The most appropriate public domain voting image I could find.
The For the People Act, introduced in both the House (as H.B. 1) and the Senate, includes a number of voting rights protections. Most importantly, it prohibits state voter suppression measures, prohibits gerrymandering of election districts, and reinstates the pre-qualification protections of the Voting Rights Act that the Supreme Court invalidated in its infamous Shelby County decision. All of these provisions are necessary to protect (small d) democracy in this country going forward.
This Act would go a long way toward making sure our country never re-experiences the miseries of the voter suppression of the 2010s. It is virtually certain to pass the House. In fact, the House passed this legislation in the last Congress. Unfortunately, it then died on Mitch McConnell’s desk, without ever having been considered in the Senate.
This will almost certainly pass the House again, but there is a glaring obstacle to its enactment. Under current rules, the bill is dead on arrival in the Senate, due to the Senate’s de facto 60-vote requirement to pass legislation. And although the fifty Democratic Senators, along with Vice-President Kamala Harris, could change the Senate rules, two Democratic Senators, Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ), have said that they are opposed to changing the filibuster rule for regular legislation. As long as they both feel that way, the sixty-vote requirement remains, and there is no chance that Republicans will vote in favor of a bill that empowers mere citizens to express their disagreement with Republican policies and priorities. Hence, the bill is DOA in the Senate.
But there is a simple, principled rule change that would allow it to be passed in the Senate, and then signed into law by President Biden. And that rule change should not be exceptionally controversial, i.e., Senators Manchin and Sinema should be open to considering it.
As the Senate rules currently exist, bills can be filibustered because there is no authority for a senator to “call the question.” The main exception, the “Byrd Rule” (named for its author, the late West Virginia Senator Robert Byrd — how about that, Joe Manchin?), exempts budget reconciliation bills. The question can be called on those bills after debate has continued for a certain time. Accordingly, so-called “reconciliation bills,” like the pending pandemic relief bill, can be passed with “only” a majority of the Senate concurring.
Budget reconciliation bills are privileged because of common sense. The government has to function, and thus it is important that they be passed in a timely manner. Accordingly, debate is allowed until it becomes apparent that the sole purpose of the debate is delay, and at that point, a senator is allowed to invoke the “Byrd rule” and bring debate to an end.
The other “exceptions to the filibuster,” which are actually just situations in which senators can “call the question” and end debate after a certain amount of time, involve approval of judicial appointments. During the Obama administration, faced with endless Republican filibusters of judicial appointments, Harry Reid implemented the so-called “nuclear option,” i.e., changed the rules to bypass the filibuster, for district and appellate court nominees. Accordingly, a senator can “call the question” on approval of a district or appellate court nominee.
By the time of Justice Antonin Scalia’s death, the Republicans had a Senate majority, and Mitch McConnell used that majority authority to ignore completely President Obama’s nomination of Merrick Garland to the Supreme Court. Then, when Donald Trump was elected, McConnell expanded Reid’s elimination of judicial appointment filibusters to Supreme Court nominations, to allow the confirmation of Neil Gorsuch to Scalia’s seat by a “mere” majority.
That’s where things are now. The filibuster can be used to indefinitely delay any senatorial actions, except for a couple of privileged categories of action: 1) Senatorial approval of Article 3 judicial appointments, which are constitutionally required for the functioning of the judicial branch, and 2) Senatorial approval of budget reconciliation bills, which are constitutionally required for the functioning of the entire government. These exceptional bills, that are necessary constitutionally to allow for a functioning government, can be passed by a “mere” majority of senators present.
There is another exceptional category of legislation that is constitutionally required, both for the election of the legislative branch under Article 1 and the 17th amendment, and for the guarantee of a republican form of government in the states under Article 4, section 4. That is the Congressional enforcement provision set forth in Section 2 of the 15th Amendment. The 15th Amendment guarantees that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Section 2 of the amendment provides, “The Congress shall have power to enforce this article by appropriate legislation.” This is an amendment to Article 1’s specific provision of powers to the Congress, and the drafters of the amendment thought it sufficiently important that the Constitution should be amended to include it. Accordingly, this is an exceptionally important grant of authority to Congress.
Given that explicit grant of authority, and especially in light of the United States’ experience of dealing with an empowered minority using every procedural advantage to favor the protection and expansion of slavery up until the Civil War, there is no reason at all for the Senate to maintain a supermajoritarian requirement to pass legislation designed to ensure that a majority of constitutionally eligible voters have the opportunity to choose their representatives. The fact that this issue was elevated to constitutional status should reinforce the notion that the non-constitutional, anti-majoritarian filibuster rule should not apply to this category of legislation.
Accordingly, should it be necessary, Senators Manchin and Sinema (and all other Democratic senators) should support amending the Senate rules to provide that legislation brought pursuant to section 2 of the 15th Amendment should not be subject to filibuster. They don’t have to abolish the filibuster altogether, for all legislation, but just for this constitutionally mandated function.
Is that too much to ask?
