Biden moves ahead on civil rights without Congress. But his legacy depends on them.

Joe Biden’s ambitious civil rights agenda might face insurmountable hurdles in the Senate. But he isn’t waiting on members of Congress to try and build a legacy.

Three months into his presidency, Biden is adopting a more aggressive strategy, using blunt rhetoric, executive actions and federal agencies to advance a civil rights agenda around the margins.

This past week, Biden voiced support for Major League Baseball moving its All-Star Game out of Georgia after decrying the state’s new voting law as restrictive and “Jim Crow in the 21st Century.” A day later, the Transportation Department invoked the Civil Rights Act to halt a Texas highway that officials argued would have a disparate impact on Black and Latino residents. And on the anniversary of “Bloody Sunday,” he signed an executive order to direct federal resources toward voting accessibility.

“This administration is using every lever that it has as aggressively as we can to ensure civil rights and equity,” said Catherine Lhamon, deputy director of the Domestic Policy Council for racial justice and equity. “We are not siloed off in a corner. This is a priority at the highest and every level of this administration.”

While top officials say the moves are effective, they warn that they are not a substitute for larger action. They stress that Biden’s legacy on civil rights is tied to the passage of two key pieces of legislation that would expand voting access and restore key sections of the landmark 1965 Voting Rights Act that blocked discriminatory changes to state’s voting laws. Recent attempts by GOP-led legislatures to change election laws based on former President Trump’s baseless claims of voter fraud have lent urgency to some Democrats’ calls for reforming the rules of the Senate to move the bills forward.

“There are legislative tools that have to be used. There's a bully pulpit that has to be used, there's executive action that has to be used,” said former Attorney General Eric Holder. But “failure to pass those bills, get those bills put into law... I think that really would have a really substantial negative impact on them building a successful civil rights legacy.”

Biden’s willingness to personally dive into high-pitched civil rights issues presents a contrast from the early approach taken by his former boss, Barack Obama. The 44th president was often hesitant to get overly involved in such matters for fear that it could backfire. Occasionally it did. His early comments condemning the arrest of Harvard professor Henry Louis Gates caused the biggest drop in support with white voters than “any single event” in his presidency, Obama wrote in his memoir.

Biden’s engagement has not been universally smooth, either. The president’s MLB comments put him at odds with Georgia Democrats, and the White House later stressed that he hadn’t directly called for a boycott of the game. But civil rights activists who spoke to POLITICO said that the president’s remarks about Georgia’s law still sent a signal to organizations like the NAACP and National Action Network that he wouldn’t avoid the multiple battlefronts of the country’s racial reckoning.

The White House said that Biden’s efforts to spotlight civil rights battles will “100 percent” continue. And they cited the Transportation Department’s use of their authority under the Civil Rights Act as an early instance of an agency following through on Biden’s day-one mandate to all departments to prioritize racial equity.

Additionally, in the Covid-19 relief law signed last month, the White House made sure that pandemic assistance reached Black farmers. And on Thursday, the Centers for Disease Control and Prevention launched a new initiative to address how race and how social determinants of health (education, neighborhood, wealth) impact people of color. Biden’s naming of systemic racism in his inaugural address was just the beginning, said Lhamon. He’ll “take every moment that he has to use his voice” to talk about equity.

Theodore Johnson, a senior fellow with the Brennan Center for Justice who studies racial identity in electoral politics, said the national attention Biden directed toward Georgia was a “tactical, savvy” move that showed Black voters who helped elect him that he was willing to “create pressures external to the system.”

Biden’s pathway to the nomination relied on Black voters in Southern states, and his victories in new battleground states like Georgia also hinged on turnout among Black and brown voters. Civil rights activists have been quick to remind the administration that its ability to enact Biden’s agenda relies on his coalition turning out again in 2022.

Whether they do could be determined by the political capital Biden expends to move two major voting rights bills that have stalled in Congress. The Senate has not yet taken up either piece of legislation, and there is no optimism that the 60 votes would be there for passage if the bills were brought to the floor. For that reason, Holder said, there needs to be “some kind of structural reform in the Senate with regard to the filibuster.”

Biden has resisted most major rules reforms, instead backing incremental changes. Civil rights groups and top Democrats in the House have increasingly tied the use of the arcane legislative filibuster to racism and the Jim Crow era. The decision ultimately rests with the Senate, but activists see a role for Biden to play in pressuring reluctant Democratic members.

So far, leaders of civil rights organizations say Biden’s actions and focus on equity in his speeches and interviews matches promises made on the campaign trail to confront rather than shy away from race. But executive actions and presidential proclamations are not viewed as the ultimate marker of progress.

“It's important for him to use the bully pulpit,” said Derrick Johnson, president of the NAACP. “But this is about legislation.”

On Thursday, a handful of prominent civil rights organizations held an emergency meeting to discuss Georgia’s law and the Senate’s inaction on voting rights legislation. Al Sharpton, head of the National Action Network, said he hopes Attorney General Merrick Garland will soon make good on a promise to meet with civil rights leaders.

Though the administration argues it has “fairly limitless policy choices” and will “leave no stone unturned” on actions strengthening civil rights, it has maintained that the Justice Department acts completely independently, including with respect to any action against Georgia. So far, the DOJ has not said whether it will review Georgia’s voting law.

Part of the holdup is likely due to a case before the Supreme Court that will determine the DOJ’s ability to use Section Two of the Voting Rights Act to bring lawsuits against states like Georgia, said Rick Hasen, an election law professor at University of California, Irvine.

“How much room a Biden Justice Department would have to bring suits against laws in Georgia or the one that seems much more worrisome that's potentially coming out of Texas is going to be dictated by what the court does,” said Hasen. The upcoming decision could further erode protections against election law changes that discriminate based on race, following a 2013 ruling that gutted another section of the Voting Rights Act.

Though there’s been some “hyperbole” around the negative impact of Georgia’s election law, Hasen said, “the public reaction” from the administration and businesses is a “warning shot that these efforts are going to be fought quite strongly.”

Lhamon, of the president’s Domestic Policy Council, defended Biden’s decision to compare the Georgia election law to the Jim Crow era. She said that as a Black child growing up in America, her mother instilled in her that “people died for the right to vote” and that the president’s words spoke to that past “harm.”

“In that frame, what the president is saying, when he says, this is the new Jim Crow, is that we are returning to a time when we as communities let some of us say that others of us aren't valid voters and don't enjoy the same right to democracy that others of us have,” said Lhamon. “That is an unbelievably damaging message, however it is conveyed.”

Maurice Mitchell, national director of the progressive Working Families Party, agreed that Biden should speak out often about these issues, if only to convince other GOP-led states to back off more restrictive voting laws than what was passed in Georgia. But ultimately, Mitchell said it won’t matter unless Biden signs at least one of the two voting rights bills which expand access and restore the Voting Rights Act into law.

“He's inherited several crises — an economic crisis, the climate crisis, a racial justice crisis and this crisis of democracy — and there's very little room for failure because these are existential crises,” said Mitchell.

“His legacy is hanging on this.”