Joseph Bernt

Joseph Bernt

Hardly a day passes without politicians, media reports and next-door neighbors observing how divided the nation has become along partisan lines.

Our nation has experienced 3.5 million recorded Covid cases and that number continues climbing. More than 617,000 have died, and every day adds more than 3,000 deaths to this total.

Although the rate of new vaccinations has dropped recently, our nation will reach the magic 70-percent inoculation level this summer or by early fall as schools and a strong consumer economy reopen amid continued government stimuli.

Our nation survived an attempted coup on January 6, followed by the inauguration of a new president with a popular vote margin of more than 7 million and his party in control of both the House of Representatives and the Senate—a trifecta.

So why so much chatter about the country’s partisan division? Although the Democrats kept control of the House of Representatives and gained control of the Senate in the 2020 election, they did so by the slimmest of margins.

Every vote matters, particularly in the Senate, now divided 50-50, with Vice President Kamala Harris prepared to break tie votes.

Unlike the House, where passage of a bill requires a simple majority, Senate passage of most legislation often requires a three-fifths supermajority or 60 votes. Senate procedures have long made legislation difficult to pass but easy to block.

Let’s learn about the filibuster as practiced in the modern Senate, a procedure mired in arcane rules and assertions about protecting the minority. An April 2021 Monmouth University national poll discovered that Americans are only marginally familiar with the filibuster.

Only 19 percent of respondents told Monmouth pollsters that they were familiar with how the Senate filibuster works. Another 40 percent said they were somewhat familiar, but 10 percent claimed they were not too familiar, and 2 percent said they were not familiar at all with the Senate filibuster.

Fully 29 percent of the 800 respondents polled admitted that they had never heard of the filibuster.

Those readers who are “only somewhat” or “not too familiar” with the filibuster or who “have never heard” of the filibuster—can find a helpful friend at the Cannon Beach Library. The library recently added “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy” by Adam Jentleson to its green dot shelf of new books.

Jentleson, a free-lance magazine writer, political aide and veteran of political campaigns, served as deputy chief-of-staff to former Nevada Senator Harry Reid, the Senate Majority Leader from 2007 to 2015.

The Monmouth poll also found that 38 percent of those interviewed support keeping the filibuster as currently used. By the same 38 percent, respondents favored reforming how the filibuster is used; and 19 percent would end use of the filibuster altogether.

The modest awareness and support for the filibuster that the Monmouth poll found suggests that many respondents were influenced by Jimmy Stewart’s moving portrayal of exhausted, idealistic Senator Jefferson Smith presenting a 25-hour Senate speaking filibuster in “Mr. Smith Goes to Washington,” the 1939 hit movie frequently viewed on late-night television.

The fictional Jefferson Smith filibustered abuse of power and injustice. In an archetypal filibuster against passage of the 1957 Civil Rights Act, South Carolina Senator Strom Thurmond spoke for 24 hours and 18 minutes in support of continued systemic abuse of power and injustice in Southern states.

Moreover, the filibuster presented in Stewart’s classic film bears little resemblance to contemporary Senate filibusters that no longer require floor speeches to stymie legislation supported by the majority.

In “Kill Switch,” Jentleson chronicles the evolution of Senate rules and customs from the Founding Fathers drafting the U. S. Constitution to the modern era of Senate Majority Leaders Harry Reid and Mitch McConnell.

What he documents is that the Constitution never mentioned the need for a supermajority of 60 votes to close debate and proceed to a vote. A simple majority was sufficient for nearly all Senate decisions.

In 1917, however, to end a lengthy debate over arming U.S. shipping, a Senate committee wrote and the Senate passed Rule 22, which called for a supermajority of two-thirds (later changed to three-fifths) to end debate so the business of passing legislation could continue.

Who knew that this compromise to preserve minority interests while ending debate after a reasonable time would serve to stymie legislation that had majority support? This became what is now called cloture, a means to end debate and vote on a bill or executive appointment being debated or filibustered.

Cloture votes also allow 41 senators to stop passage of legislation supported by 59 senators, effectively privileging minority over majority governance.

In the 1970s and 1980s, Senate leaders began to survey members to get advance indications of possible intentions to filibuster. Gradually this led to “silent” filibusters. One telephone call from a Senate staffer could trigger a filibuster, meaning legislation went from needing a simple majority to needing support of a supermajority of 60 senators to be placed on the floor for debate and a vote.

In a closely divided Senate, the difference between finding sixty versus fifty votes means that much legislation desired by the public may never be introduced to the legislative process, and much that is introduced will fail for the lack of supermajority support.

The Constitution does give the Senate the task of setting its rules and procedures, usually at the opening of each Congress, approved by a simple majority. This is a sensible solution that Jentleson recommends for overcoming the stalemate posed by silent filibusters and supermajority cloture votes.

We’ve been witnessing since January; however, just how hesitant Democrat and Republican senators are about changing filibuster and cloture requirements.

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