The Filibuster’s Racist Roots (with Adam Jentleson)

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Description

When you hear the word ‘filibuster,’ you might think of an idealistic Jimmy Stewart delivering an impassioned speech against corruption on the Senate floor in Frank Capra’s Mr. Smith Goes to Washington. But the reality of the filibuster of today – and how we got here – is anything but justice-seeking. Senate insider and author Adam Jentleson walks us through the filibuster’s racist history, its impact on if and how legislation gets passed, and what’s at stake if it isn’t eliminated or reformed, at the very least.

 

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Transcript

SPEAKERS

Adam Jentleson, Julian Castro

Julian Castro  00:01

Hey listeners. This week we’re gonna do a deep dive into an issue that’s been in the news lately. To some this may seem like an academic debate, a wonky back and forth between DC policy nerds. But whether we have a Filibuster in place and how it works, has enormous consequences on if and how legislation gets past. In the past couple of weeks, our country has experienced two mass shootings, and the start of hearings on major voting rights legislation. In the wake of these events, many democrats are calling for an end of the Filibuster. So they can actually pass common sense gun safety legislation and protect the right to vote for all Americans. So, what exactly is the filibuster? And how does it impact the way we get bills passed during the Biden administration, despite having a Democrat controlled senate? This week, I speak with senate insider and author Adam Jentleson to answer these questions and talk about his recently published book “Kill Switch” that explains the Filibuster, its racist history, and how the senate turned into the governing body we know today.

Julian Castro 

This is OUR AMERICA. I’m your host, Julian Castro.

Julian Castro 

Adam, thank you so much for joining me on OUR AMERICA. It’s great to have you.

Adam Jentleson 

Thank you, Secretary for having me. It’s great to be here.

Julian Castro

There probably couldn’t be a better time than now for your book “Kill Switch” about the history of the filibuster in the Senate to come out.

Adam Jentleson  02:07

Yes, it ended up being pretty good timing for the book. It’s funny, you start working on a project like this years ago, I think we started in the summer of 2018. And, you know, we knew there would be an election in the fall of 2020. Obviously, with, you know, high chance of potential for change in control of the Senate. But we had no idea there would be a special election that would determine the control of the Senate, handing control to Democrats, and that would happen a week before the book came out. So that was something we definitely did not foresee, but certainly has put the Filibuster front center and made people want to care about what otherwise might be sort of a weedy, wonky topic. But I’m happy about that. And happy to be here talking about it.

Julian Castro

And you come at this, as someone who spent time in the belly of the beast, so to speak, you worked for Senator Harry Reid, from 2010 to 2017, including time when he was Majority Leader. So you saw the senate from the inside. Talk to me about the difference between the Senate that you saw in those seven years and the Senate that you see today. And then through the work that you did for your book you went and research the senate of yesterday. What’s the difference? What should people know about what’s different now?

Adam Jentleson

Well, you know, the short answer to the second part of your question is everything. The Senate, as it was conceived, could not be more different than the Senate that we have today. It was conceived as a wide open, horizontally structured, free flowing institution with no leaders, of course, the Speaker of the House is a position that is created by the Constitution itself. And the house was always envisioned as sort of a more top-down institution, the position of Senate leader didn’t even exist until the 1920s, certainly not in the constitution and didn’t exist for the majority of the Senate’s existence. It was a free-flowing institution where senators were supposed to have a lot of individual control, decisions were made collectively about what bills to bring up.

Adam Jentleson  04:07

And there was none of this top down, partisan, you know, marching order control that we see today. And the other thing that’s important to note is there’s very little obstruction at least through a lot of the 19th century and into the 20th. The Filibuster was not part of the original Senate, it started to emerge toward the middle of the 19th century, and even then wasn’t used very often into the 20th century, it was used almost exclusively against civil rights bills, which was a terrible use of it, but didn’t occur more than you know, maybe once every few years.

Adam Jentleson

And so to your question about how the senate looked when I was there, it couldn’t have been more different than this older Senate that I’m describing. obstruction was the norm. Every single bill that came to the floor faced a Filibuster. The Filibuster itself looked nothing like the old school filibuster that we think of we think of Jimmy Stewart on the floor, you know, giving a long speech.

Mr. Smith 

All you people don’t know about lost causes. And I’m gonna stay right here and fight for this lost cause. Even if this room gets filled with lies like these.

Julian Castro

Passing out on the Senate floor, you know, cuz he just can’t talk anymore.

Adam Jentleson

Right? No One puts in that level of effort anymore. It’s just all they do is they basically, you know, make a phone call to the cloakroom. And what it does is even more powerful than what Jimmy Stewart did, because Jimmy Stewart, you know, until he could talk into he passed out, but he eventually passed out, you know, so the bill would eventually pass. Now you literally just have your staff call the cloakroom, and say I plan to Filibuster this bill. And you don’t have to go to the floor, you don’t have to actually follow through on that Filibuster. But just that threat, that single email or phone call from a member of your staff does something more powerful than what Jimmy Stewart was able to do.

Adam Jentleson 

It doesn’t just delay the bill; it raises the number of votes that it takes to pass the bill from a simple majority where it was for most of the Senate’s existence to 60 votes. And by raising it to 60 votes, what you’re probably doing is you’re probably killing the bill, because in our polarized environment, it is nearly impossible to find 60 votes for most major legislation. So the Filibuster is easier to use, and much more powerful than it has ever been. And that has is what is paralyzed the chamber. Mitch McConnell, of course, was the lead innovator in using the Filibuster against everything that came to the Senate floor, and that is why the Senate is the way it is today.

Julian Castro  06:22

Now, I mean, you and I are obvious are both kind of politics nerds and have been in the middle of it, right? But I think that if you go to the man or the woman on the street, and you ask them about the filibuster, probably, you know, they know it from the movies, or, you know, they think about their high school civics class. And I bet a lot of people figure that the Filibuster is, to the extent they even think about it, they think it’s in the Constitution. You made an important point that it’s actually not in the Constitution.

Adam Jentleson 

That’s right. I mean, I think, you know, if people think about one thing, when they think about the Senate, it’s probably the Filibuster, it’s sort of its most famous feature. But it was not in the Constitution. And even more to the point, the framers were very clear that they didn’t want anything like the filibuster to exist. It’s not just a coincidence, they left it out. And you know, some people thought of it later. And maybe that was a good thing. The framers were very clear that they didn’t want this to exist. The reason they were clear about this is that they had just had experience with what happens when you create a supermajority threshold. The Articles of Confederation, which was the first draft of American government had a supermajority threshold in its Congress, it required two thirds to pass most major pieces of legislation, and it was a disaster.

Adam Jentleson

They put that supermajority threshold there for the reasons that people think supermajority thresholds are good. They said, maybe this will promote compromising cooperation. But what they saw instead was that it gave the minority a chance to manufacture gridlock whenever they didn’t like what the majority was doing. And so when the framers sat down to write the Constitution, they said, we don’t want to do this, again, we want to make sure that our system has checks and balances to make, you know, to prevent against mob rule or rule by the tyranny of the majority, as some of them expressed. But within that system of checks and balances, they did want every decision point to be majority rule.

Adam Jentleson  08:08

So it’s a combination, a balance, they’re trying to strike between majority rule and minority rights. And they wanted this system to continue to allow the majority to conduct the public’s business. This was what they put a high priority on that as a noble good. John Calhoun, when he came along in the sort of first half of the 19th century, he saw that left to its own devices, the majority was going to start abolishing slavery, that that was where the winds of change were blowing. So he sought to empower the minority beyond what the framers intended. The Filibuster had been used occasionally, sort of what we would call a filibuster, they didn’t have this word at the time, had been used occasionally by other senators prior to John Calhoun.

Adam Jentleson

But what Calhoun did was he innovated this idea of systematically deploying it against specific issues in the name of minority rights. And that’s when it really started to become a thing. It acquired the name about 10 or 20 years after that, but it was specifically used to design to increase the power of the minority beyond what the framers intended, often with the motivation of preserving slavery.

Julian Castro

John Calhoun was on a segregationist, white supremacist, what were the kinds of issues that he was zeroing in on with the Filibuster?

Adam Jentleson

Yeah, I mean, Calhoun was a bad guy. He, you know, at the time, you know, there was even a strain of thought that, you know, slavery was bad for white people. This was not a particularly enlightened time. But these were some of the discussions that were going on and Calhoun..

Julian Castro

But there were the stirrings of a movement, the stirrings of the abolitionist movement to change things.

Adam Jentleson

Absolutely. But Calhoun wouldn’t even tolerate this idea that slavery was perhaps bad for white people. He would go to the Senate floor and he gave a speech in which he reframed, rejected that idea completely and give an entire senate floor speech, explaining why slavery was a positive, good for everybody involved. So this was a bad guy, and he was sort of the grandfather or spiritual grandfather of the Confederacy in a lot of ways. The thing about this era is that basically, most issues were about slavery, even if they weren’t explicitly about slavery, it was about the balance of power between the North and the South. And so the slavery was the subtext to virtually every single major debate that went on at the time. Of course, we know that in disputes about the territory and expansion of the nation, and how state should be admitted, you know, slavery was often a factor.

Adam Jentleson  10:26

It was also a factor in economic debates, there was sort of this battle going on for supremacy between the North and the South in terms of their economic models. And it was clear the subtext to all of this was that if the northern economic model proved superior, it was one of the major factors that was going to lead to the abolition of slavery. And so Calhoun’s first major Filibuster in 1841, was against a bank bill, that Henry Clay and the Whig administration at the time was trying to advance. So while you’d look at this and say, This is about a bank bill, it’s not really about slavery. Everybody at the time knew that it was really about slavery, you know, so everything at the time slavery hung over like a sword of Damocles infusing every single debate about virtually every issue.

Julian Castro 

And that pattern of using the filibuster to block progress on equality, civil rights that continued into the 20th century didn’t.

Adam Jentleson

That’s right. And the pattern if anything got more distinct as time went on. During the Jim Crow era, the Filibuster was strengthened. You know, it went from this talking filibuster idea to having for the first time the ability to impose a supermajority threshold, which is what we associate with the Filibuster today. Everything that passed the Senate, basically, up until the last few decades, passed or failed, based on whether it could secure a majority in the Senate. This was true all the way up through the 1960s into the 1970s. Nothing had to clear a supermajority threshold.

Julian Castro 

All you needed was 50 plus one.

Adam Jentleson 

All you need was 50 plus one. In 1917, a rule is introduced that allows senators to figure out a way to start applying the supermajority threshold I won’t bore you with the details. But the irony of it is the rules actually intended to end Filibusters. But it does put a supermajority threshold on the books for the first time that can be applied to regular legislation in the Senate. So what happens during this era in the Jim Crow era is that Southern white supremacist senators start to figure out how to repurpose this rule and apply it exclusively to civil rights and insist that civil rights bills and only civil rights bills have to clear a supermajority threshold.

Adam Jentleson  12:31

And so they use this new rule to kill every civil rights bill that comes before the Senate from the end of reconstruction 1877 all the way through the passage of the first major Civil Rights Act of 1964. What’s important to understand is that America was actually ready to pass civil rights during this time. I think, a lot of times we think, you know, maybe the senate put a cooling rule in America wasn’t really ready to pass civil rights until the 1960s. That’s just not true. Bills to end lynching, bills to end poll taxes and bills to end workplace discrimination, started to pass the House of Representatives in the 1920s and come over to the Senate, where they clearly had majority support.

Adam Jentleson 

They had presidents of both parties who were on the record saying they’re willing to sign these pieces of legislation, and they had massive public support. So these bills had everything that you need to pass, America was ready for action. But the southern white supremacist senators self-empowered white supremacist who made no bones that this was their motivation, use this new rule to kill all of these bills and stop them from passing we could have had in America action on civil rights decades before we finally acted. And if you sit and think about the human consequences of that delay, you know, the Senate is often talking about via cooling saucer and having wisdom and it’s delay. I mean, the human cost of that delay is incalculable, and then horrible to contemplate.

Julian Castro

Talk to me about the opposition to what we see today as blockbuster legislation that helped us march toward equality in our country in the 20th century.

Adam Jentleson  14:12

Yeah, so I mean, this was a very difficult thing to achieve. The opposition was fierce. The opposition was led by a man named Richard Russell, who was the senior senator from Georgia. And throughout this period from the Jim Crow era, all the way through the passage of the 1964 bill, which sort of marked the end of the era. Russell was the leader of the Southern bloc; he made no bones that his primary goal and public service was to preserve white supremacy and that he saw the Filibuster as his primary tool for doing this. The other irony of Richard Russell is that he was LBJ his mentor, LBJ became leader because of the support of Richard Russell. And then he later broke with Russell as president to try to pass the civil rights bill. LBJ for all we remember him fondly was horrible on civil rights in the 1950s.

Adam Jentleson

And was one of the leaders in the senate of trying to get and stop Civil Rights bills, the 1957 bills complicated. We could talk more about that. But he did pass it but only after gutting it to the point that it was acceptable to rustle in the southern white supremacists.

Julian Castro 

I mean, he ended up evolving tremendously during his time. LBJ did during his time in Washington.

Adam Jentleson 

That’s right. And so there’s 1964 debate is sort of the you know, this is sort of your Luke Skywalker meets Darth Vader moment where he, he sort of, you know, turns on his mentor, and I’m probably not using that analogy exactly, right. Star Wars fans will come after me. But, you know, this is.

Julian Castro 

Yeah, I think that would be like Luke Skywalker turning on Yoda.

Adam Jentleson

We shouldn’t give Richard Russell that much credit. So you know, but this is, he’s turning on his mentor, right? And it’s this sort of intense drama. And it was really hard to break that Filibuster. That Filibuster against the 1964 civil rights bill went on for over two months, Southern senators were able to work together to continually block passage of the bill, using the talking Filibuster. And the only way LBJ was eventually able to overcome it was by invoking this rule that had been put in place to end Filibusters, the super majority threshold. Now, just to show, you know, you may think yourself, well, it’s good thing, this rule is there, it helps you break Filibusters, I just would underscore that it took two and a half months.

Adam Jentleson  16:16

And LBJ in his effort to break the Filibuster, had the cooperation not only of the Democratic Senate leader at the time, Mike Mansfield, but also the full cooperation of the Republican senate leader of the time, Everett Dirksen, that’s how hard it was to break. I think it’s, you know, probably impossible to imagine today, Biden having the cooperation to break a Filibuster of both Chuck Schumer and Mitch McConnell. So you know, to the extent this cloture rule was able to be used to break this 1964 filibuster times have changed dramatically, and it’s virtually impossible to envision it being used to break a filibuster on something like voting rights now.

Julian Castro 

When did they and why did they move from the rule that said, you have to actually talk talking Filibuster, which everybody remembers in the movies, and still exists in state legislatures? When did the senate move from that to you can just basically, you phone it in or email it in?

Adam Jentleson

Right? Yeah. So the threshold was lowered, it used to be two thirds, that two thirds threshold was set in 1917. With that rule that we were talking about before, it was lowered in 1975. And one thing that I want to underscore here is that people have been trying to reform the Filibuster, literally since it appeared in the Senate. So the best they could do in 1975, was to lower the threshold, the thought was that that would make it weaker, seems intuitive, if you, you know, take it down.

Julian Castro 

67 to 60.

Adam Jentleson

Right. And so but then it had the opposite effect, because senators were less hesitant to use it, because it wasn’t as severe. And so what you saw after that reform was a momentary decline for a couple of years and the use of the Filibuster, but then senators start to realize, well, hey, it’s not quite so bad, I won’t get as much angst from my colleagues if I use this thing, but it’s only 60 votes. So you quickly saw a rise in the use of the Filibuster. And this reform ended up having the opposite effect of what was intended. And that led to its, you know, sort of gradual normalization even but still back then it was still only being used, you know, maybe a dozen or so times a session.

Adam Jentleson  18:17

It wasn’t until Mitch McConnell that it started us on everything. But it was also around that time that this other reform happened, where they started allowing silent filibusters. But it led to this idea that you would canvass the caucus ahead of time ask anybody, hey, does anybody plan to Filibuster, and if they signaled that they would, then you knew you either wouldn’t bring the bill to the floor at all. And it is the threat of the Filibuster that often kills bills before they even come to the floor. Or you knew that if you brought the bill to the floor, you would have to get 60 votes to pass it, because you’d have to overcome a Filibuster.

Julian Castro 

And, you know, we’ve just walked through a lot of history here. Talk to me about how the filibuster plays out. On today’s issues, whether we’re talking about common sense gun reform, or immigration or any number of other items that affects people’s everyday lives?

Adam Jentleson

Well, what it does is it imposes gridlock on all of these issues. You know, we do not lack, as you well know, for pragmatic, often bipartisan solutions to all of the issues that you just named. We know what the solutions are. We have legislation in most cases ready to go in bill form that could be passed tomorrow, if the Filibuster did not exist, that in many cases, these things are have passed the House of Representatives and have a president at the other end of Pennsylvania Avenue waiting to sign them. So these are things that are ready to pass.

Adam Jentleson 

The reason we as a nation have proven completely incapable of rising to these challenges that we face is because of the senate Filibuster, and it’s imposition of a 60-vote threshold on all of these issues. You know, in the past when partisanship was looser, and there was more cross partisanship. You know, it was only recently that you have sorted all conservatives into the Republican Party and all Liberals into the Democratic Party used to have Liberal Republicans and Conservative Democrats. So you can sort of count on cross party cooperation.

Julian Castro  20:07

Yeah. I mean, people make that point. I mean, you talked about LBJ, the person whose career, the president whose career most resembles LBJ, in terms of his experience since then, is Joe Biden. I mean, he spent 36 years in the Senate, obviously still has some very strong relationships, certainly on the Democratic side, perhaps on the Republican side as well. What’s the difference between what Joe Biden is working with and what LBJ was working with?

Adam Jentleson

So LBJ in his time as President, I’m gonna want to double check this numbers, but it was less than 10 Filibusters total, Biden is going to face hundreds of filibusters in his time as president. Barack Obama faced hundreds of Filibusters in his time. So we know this is this is a certainty. So you know, the basic difference is that everything Biden is going to want to do is going to face a filibuster from Republicans, that is a virtual certainty. Whereas LBJ for all the credit we give him as this legislative Master, faced very few Filibusters, it was really only the civil rights bills and the Voting Rights Act that were filibustered.

Adam Jentleson

So the biggest difference that Biden is facing is that he has to get 60 votes for most things that he wants to pass, the American rescue plan was passed through a process called reconciliation, which lets it avoid a filibuster. That’s another weedy processing thing. But suffice to say most legislation cannot go through reconciliation. So most legislation will require 60 votes to pass. That’s the major difference. He faces an oppositional party that is there to block him, and will Filibuster everything that he wants to do.

Julian Castro 

Over the last decade or so, folks in the Senate have started to nibble away at the Filibuster, Democrats and then more so Republicans, how have they done that and talk to us about the carve outs that exists right now for it.

Adam Jentleson

Yeah. So Richard Russell, who I’ve mentioned before, this self-avowed white supremacist, the filibuster was so important to him in maintaining white supremacy that he tried to put it in a lockbox and prevent it from any future generations from being able to reform it, he did this in 1949. And so since then, the Senate is supposed to be a place where members are allowed to change and reform the institution as they see fit. So future generations of senators started to innovate ways to change the rules, over obstacles that Russell had put up in place of these changes. Some of those reforms that we talked about in the 1970s were done through this way, what they’ve arrived at is something that we sort of hyperbolically call the Nuclear Option.

Adam Jentleson  22:32

The reason it’s called the Nuclear Option is that you’re not going through the path that Russell laid out to change the rules. The reason you’re not going to that path is that he made that path impossible on purpose. So there has to be another way. And all the nuclear option is, is a decision by the majority of the Senate to vote to change the institution’s rules. It’s that simple.

Julian Castro

And it just takes a majority 50 plus one.

Adam Jentleson 

It just takes a majority. That’s right. If you want to if you want to change the rules that require a supermajority, it only takes a majority to do that. And the carve outs that they’ve created to the filibuster include all nominees. So any presidential nominee or judicial nominee only requires a majority to pass or be confirmed in the senate today.

Julian Castro

That supreme court justices, cabinet appointees, lower appointees.

Adam Jentleson 

That’s right. And so that’s why you see some of Biden’s nominees being confirmed, even though they’re getting, you know, 50 votes or 51 votes. That’s all it takes in today’s Senate.

Julian Castro

You’ve spoken very powerfully about the failure, for instance of the Senate to act after 20 elementary school students were gunned down in Newtown.

Adam Jentleson

That’s right. And I think that, you know, we’re feeling great right now because of the passage of the rescue plan. But we’re about to hit a very difficult period where things are going to get blocked. But I would hope that we sort of hold on to that feeling of joy that we felt after the passage of the American rescue plan. And we should think to ourselves as Democrats, that was good, we passed this on a majority vote again..

Julian Castro  24:03

That did not require getting over the Filibuster, right? It helps your point.

Adam Jentleson

Right, because it’s, you know, we should keep doing that. And I think that most democrats see that they’re paying no price for having had no Republican support on this bill. Bipartisanship is great in theory, but it doesn’t put dollars in your pocket or food on the table. And it’s very clear that people care about the results of what’s in the bill, not the process by which it’s passed. And we’re not talking about crazy stuff that’s out of bounds here. We’re talking about, you know, staying within norms and rules and traditions. But going back to the well-established norm of passing things on a majority vote basis. And yeah, you know, one of my formative experiences in the Senate was being present at the Filibustering of a background checks bill that was put forward by Senators Manchin and to me a Democrat and a Republican, after the massacre at Newtown, Connecticut, and that bill got 55 votes.

Adam Jentleson

Bipartisan majority of the Senate, it was proposed by two senators who couldn’t have been more different, who’d found common ground on this issue. It was supported even by some gun rights groups. And it was supported at the time by 80% of the American people, as poll showed at the time. But it failed, because it couldn’t get this arbitrary threshold of 60 votes. There was no big speech, there was no Jimmy Stewart moment, it was just quiet failure in a mostly empty chamber at the time. And that was an incredibly depressing experience for me. And it just didn’t make sense. I mean, we were dealing with powerful advocates, the Newtown parents, the parents of the slain children who had come to the Senate to try to get senators to have a heart and take some modicum of action.

Adam Jentleson 

And then we had to explain to them why this bill didn’t pass, they’ve done everything right, they’d gotten 55 senators on board. But our system is so dysfunctional, that it still couldn’t pass. And we just we have to look at the American Rescue Plan. And we have to look at that bill and say, it would be great if Republicans jumped on board, but it can’t be a requirement, the way our system was supposed to work as you get a majority in both houses, your bill passes. That’s it. And we should continue to pass popular legislation that meets the challenges that we are facing, if Republicans would like to hop on board, great, but if not, that’s their choice. And our choice will be to meet these challenges of the party.

Julian Castro  26:28

So let’s zero in a little bit on where we’re at now and the prospect for actually doing away with the Filibuster. As it says today, I think more than 40 democrats in the senate support, eliminating the Filibuster or significantly reforming it. You know, of course, President Biden has recently said that he might be open to reforming it by make requiring you to talk making a talking Filibuster. Why do you think it is that there has been on the Democratic side, a reluctance among some to say, okay, well, let’s eliminate this. And I’ll say I, you know, as I remember, during the presidential campaign, I think Bernie was still saying at that time that he did not agree with doing away with the Filibuster. So up until pretty recently, it was actually a cross section of Democrats and independents. Why is it? And what do you see as the likelihood of getting to enough votes to change it?

Adam Jentleson 

I think that, you know, there’s a lot of hesitancy partially for some of the fears that you were articulating before, I think, are perfectly legitimate. But I think that a couple things have shifted, I think that one, it’s become increasingly clear, as we were saying that a lot of these bad things are going to happen anyway. And we need to act to give ourselves more room and more insurance against them, rather than to sort of sit around and wait for them to fall on us. I also think the republican party has gotten even more extreme if it’s possible in a year than it was at the time. And I think that senators who had hoped the President Biden’s election would sort of prompt a period of bipartisanship and a return to sanity among the Republican Party have been disabused of that possibility.

Adam Jentleson  28:12

That the event of January 6, that, you know, Republicans circling the wagons to defend that those actions in many cases, and then defend the president in the impeachment trial, had the skills fall from senators eyes in a lot of ways. And then frankly, I think the experience the American rescue plan, I mean, people have asked me what I think is the most significant development in the fight for Filibuster reform the last few months, is it Biden’s comments, is it Manchin’s comments, and I’ve said it’s the votes on the American rescue plan. The fact that not a single republican in either house of Congress voted for that plan, despite the fact that it reflected the broad consensus of economists and health experts of what America needed to respond to a global pandemic that has claimed the lives of 500,000 Americans.

Adam Jentleson

And from political perspective was polling at 75%-80%. The fact that you couldn’t get Republicans to vote for that means that you’re not gonna get Republicans to vote for just about anything else. So I think there’s a sense of responsibility that goes along with this, that we are in power, we are a nation that is facing tremendous crises. And it is our responsibility to face up to these crises. And if we can’t do them with Republicans, we have to do them ourselves. The reason I think some Democrats are still has attendance, I think they’re still sort of enthrall to a certain extent to this, you know, idea that the Filibuster promotes consensus and bipartisanship.

Adam Jentleson

But I think eventually, within a very short period of time, Senators Manchin, Sinema and others are going to see that if they can go find 60 votes. Great. I’m sure the caucus would love to see that happen and would rally behind them if they could. But I think very soon, they’re going to see that their attempts to find 60 votes are not happening. And the choice is going to become a lot more difficult for them. I think they’re going to basically be the ones deciding on whether President Joe Biden’s administration is a success or failure. And I think that’s a lot of pressure. And I think that eventually that’s going to be what brings them along.

Julian Castro

Right now. In state legislatures across this country. There are more than 200 pieces of legislation that are aimed at suppressing the vote, chipping away at the convenience of voting who can vote? The Congress is having an opportunity through legislation titled H.R. 1 right now, to help ensure that we can combat some of these efforts federally, and basically a voter protection effort and the expansion of the franchise. Is that the pressure point that may well get at least these Democratic senators to go along with perhaps carving out and another exception to the Filibuster?

Adam Jentleson  30:36

I think that is the most likely pressure point. Yes. Because I think, you know, there it is sort of the unstoppable force meets the immovable object, you know, it’s something that Democrats can’t accept failure on. And it’s something that Republicans can never let pass. And you know, Biden can’t accept failure on it either. So I think that is the thing that is most likely to bring this to a head, there certainly would be a fair amount of poetic justice as well, if it was a civil rights issue that killed the filibuster, and with its legacy of white supremacy. So and I think, you know, you’ve seen President Obama call for the elimination of filibuster because of the need to pass this issue, I think it’s going to, there’s going to be a weight of moral force, that that issue delivers that few others can match.

Julian Castro 

You know, folks, Republicans who are listening may say, oh, I’m hearing what I’m hearing is the Democrats are going to do this, they’re going to do this, they’re going to do this. That sounds like a nightmare to me make the case to republicans of why this makes sense, as well, because you’ve pointed out that, hey, sometimes we forget that even getting 50 plus one is a real chore.

Adam Jentleson

Yeah, that’s right. I can actually assure Republicans that what we are able to pass is probably going to be a lot less than their worst fears. It’s hard to get 50 votes. I mean, looking in our party alone, this is why the framers set majority thresholds. They knew that in the country is big and diverse as ours, just to get a majority means you have to stitch together a broad spectrum of interests in our party alone, to pass something, you have to get Bernie Sanders and Joe Manchin to agree on a bill. So it’s always going to, it’s always going to be somewhat moderate. It’s not going to be far left proposals. You know, I personally support Medicare for all but the truth is, you’re not going to pass Medicare for all in the Senate, because it’s not going to get anywhere close to 50 votes.

Adam Jentleson  32:26

So I think that you know, it’s going to be things that Biden supports is going to be more centrist policies, because you’re going to need Joe Manchin on board to pass any of these things. The other thing that I would say is that I think for moderate Republicans, at least there should be a strong appeal here, because a return to a majority rule Senate would empower moderate Republicans to work on with Democrats and influence policy in their direction, right now, to get to 60 votes, you can’t compromise with moderates, because there’s only three or four of them. So you don’t even get close to 60.

Adam Jentleson 

But in the majority rule, Senate, Senators like Lisa Murkowski and Mitt Romney, Susan Collins will be kingmakers because Democrats lose one or two votes, you’re gonna need some Republicans, and then on any given issue, you’re likely to lose one or two votes, the moderate Republicans would have enormous power in this Senate to influence policy in their direction. So I think that you know, if that’s your inclination, I think you should support this because it will empower those moderate senators as kingmakers rather than just sort of a face in the crowd on your way to 60. That’s virtually impossible task.

Julian Castro

Just to play devil’s advocate a little bit here. What do you say to those who, you know, they’re with you, maybe in terms of the they’re progressive, or they may share an ideology, but they start getting nervous when they think about the protection of minority rights, that writ large that the Filibuster may serve to protect? At least that’s how they see it. And so they’re afraid that one day when we have a Republican president, a Republican House and a Republican Senate, somebody like Mitch McConnell, is gonna ram through doing away completely with Roe versus Wade, and doing away with the Voting Rights Act completely, and, you know, important parts of the Civil Rights Act and rewriting the tax code even more to support huge corporations instead of everyday people. I mean, what do you say to people that, you know, feel that anxiety? Where are the other checks and balances that can keep that from happening? If we go to just 50 plus one on everything?

Adam Jentleson  34:33

That’s right. Yes, I take those concerns very seriously. This is a serious change that we’re considering here. But if you sit down and think about those fears, and you face them, you see that we don’t have any other options here because most of what you just described are policies that are likely to happen through the courts right now. We have a six to three conservative majority on the Supreme Court, and President Trump alone has appointed almost a third of the federal judiciary. Trump and Bush together have appointed half. And you’ve seen rollbacks of abortion rights, rollbacks of civil rights happening through the courts on a regular basis. Now, we need to be able to pass legislation that insulates ourselves against these fears, and these rollbacks of rights and laws.

Adam Jentleson 

We have about a year and a half perhaps to do that, before we face the 2022 midterms, we can’t just try to hold the line because that line is going to be overwhelmed very soon by the courts, and by Republicans, other structural advantages. We have to pass laws; we have to go big and bold now to push that line further down the field and mixing my analogies here. But we have to give ourselves more space and more insulation against all of those threats because they’re coming down the pike, whether we like it or not. There’s a structural element here, the Filibuster is a tool that makes it easier to stop things that distributes power asymmetrically, overwhelmingly to the Conservative Party, because conservatives want to stop things you know, they are and William F. Buckley is famous phrase, they’re the party that stands up for history yelling stop, most of their agenda can be achieved by stopping progress.

Adam Jentleson  36:04

And then by letting the courts roll back rights and regulations. And then you know, the other things they want to do like tax cuts, they can do through reconciliation. So the current setup is perfect for them. They love it. But it’s terrible for us, because virtually everything we want to do, we have to do through legislation. So by making it almost impossible to pass legislation, we are basically making it impossible for progressive to pass our agenda. The other thing I would say is that if you forego progressive priorities, they’re certainly going to fail if we leave the Filibuster in place. And that includes things like voting rights, immigration, many climate change policies, the list goes on and on.

Adam Jentleson

Basically, most of Biden’s agenda. If you sacrifice those priorities now, in the hopes that the Filibuster will be around later for us to use, you’re betting the farm on the idea that Mitch McConnell will let us keep the filibuster when it becomes in his advantage to get rid of it. And I know he didn’t get rid of it under Trump, but it served a useful purpose for him under Trump, because Trump was asking him to pass all these crazy things that he didn’t want to pass. But imagine Republicans back in control house set in the White House.

Adam Jentleson

And there’s an issue that the base is demanding that they pass, and it passes the house, their President supports it, the base is up in arms, and it can get 51 votes in the Senate, but not 50, 100 times out of 100. Mitch McConnell will get rid of the Filibuster to pass that legislation. So in that scenario, we would have forgone all of our own priorities and sacrificed everything we want to do. And let Mitch McConnell take the Filibuster away from us when we really needed it. So I think it is a short-sighted approach to try to save it now. Hope that we can use it later and sacrifice all of our priorities, I think that’s going to end up being a bad bet, if that’s the bet we make.

Julian Castro 

Through your seven years working for Senator Reid, and what I’m sure was a labor of love writing this book about the history of the filibuster, and really the history of that chamber of the Senate, I’m sure that you have a lot of interest and a lot of affection for how the world’s most deliberative body as they call it operates, and perhaps hope also, we’ve just been through a pandemic, we just experienced January 6, which in many ways was unprecedented, at least in modern United States history. Are you hopeful about the prospect for Washington DC to work better?

Adam Jentleson  38:25

I am hopeful. I wrote this book and I’ve made these recommendations because I think this is healthy for the Senate. I think the senate right now is on the verge of becoming just another failed institution in American life, like so many other institutions that we’ve seen fail, I think, you know, what it has to do is remember that its primary purpose is not to preserve its own rules and amber, but rather to pass thoughtful, effective, pragmatic solutions to the challenges we face. That’s what the framers wanted it to do. And if it can recapture that purpose, I think it can succeed again. And I think once you see the gears of legislation, start turning again, those are the conditions that can restore bipartisanship, it will be baby steps, it will be little by little one republican vote here, maybe two there.

Adam Jentleson 

But that is what is going to restore Americans faith in government. There is a broader reawakening for us as a party here, we’re seeing it with a recover with the American Recovery Plan, where if you pass popular legislation that does things for people that they like, we as a party will also become more popular. And, you know, maybe Republicans too, will have to sort of self-evaluate here and realize that if they’re going to be competitive as a party, they need to turn away from this, you know, aggressive turn towards white identity politics, and get back to making more pragmatic appeals to the center. So I think this is the way we have to move forward as a country, we have to make the senate a place where things get done against the government can function. And I think there’ll be a lot of positive downstream effects from that.

Julian Castro

There’s a lot at stake for our democracy if the Filibuster isn’t eliminated, or reformed at the very least, like shaping the balance of power between Democrats and publicans and passing reforms about who gets to vote or who gets to legally stay in our country. And although Mitch McConnell might have you believe that this is a radical socialist proposal, the elimination of the filibuster as we know it is essential to protecting our country’s democratic ideals and separating ourselves from a racist vestige of the past. Next week marks our very last episode of season one of OUR AMERICA and we’re talking to Grammy Award winning artist John legend about prioritizing the basic human rights of incarcerated individuals.

John Legend  40:36

We are the most incarcerated country in the world. And it’s a choice by our society to invest in cages. The more we spend on that the less we spend on our schools, our arts programs, our community programs, our health programs, all of these elements of society suffer when we spend so much money on policing, jailing, and imprisoning people.

CREDITS

OUR AMERICA is a Lemonada Original. This episode was produced by Matthew Simonson. Jackie Danziger is our supervising producer. Our associate producer is Giulia  Hjort. Kegan Zema is our technical director. Music is by Hannis Brown. Executive producers are Stephanie Wittels Wachs, Jessica Cordova Kramer and Julian Castro. Help others find our show by leaving us a rating and writing a review. Follow us at @LemonadaMedia across all social platforms, or find me on Twitter at @JulianCastro or in Instagram at @JulianCastroTX.

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