:||So, the reason for optimism is that all you need is a reasonable plan and 50-51 votes. So if Democrats decide that Senate reform is essential, as I hope they will, because I think that they’re quickly going to face a situation where Republicans for the reason we’ve talked about are going to block most of what president Biden wants to do. So Democrats will be faced with a choice between delivering on their promises or basically giving up in deference to these rules that are rooted in racism and white supremacy. So I hope that they will choose the path of reform and put delivering results over deference to these antiquated and disruptive rules.|
|Jeff Schechtman:||This is always referred to as the nuclear option. And this is something that your former boss, Harry Reid, was very familiar with.|
|Adam Jentleson:||Sure. So the nuclear option is a very dramatic phrase. People date the coinage, there was a William Sapphire column dating the coinage to Trent Lott, the former Republican Senate leader from Mississippi. And this was around the time, around 2004, 2005, when the Bush administration was actually pushing to deploy what then became known as a nuclear option in order to confirm their judges, one of whom, by the way, was Brett Kavanaugh to a district circuit court appointment. So, there’s some history there.|
|Adam Jentleson:||The reason they call it the nuclear option is that, for reasons I explained in the book, in the middle of the 20th century, it became written into Senate rules as part of a power play by conservatives, conservatives at the time were Democrats, that you needed a super majority to change the rules. This was because this ability to impose the filibuster was such a high priority for segregationist senators, again, who were Democrats at the time, that they sort of tried to put the ability to reform the rule out of reach. Again, not a foundational feature of the Senate, but something that was written in as part of a power play by the South. They tried to make it impossible basically to change the rules by requiring two thirds. The rule that requires thirds was protected by a rule requiring two thirds.|
|Adam Jentleson:||So, after that, what senators did is they started forging ways to change the rules by a simple majority. Both sides, Republicans and Democrats, have argued persuasively that this is in keeping with the intent of the Senate. The Senate is designed as an evolving body, it’s designed to be deferential to the wisdom of itself, and that wisdom is represented by a majority. So basically, whatever a majority of senators want to do, if they want to change their rules, they are allowed to do it.|
|Adam Jentleson:||So Senator Reid, as you mentioned, in 2013, firmly established this precedent when he changed the rules to lower the threshold for confirming nominees, most nominees, it excluded Supreme court nominees. He took away the super majority threshold for that category of Senate business. Then Senator McConnell affirmed the precedent in 2017 when he used the same approach to then lower the threshold for Supreme court nominees as well, that was during the confirmation fight over Neil Gorsuch.|
|Adam Jentleson:||So, it took some time, but it is now firmly established that when the Senate decides to change its rules by a simple majority, it can do so. And that applies to basically any kind of rule change that the Senate might contemplate.|
|Jeff Schechtman:||What’s the incentive for that rule change at this point? I mean, for either side, for fear, what will happen when the other side has power, of course.|
|Adam Jentleson:||Yeah. And that’s certainly a legitimate fear. I started writing this book when Republicans controlled the Senate. I can say that I would make this argument regardless of who is in control, it just happens to becoming a week after Democrats take control, not bad timing for the book, but I’ve been working on this for years. I would argue that it is not a fear that should stop folks from carrying through with reform. Part of politics is that when you win power, you should be able to pass your agenda. You should seek input from the other side, you should invite them to participate in the process. But fundamentally, the role of being empowered is to use the policy process to meet the challenges that we face. While we may be afraid of what the other side would do, Americans lose out if their lawmakers don’t pass policies to meet the massive challenges that we face today.|
|Adam Jentleson:||So I think the responsibility to come forward and pass policy solutions to things like climate change, to things like income inequality, to fixing our broken immigration system, we have to do these things. And if doing them requires reforming the Senate rules, I think that we should do that. If Republicans come back into power and they want to use it, that is the way our politics works, the pendulum swing back and forth. But I think what we’ve gotten into is a situation where we’re so paralyzed that we can’t operate at all. We’re the richest country in the world, we’re the most powerful country in the world, but we have a federal government that seems incapable of addressing the most basic solutions we face. And I think that is the driving challenge and I think that is why reform is necessary.|
|Jeff Schechtman:||Another part of this, which is kind of cliched at this point in political dialogue or any place else, but which has some basis in the founding, which is that the Senate as a deliberative process, as a deliberative body, has completely gone in the current framework.|
|Adam Jentleson:||That’s exactly right. It was a well-intentioned idea that this requirement of a super majority would create more deliberation, but it’s just not what happens in reality. It gives the minority the ability to just sit on the sidelines. I would point to the fact that the Senate, for most of its existence, all the way up until the post-1964 era, it was a majority rule body that entire time. And this includes the greatest eras in Senate history, the golden age in the 1800s, the great compromises of Henry Clay, of Daniel Webster, of John Calhoun. It was a majority rule body then. And so, these things we celebrate and we teach to our kids as the era of great compromising, that was when the Senate was a majority rule body.|
|Adam Jentleson:||The reason for this, and it’s something that political scientists have examined in great detail is essentially that when nothing is moving, there can’t be any bipartisanship. You have to have, the gears of government, the gears of legislating, have to turn. And once they turn, they create more incentives for people to get things done. I mean, you have generations of senators who’ve been in the Senate now coming on five or 10 years who’ve never been involved in a major piece of legislation because the Senate simply has not worked while they’ve been there. This is not blaming them. They’ve been operating in an institution that is paralyzed. You don’t have any action at all in a situation like this.|
|Adam Jentleson:||So, I would argue that, by lowering the threshold, you would actually start to see more bipartisanship because you take away the minority’s ability to just block things. Once that option is off the table, they are faced with the choice of either working across the aisle and getting things done so they can go home and tell their constituents they’re delivering, or they sit on the sidelines and do nothing. They may still choose to sit on the sidelines, but at least the gears will start to turn and things will start to get done.|
|Jeff Schechtman:||How much of it has to do with, and this is a chicken and the egg issue as well, has to do with the nature of the contemporary members that are elected to the Senate? Given the way it has operated and given how expensive it’s become as another aspect of it, and the nature of those that are elected to it, which in some ways foster some of these problems we’ve been talking about.|
|Adam Jentleson:||Yeah, that’s absolutely right. You can look back at the Gingrich revolution in the house in 1994, which many would sort of point to as the advent of our current hardball political era. And a lot of those senators came up through the house of that time. I think a lot of them who were too young to have been in the Gingrich house still look to that as the model. You have senators like Ted Cruz who immediately rose to national fame, previously in the Senate, freshmen senators were expected to be seen and not heard and to spend years working quietly before they would even propose a bill or anything like that. They were expected to wait maybe a year before even giving a speech on the Senate floor. Ted Cruz arrived and immediately within one year of being in office, led a fight to defund Obamacare and shut down, successfully shut down the government in 2013.|
|Adam Jentleson:||This combative style has absolutely changed the nature of the institution, but it’s our overall partisan political environment that rewards it. Ted Cruz raised an enormous amount of money, he gained national fame, I’m not saying these are good things, but we have to face these realities, and then he went on to come in second in the race for the Republican nomination, all within his first term as a Senator. In an environment that rewards that kind of political brawling, we have to refocus and say, what can we do to make it easier to pass legislation because right now, all of the incentives point senators in the opposite direction, in the direction of obstruction and in the direction of trying to do everything they can to make the other side look bad.|
|Jeff Schechtman:||This may seem trite but it sometimes seems like it’s part of it, which is the almost lack of work ethic that goes on. I think that if most of the people listening to us had the opportunity for a three-day week, they’d jump at it, but in the Senate, it’s de rigueur.|
|Adam Jentleson:||No, you’re right. A standard work week in the Senate is, you come in and we convene around 2:00 PM on a Monday. They often have what they call bed check votes, which is some kind of vote Monday evening just to make sure that senators are back in town by Monday, because if they didn’t have that vote, senators wouldn’t come back to town until Tuesday. So then you’ve got full work days, Tuesday and Wednesday. But then often Thursday turns into a half day, usually, it turns into a half day. And the Senate adjourns some time around two in the afternoon, and senators are gone, they call it jet fumes, senators start smelling jet fumes and head to a national airport, which is like a 20 minute drive from the Capitol. Many of them are on planes by four o’clock in the afternoon headed home.|
|Adam Jentleson:||The one thing I would say, not necessarily in their defense, but as recognition of the reality is, as you’ve mentioned, raising money has become an enormous part of any senator’s job. The average Senate race today costs north of $10 million to run. So, they spend, some estimates peg it somewhere close to 70% of their time fundraising. This is obviously not a good thing. There are signs of the rise of grassroots donations. One of the huge benefits of those is that you don’t have to spend time at a fundraiser to do it. Money just comes in and I think that’s a positive. But that doesn’t work for everybody.|
|Adam Jentleson:||Another sort of environmental consideration here in terms of the environment they’re operating in is that the requirements that we’re putting on them as a country, and the Supreme court in a lot of ways has put on them with its recent decisions like campaign finance, causes them to simply have to spend most of their time legislating. But the effect of that is that they’re not in Washington very often, they’re not getting to know each other. They’re on the Senate floor very rarely, they come maybe a few times a week right when a vote is scheduled. They walk onto the floor, they cast their vote and they walk off. Maybe they give a speech or two during the week. But if they do, it’s a scripted speech that was written by a staff member. Often the senators are reading the words, they’re seeing the words for the first time as they read them aloud. The floor has become a place where business is conducted in a very perfunctory way, but it has lost all of its deliberative quality. That’s the sad reality of our system right now.|
|Jeff Schechtman:||What role does age play? A lot has been written lately about the aging of the Senate.|
|Adam Jentleson:||This has always been a factor. It’s always had a reputation and often been derided by cartoonists through the eras as a hangout for older folks. There is a value in seniority. I’m not someone who favors term limits because I think that there is value in having people get to know the institution. Another sort of unexpected consequence sort of thing is that term limits actually increase the incentive for lawmaker to come in, get really friendly with an industry or two, and then use their term to do favors for that industry because they only have one from an office, so that when they come out of office, they’ll go get appointed to corporate boards and stuff in that industry. If we were to pass public financing of elections, maybe term limits wouldn’t make more sense. But right now the incentive if you had one term would be to just cozy up to an industry and then bolt to that industry afterwards.|
|Adam Jentleson:||There does come a time when it is probably the wiser course of action for senators to leave. One of the things I write about in the book is trying to revitalize the primary system. I think it’s healthy for parties to have open primaries. I think senators who are incumbents should have to make the case for why they deserve to stay in office. I think that what we have now is a system where these very powerful campaign committees, they’re essentially run as extensions of the office of the Senate leader of either party, pick and choose favorites. And as I mentioned, this $10 million threshold, these powerful committees help people raise that amount of money. They pick favorites by plugging people into fundraising networks, helping them find consultants and stuff like that. I think we should end that system. You have six years in office, establish a record, then go back to the people of your state and explain why you deserve to stay in office.|
|Adam Jentleson:||So I think that age is certainly a factor. Maybe there should be age limits, that would be something that I think would make more sense than term limits. But I also think that reviving the primary process, so that even within your own party, before you get to the general election, you have to make the case for why you deserve to stay in office would also be [inaudible]|
|Jeff Schechtman:||And finally, talk a little bit about leadership and how important that has been, and the way leaders, whether it’s Mitch McConnell now, your boss, Harry Reid, or others in the past have really shaped what’s happened to the Senate.|
|Adam Jentleson:||Absolutely. So this is another fascinating trend. So, the Senate was created as a leaderless body. The house was not created that way. The speaker of the house is created by the constitution, and by house rules, they’re given enormous power. The Senate was the opposite. There were not supposed to be leaders. And for most of its existence, there weren’t party leaders. The position of majority and minority leader that we take for granted today wasn’t created until the 1920s. And even when it was created, these were clerical jobs. They weren’t supposed to have any power at all. They were just supposed to sort of help keep track of the business of the party within the chamber.|
|Adam Jentleson:||So the person who breathed life or power into this position was Lyndon Johnson in the 1950s. He acquired the position relatively early in his career during his first term as a Senator, he acquired it with the backing of a man who at the time was the most powerful Senator in the Senate, a man named Richard Russell of Georgia. He used that power to create this sort of top-down control that we recognize today. But this is something that Harry Reid, when he was there, amplified and deployed much more than his predecessors. And it’s something that Mitch McConnell uses today.|
|Jeff Schechtman:||Adam Jentleson, the book is Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy. Adam, I thank you so much for spending time with us.|
|Adam Jentleson:||It was great to be here, Jeff. I really appreciate it.|
|Jeff Schechtman:||Thank you. And thank you for listening and for joining us here on Radio WhoWhatWhy. I hope you join us next week for another Radio WhoWhatWhy podcast. I’m Jeff Schechtman. If you liked this podcast, please feel free to share and help others find it by rating and reviewing it on iTunes. You can also support this podcast and all the work we do by going to whowhatwhy.org/donate.|
Related front page panorama photo credit: Adapted by WhoWhatWhy from Greater Louisville Medical Society / Flickr (CC BY 2.0), Julian Vannerson or Montgomery P. Simons / Wikimedia, Thomas J. O’Halloran / Library of Congress, and US Senate / Wikimedia.
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