Democrats’ push to protect voting rights hit a Senate wall this week. Senate Democrats tried several times over the past year to advance House-passed measures intended to counteract voting restrictions enacted by 19 Republican-led state legislatures. Senate Republicans successfully filibustered every Democratic measure, including Wednesday night’s final attempt to bolster federal election laws.
Democrats added a twist on Wednesday night. After Senate GOP blocked the voting rights measure, the Democratic leadership threw a Hail Mary: They tried but failed to alter Senate rules to ban a filibuster of the voting rights measure. As expected, two Democrats, Sens. Joe Manchin III of West Virginia and Kyrsten Sinema of Arizona, voted with every Republican to tank Democrats’ parliamentary dodge.
Here’s what was going on behind the scenes.
Two pivotal votes took place on Wednesday night, neither of which Democrats expected to win.
First, the Senate voted on a so-called “cloture motion” that would end debate on the voting rights measure. With an evenly divided Senate and no Republicans willing to cross party lines to vote with the Democrats to end the GOP-led filibuster, the move failed.
It’s hard to observe filibusters these days. Instead of trying to wear down opponents using the classic Mr. Smith Goes to Washington “talking” filibuster, Senate leaders for decades have instead relied on the cloture rule to cut off Senate debate. That relieves both sides from having to keep debating for days, weeks or months.
But lacking the votes to end debate by invoking cloture, Democrats considered provoking Republicans into a talking filibuster. To block the bill, GOP senators would actually have to show up and talk the Democratic bill to death. Democrats also considered enforcing the Senate’s “two-speech” rule, which limits each senator to delivering two speeches on any given question on the same legislative day.
The hitch? Republicans could introduce amendments or motions, parliamentary moves that would create new questions on which each senator could then give two more speeches. This ploy would force Democrats to stay in the Capitol while the talking was underway. Otherwise, if Republicans were speaking long into the night, they could note the absence of a quorum, forcing Democrats to bring a majority back onto the floor to keep debate going. Rather than shifting the burden to the Republicans to make it harder on them to sustain the filibuster, Democrats would be the ones keeping watch all night. Given procedural uncertainty, Democrats couldn’t be sure in advance who would win.
The second pivotal vote Wednesday night came because the Democrats backed away from provoking a talking filibuster. Not every Democrat supported a permanent ban on the filibuster, so Schumer proposed that a simple majority create a special, one-time procedure for the voting rights bill that would allow it to pass by majority vote. If a majority of the Senate agreed to the new procedure, the only question before the Senate would be on whether to adopt the voting rights measure, precluding amendments, motions and parliamentary objections. Those steps would limit the 50 Senate Republicans to two speeches each on that single question. After no more than 100 GOP speeches, the Senate would vote the voting rights bill up or down.
To execute the plan, Democrats needed the support of every Democrat. With the vice president sitting by to break the 50-50 tie, a simple majority could thereby reinterpret Senate rules to ban a filibuster of this particular voting rights bill. But Democrats didn’t have 50 votes. Manchin and Sinema had already broadcast their refusals to impose reform by majority vote. And so, no surprise, Democrats were on the losing side of a 48-52 vote.
Losing the battle
Legislative leaders typically prefer to call for votes they expect to win. Why would Majority Leader Sen. Charles E. Schumer (D-N.Y.) call for votes that would put his party’s divisions on display?
First, elected Democrats almost universally support protecting voting rights — both because they believe in the policy and because it’s good for them at the ballot box. Even Manchin and Sinema supported the bill enough to vote for cloture — i.e., to get to a vote. What’s more, Democratic Party activists and constituents passionately back voting rights, and this base often has limited patience for reluctant leaders. All this motivated Democratic leaders to show their resolve.
Second, as political scientist Jonathan Bernstein observes, Sinema and Manchin openly embrace the filibuster, and have repeatedly announced that they do not think it should be reformed by a simple majority. And so they were quite happy to go on record as protecting it.
Winning the war?
Democrats lost the battle. But it’s not clear whether they’ve lost the war over taming the filibuster.
To be sure, the failure to carve out even one exception to the filibuster for voting rights makes plain that a majority of the Senate does not yet favor doing away with the legislative filibuster. That’s probably especially true for Republican moderates like Susan Collins of Maine or Lisa Murkowski of Alaska. Senators who are closest to the political center in recent years have disproportionately favored keeping the legislative filibuster, regardless of party.
But there’s reason to think that a future majority might yet support carving out exceptions to the filibuster or banning it altogether.
First, most moderate Democrats, even those who had previously opposed filibuster reform, voted for this week’s proposed exception — including Sens. Jon Tester (D-Mont.), Christopher A. Coons (D-Del.) and Mark Kelly (D-Ariz.). That’s likely because of the rise in what political scientist Steven Smith calls the “new radical Republicanism,” fostered by GOP leader Mitch McConnell (R-Ky.). Support for filibuster reform is likely to grow as the minority increasingly uses the filibuster to deadlock the Senate, rather than to build bipartisan compromise.
Second, each time a majority “goes nuclear,” as eliminating the filibuster by majority vote is known in D.C., it’s a little less politically costly for the next majority to follow suit. Since the Senate first created the cloture rule in 1917, when the Senate changes its rules, it has almost always been in the direction of reducing the procedural power of the minority and expanding majority parties’ power to pursue their agendas. This slow, Senate-style march toward majority rule sped up over the past decade as each party in turn voted to eliminate the filibuster for one thing or another — for example, confirming federal judges and Supreme Court justices, or most recently, raising Treasury’s borrowing limit.
Manchin and Sinema slammed the door shut to this effort, this time. But future majorities will likely soon try again.