For future of voting rights, and the Senate, fate of filibuster looms large
Filibuster reform is a notoriously difficult undertaking but one Senate Democrats have on their agenda for January
With less than a year before voters return to the ballot box for the 2022 midterms, Democrats are scrambling to revive legislation aimed at expanding voting rights that has stalled out in the Senate, unable to overcome filibusters imposed by Republicans who are eager to protect state restrictions on when and how people can vote.
When the tightly gridlocked chamber reconvenes in January, the most prominent in a narrow field of options for Democrats struggling to expand of voting rights protections involves going nuclear — uniting all 50 members of their party to carve out an exception to the filibuster.
But experts say the chances of the party reigning in its moderates to unite behind the goal of scrapping the filibuster look slim, and the filibuster is likely to remain intact until the next time Democrats have control of the Senate. When that will happen is an open question, as some analysts predict an inability to act on protecting voting rights, a key pillar of the Democratic agenda, will jeopardize the party's future.
Democratic lawmakers have attempted to pass several bills in recent months to make it easier for Americans to vote and to protect the right to vote from infringement by states, but multiple bills have passed the House this year only to be tanked by the filibuster in the Senate — a process that allows any lawmaker to stall out legislation in the upper chamber and requires 60 votes to resume consideration of legislation, a difficult threshold to reach in a strictly divided 50-50 Senate.
In October, Republican senators used the filibuster to block passage of the Freedom to Vote Act, legislation that would have made Election Day a national holiday, created standards for early and mail-in voting in all states, and banned partisan gerrymandering.
In November, the John Lewis Voting Rights Act, which set out to reinstate a part of the 1965 Voting Rights Act that the Supreme Court struck down in Shelby County v. Holder in 2013, was filibustered in the Senate. Named for the late lawmaker and civil rights leader, the bill would have allowed the Justice Department to review changes to election laws in states with a history of racial discrimination.
Democrats' eagerness to pass legislation focused on voting rights comes as Republican governors and state legislatures across the country continue to impose limitations on voting hours and restrict methods such as mail-in and early voting that make the process more accessible.
"When we look at the 2020 presidential election, we saw unprecedented attempts by the Republican Party to limit voting rights and also to pass legislation to limit voting rights. This legislation is particularly targeted at African-American communities, low-income communities and communities of color," said Emmitt Riley, associate professor of political science and Africana studies at DePauw University.
The filibuster originated as a way to force consensus among lawmakers, but it has also historically been used to block civil rights expansions. Now the filibuster is used regularly and often means the end of legislation, not the start of bipartisan cooperation.
"In the 1960s, those racist filibusters standing against civil rights and voting rights were broken with bipartisan majorities. We don’t see that anymore. There is no bipartisan consensus on making it easier for people to vote and it’s terrible. I wish that wasn’t the case but that’s where we are as a country, as a Senate," said Carlos Algara, assistant professor of political science at Claremont Graduate University.
The partisan tension over voting rights shows a growing ideological divide between the two parties, a schism that continues to grow, according to Algara.
"Now, everything is polarized. The Democrats want to make it easier, frankly, for people to vote and the Republicans don’t. It’s a little bit of a paradox because there’s no support for the notion that Democrats do better in high turnout elections," Algara said.
Because it's unlikely Democrats can get a single Republican, much less 10, on their side to override a filibuster and pass voting rights legislation, Democratic leaders are turning to changes to the Senate's rules as an option.
"If Senate Republicans continue to abuse the filibuster and prevent the body from considering this bill, the Senate will then consider changes to any rules which prevent us from debating and reaching final conclusion on important legislation," Senate Majority Leader Chuck Schumer said in a Dec. 20 letter to his colleagues.
Making an exception to the filibuster, also known as the "nuclear option," is not unprecedented.
In 2013, the Senate got rid of the filibuster for all presidential nominations except Supreme Court justices, an exception that was done away with in 2017 to get Neil Gorsuch on the court. The filibuster tactic now remains in place only for legislation, effectively requiring bills to have 60 votes of support for passage.
Carving out the filibuster, which is defined in Senate Rule 22, to pass a voting rights bill with a simple majority vote is on the table for Democrats. But they need all 50 members of their party plus Vice President Kamala Harris on board with such a plan.
"The basic idea is not a formal change to the rules, but rather a ruling on the floor that the rules should be interpreted in a certain way," Georgetown Law School professor Josh Chafetz said. "They could say ‘Well actually the right interpretation of Senate Rule 22 is that you need 60 votes for cloture on legislation except voting rights legislation’ or something like that. And then that would simply stand as an authoritative interpretation of Senate rules going forward. You need a majority to do that."
While making an exception to the filibuster for voting rights legislation, or all legislation, is the most likely way for a bill to voting rights bill to pass, it all hinges on whether Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, the Democratic Party's two moderates and wild cards, will support changes to the filibuster.
"If you can make the Senate work better, the rules are something we've changed over the years. Two hundred and thirty-two years, there's been rule changes," Manchin said during an interview on Fox News, noting that he was open to some changes to the Senate rules but continued to support the filibuster.
Sinema has said that she supports the voting rights bills stalled in the Senate, but she also has expressed opposition to reforming the filibuster to get the legislation passed.
Experts say the filibuster's expiration date is approaching, but Democrats' margin in the Senate is likely too thin to do away with it this year.
"I think if we had a situation where Democrats had 53, 54 votes in the Senate, they probably would have nuked the legislative filibuster by now," said Chafetz at Georgetown.
Algara likewise predicts that the filibuster isn't going anywhere until Democrats have control of the Senate by a larger margin. "You’re probably looking at at least a decade," he said.
The Claremont professor pointed to how areas like court appointments and tax cuts — considered Republican Party priorities — are not subject to the filibuster when they are in power, while the opposite is true for many of Democrats' wishlist policies on topics such as immigration and voting rights.
"I think it’s inevitable that Democrats are going to get rid of the filibuster, the question is when is that going to happen," Algara said. "I don’t see a Democratic majority in the Senate [in the future]. If they hang on this year, I would be shocked."
Riley was similarly pessimistic of Democrats' present day chances.
"While there are renewed discussions, I remain unconvinced they have the votes even in their own caucus to do an institutional rule change which would allow them to nix the filibuster," Riley said.
Meantime Democrats have floated other changes.
"There is some possibility that we will see other changes to the Senate’s way of operating that would not ultimately affect that much the prospect of passing voting rights, but I think might also have more support," said Molly Reynolds, senior fellow in governance studies at the Brookings Institution.
Senators currently have two opportunities to filibuster legislation: one when the Senate is trying to bring legislation up for consideration, and one on the actual bill itself. One possible reform is to get rid of this first chance for a filibuster known as the "motion to proceed."
"That would in effect speed up the process for lots of things in the Senate, but it would not ultimately make it easier to pass anything because you would still need to get to 60 votes to invoke cloture in order to end debate and move to final passage on the vote itself," Reynolds said. "It would also reduce the ability when that big deadline is approaching for a single senator to derail the process."
But scrapping the filibuster on the "motion to proceed" still wouldn't raise the odds of voting rights, or any other partisan legislation, making it out of the Senate, as they would still be subject to a filibuster on the bill itself.
"I do not think there would be long-term institutional consequences for our democracy in the absence of the filibuster," Riley said. "There will be profound consequences for our democracy if voting rights are not extended because there are large groups of people in the U.S. who do not see the system as working for them and even when they play by the rules, parties change the rules in order to prevent them from voting."
As Algara noted, however, the lack of a clear path forward for voting rights legislation may jeopardize the possibility of a future where Democrats hold power.
"Even if Democrats do not address a single legislative priority that they promised, if they do not deal with voting rights, they will not be a viable political party in the next five, 10 years," Riley said.