Tag: filibuster

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Senate prepares for vote on voting rights and filibuster reform

Senator Chuck Schumer announced today that he is moving ahead with a planned vote on voting rights and a potential rule change meant to reform the filibuster.

Filibuster reform is necessary in order to pass voting rights since the Republican Party is united against the voting rights bills currently under consideration in Congress, including the John Lewis Voting Rights Act and the Freedom to Vote Act. (Senator Lisa Murkowski voted to allow debate to proceed but does not support the bill as written.)

According to Politico:

Chuck Schumer will bring elections and voting legislation to the Senate floor in the coming days, using existing congressional rules to evade an initial GOP filibuster.

The House will imminently pass a bill containing both sweeping federal elections reform and beefed up Voting Right Act provisions. Because the bill will be sent to the Senate as a “message” from the House, it will not be subject to an initial filibuster by the GOP and will be debated on the floor.

Instead, the Senate will confront its raging debate over the filibuster when Majority Leader Schumer moves to shut down debate.

“The Senate will finally debate voting rights legislation, and then every senator will be faced with a choice of whether or not to pass the legislation to protect our democracy,” Schumer wrote in a memo, obtained by POLITICO, to Senate Democrats.

The voting rights legislation is necessary to combat dozens of voter suppression laws passed in Republican-controlled states over the past year, including in Georgia where it is now illegal to give voters water or food while standing in line. The voter suppression laws are part of the reason – along with Donald Trump’s attempted coup and pushing of the Big Lie – why the United States is now considered a backsliding democracy.

Filibuster reform

Under current Senate rules, 60 votes are required to end debate on a bill and move on to a vote. There are exceptions to the filibuster, such as the budgetary process known as reconciliation, but it only covers budgetary matters.

Rather than completely eliminate the filibuster, the Senate could modify its rules so that in order to filibuster a bill you have to physically stand at a lectern, speak, and hold the floor for as long as you can stand. This is what is known as the talking filibuster, and it was the tradition in the Senate for over a century.

Personally, I like to call this proposal the Mr. Smith Goes to Washington rule. As I wrote last March:

The Mr. Smith Goes to Washington rule would give the minority party the chance to delay a bill and rally the American people against it. If a bill is as bad as opponents claim, they could still potentially stop it. However, it would not give a minority of senators a veto that does not exist in the Constitution. Once opponents cede the floor, the bill moves to a vote.

According to reporting from Politico and others, Schumer and Senate Democrats are considering implementing the talking filibuster / Mr. Smith Goes to Washington rule. This would restore the Senate’s long tradition of allowing unlimited debate (or at least as long as senators can stand) without giving the minority a veto.

Another possibility is that the Senate could create a carveout for voting rights legislation. The chamber created an exception to the filibuster – on a bipartisan basis, no less – to allow a debt ceiling increase just last month. As Senator Ed Markey of Massachusetts observed, if the Senate can create a carveout for the debt ceiling, why not voting rights?

Of course, this all hinges on the cooperation of Senators Joe Manchin and Kyrsten Sinema, who have said that they oppose eliminating the 60-vote threshold, thus killing voting rights legislation in the process. If the senators truly support voting rights (as they claim) and a functional Senate where the majority can actually govern, they will get behind filibuster reform that includes either a talking filibuster or a carveout for voting rights.

Photo Credit: Flickr

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A person of color’s right to vote and the ‘right’ to filibuster are not remotely equal

Over at NY Mag, Ed Kilgore writes about how Vice President Kamala Harris has unveiled a fallback strategy in case voting rights bills fail to pass Congress.

First, for some context, NBC News reports on the Harris announcement:

Vice President Kamala Harris will announce Thursday a $25 million investment by the Democratic National Committee to support efforts to protect voting access ahead of the 2022 midterm elections.

The announcement comes as Republican-controlled states around the country have passed a wave of restrictive voting rights laws fueled in part by former President Donald Trump’s false claims about the results of the 2020 election.

President Joe Biden has been criticized by some Democrats and civil rights advocates for not taking a more aggressive approach to fighting those new laws after Senate Republicans blocked voting rights legislation last month.

Kilgore argues that “it’s true Democrats have failed to overcome Republican resistance to voting-rights legislation, either by securing GOP support or by convincing Democratic centrists like Joe Manchin and Kyrsten Sinema to restrict or abolish the competing right of Senate minorities to kill legislation via the filibuster.” (Ed. note: Emphasis added.)

He concludes, stating that “what Harris announced should be treated as a serious and important contribution to the cause of voting rights, not dismissed as an excuse for failure to do the impossible in Congress.”

I do not take issue with Vice President Harris or her announcement. In fact, it is vital for at least one of America’s major parties to invest in voter protections while the other party attempts to dismantle what’s left of democracy in the United States.

However, there are at least two major issues with this piece: 

1) A person of color’s right to vote and the “right” of 41 (mostly white) senators to block legislation are not remotely equal competing interests. The filibuster is the perfect demonstration of white supremacy in Congress. It was used to deny civil rights in the middle of the 20th century. Now it’s used to deny voting rights protections in the 21st century.

2) There is nothing “impossible” about the Democratic majority using their majority to pass voting rights bills. Is it difficult to get 50 senators (51 with VP Harris) to agree on legislation? Yes. But it is hardly an “impossible” task.

After all, Republicans managed to eliminate the filibuster for Supreme Court nominees, allowing them to ram three Trump appointees onto the Supreme Court – including a seat that they held vacant for a year in the hopes of winning the White House in 2016 and another that they filled merely days before Election Day 2020 when voters opted to kick Donald Trump to the curb. (In January 2021, voters elected a Democratic Senate majority.)

It’s also worth noting that the Supreme Court just gutted the Voting Rights Act of 1965 that the DOJ is relying on in a lawsuit challenging Georgia’s voter suppression law. So one of the fallbacks that Kilgore mentions is basically dead in the water.

The only thing preventing Senate Democrats from eliminating the filibuster for voting rights bills, reforming the filibuster (i.e. a “talking filibuster”), or eliminating the filibuster entirely is the will to act decisively in order to protect our democracy.

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Analysis News

Senate Republicans likely to filibuster January 6 Commission

Senate Republicans appear likely to have enough votes to successfully filibuster the bipartisan January 6 Commission.

According to the AP:

Senate Republicans are ready to deploy the filibuster to block a commission on the Jan. 6 insurrection, shattering chances for a bipartisan probe of the deadly assault on the U.S. Capitol and reviving pressure to do away with the procedural tactic that critics say has lost its purpose.

The vote Thursday would be the first successful use of a filibuster in the Biden presidency to halt Senate legislative action. Most Republicans oppose the bill that would establish a commission to investigate the attack by Donald Trump supporters over the election.

“We have a mob overtake the Capitol, and we can’t get the Republicans to join us in making historic record of that event? That is sad,” said Sen. Dick Durbin of Illinois, the No. 2 Senate Democrat. “That tells you what’s wrong with the Senate and what’s wrong with the filibuster.”

The filibuster is likely to hold despite Gladys Sicknick – the mother of fallen Capitol Police officer Brian Sicknick – urging Republicans to support the commission. Senate Minority Leader Mitch McConnell came out against the commission last week.

So far, only two Republican senators – Mitt Romney and Lisa Murkowski – say they will support the commission bill as it is currently written, which passed in the House of Representatives with bipartisan support. Susan Collins says that she will oppose a filibuster but wants changes to the House-passed bill. Ten Republicans would need to join all Democrats for the bill to overcome a filibuster.

What is the proposed January 6 Commission?

The proposed independent commission would be made up of both Democrats and Republicans, most likely former lawmakers. It would be tasked with investigating the January 6 attack on the United States Capitol. Trump supporters ransacked the Capitol to prevent the certification of the Electoral College results in what amounted to an attempted coup that put at risk the lives of members of Congress and Vice President Mike Pence.

The commission would have subpoena power to force witness testimony and officially document what happened on that day. It would also offer recommendations to prevent a future attack. Importantly, the scope of the proposed independent commission’s investigation would be broader than anything that individual Congressional committees would have the necessary jurisdiction or expertise in.

McCarthy’s motivation for opposing the commission is clear.

One likely witness is Republican House Minority Leader Kevin McCarthy, who had an expletive-filled phone call with former president Donald Trump as the insurrection took place.

“Well, Kevin, I guess these people are more upset about the election than you are,” Trump said during the phone call.

The former president refused to call off his supporters for several hours, only after it became clear that the coup attempt had failed. When he finally released a video tepidly telling his supporters to “go home,” he repeated his lies that the election was “fraudulent.”

For his part, McCarthy is seeking to become the next Speaker of the House. So he has a clear motivation in not wanting to see a commission force his testimony and upset Trump supporters in the leadup to next year’s midterm elections.

Time to eliminate the filibuster.

Should the filibuster hold, Republicans could only bury the commission depending on whether or not Democrats eliminate or reform the filibuster. Senators Joe Manchin of West Virginia and Kyrsten Sinema of Arizona are the two main holdouts. Aside from the commission, the filibuster also threatens the Democrats’ entire agenda.

We have argued on here that the filibuster is anti-democratic, and it’s time to eliminate it. This latest abuse of the filibuster – blocking an independent commission from investigating and offering recommendations to prevent a future attack on the Capitol – demonstrates yet again why the antiquated obstruction tactic must go.

Photo Credit: John Brighenti, Flickr, CC BY 2.0

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News

Biden backs filibuster reform

In an important shift, President Biden now appears to be on board with reforming the filibuster.

According to Vanity Fair:

Biden indicated in an interview Tuesday that while he remains set against eliminating the filibuster entirely, he will support efforts to reform it, making the procedure what he says it was originally “supposed to be.” “I don’t think that you have to eliminate the filibuster. You have to do it what it used to be when I first got to the Senate back in the old days,” Biden told George Stephanopoulos in an ABC News interview. “You had to stand up and command the floor. You had to keep talking.”

Biden, who spent decades in the upper chamber, reveres the body’s traditions and, both as senator and vice president to Barack Obama, was known for his knack for bipartisan dealmaking. In ascending to the presidency after four years of polarization under Donald Trump, Biden expressed confidence that cooperation between Democrats and Republicans would be possible and that he could work within the existing system to deliver for the American people. He’s by no means abandoning those aspirations. But, he acknowledged to Stephanopoulos, the filibuster has helped bring the Senate to the point where “democracy is having a hard time functioning.”

That should be a welcome line for the growing number of Democrats who have called for the filibuster to be eliminated or reformed, particularly with Mitch McConnell and the GOP threatening to exploit the tool to thwart efforts to fight back against their disenfranchisement crusade in states across the country. (McConnell on Tuesday blasted efforts to reform the filibuster, saying it was the only thing preventing a “scorched-earth Senate.”) “He’s being vague about it, but that’s alright…As a student and creature of the Senate, he certainly knows how to choose his words carefully on this subject,” said Senator Dick Durbin of the interview. “But I think he’s acknowledging the obvious: the filibuster has really shackled the Senate.” Biden isn’t going as far as some progressives would like, but reforming the filibuster to make it more difficult to use is something that could still make a difference in terms of the power McConnell’s minority party can wield. 

If you follow us regularly, you’ll know that we are supporters of reforming or eliminating the filibuster. The filibuster stands in the way of pro-democracy reforms like the For the People Act and Washington DC statehood. The filibuster is also stymying efforts to combat state-level voter suppression.

Having the president of the United States as an ally to your cause is important, especially if you want to convince members of his party to change the rules in the Senate.

Watch the relevant part of the interview below:

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Opinion

A fair and democratic compromise on the filibuster

The filibuster remains in the news as a hurdle to progress on everything from the minimum wage to voting rights. So here is a proposal on the filibuster that everyone should be able to support.

Rather than completely eliminate it – as I’ve argued in the past – the Senate could modify its rules so that in order to filibuster a bill, you have to physically stand at a lectern, speak, and hold the floor for as long as you can stand. Let’s call it the Mr. Smith Goes to Washington rule.

In that classic American film, Jimmy Stewart’s character talks non-stop on the Senate floor for 25 hours in a bid to delay a corrupt appropriations bill and defend his own reputation against scandalous (and completely fabricated) accusations.

The Mr. Smith Goes to Washington rule would give the minority party the chance to delay a bill and rally the American people against it. If a bill is as bad as opponents claim, they could still potentially stop it. However, it would not give a minority of senators a veto that does not exist in the Constitution. Once opponents cede the floor, the bill moves to a vote.

It’s a fair and democratic compromise. Opponents of a bill will still have an opportunity to slow and potentially kill unpopular legislation. Meanwhile, it will restore the concept of majority rule in the Senate and make it a functioning governing body again.

Photo Credit: John Brighenti, Flickr, CC BY 2.0

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Analysis News

Washington DC statehood gains momentum

As part of the new Congress, Democrats are prioritizing several pro-democracy reforms – including statehood for Washington DC. On Wednesday, Democrats in both the House and Senate introduced legislation that puts DC on the path to becoming the 51st state.

As NBC News reports:

The measure was reintroduced in the House by Del. Eleanor Holmes Norton, a Democrat who represents the District of Columbia, and its companion was unveiled in the Senate by Sen. Tom Carper, D-Del. As of Tuesday evening, Norton said that she had more than 200 co-sponsors in the House.

“There’s never been a time when statehood for the District was more likely,” Norton said in a statement, adding the bill was passed by the House last year for the first time and now had a “record” 202 co-sponsors. With the Senate companion bill also gaining co-sponsors, “we’re ready to achieve voting representation and full local self-government for the 712,000+ residents of the District of Columbia,” she said.

As others have pointed out, DC has more residents than the states of Wyoming and Vermont (and DC residents pay federal taxes), yet it has no representation in the House or Senate. Eleanor Holmes Norton has served as DC’s non-voting delegate to the House of Representatives since 1991.

The Democratic-controlled House made history last year when it passed a bill to make DC a state. That bill died in the Republican-controlled Senate. Following the 2020 elections and the Georgia Senate runoffs earlier this month, the Senate is split evenly. Democrats nominally control the chamber thanks to Vice President Kamala Harris’ tie-breaking vote.

The prospects in the Senate are bleak if Democrats fail to abolish the anti-democratic filibuster, which allows a minority of senators to block legislation. We’ve argued that the Senate should abolish the filibuster to pass pro-democracy reforms like DC statehood.

In fact, the Senate’s ability to ban political gerrymandering ahead of redistricting, pass stricter anti-corruption and nepotism laws, impose new disclosure requirements for donors and super PACs, and enact universal voter registration hinges on abolishing or dramatically reforming the filibuster.

Photo Credit: Mike Maguire, Flickr, CC BY 2.0

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Analysis Opinion

The filibuster is anti-democratic. It’s time to eliminate it.

The newly-elected Democratic majority in the Senate is currently debating whether to keep or nix the filibuster. There are strong policy, political, and Constitutional arguments for eliminating the filibuster – and there is little reason to preserve it.

The policy case for killing the filibuster

Small states are already overrepresented in the United States Senate and the Electoral College. When you add a supermajority requirement to pass major legislation – a requirement that does not exist in the Constitution (more on that later) – you only give small states even more power. It is a de facto veto power for small-state senators like Mitch McConnell and Lindsey Graham. It’s also a veto for insurrectionists like Josh Hawley and Ted Cruz.

As the insurrection demonstrates clearly, safeguarding our elections and ensuring voting rights must be a top priority of President Biden and Congress. It is simply unacceptable to let Mitch McConnell veto any progress on some of the biggest issues of our time – be it a ban on political gerrymandering ahead of redistricting, stricter anti-corruption and nepotism laws, new disclosure requirements for donors and super PACs, universal voter registration, and so many more badly-needed reforms.

Much of President Biden’s agenda hinges on eliminating the filibuster. It is true that Democrats can bypass the filibuster with an arcane process known as budget reconciliation – a process that only requires a majority vote in the Senate – but it is only limited to budget-related priorities. Election reform and strengthening ethics laws, for instance, likely does not pass muster under reconciliation.

In addition, Republicans still have a majority on several Senate committees even though they are now in the minority. New members like Mark Kelly, Raphael Warnock, and Jon Ossoff have yet to even receive their committee assignments. McConnell is seeking to tie the hands of the new Democratic majority.

Will the Democratic majority willingly accept this arrangement? And if they do, will Democratic voters forget come 2022 and 2024? I think not.

Senate Majority Leader Chuck Schumer needs to use every tool at his disposal to ensure that Democrats can govern. That means killing the filibuster and changing the Senate’s rules to limit GOP obstruction. The American people expect results, not excuses.

From a policy perspective, the filibuster is absolutely noxious. During the Obama years, the filibuster effectively killed the DREAM Act, common-sense gun control, cap-and-trade climate change legislation, and a myriad of other progressive priorities. Meanwhile, filibusters did not stop the Bush or Trump tax cuts, which were passed through a majority vote using budget reconciliation.

Likewise, McConnell used reconciliation in his attempt to repeal the Affordable Care Act (a.k.a. “Obamacare”). The effort only failed because Senate Republicans lacked even a simple majority in support of repeal. (Senator McCain infamously gave the bill a thumbs down on the Senate floor.)

From a public policy point of view, it’s nearly impossible these days to get a 60-vote consensus on basic governance, let alone controversial issues. The minority party can use this power – which is not found in the Constitution – to stifle any semblance of progress. Indeed, a minority of senators from states already overrepresented in the Senate can grind the lawmaking process to a complete halt. This is not the way to govern a country.

The political case for killing the filibuster

Nearly eight years ago, I penned a piece titled “It’s Time to Kill the Filibuster.”

The context was different then, but the points remain the same today. To briefly recap, Senate Republicans blocked President Obama’s judicial nominees, including three nominees to the D.C. Circuit Court of Appeals – which is regarded as the second-most powerful court in the land. Not only did Republicans weaponize the filibuster to stymie popular legislation, but they also denied President Obama’s judicial appointments an up-or-down vote on the Senate floor.

Democrats wisely responded with the nixing of the filibuster for cabinet-level and judicial nominees. They left an exception in place for the Supreme Court. But they acted far too slowly and ultimately ceded control of the chamber after the 2014 midterm elections. Two years later, Trump won the Electoral College with narrow wins in Michigan, Pennsylvania, and Wisconsin – but failing to capture the national popular vote.

Wielding their newfound power and taking full advantage of the Obama-era vacancies that they engineered – including a SCOTUS seat after refusing to even hold hearings for President Obama’s Supreme Court nominee, Merrick Garland – the GOP rammed its judicial nominees through the Senate. As soon as the filibuster got in their way, they killed it for Supreme Court nominees. Unlike Democrats, they did not hesitate.

They acted decisively after the death of Justice Ginsburg as well, voting on her replacement a mere week before the election – four years after saying that voters should decide a vacant Supreme Court seat in an election year.

None of President Trump’s nominees – Gorsuch, Kavanaugh, and Barrett – would be on the court today if not for Mitch McConnell’s use of the so-called “nuclear option” to kill the filibuster. What would have been a 5-4 liberal majority with Garland on the Court became a 6-3 conservative majority thanks to Republicans’ obstruction tactics and their swift reversal on the filibuster when it became politically expedient.

The lesson that Democrats should learn from this is that they should use their power when they have it to advance the public good – within the constraints of the Constitution. There is no constitutional right to the filibuster. In fact, I would argue that the filibuster itself is unconstitutional.

The Constitutional case for killing the filibuster

The Constitution requires the president to nominate judges and the Senate to offer its “advise and consent.” (The same is also true for Cabinet appointments, ambassadorship, etc.) That means debating and voting on nominations.

Confirmation requires only a majority threshold, something that the filibuster expressly denies. The Constitution does not grant the power to block lawfully-nominated judges for seats on the federal bench with a minority of votes. Republicans have essentially short-circuited the Constitution to suit their political goals.

The country was founded on the principle of majority rule. Indeed, the Vice President’s sole role – other than acting as the successor to the president in the case of death, resignation, or removal – is to cast a tie-breaking vote in an evenly divided Senate. The Founders expected the Senate to be a majority body and nothing else – except in specific circumstances, as outlined in the Constitution. Only a few exceptions require more than a majority: ratifying treaties, Constitutional amendments, and convicting an impeached president or members of the Cabinet.

I am not a constitutional scholar, but I can read the plain text of the Constitution and see that the Founders’ obvious intent was for the Senate to be a body where the majority carried the day – with few exceptions. So why keep this relic that makes an undemocratic body even less democratic?

The choice is clear. The filibuster must be eliminated.

Photo Credit: John Brighenti, Flickr, CC BY 2.0