What the Heck is Going on With Voting Rights?

I’m sure many people are wondering: what in the heck happened yesterday? Well Leader Schumer actually did something quite brilliant, in my opinion. I don’t know, maybe this has been done before but it’s the first I’m hearing of it. Basically Schumer used a bill that already passed the Senate, in this case a NASA bill, as a shell for the Freedom to Vote Act and John Lewis Voting Rights Advancement Act. The House will vote on amendments to add the text to the NASA bill and then send it back to the Senate. The new bill, called the Freedom to Vote: John R Lewis Act (I know, they should have named it the John R Lewis in Space Act or something!) can be brought up for debate in the Senate with a simple majority – because a different version, the original NASA bill, already passed the Senate.

The fact that Schumer was able to use existing Senate rules to get around a filibuster on the motion to proceed and bring the bill up for debate tells me his head’s in the right place. I’ve been arguing for months now that a rules change using the “nuclear option” was unlikely, as Manchin and Sinema still seem staunchly opposed, but there are ways around a filibuster using existing rules.

So what happens next? Well today the House will vote on the amendments then pass the bill and send it back to the Senate. The Senate can then bypass the filibuster and immediately move to consideration of the bill. Republicans will still be able to block a final vote though, which Democrats still need to find a way around.

The least likely way around it is that Democrats will find 60 votes to invoke cloture and end debate. The second least likely way is for Democrats to use the “nuclear option” to create a voting rights carve-out – similar to what Harry Reid did in 2013 or what Mitch McConnell did in 2017 for Supreme Court nominees. The most likely option, and one Manchin has floated in recent days, would be to go back to the ‘present and voting’ standard for invoking cloture.

Let’s back up a second. In 1975 the threshold for cloture [ending a filibuster] was changed from two-thirds of those present and voting to three-fifths of the entire Senate (60 votes). This was supposed to make it easier to break filibusters but it ended up having the opposite effect. Since it now took 60 votes to end a filibuster no matter how many Senators were actually present, the entire burden was on the majority to find the votes (maybe they should call Brad Raffensperger). The minority didn’t even have to show up. Going back to three-fifths of those ‘present and voting’ will mean the minority will at least have to make sure they have enough Senators on or near the floor to deny the majority three-fifths.

The end result would be that this would make talking filibusters more likely, because they’ll be easier to defeat. And the minority will have to be more selective about when to employ the filibuster – since it’s going to require most of their caucus to be on or near the floor. This option also has the benefit of not being such a radical change. It would simply restore the Senate rules to what they used to be. Still, this would likely require Democrats to change the rules using the ‘nuclear option,’ something Manchin still seems against.

The final option is for Democrats to break the filibuster using existing Senate rules. This would be grueling and time consuming but, as a last resort, could work. There’s nothing in the Senate rules saying that debate needs to be ended by cloture. The other way to end debate, the way they used to do it, is to simply ‘call the question.’ Once everyone who wants to speak has spoken the clerk will call the roll and the measure can pass by a simple majority. The problem with this is, the minority can keep that vote from taking place by continuously holding the floor (a talking filibuster). Members can switch off talking and offer amendments and motions that could theoretically keep the filibuster going indefinitely. Though the minority would only need one member holding the floor to maintain the filibuster, the majority needs all their members there to make sure there’s always a quorum present (51 Senators), otherwise the Senate will recess, which only aides the filibustering Senators’ efforts to delay.

Still, there’s reason to believe that Republicans couldn’t keep the filibuster going forever. Government funding runs out February 18th and I’m sure Republicans don’t want to force the government into a shut down eight months before an election. I’m also sure they would rather be out there campaigning and fundraising, something they can’t do if they’re stuck in Washington filibustering. These would be powerful incentives to end their filibuster, especially if it seems Democrats are not caving. It becomes a game of wills.

So as you can see there are a number of options available for Democrats to get around a filibuster and get voting rights over the finish line. Which option they choose remains to be seen. The one thing I can tell you: it’s going to be very interesting!

The Biden Theory of the Case

It’s easy to get lost in the minutia of day to day politics but I really think people are missing the forest for the trees. In the grand scheme of things Biden’s little spat with Manchin and Build Back Better isn’t really going to matter. The bill will pass and disappointment about what gets left on the cutting room floor will inevitably fade and give way to excitement about what IS in the bill. Think about the argument we’re having right now: Do we want universal pre-k or or a universal child allowance? Should we make the largest investment ever in combatting climate change or the largest expansion of affordable healthcare in a over a decade? Or maybe we should focus on the greatest expansion of civil rights and voting rights since 1965? These are not bad problems to have.

I just don’t buy all the punditry saying Joe Biden misread his mandate or made a mistake by going too bold and now people are inevitably going to be dissapointed. It’s easy to play Monday morning quarterback but let’s game out some other scenerios. Biden ran on a bold, progressive platform. What would have happened if he said, “Never mind. I only got 50 votes in the Senate, so all that stuff I said I was gonna do – I’m not even going to try.” He would have had a progressive revolt and thrown away any chance of doing anything. Biden has a difficult task before him – keeping the disparate factions of the Democratic party together and united behind his agenda – and in my opinion (Manchin spat aside) he’s done so masterfully.

I just finished reading Evan Osnos’ biography of Joe Biden (you can thank my long layover in Texas for that). I highly reccommend it. It really helps you understand what he’s doing and why he’s doing it. Here’s the Biden theory of the case: the only way to save our democracy is to prove that a democratically elected government can deliver results for people. Put another way, the only way to defeat Trumpism is to show Trump’s supporters that their voices are being heard and that they don’t have to turn to someone like Trump to get a government responsive to their problems. That’s why Biden’s been so singularly focused on Build Back Better. It’s why he’s billed the infrastructure bill a “blue collar blueprint to rebuild America.” And it’s working. Wage growth for those without a college degree has outpaced wage growth for those with a degree since January 2021 – the longest period on record.

The bad actors are going to act bad – that’s what they do – the only thing we can do is make the outrage they’re peddling less appealing. Remember: the outrage machine only amplifies anger and resentment, but there has to be an existing base of anger and resentment for it to amplify, and though you’re never going to remove all the things that make people angry or upset, you can reduce it to a level that is sustainable. Just like how reducing transmission of the virus allows society to function normally, reducing anger and resentment to a sustainable level will allow democracy to function. The only way out is through helping people, not punishing them.

Of course governing effectively is only one piece of the puzzle. There’s an important second piece too. If making the bad actors less appealing is step one, reforming democracy to shore up the weaknesses exposed by the bad actors is step two. Biden has gotten a lot of flack (including from me) for not paying enough attention to voting rights. Bad actors all across the country are using the “Big Lie” as an excuse to pass restrictions that make it harder to vote, and they’re likely to continue in 2022. Passing both the Freedom to Vote Act and John Lewis Voting Rights Advancement Act will push back against these state level restrictions and also put an end to gerrymandering, which causes increased polarization by making elections less and less competitive.

In order to pass both of these bills we will need to reform the filibuster – though filibuster reform shouldn’t be thought of as a means to an end, rather, reforming the filibuster is itself essential to saving our democracy. The fact is that one of the reasons people no longer believe democracies can deliver is because whichever party is out of power does their damnest to make sure the party in power can’t get anything done. Giving the minority a blanket veto over the majority’s agenda is insane and runs counter to the way our democracy was designed. Fixing the filibuster will allow our government to function as intended and be more responsive to the needs of it’s people – instead of our current state of affairs where politicians make big promises on the campaign trail that are impossible for them to fullfill once in office.

Finally, we need to update the Electoral Count Act to clarify the Vice President’s role in the counting of electoral votes and also what constitutes grounds for challenging a state’s votes. It’s unclear at this point whether this is something Democrats will have to do on their own or whether there’s enough establishment Republicans (I’m looking at you Mitt Romney) to pass a filibuster proof bipartisan bill. Obviously for big changes like this you’d prefer it to be bipartisan but if going it alone is the only way then that’s the route Democrats must take. This is just too important. Besides, both the 14th and 15th Amendment, which gave citizenship and voting rights to freed-slaves, passed on party-line votes.

Biden has not paid nearly enough attention to voting and democracy reform in the first year of his presidency but it looks like that is starting to change – a very welcome sign for those of us worried about the future of democracy.

Biden has a great task ahead of him: literally saving American democracy. But if he can pass Build Back Better, voting rights and election reform, on top of the infrastructure and COVID relief bills he’s already passed, that would go a long way towards meeting his goal of proving democracies can function. It would also safeguard our democracy against future attacks. I don’t know if it will save Democrats in the midterms but I would still call it a success – and though this has been said about every President, I think it’s the case now more than ever: Biden’s success is America’s success.

Pass the Freedom to Vote Act

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The Freedom to Vote Act comes up for a vote this Wednesday. A vote that is likely to fail to a Republican filibuster, after which, Democrats will have to choose whether to reform the filibuster in order to pass this legislation, or whether to let an undemocratic rule stand in the way of protecting democracy. To me it’s an easy choice. This legislation is more important than a Senate rule, especially one that has itself done much harm to our democracy. In fact, I would argue that the Freedom to Vote Act is the single most important piece of legislation in my lifetime. It shouldn’t be a priority of the Democratic majority it should be THE priority.

The Freedom to Vote Act makes voting easier and more accessible by requiring 15 days of early voting, including two weekends, vote-by-mail for all who want it, and minimum standards for ballot drop boxes, including requiring jurisdictions have at least one or 25% (whichever’s bigger) available 24/7. It would make election day a public holiday and restore voting rights to the formerly incarcerated after they’ve paid their debt to society.

Not only does the bill make it easier to vote, it also makes it easier to register to vote, requiring states allow automatic, same-day, and online voter registration. It strengthens voter list maintenance requiring states use “objective and reliable evidence” of a voter’s ineligibility before removing them from the rolls, not things like failure to vote or failure to return mail.

For those concerned about election integrity, there’s plenty in the bill for you too! The bill creates a national standard for states that require voter ID. It requires states use paper ballots that can be verified by voters so every vote has a paper trail. It also requires states perform reliable post-election audits and it provides grants for states to upgrade outdated election equipment and make improvements to cybersecurity.

The bill also goes further than the For the People Act by creating a judicial protection of the right to vote, and prohibiting governments from placing undue burdens on someone’s ablity to vote unless it furthers a significant government interest and is the least restrictive way of furthering that interest. This means that states could no longer place restrictions on voting based on hypothetical voter fraud, they would actually have to prove that fraud exists and that their restriction is the least restrictive way of combatting it.

The piece of the bill I’m most excited about is the fact that it would finally end partisan gerrymandering once and for all by making it illegal to draw a map with the intent or effect of unduly favoring or disfavoring a political party. It also creates clear judicial standards by which to prove something is an illegal partisan gerrymander and an expedited judicial process so maps can be struck down within weeks of enactment, not years.

Finally the bill prevents election subversion by insulating nonpartisan election administrators from partisan influence and protecting election workers from threats and intimidation.

There’s much more to the bill, including provisions that reduce he influence of big money and protect from foreign interference, but if you’re still reading I should count myself lucky and end here: Protecting democracy mean ensuring everyone can participate in that democracy. It means making sure voters choose their representatives, not the other way around. And it means when weaknesses are discovered, putting in meaningful guardrails to shore up our democracy and protect from those who wish to subvert it. There’s much more we need to do to protect our democracy, incuding passing the John Lewis Voting Rights Advancement Act and updating the Electoral Count Act, but this bill is a huge step in the right direction.

For more information on the bill go to: https://bit.ly/freedomtovoteact

How to Bring Back the Talking Filibuster

Blah blah blah, “Mr. Smith Goes to Washington,” blah blah blah. Okay now that I’ve gotten that out of the way: with Democrats’ failure to get around a Republican filibuster and bring the For the People Act up for debate in the Senate, the focus has once again turned to the filibuster, and while it’s not likely we’re going to see an end to the legislative filibuster any time soon, reforms such as bringing back the ‘talking filibuster’ may still be on the table. Ever since Senator Joe Manchin seemed to endorse the idea back in March, there’s been article after article pontificating about bringing back the ‘talking filibuster’ but very few articles have gone into what that process might actually look like. How exactly would the Senate go about bringing it back? And what rules would need to be changed? That is what I’ve decided to look into for this article, and frankly, the answer might surprise you.

Contrary to popular belief bringing back the ‘talking filibuster’ wouldn’t require any rule change. We could have a talking filibuster tomorrow and it wouldn’t need the approval of Joe Manchin or Kyrsten Sinema or anyone else besides Majority Leader Chuck Schumer. Let me explain: The current ‘silent filibuster‘ exists because Senators can request what are called ‘holds’ on bringing up legislation. A ‘hold’ is basically letting the majority leader know that you plan to object when they bring a measure to the floor. This begins the process of a filibuster, which takes up considerable floor time, and if the majority leader doesn’t have the votes to invoke cloture and end debate, they usually consider it a waste of time to even introduce the bill. In this way, the mere threat of a filibuster is usually enough to keep the Senate from even considering a bill. That is why filibusters have gone from Senators talking for hours on end to a Senator, or more likely a staffer, simply sending an email.

Because a single Senator can object to moving forward on legislation, a Senator from say, Wyoming, representing less than 600,000 people, can thwart the will of 59 Senators representing 71% of the population, or 233 million people.

The other reason we don’t see talking filibusters anymore is because of the “dual-tracking”system created in the 1970s. This basically allows the Majority Leader to put legislation that is being filibustered off onto a separate track and immediately move on to other business on a new track. That is what happened with the For the People Act yesterday and the January 6th Commission before that. In both instances a cloture vote failed and the Senate moved on to other business. This option is usually quite enticing to a Majority Leader, instead of enduring hours, sometimes days, of delay effecting not only that bill, but everything on the Senate calendar.

But there’s nothing stopping a Majority Leader from bringing up legislation that a Senator has requested a ‘hold’ on and there’s nothing forcing them to immediately file a cloture petition once a bill’s been introduced, as has become current practice. There’s also nothing forcing them to put legislation off to the side once the cloture motion has failed and move on to other business on a new track. Schumer could have instead introduced the For the People Act with a ‘motion to proceed,’ which is debateable, and allowed Republicans to stand there and talk it to death. Senate rules allow any Senator to speak for as long as they want on any matter before the Senate. Once everyone who wants to speak has spoken, the motion could be passed by majority vote and the Senate would begin debate.

Now if you’re saying to yourself, “Wait a minute they just spent hours, maybe days debating! That was just on whether to bring the bill up for debate?” Now you’re starting to get why the filibuster is such an effective tool for minorities to block legislation and why majority leaders usually choose to avoid filibusters at all costs.

Because filibusters are possible on any debateable motion, there are currently two choke-points when considering legislation: one on the ‘motion to proceed‘ and one on the measure itself. Since there are no rules on the length of speeches in the Senate, a filibuster can go on for as long as a Senator is willing to talk. Technically each Senator is only allowed to speak two times on any subject but that is rarely enforced, plus they can offer motions or amendments, both of which are debateable, which means each Senator would get to speak twice on every motion and amendment as well. Obviously you can see how a determined minority could essentially make a filibuster go on indefinitely.

Though the minority is required to have someone constantly holding the floor and talking, most of the burden is on the majority. The minority only needs one Senator on the floor at a time. The rest are free to go home and watch reruns of Three’s Company or do whatever until it’s their time to talk. By contrast, the majority needs to keep nearly their entire caucus on or near the floor in case of a quorum call. A Senator may at any time note the absence of a quorum (51 Senators). The clerk is asked to call the roll and if the majority can’t get at least 51 Senators to the floor by the end of the roll call, the Senate is suspended until a quorum can be established. This only further aids the minority in delaying whatever they’re filibustering. The only thing limiting this as a tactic for delay is the fact that a Senator loses the floor when they note the absence of a quorum.

The majority is not powerless though. Let’s say Schumer decides to bring the For the People Act up again for a vote in late August or early September. Republicans stage a filibuster which goes on for weeks. Government funding runs out at the end of September and Congress needs to pass an appropriations bill by the end of the month in order to avoid a government shutdown. There will be significant pressure on Republicans to end their filibuster so the Senate can vote on the appropriations bill and keep the government open. However Republicans could point out that all Schumer has to do is use “dual-tracking” and put the bill off to the side momentarily in order to pass the appropriations bill, and they wouldn’t be wrong. In this way “dual tracking” takes away one of the biggest incentives a minority may have to end a filibuster: public pressure.

So as you can see, there are no rules that needs to be changed to bring back the talking filibuster, but there’s a reason we don’t have them anymore. They waste a lot of time and place a significant burden on the majority. They are also extremely difficult to break. There are rule changes, however, that would make us more likely to see these ‘talking filibusters’ again by shifting the burden to make filibustering more painful for the minority, and easier for the majority to break.

The first rule change would be to make the “motion to proceed” nondebateable. This would take away one of the two choke-points so the minority would only have one opportunity to filibuster. This way, the minority wouldn’t be able to block a bill from even coming up for debate, as happened with the January 6th Commission and the For the People Act.

Another change would be to get rid of “dual-tracking.” This is more tricky because “dual-tracking” is not an actual rule. It was basically created out of thin air when Majority Leader Mike Mansfield asked unanimous consent to set aside a measure being filibustered and move onto another bill on a new “track.” Majority Leader Schumer would simply need to choose not to use that power and come up with a compelling reason why he is not using it or why it should no longer be allowed.

The final rule change that would make a ‘talking filibuster’ more likely is one that Manchin seemed to endorse for the fisrt time last week, that is, shifting the burden. Instead of it taking 60 Senators to end a filibuster, it should take 41 to maintain it. This would mean that the minority would need to keep at least 41 Senators on or near the floor at all times. If the minority’s numbers drop below 41 the majority could file a cloture petition and, unless there are 41 votes against it, cloture would be invoked to end debate and move forward on the bill. This has the added benefit of making it a little easier for the majority to endure a filibuster, since they would only need 10 or so Senators on or near the floor to maintain a quorum.

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So as you can see, though a ‘talking filibuster’ could be brought back tomorrow without any rule change, there are changes, such as making the motion to proceed nondebateable, getting rid of “dual-tracking” and shifting the burden to invoke cloture, that would make ‘talking filibusters’ more likely and possibly grease the wheels to get the Senate moving again. These small changes would ensure that minorities still have a means to block egregious legislation without giving them a blanket veto over the majority’s agenda. It would also put this matter behind us so we wouldn’t have to read any more articles referencing “Mr. Smith Goes to Washington,” which I think we can all agree, would be a very good thing.

Why Democrats aren’t Going to Pack the Court or end the Filibuster Anytime Soon

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I have good/terrible news, depending on your viewpoint. Democrats are not going to pack the Supreme Court or end the filibuster. At least not any time soon. How do I know this? Well if we learned anything from President Joe Biden’s first 100 days it’s that he’s a politician first and foremost. His governing strategy seems to be: do popular stuff. His American Rescue Plan enjoyed broad support from the American public. His American Jobs Plan and American Families Plan both also enjoy majority support, though it should be noted that the American Families Plan, which was just released on Wednesday, hasn’t been polled much. I don’t write this to brag about how popular Biden is, I write it to say that Biden seems to have made the calculation that if he does things people like, he will be rewarded.

Packing the court does not have the support of a majority of Americans. A Mason-Dixon poll found that 65% of American were opposed to the idea while only 31% were supportive. It’s worth noting though that the question was prefaced by saying, “For 150 years, the Supreme Court has had nine justices.” Still, a Reuters/Ipsos poll found similar results with 38% supporting and 46% opposed. Interestingly, that poll also found that 63% supported term limits for Supreme Court justices. And a YouGov/Washington Examiner poll from back in October found only 34% supported increasing the number of justices, even while a majority (51%) felt the Senate should wait to consider Amy Coney Barrett’s nomination until after the election. Biden, the weather vane that he is, is not likely to push for something supported by only a third of the country.

The legislation to pack the court that Democrats introduced earlier this month is dead on arrival, as more than enough Democrats in both the House and Senate have come out against it, and Nancy Pelosi has said that she has no plans to bring it to the floor. The commission Biden set up was a way to fullfill a campaign promise and placate liberals while not actually having to do anything. When a politician sets up a commission to study something, that usually means that thing isn’t going to happen.

Polling on the filibuster is a little more muddled. A recent poll from Monmouth found only 19% supported getting rid of the filibuster entirely. 38% wanted to keep it with reforms and another 38% said keep it with no changes. Support for the filibuster overall was also very evenly split. 34% support, 34% opposed, with 33% having no opinion. An Economist/YouGov poll found support for the filibuster evenly split as well, with 47% saying filibusters are mostly good and 53% saying they’re mostly bad. As far as reform ideas go, the most popular was requiring Senators to hold the floor, which got 53% support. Finally, a Business Insider poll asked people about the filibuster and the most common response was “I don’t have strong feelings about the filibuster” (36%). Only 20% supported getting rid of the filibuster while 21% supported requiring Senators to hold the floor, and 17% said the filibuster is fine as it is.

These polls vary but there are a few common threads. Only about 1 in 5 people support getting rid of the filibuster entirely. The most popular solution seems to be bringing back the talking filibuster, and about 1 in 3 people don’t have a strong opinion either way. This last point is interesting because it suggests that there are still a lot of persuadable people out there.

Two people not amongst those persuadable people are Senators Joe Manchin and Kyrsten Sinema. Both have staunchly opposed getting rid of or weakening the filibuster, and neither seem willing to budge anytime soon, especially since their constituents seem to support their position. This means that just like court packing, filibuster reform seems dead on arrival.

With both court packing and filibuster reform the support just isn’t there right now and Biden and Democrats, with their eyes on 2022, are unlikely to move on something if the support isn’t there. If they want to make these changes they will likely have to build a case first. If, for instance, the Supreme Court starts striking down popular policies, public opinion may turn. Similarly, if Republicans start abusing the filibuster again to block Biden’s agenda, an agenda that is likely to continue to include popular items, support for reforming or abolishing the filibuster will likely go up. But right now, it’s hard to argue that you need to get rid of the filibuster when Republicans haven’t actually used it since 2014, the last time they were in the minority.

So breath a sign of releif conservatives, and one of exasperation liberals, the filibuster and the nine member Supreme Court are here to stay. At least for now.