We’ve been here before, a Democratic President with Democratic majorities in both houses of Congress. In a real world, the Democratic Party would pass and sign any legislation our party thinks is best for the nation. Tap-dancing across the Rotunda floor, right?
Not as long as the Senate requires 60 votes to move any important legislation and there are 50 Republican Senators.
Fortunately, Democrats were able to push pandemic relief through reconciliation, which doesn’t require 60 votes (as long as provisions are reasonably related to the federal budget). But now we are faced with piles of critical legislation that will grind to a halt in the Senate unless we eliminate or seriously curtail the filibuster rule.
In the 116th Congress, the House passed and sent to the Senate 18 bills, including bills for: voting rights, lower drug costs, infrastructure, equality for gender orientation and identity, background checks for firearms, decriminalization for marijuana, banking for marijuana, and fairness for Internet traffic, as well as the George Floyd Justice in Policing Act. (See List of bills in the 116th United States Congress)
Many of these bills are extremely important, but were stopped by Republicans with their control of the Senate. They plan to stop similar legislation this session, but they don’t control the Senate. Even so, they can block any of these bills with the filibuster. Historically, the filibuster has been often dysfunctional and detrimental to the country. But now the situation has reached a critical point.
Time to Break the Filibuster
Why? Because the Democratic Party faces oblivion. According to the Brennan Center for Justice, by late January over 100 bills were pending in 28 states to restrict voting rights. (See footnote this section.) Congress has the power to set rules for federal elections, but it can only do that if it can make law. A filibuster would require 60 Senators to support voter protections, so we can only stop this enormous Republican power grab under current rules with support of ten Republican Senators. Republicans in Congress have shown no interest in what’s best for the country, so even one Republican is out of the question.
Current state legislatures will set the boundaries of congressional districts based on the 2020 census. They will then be able to use voter suppression to gain a majority in Congress. And they even have laws pending that would allow Republican legislatures to overturn the popular vote for President and send Republican electors to the Electoral College, rigging the 2024 presidential election.
Yet even some Democrats in the Senate, not to mention President Joe Biden, believe we should retain the filibuster. They are worriers. They worry that when Democrats regain the minority, Republicans will use democracy to push through legislation we won’t like. This is a tiny problem compared to being locked out of office for all time.
Contact your Senators and urge them to support enough filibuster reform to at least get critical legislation, like the voting rights bills now pending, adopted by the Senate. This may require eliminating the filibuster, or just modifying it sufficiently.
Democracy really is on the line. Republicans tried to suppress it at the ballot box. They tried to deny it in the courts. They tried to steal it with a violent insurrection. They are highly motivated, because they know that real democracy, with one vote per person, will end their goal of rich, elite, minority rule. Let’s find a way to stop them.
Voting Laws Roundup: January 2021
26 January 2021
Brennan Center for Justice
The Best Minds Have Proposed Filibuster Reform
Writing in The Washington Post this month, Norm Ornstein proposed reform options he thought all Democrats might be willing to support. He warned that Democrats can only push Senators like Joe Manchin of West Virginia so far without pushing them out of the party. (See footnote this section.)
Ornstein suggests the goal is to “preserve some rights for the Senate minority, with the aim of fostering compromise.” To that end he suggests three options.
Option 1: Require at least 40 Senators to be present and opposing the bill to prevent the question from coming to a vote.
Option 2: Require three-fifths of the Senators to be present and voting. Possibly add to that a requirement that at least one person in the minority be part of the debate.
Option 3: Change the requirement from three-fifths, which is 60 Senators, to a lesser number, but still more than 51.
Ornstein believes Senators like Joe Manchin and Kyrsten Sinema cannot be pressured into eliminating the filibuster, but they might be enticed to reform the rules to get debate and compromise without simply blocking all Democratic initiatives.
Ornstein’s ideas are part of a broader effort to change the rules. The website Vox suggests a number of additional ways to change the filibuster that centrist Democrats might support. (See footnote this section.)
Idea 1: Require opponents to speak on the floor, the way the public thinks a filibuster ought to look.
Idea 2: Exempt other matters from the cloture rule besides court appointments and budget bills. These could be either exceptions for classes of legislation or for specific bills.
Idea 3: Allow legislation to pass with a simple majority if it was blocked by a filibuster in the previous session of Congress. This allows the public to express their opinion during the intervening election.
Idea 4: Allow a vote on a legislative bill to proceed without the requirement of unanimous consent, so that it would take more than one Senator’s objection to stop the vote.
I don’t think any of these proposals quite get to the objections I’m hearing from Senator Manchin and Senator Sinema. Changing the vote threshold or how it is calculated simply makes it possible for the majority party to have a better chance of passing the legislation they want. This moves away from Manchin’s stated desire to have the parties come together to pass legislation they can agree on.
And a talking filibuster, as in Vox’s Idea 1, requires the public to care about and pay attention to the debate in Congress. That’s not going to happen. The public is used to getting small, clearly defined options and then swiping left or swiping right. The filibuster fix needs to fit their attention span.
Do you remember when I started this sentence? I didn’t think so. That’s the attention deficit disorder we must deal with. Whatever fix we make to the filibuster, the American people cannot be required to understand what the Senate is doing. They need to get a result, which they will then either like or dislike.
Sen. Manchin and Sen. Sinema appear to want a Senate where all members have a part in the final legislation. In the following sections, I propose possible changes that would directly address this issue.
Democrats can’t kill the filibuster. But they can gut it.
By Norman Ornstein
2 March 2021
5 ideas to reform the filibuster that Joe Manchin might actually support
By Michael Ettlinger
19 January 2021
How Joe Manchin can make the filibuster “more painful” for the GOP without eliminating it
By Ian Millhiser
Updated 8 March 2021
Sen. Manchin’s Filibuster Support
One of the key claims of people, like Sen. Manchin, who support the filibuster is that it encourages the parties to work together, which results in better legislation. Taking them at their word, let’s think about how we could improve the filibuster, so that it accomplished this goal.
My first proposal, called “Put Up or Shut Up”, is designed to encourage the parties to reach compromise. It would change Senate rules to allow any legislation to pass with a simple majority unless a Senator moved to “refer it to a joint committee for settlement”. If the motion to refer is seconded, debate on the issue would be suspended and the issue referred to committee.
That committee, by default, would have three Senators from each party, and be chaired by the minority party. That committee would have one month, by default, to bring a solution back to the floor. Their proposal would need to pass out of committee by a majority vote, meaning that at least one member of the majority party would need to vote in favor of it. Their solution would stand for an up or down vote on the Senate floor, and could be passed on a simple majority. If it failed, the original bill would automatically go to a final debate, with one hour allocated for closing arguments, and a decision by a majority vote immediately following.
This would directly address the issue cited by Sen. Manchin, that the filibuster forces the sides to work together. The put-up-or-shut-up rule would force the sides to work together in the absence of the filibuster. If it is possible for the two parties to come up with a bill that satisfies a majority of the Senate, this process would prove it.
To make sure the minority had no legitimate objections, the joint committee would be chaired by a member of the minority. This puts the onus on the out party (in this case, the Republicans) to say how to solve the problem this legislation is supposed to address.
The size of the committee could be different, but three members from each side is small enough to work quickly on a problem, yet large enough to represent the interests of their peers. An equal number from the minority ensures both sides feel like they are equally represented in the solution.
One of the most frustrating things about the Republican Party is its refusal to propose a workable solution to any of the country’s major problems. Republicans demanded repeal of the Affordable Care Act, but they were completely unable to propose a fair, affordable, and universal replacement. They have yet to propose any workable solution to climate change. They haven’t proposed changes to police procedures to stop police treating communities like occupied territories. If they don’t want Democrats to take action it is their moral responsibility to propose workable alternative solutions.
The Republican Party is not a legitimate political party. They don’t have the good of the country at heart. Their entire purpose is to stop the government from taking effective action on critical issues. Democrats should only work with Republicans in Congress under narrowly defined rules that will keep them from obstructing the process, at least until the Republican Party shows an interest in working for the good of our country.
Focusing on the Important
Critical issues, like fair elections, have been stymied for years by Republican obstruction in the Senate. The filibuster blocked civil rights for decades. The way to break this barrier is to change the filibuster rule and allow a majority vote on critical legislation.
The Senate should adopt a new rule allowing it to label a bill as essential to address a critical issue: that is, an issue urgent and vital to the health or safety of the country. With this designation, all further debate on a bill would be curtailed, and a majority vote on that bill would quickly take place. The critical issue designation would require a simple majority in the Senate to apply, but under specific guidelines. The majority would have to find that the legislation is:
- Vital, in that failing to act would foreseeably result in a significant number of deaths,
- Vital, in that failing to act would foreseeably result in widespread and unrecoverable property damage, or
- Vital, in that failing to act would foreseeably result in irreparable harm to the government or the security of the nation.
Additionally, the Senate would have to find this issue is urgent enough that failing to act would result in any of these harms within the following year.
For example, action on climate change fits both criteria one and two. Action on healthcare fits both criteria one and two. And action on voting rights fits criterion three because it attacks the core of democracy.
Let’s take a closer look at these examples.
- Action on climate change is vital and urgent. A significant number of people are already killed by weather conditions outside the historical norms each year. Significant property damage is already occurring, such as flooding in Miami resulting from sea level rise. Since these effects are already happening, action is urgent.
- Single-payer healthcare is vital and urgent. Tens of millions of people have no healthcare coverage and millions more are under-covered. This is already resulting in loss of life.
- Election reform is vital and urgent. Republicans have already taken action in many states to suppress lawful votes. This has already caused irreparable harm to democracy, and therefore to the operation of our government. It is even more urgent because laws are pending in many states to curtail lawful voting and disenfranchise citizens.
What about minimum wage legislation? I don’t think this would qualify as critical. However, someone could argue that low wages result in unnecessary deaths, and so raising the minimum wage is vital to the health and safety of the American people. Still, raising the minimum wage is only one part of making life affordable for workers. Fair, affordable, and universal healthcare would lower costs for working families. Eliminating the trade deficit would raise wages. We should also alter the tax system to give people an exemption from personal income taxes up to the point they are making a living wage in their area. (For calculation of the living wage, see footnote in this section.) One or more of these issues that impact wages and jobs might qualify as critical issue legislation, and the minimum wage could be part of that package.
With the critical issues rule, the Senate would become functional again, taking timely action on critical national problems. This rule can be combined with the put-up-or-shut-up rule to give the minority more input into the process. But it is the minimum necessary for a functional Congress. Critical issues have been postponed indefinitely. Meanwhile, competitors like China are plotting to take over the world. Our Senators need to look up from their petty squabbles and get on with it.
This proposal fits within “more exceptions to the filibuster rule”, as presented by Vox, and also presented here in an earlier section as “Idea 2”.
MIT Living Wage Calculator
I always use the calculation for a single person with one child, because each person should be able to afford to have and raise a child. The cost of raising a child is roughly $1,000 per month in the U.S., according to the USDA.
Let Them Talk (Just Not Forever)
If you don’t like the put-up-or-shut-up rule, which refers controversial issues to a joint committee for a set time to hammer out a compromise, and you don’t like the critical issues rule, which allows the Senate to proceed on legislation to solve vital and urgent problems, then perhaps you will like this final proposal, which gives the opposition plenty of floor time to object to legislation.
This is the allocated floor time rule, which eliminates the cloture requirement in favor of allocating equal floor time to each Senator. If a Senator feels strongly about an issue, they can take to the floor and speak on the issue for as long as they like—within their allotted time.
Time would be allotted based on the available prime time when the Senate is going to be in session, according to the calendar. Typically, the Senate meets about half of the weeks of the year, give or take, that is 25 weeks. In each week, there are five working days, and I’ve arbitrarily designated the hours of 10:00 AM to 8:00 PM Eastern Time as prime time. That is, 50 hours per week times 25 weeks, or 1,250 hours, divided by 100 Senators or 12 and one-half hours apiece.
There’s some overhead to running the Senate, but we can probably allocate 10 hours of prime time to each Senator to have their say. Of course, they can schedule time outside those hours to speak to the cameras, so this isn’t everything. But, if, for example, Republicans seriously objected to an issue, then between them they could occupy 500 hours on the floor, railing against its adoption.
After that, the issue would come to a vote.
If the point is to give the minority time to convince the nation they are right on an issue, then an equal allocation of floor time will do this. It’s not quite a fair allocation, because Republicans represent far fewer voters than Democrats. That’s just an artifact of them occupying states with scattered populations. But within the structure of the Senate, this would give the minority at least a fair say in all matters.
This is the rule I think the Democratic leadership should start bargaining with. Majority Leader Chuck Schumer could use this for Democrats’ negotiating position, in case he can’t get all Democrats to agree to the put-up-or-shut-up rule or the critical issue rule. It guarantees the majority in the Senate can pass any legislation that it wants. It’s just that it must first hear out its opponents. This is eminently fair.
Please urge the Senate to adopt some kind of filibuster reform that will allow critical legislation, such as the voting rights legislation, to go forward. It is vital and urgent for our country.
Fix the Filibuster
Now that you’ve heard an enormous number of options for fixing the filibuster, how do we get the Senate to act?
The key to getting all Senators on board is to get their constituents to demand they fix the problem. Democratic leadership could help us do that by requiring each Democratic Senator to solicit input from their constituents on what they think is the best fix. This forces Senators like Joe Manchin and Kyrsten Sinema to face the problem. If these Senators don’t want to participate, the DNC could send a survey out directly to Democrats in all states to ask for their preferences, stating how important this is to the nation’s welfare, and urging constituents to contact their Senators to fix the problem.
Presuming all fifty Democratic Senators are willing to go forward with a solution, it is a straightforward matter to change Senate rules. The Constitution says:
Each House may determine the Rules of its Proceedings…
There is no supermajority set in this clause. A simple majority is the default, and that means a majority in the Senate can determine its rules for considering legislation. The Constitution does not set any limit on when the rules can be changed, so this change can be adopted at any time.
Also, any attempt to stop the Senate from adopting a rule for its proceedings by anything other than a majority is unconstitutional on the basis of this clause. That would prevent the Senate from determining the rules of its proceedings.
The Senate can adopt any new rule with a simple majority. In the case of a tie, the Vice President will cast the deciding vote.
Please urge the Senate to adopt some kind of filibuster reform that will allow critical legislation, such as voting rights legislation, to go forward. It is vital and urgent for our country.
If Congress does not pass legislation that preempts the Republican bills pending in the states that will further curtail legitimate voting, it is possible Democrats will lose control of Congress in the 2022 elections. Redistricting is particularly critical in this regard. So is voting by mail, which is much harder to suppress than in-person voting, where the state can manipulate the number of machines at each polling place to disenfranchise specific communities.
The objective of the Republican Party is easy to see. They want to confine voting to people who will vote for their party. If they could manage it, they’d only allow white male business owners to vote. Slowly, that would be restricted to white males sitting on the boards of major corporations.
The other future for America is a full democracy. That almost certainly requires Congress setting rules for federal voting that guarantee free and fair elections going forward. Passing that legislation almost certainly requires eliminating or significantly altering the cloture rule.
Let’s make sure we get a full democracy for the indefinite future.