The Filibuster and Voting Rights

The Filibuster and Voting Rights

The filibuster rule requires a supermajority of 60 votes to pass legislation in the Senate rather than a simple majority. When the filibuster is invoked (it can be invoked simply by one member and the old fashioned talk a bill to death filibuster no longer exists) there can be neither debate nor any movement on a bill unless there are 60 votes in favor. It is rare to get 60 votes in the Senate in favor of any legislation in today’s hyper partisan environment. The use of the filibuster in this environment allows the minority party to control much of what the Senate does and as James Madison argued in Federalist #58 this “reverses the fundamental principle [simple majority rule in legislative assemblies] of free government.” There was much discussion and analysis of the filibuster in the news in 2021 (see also my essay History of the Filibuster on my blog dated March 27, 2021). Should it be eliminated or modified or is it crucial to American democracy? Supporters of the filibuster, including Democratic Senators Joe Manchin and Krysten Sinema, have argued it is essential to American democracy, although it is interesting to note that they voted in favor of two recent exceptions to it.

Twice in early December, the Senate made exceptions to the filibuster rule. One exception, supported by Manchin and Sinema, was the vote on an amendment proposed by Republican Mike Lee to the continuing resolution to maintain current levels of government spending until February 18. The amendment would have defunded President Biden’s enforcement of his private-sector vaccine mandate. It failed to get a simple majority to pass. I note that the continuing resolution, which required 60 votes to pass because the filibuster was in effect, passed by a 69 to 28 vote margin with 19 Republicans supporting it. Why carve out an exception for an amendment proposed by Senator Lee? Given the importance of averting a government shutdown, the Democrats allowed a simple majority vote on the amendment, knowing it would fail in advance and meaning the vote was primarily symbolic, in exchange for enough Republican votes to get a supermajority to avoid the government shutdown.

The second “carve out” of the filibuster was to raise the national debt ceiling by a simple majority vote. It was also supported by Manchin and Sinema. It passed 50 to 49 along party lines. It allowed the Democrats to vote in favor of raising the national debt ceiling so the US can pay the bills that it has already accumulated. It allowed the Republicans to vote against it, safe in their knowledge that the US will not default on its bills which would cause dramatic harm to the US/global economy. Why carve out an exception on a debt ceiling vote? Given the importance of not harming the credit worthiness of the US and the US and global economy, this deal was made to allow it to pass with a simple majority so the Republicans could symbolically vote against it and could claim, falsely I would point out, that they voted against Biden’s spending.

Apparently, the filibuster is not as sacrosanct to democracy as Manchin and Sinema and Republicans have recently argued publicly. How often are exceptions made to the filibuster rule? According to an exhaustive study by Brookings there were 161 exceptions to the filibuster passed between 1969 and 2014 and several since then. Examples include nominations to lower level federal courts, nominations to the Supreme Court, executive branch nominations, and trade promotion authority. The entire budget reconciliation process is an exception to the filibuster. Reconciliation is currently being used by the Democrats to attempt to pass the Build Back Better legislation.

I raise all these points about the filibuster with reference to the most central component in any democracy – voting rights. Republican Senators have already used the filibuster twice on the For the People Act, once on the Freedom to Vote Act (a compromise voting rights act authored by Manchin) and twice on the John Lewis Voting Rights Advancement Act in 2021. None of these bills were discussed or debated on the Senate floor. At least two Democratic Senators, Manchin and Sinema, want the filibuster to remain in effect for any vote on voting rights. (1) This means that these pieces of legislation, which are designed specifically to protect an individual’s right to vote, may not be discussed, debated, nor voted upon in the Senate. So much for the mythical characterization of the Senate as the “greatest deliberative body.”

As is reported throughout the news, Trump Republicans have passed all kinds of voter suppression/restrictive laws, including partisan gerrymandering, in at least 22 states. The most egregious laws can be found in Georgia, Texas, Iowa, and Arizona. I personally would include my home state of Florida in that category. In addition, in some Trump Republican-led states it is now possible for partisan legislatures to overturn or reverse the voting count made by independent or bi-partisan local election commissions or boards. All of these laws were passed under the guise of the BIG LIE which is still promoted by the Trump Republicans.

The fact is that the Republicans are increasingly finding it difficult to win the national popular vote for President and Senate races in many states because of the dramatically changing demographics in America that favor the Democrats. The real purpose of these laws is to restrict voter turnout, especially among minorities who are the fastest growing segments of the US population and tend to vote for the Democratic Party. Democratic presidential candidates have won the national popular vote in every election since 1992 except in 2004. The Republican Party publicly recognized this problem in 2012 and 2016 but made no real effort to reach out to minorities to expand their primarily shrinking “white” base. Note that “whites” in America have declined by 8.6 percent of the population since 2010. Biden won the popular vote in 2020 with the largest voter turnout in more than a century, especially among minorities.

What will be the effect of these state voter suppression/restriction laws if the national government fails to act soon? They could easily have a chilling effect on voter turnout, especially among minorities, in 2022 and 2024 which will give the advantage to the Trump Republicans. This is exactly what the Trump Republicans want and why these laws are being passed. It is also possible that it will serve to further incentivize minority voters to turn out in large numbers despite the suppression laws. This remains to be seen.

In the long run however these voter suppression/restriction laws will, without a doubt, further incentivize minorities who will make up the majority of Americans by 2035 to favor the Democrats even more so than they do today. At some point, these non-democratic voter suppression laws will be reversed as the percentage of those who identify as Republican continues to decline. The questions that one must ask are will our democracy survive until that time and why do we have to wait? Why do minorities have to wait? It is time to end the Trump-led slide into corrupt authoritarian processes in the US.

(1) I note that Manchin has indicated some support for returning to the “speaking” filibuster which is the traditional filibuster that hasn’t been in existence since the early 70s.

Please also see my essays in my blog on voting rights: The Voting Rights Cycle for African Americans on July 15, 2021; Commentary on Recent Voter Suppression Efforts on March 10, 2021; and Voting in America on August 20, 2020. The Filibuster and the Issue of Voting Rights