Senate Majority Leader Chuck Schumer told Senate Democrats on Monday that he has a long list of things he wants to accomplish in the next two weeks: debt ceiling, defense authorization, nomination, and Build Back Better. Given that they haven’t achieved those things in the previous 11 months, well, good luck.
Schumer also added passing critical voting rights legislation, which is a must-have existentially for the nation and a goal that is wholly incompatible with the existence of the filibuster. He wants to pass that legislation and “restore the Senate” without nuking the filibuster. The filibuster allows the Senate minority to veto any piece of legislation from the majority other than budget reconciliation bills. It takes 60 votes for any other bill to move beyond introduction on the Senate floor, to even be debated. As of right now, that minority doesn’t even have to do anything to filibuster a bill and keep it from ever seeing the light of day.
“Even if it means going at it alone, we will continue to fight for voting rights and work to find an alternative path forward to defend the most fundamental liberty we have as citizens. To that end, a number of our colleagues—with my full support—have been discussing ideas for how to restore the Senate to protect our democracy,” Schumer said in a letter to colleagues in November. Sen. Angus King (I-ME) gave The New Republic some insight as to what that idea of “restoring the Senate” could mean, and what his colleagues are looking at.
“Right now, the filibuster is too easy. We ought to have a new word for it. It shouldn’t be the ‘filibuster,’ because it’s not what it was 50 years ago. It’s a de facto supermajority requirement, which the Framers expressly rejected,” King said. Some of the options he said the Democrats were looking at included “requiring senators to be present and talking on the Senate floor if they want to block a bill, or requiring the minority to muster 41 votes to block a bill instead of putting the onus on the majority to garner 60 votes to advance it.”
That’s got approval from the Fix Our Senate coalition, even though the group would rather see the filibuster entirely eliminated, spokesperson Eli Zupnick told The New Republic. “The bottom line is that there are bills that need to pass. Most critically, right now, is the voting rights and anti-partisan gerrymandering legislation, the Freedom to Vote Act. And whenever it moves us in that direction, and takes steps to fix the broken Senate, is a good thing.”
There actually is some reason for optimism, though Schumer’s timeline might not be doable, just because there is so much monumental stuff to get done and a Republican Senate minority intent upon filling up every last minute of the next few weeks with nonsense so they can’t. But a core group of Democrats have been regularly meeting with Schumer to figure out a path forward, specifically on the voting rights bill. Last Wednesday, Schumer had one of those meetings, and the senators coming out of it were cautiously optimistic.
Sen. Jon Tester, a Montana Democrat, said, “I don’t think you’re going to see this by the end of the year. There’s just too much stuff on the docket,” but he sees real progress. “I think this is kind of like making a stew, it’s got to simmer for a bit.” Another attendee, Sen. Tim Kaine, told The New Republic “We have to unify around a proposal that we can all agree to, but I think we’re making good progress on that.” The focus of the group was the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act and Kaine said Manchin and Sinema—along with every senator who caucuses with the Democrats—are included in these discussions.
“We all have thoughts about what are rules reforms that we think will be good for the operation of the Senate. And you have to kind of one-on-one talk to people about that,” Kaine said. “You have to look at reforms you think would work, whether we’re in the majority or the minority; they have to be fair to all sides.” Giving the majority the ability to set the agenda is fair is more than fair, especially if Republicans retake the Senate (when they would most likely nuke the filibuster, anyway) because Republicans represent a minority of voters and a minority of the population. At any rate, passing the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act before the 2022 elections would give Democrats at least a fighting change to keep their majorities in Congress.
It looks as though it might actually be happening. “What we’re hearing from allies in the Senate is very encouraging: that there’s a lot of energy behind the idea that something needs to happen on voting rights,” Zupnick told The New Republic. “That it would be catastrophic for Democrats to close out the year without doing something to protect the right to vote in 2022, to prevent partisan gerrymandering that would break the House for a decade.”
The Freedom to Vote Act is the variation on the For the People Act already passed in the House that was negotiated primary by Manchin, who opposed For the People. Despite the fact that it’s Manchin’s, it’s a very good bill, probably because most of the work on it was done by Sens. Amy Klobucher (Minnesota), Jeff Merkley (Oregon), Raphael Warnock (Georgia), Alex Padilla (California), Jon Tester (Montana), Tim Kaine (Virginia), and Independent Sen. Angus King (Maine). It’s a solid piece of voting rights legislation that hits all the key points, addressing voter access and election administration, election integrity, and “civic participation and empowerment.”
Republicans blocked it when Schumer brought it to the floor in October. Just like they blocked the John Lewis Voting Rights Advancement Act from proceeding to the floor for debate, 50-49. Alaska Republican Lisa Murkowski was the only Republican willing to join Democrats.
That bill would restore the federal government’s ability to prohibit and prevent voting discrimination, which was lost when the Supreme Court gutted much of the 1965 Voting Rights Act (VRA) in 2013 with the Shelby County v. Holder decision, then finished the job this year in Brnovich v. Democratic National Committee. In Shelby, the Supreme Court struck down the requirement in the VRA that states and local jurisdictions with a history of racial discrimination in voting had to have any change to voting or elections law preapproved by the Justice Department. The bill would also restore and strengthen protections abolished by the court in Brnovich, allowing courts to block voting laws on their discriminatory effect rather than intent, a harder threshold to prove.
A coalition of more than 200 groups told the Senate last week that passing those bills is a much bigger priority than Christmas recess. “The most important step that Congress can take to protect the array of issues our organizations advocate for is to pass these vitally important voting rights bills in order to ensure that all Americans’ voices are heard in our democracy,” the groups including members of the Declaration for American Democracy coalition and the Leadership Conference on Civil and Human Rights wrote, saying that the holiday recess “should be delayed if the bills are not passed.”
“This legislation must be a top priority on the remaining agenda for the year, and we urge you to stay in session to do whatever it takes until these bills are passed because inaction is not an option,” the advocates wrote in their letter.