Time is running out for Democrats to resurrect parts of their Build Back Better agenda and pass a Democrats-only reconciliation package in time for the midterms, when they are almost certain to lose one or both houses of Congress. Democrats believe that if they don’t at least get a framework by Memorial Day it will be too late. Manchin has laid out his priorities: drug price reform, tax increases for the wealthy, deficit reduction – going so far as to say that half the revenue should go towards deficit reduction. He also wants the programs to be permanent, instead of having arbitrary sunsets. But as NBC News reported, if Democrats are waiting for him to write the bill they’re going to be left waiting.
Luckily there’s a way to meet all of Manchin’s demands within the framework of the original Build Back Better Act, and include extending the Obamacare subsides expanded under the American Rescue Plan – which Insider reported would run out right before the midterms if Democrats don’t act. Democrats are bad at politics but they can’t be that bad at politics, right? RIGHT!?
Anyway, in case Democrats are that bad at politics (they are) I’ve decided to write the bill for them. Here is my Build Back Better Bill: Manchin Style!
Total Spending: $998 billion Total Offsets: $1975 billion
Deficit Impact: -$977 billion
According to CBO estimates permanently expanding the Obamacare subsidies would cost $428 billion over ten years, while the climate provisions laid out in the Build Back Better Act added up to $570 billion. That’s $998 billion in spending over ten years, which can be more than offset with savings from prescription drug pricing reforms ($270 billion), tax increases and other revenue ($1705 billion). Approximately half of the revenue raised ($977 billion) would go towards deficit reduction while the other half ($998) would go towards healthcare, prescription drugs, and fighting climate change.
Left on the cutting room floor are things like affordable housing ($175 billion) and universal pre-k and childcare ($752 billion), though if Manchin eases off his demand that half the money go towards deficit reduction (not likely) they could be added back in and we’d still reduce the deficit by $50 billion over 10 years. Another option would be to include a scaled-down childcare and pre-k package. Politico has reported Democrats have been shopping around just such a package that would come in at about $200 billion. Were Democrats able to convince Manchin to go along with it we could have a bill that looks something like this:
Total Spending: $1373 billion Total Offsets: $1975 billion
Deficit Impact: -$602 billion
In this scenerio you would have $1373 billion in spending and $1975 billion in total offsets for a deficit reduction of $602 billion, meaning around 30% of the revenue would go towards deficit reduction. Would Manchin go for it? Probably not, but a boy can dream!
Welcome to my brand new “Not an Economist” series, where I talk about economics with the small caveat that I’m not an economist so I may very well be talking out of my ass. Enjoy!
With Congress coming back from a two week recess and the clock winding down until the midterms, word on the street is Democrats are ready to restart formal negotiations on another reconciliation bill. As I’ve argued in the past, the old Build Back Better wasn’t going to have much of an effect on inflation either way. It might have slightly increased inflation in the short term (and by slightly I mean a few tenths of a percentage point) because much of the spending was frontloaded, but it would have likely lowered inflationary pressure over the long term – since it was fully paid for and would increase the productive capacity of the economy. But, of course, that bill is dead. The new bill doesn’t exist yet but from what I can glean from what’s been reported it looks like it will be better designed to ease inflationary pressure, both in the short-term and the long-term, and will lower the burden of high prices on working families. For starters, here’s what the the bill will probably look like:
1. Lower the cost of prescription drugs 2. Extend the expanded Obamacare subsidies 3. Massive investments in clean energy 4. Raise taxes on those making more than $400,000 a year 5. Reduce the deficit
So how would these items lower inflation? Well the first two are self-expanatory. By allowing medicare to negotiate prices, the bill will bring down the cost of prescription drugs. Extending the Obamacare subsidies, which were made more generous by the American Rescue Plan, would keep out-of-pocket healthcare costs down for most people. These would have the added benefit of keeping people healthy so they don’t miss work and could help nudge those still sitting on the sidelines back into the workforce. More workers means we can produce more things which will help ease some of the supply-chain shortages fueling inflation. And more workers also means companies won’t have to compete as much for talent, which would lower the upward pressure on wages – another contributor to inflation.
Everyone is upset about the price of gas these days. Well while we can take steps to bring down gas prices in the short-term, a long-term solution would be to move away from oil and gas entirely to cheaper, cleaner sources of energy. Onshore wind and solar are currently the cheapest ways of generating electricity. Making the investments to expand these technologies will drive down energy costs and make us less reliant on other countries for our energy needs. I know everyone talks about wanting to be “energy independent” but the truth is that we only have about 4% of the world’s proven oil reserves. We consume around 20% of the world’s energy every year. The only way to be truly “energy independent” is to move to sources of energy we have in abundance here at home. As someone who lives in California, let me tell you, we’ve got plenty of sun. And I’ve asked some of my friends in Chicago. Turns out we’ve got plenty of wind too! The other benefit of doing this is that it will save lives. More than 100,000 people die in this country every year from air pollution. From a strict macro-economic standpoint more people alive equals more workers which means lower inflation.
It’s long been a charge from the right that raising taxes, especially for those at the top, slows economic growth and hurts the economy. Well for once there’s an argument that that’s exaclty what we need to do. It kind of confounds me that Democrats haven’t been pushing more for raising taxes on the wealthy, since it’s one of their most popular agenda items, and since it’s a natural solution to fighting inflation. If pumping too much money into the economy causes inflation, it stands to reason that taking money out of the economy will lower inflation. Raising taxes could slow economic growth and stunt job growth but in an economy that’s running too hot that might be a good thing. Taking excess money out of the economy and using it to pay down the deficit will have long-term benefits for the economy and lower inflation in the short term.
Finally I’d be remiss if I didn’t mention another bill making its way through Congress that could help with inflation. It’s the China competition bill. One of the big drivers of inflation early on was the rapidly rising price of used cars, as a semiconductor shortage made companies unable to produce enough new cars to meet demand. China’s recent lockdown of Shanghai, which has caused even more supply chain snags, is a good reminder of the dangers of relying on other countries (especially adversaries) for essential items. Investing in the manufacturing of these components here at home will help ease the burden of supply chains snarls, and ease inflationary pressure.
The truth is that there isn’t much fiscal policy makers can do about inflation. That is Fed’s wheelhouse. But we can and should act where we can to move things at the margins. The good news is Democrats can still pass much of their agenda without having to worry about increasing inflation. In fact, the small effect it will have on inflation will be to bring down prices. And that is good for everyone.
I want to be abudantly clear about what happened last night. Democrats failed to pass voting rights, not because of Joe Manchin and Kyrsten Sinema – both of whom supported the underlying bill – but because of Chuck Schumer. The truth is that the rule change Schumer put forward would have made almost no difference in Democrats’s ability to pass the Freedom to Vote: John R Lewis Act. As I’ve pointed out manytimesbefore, they can bring back the talking filibuster without a rule change and the only thing this rule would have done is it would have made amendments and motions nondebateable, so Senators would have been more easily able to enforce the “two-speech rule“– which says no Senator may speak more than twice on any question. After each Senator used up their two speeches, the chair could simply move to the question and the bill could be passed by a simple majority. But back of the napkin calculations however show how limited this change would have been. If all 50 Republican Senators spoke two times for six hours each, the Senate remaining in session 24/7, they could have held the floor for a total of 600 hours (25 days).
When Democrats put this rule before forward, they presented it as if it was the only way to bring back the talking filibuster, but as I noted earlier that simply is not true. Under current rules Schumer could have simply left the bill as the current pending business of the Senate. Republicans would be required to constantly hold the floor, otherwise the chair can simply move to the question and the bill can pass by a simple majority. This path wouldn’t be easy and there’s no guarantee of success. Republicans could keep their filibuster going indefinitely, in theory. But there’s reason to believe that they wouldn’t. Government funding runs our February 18th and forcing the government into a shutdown to block voting rights – in an election year no less – is not good politics. Pressure would build on them to eventually relent or at least come to the table and negotiate a compromise that can pass with 60 votes [the threshold to invoke cloture].
To those who say this strategy is impossible I ask, how do you think the Senate got things done before 1917? Before cloture was created the only way of ending debate was to simply wait until everyone who wanted to speak had spoken. Guess what? Bills still got passed. Even ones that were filibustered. Cloture added another tool to bring an end to debate but it isn’t the only tool. The original method still exists.
Democrats could have taken this path but they chose not to. Why? You would have to ask them. If I didn’t know any better I’d think they were using the failed cloture vote and the failed vote on rules change as an excuse for not passing voting rights, and using Sinema and Manchin as scapegoats. Make no mistake, I’m as frustrated as everyone else with Sinema and Manchin. I would like to see the filibuster abolished. But they’ve been clear for months now that that wasn’t going to happen, and that they would only support a smaller rules change if it had bipartisan support. Democrats could have forced Republicans into a talking filibuster. They chose not to. Manchin went so far as to make this point on the Senate floor yesterday. Here’s what he said:
“Here’s the good news. We don’t have to change the rules to make our case to the American people about voting rights, about the John Lewis. We don’t have to. We really don’t. Senator Schumer didn’t have to file cloture to cut off debate. He didn’t have to fill the Amendment tree to block Republican Amendments. We’re here. We could have kept voting rights legislation as the pending business for the Senate. Today, next week, a month from now. This is important. Let’s work it out. Let’s stay here and go at it.”
Joe Manchin (January 19, 2022)
You’re not going to hear many people (who aren’t Republicans) say this today but Joe Manchin is 100% correct. Democrats wanted to take the easy way out, but doing something this important isn’t supposed to be easy. The Civil Rights Act of 1964 was filibustered for 60 working days – the longest continuous filibuster in Senate history – but they eventually got it done because they were willing to put in the work. Today’s Democrats just don’t seem willing to put in the work.
While I’m dissapointed, I’m not surprised. After their failure to call witnesses at Trump’s second impeachment trial last year it became clear to me that Democrats’s love for democracy only goes so far as it helps them politically, and their willingness to shore up our institutions is directly analogous to how convenient it is for them. Maybe they’ll prove me wrong. Maybe they’ll make an actual serious attempt to pass voting rights. But from where I’m standing today it does not look like that is what happened yesterday and the person to blame is Chuck Schumer, not Joe Manchin and Kyrsten Sinema.
I’d like to end though on a positive note. This failure is a bitter pill to swallow, but it’s important to note that it was not all for naught. As Ron Brownstein so elloquently pointed out in The Atlantic,we have moved the overton window on federal protections for voting rights and filibuster reform. A year ago we would have been lucky to get half of the Democratic caucus to agree to changing the rules. Last night we got 48 out of 50. This isn’t the end, it’s only the beginning.
Finally, the debate that happened in the Senate over the course of the last twodays was incredibly refreshing and good for democracy. If you haven’t already, I recommend watching some of it. Each side made their arguments, both to each other and to the American people. Nothing was left unsaid. This is how our democracy is supposed to work. Here’s hoping the Senate can have more lively debates going forward so it can truly live up to it’s reputation as the, “World’s greatest deliberative body.”
And here’s hoping Chuck Schumer proves me wrong, and does what it takes to get the Freedom to Vote: John R Lewis Act passed and signed into law. As he said last night, “History is watching.”
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!
Joe Manchin has said he would support a $1.5 trillion reconciliation bill. He also signed an agreement along with Majority Leader Chuck Schumer back in July going into more detail about specifically what he can and can’t support. I’m still hopeful Manchin can be nudged up to $2 trillion, since that’s the amount of revenue his proposed pay-fors would generate, but either way, the most imporant parts of the Build Back Better agenda can still fit into a $1.5-2 trillion bill. Here’s my best guess as to what’s going to be in the bill based on various proposals and statements:
Pay-fors: Reduce Tax Gap: $711 billion Increase top rate on individuals to 39.6%: $100 billion Increase top capital gains tax to 28%: $123 Apply 3.8% medicare tax over $400,000: $200 billion Prevent tax havens: $25 billion Strengthen GILTI: $500 billion Raise corporate tax to 25%: $500 billion End stepped up basis: $204 billion Eliminate FDII deduction: $250 billion 15% minimum tax: $100 billion Total: $2.2 trillion
So as you can see, there is still a lot we can do with a $1.5-2 trillion bill. The bill could still include universal pre-K, free community college, subsidized childcare, paid family leave, extensions of the child tax credit and ACA tax credits, and clean energy tax credits. Plus if benefits were meand-tested, even more could fit into the bill. That’s the good news. The bad news? Manchinema is a myth! By which I mean, though both Manchin and Sinema are moderate holdouts for the bill, they’re each holding out for different reasons. Manchin is on board with the tax increases but doesn’t like a lot of the spending on climate provisions, Sinema is on board with the climate provisions but against the tax increases. That is going to be a fun one to figure out!
Democrats today (or yesterday, depending on how long it takes me to write this) unveiled their long awaited voting rights compromise bill aptly called the Freedom to Vote Act. The bill is not as far-reaching as the For the People Act but goes farther than the proposal Manchin released in June. Frankly, it’s a lot bolder than I expected and would represent a huge step forward for our democracy.
The Freedom to Vote Act would require states provide automatic voter registration, online registration (yes, some states still don’t have that), and same-day registration. It requires states to allow vote-by-mail for all who want it, and prohibits requiring ID to vote-by-mail other than a signature or the last four digits of your social security number. It bans notarization requirements and witness signatures, which some states use to make vote-by-mail more onerous. It would require states accept absentee ballots postmarked by election day and would require states allow 3 days for voters to “cure” their ballots (this would neuter the new Texas law that requires missing signatures be cured by 7:00 pm on election day). The bill also requires 15 consecutive days of early voting (at least 10 hours per day) ending no sooner than the day before the election. It creates a minimum requirement for the number of ballot drop boxes in each jurisdiction and requires at least one or 25% of drop boxes (whichever’s greater) in a jurisdiction be accessible for 24 hours a day; directly rebutting Georgia’s law that limits the number of drop boxes and makes them only available during early voting hours.
As far as redistricting is concerned, the bill no longer requires independent redistricting commissions but it still includes a statuatory ban on partisan gerrymandering. It also includes what’s called a rebuttal presumption, which means that if anyone challenges a map as in violation of the act, a court must decide within 15 days whether a presumption of such a violation exists. If so, the court can keep the state from using the map pending further review. This section does two very important things. One is the fact that court cases tend to take time, and often by the time a map is struck down a number of elections have already taken place on that unfair map. Under this provision a court could bar a state from enacting a map within 15 days. The other thing it does is it buys Congress some time. The bill says that a challenge can be brought within 30 days of enactment of a map or enactment of the bill. That means that even if states have already enacted their maps before the the Freedom to Vote Act is passed, those maps could still be overturned quickly after the law is passed if they’re found to be in violation.
There’s also election security measures like requiring states to use paper ballots that can be verified by voters and requiring states conduct reliable election audits. The bill includes the DISCLOSE Act and HONEST ADS Act, which create new disclosure requirements for Super-PACs and online ads and, unlike the For the People Act, it includes text from the Preventing Election Subversion Act which bars states from removing local election officials for anything other than, “gross negligence, neglect of duty, or malfeasance in office.”
There’s much more to the bill. I suggest you read this summary here for more information or you can read the text of the bill here, but ultimately this bill trims the fat, gets rid of the more controversial stuff, keeps all the important stuff, and includes measures to protect against election subversion. It would make our democracy stronger, our elections more secure and would represent the largest expansion of the right to vote since the Voting Rights Act of 1965. It’s now it’s up to Democrats to get it over the finish line. God speed Joe Manchin. Good speed.
There’s no one more supportive of voting rights yours truly, but the rhetoric surrounding the fight is starting to get a little too heated and over the top. We’ve seen what can happen when you whip your supporters up into a frenzy and scare the bejeezes out of them with lies and propaganda. Let’s not do that again. So we all need to take a moment, pause, breathe, and try to think about this rationally. The election restrictions being passed in GOP state legislatures should be concerning – if for nothing else than for the sheer number of them – (so far 18 states have passed 3o laws that make it harder to vote according to the Brennan Center for Justice) but this isn’t Jim Crow 2.0, it’s not the end of democracy, and though we should be diligent about the prospect of election subversion, it’s not as imminent as some would have you believe.
The most concerning changes seem to be petty moves by GOP state legislatures to ‘punish’ people who wouldn’t do Trump’s bidding, and to give themselves more power over the administration of elections. In Georgia, for instance, Republicans stripped Secretary of State Brad Raffensperger of power by making him a non-voting member of the election board and made it so they can appoint the majority of the board’s members, which could lead the traditionally nonpartisan board to become overlty partisan. They also allow the election board to replace “underperforming” county elections superintendents. At first glance this seems like a blatant attempt to put a thumb on the scale, however there’s a 30 day period before hearings can even begin on a replacement, so it would be impossible to overturn an election after the fact; and there’s protections against the election board simply appointing a partisan footsoldier (the person must not have been a candidate or donated to a political campaign in the two years prior to appointment). Brad Raffensperger recently called for the Fulton County election superintendent to be fired, so we’re likely to get a real-time test of whether this provision could lead to election subversion or not. I would advise people to watch the proccess carefully and skeptically, but it’s not time to start freaking out about it just yet.
With all that being said, race can’t be ignored. While some of the effects these restrictions will have on voters of color have been overstated, many of them will still disproportionately affect black voters and it’s probably not a coincidence that in the last two elections (2018 and 2020) 92% of black voters supported a Democrat.
So why are Republicans doing this? I don’t know. Maybe they’re just playing to Trump’s base, maybe they believe it will help them win elections, or maybe they really do believe the lies about fraud in the last election. They’re obviously aware that many of these things will disproportionately affect black people, and that black people vote for Democrats more than nine times out of ten, but does that make them racist or does it just make them shameless partisans?
We should fight them. We should challenge them. We should ask them to explain why these measures are necessary, and what they have to say to the voters, especially voters of color, who will be dispropotionately affected by these laws, but we shouldn’t give in to fear mongering, race-baiting, and outright lying about what these laws do and what they don’t do.
But we need to go further than that. We need to pass the For the People Act and the John Lewis Voting Rights Advancement Act. Not to save democracy from it’s imminent demise but to make our democracy better, stronger, and more inclusive. We need to pass them based, not on fear but on the simple fact that they are good bills based on tried and true reforms passed at the state and local level by Republicans and Democrats alike that will make voting easier and more accessible, make our elections more secure, end partisan gerrymandering, get big money out of politics, and make sure our elected officials are held to the highest ethical standards.
We should also pass laws to prevent election subversion, not because it’s imminent, but because it’s good policy to safeguard our elections. Let’s start by reforming the Electoral Count Act, which seems to be our biggest achilles heel. Right now a simple majority of each house of Congress can reject any slate of electors for whatever reason they like. It makes no sense that it takes 60 votes to secure voting rights but a simple majority to overturn an election.
I do believe our democracy is in peril. But it’s not because Georgia makes you put the last four digits of your social security number on your absentee ballot or because Iowa went from 29 days of early voting to 20. Donald Trump is a threat to democracy. January 6th and the prospect of a future attack are threats to democracy. These laws are only a threat to democracy insofar as they feed into the false narrative that the last election was stolen or that democratically elected leaders are not legitimate. We have to be vigilant but we also have to be honest. We can’t defeat Trumpism by becoming like Trump, and we won’t defeat the “Big Lie” with a “Big Lie” of our own.
Yesterday, the Supreme Court decided in Brnovich v. the Democratic National Comittee to uphold two Arizona voting restrictions against claims that they violate Section 2 of the Voting Rights Act. The problem with the decision wasn’t that they upheld Arizona’s restrictions against casting a ballot in the wrong precinct, and so called “ballot harvesting,” the problem was that the Supreme Court used the case to severely weaken Section 2, just as many predicted they would.
I’m almost more upset with the DNC than I am the Supreme Court. The DNC should have never brought this case. Arizona’s laws were mild compared to some of the restrictions we’ve seen passed this year, and they should have known that the 6-3 conservative majority would use the case as an excuse to weaken Section 2.
Section 2 of the Voting Rights Act, for those who need a refresher, prohibits any practice that, “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” In his majority opinion justice Samuel Alito takes it upon himself to offer new “guideposts” for judging Section 2 cases. Alito says that, “courts must consider the opportunities provided by a state’s entire system of voting when assessing the burden imposed by a challenged provision,” and that the size of the burden is “highly relevant.” A “mere inconvenience,” Alito says, is not a violation of Section 2.
The most bizarre part of his opinion is the section where he says that courts should look at any law in comparison to what voting was like in 1982, the last time Section 2 was updated.
If I’m reading this correctly, he’s essentially saying that if it’s easier to vote than it was in 1982, when most states didn’t have early or absentee voting, then the restriction doesn’t violate Section 2. I’m no election law expert but this seems like flawed reasoning.
Though he places a high burden of proof on those challenging a voting restriction, he places almost no burden on the state to prove the restrictions are neccessary, simply saying that trying to prevent voter fraud is a “strong and entirely legitimate state interest.” This suggests that a state can simply say they’re preventing voter fraud without providing any evidence, and as long as the claim is even remotely plausible, that’s good enough.
As I’ve said before, not all voting restrictions are the same. Preventing voter fraud is an important and legitimate state interest and states should be able to take reasonable steps to ensure their elections are free from fraud and abuse. But when you make it harder to vote you should at least be able to show some evidence you’re preventing fraud. The Supreme Court disagrees.
Though this ruling mostly deals with disparate impact, or claims a restriction disproportionately effects voters of color, it also weakens discriminatory intent claims. Discriminatory intent is harder to prove becuase not only do you have to prove that a law disproportionately effects voters of color, you have to prove the state intended to discriminate. This is at the heart of the Justice Department’s case against Georgia’s new voting restrictions. The filing claims that Georgia Republicans intended to discriminate against black Georgians, knowing that 9 in 10 of them vote Democrat. People smarter than me have speculated that DOJ focused on discriminatory intent instead of disparate impact because they anticipated yesterday’s ruling, but the ruling also makes discriminatory intent cases harder to prove saying, “partisan motives are not the same as racial motives.” This seems to suggest that you can discriminate against a protected group so long as it benefits you politically.
It there’s any silver lining to this ruling it’s that it’s made it abundantly clear that we need to pass new legislation to protect voting rights. The John Lewis Voting Rights Advancement Act would update the formula for deciding which states are covered under Section 5 of the Voting Rights Act, based on whether they have a history of discrimination and voter suppression. States covered under Section 5 need to preclear changes to their voting laws with the Justice Department. Today, Congressmen Mondaire Jones (D-NY) and Ruben Gallego (D-AZ) introduced a bill to strengthen and restore Section 2 of the Voting Rights Act in response to the Brnovich decision. There’s also the For the People Act, which would set a floor for voter access, making voting easier and more accessible. It would also deal with vote dilution by ending partisan gerrymandering. It would also nullify many of the draconian measures we’re seeing passed in states today.
The Supreme Court has proven they will not protect voting rights, in fact, bringing cases before them only seems to make things work. This is a problem only Congress can solve. In reaction to the Brnovich decision, DOJ put out a statement saying, “the department urges Congress to enact additional legislation to provide more effective protection for every American’s right to vote.” President Biden simply said, “democracy is on the line.” Will Congress protect it?
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.
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.
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.
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.
With Joe Manchin’s announcement Sunday that he would not be voting for S1: The For the People Act because it doesn’t have bipartisan support, voting rights advocates have been scrambling to try and find a way to salvage the bill, but as civil rights leaders and many of Manchin’s fellow Democrats have found out, unlike his houseboat (yes he lives on a boat) Joe Manchin can not be swayed. But people are going about this the wrong way. Manchin was very clear: he wants voting rights to be bipartisan. The way to Manchin’s heart is not through Manchin’s head; it’s through Republicans. If Democrats make a good-faith effort to craft a bill that at least ‘should’ have bipartisan support, one of two things will happen: either some Republicans will sign on, or they will all still oppose it and Manchin will come to the realization that in order to get anything important done we’re going to have to make changes the filibuster. Of course there’s always the third option that neither of those things happen and we just end up back where we started but I believe that a scaled back bill that could have bipartisan support has a better chance of success than the Democrats’ current plan, which is to use S1 to make their case about the filibuster. I find it highly unlikely that Manchin is going to change his mind about the filibuster to pass legislation he doesn’t even support.
With that in mind I have crafted a proposal that I think both Joe Manchin, and maybe even some Republicans (I’m looking at you Murkowski!) can support. Let’s call it S 1/2: The Skinny For the People Act (The For the Skinny People Act didn’t sound quite right). The bill would include:
Okay, so you may be wondering why I added a voter ID mandate and why my bill doesn’t include things like protection from voter purges. First the voter purges. If every state were to allow same-day voter registration, purges would no longer disenfranchise voters, they would be a mere inconvenience. Second, voter ID. Federal law already requires voters provide ID when they register to vote. That ID could be a driver’s license or the last four digits of your social security number. This means that every registered voter already has ID. Voter ID only becomes problematic when states have stricter ID requirements than the federal government. The solution? Have all 50 states require ID when voting but mandate that a state’s voter ID requirement can’t be any stricter than the federal government’s.
I can’t tell if this proposal will make everybody happy or nobody happy but all that really matters is if it makes Joe Manchin happy. The bill includes all the essentials to ensure equal access to the ballot and, if passed in conjunction with HR4: The John Lewis Voting Rights Advancement Act, which would once again require states with a history of racial discrimination and voter suppression preclear any changes to their voting laws with the Justice Department, it would provide robust protection from voter suppression and disenfranchisement. It would also address concerns Republicans have about election integrity and security. I’m not under any illusion that this is likely to get the support of 10 Republicans but since Joe Manchin’s definition of bipartisan seems to be that a bill has the support of one Republican, all we really need is one. And if not one, maybe he’ll settlef for 1/2.
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