Consider This from NPR - 'We Have To Stop Rewarding Obstruction:' Will Democrats Nuke The Filibuster?

Episode Date: January 25, 2021

Adam Jentleson knows firsthand how powerful a tool the filibuster can be — and what's possible without it. He was deputy chief of staff to former Nevada Sen. Harry Reid, who was majority leader in 2013 when Democrats exercised "the nuclear option," eliminating the filibuster for presidential appointees. Now, Jentleson and a growing number of Democrats argue Senate leaders should eliminate the filibuster for legislation, which would enable Democrats to pass major legislation with a simple Senate majority, instead of the current 60-vote threshold. Jentleson lays out his argument in a recent book, Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy.In participating regions, you'll also hear a local news segment that will help you make sense of what's going on in your community.Email us at [e-mail] more about sponsor message choices: podcastchoices.com/adchoicesNPR Privacy Policy

One of the big questions right now in Washington, D.C., is about the filibuster. Where does President Biden come down on that? Does he think that there should not be a filibuster so that the Senate... It was a question White House Press Secretary Jen Psaki got on her first full day of work and on her second. Does the president still oppose overturning the legislative filibuster? The answer, by the way, is that Biden said last year he did oppose doing that. His position hasn't changed. He opposes overturning the legislative filibuster. He has spoken to this many times. His position has not changed.

But a lot of the president's most progressive supporters on the left think changing the filibuster is exactly what the Senate needs. Right now, the Senate makes it incredibly easy for a single senator or a minority of senators representing as little as 11 percent of the American population to block every single thing that the majority wants to do. And I think that part of the reason reform is such a pressing need right now is that we have to stop rewarding this sort of pugilistic behavior. We have to stop rewarding obstruction.

Consider this. It's called the nuclear option for a reason. We'll explain the debate about whether Democrats should make a dramatic change to the rules of the Senate in order to advance President Biden's agenda. From NPR, I'm Adi Cornish. It's Monday, January 25th. This message comes from NPR sponsor, BetterHelp. BetterHelp offers licensed professional counselors who specialize in issues such as isolation, depression, stress, anxiety, and more. Connect with your professional counselor in a safe and private online environment when you need professional help. Get help at your own time and your own pace. Schedule secure video or phone sessions, plus chat and text with your therapist.

Visit betterhelp.com slash consider to learn more and get 10% off your first month. We are still in the middle of this pandemic. And right now, having science news you can trust, from variants to vaccines, is essential. NPR Shortwave has your back. About 10 minutes every weekday, listen and subscribe to Shortwave, the daily science podcast from NPR. There's a point in most explanations of the filibuster where inevitably someone mentions Jimmy Stewart in the 1939 film Mr. Smith Goes to Washington. And if that movie was your only source of information about the filibuster, you'd think it was a tool for the little guy to stand up to big powerful interests by literally talking for as long as he could. Now, the standing up and talking thing does happen occasionally.

I do not like them in a house. I do not like them with a mouse. I do not like them here or there. I do not like them anywhere. You might remember Republican Senator Ted Cruz reading Green Eggs and Ham while blocking funding for the Affordable Care Act. That was in 2013. Would you eat them in a box? Would you eat them with a fox? But that was theater, not even technically a filibuster. The reality is most filibusters today don't produce soundbites for cable news. The filibuster today is silent but deadly. Any senator can, simply by sending an email,

impose a filibuster that doesn't just delay a bill, but raises the threshold from the simple majority for passage to a supermajority. That's Adam Jentleson. He used to work for the former Senate Majority Leader and Democrat Harry Reid. He also wrote about the history of the filibuster in a book called Kill Switch, The Rise of the Modern Senate and the C the crippling of American democracy. Now, quick definition here, in the Senate, a filibuster means you need 60 votes for most legislation to pass rather than a simple majority of 51. Jentleson's view, shared by a growing number of Democrats who want to see big progressive legislation passed, is that the filibuster has become a tool for

obstruction and that the Senate, famously thought of as a cooling saucer for legislation passed by the House, is broken. The Senate isn't a cooling saucer anymore. It's a place where good ideas go to die. And the fundamental purpose of the institution is to produce thoughtful policy solutions to the challenges we face as a nation. If it's no longer doing that, if rules that were created to foster deliberative debate now result in paralysis, it's time to reform those rules. So let's back up. Jentleson's view is colored by when he was working in the Senate, back during Barack Obama's first term in the White House. I've got people who've been waiting for six months to get

confirmed who nobody has an official objection to, and I can't get a vote on them. In September of 2010, President Obama joked he couldn't nominate someone for dog catcher without Senate Republicans led by Mitch McConnell blocking it. It's very hard when you've got a determined minority in the Senate that insists on a 60-vote filibuster on every single person that we're trying to confirm. Those were the Senate rules at the time. Because of the filibuster, presidential appointees needed approval from a two-thirds majority, so 60 votes. Half of all the filibusters against presidential nominations in U.S. history have involved Mr. Obama's nominees. By 2013, Obama had won a second term,

and Republicans continued to filibuster his appointees. Obama was president. He'd been elected by a large majority, but Republicans were filibustering everything. So Democratic Majority Leader Harry Reid, who I spoke to this past year, led the party in a major change of Senate rules. Senate Democrats voted yesterday to change the rule that allowed Republicans to block presidential appointments. It was called the nuclear option. Republicans attacked it as a power grab. Democrats now only needed a simple majority to confirm Obama's cabinet members.

He couldn't get his cabinet officers confirmed, sub-cabinet. We had the D.C. Circuit, the second most important court in the country, had many vacancies. What were we to do? As a result, Republicans also got to enjoy that change in the rules when they controlled the Senate. For example, it made it very easy for President Trump to confirm his appointees to cabinet-level positions. But there was an exception.

The filibuster remained in place for Supreme Court nominees. Millions of voters said this was the single most important issue to them when they voted for me. That brings us to 2017 and President Trump's first Supreme Court justice nominee. Judge Neil Gorsuch. Gorsuch, nominated weeks after Trump took office, was to fill a seat left vacant on the court since early 2016, when President Obama's nominee Merrick Garland had been blocked by Republicans. So finding themselves with a majority but without the 60 votes needed to move Gorsuch forward, Republicans decided it was, again, time to change the rules. They have voted to change the rules on Supreme Court nomination filibusters.

Republicans erased the filibuster from the Supreme Court nomination process, meaning a new justice now needs only 51 votes to be confirmed, not 60. The nuclear option has been invoked for Supreme Court nominations. That's the recent history. The filibuster weakened in 2013, weaker still in 2017. It still remains in place, according to the rules of the Senate, for either party to use in blocking new laws. And that's where Democrats like Adam Jentleson want to go a step further and return the Senate to a time when the filibuster didn't exist at all. That's right. The filibuster did not exist when the Senate was first invented. It didn't come into existence until after all the founding fathers had passed away.

It really was shepherded into existence by John C. Calhoun, who was a father of the Confederacy and the leading advocate for the slave power in the Senate during his time there. And it has always existed and been wielded primarily by senators who were interested in overriding progress on first slavery, you know, overriding progress against slavery, and then overriding progress on civil rights. It was Democrats from the South who famously filibustered the Civil Rights Act of 1964. And today it continues to primarily empower reactionary, conservative and predominantly white minority in Congress who benefit far more from its use than anybody else. Jentleson's recent book presents an argument that Democrats in power today need to capitalize on their very slim majority in the Senate by eliminating the filibuster as a weapon for blocking legislation. And the argument goes like this. Yes, it would make it easier for Republicans to pass major

legislation the next time they're in power. But Democrats are in power right now. And they got elected promising big things that require big legislation. The legislative filibuster is a crucial part of the Senate. This is not an abstract debate. In fact, it's already paralyzed the Senate less than a week after Joe Biden's inauguration. Minority leader Mitch McConnell wants to get Democrats to promise not to end the legislative filibuster. Here he is on the Senate floor this past week. And now even as voters choose President Biden for the White House, they simultaneously shrunk Democrats' House majority and elected this evenly divided Senate. A bit of translation here,

he's saying Democrats have no political mandate to nuke the filibuster. Mitch McConnell will not dictate to the Senate what we should do and how we should proceed. Senate Majority Leader Chuck Schumer on Sunday said Democrats don't intend to take nuking the filibuster off the table. He will not dictate to us how we move forward. That's it. Next. And as of Monday afternoon, both sides are at an impasse. As leverage, McConnell is holding up an important process in the Senate known as the Organizing Resolution, basically rules for the road on how the Senate will be

run for the next few years. And without that Organizing Resolution, it's really difficult for the Senate to confirm President Biden's cabinet appointees or act on major legislation, like another pandemic relief package, immigration reform, or major action on climate change. And all this is happening at a time when the Senate is also scheduled to start an impeachment trial two weeks from now. That brings us back to the question we started with. Democrats have 50 seats in the Senate. They are very unlikely to get 10 Republican votes needed to pass the kind of legislation they want. So will they end the filibuster? Yes, I think they should. Adam Jentleson and I talked it out. I think that it may take some

time to develop the political will to do it. Right now, there are a number of Democratic senators who are somewhat reluctant, but there aren't that many of them. I also think the history of reform is paved with senators who swore they would never do it and then come around. I think it's a question of posture for the Biden administration. And, you know, they can try their approach and hopefully think there will be a question of whether Democrats are willing to pursue reform in order to deliver the solutions that this country desperately needs or whether they're willing to basically give up and accept that nothing's going to get done. But plenty of Democrats are absolutely regretful of the move to get rid of the filibuster for judicial nominations. They look at that and say, that was a mistake. You know, what's to stop that from happening again? Well, I think, you know, where you stand

depends on where you sit, as the saying goes. And I think Democrats were feeling somewhat regretful under Trump for that decision. But I think right now they're probably very relieved that it only takes a majority to confirm nominees to administration positions and to judicial appointments. Because if it were 60 votes, President Biden's nominees would be in a very tough situation. But I think that you really

have to step back and look at this on balance, because there is no question that the filibuster, both right now and in the last few years under Trump, and historically, have always benefited the side of reactionary forces and the side of conservatives far more than it benefits the side of progress and the side of the liberals. This is not a qualitative judgment on my part. This is just a fact. Liberals primarily benefit from passing big legislation,

expanding the safety net, expanding civil rights, and those sorts of things. Most of those actions are only capable of being done through legislation. So it's much easier to benefit from the ability to block things if you're a conservative. And that is something that has been true throughout history and continues to be true today. In the past, Joe Biden has made a big deal out of his relationship to the Senate, his relationship with other senators, and his ability to move things in a bipartisan direction. What to you is the reality of the situation on the ground right now? You know, things have changed a lot in recent years.

And I think that, you know, President Biden spent most of his years in the Senate under very different circumstances. The filibuster was still being used at a relatively low level, and partisan polarization was still relatively low. When President Obama was elected in 2008, there were still a relatively large number of Republican senators who came from blue states and vice versa. That polarization has really taken hold, specifically in the Senate, in a very firm way just in the last few years. And I think the reality is that the kind of bipartisan cooperation that used to be normal in the Senate when President Biden was there just doesn't exist anymore. Now the prevailing environment is one of sharp partisan polarization and something called negative partisanship, which is that one side succeeds by making the other side fail. And I think that is a dynamic that really paralyzes the institution. It makes it very hard to work across the aisle. I think, you know, recognizing that and facing that reality front on is something that President Biden is going to have

to do pretty early on in his term. Adam Jentleson, his recent book is called Killswitch, The Rise of the Modern Senate and the Crippling of American Democracy. You're listening to Consider This from NPR. I'm Adi Cornish.