REFORM THE FILIBUSTER
THE FILIBUSTER
JAY R. MANDLE
The lengths to which Donald Trump and many of his followers would go to gut the electoral process was revealed on January 6th. But though insurrection was turned back, the country’s system of fair elections remains under siege. According to the Brennan Center’s estimate, over 250 voter suppression bills have been submitted in 43 state legislatures to achieve what insurrectionists sought – a political system in which office-holding does not reflect voter preferences.
Illustrative is a bill recently passed by the Iowa legislature that reduces the time for early voting, prevents counting mail-in ballots that are postmarked before but arrive after election day, limits drop boxes, cuts polling place hours on election day, and strips county officials of their ability to encourage mail-in ballots. The claim that these efforts are needed to ensure the integrity of the voting process is plainly false. As political scientist Douglas R. Hess writes, there are “mountains of evidence that fraud by voters is extremely rare.” The real motivation behind efforts such as those in Iowa is more sinister. Their objective was summarized when Arizona Republican state legislator, John Kavanagh, told CNN “Republicans are more concerned about fraud, so we don’t mind putting security measures in that won’t let everybody vote…but everybody shouldn’t be voting.”
The fact is that the Republican opponents of democracy have well chosen the vote as their target. For increased voter turnout made an important contribution to Joe Biden’s victory. National voter turnout in 2020 was high: 62.0 percent in that year compared to 55.4 percent in 2016, an increase of 6.6 percentage points. Voting increased even more in the battleground states that ensured Biden’s success. Turnout increased by 9.1 percentage points in Arizona, 8.0 in Michigan, 7.4 in Georgia, and 7.2 in Pennsylvania. Among the hotly contested states that flipped to Biden, only Wisconsin’s 6.0 percentage point increase in voters who went to the polls was lower than the national gain. In short, Republicans are attempting to disenfranchise American voters in order to win elections.
Legislation passed by the House of Representatives, and soon to be taken up by the Senate, would effectively thwart state level efforts to limit voting. If passed into law, the “For the People Act,” (HR 1 /S 1) would require all states to create automatic voter registration, restore voting rights to felons who complete their sentences, expand early voting, simplify voting by mail, and implement a voluntary public funding system for Congressional candidates. As of this writing however, it seems likely that S1 will fall victim to a Senate filibuster. The sixty votes needed to end debate and bring the bill to a vote almost certainly will not be forthcoming in the closely divided Senate.
The filibuster is a procedural rule that was created by the Senate and is used to allow individual senators to block voting on bills. A super-majority of 60 votes is required to interrupt a filibuster in order to permit a vote. However, all is not lost. It takes only 50 votes to change the filibuster rule itself. For example, a rule could be adopted concerning a specific piece of legislation that would exempt it from the filibuster threat. Senator Democrats are now debating how to advance voting rights, while at the same time securing enough support to secure a filibuster exemption.
There are two such possibilities. The Senate could vote to change the 60 vote requirement for all or a specific part of “For The People Act.” And it could also eliminate the filibuster for a different bill, in this case the “John Lewis Voting Rights Advancement Act.” This is legislation that was passed in the House of Representatives in 2019, but not debated in the Senate. It would overcome the 2013 Supreme Court decision (Shelby v Holder) that information used by the Justice Department was too dated for the Court to disallow discriminatory election rule changes by southern states.
It is important to appreciate that the very fabric of the American electoral system is at issue. The high 2020 turnout was a repudiation of Trump’s subversion of democratic norms. But removing him from office did not mark the end of the threat the country faces. The fact that very few Congressional Republicans can bring themselves to repudiate January 6th makes that clear. So too do all the attempts to suppress the vote, now occurring at the state and local level.
Seen in this light, defenders of the filibuster are accomplices in the efforts to weaken the right to vote. The filibuster as a tool has to be dismantled, even if only partially, to prevent that basic right from being seriously eroded.