Ari Berman reports, Stacey Abrams Has a Plan to Dismantle the Filibuster and Protect Voting Rights:
As Republicans in the Georgia state legislature passed a series of voting restrictions over the past 10 days, Stacey Abrams, the state’s leading voting rights activist, saw an ever more pressing need to reform the filibuster in the US Senate. And she has a plan for how to do it.
The Georgia legislation and the Senate rules might seem unrelated, but to Abrams, the Democratic gubernatorial nominee in 2018 and founder of the voting rights group Fair Fight Action, they’re directly connected. “Republicans are rolling back the clock on voting rights,” she says. “And the only way to head that off is to invoke the elections clause of the Constitution, which allows the Congress—and the Congress alone—to set the time, place and manner of elections at a federal level.”
The problem is that Republicans will surely use the filibuster to set an impossible 60-vote threshold for any such effort—and that two centrist Democratic senators, West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema, have said they oppose abolishing the filibuster. That’s why Abrams proposes tweaking it to allow major voting rights legislation to pass, and she thinks her plan can get reluctant Democrats on board.
In the same way that Democrats can pass budget bills and confirm judges and Cabinet members with a simple majority, legislation protecting voting rights should also be exempt from the 60-vote requirement, Abrams says.
“The judicial appointment exception, the Cabinet appointment exception, the budget reconciliation exception, are all grounded in this idea that these are constitutionally prescribed responsibilities that should not be thwarted by minority imposition,” she says. “And we should add to it the right to protect democracy. It is a foundational principle in our country. And it is an explicit role and responsibility accorded only to Congress in the elections clause in the Constitution.”
Note: The federal courts have long treated the “right to vote” as a privilege, not a fundamental constitutional right. This is why the federal courts apply the Minimum Rationality Standard of review (alternatively the Rational Basis Standard of review) requiring that a law have a rational connection to a permissible state end (a legitimate goal of the government) to be Constitutional, rather than the Strict Scrutiny Standard of review (for fundamental constitutional rights), requiring the legislature to have passed the law to further a “compelling governmental interest,” and that it is narrowly tailored to achieve that interest.
Garrett Epps explained years ago, “which right appears most often in the Constitution’s text? It’s “the right to vote.” Voting: Right or Privilege? (excerpts):
Courts will defer to the wishes of legislators who wish to protect the election process … This is deference to bureaucrats that neither courts nor citizens would tolerate where a right considered truly important is at stake.
Scholars and courts often note that the Constitution nowhere says, “All individuals have the right to vote.” It simply rules out specific limitations on “the right to vote.” A right not guaranteed in affirmative terms isn’t really a “right” in a fundamental sense, this reading suggests.
But if the Constitution has to say “here is a specific right and we now guarantee that right to every person,” there are almost no rights in the Constitution. Linguistically, our Constitution is more in the rights-preserving than in the right-proclaiming business.
[I]t ought to mean something that the right to vote is singled out more often than any other. Section 2 of the Fourteenth Amendment imposes a penalty upon states that deny or abridge “the right to vote at any [federal or state] election … to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, … except for participation in rebellion, or other crime.” The Fifteenth states that “[t]he right of citizens of the United States to vote” can’t be abridged by race; the Nineteenth says that the same right can’t be abridged by sex; the Twenty-Fourth says that “the right of citizens of the United States to vote” in federal elections can’t be blocked by a poll tax; and the Twenty-Sixth protects “[t]he right of citizens of the United States, who are eighteen years of age or older, to vote.”
So if our courts treat the ballot as less than a fundamental right, they aren’t reading that in the Constitution, but projecting it onto the Constitution. The projection comes from a longstanding belief that the vote is not a “right,” but a “privilege” — something granted by the powerful to the deserving.
The “privilege” theory is one the United States regards as dangerous — when practiced by other countries. After World War II, we imposed a constitution on Japan providing that “universal adult suffrage is guaranteed.” The “Basic Law” of Germany gained a provision that “[a]ny person who has attained the age of eighteen shall be entitled to vote.” The citizens of Afghanistan “have the right to elect and be elected.” Article 20 of the 2005 Constitution of Iraq provides that “Iraqi citizens, men and women, shall have the right to participate in public affairs and to enjoy political rights including the right to vote, elect, and run for office.”
Americans are more conflicted about our own voters than about those in Iraq or Germany. Eric Foner, DeWitt Clinton Professor of History at Columbia University, told me that since the country’s founding, Americans have been torn between “voting as a right and voting as something that only the right people should do.” Every step forward in human rights has given birth to a desire to “purify the electorate.”
Eric Foner notes that Americans like to regard our history as a steady, if slow, forward march for democracy. The reality is much more complex. “It’s not just a story of expanding the right to vote. It has expanded and contracted,” he says.
We may be living in one of the periods of contraction. If so, we should be aware that we are turning away from the text of our own fundamental law, from the only just basis for self-government, and from the standards of human rights Americans have tried, sometimes by force of arms, to impose on the rest of the world.
This is why H.R.1, the For The People Act, and H.R.4, the John Lewis Voting Rights Advancement Act, need to contain a provision declaring that Congress deems the right to vote is a fundamental constitutional right that shall not be infringed or denied. Congress can specifically require that Article III federal courts review voting rights cases under the Strict Scrutiny Standard of review.
But neither bill will pass the Senate if Democrats don’t eliminate the filibuster, which Abrams calls “a racist procedural rule that is grounded in this notion that the minority must be protected unless we disagree with what the minority needs.”
I asked Abrams what she would say to Democrats like Manchin and Sinema to persuade them to go along with a “democracy exception” to the filibuster.
“This isn’t about retribution or revenge,” Abrams says. “This is about protection of the fundamentals of our nation, that if we do not protect the participation of voters in our election system, if we do not permit states to do what they must to protect their voters, then we will find ourselves losing our democratic values, losing our democracy. And so I would say to Democrats who are hesitant that short of completely revising the filibuster, we have to make certain that a [tyranny of the] minority of people cannot be in power in the Senate, and therefore deny the basic principles of citizenship to millions of Americans.”
Sen. Jeff Merkley (D-Ore.) has floated a similar idea, and an increasing number of Democratic senators are now expressing openness to eliminating the filibuster, especially for bills like HR 1.
Manchin said on Sunday he’s open to changes to the filibuster, such as forcing Republicans to continuously occupy the Senate floor to block bills. And if Republicans keep passing restrictions on the right to vote, a proposal like Abrams’ could start to find a broader consensus.
Fair Fight Action set up a redirect website this week, www.stopjimcrow2.com, to address all the Republican Jim Crow voter suppression laws being introduced around the country. For Arizona:
Arizona
What do I need to know?
The Arizona legislature is considering:
- SB 1068, which will shift significant election authority and oversight power from the Arizona Secretary of State (D) and the Attorney General (R) to the state legislature.
- SB 1485, which will purge the highly-popular Permanent Early Vote List. Advocates estimate this could purge up to 200,000 voters—including 50,000 Latinx voters.
- SB 1593, which would shorten the early voting period and discard ballots not postmarked the Thurs BEFORE the election. These are blatant efforts to make it harder for Latinx, Native American, and young people—who are the likeliest to use early vote periods—to make their voices heard.
- SB 1713, which would force Arizona voters to include personal information on their ballot envelopes, exposing them to unnecessary identity risk and making it harder for people to vote by mail.
What do I need to do?
If you live and vote in Arizona, we need you to tell your legislators and leaders to vote NO on all of these discriminatory bills.
- Sign the petition telling legislative leadership that these bills are wrong for Arizona
- Call 877-406-6303 to tell you State House Representative to vote NO on SB 1068, 1485, and 1713
- Call 877-586-4895 to tell your State Senator to vote NO on SB 1593
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Jonathan Bernstein writes, “There’s No Half-Way to End the Filibuster”, https://www.bloomberg.com/opinion/articles/2021-03-17/senate-filibuster-can-t-be-deterred-by-halfway-measures
Democrats will just have to decide whether they want to keep living with minority-party Senate rule. (Are you listening, Joe Manchin?)
Forcing senators to give marathon orations to carry out a filibuster is a bad idea, but it looks like it may be a bad idea whose time has come, with President Joe Biden endorsing the “talking filibuster” in an ABC News interview. Why? Because most Democrats want to eliminate the filibuster, and Senator Joe Manchin of West Virginia — the most moderate Democrat in the Senate — has said that while he absolutely won’t vote to eliminate the filibuster, he’s open to going the “talking” route.
And so that’s what’s we’re going to talk about. Because what happens with Senate procedures over the next few months is going to determine whether Democrats pass a lot of their remaining agenda or very little of it.
Here’s the problem: Whether attrition would be realistic depends on the specific procedures involved. And this gets to why talking filibusters are a lousy solution. Procedures that would make it easy to perform talking filibusters wouldn’t deter them and would backfire on the majority, which wants to use scarce Senate time to pass the things it does have the votes for. Procedures that would make it hard to filibuster could make attrition work, but if a majority were willing to enforce them then it would really just be eliminating the filibuster. If it had the votes for that, then why go through a charade of pretending to keep the tradition in place?
Oh, and for those who think that the minority would only be willing to employ a somewhat costly filibuster for the bills it strongly dislikes? I doubt it. If new procedures still give the minority a chance to delay indefinitely, they’ll create a strong incentive to use it the first time possible just to make the point that nothing has changed, and that only a 60-senator majority can pass anything.
So why bother? It’s all about Manchin. Presumably, he prefers the status quo to a world in which he is the swing voter on bill after bill after bill. That makes some sense.
[A]t least, it makes sense as long as he doesn’t mind seeing lots of bills defeated by filibuster, either because he’s against them or because he’s only a mild supporter. But my guess is that the more the Senate remains a chamber subject to minority-party rule, the more other Democrats are going to look for some way out. So it makes sense for Democrats who want to legislate by simple majority to indulge Manchin, even if nothing changes at first; eventually, they’re likely to believe, he’ll realize that under current conditions he’ll have to choose between Democrats or Republicans running the Senate.
[I]f McConnell demanded making it easier to offer amendments in exchange for minority self-restraint, a lot of reformers might urge Democrats to take that deal. And McConnell’s Republicans could still have the filibuster reserved for the occasional bill they strongly oppose.
Instead, we get things like pointless filibusters of executive-branch nominees (where only a majority is needed for cloture, anyway), intended only to delay for delay’s sake. Indeed, this week Republicans mounted a filibuster against confirmation of Biden’s nominee for U.S. trade representative, Katherine Tai, whom they don’t even oppose. The cloture vote was approved, 98 to 0.
This is exactly the kind of thing that has pushed most of the Democratic Party to favor eliminating the filibuster, and might still push Manchin and other reluctant Democrats to join them. If it happens, the credit or blame should go to Senate Republicans. Especially Mitch McConnell.
This man is a domestic terrorist: “Mitch McConnell warns Democrats that overhauling filibuster rules will lead to ‘completely scorched earth Senate'”, https://www.cnn.com/2021/03/16/politics/mitch-mcconnell-filibuster-comments/index.html
Senate Minority Leader Mitch McConnell gave a stark warning Tuesday about how Republicans would grind the chamber to a halt if Democrats changed the filibuster rules, leading to a “completely scorched earth Senate.”
How would would we know the difference?
Majority Whip Dick Durbin told reporters he’s not concerned about McConnell’s threats to slow the Senate if Democrats change the filibuster because “he has already done that.”
The anti-democratic, anti-majoritarian leader of the tyranny of the minority of seditious insurrectionists threatened:
McConnell also laid out the conservative agenda Republicans would swiftly move on the next time they take control of Congress and White House, most of which Democrats would vehemently oppose — like defunding Planned Parenthood.
McConnell listed some of the legislation his party would move on when they’re back in power.
“We wouldn’t just erase every liberal change that hurt the country — we’d strengthen America with all kinds of conservative policies with zero, zero input from the other side,” he said pointing to how the GOP would move swiftly to defund sanctuary cities and Planned Parenthood, add new protections for the right to life of the unborn, work on concealed carry laws, and a new era of domestic energy production.”
McConnell’s GQP authoritarian fascist wet dream.
Jonathan Chait writes, “Republicans: End the Filibuster, and We’ll Punish America by Enacting Our Agenda”, https://nymag.com/intelligencer/article/republican-filibuster-reform-senate-mcconnell-biden-majority.html
Mitch McConnell’s latest defense of what remains of the filibuster yesterday veered wildly between two irreconcilable claims. On the one hand, he warned a majority-rules Senate would be a “scorched earth,” “disaster,” “hundred-car pileup” in which nothing happens. On the other hand, he warned that once Republicans gained control of government, the chamber would become a smooth-running machine in which conservative priorities are quickly enacted.
McConnell has made gridlock so routine that both he and his imagined audience see the idea of a party enacting the proposals it advocates as fantastical and scary. But if you go to any of the 50 states, that is not how political rhetoric operates. Candidates for office advocate positions, then try to pass them into law when elected, and take credit for them if they work. The opposition party either accepts those changes, modified, or runs against them and tries to reverse them if they remain unpopular. Likewise, every democratic government in the world that I’m aware of operates on the same principle.
None of these democracies, domestic or foreign, needs a supermajority to protect against an elected government carrying out its promised agenda. Obviously, temporary majorities need some restraint to prevent excess. But those restraints exist — in the American system, not only multiple veto points and courts that can curtail unconstitutional laws, but democracy itself. The dynamic that inhibits majorities from exceeding their mandate is the prospect that their policies will create a backlash and be subject to reversal.
In place of this, we have the peculiar dynamic in which the leader of a major party is invoking his own agenda as something that cannot and should not happen.
Obviously, I don’t like the policies McConnell described. What I can’t understand is how McConnell is supposed to feel about them. If he truly thinks they’d “strengthen America,” then shouldn’t he want to have the chance to enact them, and then have his party run on the results?
Has McConnell told [supporters] that the goal they have been pouring their hearts into is impossible, because of rules McConnell is fighting to keep in place?
McConnell’s agenda exists in a netherworld where one group of people is told it will happen if they vote Republican, and another group is reassured it never will.
This kind of doublethink is a product both of the unique supermajority requirement in the Senate and the Republican Party’s retreat from serious governing. Conservatives are increasingly unable to conceive of legislation as anything other than a zero-sum exercise in punishing and humiliating the other party. They imagine Democratic laws are merely pretexts to expand government power, and then internalize the same logic for their own agenda.
McConnell benefits from rules that allow him to enact all the changes he cares about — lax regulation of business, tax cuts, and confirming judges — either with just the presidency, or the presidency plus a majority. He fears allowing his caucus to actually enact laws carrying out most of their promises … McConnell fears having to translate conservative demands into concrete legislation. He’d much rather use the passions of his base to get elected, and then use that power for ends McConnell cares about.
The New York Times editorializes, “For Democracy to Stay, the Filibuster Must Go”, https://www.nytimes.com/2021/03/11/opinion/us-filibuster-senate.html
It is hard to imagine a more fitting job for Congress than for members to join together to pass a broadly popular law that makes democracy safer, stronger and more accessible to all Americans.
Last week, the House of Representatives passed H.R. 1. The bill, a similar version of which the House passed in 2019, is a comprehensive and desperately needed set of reforms that would strengthen voting rights and election security, ban partisan gerrymandering, reduce big money in politics and establish ethics codes for Supreme Court justices, the president and other executive branch officials.
The legislation has the support of at least 50 senators, plus the tiebreaking vote of Vice President Kamala Harris. President Biden is on board and ready to sign it. So what’s the problem? Majority support in the Senate isn’t enough. In the upper chamber, a supermajority of 60 votes is required to pass even the most middling piece of legislation. That requirement is not found in the Constitution; it’s because of the filibuster, a centuries-old parliamentary tool that has been transformed into a weapon for strangling functional government.
This is a singular moment for American democracy, if Democrats are willing to seize it. Whatever grand principles have been used to sustain the filibuster over the years, it is clear as a matter of history, theory and practice that it vindicates none of them. If America is to be governed competently and fairly — if it is to be governed at all — the filibuster must go.
The most compelling reason to keep the filibuster is its proponents’ argument that the rule prevents a tyranny of the majority in the Senate [it actually empowers a tyranny of the minority.] That’s the rationale of the two Democrats currently standing in the way of ending it, Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. They have been steadfast in defending the modern filibuster as part of what they assert is a longstanding Senate custom.
“It’s meant to protect what the Senate was designed to be,” Ms. Sinema said. “Debate on bills should be a bipartisan process that takes into account the views of all Americans, not just those of one political party.”
[Take off your rose-colored sunglasses, Senator. Your fashion statement has blinded you to historical reality.]
Bipartisan cooperation and debate should be at the heart of the legislative process, but there is little evidence that the filibuster facilitates either. The filibuster doesn’t require interparty compromise; it requires 60 votes. It says nothing about the diversity of the coalition required to pass legislation. It just substitutes 60 percent of the Senate for 51 percent as the threshold to pass most legislation. If the Senate was designed to be a place where both parties come together to deliberate and pass laws in the interest of the American people, the filibuster has turned it into the place where good legislation goes to die.
That’s one reason the framers of the Constitution didn’t include a supermajority requirement for the Senate to pass legislation. They had watched how such a requirement under the Articles of Confederation had prevented the government from doing almost anything. As Alexander Hamilton wrote in Federalist 22, “What at first sight may seem a remedy, is, in reality, a poison.” Supermajority requirements would serve “to embarrass the administration, to destroy the energy of the government, and to substitute the pleasure, caprice or artifices” of a minority to the “regular deliberations and decisions of a respectable majority.”
The filibuster arose only decades later. John C. Calhoun, a senator from South Carolina, used it as a means to protect the interests of slavers like himself from a majority. From its beginnings through the middle of the 20th century, when segregationists like Senator Strom Thurmond, also of South Carolina, used the filibuster to try to kill multiple civil rights bills, the pattern has been clear: It has been used regularly by those who reject inclusive democracy.
The relevance of the history is that the pattern continues.
Finally, the filibuster is a redundancy in a system that already includes multiple veto points and countermajoritarian tools, including a bicameral legislature, a Supreme Court and a presidential veto. The Senate itself protects minorities in its very design, which gives small states the same representation as large ones.
Another common defense of the filibuster, as Ms. Sinema said, is that the filibuster is crucial for permitting full debate on a bill. Again, reality shows otherwise. The filibuster doesn’t only fail to ensure extended debate on a bill; today it curtails the opportunity for any debate at all. A single senator can signal he or she intends to filibuster by typing an email and hitting send. No need to stand on the Senate floor to make your impassioned case.
Reformers have suggested many ways to chip away at the filibuster without destroying it completely. One proposal would bar its use for legislation involving voting rights or other democratic expansions. Another would require the old-fashioned “talking” filibuster. A third would entail holding a series of cloture votes spaced three days apart, lowering the number of senators needed to end the filibuster each time. These are clever solutions, and Mr. Manchin has said he is open to at least one of them.
Even if there were a real debate on a bill, however, it should end at some point. That was clear more than a century ago, when the Senate had not yet established a rule to shut down a filibuster. As Henry Cabot Lodge, a Massachusetts senator, wrote, “If the courtesy of unlimited debate is granted it must carry with it the reciprocal courtesy of permitting a vote after due discussion. If this is not the case the system is impossible.”
If the political reforms in H.R. 1 are not undertaken at the federal level, Republican leaders will continue to entrench minority rule. That’s happening already in states like Wisconsin and North Carolina, where Republican-drawn maps give them large legislative majorities despite winning fewer votes statewide than Democrats. It’s happening in dozens of other states that have passed hundreds of voting restrictions and are pushing hundreds more, under the guise of protecting election security.
The Supreme Court should be blocking these measures and protecting the right to vote, but far too often under Chief Justice John Roberts, it’s done the opposite. In 2019 it refused to stop even the worst partisan gerrymanders, and in 2013 it struck down the heart of the Voting Rights Act, opening the door to a wave of Republican voter-suppression laws that continues to crash. That’s why federal law is the only solution.
There have also already been many revisions to the filibuster. In the 1970s, Congress created a loophole for spending and revenue bills to avoid the filibuster, allowing such legislation to pass with a simple majority — a process known as reconciliation. More recently, in 2013, Democrats eliminated the filibuster for nominations of lower-court federal judges and executive-branch officials. Four years later, Republicans eliminated it for Supreme Court justices, which allowed President Donald Trump to fill one-third of the high court’s bench with his picks.
The perverse result of all this is that it is now easier to block a piece of legislation, which could be repealed in the next Congress, than it is to block a federal judge seeking a lifetime appointment. Any intellectual justification for the filibuster has been gutted by the fact that it doesn’t apply anymore to many important issues before the Senate.
The point of H.R. 1 is not to help Democrats. It is to rebuild and reinforce the crumbling foundations of American self-government and abolish voter restrictions erected for explicitly partisan gain — a federal law that would protect all voters. If the choice is between saving the filibuster and saving democracy, it should be an easy call.