After Senate Republicans Block Voting Rights Legislation, the Filibuster Is Back in the Crosshairs

President Joe Biden said on Thursday he would be open to doing away with the filibuster in pursuit of protecting Americans’ voting rights, bolstering voting rights’ advocates calls to abolish the controversial rule after Republicans blocked federal voting legislation from advancing for the third time this year.

Wednesday’s 49-51 Senate vote barred any debate from occurring on the Freedom to Vote Act, a bill that would have enacted automatic voter registration, guaranteed at least 15 consecutive days of early in-person voting and allowed for no-excuse mail voting in federal elections among other measures.

Numerous Democratic legislators and voting rights advocates, the vote reinforced their view that getting rid of or carving out an exception to the filibuster —the Senate rule that requires a supermajority of 60 votes to end debate on an issue —is the only path forward to pass federal legislation targeting voter suppression and gerrymandering. So far, this year 33 laws were passed by 19 statesThe Brennan Center for Justice says that this could make it more difficult for millions to vote.
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“It is absurd that we would allow some arcane rule—a rule that has historically been used to obstruct the advancement of civil rights—to preclude these critical measures from proceeding,” says Lisa Barrett, director of policy at the NAACP Legal Defense and Educational Fund.

Biden’s comments, made during a Thursday CNN town hall, were the strongest indication that the President has given that he may be supportive of the move. While the President has previously been vocal in his support for federal voting rights legislation, calling the rollbacks on voting access by Republican-held state legislatures the “most significant test of our democracy since the Civil War,” many civil rights groups have criticized him for not pressing harder to get rid of the filibuster to allow the legislation to move forward.

In speaking more broadly about Republicans threatening to use the filibuster to put the U.S. in danger of not paying its debts and using the procedure to block various proposals that Democrats support, Biden said, “I also think we’re going to have to move to the point where we fundamentally alter the filibuster.” Using the filibuster to not raise the debt ceiling is “the most bizarre thing I ever heard,” Biden said.

The filibuster is used much more now than it was in the past, and, Biden said, starting “immediately,” senators should have to actually speak on the Senate floor continuously—as they did decades ago—for a filibuster to be in effect. He did not lay out a specific plan on how the filibuster rule should be changed, and said it “remains to be seen” what that would entail.

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Republicans opposed any federal legislation regarding voting rights have been firm. Senate GOP legislators blocked an expanded version of Freedom to Vote Act twice before; current version was passed after Sen. Joe Manchin tried to contact Republicans and Democrats compromisedSome aspects of this bill.

Before Wednesday’s vote, Senate Minority Leader Mitch McConnell urged his party to fall in line with blocking the measure on the basis that the law impinged on states’ rights to run their own elections. “It is my hope and anticipation that none of us will vote for this latest iteration of Democratic efforts to take over how every American votes all over the country,” he said on Tuesday.

Vincent Hutchings, professor of political science and Afroamerican and African studies at the University of Michigan, says Democrats’ attempts to get Republicans onboard with voting rights legislation are counter-productive. The filibuster has been used before to shut down progress on key civil rights legislation, including anti-lynching legislation in the 1940s, he says, and Republicans have little incentive to expand voting access and “support legislation that will empower people who will not vote for them.”

Others also see Wednesday’s vote as evidence that compromise isn’t working. “This is further confirmation that paring down the bill isn’t going to make a difference,” says Nicholas Stephanopoulos, a professor at Harvard Law School who specializes in election law. “[Democrats] haven’t come close to getting the vote of a single Republican Senator—let alone 10 Republican senators—so we’re nowhere near anything like a 60-vote supermajority.”

Senate Majority Leader Chuck Schumer has previously said, when asked how far Democrats will go to push through voting rights legislation, that “everything is on the table.” But for now, getting rid of the filibuster may not be an option. Manchin, Kyrsten Sinema (Democratic Senator) have both stated that they do not support getting rid of either the filibuster and filibuster reform. Their votes are required to approve any such changes.

If Democrats can get Sinema or Manchin aboard, finding a way to circumvent the filibuster might be one option. It’s been done plenty of times before: since 1969, Congress has created at least 161 special procedures to prevent a filibuster on specific measures, according to rSearch esearchMolly Reynolds is a Brookings Institution Senior Fellow in Governance Studies. This article was published by Reynolds in 2017.

According to Stephen Spaulding (senior counsel for government affairs and public policy at Common Cause), Neil Gorsuch sits on the Supreme Court because Senate Republicans have carved out Supreme Court nominees from the filibuster rules. A non-profit advocacy organization that promotes democracy. Democrats did the same for President Barack Obama’s nominees were appointed to the D.C. circuit, he says.

“It’s not unprecedented at all. It’s now a choice to keep the filibuster in place rather than pass legislation that would project the freedom to vote,” Spaulding says.

For now, it’s possible—although not guaranteed—that Democrats may be trying out all other potential options before resorting to the tackling filibuster, says Rachael Cobb, an associate professor and the chair of political science and legal studies at Suffolk University.

Schumer said that he hopes to bring the John Lewis Voting Rights Advancement Act (also known as the John Lewis Voting Rights Advancement Act) is up for voting next week. This bill is intended to strengthen the weak landmark Voting Rights Act 1965. “Republican obstruction is not a cause for throwing in the towel,” Schumer said on the Senate floor on Wednesday.

In its efforts to counter voter suppression, restrictive voting laws and other forms of voter suppression that have been enacted in the United States this year and earlier this year the White House was focused primarily on voter education.

Barrett of NAACP LDF says that the idea that voting rights groups can out-organize voter suppression is “insulting, because it suggests that we’ll just accept that there are these blatant efforts to suppress the votes of certain populations in our country.”

“That really should not be the answer. The sustainable answer is the policy response,” Barrett says.

She is optimistic that legislators will still act on filibuster despite the failure of recent compromise and debate attempts. “People needed to see that even after a lot of negotiation and compromise, that what we’re really left with is obstruction.”