Adam Jentleson’s Kill Switch is the most exquisitely timed book I’ve encountered in years. Jentleson’s explanation of the filibuster’s ignominious roots, and of the mendacious arguments made today by its defenders, is careful and thorough and exacting. Every senator should be forced to read it and then reread it.
If they did, they would know that the notion of “unlimited debate”—the claim that the Senate is a special institution because it accommodates endless discussion of legislation—is a lie. They would know that the idea that the Senate was somehow designed to defend the rights of the minority is also a lie, and a particularly pernicious one, as the filibuster was invented by John C. Calhoun to uphold slavery and white supremacy. They would know how the Senate, sometimes by unhappy accident and sometimes by the malevolent design of those who exploited its rules, has become the graveyard of progressive legislation.
Jentleson, a former aide to Democratic senator Harry Reid, begins Kill Switch by emphasizing that the Founders were opponents of supermajorities, precisely because they gave a minority the power of a majority. In today’s Senate, the “cloture” procedure, which ends debate and calls for a final-passage vote, requires sixty votes, which in essence means that forty-one senators can block legislation. Jentleson demonstrates that, with very few exceptions, “whenever proposals for supermajority thresholds were raised at the [constitutional] convention they were summarily dismissed.” James Madison, the father of the Constitution and its leading theorist, was a firm opponent of minority rule from 1787 (the year of the convention) until his death. “To establish a positive and permanent rule giving such a power, to such a minority, over such a majority,” he wrote, “would overturn the first principle of free government, and in practice necessarily overturn the government itself.”
Originally, the Senate had a rule, called the “previous question” rule, that held that after sufficient debate, the president of the Senate could decide to force a vote. It was the precursor to today’s cloture vote—the crucial difference being that a simple majority could then call the question. By design, debate in the Senate was allowed to carry on, but with firm limits. Five of the original nineteen Senate rules placed limits on debate. And a certain decorum obtained such that senators—gentlemen all, in those days—agreed when it seemed about time to vote. So in 1806, in an effort to clear away some rules that were thought unnecessary, the Senate ended the previous question motion.