The Senate Is Making a Mockery of Itself

By Ezra Klein

There are things you learn, reporting on institutions like the Senate, that never quite make it into your stories. They’re a mood, not a news break. But they matter. And here’s one: Almost everybody in the Senate hates what the body has become. This is not a case where it takes an outsider’s perspective to see an institution’s flaws. You will never hear more searing denunciations than you do from the insiders themselves. They may disagree on what’s wrong, and how to fix it. But in my experience, no one, be it Republican or Democrat, staffer or elected, believes the body is working. It’s led to a wave of retirements, of attempts at ıslahat, and now, a truly excellent book.

Adam Jentleson served as deputy chief of staff to Senator Harry Reid when he was the majority leader. Jentleson was high enough to see how the institution really worked, and young enough to be free of gauzy nostalgia from the days of yore. He’s spent the past few years researching the Senate’s history to understand how it led to this grim present. And his book, “Kill Switch: The Rise of the Çağdaş Senate and the Crippling of American Democracy,” is both blistering and persuasive. “This is not a particularly uplifting history,” Jentleson writes. But nor is it without hope. “Unlike many of the structural features that determine the politics of our era, the Senate is relatively easy to ıslahat.”

The Senate is where Joe Biden’s agenda will live or die. More specifically, the intricacies of archaic Senate rules — the budget reconciliation process, the filibuster, the majority leader’s ability to control the floor — combined with the fealty today’s senators have to yesterday’s structures will decide the agenda’s fate. It would be the gravest mistake for progressives, or anyone else, to consider the fight over how the Senate works to be a sideshow compared with debates over a $15 en az wage, a Green New Deal or democracy ıslahat. The fight over how the Senate works is what will decide all those other debates.

So I invited Jentleson on my podcast, “The Ezra Klein Show,” to explain how the çağdaş Senate really works, why it works that way, and how to fix it. Along the way, we bust some of the foundational myths of the Senate, like the idea that the çağdaş filibuster encourages compromise:

(The following excerpt has been edited and condensed for clarity).

We also discuss what can — and crucially can’t — be passed through budget reconciliation, why senators like Joe Manchin and Kyrsten Sinema continue to defend the filibuster (and why Jentleson thinks they will change their minds), what it would take to fix the Senate, and much more.

(A full transcript of the episode can be viewed here.)

The Senate Is Making a Mockery of Itself

A former Senate staffer explains how the institution became a legislative black hole — and how to fix it.

transcript

The Senate Is Making a Mockery of Itself

A former Senate staffer explains how the institution became a legislative black hole — and how to fix it.

[MUSIC PLAYING]

ezra klein

I’m Ezra Klein, and this is “The Ezra Klein Show.”

So whether you’re a new listener of the show or an old listener of the show, something you’re probably catching on to is that a lot of the way I think about legislative politics is about the Senate. A project of this show is to try to get you and everyone else to deva about Senate rules. Because no matter what it is you deva about — a asgarî wage, a Green New Deal, gun control, democracy ıslahat — whether or not bills can pass the Senate is the debate upstream of that question.

So many of our policy debates, we have and we fight them out and we deva about them, and nobody ever seems to realize that they’re moot because nothing passes the Senate. Obviously, the key reason nothing passes the Senate is the mutation of the filibuster into a 60-vote supermajority threshold for basically everything — not literally everything, but basically everything. And this is one of those places where you really need to convince people something has changed. Because we’ve had a filibuster for a long time. As you’re going to hear in this episode, it used to be technically stronger. It used to be unbreakable. But it wasn’t used very often. And so I want to begin with this statistic. From 1917 to 1970, the Senate took 49 votes to break filibusters — 49. Those are cloture votes. That is fewer than one each year. And I’m not saying that’s a record of glory. Those filibusters were often aimed at civil rights bills — but fewer than one vote to break them each year. Since 2010, it has taken on average more than 80 votes each year to end filibusters — more than 80. This is not the Senate of the 20th century. Something completely different has happened. It has changed. It is not the Senate the founders wanted or built. It is the Senate they warned against. I reported on the Senate for a long time. And one of the fascinating things about talking to Republican and Democratic senators and Republican and Democratic staffers is nobody likes the place anymore. For all the people that work their whole lives to get there, they get there and they look around, and they’re appalled. They may disagree on how to fix it and what is wrong, but they are appalled. Nobody thinks it works well. This is not a situation where it’s only outside critics who recognize something is wrong. The most searing denunciations, they come from the insiders. They come from the staffers. They come from the members. One of those staffers is Adam Jentleson. He was deputy chief of staff to then Senate Majority Leader Harry Reid. He was high up enough in the institution to see how it really worked, but he was also young enough, new enough, to be free of the gauzy nostalgia for the days of yore. And so, after he left, he spent a few years researching the Senate’s history to understand how it led to this grim present. And his new book, “Kill Switch: The Rise of the Çağdaş Senate and the Crippling of American Democracy,” it is, in my view, the essential book on the çağdaş Senate. It is excellent. Now it’s not particularly uplifting, but one thing it is not is without hope, because the Senate, unlike a lot of other things in American politics, can be changed. And so I wanted Adam to come on the show to talk about how the Senate became what it is today, talk about what it means for Joe Biden’s agenda, to talk about what really drives senators like Joe Manchin and Krysten Sinema, what it really feels like to be in there, legislating at this moment in this institution at this time, and of course, about how to fix it. As always, my email is [email protected] I’m always interested to know who you’d like to see on the show, so send me your guest suggestions. Here’s Adam Jentleson.

So I want to start with the real sexy stuff, the stuff that gets the audience excited. What is the budget reconciliation process, and why am I hearing so much about it right now?

adam jentleson

So the reason you’re hearing a lot about it is, it’s an end run around the filibuster and a way to avoid having to pass things with 60 votes in the Senate, which I think personally is how we should do most things in the Senate. But the reason you’re hearing about reconciliation is that it is sort of one of the few ways you can avoid the filibuster without going nuclear and getting rid of the filibuster altogether. It’s a process that was invented in the 1970s and was meant to apply only to the budget and things directly related to the budget. This was when the Senate decided to start passing budgets on a regular basis. The size of the government was growing. It was also an attempt, when it was created, to take back power from the executive branch and have the Congress play a leading role in setting spending priorities for the country. In order to prioritize budget-related work, it created a special fast track procedure that allowed anything that was consistent with its rules to go down this fast track. And on that fast track, there is no filibuster. It’s majority votes from beginning to end. There’s no point at which it has to clear a supermajority threshold. And there’s no point at which opponents of the procedure can block the reconciliation package indefinitely. So Democrats are trying to use this procedure to pass Biden’s COVID relief package. And the reason they can do it is that most of the things that are going in that relief package are, at least arguably, budget-related. It’s sort of a primary purpose test.

ezra klein

Hold on, I want to stop you. I want to stop you right on this, because this is important.

adam jentleson

All right, when I get going on reconciliation, man, I’m hard to stop.

ezra klein

Listen, you know I hear you. You know I feel you on that. [LAUGHTER] So first, to the audience, the reason we need to talk about this in the detail we are is that this has become the way the Senate legislates. And it has unusual features that then change the laws that we all live under, change what problems we can and can’t respond to, and change the way in which we respond to those problems. So in the ‘80s and then codified in 1990, there are a set of rules imposed on budget reconciliation to make müddet that senates do not use it as an end run around the filibuster. Those rules are important. They’re called the Byrd rules. What do they say?

adam jentleson

They say that in order to go through reconciliation, policies have to have sort of a primary impact that is budgetary. It’s like an organization passing a primary purpose test. You can’t have a procedure or a policy that is sort of ancillary in its budgetary effects or sort of indirect. For instance, something like DC statehood, its advocates could sort of argue that there is some budgetary impact to statehood. And I’m müddet that that’s true. But it would never pass muster because it’s very clear that the primary impact of creating a new state is not a budgetary impact. And so, it limits what can go through reconciliation to issues that have big impacts on revenues, spending, and that sort of thing.

ezra klein

And so it also does something weird, right, which is mechanisms. You might have two ways you could do the same thing. So you could potentially raise people’s incomes by passing a direct wage subsidy, like the Earned Income Tax Credit the government pays out to them, or you could do it by raising the en az wage.

adam jentleson

Right.

ezra klein

But at least canonically, as I understand it, the way people think about budget reconciliation, raising the en az wage would not survive because that’s not primarily budgetary. But doing a direct subsidy would survive because that is primarily budgetary. So even if raising the en az wage is the cheaper, more efficient, more direct, more useful way to do this — I’m not saying it is, but hypothetically — you then would have to do the less efficient, more expensive, less useful way of doing it. That it’s like, it’s not just what kind of thing you do, but how you can do it.

adam jentleson

Yeah, it leads to poor policy design. You get these Rube Goldberg policies that were created a certain way, not because they’re the most efficient way to deliver benefits to the American people at the highest impact for the lowest cost, but they’re designed the way they are to comply with these restrictive and, rather, obscure rules. So you can feel the institution sort of reaching for the ability to pass things on a majority rule basis. And instead of going directly at the filibuster, they’re taking this detour through reconciliation that maybe it’s fine as a stopgap, I guess. But it’s going to lead to extremely poor policy design that’s not just sort of abstract in why it’s bad. These are things that will cause benefits to be delivered less efficiently. They will open them up to meşru challenges and ultimately, have the potential to undermine a lot of the good that is passed through this process.

ezra klein

No, it’s not fine. I really want to say that this is really — I am upset about this, and I want everybody else to be upset about it. And I need to come up with a new name for budget reconciliation, so people don’t tune me out when I talk about it. But let me give an example from the bill that I want to talk about. So Biden’s big rescue package is going through budget reconciliation. It’s going through budget reconciliation because it cannot get 10 Republican votes in the Senate. And so you are already seeing things get carved out of it that are important. So you can pass a big expansion of the Child Tax Credit in reconciliation. You can do $1,400 checks in reconciliation. But something that is obviously important and very cheap for the government and an efficient thing we could do would be emergency paid leave, making müddet that people, when they are sick, can stay home without it being a terrible economic hardship on their family. And that could get taken out of the bill because it doesn’t fit reconciliation. It looks like the same thing will happen probably to the $15 en az wage. And obviously, Senator Bernie Sanders is trying to keep that from happening. But I would be surprised if he is successful in that. You worked in the Senate. You worked for Harry Reid. You were his deputy chief of staff. Did it feel crazy to do things this way?

adam jentleson

Yes. I mean, that’s why I wrote the book because everything felt upside down and sideways, and nothing made sense. And reconciliation was crazy for the reasons we’re talking about here. When things failed by the filibuster, these were bills that were being blocked in the name of unlimited debate, but then immediately pulled from the floor and not debated anymore. Nothing made sense. And when you ask around for why it is this way, you get very mealy mouthed answers about Senate tradition and the wisdom of the ages and the wisdom of delay and all these things. And meanwhile, you look around, and you see the country struggling to deal with these massive issues. And it’s not struggling because it’s hard to find solutions. The solutions, in a lot of cases, are right there. They often exist in legislative text. They’ve been road tested by experts. There’s not really a lot of controversy over what the solution should be. It’s just impossible to get them through the Senate. And it felt crazy. And it felt like you were living in some Kafkaesque world. And when you dig into the history, you find that this is just not the way it was supposed to be. We sort of backed into it for a series of weird reasons that were never conscious decisions to make it this way. And I think it’s important for people to understand that it can be different. And it is not actually that hard to make it be different.

ezra klein

One note I want to put here is, we talk all the time in politics about liberal bias or conservative bias or partisan bias. And people really underestimate how dangerous status quo bias is. And particularly, this is very true in the Senate, that people get used to the way they have done things. And so the fact that the way they do things doesn’t make any sense and has become an illogical, as you put it, Kafkaesque nightmare — as I put it in a column recently, a Dadaist nightmare — stops reading to them is clear. So I want to go back to something you were saying earlier. The Senate has a filibuster, which we are going to talk about here in some detail. But just as a shorthand right now, the filibuster says things require 60 votes. And there is a coterie of senators, including, at this point, Senators Joe Manchin and Krysten Sinema, who say that is good. It forces bipartisanship. It’s how the Senate should work. So you might say, OK, everybody’s going to demand everything requires 60 votes. But then they vote for budget reconciliation, which end runs the filibuster in this weird way. Because I mean, of course, you can’t really run a Senate where you can never get anything done. So the Senate exists, and this is, by the way, true of everybody. The two major legislative packages of the Trump era were budget reconciliation packages, the Tax Cuts, and Obamacare repeal. You had budget reconciliation under Obama. You had the Bush tax cuts or budget reconciliation under George W. Bush. It’s one thing for the Senate to say the 60-vote threshold is sacrosanct. That’s how we want to run the institution. It’s another to say majority rules is the way you want to run the institution, which is how most institutions run. It’s totally bizarre to me to say we want to keep the 60-vote threshold, but obviously, that’s not working, and it would completely paralyze the institution. So we’re going to do this dumb thing and abuse another rule in a way that creates worse legislation instead.

adam jentleson

Yeah, and I think that gets to the fundamental unsustainability of the Manchin, Sinema position. It would be one thing if by standing in defense of the filibuster, that they could leverage a big bipartisan deal that would be an alternative approach to going it alone with the Democrats and passing things on a 50-vote threshold. But as we’re seeing on COVID aid, the idea that 10 Republicans are going to give Democrats their votes for just about anything is laughable. They’re not giving them 10 votes for COVID aid, and I don’t think they’ll give them their votes for anything else. And so, Manchin and Sinema are quickly faced with a much more binary choice, which is, do you get anything done at all, or do you not get anything done? And if you deva at all about the success of the Biden administration and the success of all the Democrats who are up on the ballot in 2022, when you’re faced with a choice between delivering results and failing because you deva more about the filibuster than about getting things done, I ultimately think they will come around. But they are, as you say, they’re endorsing the premise on principle of passing big things, multitrillion dollar packages, on a majority vote basis. And so evvel you start to go down that road, unless there is some massive outbreak of bipartisanship, which I think is vanishingly unlikely, then I think that that’s the choice they’re going to face. Reconciliation right now sort of gives them an out because there’s a way to do it by majority vote and get things done without technically changing the filibuster rules. But it’s not going to take too long to exhaust all of the things that are possible through reconciliation. And as you say, important things are getting carved out as we speak. And so you’re quickly going to face a choice between essentially giving up on the Biden administration and admitting failure or having to ıslahat the rules. And I think that when they’re faced with that binary choice, I do have faith that they will come around and make the right decision.

ezra klein

Oh, that’s so sweet. [LAUGHS]

adam jentleson

Well, I think that it’s the upside of polarization. I think that at the end of the day, they deva about keeping the Senate majority. And they deva about Biden being successful. Right now, I think there’s this sense that by standing in defense of the filibuster, they’re blocking things like Medicare for All or the Green New Deal or far-left priorities from passing. But it’s going to quickly become clear that they’re not blocking Medicare for All, they’re blocking the basic tenets of the Biden agenda. And that is a much harder choice. And I don’t think they’re going to like being the ones who stand in the way. I mean, Mark Kelly, Kyrsten Sinema’s fellow Arizona senator, is up for re-election again in 2022. And when push comes to shove and the choice is between getting things done and Mark Kelly having a better record to run on and hopefully get re-elected in 2022, or Krysten Sinema’s stand for the filibuster, I don’t think Sinema is going to tell Mark Kelly to take a hike and fend for himself with no accomplishments because she, for some reason, feels so strongly about the filibuster, that she’s going to leave him hanging like that. So I do think peer pressure can be powerful and good in that way.

ezra klein

But then how do you read what happened at the beginning of the Senate session? So there’s a 50/50 Senate split. Democrats are going to have the tie breaking vote because of Vice President Harris acting as the presiding officer. Mitch McConnell begins the session by filibustering the organizing resolution, literally the resolution to form the Senate. So he starts out by saying, I will let you do nothing. I will not even let you build a Senate. And Schumer doesn’t give in to McConnell’s demands, among which were a promise never to touch the filibuster. But Manchin and Sinema then have this choice to make. And there are two kind of obvious ways they could have gone to me. One is to say, we do not want to touch the filibuster. What we want to have is a bipartisan regular order process, where we work together with our beloved colleagues on the other side to get things done. But obviously, if you abuse it this way, and you will not even let us form an organizing resolution to create the Senate, we will have to do it. So please stop. Don’t make us do this. Don’t make us do this thing you don’t want us to do. Or they could do what they actually did and give Mitch McConnell what he wanted and tell him, in no uncertain terms, they will never touch the filibuster. And they both released these statements that were by the standards of these things, and you can always change your mind, you know, pretty hardcore. Sinema said she would not change her mind on the filibuster, on getting rid of it, under any circumstances. Joe Manchin went on Fox News — on Fox News — to tell people and then reiterated it to Mitch McConnell that he would never be the vote to get rid of the filibuster. They didn’t leave themselves a lot of wiggle room. And so, as somebody who worked in the Senate — Sinema came after you left, but Manchin was there when you were there — what do you think was going on in their psychology or in their understanding of the political interests or needs at that moment?

adam jentleson

Yeah, I mean, as a former communications guy, I think there’s always wiggle room. And they were sort of saying, we won’t get rid of the filibuster, we won’t eliminate the filibuster. Maybe I’m being — maybe this is wishful thinking on my part, but I see plenty of wiggle room to reforming the filibuster, changing, restoring all these different sorts of things. But I think probably what they’re thinking is, they were essentially restating their positions as they’ve been in the past. And any sort of movement on their parts would have been read as a massive signal that the filibuster was on its way out. And so, I personally wish they’d been a little more forward leaning. But I do think that probably what they wanted to do was just maintain their position. It’s sort of like when Jen Psaki, the White House press secretary, was asked about it recently. She just stated, the president’s position hasn’t changed President Biden could be making a very ardent, aggressive defense of the filibuster if he really wanted to keep it. But he’s not. He’s leaving his position where it is because the minute you sense any movement on Biden’s part, the floodgates are going to open. And I think the same is true of Manchin and Sinema. Ultimately, they may currently be thinking that they are going to stand in defense of the filibuster, and they’re going to find a way to forge bipartisanship. And let them try it for a little while, I guess. But quickly, it’s going to become clear that that’s not just a fantasy, but an outright delusion. And then they’re going to start to need to find ways to get to yes. And I think that shifting from saying, I’m not going eliminate it, but we have to find ways to ıslahat it, to update it, to stop its abuse, all those things become on the table. I also think the blaming Republican option is always there. And that is a tried and true method. I mean, my former boss, Harry Reid, was similarly Shermanesque in his denials that he would ever change the filibuster. You know this very well, having covered it through this whole process. And then he changed it. And what he did was he said, rightfully, that the obstruction that Republicans waged against Obama was unprecedented, and that we’d never seen anything like it before. And they forced the issue. So I do think that, ultimately, the blame Republicans option is on the table because Republicans are going to put it on the table. They’re going to obstruct pretty much everything that Biden wants to do. And Manchin and Sinema will have to choose between reforming the rules or getting nothing done.

ezra klein

I want to note something on bipartisanship that struck me as an interesting example of how this plays out. So there was a real interesting bipartisan proposal that came out over the last week, which is Senator Mitt Romney’s child allowance plan, which is, in my view, a genuinely fascinatingly excellent piece of legislation. I have my quibbles with the way it’s paid for, but you’d be creating a universal child allowance in this country and simplifying a lot of other anti-poverty programs in a way that, from every analysis I’ve seen, would massively cut child poverty, massively cut it — cut adult poverty, too — and really, I think, be a step forward. That is the kind of thing you wish to see, right? That is a space where you could really imagine Democrats and Republicans working together. And what was interesting to me was that immediately, the Republican senators who have been most vocal on increasing support for children, increasing, in this case, the child tax credit, which is a more complicated, less progressive, and universalist way of doing it, Marco Rubio and Mike Lee came out against Romney — instantly. There’s not been, to my knowledge, even one Republican Senator who said they would work with Romney on this plan. And I was thinking in the aftermath of that that — not the aftermath. I mean, this is still a live ball with reconciliation particularly because you could pass that plan with just Romney and the Democrats. But that it’s a way in which you see the 60-vote threshold impeding bipartisanship. It seems plausible to me that there are bills out there that could get, let’s call it 43 Democrats and nine Republicans, and in theory, pass, because that’s a majority. But you can’t pass a bill like that under a 60-vote threshold. So one of the very few actual glimmers of opportunity for bipartisanship here, a Republican comes up with a great bill, his own party is not going to let him pass that. And so Manchin and Sinema could work with Mitt Romney on this, but not in a filibuster world.

adam jentleson

Right, this bill is going to pass with, like, 51 votes or 52 votes because you get all the Democrats plus Romney. No, this is one of the biggest misconceptions about the filibuster. The misconception is the idea that it promotes bipartisanship, when, in fact, it does the opposite. Because it gives the party that’s out of power the means, motive, and opportunity to block the party that’s in power from getting anything done. And when the party that’s in power doesn’t get anything done, when voters see nothing but gridlock from Washington, they turn to the party that’s out of power and try to put them back in office. And Republicans are well poised to take back majorities in both the House and Senate. All they need is a handful of seats to do so. So they have every rational political incentive to block Biden from achieving any victories. A program that, as you say, would cut child poverty massively would be a huge victory for Biden. The ability for Biden to pass it on a bipartisan basis would be a huge victory for his campaign promise to restore bipartisanship and unity. So Republicans collectively don’t want to see President Biden standing at a signing ceremony with Mitt Romney, signing a bill that is going to massively slash child poverty because that’s not good for their political interests and their desire to take back their majorities in the 2022 midterms. I’m not saying this is right, but that’s the rational political calculation for them. So that’s why you have Rubio, Lee, and all these others who supposedly deva about this issue coming out and shooting it down. The irony here is that the framers saw this coming. And they identified this misperception about supermajority threshold at the time in 1789. The reason they saw it was that they had just finished having direct firsthand experience with the Articles of Confederation, which did require a supermajority threshold for most major categories of legislation. And so, in Federalist 22, Alexander Hamilton addresses this misperception head on. And he says, what at first sight might seem a remedy, referring to a supermajority threshold, is, in fact, a poison. And he says — now I’m going back to my words, but he says you might think it would cause compromise, but really, what it does is, it provides an irresistible temptation for the party that’s out of power to make the party in power look bad. He uses the words “to embarrass the administration and the good functioning of government.” So it’s not what you would think at the time. You think, oh, 60 votes. Well, there’s 50 Democrats so that means they got to get 10 Republicans, so that’s going to force bipartisanship. But really, what it does is, give Republicans the ability to simply make Democrats look bad at all times. And in a polarized environment, that’s the rational political choice.

ezra klein

So I’m just going to read the section of the Federalist Papers — and this is from Federalist 22 — just because I love the quote so much. “The necessity of unanimity in public bodies or of something approaching towards it” — so a supermajority requirement — “has been founded upon a supposition that it would contribute to security. But its real operation is to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice, or artifices of an insignificant, turbulent, or corrupt junto to the regular deliberations and decisions of a respectable majority.” They really did look at this, and they really did reject it. And the point you made here — and frankly, the point they make there — I think is very important and very subtle. And it is one of the things that has actually changed in the way people thought about this over the course of my time in Washington. And I will immodestly say I’ve tried very hard to get people to change the way they thought about this. Which is when I came to Washington, the dominant view was bipartisanship is something the minority wants, and the majority has to be incentivized to offer them. That the sorun in governing is that if the majority is power, they will lock the minority out. They will never let them in. And so, you really need to construct your rules, such as the majority has a reason to work with the minority. And in reality, it is the precise reverse. Bipartisanship is something the majority wants and the minority does not have an incentive to give them. Because as you just said, if the majority looks like they’re doing a great job governing, they have these big bipartisan bills, they can run for reelection on that. And then the minority remains the minority. So if you want bipartisanship, you need to give the minority a really, really good reason to work against their own political self-interest and cooperate on these bills. There may not be that reason. I’m not actually müddet in a polarized system, bipartisanship is something we will ever get in high numbers. Other political systems do not have this fetishization that the opposition party is going to work with the governing party to govern. The opposition party opposes and the governing party governs. And then you see how that works out. But this is a really, really important point and something I think that Mitch McConnell understood, frankly, better than any Senate leader before him. He understood that he could get the majority back by sabotaging their ability to govern. And that was an important strategic insight.

adam jentleson

Yes, and he had the high risk tolerance necessary to sort of run the experiment because the conventional wisdom at the time was that the minority party would be punished by voters if they offered nothing but relentless obstruction, instead of cooperation. And when Obama came into office, he was riding a 67 percent approval rating, the highest since JFK. Democrats had made massive gains in the House and Senate for two straight cycles, 2006 and 2008. And the general conventional wisdom was that Republicans, if they wanted to avoid extinction as a party, should cooperate with this massively popular president and his giant majorities in the House and Senate. So it took a real bold insight and then a willingness to carry it out on McConnell’s part to sort of defy all of the conventional wisdom and say, no, we are going to oppose him at every turn. The 2010 midterms, which ended up being a disaster for Democrats, if you looked at them in 2009, it was not clear that Republicans were going to do well in those midterms. A lot of the Senate races were in states Obama won. And so it took sharp insight on McConnell’s part and the willingness to take the punishment from the punditocracy to carry out the strategy and deny Obama cooperation in every way. And what he did was he proved that blame for gridlock ends up being directed towards the party in power, and that the minority can really easily deflect blame simply by saying, well, you guys are in power, figure out a way to get things done. And if you sort of spread it out over time — and I remember this having been there and trying to sort of mount communications campaigns to lay the blame at Republicans’ feet — it’s really hard because people just don’t want to hear it. They don’t want to hear it. It sounds like excuses. And it’s diffuse. It happens over weeks and months. There are very few action-forcing points where you can use to hang the blame. So McConnell carried out that experiment. He proved the Republicans suffered, really, no blame at all. And then they have this massive success in the 2010 midterms taking back the House, gaining upwards of 50 seats in the House and seven seats in the Senate, taking Democrats down from 60 seats all the way to 53. So there’s just really no question that his experiment worked and proved that obstruction in our current polarized environment is a successful political strategy for the party that’s out of power.

ezra klein

Yeah, this is something I always want liberals to understand better about Mitch McConnell. He is not a unique, evil genius. He’s simply somebody who correctly understands the incentives of the system that we have set up and that we allow to roll forward. And in a way, he’s weaker than other Senate leaders. A lot of other Senate leaders, because of their feelings about the Senate, because of how they wanted to be remembered, they fought the incentives of our zero-sum electoral system. They fought against the currents that were happening in their time. And maybe they weren’t entirely successful, but the thing McConnell does is capitulate to them. The thing McConnell does is say, OK, I am here to represent the Republican Party and to represent its interests. And so, obviously, my job is to maximize the Republican Party’s power and strategic advantage under the rules to get the outcomes that I want. That isn’t some crazy tactical insight. It’s simply being unwilling to do what a lot of other leaders have done, which is show restraint because you’re worried about where that path will lead. [MUSIC PLAYING]

One of the things that I always try to tell people about the Senate — and because of your time there, I’d be curious to hear how much you think this is a viable way of explaining it. I try to tell people when they think about Congress and its operation to not think about Congress, to just imagine you work in an office, and you work for a boss. And you don’t like your boss, and you don’t like what your boss is working on. And that importantly, for your boss to finish his project, he needs your help. And if you don’t help him, he won’t finish his project, and you may become the boss. And if you do help him, he will finish his project, and you may lose your job. And even if you don’t lose your job, all your friends are going to be mad at you. So what do you do? And I think the answer’s pretty obvious. You wouldn’t help your boss. But that is actually how Congress works, as best as I understand it. And yet, we expect people to overwhelm their own self-interest, minority players to overwhelm their own self-interest, because of tradition or something.

adam jentleson

Yeah, I think that’s an extremely accurate way of looking at it. And then you add on to it. You have basically a massive cheering section, cheering you on to oppose your boss and throwing hundreds of millions of dollars at you and providing you unlimited resources to run ads against your boss and do everything you can to obstruct him. I’m taking the analogy too far, but that is what you have, is you don’t just have the opportunity to do it, but you have structural factors encouraging you to do it. You have donors demanding that you do it. You have your base demanding that you do it. So it’s not just taking the initiative. It’s, in many ways, just sort of going with the flow that is already carrying you in that direction of obstruction and sort of legislative sabotage. I think about Merrick Garland in this context and the decision to block him in 2016. Because, look, in retrospect, this turns out to be one of the greatest political gambles, successful gambles, in recent history. But all McConnell was really doing was trying to cover his ass at the time. And people forget that in 2015 and 2016, McConnell was in a lot of trouble. And I think his job as leader was seriously in question. Republicans had just taken back the majority, but that was the only successful election cycle that they’d had under him, aside from 2010. And the leader job was very much, what have you done for me lately? The Tea Party was on the rise. Ted Cruz, in the summer of 2015, came to the Senate floor, and in a moment of shocking violation of Senate decorum, called Mitch McConnell a liar in front of the entire world. That fall of 2015, the Tea Party successfully ousted Speaker Boehner and were very explicit about the fact that they were turning their sights on Mitch McConnell next and trying to take him out. And then you had the rise of Donald Trump, who McConnell opposed. And so when Scalia died in February, the day that Scalia died, there was a Republican debate that night, and it was sort of widely suspected that Ted Cruz and probably also Donald Trump were going to use that debate to come out and demand that Mitch McConnell block any Obama nominee. So McConnell didn’t want to be responding to a demand by Cruz or Trump. He wanted to get out in front of them. So literally, before Scalia’s body was cold, he issued a statement, getting out ahead of Cruz and getting out ahead of Trump, saying that he would block anyone Obama opposed. I think his calculation was that if he confirmed a third Obama Supreme Court nominee during the year of 2016 with a presidential election in full swing, if he had been responsible for installing a third Obama nominee on the Supreme Court and the Democrats took back the Senate and Hillary won the White House, as was widely expected at the time, that McConnell would have, at the very least, had a very aggressive challenge to his leader job. At that point, Republicans would have been in the majority for only two years, been bounced right back to the minority, and seen the confirmation of three Obama Supreme Court justices. It’s not a very good record for McConnell to have been running on. So it was a bold move. I don’t want to take away from that. And then he proceeded to execute it and keep people in line, which took a lot of work. But essentially, what he was trying to do was block a challenge to his leadership from his right flank and secure his right flank. And it worked. It paid off massively. But I don’t think even he at the time had any idea that it would hisse off as much as it has.

ezra klein

So I have a long discussion of that episode in my book, “Why We’re Polarized,” which makes a wonderful pairing with Adam’s “Kill Switch.” It’s like wine and cheese. And one of the things that I try to argue there and that I think is true is that it is important to step back from your outrage, if you are a liberal, about what Mitch McConnell did and just ask, what didn’t make sense about the action? And one of the things that I try to show there using a fair amount of research on Supreme Court justices over time is that what had been happening for a long time predating the Merrick Garland affair is that Supreme Court nominations had gone from being relatively non-ideological, if very consequential votes, to very ideological ones. So if you look across to the 20th century, knowing which party nominated a Supreme Court justice in an age of not very polarized parties, not very ideological parties, did not tell you that much about how that justice was going to vote. You consistently had Republicans nominating justices who turned out to be very important liberals, like Earl Warren or David Souter. You had the same thing happen to Democrats a number of times. And that as the parties polarized ideologically, the rallying cry became, never again. They developed these big vetting structures, on the Republican side in particular, the Federalist Society, to make müddet that the judges they nominated to the Supreme Court would be reliable, ideological partisans. And so that had already happened by that point. We have not had something like a Souter in a long time. Whatever people say about John Roberts, who’s not gone as far as some of the crazier conservatives would like him to go, he’s a quite conservative justice, who has done exactly what he was expected to do. And so, by the time you get to Merrick Garland and Mitch McConnell, you’re operating in this weird mismatch between this idea that a vote for a Supreme Court justice should depend on whether they are qualified, not whether or not they are ideological, and this reality that ideological parties have constructed an ideological vetting system to get highly ideological justices to give them lifetime appointments to one of the most powerful bodies in the land. And yet, as we expect them to vote ideologically on everything else, we were still expecting somehow the other party to treat this one vote different. And Mitch McConnell just comes along and says, there is nothing different about this. We do not want Democrats to take over the Supreme Court with a more liberal justice. And so we will not let them. He didn’t invent a new power. He just treated it like an ideological vote. And it feels to me that so much of the Senate is like that, that we have rules built, traditions built, norms built. For a time when the parties weren’t that ideological, but as a story I tell in my book goes, the parties became ideological. Then they began using the rules differently. And now we’re just caught in this mismatch era between a Senate that worked for the non-polarized parties of the 20th century, but simply doesn’t work for the highly polarized parties of the 21st. And so, we all get our fainting couches every time a new norm is broken. But they’re not doing anything weird. They’re just acting exactly as you would expect them to act, given the ideological stakes of the era. Is that wrong in some important respect?

adam jentleson

No, I think it’s right, and I think I took a similar approach to McConnell in my book, the chapter on this episode — I call it The Uniter — because what McConnell was essentially doing was uniting the two wings of his party. The judges was the one issue where the establishment wing of the Republican Party could reliably unite with the Tea Party base. And he had that insight. And it ended up being the glue that held those two sides together and led a lot of establishment Republicans to hold their nose and vote for Trump and potentially provide the margin of victory. In his book, Carl Hulse, The New York Times correspondent, argues that this was the decisive factor potentially. So no, I think it’s absolutely correct. What’s important to remember is that Republicans controlled the Senate Majority at the time. So one way to think about this is, what would we do as liberals if Chuck Schumer had been Majority Leader, and Donald Trump had nominated a Supreme Court justice? You can just imagine how the resistance base would have freaked out and told Schumer not to bring up Trump’s Supreme Court nominee. So, expecting McConnell to have done differently is, in some ways, expecting him to defy the structural incentives that he’s operating under. And I think that that’s something that we have to think about and face as a cold hard fact of our time, and do away with this hope that any leaders at this point are going to rise above their structural incentives and take sort of a West Wing approach to uniting the country, and drill down on what needs to be done here to produce results to make the government function. And I think I would argue that that is restoring majority rule. I mean, one thing that I have lost sleep thinking about is, what would have happened if it had only taken a majority to confirm Supreme Court justices in 2016 when Garland’s nomination came up? At the time, Reid’s nuclear option in 2013 left the 60-vote threshold in place for Supreme Court justices. So when Garland came up, Republicans had 53 votes, and Democrats had 47 seats in the Senate. So all McConnell had to do to block Garland was prevent 13 Republicans from breaking ranks. That’s a lot easier to do than preventing three Republicans from breaking ranks. I’m not totally müddet that he would have made the snap decision to try to block that nominee if he had had to keep three Republicans from breaking away. That’s much harder to do. I think knowing that he had a cushion of 13 votes gave him the confidence to make that snap decision and say, look, I don’t know if I can hold Collins, Ayotte, and Murkowski for a year from voting for President Obama’s nominee, but I’m pretty mühlet that I can hold 13 Republicans from breaking ranks.

ezra klein

But isn’t that why he simply never brought it to a vote? I mean, so much of the Senate, there are so many bills that could have an unusual coalition. But I think an undernoticed reason that you have very few bipartisan votes in the Senate is the leadership doesn’t bring bills that split their own caucus to the floor. And in this case, one of McConnell’s key moves that liberals are very angry about to this day, but he didn’t provide Garland a hearing. And I always understood that as trying to forestall exactly the situation you’re talking about. Whether it was 13 or three, he didn’t ever want to be in a situation where Republicans were asking themselves, does Merrick Garland deserve the seat? So he never let it get to a point where it would matter if he lost anybody because he controlled the floor structure, which I’m not really mühlet I think is a good way for the Senate to work. And I’d be curious for your thoughts on it. But my understanding is that was the key playwright there. So it never would have had an opportunity for Murkowski to break on the vote, because there was never going to be a vote because McConnell’s never going to hold a vote.

adam jentleson

Yeah, I do agree that deconstructing the power that has gone to leadership to control every aspect of the floor agenda, trying to democratize power in the Senate would be a good thing. I think that the ability of leadership to control every minute detail of what happens on the floor is a bad thing for the institution. I just think that the political pressure on Murkowski, Collins, and Ayotte, who did feel a lot of pressure in this and lost her Senate race that year, to break ranks would have been enormous if the three of them alone could have been the difference in proving that there was a majority for Garland. What the cushion of 13 allowed Republicans to do was dodge accountability. Because when reporters came to Ayotte or Collins or Murkowski or whoever, they could just sort of point that way, and point at their other colleagues, and say, don’t ask me. I’m not the decisive vote here, even if I came out and demanded a hearing. And they sort of did lean a little bit in that direction. It wouldn’t have made a difference. And the insurmountability of that 13-vote cushion just took the steam out of the issue. It was very hard. We were trying to sort of mount a campaign and put pressure on Republicans to do this. But what I kept hearing from reporters again and again was, how are you going to get to 13? They’re never going to break ranks. And when something becomes inevitable, and it seems inevitable this is never going to happen, it’s very hard to keep the issue alive. So who knows? I think probably the safe bet here is that McConnell, even if it was only three votes he had to keep in line, he would have found a way to keep them in line. But there is a big difference in the group dynamics when you have that majority threshold versus a supermajority threshold. [MUSIC PLAYING]

ezra klein

So there’s an argument that in a closely divided country, or at least in a closely divided Senate, if you can’t get to 60, you can’t get meaningful bipartisanship, you just shouldn’t do big things because it’d be polarizing intrinsically to do big things. And I want to read you what Mitch McConnell said in 2014 in his speech about how if he took over the Senate, he would restore it to its old traditions and luster about this. And he’s talking about Obamacare here. And he says, “Without some meaningful buy-in, you guarantee a food fight. You guarantee instability and strife. It may very well have been the case that on Obamacare, the will of the country was not to pass the bill at all. That’s what I would have concluded if Republicans couldn’t get a single Democrat vote for legislation of this magnitude. I’d have thought, maybe this isn’t such a great idea.” Now, obviously, Mitch McConnell is a hypocrite. Obviously, he has run all kinds of bills without getting bipartisan votes. But a lot of people believe this underlying idea that if you cannot get bipartisan votes for something, maybe it isn’t such a good idea. Maybe that’s a signal you need to slow down and stop. I’m curious what your response to them is.

adam jentleson

So, of course, McConnell spent enormous amounts of energy whipping Republicans to deny Obama bipartisan cooperation on Obamacare. So it wasn’t just sort of a fact of life he was observing that he had failed to get a single Republican vote. It was something McConnell deployed every tool in his arsenal to do. And I detailed that in the book.

ezra klein

It’s sort of the Jewish definition of chutzpah, right? A kid who kills his parents, demanding sympathy because he’s an orphan.

adam jentleson

Yeah, exactly. I mean, it wasn’t a real test of whether the ideas could get bipartisan cooperation because McConnell did everything he could to prevent it. But I actually would sort of flip it around and say, what if Obama had come into office in 2009, riding 67 percent popularity with these enormous majorities and having 60 seats in the Senate? And he’d only need a majority to pass Obamacare. I would argue that that would have been much more effective at generating Republican cooperation than the need to get 60 votes. Because everybody would have taken it as a given that this bill was going to pass. And the only question was, what does it look like, and who gets to share credit for it? The idea that Republicans are going to work with him in the first place was based on the fact that there are Republicans like Senator Collins, Senator Snowe, maybe even Senator Grassley, who’d worked on healthcare all their careers, who had endorsed on the record ideas like the ones Obama introduced, and that they could be incentivized to work with him. But instead, because of the need to get 60 votes, they were incentivized in the other direction. Democrats are ultimately able to pass it, but barely, and Republicans were able to delay it as long as possible and make it as politically painful as possible. If Obama only needed a majority, he would have passed that thing by the summer. And the only question for Snowe, Collins, Grassley, and those folks would be if they wanted to get a piece of the credit for it and if they wanted to help shape the policy to move it in their direction. They still could have decided no, but the bill would have passed. It would have passed faster. And the policy design would have been much more effective. We wouldn’t have had to jerry rig it all these different ways that we did that made the benefits take longer to kick in, harder to execute, and all these things that ended up making a worse bill because we had to get 60 votes. The other thing that I would say to the central idea that bipartisanship is necessary to create lasting policy is that it just has never proven to be true. The Senate was a majority vote institution for the vast majority of its existence, all the way up until, arguably, the ‘70s and the ‘80s, when things started to more routinely face the filibuster in the 60-vote threshold. So if you think that that’s a requirement, then you would have to discount any piece of legislation that you think was a good piece of legislation that passed over those previous 200 plus years. Medicare was not required to get a supermajority. It passed on a majority vote basis. It never had to clear a supermajority threshold. It never faced a filibuster. It got more than 50 votes because it was a good piece of legislation, and Republicans saw that it was passing, regardless of whether they opposed it or not. So they might as well get on board and try to influence it.

ezra klein

One of my favorite things that I’ve ever seen about the Senate — now a political science professor, but then I think he was a grad student — David Broockmann was doing archival research, and he sent me this little letter that Mike Manatos, who was Lyndon Johnson’s Senate liaison, so his lead representative to the Senate, sent Johnson about Medicare after the ‘64 election. Manatos says that given what we’ve seen in terms of who does and does not support Medicare and given who lost and won seats in the election, that if everybody is there and present and accounted for and voting, Medicare will pass with 55 votes. And at that point, you needed a two-thirds majority to break a filibuster. So that wasn’t anywhere near what you would need to break a filibuster. But they didn’t expect there would be a filibuster. And so, as you say, by then, when the thing’s passing, a bunch of other Republicans jump on board so it ends up having a pretty strong majority in its favor. But the idea that you would imagine passing something like Medicare and not worry about the filibuster. And by the way, it’s not like there wasn’t a filibuster in that time. The filibuster was being used constantly by the Southern bloc — and these were Southern Democrats — to block civil rights and anti-lynching laws. I mean, it has a horrifying history in this period. But it’s just not used, really, on anything else. So yeah, they won a bunch of seats. Medicare will pass with 55. And then because it is going to pass, a bunch of members of the Senate decide, better to be able to go home and brag about it and not get anybody running against you because you opposed Medicare than be on the wrong side of this one.

adam jentleson

Yeah, and I just want to hammer this home for your listeners because it’s so important. The Jim Crow era is a really good period to look at because you basically had two categories of legislation that encountered the legislative process very differently. You had civil rights, and you had everything else. Civil rights encountered the requirement to clear a supermajority threshold — at the time, it was two-thirds — in the Senate in order to pass. Everything else only had to clear a majority. Civil rights didn’t pass. And I think it’s really important — for 87 years, every single civil rights bill that came before Congress — and there were many, from the end of Reconstruction in 1877 to the first time a Southern filibuster was broken in 1964. Every single civil rights bill that came before the Senate was systematically forced to clear a supermajority threshold. And they were unable to do it. And so, they all failed. It’s not like America wasn’t ready to pass civil rights. I think one of the things that we sort of look back on with rose-colored glasses is the idea that maybe America wasn’t quite ready until 1964. The filibuster played its cooling saucer role and waited until the country was ready for civil rights. That’s not true. There were federal anti-lynching laws. There were federal anti-poll tax laws. And there were laws to end workplace discrimination that all had majority support in the House. They passed the House. They came to the Senate. They appeared to have majority support in the Senate, and they had presidents of both parties ready to sign them. They also had massive public support. When Gallup polled federal anti-lynching laws in 1937, they found support at 72 percent, including a majority support in the South. Anti-poll tax laws also had upwards of 60 percent support. The country was ready for these civil rights laws, but because of the supermajority threshold, they didn’t pass in the Senate. On the other hand, every other piece of legislation, all of the things that we passed to build post-war America, came and cleared because they had to pass only a majority threshold. They maybe every evvel in a while encountered a filibuster, but it was quickly resolved and they passed in a timely fashion. What we’ve done now is we’ve taken the process that we applied to civil rights during the Jim Crow era and started applying it to every other issue. And so the reason that there is gridlock on every issue you can possibly think of is that the solutions exist, but they have to clear a supermajority threshold. And so just like civil rights took 87 years to pass when the solutions existed, the country was ready for it, public support was there, that’s why we’re seeing climate change, income inequality, immigration, gun control, you name it, finding it impossible to clear this threshold. It’s an impossible threshold to clear. And we should go back to a system like we had before on every other issue, where if you could secure a majority in the House, a majority in the Senate, get a president to sign it, and could sustain scrutiny from the courts, that’s the system Madison designed. And that should be what makes a bill a law.

ezra klein

I want to draw out a move that was made in that era, but before I do, I want to note something. Because there’s a slight bit to that I disagree with you on. And it goes back to our budget reconciliation discussion earlier. We still do have two classes of legislation. And so for people who think this is not the world we live in now, one thing I do want to note is that all kinds of civil rights legislation that needs to be passed now — the John Lewis Voting Rights Act, the For the People Act, which has all kinds of automatic voter registration and voter protection and amplifies small donor donations six to one, so you begin to rid big money of its control of politics — that will all get filibustered. DC statehood to enfranchise DC, which is primarily African-American voters, cannot pass because of the filibuster. But the Trump tax cuts could pass because he only needed 51 votes. You could repeal Obamacare because you only needed 51 votes. They didn’t get it, but they could have. There’s still tracking. And I mean, it hits all kinds of different things now, so it’s not the way it was before, where it’s just civil rights issues. But I do want to note that civil rights issues remain subject to a much higher threshold than, say, a corporate tax cut. Something that you write about in the book that I thought was such a smart point is that in this era, a very effective move is taking something like, say, the anti-lynching bill that has 70 plus percent support, and saying the issue here is not lynching and what you think of lynching. The issue here is my right to be heard. It’s a right to unlimited debate. It’s the deliberation that makes our country great. And I think you see this still in all kinds of issues, where people say they don’t want to debate the issue. They want debate free speech, right? The issue is not whether or not a bunch of senators and the president tried to whip up an insurrectionary mob against the Capitol. The issue is whether or not Josh Hawley is going to get to publish his book with Simon and Schuster or Regnery. Could you talk a bit about that way in which the filibuster is used to take the focus off of the issue and onto this question of debate?

adam jentleson

Yeah, and this is one of the great innovations that originated with John Calhoun, the senator from South Carolina and sort of the spiritual godfather of the Confederacy. People had been experimenting with obstruction before Calhoun came along. And there’s sort of a very robust discussion among historians about which exactly was the first filibuster. But what Calhoun did that makes him really the father of the çağdaş filibuster, is that he fused obstruction with this lofty defense of minority rights and an invented idea of the minority’s right to unlimited debate in the Senate. And just to level set on this, the framers did not intend the minority to have the right to unlimited debate in the Senate. They were very clear about this. I’m not an originalist, but I think it’s important to establish this because this is where the conversation often goes. They implemented many rules and procedures that would allow a majority to end debate when it had become obstructionist and ceased to be about persuasion and just about blocking things. One of the major rules got taken off the rule books by mistake in 1806. No one noticed for decades, and then Calhoun in the 1830s realized that taking away this ability to end debate created the potential for unlimited debate. And so he started to say that this was what the Senate is about. And it’s about the minority’s ability to always speak as long as they wanted. Madison was alive, and at one point, he wrote to Calhoun and responded to his ideas. He wrote in response to Calhoun’s ideas that this is not what he intended at all. But then he died, and he was the last of the framers to go. And so then, Calhoun sort of had the floor to himself to reinvent the idea of the Senate. And what you find about this — and I think an example that you raise as well — is that they’re not doing this on behalf of a vulnerable minority. They are doing this on behalf of the wealthy, the powerful, and historically, throughout our history, often in pursuit of oppression of vulnerable people. For Calhoun, it was the maintenance of slavery. For senators in the Jim Crow era, it was the continued oppression of Black Americans in the reign of terror, known as Jim Crow. There was an instance in the 1940s, I believe, where there was a federal anti-poll tax bill on the floor, and you had a senator from Texas defeated on a filibuster and then tell the press immediately afterwards that the issue was not poll taxes, even though the state he repre

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