All the Lies They Told Us About the Filibuster
On July 28, 2017, John McCain held the fate of the Affordable Care Act in his hands as he headed to the Senate well to cast what everybody expected would be the decisive 50th vote to repeal the most ambitious piece of social legislation that had been enacted since the Great Society. When he first ran for president, McCain had confessed plainly to me that he had barely given health-care policy much thought. He had done little to educate himself since, and Obamacare was not among the pet issues where he departed from party orthodoxy. Yet McCain seemed to decide this would be his moment to strike back at Donald Trump, or etch into stone his reputation for independence, and killed repeal by turning his thumb down and keeping the law in place.
The drama of this little set piece, and the relief among liberals at its result, has obscured a larger question hanging over that vote — one that might have consumed them had McCain’s thumb turned the other way, and which is now the Democratic Party’s most pressing dilemma. How was it acceptable that a law that had required a 60-vote supermajority to pass the Senate could be wiped out with just 50 votes? Why would liberals or moderates accept the existence of a system that makes complex legislation almost impossible to build, yet easy to destroy? Who would ever design a system like this?
The answer is that nobody did. The Senate filibuster was not part of its original design. The Founders, scarred by the paralyzing effect of the two-thirds requirement in the Articles of Confederation, consciously rejected a supermajority threshold in Congress (except for a handful of designated special cases, like amending the Constitution, removing a president, or approving a treaty). The filibuster only appeared in 1837 as the result of a glitch in the rules, after the Founders had left the scene, and it changed form several times.
The system developed numerous quirks that defy any internal logic. It is possible to raise or lower spending levels of existing programs by a majority vote, except for Social Security (which is why Obama’s welfare-state crown jewel could be threatened, but Franklin Roosevelt’s could not). Court openings can also be filled with 50 votes, but routine legislation needs 60. The Senate requires less consensus to appoint a jurist with supreme power of judicial review to a lifetime appointment than it does to simply keep the lights on in the federal government (a task it routinely fails to keep up).
Adam Jentleson’s new book, Kill Switch, charts the rise and repeated mutations of the filibuster. A former Democratic Senate leadership aide, Jentleson assesses the chamber without the institutional nostalgia that tends to infect its alumni. He ably punctures the propaganda its advocates created to defend it (primarily a tool to allow the South from being outnumbered in Congress by the North, first on slavery, and later on civil rights). Filibuster advocates like to quote George Washington’s famous metaphor of the Senate as a saucer cooling down hot tea from the House — except the metaphor is a double fraud. Washington never said that about the Senate (the line emerged a century later and was put in his mouth), plus, of course, the Senate didn’t have a filibuster at all in Washington’s time.