Democrats are currently discussing two ways to change the Senate’s filibuster rules in order to pass voting rights legislation. The options under consideration include a special carve-out from filibuster rules for voting rights legislation or the implementation of a new kind of talking filibuster.
The push to enact new voting rights legislation has been on a collision course with the Senate’s filibuster rules ever since Jan. 6. Democrats won control of the Senate that day with wins announced in both Georgia Senate run-off elections, and supporters of ex-President Donald Trump attacked the U.S. Capitol in an effort to halt the counting of the electoral votes underway at the time.
Democratic control of the Senate gave the party full control of the government for the first time in a decade and the ability to pursue a Democratic agenda, including voting rights. Meanwhile, the insurrection and the election fraud lies spread by ex-President Donald Trump have inspired Republican-run states to enact new restrictions on voting.
While Democrats were already destined to introduce voting rights as the No. 1 priority for legislation in both chambers, Republican reactions to Trump’s lies have made it an urgent necessity to enshrine voting rights in legislation.
Senate Majority Leader Chuck Schumer (D-N.Y.) declared in March that “failure is not an option” on voting rights. “Everything is on the table” to pass a voting rights bill, he added.
Since then, Democrats have seen their first voting rights bill, the For The People Act, blocked by Republican filibusters twice in the Senate after passing the House on a near party-line vote (one Democrat voted no). Those filibusters followed Sen. Joe Manchin (D-W.Va.) attributing his opposition to the bill to its lack of bipartisan backing, but then announcing he would support a slimmed-down compromise version that he claimed could win Republican support.
A group of eight members of the Senate Democratic Caucus introduced the Freedom To Vote Act, Manchin’s compromise bill, on Sept. 14. Manchin is now shopping the bill around to find the Republican support he believes exists.
But the few Republicans who might be interested, like Sens. Lisa Murkowski (Alaska) and Susan Collins (Maine), have already stated their opposition. A Schumer-promised floor vote on Manchin’s compromise may come as early as next week. Republicans are expected to filibuster Manchin’s bill then.
What comes next is unclear. The only way to pass the bill is for Democrats to change filibuster rules. With a bare 50-vote majority, every Democrat needs to agree to do that. And two senators, Manchin and Sen. Kyrsten Sinema (Ariz.), oppose eliminating or reforming the filibuster.
That hasn’t stopped conversations from happening. According to sources inside and outside of Congress, the options Democrats are currently discussing include a potential carve-out for voting rights from the filibuster rules or the restoration of a talking filibuster.
A carve-out would create a new precedent in Senate rules that legislation on voting rights would not be subject to the chamber’s rules requiring 60 votes to begin or end debate on a bill and move to a final majority vote, a process known as cloture. This is similar to the nuclear option of eliminating the filibuster altogether, but more of a tactical strike.
Such a carve-out would be adopted the same way previous filibuster carve-outs have been, as in 2013 for voting on all judicial and executive branch nominees save Supreme Court nominees, and in 2017 for voting on Supreme Court nominees.
After the voting rights bill is filibustered, Schumer would make a point of order stating that floor votes on legislation expanding voting rights are not subject to the 60-vote threshold of cloture. The presiding officer, likely Vice President Kamala Harris, could then state that that is not what the Senate Rules say. Schumer would then challenge her ruling, leading to a simple majority floor vote. If 50 senators vote in support of Schumer’s challenge, a new precedent would be created, exempting voting rights legislation from the 60-vote filibuster threshold.
However, while many Democratic senators support such a carve-out, Manchin has rejected the idea, stating, “The filibuster is permanent” on Sept. 14.
The other option being discussed is to restore a talking filibuster. Until the 1970s, senators had to physically appear in the Senate chamber and continuously speak in order to filibuster a bill. The talking filibuster is perhaps best known for its cinematic portrayal by Jimmy Stewart in the 1939 film “Mr. Smith Goes To Washington,” but, in reality, it was mostly used by white supremacist senators from the South to scuttle anti-lynching and civil and voting rights legislation to protect Black Americans and other minorities.
The Senate ultimately ditched the talking filibuster because senators believed the endless talking took up too much time and inhibited the Senate’s ability to operate in a functional manner. Today, filibuster reformers levy the same complaints of dysfunction at today’s silent filibuster system.
Restoring the talking filibuster would look different from Stewart’s film or the real-life, 24-hour and 18-minute filibuster segregationist Sen. Strom Thurmond waged in 1957 in opposition to a modest civil rights bill, the longest such filibuster by a single senator in history.
A new talking filibuster would require a senator or group of senators to continuously speak while also reversing the structure of the existing cloture system. Where today 60 senators must affirmatively vote for cloture to break a filibuster, a new talking filibuster would require the filibusterers to maintain 41 senators on or near the Senate floor for the entirety of the filibuster. If they fail to maintain that number, a vote could be called to break it. This would mean that a minority would need to be fully devoted to blocking a bill and work hard to do so.
This would also align with statements made by Manchin in March about an openness to bringing back the talking filibuster.
“If you want to make it a little bit more painful, make him stand there and talk; I’m willing to look at any way we can,” Manchin said on “Meet The Press” on March 7.
Still, it is unclear if Democrats can convince Manchin or Sinema to budge from their pro-filibuster positions.
While conversations within the Senate Democratic Caucus have been ongoing all year, the full-blown discussion is expected to begin after Republicans filibuster the Freedom To Vote Act. Those discussions may stretch into November or later. Only then will we know whether failure wasn’t an option.
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