By Jake Kaplan
As state legislatures across the country consider bills that would limit access to voting, the years-long debate over the filibuster takes center stage once again. This time, Senators are posed with a significant dilemma: preserve the filibuster or protect voting rights.
The filibuster is a process by which a Senator may delay or prevent a vote on a bill. This procedural hurdle requires bipartisan support in order for legislation to move forward since the only way to overcome a filibuster is to invoke cloture, which requires a vote by three-fifths of the Senate (or 60 votes out of the current total of 100 Senators).
The filibuster’s history is complicated. A form of the filibuster has existed in American government since Congress was established in 1789. For much of the 20th century, Southern Senators used the filibuster to block civil rights and voting protections for people of color. Both the longest individual and group filibusters, in 1957 and 1964 respectively, were implemented in opposition to civil rights legislation.
Now, since Democrats maintain a razor-thin Senate majority, Democratic leadership has renewed discussions over whether to abolish or modify the filibuster in order to carry out President Joe Biden’s political agenda — including voting rights legislation.
The House recently passed the For The People Act (aka H.R. 1), a sweeping voting process overhaul that requires early voting in every state, expands mail-in voting, and eases voter registration hurdles.
This legislation is seemingly in response to the various measures being considered by state legislatures across the country following former President Donald Trump’s baseless claims of widespread voter fraud during the 2020 presidential election. The Brennan Center recently found that state lawmakers have introduced 361 voting restriction bills in 47 states.
For example, Georgia passed SB 202, which, among other things, heightens voter ID requirements, limits the use of mail-in voting, and criminalizes providing food and water to voters waiting in line.
However, with the current filibuster rules in place, H.R. 1 would not survive in the Senate without the support of ten Republican Senators, which is unlikely. To combat this, some supporters of H.R. 1 argue that, at a minimum, a new filibuster carve-out should be created to enable the Senate to pass voting rights legislation by a simple majority.
Filibuster modification is not new. In the 1970s, the speaking requirement was removed from the filibuster, enabling a Senator to trigger a filibuster simply by announcing their objection to a bill. This process remains in effect today.
In 2013, Democrats created a filibuster carve-out for most presidential nominees. Republicans extended the carve-out to include Supreme Court nominees in 2017.
Another form of a filibuster carve-out is the reconciliation process. Once per year, the Senate may pass a bill on spending and/or taxes by a simple majority. Democrats used this process to pass The American Rescue Plan last month.
According to Stacey Abrams, “[If] Republican senators, representing a minority of Americans, attempt to thwart much-needed legislation to protect voting rights for all, Democrats should take bold action to protect our democracy. Exempting legislation from a Senate filibuster is not unprecedented…” and an “exception [to the filibuster rule], if necessary, should be made to protect our democracy.”
Similarly, Maine Senator Angus King recently wrote that “voting rights are a special case that we must address in light of the nakedly partisan voter-suppression legislation pending in many states.” “All-out opposition to reasonable voting rights protections cannot be enabled by the filibuster; if forced to choose between a Senate rule and democracy itself, I know where I will come down,” he continued.
Proponents of the filibuster argue that it encourages bipartisan compromise and ensures that the minority party has some say in shaping legislation.
Meanwhile, Republicans are voicing their opposition to H.R. 1. Former Vice President Mike Pence said that the bill is “unconstitutional, reckless, and anti-democratic.” Senator Lindsey Graham called the measure, “sick,” and said it is “the biggest power grab in the history of the country.”
Should Democrats abolish or modify the filibuster while they control the majority in the Senate? Does voting rights legislation warrant a filibuster carve-out?
Let us know what you think by writing to us at letters@cafe.com.
