Image Courtesy of Tobias Higbie
Andrea Douglas, Queen’s University
Edited by Sandrine Jacquot
In order for the John Lewis Voting Rights Advancement Act (H.R. 4) to be passed, the U.S. Senate filibuster needs to be either abolished or reformed. The proposed legislation would help restore and strengthen elements of the old Voting Rights Act of 1965, some of which was struck down by two separate United States Supreme Court decisions: Shelby County v. Holder and Brnovich v. Democratic National Committee. It would ensure that every American, regardless of race, gender, colour or language, would have the right to vote. As it stands in the senate right now, the Republicans and Democrats each have 50 senators, with the potential tie breaking vote going to Vice-President Kamala Harris in her role as president of the senate. The issue is that in order for the new Voting Rights Act to be passed in the U.S. Senate, as it was in the House of Representatives on August 24, 2021, it must go through the filibuster (a Senate rule requiring ⅔ of senators to pass a bill). At the moment, no Republicans are indicating they will support the new voting rights legislation, along with two supposedly moderate democratic senators, Kyrsten Sinema of Arizona and Joe Manchin of West Virginia, also seemingly unwilling to reform the filibuster to pass the Act.
The problems the filibuster poses to American democracy are widely recognized. The filibuster is a Jim Crow era relic that is used, often by Republicans, to kill legislation that they disagree with. The number of cloture motions (a procedure of the Senate that can end debate on legislation, ultimately killing it) that have been filed rose dramatically during the 20th and 21st centuries. During the 101st congress, between 1989-1990, there were 38 cloture motions passed, with 11 motions being invoked. In the 116th congress, between 2019-2020, there were 328 cloture motions filed, with 270 being invoked. The stagnation in decision making of the United States Senate has become so prominent, and the politics are so polarized, that the chamber has built itself a reputation for being a ‘legislative graveyard’.
A policy to reform the filibuster would be beneficial to the United States democracy. Despite this fact, Manchin and Sinema remain dedicated to the idea of bipartisanship, a convention of the old senate that has been proven outdated in these recent, more politically polarized times. The filibuster is no longer a mechanism for ensuring compromise. Republicans are making it impossible to pass key legislation as part of President Joe Biden’s agenda, including H.R. 4 and the democratic hold outs – which, contrary to what they seem to believe, would actually have much to gain from passing the John Lewis Voting Rights Act. A policy to carve out the filibuster would benefit the Democrats ability to pass important voting rights legislation even beyond H.R. 4, such as the Freedom to Vote Act, the For the People Act, or H.R. 1.
According to new polling data, “69% of voters support the John R. Lewis Voting Rights Advancement Act, including 60% of independents and half of Republicans”. Using Joe Manchin’s West Virginia, a solidly red state, as an example, Republicans are currently out-registering Democrats. While this may seem unsettling to West Virginian Democrats, the gap is minor. There are currently 448,900 (36.8%) registered Republicans and 444,600 (36.5%) registered Democrats. There is also a large number of independents in that state, accounting for 275,000 (22.6%) voters. For Senator Manchin, a Democratic politician, carving out the filibuster to pass new voting rights legislation to counter the explosion of new voter suppression bills throughout the country, would be beneficial to his party and his chances of being reelected.
The Senate Minority Leader, Mitch McConnell, has expressed his dissatisfaction with proposals to amend the filibuster. Not only does the filibuster serve his purpose of killing any piece of legislation that may level the electoral playing field, it also saves him time from trying to pass legislation that wouldn’t receive the support of all 50 Republican senators. With the filibuster, Mitch McConnell can hide from his own Republican supporters who want highly unpopular pieces of legislation to be considered and passed. Most importantly, Senator McConnell knows, that should the Democrats reform the filibuster and pass the John Lewis Voting Rights Advancement Act, the Republicans would likely have a harder time winning elections to Congress and Presidency.
If Senators Manchin and Sinema could toe the party line and join their fellow Democrats, then their support along with that of Kamala Harris could create a new Senate precedent. The ‘nuclear option’ or ‘reform by ruling’ option can, in some circumstances, be used with only the support of a small majority of the Senate. This would mean that 51 senators could pass legislation rather than the filibuster’s requirement of 60 votes. The Senate filibuster can be reformed without requiring ⅔ of the chamber to agree to the reforms. H.R. 4 could be passed and the Democratic Party’s chances of winning the 2022 midterms and the 2024 general election would be greatly improved. If various states have restrictive voting laws that are allowed to remain in place, Democrats could lose both houses of Congress as well as the presidency – not because their support is too low, but because the Republicans have rigged the game of elections. Policy to reform the filibuster would restore the chamber to something that more closely resembles what the founders originally intended it to be. If Manchin and Sinema could just support a policy to reform the filibuster, it would greatly improve the fairness of the democratic process; it could prove to be the defining vote of their legacies.
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Cloture Motions. (n.d.). Retrieved November 27, 2021, from United States Senate: https://www.senate.gov/legislative/cloture/clotureCounts.htm
H.R.4 – Voting Rights Advancement Act of 2019. (n.d.). Retrieved November 27, 2021, from Congress.gov: https://www.congress.gov/bill/116th-congress/house-bill/4
Levy, R. A. (2017, March 20). The Filibuster: A Primer. Retrieved November 27, 2021, from CATO Institute: https://www.cato.org/blog/filibuster-primer
New Poll: Three in Five Voters Support the Freedom to Vote Act; Seven in Ten Support John Lewis Voting Rights Act. (2021, November 2). Retrieved November 27, 2021, from End Citizens United: https://endcitizensunited.org/latest-news/press-releases/new-poll-three-in-five-voters-support-the-freedom-to-vote-act-seven-in-ten-support-john-lewis-voting-rights-act/
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Sargent, G. (2021, March 18). Opinion: An intriguing reason that Republicans want to keep the filibuster. Retrieved November 27, 2021, from The Washington Post: https://www.washingtonpost.com/opinions/2021/03/18/why-republicans-want-to-keep-filibuster/
Waldman, M. (2021, November 2). A Crucial Boost for the John Lewis Voting Rights Advancement Act. Retrieved November 27, 2021, from Brennan Centre for Justice: https://www.brennancenter.org/our-work/analysis-opinion/crucial-boost-john-lewis-voting-rights-advancement-act
Waldman, M. (2021, January 26). Time to Deal with the Filibuster. Retrieved November 27, 2021, from Brennan Centre for Justice: https://www.brennancenter.org/our-work/analysis-opinion/time-deal-filibuster