Filibuster Blocked Gun Control After Sandy Hook Massacre

When I think about my time in the Senate, I see a broken man. I was standing a few dozen steps from the Senate floor, in the inner office of Senate Majority Leader Harry Reid, D-Nev. It was an April day, and gray light streamed in through the high, west-facing windows of the Capitol building.

A grand suite first commandeered for the leader’s use by Lyndon Johnson and nicknamed the Taj Mahal, it had brass chandeliers hanging from 15-foot vaulted ceilings, which were emblazoned with the state seal of Nevada, Reid’s home state. “Battle Born” was the state motto, and it was an apt description of Reid, a former boxer raised in a house made of railway ties in the tiny mining town of Searchlight, Nevada, who had fought his way to becoming one of the most powerful figures in Washington. But that day, he and the dozen or so members of his staff who stood around the chairs were defeated, and his grand office felt small.

Reid, my boss, sat in one of the high-backed chairs. In the other sat a middle-aged man with broad shoulders and a kind, open face. His name was Neil Heslin. He was there because four months earlier, on December 14, 2012, his 6-year-old son, Jesse, had been shot dead in his first-grade classroom. The Christmas tree he and Jesse had planned to decorate still stood bare in his living room, back home in Newtown, Connecticut. It would be four years before Neil would take it down. A registered Republican, Neil had come to Washington with other parents of children who had been murdered that day to try to persuade senators to vote for the most rudimentary restrictions on guns.

In a functioning system, they would have succeeded. They convinced 55 senators from every region of the country to support a bill to enact universal background checks on gun purchases, a policy supported by 9 in 10 Americans, according to a Quinnipiac poll at the time. The bill was written and introduced by two senators who could not have been more different, but had found agreement on this issue: Sen. Joe Manchin, a rough-edged, populist Democrat from West Virginia, and Sen. Pat Toomey, a preppy, country-club Republican from Pennsylvania. Their bill had secured the support of left-leaning gun control groups like the Brady Campaign, and of right-leaning gun rights groups like the Citizens Committee for the Right to Keep and Bear Arms.

The support of a broad, bipartisan majority of senators, of advocacy groups from across the political spectrum, and of an overwhelming share of the American public was not enough. Opponents of the background-checks bill invoked a 20th-century rule that, ironically, was invented to curtail obstruction by ending the kind of marathon filibusters that many people picture when they think of the Senate. Over the years innovative obstructionists had repurposed the rule into a new kind of filibuster that was quieter, and far more lethal, than the old kind. Using this repurposed rule, the threshold for the background-checks bill to pass had been quietly raised from a simple majority to 60 votes, without a single senator having to say a word. And there was nothing the bill’s supporters could do about it. There was no great debate, no one standing on the floor for hours, just quiet failure in an empty chamber. Fifty-five senators supported the bill, 45 opposed it, and the bill was defeated. The 45 senators who defeated the bill represented just 38 percent of the American people.

Senate Judiciary Committee Holds Hearing On The Assault Weapons Ban Of 2013 — Photo: Alex Wong/Getty Images

When the vote was called, it had not mattered that the opponents of the bill lost the debate in the court of public opinion by a landslide, because at no point in the supposedly democratic process had it been necessary for the bill’s opponents to persuade the American people of the merits of their position. All they needed to do was hold together a minority of senators, most of whom would not face voters at the polls for several years, long after the sitting president and many of their colleagues in the House of Representatives had come and gone, and by which point this bill would be a distant memory. There was very little pressure on the opponents of the bill to cross party lines because they were accountable almost exclusively to people who looked and thought like they did: white conservatives.

As recently as a few years prior, it had been common for Republican senators to represent states Democratic presidents won, and vice versa, creating pressure on them to cross the aisle on key issues. Now, for the first time in American history, the Senate, like the rest of the country, had been almost completely sorted, so that most Republican senators represented red states and Democratic senators blue states. Moreover, the bill’s opponents were protected by the National Rifle Association, which launched a major lobbying campaign against the bill, fueled by anonymous donations whose origins the American people and campaign finance watchdogs can only guess at.

Senators were unlikely to pay any political price for opposing a bill supported by 90 percent of Americans.

In this system that rewarded party discipline and loyalty, insulated by millions of dollars in support from special-interest groups, senators were unlikely to pay any political price for opposing a bill supported by 90 percent of Americans. Sure, the conversations with tearful parents begging senators to think of their slain children may have been difficult to endure. But all a senator had to do was make it through the 15 minutes or so they reserved on their schedule for them. When the time was up, an aide would interrupt to tell the parents that they were sorry, but the senator really had to go, and it was off to fundraisers and pep rallies with like-minded people who would lavish them with praise and campaign contributions for standing firm against common sense and basic human decency.

The vote deciding the bill’s fate had taken place shortly before we found ourselves in Reid’s office, standing around in silence. As reporters filed their stories in the press gallery one floor above, we waited for Neil to speak. “Well,” he said, to break the silence. He bowed his head and trailed off. His broad shoulders shrugged, and it seemed like he was struggling to hold back tears. He didn’t need to say anything, because there was nothing more to say. His only son was dead and his government had failed to give a damn.

The shootings continued. On June 12, 2016, a shooting at the Pulse Nightclub in Orlando, Florida, would briefly become the deadliest mass shooting in America, as a gunman shot 49 people dead. On October 1, 2017, a gunman fired into a crowd at a music festival in Las Vegas, killing 58 concertgoers. On February 14, 2018, a gunman walked into Marjory Stoneman Douglas High School in Parkland, Florida, and killed 17 students and staff. Overall, between the Newtown massacre and July 2020, more than 2,600 people would be killed in mass shootings in America.

Many of the massacres would be carried out with the same AR-15 assault rifle that had been used in the Newtown shooting. Many of the shootings took place in schools, and many of the victims would be children.

Neil’s government didn’t just fail him and the other Newtown parents, and it didn’t just fail the children who would be gunned down in the years to come. As it had with increasing frequency in the years before Newtown, the United States government failed the millions of Americans who made up a large, bipartisan majority that supported a reasonable solution to an urgent national problem. In the wake of a massacre of first graders, the American people had asked their government to pass specific, moderate policies to make future massacres less likely.

A minority in one chamber of one of the three branches believes that easy access to assault rifles is a higher priority than protecting children’s lives.

Because the Senate lies at the heart of our legislative process, however, a minority of senators, who represented an even smaller minority of the population, were able to impose their will not just on the Senate itself, but on the entire country, and block those commonsense solutions. As young people continue to be killed in mass shootings, the official stance of the entire United States government is indifference because a minority in one chamber of one of the three branches believes that easy access to assault rifles is a higher priority than protecting children’s lives.

Neil and the other parents wanted to know how this could happen. We explained Senate procedure and political realities, but their eyes asked deeper questions: How did it get to be this way? How was this possible in a democracy? How could the government so callously disregard such a reasonable call to action? The answers lie in the transformation from the Senate envisioned by the Framers to the modern Senate we know today — and the rise of the idea of minority rule, exemplified in the filibuster.

Minority rule has become such a pervasive and often unquestioned part of American political life that it’s worth pointing out that yes, America is a democracy. The most fundamental characteristic of democracy — the idea that majority rule is the fairest way to decide the outcome of elections and determine which bills become law — is baked into our founding ideas and texts.

Yet the emphasis we now place on the rights of minority factions has become so exaggerated that it’s not unusual to hear prominent voices make claims such as, “We live in a republic, which means 51 percent of the population doesn’t get to boss around the other 49 percent.” That comment came from Rep. Dan Crenshaw of Texas, a Republican who took his seat because he won his 2018 election by a vote of 53 to 46 percent. But if the vote had been 51 to 49, or even if Crenshaw had received a single, solitary vote more than his opponent out of the thousands of ballots cast, he still would have won. In a democracy, that’s not one side bossing the other around, it’s just how the system works.

The “republic, not a democracy” trope popular with people like Crenshaw on the right relies on a semantic twist. When the Framers wrote the Constitution, the word “democracy” meant direct democracy — the kind practiced in ancient Greece, where citizens voted directly on the laws themselves, without elected officials as intermediaries. If the Framers had called the United States a democracy in their time, they would have been arguing that every law the government passed should be, in effect, a ballot initiative. To the Framers, a “republic” meant what we today call a democracy: a system where the people elect their representatives, who then write and vote on laws.

The defining feature of a republic, the Framers stated time and again, was majority rule. James Madison called majority rule “the republican principle.” There was a reason the Framers were so focused on the issue of majority rule. The Constitution was the second draft of American government. The first draft, the Articles of Confederation, had been a complete disaster. And there was broad agreement that the main failing of the Articles was its requirement that in order for a piece of military, tax, or spending legislation to pass, two-thirds of the states had to vote for it. Since those categories encompassed most major legislation, especially during wartime, the Articles effectively required supermajority support for the federal government to act on all of the most significant challenges it faced. The result was frequent gridlock, which the Framers wanted to avoid.

No one gave the balance between majority rule and minority protections more thoughtful consideration than James Madison, the steady hand guiding the Constitutional Convention. Madison tends to be conservatives’ favorite source to quote in defense of minority rights in the Senate, because he took the need to prevent the majority from running roughshod over the minority seriously. In his writings and correspondence, he often cites the dangers of untrammeled majority rule.

The minority protections Madison devised to guard against majority tyranny, though, were far more modest than defenders of the Senate today make them out to be. Madison stopped well short of advocating for supermajority thresholds or giving the minority any sort of veto power over the will of the majority. Like the other Framers, Madison favored a system of majority rule at every point where a decision was to be made, aside from the handful of exceptions enumerated in the Constitution for extraordinary cases like impeachment and constitutional amendments.

The decision to create a Senate where every state was afforded two senators regardless of size while states enjoyed proportional representation in the House of Representatives became known as the Great Compromise and is widely regarded as the deal that saved the Constitutional Convention. When it came up for the decisive vote, it passed by the barest majority, on a vote of 5 to 4. Majority rule created the Senate and salvaged a compromise — and perhaps the Constitution itself.

Whenever proposals for supermajority thresholds were raised at the convention they were summarily dismissed. In the end, the convention made clear that supermajority thresholds should be reserved for the matters of greatest consequence, such as impeachment, treaties with foreign nations, and amendments to the Constitution. On all other matters, the delegates were clear that the Senate was to be a strictly majority-rule institution.

When it was time to sell the Constitution to the American people, the Framers made majority rule central to their argument. In America, Madison argued, majority rule would not trample minority rights because any majority in a country as big and diverse as ours would by definition represent a wide-ranging cross-section of interests.

To be sure, Madison and the other Framers structured the Senate to offer protections for minority interests and to guarantee a thoughtful, deliberative process. A consistent theme is the focus on the whole system. For a bill to become a law, it must secure majorities in two chambers of very different composition, where members are accountable to different audiences of voters; in the Senate, the bill is guaranteed to endure extended (albeit not unlimited) debate. If the bill passes Congress, it must then be signed by the president, who is accountable to a national audience of voters. And then the law can be challenged in the courts, whose members are accountable to no voters, and serve for life. Madison was right to present this as a daunting series of hurdles. To this day, the United States has more “veto players,” as political scientists dub them, in its system of government than any other democracy.

With its built-in minority protections, the Senate is the part of the system most vulnerable to manipulation by a minority.

The beauty of Madison’s system, the interlocking nature of the pieces, is also what makes it vulnerable to being derailed by obstruction. To alter the system, you don’t have to change the whole thing, just one part. With its built-in minority protections like equal representation for states, the Senate is the part of the system most vulnerable to manipulation by a minority. Gumming up the works can be done by a minority of states — or even by a single person, such as a southern senator with a sophisticated understanding of power and a deep-seated drive to defy the majority.

John Caldwell Calhoun did not come to Washington from South Carolina to divide the nation. He came to unify it, behind himself, as president.

A tall, wiry man with deep-set eyes and a square jaw, his coarse gray hair swept up and, in his later years, down to his collar, Calhoun struck those who knew him as deeply intelligent and eloquent, if doctrinaire and guarded. He had an explosive temper.

Having gained a national profile in the period surrounding the War of 1812, he ran for president in 1824. While he did not win, he did get the most votes for vice president at a time when the two offices were elected separately. The presidential election that year ended without a clear winner. Neither of the two leading candidates, John Quincy Adams and Andrew Jackson, secured a majority in the Electoral College, so the election went to the House to break the tie, according to the process laid out in the Constitution.

Henry Clay, then speaker of the House, had also run for president that year. He lost, but he was able to play kingmaker in the chamber he controlled. In return for Adams’s promise to appoint him secretary of state, Clay gave his bloc of votes in the House — and the presidency — to Adams. The deal sparked outrage, quickly becoming known as the “corrupt bargain,” and it embittered Calhoun toward both Adams and Clay. As Adams’s vice president, Calhoun simmered in his discontent, fuming that Clay “made the President against the voice of his constituents,” and calling the deal “the most dangerous stab, which the liberty of this country has ever received.”

Calhoun’s bitterness would alter the course of the Senate and the nation. Anonymously, he penned a pair of manifestos called “Exposition” and “Protest,” where, for the first time, he developed the theory that would become known as “nullification.” His arguments were fierce but his thinking convoluted: His theory was that states could call individual conventions to examine the constitutionality of specific federal laws. If the state convention decided a given law was unconstitutional, the state could nullify it. Despite the impracticality of having states call individual conventions to decide whether to follow individual laws, the basic idea that states should be able to pick and choose which federal laws they obey would prove enduring.

After a stint as Andrew Jackson’s vice president, Calhoun cast his eyes home to South Carolina and saw a faction in need of a champion. Calhoun had already broken with his unionist past with his “Exposition,” albeit surreptitiously. Now, the South was running hot. Slavery had begun forcing a series of legitimacy crises that would eventually erupt into the Civil War. The South needed a leader.

In the 1830s, unionism ceased to be a viable path for Calhoun’s ambitions, and he completed his transition into an open nullifier. Nullification would define his career but be rejected on a national scale — eventually, at grave cost in human life. But in the decades leading up to the Civil War, Calhoun would find ways to nurture the underlying concept — the idea of a minority veto over the will of the majority — first from the vice presidency, then from his new perch in the Senate, and the institution would never be the same.

At Least 50 Dead In Mass Shooting At Gay Nightclub In Orlando — Photo: Joe Raedle/Getty Images

The debate over whether a minority had a right to block the federal government would quickly drive the country into what became known as the nullification crisis. South Carolina, putting Calhoun’s “Exposition” into action, refused to pay what it owed the federal government under the Tariff of Abominations. Clay forged a compromise, but not before Jackson sent troops to South Carolina. The South backed down, but the irresolvable and now very public tensions between Calhoun and Jackson led the vice president to resign in 1832. He was appointed to an open Senate seat in South Carolina, and easily won reelection on his own terms.

Like future generations of conservatives, Calhoun had invoked Madison in defense of his ideas during the nullification crisis. But unlike today’s conservatives, Calhoun had to contend with the fact that Madison was still around to respond. The longest-lived of the major Framers, Madison fielded numerous inquiries about his views on nullification and responded in detail. Asked to respond to Calhoun, he complied.

Madison explained that Calhoun was distorting his ideas to inflate the limited protections for factional minorities he had designed into larger powers that went beyond anything Madison intended. Madison believed the system he had created offered an aggrieved minority all the tools they could reasonably demand — protections that were designed to allow a minority not to block or nullify, but to persuade. They guaranteed the minority a prominent platform, the Senate floor, from which to make their case to the public, ensuring that they would never be silenced and would always have ample opportunity to get their message across. If they were successful, they could change minds and win the debate at hand. If not, they could try to increase their power at the ballot box in the next election and put themselves in the majority.

Far from providing intellectual succor to Calhoun, Madison firmly rejected the idea of nullification. “It follows from no view of the subject,” he wrote in one note, “that a nullification of a law of the U.S. can as is now contended, belong rightfully to a single State.” Maintaining remarkable consistency with the Federalist Papers, published more than forty years earlier, Madison once again explained that the dangers of giving veto power to a minority outweighed the potential benefits: “[T]o establish a positive and permanent rule giving such a power, to such a minority, over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself.”

The way to prevent majority tyranny was not minority domination, Madison explained, but to trust the interlocking checks built into the overall system.

The way to prevent majority tyranny was not minority domination, he explained, but to trust the interlocking checks built into the overall system. By Madison’s final years, he had seen the government from all sides, inside and out. As his career wound down, he seemed satisfied with his work. Toward the end of his life, in a vintage construction, he wrote, “In Republics, where the people govern themselves, and where, of course, the majority govern, a danger to the minority arises from opportunities tempting a sacrifice of their rights to the interest, real or supposed, of a majority.” Then came the inevitable turn: “No form of government, therefore, can be a perfect guard against the abuse of power. The recommendation of the republican form is, that the danger of abuse is less than any other.” A system based on majority rule may not be perfect, Madison allowed, but in the course of human history, it was the best anyone had come up with.

In 1834, less than two years before he passed away at his home in Montpelier, Virginia, Madison engaged the topic once more, writing, “The vital principle of Republican Government is the lex majoris partis, the will of the majority.” In his time, Madison’s vision seemed to win out. But Calhoun, and his vision of minority rule, would outlive Madison. Calhoun would make headway in the years to come, but he would continue to struggle with a stubborn challenge posed by Madison’s system: Despite its minority protections, the Senate was still a majority-rule body. The tactics necessary for a minority to stop a bill would take a century to develop and even longer to be wielded with any frequency. Indeed, the idea that one day a minority in the Senate could block anything it wanted might have been too much for even Calhoun to hope for. But once he arrived in the Senate, he got to work forging the tools that would one day give his successors that power.

The supermajority threshold we take for granted today is a relatively recent development.

Fast-forward to today — and Calhoun’s vision has won out. The Senate transitioned from the majority-rule body that Madison and the Framers envisioned, to one where a minority of senators wield veto power over nearly all legislation that passes through the chamber. The supermajority threshold we take for granted today is a relatively recent development. It did not come into being until long after Calhoun had passed away; the rule that made it possible was not invented until 1918, and even then, most votes continued to be majority-rule through the end of the 20th century.

When Sen. Mitch McConnell, R-Ky., took over as Senate minority leader in 2007, the number of supermajority-threshold votes forced by the minority exploded, doubling over the previous session to reach an unheard-of new high of 112 supermajority votes over a two-year period. Having made this supermajority threshold routine, McConnell later used it to block the background checks bill in 2013.

Today, McConnell has used it to stymie most of President Joe Biden’s agenda. In the years to come, senators will face a choice: Do they want to accept Calhoun’s Senate as the new reality, a chamber where the minority rules? This will almost inevitably lead to the Senate joining the heap of failed institutions, rendering America ungovernable. Or will they return the institution to what it was meant to be: a majority-rule body capable of dealing with the governing challenges facing the expansive, complicated nation that we live in? Only time will tell.

Excerpted from the book “Kill Switch: The Rise of the Modern Senate and the Crippling of American Democracy,” by Adam Jentleson and published by Liveright Publishing Corporation, a division of W.W. Norton & Company, Inc.