Update 576 — Restoration and Reform:
Battles Ahead for American Democracy
President Biden’s Summit for Democracy last week was a cause for introspection: is the United States perfecting, protecting, or peeling back democratic rights? Republican-controlled states, particularly swing states like Georgia and Arizona, continue to adopt laws suppressing the vote. Congress has yet to pass federal voting legislation. The federal judiciary stands as an example we can be proud of. Federal and state courts were a key part in upholding democracy and prevented challenges against the 2020 election results. But it is the unelected branch.
Now we must look ahead to challenges confronting the nation in the next election. In this update, we break down the bills currently sitting in Congress, what has been done so far, and what needs to be done to reform and restore our democracy.
Last week, the Department of Justice announced it is suing the state of Texas over its gerrymandered maps which dilute the votes of people of color under Section 2 of the Voting Rights Act. In recent years, the Supreme Court has weakened the Voting Rights Act in Brnovich v DNC and Shelby County v Holder, leaving long and costly lawsuits as the only options to enforce fair voting practices. The bills currently sitting in Congress would strengthen the Voting Rights Act and create federal standards for voting and election administration across the country.
House Work Done
Last Thursday, the House passed the Protecting Our Democracy Act on a near party-line vote. The bill would rein in the power of the president by increasing accountability and transparency, restoring checks and balances, and protecting elections from foreign interference. The bill is largely a response to Trump’s abuses of power and is the most recent of several democracy reform bills passed in the House.
In March, the House passed H.R. 1, the For the People Act. The bill has been Democrats’ first priority since last Congress. The For the People Act was a transformative package of democracy reform legislation that would strengthen and reform voting rights, election security, campaign finance, and ethics standards for the federal government. The bill has been retitled The Freedom to Vote Act; a more modest bill that nevertheless contains most of the key elements of H.R. 1.
In August, the House passed H.R. 4, the John Lewis Voting Rights Advancement Act. The bill would restore the strength of the Voting Rights Act of 1965 by reestablishing the preclearance formula. Certain states and jurisdictions would need to get approval from the DOJ for changes made to their voting laws.
The House has done its job to pass democracy reform legislation. While these bills would enact common-sense reforms and have popular support among voters, they have been passed along party lines. Republicans would rather suppress the vote and undermine our elections rather than protect our democracy. The House can pass these bills without a single Republican vote, but the Senate needs the support of Republicans to overcome the filibuster, which is ironic because some reforms would restore voting rights for Senators.
Senate Has Tried and Will Try Again
In his November letter to Democratic colleagues outlining the hefty end-of-year to-do list for the Senate, Senate Majority Leader Chuck Schumer said that the fight to pass voting rights legislation remained one of his top priorities. Republicans have blocked several bills related to voting and elections brought by Democrats this year, a feat made possible by their persistent use of the filibuster.
“Even if it means going at it alone, we will continue to fight for voting rights and work to find an alternative path forward to defend the most fundamental liberty we have as citizens. To that end, a number of our colleagues—with my full support—have been discussing ideas for how to restore the Senate to protect our democracy,” Schumer said.
This is not the first time Schumer has used the phrase “restore the Senate.” Schumer used the phrase previously in a November 4th floor speech, after Republicans blocked the John Lewis Voting Rights Advancement Act. The Senate’s version of the bill was changed to attract Republican votes and added provisions to protect election workers and secure voting rights for Native Americans. And two weeks earlier, Schumer referred to those words after Republicans blocked the Freedom to Vote Act, another slimmed-down version of a bill that was amended to garner Republican support. Neither bill gained the 10 Republican votes necessary to overcome the filibuster.
The filibuster is the elephant in the Senate chamber in all this talk of restoration and what comes next on the Democratic agenda after Build Back Better. Most legislation requires 60 votes to advance in the Senate, and Democrats only hold 50 seats. If Democrats can’t get 10 Republican votes to limit debate on a bill, that’s a filibuster—the modern-day,optimized-for-maximum-obstruction-and-minimum-fuss version that’s become the norm, anyway.
Key: Restoring the Senate (with Time Limits)
With inaction in the Senate on democracy reform and many other important priorities, filibuster reform is urgently needed. Reforming the filibuster will restore the Senate to a functioning legislative body that can debate and pass legislation a majority of Senators support. While Rule 22 reform has been discussed for decades, this is the moment to deliver change. Conversations are going on between moderate members of the party to find a reform all 50 Senators can get behind. Several exceptions have been made to the filibuster over the years, namely for reconciliation, presidential nominees, including the Supreme Court, and most recently for the debt limit.
Eliminating the filibuster altogether is likely not an option, as Senators Joe Manchin and Kyrsten Sinema are firmly opposed to doing so. Manchin led the effort to pitch the Freedom to Vote Act to his Republican colleagues, in the hopes that a less expensive measure would attract GOP votes. Despite having been rebuffed, Manchin remains adamantly opposed to ending the filibuster or creating a carve-out specifically for voting rights, though recent reports indicate he is in conversations with Republicans on some version of rule changes. Democratic senators have held regular meetings with Schumer to discuss the next steps for voting rights.
Whether or not it can be done this year, there are several different options for filibuster reform. Filibuster reform must be meaningful to allow debate and pass legislation, and practical, to get the votes needed to make a rule change. There are several popular reforms Senators could pursue:
- Democracy Carve-Out: This method follows the recent changes to the filibuster by creating exceptions for specific topics but would not help with other legislation.
- Reversing the Presumption for Cloture: Instead of requiring 60 affirmative votes to break a filibuster, the Senate could require the minority to produce 41 votes to maintain a filibuster. Thus, the burden would fall on obstructionists to ensure that they had enough senators present to block legislation.
- Talking Filibuster: This would restore the Senate to how it previously functioned. The reform would increase the visibility of the filibuster, and when coupled with another reform like time limits, could be productive in allowing debate and final passage of legislation but is insufficient to restore the Senate to functionality.
Time to Act Limited
While getting the reform option right will be important, the Senate cannot wait to pass the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act since states are passing laws that provide for voter suppression, election subversion, and gerrymandered maps. Democrats cannot let an arcane Senate rule stand in the way of a functioning democracy. With a rule change, the Senate can pass this legislation and get the bills to President Biden’s desk to be signed into law. Voting rights must be the priority as we end this year and go into 2022. The House has done its job to pass the bills, and the Senate must reform the filibuster so they can pick up the torch and create laws that will keep the flame of democracy alive.
While the focus is on Build Back Better, President Biden should use his power as an institutionalist to highlight the importance of voting rights and push the Senators towards filibuster reform. Going into 2022 and the midterm elections, voting rights legislation needs to be the Senate’s first priority or our democracy hangs in the balance.