'Kill Switch' Review: When 51 Votes Aren't Enough

S E E D E D   C O N T E N T

One thing Americans can probably agree on right now is that Americans don't agree on much of anything. The divisions are reflected in a Senate split between 50 Republicans and 50 Democrats. This might seem like a moment for modesty, but one of the new Senate's first debates was whether Democrats should move to end the filibuster and push their agenda through on a simple majority. (Vice President Kamala Harris breaks ties.) The filibuster rule appears to have received a stay of execution: Two Democrats have indicated that they won't lend the votes needed to abolish it.

But the debate will return. Progressives have launched a sustained assault on the filibuster as a racist anachronism that allows a minority of senators to hijack the will of the American public by holding up legislation until a supermajority of 60 votes can be mustered to end debate. That is the thesis of Adam Jentleson's "Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy." The Senate, he writes, "has become a kill switch" that "shuts down our democratic process." But his account of "the problems facing the Senate and, by extension, the nation" is backward: Many of the Senate's dysfunctions are downstream from the country's divisions. The filibuster is a convenient villain for larger progressive frustration with constitutional government.

Mr. Jentleson presents his argument in two parts. The first traces the history of the filibuster. The tactic is nowhere in the Constitution, he observes, and first emerged in the 19th century. In 1917, amid a fight over isolationism, the Senate adopted Rule XXII. It allowed senators "to call a vote to end debate—to tell the kids to wrap it up," Mr. Jentleson writes, a process known as "cloture."

He concedes that filibusters have "sometimes been deployed by liberals and progressives, and occasionally to historic effect" but have "mainly served to empower a minority of predominantly white conservatives to override our democratic system when they found themselves outnumbered." He brings out the bazooka, calling Mitch McConnell one of the "modern acolytes" of slavery-defender John C. Calhoun. It is true that the filibuster allowed Southern Democrats to stall civil-rights legislation. It is also true that filibusters are now a commonplace of Senate life and are often used for tactical advantage at the expense of substance. But such uses are bipartisan. Democrats last year wouldn't let debate begin on a police-reform bill by Republican Sen. Tim Scott of South Carolina.

Not so long ago, Democrats liked the filibuster. The practice is part of "the constitutional principles of checks and balances," then-Sen. Harry Reid said in 2005, when filibustering George W. Bush's judicial nominees was in vogue. Mr. Jentleson is a former aide to Mr. Reid, who as majority leader routinely shut down the Senate from taking votes of any consequence. You might say he ran the place with a kill switch.

The book’s second half is a tendentious rehash of recent political history. The “sheer scale of Republican obstruction,” we are told, forced Mr. Reid to abolish the 60-vote threshold on most judicial nominees in 2013. Every difference of political principle or philosophy is reduced to intransigence; Mr. Jentleson is particularly exercised by the GOP’s “completely unprecedented” decision not to confirm Merrick Garland to the Supreme Court in 2016. Mr. McConnell, then majority leader, made a political gamble, and voters might have punished the GOP for the obstruction. It didn’t happen.

That’s another bug of the system: Mr. Jentleson contends that Republicans are the minority even when they’re the majority. “In the twenty-first century,” he complains, “Senate Republicans have represented a minority of the population every year, despite holding as many as fifty-five seats, as they did from 2005 to 2006.” That should dispense with the pretense that any of this is about restoring a Founding vision of vigorous debate. Abolishing the filibuster is merely firing up the steamroller to flatten a constitutional system that favors restraint in governing an enormous and diverse country.

Elsewhere Mr. Jentleson laments that a 2005 arrangement that saved the filibuster wasn’t worth it, in part because in 2006 it failed to stop the appellate nomination of “a partisan operative with no judicial experience” named Brett Kavanaugh. The irony is that Mr. McConnell could put that “operative” on the Supreme Court with a simple majority because Mr. Reid had nuked the filibuster for most judicial nominees. (Mr. McConnell finished the job, extending the rule to Supreme Court nominees.)

Mr. Jentleson’s prescription is a “majority rule” Senate. What if narrow majorities pass and then repeal radical alterations to American life every few years? He shrugs. The filibuster “benefits conservatives far more than progressives, and it is not close,” because Democrats want to pass climate-change or gun-control bills and conservatives only want to stop stuff.

Yet a 2017 Republican Senate, unbound by the 60-vote threshold, almost certainly would have succeeded in repealing the Affordable Care Act. The confines of what could be included in a filibuster-proof “budget reconciliation” helped doom the effort. Some Republicans pondered eliminating the filibuster. I assume Mr. Jentleson didn’t cheer them on.

He is right that any “senator who has put in the time and effort to write a piece of legislation should have a reasonable shot at getting a vote on it as an amendment,” even if Mr. Jentleson’s boss didn’t follow that dictum while in office. Then again, the filibuster gives leverage to members trying to get a floor vote on an amendment; in the House, minority members have zero influence. It would also be welcome if senators “actually debate,” as Mr. Jentleson says. But marathon talking filibusters dwindled because the majority party has to keep a quorum near the floor.

How else to make the Senate work again? Wait—make the District of Columbia a state? “Frankly,” Mr. Jentleson writes, “there is simply no viable argument against it.” Readers can be forgiven for wondering what this transparent effort to pad Democratic majorities has to do with the proper functioning of the Senate. Maybe Mr. McConnell had a point in 2010. “I submit that the effort to change the rules is not about democracy,” he remarked. “It is not about doing what a majority of the American people want. It is about power.”