Abolishing the Filibuster Is Not the Only Way to Pass Voting Rights Legislation

The Senate Republicans passed their fourth vote-rights bill this week for the third time ever since January, when Democrats gained control of the Senate. Even though earlier defeats did not generate enough support for filibuster legislation reform, there is evidence that things are changing.

President Biden, a longtime defender of the filibuster, suggested in a town hall last month that it might be time to “fundamentally alter the filibuster.” Previous filibuster defenders Senators Angus King and Jon Tester have come around to the necessity of filibuster reform. And, although we’ve heard nothing from pivotal Senator Joe Manchin this week, the logic of his public position on voting-rights legislation—both that it is badly needed, and that it should be achieved through bipartisan legislation—is rapidly eroding, as virtually all Senate Republicans increasingly show themselves opposed to Anylegislation to remove voting barriers. The John Lewis Voting Rights Advancement Act’s latest filibuster should be a wakeup call. It would reinstate important protections against discrimination in voting which have been eroded by the Supreme Court for the past decade.
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Reframe might prove useful for people who wish to see real legislation protecting voting rights, but don’t want to support absolute elimination of the filibuster. Passing the John Lewis Voting Rights Advancement Act or other democracy-enhancing legislation doesn’t require a wholesale elimination of the filibuster, or any fundamental change to the Senate’s rules or its character. Simply understanding the Senate voting system is necessary. Already an uneven patchwork.

Only 51 votes are required to pass budget bills through reconciliation. Confirmations—of executive-branch officials up to and including the Cabinet, and of federal judges up to and including justices of the Supreme Court—require only 51 votes. These are extraordinarily consequential aspects of the Senate’s work, and their existence and acceptance are fatal to the claim that today’s Senate is fundamentally a supermajority body. All the Senate needs to do is to create one additional exception—for democracy-enhancing legislation designed to protect and facilitate voting.

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Both the rule changes that permitted simple majority passage of budget reconciliation bills and confirmation of nominees were made in different ways and under different circumstances. Today’s reconciliation process is a creature of statute, the 1974 Congressional Budget and Impoundment Control Act, which was passed to create an orderly budget process, and in response to some of President Nixon’s abuses. After years of politically motivated responses to presidential nominations, the simple Senate vote procedures changed to allow for nominators to vote.

These two exceptions, though critical, are by no means the only exceptions to the Senate’s general supermajority voting rules. Since the 1970s, trade deals have been exempted from filibuster and ordinary amendment. The Congressional Review Act permits congressional approval of major regulations, without the possibility for filibuster. Each of these are unique. But each represents a normative judgment that the Senate’s supermajority voting rules are the default position, not an inviolable requirement, and that some circumstances warrant deviating from that default.

Normal times would have more than 60 votes to support what ought not be a partisan, completely uncontroversial group of propositions contained in the two most recent voting rights bills. These include that every eligible voter should be given a chance to vote; and that voters of color should not be subjected to voting restrictions. The Voting rights Act, which was last renewed in 2006, was passed unanimously by the Senate. It was then signed into law under President George W. Bush.

Learn MoreAmerican Democracy will be destroyed if the Filibuster is allowed to stand

Justice Elena Kagan’s dissent in July’s Brnovich v. DNC, in which the Court dramatically limited the force of the Voting Rights Act, described the Act as “a statute that stands as a monument to America’s greatness, and protects against its basest impulses.” If the Senate cannot pass bipartisan legislation to advance these principles under its current default voting rules, the majority of Senators who Do Support these fundamental precepts of democracy and change the rules so that voting reform can be approved by majority vote

This could be done by a simple majority vote that would allow an exception to the Senate’s current default 60-vote requirement in a narrow set of circumstances: where Congress acts to facilitate participation by eligible voters, and to eliminate barriers to voting. Congress can protect voter rights according to the 15th Amendment. This explicitly gives Congress the authority to enforce its ban on denial of or abridging voting on the grounds of race. The 14th Amendment also grants Congress broad powers to govern federal elections.

Learn MoreVoting Rights must be reclaimed.

Any voting-rights legislation may end up before a Supreme Court with hard to predict results. A Supreme Court decision that invalidates any federal voting rights legislation would, at best, restore the status-quo. In the future, a GOP-controlled Senate could use a rule change like this to justify additional Senate rule modifications or even abolishing the filibuster. However, this could still happen even if the Senate does not act to permit democracy reform to be passed by a majority.

As a matter of timing, it may well make sense to table additional efforts at voting legislation until President Biden’s infrastructure package finally passes. But when the Senate turns back to democracy reform, decision-makers should be clear-eyed about the framework in which they’re operating. The Senate’s voting procedures Already contain many exceptions; this proposal wouldn’t change the fundamental character of the Senate any more than previous rule changes. But this is a perilous moment for our nation, and a majority of Senators can meet that moment with a narrow fix that’s our best shot at preserving a meaningful democracy.


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