6

“Cooling the Coffee”: More Myths Senators Tell Themselves, and the Filibuster’s Clash with Effective Government and the Constitution

There is a tradition that Jefferson coming home from France, called Washington to account at the breakfast-table for having agreed to a second, and, as Jefferson thought, unnecessary legislative Chamber. “Why,” asked Washington, “did you just now pour that coffee into your saucer, before drinking?” “To cool it,” answered Jefferson, “my throat is not made of brass.” “Even so,” rejoined Washington, “we pour our legislation into the senatorial saucer to cool it.”

—MONCURE D. CONWAY, Republican Superstitions as Illustrated in the Political History of America

Mr. Smith Goes to Washington to Cool the Coffee

In 2011 the Senate engaged in its longest floor debate about the filibuster and Rule XXII since the one in 1975 that produced the reduction from two-thirds to three-fifths to pass a cloture motion. The earlier debate took place during an era of less partisanship and polarization. This one was, instead, a direct consequence of rigid partisanship and polarization, as Democrats and Republicans fought over nearly everything using every procedural weapon in the Senate’s arsenal, with the filibuster dominating the battlefield. In this case, it was the Democratic majority that was seeking to curtail obstructive tactics. During the debate, senators offered many of the usual arguments for and against supermajority cloture and its effects. One notable feature of the 2011 debate, however, was the nostalgic invocation of Hollywood mythmaking in the form of a movie from 1939. Several senators invoked Frank Capra’s classic film Mr. Smith Goes to Washington, which features the iconic filibuster by Jimmy Stewart’s character as a model of what a filibuster should be and why it needs to be preserved and protected. In fact, of the seventeen senators who spoke at least once during this debate, seven senators referenced the movie, some more than once. Even though Mr. Smith Goes to Washington was a popular Academy Award winner in 1939, there were no mentions of it in other much longer Senate filibuster debates in 1949, 1959, and 1975. In 2011, senators substituted cinematic fiction for their own history as an institution. No examples of real filibusters were mentioned. Perhaps senators were tempted to look to Hollywood instead of their own annals because most real “talking” filibusters to which they might have referred were not so noble. Stretching back into the nineteenth century, most had been in support of white supremacy by opposing civil rights measures or filibuster reform. Not surprisingly, there were no encomiums for Strom Thurmond’s record-setter against the 1957 Civil Rights Act, for example. Instead, senators repeatedly invoked Jimmy Stewart and his character, “Jefferson Smith,” in the words of Amy Klobuchar of Minnesota, “as a shining example of how individual conscience can matter because an individual can stay on the Senate floor to the point of exhaustion in order to stymie a corrupt piece of legislation.”¹ Much as the Senate six years earlier consciously avoided any mention or indictment of the filibuster in its apology for its failure to pass antilynching legislation decades before, senators in 2011, perhaps unconsciously, could not defend the filibuster with its own history.² In 2005, the year of the antilynching apology, and during a dust-up over filibusters of judicial nominations and a threat to curtail them, then minority leader Harry Reid combined “Mr. Smith” and the framers of the Constitution in the same argument for the filibuster, mixing cinematic imagination with an equally fictional claim about the Constitution. “Some in this chamber want to throw out 214 years of Senate history in the quest for absolute power,” Reid claimed. “They want to do away with Mr. Smith, as depicted in that great movie, being able to come to Washington. They want to do away with the filibuster. They think they’re wiser than our Founding Fathers, I doubt that’s true.”³

The Filibuster: Constitutional Myths and Political Realities

“We take ourselves too seriously,” Senator Henry French Hollis told his colleagues. “We liken ourselves in solemnity to the United States Constitution.”⁴ As he addressed the Senate on March 8, 1917, the day it would vote to add a supermajority cloture procedure to its rules, little could Senator Hollis anticipate just how seriously his successors would take themselves and how solemnly they would liken this rule, and all it would entail, to the Constitution. As part of this, Hollis probably could not imagine how the rule the Senate was about to pass—a rule he supported—would become the functional equivalent of a constitutional amendment to the systems of checks and balances, a fourth veto point in the legislative process. And as supermajority cloture evolved from a rarely used procedure intended to check minority obstruction into one of the most important, frequently employed, and controversial minority veto points in American politics, the political justifications for the filibuster likewise escalated and elevated it to constitutional status as the defining feature or essence of the Senate just as, in their view, George Washington, James Madison, and Frank Capra intended.

As part of the research for this book, I read and coded every major Senate debate about reforming the filibuster and supermajority cloture from 1917 to 2017.⁵ The debates prompted by the filibuster, supermajority cloture, and their reform inevitably became occasions for general expressions about the Senate’s place and purpose in the Constitution and scheme of government. As senators addressed one another, they spoke directly to the relationships between and among the core concepts in this book: equal representation, the continuing body doctrine derived from staggered terms, and minority power or rights. In so doing, the debates revealed how many senators came to strongly associate, if not equate, supermajority cloture with the essence of their institutional role in the Constitution’s architecture of checks and balances. Moreover, and increasingly as the decades rolled by, senators and others made erroneous connections between this essence—the filibuster and supermajority cloture—and the Constitution and founding. As supermajority cloture became increasingly associated with hindering rather than facilitating Senate business, as it became for some the problem rather than the solution, the rhetoric supporting Rule XXII increasingly cloaked it not only in the Senate’s tradition of extended debate but, more important, in the founding, as an addition or enhancement that the framers either intended or would have endorsed. This chapter shows how the rhetoric in support of the filibuster became more inflated and misleading even as the historical ties to white supremacy were both undeniable and increasingly embarrassing, and even as the more general dysfunction of the sixty-vote Senate became harder to ignore. Mr. Smith and James Madison, it would seem, were brought to the rescue of the contemporary filibuster because in the face of the indelible association with white supremacy, its apologists needed to anchor its legitimacy in an unshakable foundation. And what firmer foundation is there than the founding and the Constitution?

But this institutional essence was also the core of the Senate’s agony about whether it was living up to its billing as the world’s greatest deliberative body. The mythology and institutional conceits of the Senate as the “senatorial saucer” and the “world’s greatest deliberative body” entail considerable existential agony as the modern Senate has struggled with the rather yawning gaps between its lofty self-conceptions and the tarnished reality of its actual behavior, where fights over process supersede substantive debate and little gets done owing to arbitrary minority vetoes. In recent years, senators have had increasing trouble reconciling their constitutional exceptionalism with their institutional reality.

Depending on whose partisan ox was being gored, one could find plenty of disgust with the supermajority politics of the Senate and some strong sentiments for reform if not elimination of the filibuster. The sixty-vote Senate, however, was increasingly tangled up in the politics of partisan hypocrisy and the struggle for institutional control. After nearly each election the relative value of the filibuster changed sides, and few could separate their constitutionalism—their opinions about institutional reform—from their partisan politics long enough to have a rational debate about the costs and benefits of the outsized impact of the filibuster on Senate business. Instead, and far too frequently, senators and other commentators, even some who favored at least a degree of reform, marshalled or resorted to politically unsophisticated arguments such as the invocations of “Mr. Smith” and others based on dubious history and distortions of the founding and the Constitution.

The Dysfunction of the Filibuster

As I have argued, the modern filibuster, as structured by supermajority cloture, collapses in practice under the weight of its persistent problems and negligible or accidental benefits. Support for supermajority cloture flies in the face of the actual behavior of the Senate and performance of Rule XXII—it does not do what it was designed to do, and in many ways it does precisely the opposite. After 1917, the Senate evolved into a less deliberative institution based on a minority veto. Supermajority cloture distorts deliberation and exacerbates collective irresponsibility. Moreover, the history of the rule in action shows the injustice done by its application and use as a de facto veto. Especially but not only in the realm of civil rights there are numerous cases where the Senate would have made a different decision if it had had some form of majority cloture, and those decisions would have made a difference. That is, in legal terms, actual “harm” was done to real individuals, not just the Senate majority but citizens who would have benefited from the alternative outcome, particularly an outcome supported by the House and president. Even so, in the face of its many dysfunctions and contradictions, supermajority cloture retains many defenders, and not just among self-interested senators.

Almost any study of or opinion piece about the filibuster or supermajority cloture lists several justifications for or arguments against it, and many are quite familiar to us. With respect to arguments in its favor, one summary from a 2012 book titled Defending the Filibuster is exemplary. The benefits of the filibuster “include discouraging unchecked majority control, fostering deliberation and compromise, moderating extreme outcomes and avoiding precipitous decision making, protecting the rights of minorities, discouraging more populated states from dominating the congressional process, ensuring the role of the legislative branch in oversight of the executive branch, and assuring the role of the Senate as a check and balance of the majoritarian House of Representatives in the legislative process.”⁶

The catalog of positive outcomes attributed to the filibuster, and by extension supermajority cloture, is a formidable one. Indeed, one wonders how democratic government could survive without it, especially in all the democracies that have had no such thing. And this laundry list is as typical as it is analytically insufficient and politically frustrating. Not based on any explicit precepts of republican government, or a normative democratic framework, or even, in most cases, any clear constitutional analysis, the alleged positives usually come off as a random and at times contradictory package. Such lists nearly always rely on a superficial, misleading, and often implicit understanding of American constitutionalism, with loose and hackneyed references to some vague idea that the Senate was “intended to be different” or to “cool the coffee,” with a quotation from the Federalist Papers sometimes thrown in for good measure. In almost every defense of the filibuster, the relevant terms (deliberation, compromise, moderation, minority rights, oversight, etc.) are not theorized, operationalized, or measured. For example, what does one make of the “rights of minorities,” especially in the face of the Senate’s rather bizarre apportionment and its extended history of resisting the legal liberation of racial minorities? Or how does one measure deliberation or compromise, as opposed to partisan obstruction and minority victory? Assertion and anecdote frequently substitute for argument and evidence.⁷

The functional rationales justify supermajority cloture as a positive, even essential feature of or addition to the system of checks and balances and to republican democracy, often regardless of Senate tradition or the founding. It is a long and at least superficially impressive list of reasons. Although each type of argument has been used by senators and commentators over the years, they are often combined and blended. In fact, that is part of the conceptual confusion and loose constitutionalism behind more than a few of the arguments. When the evidence of its costs is inescapable and its benefits are negligible, the problem is less whether a supermajority procedure is justifiable in a largely hypothetical fashion. Instead, the prior question that is almost never asked about the functional arguments is whether the Senate should be the institutional locus of such a tool or form of power. Many of the functional points are made with little if any justification as to why this supermajority procedure belongs in the Senate and nowhere else, at least in the national government. Instead, the location of such a feature in the Senate is often assumed or taken for granted as part of the constitutional mythology of Senate exceptionalism.

The Essence of the Senate and Bicameralism

For many senators and commentators, supermajority cloture is not simply another bicameral difference to be added to those structured by the Constitution, such as the differences in electoral constituency and length of term. Supermajority cloture is not even primus inter pares. The filibuster, as structured by the provisions of Rule XXII, in this view, is the essence of the Senate and the sine qua non of the Constitution’s bicameral Congress. Without the right to filibuster, senators and commentators have argued, there would be no meaningful political difference between them; indeed, the nation might as well have a unicameral or one-house legislature.

Such arguments go back at least as far as the creation of cloture in 1917, because at that time any provision for a cloture vote threatened unlimited debate. And the end of the filibuster in its traditional form meant the effective end of the Senate, in the view of some its members. As Senator Lawrence Sherman put it during his resistance to reform in 1917, the proposed cloture rule “will eventually lead to making the Senate just such a legislative body as the House of Representatives is.”⁸ Decades later, scholars and senators were advancing the same argument in support of supermajority cloture. In the 1980s, Senator Robert Byrd deemed the filibuster the “main cornerstone of the Senate’s uniqueness,” the “primary reason that the United States Senate is the most powerful upper chamber in the world.” Without it, “the Senate would lose its special strength and become a mere appendage of the House of Representatives.”⁹ “If the Senate were to render itself a majoritarian body,” aver Arenberg and Dove, “it would soon recede into the shadows of the House of Representatives. Most of the advantages of bicameralism would be done, and the Senate would suffer the fate of most upper chambers around the world.”¹⁰ Even Barack Obama, former professor of constitutional law, could not resist this convoluted linkage and its relation to bicameralism. Commenting in 2005 on the threat of a “nuclear option” by Republicans to end filibusters on nominations, Senator Obama said, “What I worry about would be you essentially have still two chambers—the House and the Senate—but you have simply majoritarian absolute power on either side, and that’s just not what the founders intended.”¹¹ As he prepared to retire from the Senate at the end of 2020, Tennessee’s Lamar Alexander told an interviewer that getting rid of the filibuster “would basically destroy the Senate” because it “would be a second House of Representatives.”¹² Regardless of the variations on this theme, the inescapable syllogistic logic is that supermajority cloture is the essential difference between the two bodies endorsed or mandated by the founders.

For some, the elimination of supermajority cloture would entail something even more dramatic than making the Senate just like the House. The Senate might as well close up shop. “If we are going to be reduced in our procedures to those of the House of Representatives,” asked Jesse Helms during the 1975 debate, “why have a bicameral legislature? Why not save the people the enormous cost of operating the U.S. Senate?”¹³ As the Senate headed toward a curtailment of the filibuster in 2017, Senator John McCain, who opposed the pending change, offered the following lament: “Benjamin Franklin is somewhere turning over in his grave. . . . Why have a bicameral system?”¹⁴ No matter that Benjamin Franklin came from unicameral Pennsylvania and advocated for it even at the Constitutional Convention.

The Filibuster as the Founders’ Intent: Or, as Madison Would Have Put It, “You Can Never Have Too Much of a Good Thing”

Some of the comments putting the filibuster at the core of the Senate’s purpose invoke the founders and their inspired design. In so doing, they join many other such statements that link the filibuster and supermajority cloture to founding intentions and even the Constitution itself, despite the indisputable fact that neither the filibuster nor supermajority cloture has any connection to the deliberations and decisions in and around 1787. As Steven S. Smith, one of the world’s leading authorities on the Senate, testified before some of its members, “Defenders of Rule 22 often claim the Framers of the Constitution intended minority rights to be protected by the Senate. Taken on its face, this claim is incorrect. Nowhere in the summaries of the constitutional convention or the Federalist Papers is there an argument for allowing Senate minority factions to block action on legislation. Of course, the Senate was designed to protect the interests of small states.”¹⁵ The framers did not equate the Senate’s structure and desired characteristics with minority rights, as we have seen. In general, they expressed more concern about forms of minority vetoes. And majority tyranny would be mitigated by the structure of the entire system rather than by the Senate as such. What is taken for granted as a natural fact by most of the media, many textbooks, and millions of Americans is in fact a historical construction that has almost nothing to do with the invention of the Senate and its original purpose, in theory and practice.

Even so, with increasing frequency the tradition of extended debate and the filibuster has been extended all the way back to the founding, and supermajority cloture is often mythologized into the framers’ intentions for the Senate or even directly into the handiwork of the convention itself. The framers directly or indirectly intended the Senate to have some variety of supermajority rules to fit the Senate’s special purpose in the system of representation and checks and balances. Some of these arguments anchor supermajority cloture in the founding generally insofar as the Senate was from the start the institution, they argue, of minority rights and greater deliberation. Such anchors sometimes take the form of direct attributions that supermajority cloture was a product of the founding and the Constitution. Finally, some have portrayed it as the essential adaptation to adjust the Senate’s founding purpose and intent to the modern distribution of institutional power, to offset the House and especially presidential power. These quotations seem to imply, among other things, that were he alive today, James Madison, architect of our system of elaborate checks and balances, would have endorsed supermajority cloture because one of his constitutional principles must have been that “you can never have too much of a good thing.”

For example, Arthur Vandenberg, one of the most celebrated senators of the twentieth century, elevated Senate rules, or at least Rule XXII, to the status of the Constitution, with the blessing of none other than George Washington. In his farewell address, which the senator quoted, Washington characterized the Constitution as “sacredly obligatory” until “changed by an explicit and authentic act of the whole people.” “So far as I am concerned,” concluded Vandenberg, “the Father of his Country said to us, by analogy, ‘The rules of the Senate which at any time exist, until changed by an explicit and authentic act of the whole Senate, are sacredly obligatory upon all.’”¹⁶ If he went further than some with the firmness of his analogy, Vandenberg was nevertheless tapping into a deep well of Senate sentiment, sentiment codified in the rules of the institution.

The most hackneyed link to the founding is the almost certainly mythical conversation between Washington and Jefferson—the one that opens this chapter—in which cooling saucers and hot coffee serve as a homey metaphor to simplify matters so that the otherwise brilliant Jefferson could understand why the Constitutional Convention had added a second chamber to the proposed Congress.¹⁷ Whatever Washington, who had sweated it out at the convention, might or might not have said to Jefferson, who had been living the good life in Paris, it was clearly not about extended debate, insofar as Washington’s meeting with Jefferson predated the Constitution’s implementation and hence any Senate rules, norms, or practices. And as most scholars of the founding know, Jefferson spoke and wrote in favor of bicameralism. None of this has stopped senators and other commentators from employing versions of this story with great regularity and abandon as a quick and dirty QED to incorporate the after-the-fact functionalism of supermajority cloture directly into the Constitution. As a case in point, during a period of filibuster-induced tension in 1995, Republican senator Phil Gramm argued that supermajority cloture “is part of the fabric of American democracy. It was part of the process making the Senate the deliberative body of Congress that George Washington described to Thomas Jefferson when Jefferson came back from France.”¹⁸

Senators have made a practice of butchering this anecdote. At least one senator put Benjamin Franklin in the scene with Washington.¹⁹ An essay by former senators Democrat Gary Hart and Republican Chuck Hagel tripped all over the story: “Based upon Thomas Jefferson’s notion that the Senate was to be the saucer in which controversies cooled, Senators have, from the beginning, been at liberty to express their views at such length as they wish (Jefferson, it should be noted, was the author of the Manual of Parliamentary Procedures for the Use of the Senate of the United States in 1801).”²⁰ Aside from the obvious inversion of the supposed roles of Jefferson and Washington, the connection to Jefferson’s work as president of the Senate is entirely misleading. There is nothing in it about saucers, coffee, or expressing “views at such length as they wish.” Instead, Jefferson’s manual is far better remembered for its injunction that “No one is to speak impertinently or beside the question, superfluous, or tediously.”²¹ Jefferson might have added “or without some degree of accuracy,” a precept also ignored in Mitch McConnell’s version of the anecdote. “Before giving my prepared comments,” said Senator McConnell before a 2010 hearing, “I would point out that I believe it was Washington. It certainly was one of our founders who was quoted as saying at the constitutional convention the Senate was going to be like the saucer under the tea cup, and the tea was going to slosh out and cool off, and the Senate, he anticipated, would be a place where passions would be reined in and presumably progress would be made in the political center.”²² Few, however, could top Senator Pat Roberts’s ramble:

The keeper of the institutional flame was the tag I put on Senator Byrd. My wife Franki and I became very close friends of the Senator. At any rate, he recounted the story attributed to Jefferson and Washington, he would tell every incoming class about the role of the people’s House and perhaps what happened, when they put the coffee pot on in regards to legislation, that the coffee was so hot it would boil over, and it was the Senate’s duty to act as the saucer, as folks did back in West Virginia in the earlier days, or Kansas or Iowa or Tennessee or Texas, that they would pour the coffee out in the saucer and let it cool off a little bit so they could put their biscuit in it and actually eat it, and then the legislation would pass. The problem is, sometimes on our side maybe we want tea, maybe we want to start over.²³

Despite all the evidence to the contrary, many continue to assert some founding connection, however implicit or explicit. To the degree that they pay attention to such things, no small number of Americans think the Senate filibuster is a constitutional provision. Professors of American politics can regale you with anecdotes of the instances in which students or others display some version of this belief. And this is not limited to average citizens. At a political science conference not so many years ago, I delivered a paper that critiqued supermajority cloture. A fellow panelist and specialist in congressional elections came up to me after the presentation and said, “But I thought the filibuster was in the Constitution.”

As if to bolster this frustrating state of public belief, the Senate debates about the filibuster and other sources show that there has been a shift from largely functional arguments to ones that lean heavily on the founding and make supermajority cloture the constitutional essence of the Senate. The further in time we get from the framers and the founding, the more often they have been invoked incorrectly in support of arguments for the filibuster or supermajority cloture.²⁴ Summarized in table 3, the data show a pronounced increase in the percentage of comments that attribute the filibuster or supermajority cloture to the founding or founding intent or that characterize them as the essence of the Senate. The debates are not equal in size or focus, so it is difficult to make precise comparisons. Nevertheless, the trend is pretty striking. The relatively short debate in 1917 featured only one comment that connected the filibuster to the system of checks and balances created by the founders, even if somewhat indirectly. That short debate was followed by three longer ones. But even as the subsequent three debates descended significantly in size, the percentage of such arguments increased substantially. The protracted filibuster in 1949, which took place from February 28 to March 17, added up to nearly 800,000 words. Twenty percent of the arguments linked the filibuster directly or indirectly to the Constitution or founding, or characterized it as the essence of the Senate. Thirty-nine percent appeared in the much shorter but still lengthy debate in 1975. Finally, 45 percent of the pro-filibuster arguments were of this variety in the 2011 debate, which was less than half the length of the one that preceded it.

In the 2011 debate, the majority and minority leaders, however much they disagreed about the proposed reforms, saw eye to eye on the essence of the Senate and its roots in the founding. Majority Leader Reid, who was frustrated by obstruction but did not support the proposals that launched this debate, told his colleagues that the Senate’s “ability to debate and deliberate without restraints of time limits. . . . is in our DNA. It is one of the many traits intentionally designed to distinguish this body from the House.”²⁵ Making a similar insinuation, McConnell argued that “the Founders purposefully crafted the Senate to be a deliberate, thoughtful body. A supermajority requirement to cut off the right to debate ensures that wise purpose. Eliminating it is a bad idea.”²⁶

And Reid and McConnell were far from alone during this debate or, more broadly, during the era of the sixty-vote Senate. In 1994 testimony before the Senate Rules Committee, retiring senator Malcolm Wallop took the constitutional connection a step further by analogizing the filibuster to the Bill of Rights. “What makes the Senate such a wonderful institution,” he told his colleagues, “is what also makes the Bill of Rights such a wondrous document. Like the protections enshrined in the Bill of Rights, the Senate’s rules sometimes serve to frustrate or thwart the whims and passions of a free and democratic society. That is a virtue, my colleagues, not a vice.”²⁷ The senator’s analogy, however convoluted, is an example of the false equivalencies and twisted rationales that come so easily to members of the upper house, including Georgia’s Johnny Isakson, who, during the 2011 debate, asked “If our Founding Fathers had not intended for supermajorities to determine certain acts of this Congress, why would two-thirds of us have to vote to pass a constitutional amendment and three-fourths of the States have to vote to ratify one? I think that showed the intent. If our Founding Fathers had not intended for minority representation to exist, I wouldn’t have two Senators like California; everybody would have a proportionate number of Senators.”²⁸

The Convoluted, Even Tortured, Relationship between Equal Representation, Minority Rights, and Supermajority Cloture

As Isakson’s remark implies, no small part of this constitutional mythology emerged from the conceptual alchemy that links equal representation to a general principle of minority rights and in turn to the filibuster and supermajority cloture. Equal representation, the most important and divisive compromise at the Constitutional Convention, was nevertheless facilitated by the fact that having only two senators per state was one of the few ways to keep that body small, which was a central feature of a deliberative Senate and among the most widely shared values among the framers. A small and select Senate would foster a better deliberative process than the larger and democratically elected House. That better quality of deliberation was the core of the Senate, not any role in protecting minority rights as such. But equal representation, by definition, introduced a connection between the Senate and political minorities. The smallest state in population had the power to cancel the Senate votes of the largest state, for example. Or a coalition of smaller states comprising a minority of the nation’s population could defeat the states representing the majority of the country’s citizens.

Equal representation is the lone constitutional provision that gives any sustenance to the idea that the Senate’s purpose was to protect minority interests, but the consequence of the Great Compromise was about one thing only: the representation of states as states, and not minority power in any other sense. As shown in chapter 2, John C. Calhoun’s theory of concurrent majorities was a thinly disguised justification for southern states in the Senate having an effective veto power over legislation that affected their interests. This argument, rooted in the protection of white supremacy, helped transform a highly specific and hotly contested compromise for equal representation of the states into minority rights for any and all. In turn, equal representation and minority rights became pillars of support for supermajority cloture.

How did equal representation evolve into minority rights and thus connected to the Senate’s tradition of extended debate; that is, its rules of procedure that empowered individual senators to be granted recognition and hold the floor? John Calhoun’s nineteenth-century Senate—the smaller Senate that represented states equally—could afford to let debate proceed in a largely unrestricted fashion, in contrast to the rapidly growing House. This power gave individual senators the ability not only to speak at great length but to filibuster, to deliberately use this power to obstruct the majority. So the literal minority power of equal representation blended with and reinforced the notions of individual or minority power implicit in freedom of debate. Over time, the idea that the Senate was the constitutional home of minority rights took hold. This social construction was aided by the development, especially from the mid-twentieth century onward, of civil rights and civil liberties as ongoing issues in American politics. “Minority rights,” whether connected to the Senate or not, were increasingly part of the political vocabulary. At the same time, extended debate and the filibuster were further institutionalized in Senate rules concerning supermajority cloture. Senators happily fused the power given to individual senators by equal representation and the filibuster or supermajority procedures. It became easy to justify their rules and behavior via a generalized notion of “minority rights” as the special province of their institution.

As a result, these two central features of the Senate, equal representation and the supermajority filibuster, became entangled through a loosely conceived notion of minority rights. The Senate debates about the filibuster show that equal representation, as such, falls away in favor of this more capacious and universalistic principle or value. One might be against the inequalities inherent in two senators per state, but who is against minority rights? This conceptual transubstantiation in turn helped obscure the fact that the democratic inequities of equal representation were enhanced by the added power of supermajority requirements to close debate. Finally, and as part of this, some senators even replaced equal representation with the filibuster as the main provision that protects small states.

Senators have had little trouble conflating equal representation with political minorities more generally in both blunt and subtle ways, and often connecting that, in turn, to the filibuster. For example, in 1949 Arkansas Democrat John McClellan argued that “the Senate was created also to give protection to the smaller States, the minority groups in political subdivisions. The House was constituted on the basis of population.”²⁹ Fellow southerner Joseph Hill similarly cited two senators per state as an “illustration of an absolute, ironclad protection in the Constitution of the minority.”³⁰ During the 1975 debate, John Stennis of Mississippi emphasized equal representation’s special guarantee in Article V, the permanent exception to the amendment process. This, he said, made the Senate “very special as a parliamentary body,” which somehow meant the Senate also “would have a rule that did protect minorities,”³¹ by which of course he meant supermajority cloture. Making a similar leap in 1993, Senator Larry Craig put it this way: “I would say as it relates to cloture, our Founding Fathers designed the Senate for a unique purpose, substantially different from the House, and the cloture rule or the ability to have the Minority to cause the Majority to come to attention is an extremely valuable and important tool in the makeup of the Senate itself . . . and it is a rule like a cloture rule that substantiates what I think our Founding Fathers intended about that sense of equity [among Senators].”³²

Implicit in this line of argument, however, is that the Great Compromise was less a limit on the representation of states regardless of population than it was a justification or license for additional enhancements of state power. From this perspective, equal representation is naturally complemented by unlimited debate or supermajority cloture; they are two sides of the same constitutional coin. Arguing in 1975 against a lower threshold for cloture, Idaho’s James McClure said, “The right of speech in the Senate is particularly important because the Senate is the only institution of the Federal system in which the smaller States exercise an equal influence over the conduct of affairs of the Nation.”³³ A good number of senators have seen supermajority cloture as more than just a good fit with equal representation. Instead, the protection of state sovereignty in the Senate “was undoubtedly the reason for the unlimited-debate rule,” according to one participant in the 1949 debate.³⁴ Others, including Arkansas’s William Fulbright, have totally erased the Great Compromise and the imbalance of power created by equal representation. “The distinction of the Senate depends upon unlimited debate,” Fulbright argued in 1949. “That is the only reason . . . I have the slightest influence in this Government above that of a Member of the House of Representatives.”³⁵ The southern Democrat was echoed in 1975 by Republican Hiram Fong of Hawaii, who told his colleagues that without supermajority cloture, “we will have given up the one source of protection we in the Senate were meant to afford the small states and minority population.”³⁶ Recalling his maiden speech in the Senate, Fong’s Aloha State colleague Daniel Inouye said, “I made it clear that, as someone representing a small state, it [the filibuster] was a tool I needed to ensure we were not pushed aside.”³⁷ His colleague Claiborne Pell of Rhode Island related this protection to the literal—as in geographic or physical—size of his state. “As a Senator from the smallest State,” Pell pointed out during his 1996 farewell address, “I have always been sensitive to the fact that circumstances could arise in which I would need the special protection of minority rights which is accorded by the cloture rule.”³⁸

Senator Chris Dodd devoted no small portion of his 2010 farewell address, mentioned in chapter 1, to defending the Senate’s rules. In Dodd’s oration the Great Compromise, which is sometimes referred to as the Connecticut Compromise, created bicameralism as such, which in turn was defined by the difference in chamber rules about debate, which were authored by the founders. “It was,” Dodd said, “Roger Sherman and Oliver Ellsworth, delegates from Connecticut to the Constitutional Convention in 1787 who proposed the idea of a bicameral national legislature. The Connecticut Compromise, as it came to be known, was designed to ensure that no matter which way the political winds blew, or how hard the gusts, there would be a place for every voice to be heard. The history of this young democracy, the Framers decided, should not be written solely in the hand of the political majority. In a nation founded in revolution against tyrannical rule, which sought to crush dissent, there should be one institution that would always provide a space where dissent was valued and respected.”³⁹ So beware, Dodd warned, of the temptation to reform the rules that protect minority power. As he approached the end of his final address, Dodd returned once again to “the rules,” and said that senators, in coming through in times of great challenge, “have evidenced the wisdom of the Framers who created its unique rules and set its high standards.” As any casual student of the founding knows, the senators from Connecticut were not the first to propose a bicameral legislature for the revised system; it was in the Virginia Plan and was basically a given. And, of course, none of the Senate’s rules were written by the founders, particularly the supermajority provision added in 1917.

Such arguments are not limited to arguably self-interested senators. Allowing one bit of correct history to provide cover for a subsequent falsehood, columnist William Safire wrote that “the Senate was created to protect the minority against majority tyranny. That’s why small states have the same two votes as large states and why it takes much more than a majority to cut off debate.”⁴⁰ “Certainly,” wrote commentator George Will in 2017, “the filibuster fits a non-majoritarian institution in which 585,501 Wyomingites have as much representation as do 39,250,017.”⁴¹ Certainly, one might argue, it is just the opposite. Some scholars have asserted the same specious connection. According to one recent history of the institution, “From this inborn mal-apportionment [equal representation] comes the Senate’s embedded charter to give full and fair—and extended—expression to minority points of view. And from this arrangement flows the Senate’s most distinguishing characteristic—the filibuster.”⁴² Legal scholars Virginia Seitz and Joseph Guerra claim that equal representation is proof that Senate was designed as a countermajoritarian body. Consequently, “entrenched Senate procedural rules reflect an affirmative exercise of the states’ residual sovereign power.”⁴³ In short, equal representation is a constitutional hunting license for states to further entrench minority power in the Senate, as opposed to equal representation being the singular constitutional provision for state sovereignty within Congress, and one that was distinctly modified by the Seventeenth Amendment. Such arguments also provide an indirect link to the founders by associating the filibuster, however loosely or directly, with state equality, as we saw earlier. The unstated corollary is that equal representation was insufficient and therefore the shortcomings of the framers—who are otherwise to be listened to and respected—must be corrected, by Senate rules, rules that are entrenched against change by subsequent Senate majorities that might prefer a different way of doing business.

The argument that supermajority cloture is a complementary enhancement of equal representation has often smacked right into the opposite argument, and both claims are as weak as they are contradictory. Across the decades, many senators have argued that supermajority cloture gives the most populous states, which represent a majority of the population but constitute a fraction of the votes within the Senate, a tool to avoid domination by a group of the smaller states, which can make up a majority of the Senate while representing a fraction of the nation’s population. That is, a filibustering minority of senators can represent a majority of the US population. In such instances, the potentially atavistic minority rule made possible by equal representation is offset by a cloture rule that allows the senators representing the majority of the country’s population to stall or stop the minority. Writing in 1926, the historian Lindsay Rogers noted that in the Senate, “a 33% minority might represent the majority of the population.”⁴⁴ In other words, the still relatively new cloture rule protected populous states. During the 1949 debate on cloture reform, at least three senators, all southern Democrats, raised versions of this argument, possibly in an effort to persuade some of their large-state colleagues from the north. As Senator McClellan put it, “A change in a rule of the United States Senate which gives protection to a minority of the membership of this body . . . often . . . gives protection to a majority of the citizenship of this Nation.”⁴⁵ Old-fashioned as that might seem, the argument lives on. Arenberg and Dove make the argument that a “minority of Senators may represent a majority of the nation” on the same page that they argue that it also is for the “protection of smaller states.”⁴⁶

It should not escape our notice that this attempt to disconnect the filibuster from the small states that are advantaged by equal representation undermines the idea that the filibuster is part of what makes the Senate the bastion of minority rights. After all, if large-state senators, who represent the popular majority, can use the filibuster to compensate for the representation their states lack in the Senate, then what, precisely, is the definition of minority? Some filibuster apologists try to have it both ways. Supermajority cloture enhances equal representation in the Senate, and that’s a good thing; or it can undermine it, and that is also a good thing. Regardless, the implicit, unstated claim is the following: Senate rules can be used, should be used, to correct or improve deficiencies in the Constitution. In the case of equal representation, the filibuster improves the effect of having two senators per state by sometimes enhancing its intended effect; at other times it offsets the impact of equal representation by contradicting it. Small-state senators get to make up for what their states lack in the House and large-state senators get to compensate for what they lack in the Senate. What a remarkable institution!

Whatever the merits of such arguments, those who posit a relationship between equal representation and supermajority cloture are right about one thing: it does add to the power of smaller states. The many senators whose elections rest on massive violations of political equality enter an institution that also grants them procedural superpowers. “Rule XXII of the Standing Rules of the U.S. Senate,” to quote one contemporary scholar, “gives a minority of forty-one senators, who may be elected from states that contain as little as eleven percent of the nation’s population, the power to prevent the Senate from debating or voting on bills, resolutions, or presidential appointments by filibustering or acquiescing in a filibuster.”⁴⁷ Even if that particular scenario is unlikely to take place, the distortions produced by equal representation—in both demography and democratic theory—are only compounded by the addition of supermajority cloture to considerations and calculations regarding its effects.⁴⁸ The current confluence of ideology and geography, as discussed in chapter 3, is a very real example of how equal representation can dramatically inflate the power of a politically coherent and cohesive population. From a political perspective, the people of the United States have never been randomly distributed, but we have been in a long period when the distribution is particularly clear and biased.

My reading of the debates and historical record leads me to conclude that the self-interested and strategic calculations of senators helped to diminish equal representation in favor of supermajority cloture as the defining feature of the Senate. An emphasis on the filibuster and supermajority cloture harmonizes with senators’ electoral and partisan interests. Equal representation is inextricably tied to the representation of states or the citizens who reside in them. It does not easily translate into the individual and partisan prerogative that senators favor when talking about minority rights. For a senator, minority rights really equate to her rights, as the individual senator who just happens to represent Wyoming, California, or Minnesota. In this way, equal representation serves its purpose, however mistakenly, as a rhetorical gateway to minority rights in general, to be protected first and foremost by the power of the filibuster. The strong if socially constructed constitutional rationale supporting the filibuster provides maximum latitude for senators to use their institution’s rules as they see fit. This in turn serves the political interests of senators primarily as individuals but also as partisans.

All this represents the ultimate Madisonian irony. In the Federalist no. 62, as we have seen, Madison starts by brushing off state equality as an obvious compromise and concession, a political necessity with self-evident potential for harmful effects. He then goes on to defend a Senate characterized by long terms and indirect selection and smaller size that would foster a different quality of deliberation. Time would pervert Madison’s version of the proper relationship between the subordinate political necessity of equal representation and the primary institutional purpose of quality deliberation. Instead, state equality would come to be conflated with the idea of the rights of the minority, with the House representing the majority of population and the Senate embodying the potential power of a minority of the population residing in some coalition of states. This connection is enhanced by the Senate’s rules protecting extended debate and allowing for filibusters. Without any sophisticated effort, the two—the Senate of equal representation and the filibuster—were blended together, naturalized, and harmonized as founding intent, when in the view of some, Madison included, state equality and deliberative quality were at odds with one another or at best unrelated.

Constitutionality Reality: The Filibuster Subverts What the Founders Created

In sharp contrast to the falsehoods and insinuations about the filibuster and the founding, the stronger argument is that supermajority cloture in the Senate is not just impractical or democratically suspect, it directly conflicts with the architecture and intent of the Constitution. Can a Senate rule of procedure, created by a simple resolution, conflict with one or more explicit provisions of the Constitution such that the rule is unconstitutional? That is an interesting question, but this tour of constitutional arguments is not intended to persuade the reader one way or another about constitutionality as such. The points below constitute important arguments about sound and fair democratic practice as much as they do constitutionality. They are powerful indictments of supermajority cloture that use the governmental purpose and design of the Constitution as their democratic theory or compass point. In short, these arguments provide a sharp contrast to the typical laundry lists of pro-filibuster arguments that have no clear normative or constitutional foundation.

First, the Constitution defines specific and limited instances in which supermajorities are required, and the list is a small one. In order of appearance the five supermajority exceptions are: impeachment trial convictions (two-thirds of senators present), expulsion of members of the House and Senate (two-thirds of the relevant chamber), override of vetoes (two-thirds of both chambers),⁴⁹ treaty approval (two-thirds of senators present), and the amendment process for the Constitution itself. Moreover, the framers explicitly rejected some other supermajority options. The document does not specify that other supermajorities are not allowed, but such a provision is not necessary to make a legally sound judgment that silence means no. The common law legal principle that some have applied to this circumstance is expressio unius est exclusion alterius, the express mention of one thing excludes all others.⁵⁰ In this case, the careful list of supermajority provisions, by this principle, means no others are implied or allowed.

Proponents for the filibuster argue in response that there is a crucial distinction between the supermajorities in the Constitution that are all about final decisions (such as the vote on a treaty) and an internal Senate procedure that is about limits on debate, not the final decision.⁵¹ Nothing in the Senate rules specifies that a final vote will be by a supermajority. Even in the case where the proposal is to change one of the Senate’s standing rules, if two-thirds of senators present and voting agree to close debate, the final vote on the rules change is by majority. This argument is bolstered by the emphasis others place on Article I, section 5’s explicit grant of authority: “Each House may determine the rules of its proceedings.” What the Constitution might take away in terms of latitude about how to make final decisions might not apply to the rules of procedure within each chamber, that is, the rules that shape but ultimately precede the potential for an ultimate decision by majority vote.

This argument ignores the realities of the sixty-vote (and even sixty-seven-vote) Senate, including the increasingly regular use of the sixty-vote threshold built into unanimous consent agreements as final votes. That crucial reality check aside, it strains credulity to argue that the rule does not fundamentally alter how or whether a majority does or does not get to vote on its preferred policy or alternative. It simply goes too far to argue that the “supermajority voting requirements to invoke cloture is simply a procedural rule, not a substantive one” (emphasis added).⁵² Its original intent might be one thing and its actual impact quite another. Moreover, senators provide ample evidence in words and deeds that they consider it to be, and behave as if it were, the decision rule. Nevertheless, the distinction between procedures and final decisions is probably the strongest counterargument about the constitutionality of the filibuster.

As part of this counterargument, some point to other aspects of House and Senate procedure as minority veto points akin to Senate cloture, in particular the powerful role of committees. If supermajority cloture is unconstitutional, then what about the crucial role accorded House and Senate committees? One or more committees consider most legislation before the chambers as a whole do, and if the committee votes against reporting the legislation to the floor, that bill is unlikely to be revived. This is by definition a minority veto. If committees are constitutionally sound, the argument goes, then so is supermajority cloture in the Senate. Indeed, congressional committees have played a very powerful gatekeeping role in both chambers, in some eras dominating the decision-making process. While this is true, committees operate through the consent of not only the majority but the minority party as well. The House approves its standing rules at the start of each Congress, so this consent is more than implicit. Moreover, committees do not entrench in quite the same way. Whatever the committees do can be reversed by the majority in both chambers, and the House has a procedure that can be used by a majority of House members to discharge a bill from a committee and bring it to the floor.⁵³

If the first line of argument relies on the Constitution’s explicit list of supermajority provisions, the second is built around the several implications that both chambers of Congress would operate by majority rule in all other instances. None of the supermajority exceptions pertain to ordinary lawmaking except the override of a presidential veto.⁵⁴ Article I, section 5’s stipulation that “a majority of each shall constitute a quorum to do business” is the foundation of this claim, bolstered by the incontrovertible assumption that legislatures operate by majority rule. Likewise, it can be argued that supermajority cloture conflicts with the presentment clause in Article I, section 7 by effectively requiring a minimum of sixty affirmative votes in the Senate—rather than a simple majority of a quorum—to “pass” a bill or resolution prior to its presentment to the president. Neither chamber of Congress has the constitutional latitude to disrupt the carefully constructed lawmaking process. “This balance of powers,” in the view of one scholar, “would be entirely undone if it were true that each legislative chamber could define what it means for that chamber to ‘pass’ a bill.”⁵⁵ Finally, the provision to have the vice president cast the deciding vote in the case of a tie—in a body that is perpetually composed of an even number of senators—presumes that the Senate decides by simple majority.⁵⁶ And that is one of the only jobs assigned to that office! In fact, consternation at the Constitutional Convention about the role of the vice president was eased when it was given this potentially important function.

Third, rather than being a natural extension of equal representation, the filibuster upends the politics of the Great Compromise. The superimposition of supermajority cloture on top of equal representation violates the already fraught compromise “between the interests of the majority of citizens in the more populous states and the minority living in the less populous states.”⁵⁷ As noted above, twenty-one states representing less than 12 percent of the American population could form a cloture-proof block of forty-one or forty-two senators. Such a tidy coalition of the smallest states sounds unlikely. If, however, we take the twenty-one states that gave Donald Trump the greatest share of their popular vote in 2016, from Wyoming at 68.2 percent down to Ohio’s more modest 51.3 percent, we see a rather more plausible coalition of forty-one or forty-two senators representing just under 31 percent of the national population. Finally, twenty states at the start of the Trump presidency had two Republican senators. Those forty Republican senators, who were one vote short of a cloture-proof minority, represented just over 32 percent of the national population. This potential coalition was not so relevant, insofar as the Republicans were the majority party in the Senate. But this was also pretty much the situation when Republicans were the minority for part of Obama’s presidency. In an era of partisan polarization, the overlap between state characteristics and partisanship is substantial and consequential.

The Great Compromise was the power given to states through equal representation. A majority of population represented in the House might be balanced or countered by a majority of states in the Senate, not by a minority of states using the sixty-vote threshold no matter what fraction of the population they represent, large or small. Again, the only notion of minority rights tied to the Senate is equal representation of states. It is not a gateway through which other forms of minority protection can be added to the Senate.

The final argument about the constitutionality of the filibuster is perhaps the most powerful one, even if it is the one linked least directly to any particular provision of the Constitution. Supermajority cloture violates the fundamental principle of legislative power that a legislature cannot bind its successors by preventing them from amending or repealing statutes and rules by majority vote. The term applied to any such attempt to so bind or restrict a future legislature is entrenchment.⁵⁸ Impermissible entrenchment occurs when laws “bind the public to a substantive policy judgment made by legislators who are no longer responsive to the public will or current exigencies.”⁵⁹ Imagine if today’s Congress by majority vote in both chambers passed a strict gun control measure banning a category of weapons and that the law included a provision that it could be repealed only by a two-thirds vote in both chambers. Certainly no one would endorse this or think it constitutional. Instead, a legislative body can only do what a future version of itself can undo by a majority vote.

This principle and practice predate the Constitution and go back at least as far as Blackstone’s dictum that “acts of parliament derogatory from the power of subsequent parliaments bind not.”⁶⁰ It was such a given that it there is little doubt that the framers took it for granted. Consequently there was no need to have anything explicit in the Constitution about entrenchment.⁶¹ Higher law, as in the US Constitution, is by definition a form of entrenchment.⁶² That is, the constitutional features of almost any polity are entrenched to some degree. In most cases, democratic nations such as the United States are structured by a constitution that was enacted by a supermajority procedure and can be modified only through the same or some other supermajority process. So entrenchment does exist, but it is limited to the creation or modification of higher law and is almost never the product of the legislative body alone. Higher law is the superstructure—and, yes, supermajority structure—for making ordinary or public law and policy. And it is at this point that entrenchment must end or there would be little point to having higher law or, for that matter, elections. If a legislature can entrench laws by restricting future versions of itself, then it has in effect created a kind of higher law through ordinary legislative process.

Supermajority cloture in the Senate, from this perspective, is a form of entrenchment. The first form of entrenchment is that owing to the filibuster, a future Senate majority might be unable to repeal or amend an ordinary law. Or that a new law might be unobtainable, thereby entrenching the status quo more generally. The second form of entrenchment is in Rule XXII’s stipulation that debate on any changes to the rules of the Senate can be brought to a close, when any number of members object and hold the floor, only through a two-thirds vote on cloture. This is reinforced by Rule V’s provision that the standing rules of the Senate continue from one Congress to the next and can be changed only through the process specified in the standing rules. The combination of Rule XXII’s significantly higher threshold against changing the rules and Rule V’s codification of the continuing body doctrine constitutes an extraordinary entrenchment of a supermajority procedure that often determines what the Senate can or cannot do.

As I noted earlier, we spent time with these constitutional arguments to add to the case against supermajority cloture and the exceptional Senate’s self-conception. Some have argued that the federal judiciary could and should consider a constitutional case against supermajority cloture, while others make the opposite case.⁶³ But whether or not that is a possibility is more or less irrelevant for my purposes. And so I agree and disagree with Tonja Jacobi and Jeff Van Dam when they argue that the court is highly unlikely to rule on the constitutionality of supermajority cloture. “Consequently,” they conclude, “the extensive references by both sides of the debate to constitutional arguments for and against the filibuster are essentially just political rhetoric. Although arguments can be made for constitutional support or opposition to whether a simple majority can change a supermajority rule, the constitutional legitimacy of such a change is ultimately irrelevant if the courts will not hear the case. As such, adverting to legal argumentation is theater aimed at political persuasion, not serious preparations for significant litigation.”⁶⁴ Yes, court intervention is highly unlikely, but to reduce arguments about proper forms of government to “rhetoric” and “theater” is a bit much. After all, if the alternative to legal action is mere rhetoric and theater, then so much for the political process that might lead to institutional reform. While their point is well taken with regard to a strict notion of constitutionality, the arguments I have reviewed above nevertheless provide a powerful indictment of supermajority cloture on its own terms, an indictment that could be precisely the kind of “political persuasion” that leads to reform.

Overt filibusters against racial equality—the all too real and frequent filibusters on behalf of white supremacy—were a thing of the past by the twenty-first century. The racial bias of the Senate and the filibuster remains, however. In chapter 3, I demonstrated the very explicit bias of equal representation: the overrepresentation of smaller states inexorably entails the underrepresentation of Blacks and other minorities in larger and more urban states. The contemporary bias of the supermajority Senate is more subtle but significant nevertheless, especially when combined with equal representation. The advancement of civil rights demanded and still needs the active intervention of the government on behalf of minorities or otherwise debilitated or oppressed groups such as women. Progress toward broader social equality can require governmental programs and spending in such areas as education, employment, welfare, and health care. All this requires legislation or even a constitutional amendment in some cases. In the American government, it is far easier to veto than to pass legislation, and the Senate filibuster has been the fourth veto point in an already complex system. Yes, when the tables are turned, affected groups can use the filibuster to perhaps foil the diminution of rights previously acquired. But such rearguard actions hardly compensate for the positive power diminished by the effects of the supermajority cloture. Now add equal representation: those more likely to oppose government action in these areas, because of their greater conservatism about positive rights and governmental activism, are overrepresented in a legislative body that then further enhances their power with a potential minority veto.

This bias, however, is not the only indictment of the filibuster and sixty-vote Senate. As we have just seen, the filibuster contradicts rather than complements the constitutional system of checks and balances, separation of powers, and representational compromises. If not unconstitutional as such, the supermajority rule and behavior of the sixty-vote Senate run counter to the fundamental principles and provisions of the American system as designed and originally intended by its architects. Finally, the bias and constitutional contradictions are woven into and express themselves through the overarching practical failures of supermajority politics in the Senate. It fails by the very standards advanced by its advocates. Far from facilitating deliberation, the sixty-vote Senate undermines it by creating a veto that negates whatever purpose deliberation might serve and elevates procedural games over substantive debate. It undermines political accountability and erodes the ability of an already divided Congress to check presidential power. Rather than being a salutary check on potential missteps, the filibuster is a major cause of systemic dysfunction and, thereby, the erosion of public confidence in its government.

These three political and constitutional realities—the compound racial bias, constitutional problems, and the practical failings—would not, however, carry the day and convince the Senate to change its ways. Even as the sixty-vote Senate was being hoisted by its own procedural petard and frustrations with the filibuster were growing inside and outside the Senate during the first two decades of this century, the Senate as a whole clung to its mythology about the filibuster as its institution essence, which derived directly or indirectly from the founding or the founders’ intentions. Unable to deliberate about the dysfunctions of supermajority procedures, the polarized Senate of the twenty-first century spiraled toward raw political confrontation. The world’s greatest deliberative body would not draw on that alleged quality to reason its way beyond the problems of the sixty-vote Senate. Instead, heightened dysfunction combined with bitter partisan polarization to encourage both parties at different times to use brute force to change the rules by evading and violating the rules they otherwise devoted so much energy to defending. After years of partisan combat and vexation, in November 2013 and April 2017 the Senate finally took extraordinary action to reduce the scope and impact of supermajority cloture, action that was easy to construe as doing the right thing but in the wrong way, and for the wrong reason.