After Senate Republicans Block Voting Rights Legislation, the Filibuster Is Back in the Crosshairs

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Participant seen holding a sign at the protest. Fair
Participant seen holding a sign at the protest. Fair

Participant seen holding a sign at a protest in Brooklyn, New York, on October, 17, 2021. Credit - Erik McGregor—LightRocket/Getty Images

President Joe Biden said on Thursday he would be open to doing away with the filibuster in pursuit of protecting Americans’ voting rights, bolstering voting rights’ advocates calls to abolish the controversial rule after Republicans blocked federal voting legislation from advancing for the third time this year.

Wednesday’s 49-51 Senate vote barred any debate from occurring on the Freedom to Vote Act, a bill that would have enacted automatic voter registration, guaranteed at least 15 consecutive days of early in-person voting and allowed for no-excuse mail voting in federal elections among other measures.

For many Democratic lawmakers and voting rights advocates, the vote reinforced their view that getting rid of or carving out an exception to the filibuster —the Senate rule that requires a supermajority of 60 votes to end debate on an issue —is the only path forward to pass federal legislation targeting voter suppression and gerrymandering. So far this year, 19 states have enacted 33 laws that will make it harder for millions of Americans to vote, according to the Brennan Center for Justice.

“It is absurd that we would allow some arcane rule—a rule that has historically been used to obstruct the advancement of civil rights—to preclude these critical measures from proceeding,” says Lisa Cylar Barrett, director of policy at the NAACP Legal Defense and Educational Fund.

Biden’s comments, made during a Thursday CNN town hall, were the strongest indication that the President has given that he may be supportive of the move. While the President has previously been vocal in his support for federal voting rights legislation, calling the rollbacks on voting access by Republican-held state legislatures the “most significant test of our democracy since the Civil War,” many civil rights groups have criticized him for not pressing harder to get rid of the filibuster to allow the legislation to move forward.

In speaking more broadly about Republicans threatening to use the filibuster to put the U.S. in danger of not paying its debts and using the procedure to block various proposals that Democrats support, Biden said, “I also think we’re going to have to move to the point where we fundamentally alter the filibuster.” Using the filibuster to not raise the debt ceiling is “the most bizarre thing I ever heard,” Biden said.

The filibuster is used much more now than it was in the past, and, Biden said, starting “immediately,” senators should have to actually speak on the Senate floor continuously—as they did decades ago—for a filibuster to be in effect. He did not lay out a specific plan on how the filibuster rule should be changed, and said it “remains to be seen” what that would entail.

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Republicans have been steadfast in their opposition to new federal voting rights legislation. Senate GOP lawmakers blocked a more expansive version of the Freedom to Vote Act twice already; the current version was adopted after Sen. Joe Manchin attempted to reach out to Republicans and Democrats compromised on some aspects of the bill.

Before Wednesday’s vote, Senate Minority Leader Mitch McConnell urged his party to fall in line with blocking the measure on the basis that the law impinged on states’ rights to run their own elections. “It is my hope and anticipation that none of us will vote for this latest iteration of Democratic efforts to take over how every American votes all over the country,” he said on Tuesday.

Vincent Hutchings, professor of political science and Afroamerican and African studies at the University of Michigan, says Democrats’ attempts to get Republicans onboard with voting rights legislation are counter-productive. The filibuster has been used before to shut down progress on key civil rights legislation, including anti-lynching legislation in the 1940s, he says, and Republicans have little incentive to expand voting access and “support legislation that will empower people who will not vote for them.”

Others also see Wednesday’s vote as evidence that compromise isn’t working. “This is further confirmation that paring down the bill isn’t going to make a difference,” says Nicholas Stephanopoulos, a professor at Harvard Law School who specializes in election law. “[Democrats] haven’t come close to getting the vote of a single Republican Senator—let alone 10 Republican senators—so we’re nowhere near anything like a 60-vote supermajority.”

Senate Majority Leader Chuck Schumer has previously said, when asked how far Democrats will go to push through voting rights legislation, that “everything is on the table.” But for now, getting rid of the filibuster may not be an option. Both Manchin and fellow Democratic Sen. Kyrsten Sinema have said they are not on board with getting rid of the filibuster or filibuster reform, and their votes would be needed to move ahead with either.

Finding a way around the filibuster could be one way forward, if Democrats could get Sinema and Manchin onboard. It’s been done plenty of times before: since 1969, Congress has created at least 161 special procedures to prevent a filibuster on specific measures, according to research published in 2017 by Molly Reynolds, a senior fellow in governance studies at the Brookings Institution.

The reason Neil Gorsuch is sitting on the Supreme Court right now is because Senate Republicans carved out Supreme Court nominations from the filibuster rule, says Stephen Spaulding, senior counsel for public policy and government affairs at Common Cause, an advocacy organization focused on promoting democracy. Democrats did the same for President Barack Obama’s nominees when they were appointed to the D.C. circuit, he says.

“It’s not unprecedented at all. It’s now a choice to keep the filibuster in place rather than pass legislation that would protect the freedom to vote,” Spaulding says.

For now, it’s possible—although not guaranteed—that Democrats may be trying out all other potential options before resorting to the tackling filibuster, says Rachael Cobb, an associate professor and the chair of political science and legal studies at Suffolk University.

Schumer has said he plans on bringing the John Lewis Voting Rights Advancement Act, which is designed to strengthen the weakened landmark Voting Rights Act of 1965, up for a vote next week. “Republican obstruction is not a cause for throwing in the towel,” Schumer said on the Senate floor on Wednesday.

Earlier this year, the White House was largely focused on getting out the vote and voter education in their efforts to combat voter suppression and restrictive voting laws that states enacted this year.

Barrett of NAACP LDF says that the idea that voting rights groups can out-organize voter suppression is “insulting, because it suggests that we’ll just accept that there are these blatant efforts to suppress the votes of certain populations in our country.”

“That really should not be the answer. The sustainable answer is the policy response,” Barrett says.

She remains hopeful that lawmakers may still take action on the filibuster, especially after the latest attempts at compromise and debate have been unsuccessful. “People needed to see that even after a lot of negotiation and compromise, that what we’re really left with is obstruction.”

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