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Friday, March 26, 2021
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RSN: FOCUS: Senator Angus King | What Happens to the Filibuster Depends on How Republicans Play Their Hand
25 March 21
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FOCUS: Senator Angus King | What Happens to the Filibuster Depends on How Republicans Play Their Hand
Senator Angus King, The Washington Post
King writes: "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."
first came to the Senate eight years ago, at the beginning of President Barack Obama’s second term and when the Democrats were in the majority. At that time, I was anxious to reform or even eliminate the filibuster, the process whereby major legislation requires 60 votes rather than a simple majority to proceed toward passage. “It’s minority rule,” I said. “It enables obstruction.” “It’s not in the Constitution.” “Its historic use was to block civil rights legislation.” “It leads to gridlock and makes it impossible to get anything done.” In other words, I made all the arguments that people are hearing today.
But then a funny thing happened. I started to listen to several of my colleagues in the Democratic caucus who had been around a lot longer than I had and who had been in both the majority and the minority as the fortunes of the two parties waxed and waned over the years. Their warnings were stark and direct. They didn’t argue that the 60-vote threshold encouraged bipartisanship or some of the other high-minded justifications that we hear today; they simply made the point that what goes around, comes around; that the political makeup of the Senate would inevitably change (as it did two years after I arrived), and that today’s annoying obstructionism could be tomorrow’s priceless shield against policies we wouldn’t like or, more probably, in defense of policies we do like.
It is this fact that so many of my friends on the left seem to have forgotten or are willing to ignore in order to facilitate their agenda today. But the reality is that once the filibuster is gone, it will never come back. Why would a future majority ever impose such a limitation on its own power? And as succeeding Congresses swing dramatically between opposing ideological visions, so, too, would our laws. The Affordable Care Act could be eliminated or crippled, Medicare voucherized, social lifeline programs gutted or environmental protections compromised — only to have these policies reversed a few years later by a change in a handful of seats.
I found this cautionary warning reason enough to be careful about significantly changing the way the Senate functions, which elimination of the filibuster would entail. A double-edged sword, as my father used to say.
But.
But this argument is sustainable only if the extraordinary power of the 60-vote threshold is used sparingly on major issues or is used in a good-faith effort to leverage concessions rather than to simply obstruct. If, however, the minority hangs together and regularly uses this power to block any and all initiatives of the majority (and their president), supporting the continuation of the rule becomes harder and harder to justify, regardless of the long-term consequences.
I should mention that I believe 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. As new Georgia Sen. Raphael Warnock (D) noted on the floor recently, “It is a contradiction to say we must protect minority rights in the Senate, while refusing to protect minority rights in the society.”
As we enter this new Congress with a new president and a new Senate majority (barely), the question for me is how Mitch McConnell and his Republican colleagues will play their hand; if they are willing to work to find compromise and consensus on important initiatives (infrastructure, voting rights or immigration reform, for example), the importance of getting rid of the filibuster diminishes. If, on the other hand, they just say no, the necessity — and likelihood — of filibuster reform would only increase. That is to say, in large measure the outcome is in their hands.
Over to you, Mitch.
POLITICO NIGHTLY: Inside the room at Biden’s first presser
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RSN: FOCUS: Will Joe Manchin Save Voting Rights?
25 March 21
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FOCUS: Will Joe Manchin Save Voting Rights?
ALSO SEE: Manchin Says Any Overhaul of Voting Rights
Must Have GOP Support
Ed Kilgore, New York Magazine
Kilgore writes: "One of the avenues for filibuster reform that is especially relevant to the voting-rights emergency unfolding around the country (as Republican-controlled state legislatures restrict access to the ballot and prepare for another round of partisan gerrymandering) is a subject-matter exception for basic measures to protect democracy."
he Senate Rules and Administration Committee is holding a hearing today on S.1, the upper chamber’s version of the For the People Act, the sweeping voting-rights legislation already passed by the House on a near-party-line vote. There will be witnesses on both sides of the aisle and lots of thunder and lightning (both Chuck Schumer and Mitch McConnell will attend the hearing, which is rare). But it might be wise to pay particular attention to the testimony of West Virginia secretary of state Mac Warner, a Republican who predictably opposes the legislation. That’s because the lawmaker who likely holds the fate of S.1 in his hands is Warner’s senator, Joe Manchin, who happens to be the only Democratic senator who didn’t co-sponsor the legislation.
Manchin is also, of course, the key Democrat in the debate over the fate of the filibuster, which in its current form is an absolute bar to enactment of S.1 and nearly every other piece of Democratic-sponsored legislation that cannot be pushed through the Senate under the budget reconciliation rules. One of the avenues for filibuster reform that is especially relevant to the voting-rights emergency unfolding around the country (as Republican-controlled state legislatures restrict access to the ballot and prepare for another round of partisan gerrymandering) is a subject-matter exception for basic measures to protect democracy. So far Manchin has not expressed any support for such an exception, but he has not categorically ruled it out, either. Since Manchin is famously focused on his home state’s interests, it’s worth considering how S.1 is being received in West Virginia, aside from Warner’s testimony against it.
According to the Wall Street Journal, Manchin is getting an earful from state and local election officials back home:
West Virginia election officials are lobbying Democratic Sen. Joe Manchin to oppose his party’s voting-rights legislation, again underscoring his pivotal role as the Senate’s most prominent centrist …
On [a] call Monday, West Virginia election officials voiced concerns about the bill, according to three participants on the call. One of them was Jan Pest, the Democratic county clerk in Marshall County, W.Va. Among other concerns, Mrs. Pest criticized the bill for mandating same-day voter registration, which she worries would invite fraud. Studies have found that voter fraud has been rare.
Warner told the Rules Committee that S. 1 is “anything but ‘for the people.’” He complained that it “stomps on states’ rights,” and imposes unfunded mandates on election officials. He reflected the general Republican take that “federalization of elections” is unnecessary and probably unconstitutional.
It’s worth noting that West Virginia has relatively restrictive voting rules. Current law doesn’t allow for no-excuse voting by mail (though the state did allow anyone to vote by mail temporarily in 2020, under an existing “health” exception). West Virginia has voter ID requirements, and does not provide for same-day, much less automatic, voter registration. In-person early voting is allowed, but only for a relatively brief ten-day period. The state has undertaken arguably overzealous and discriminatory purges of voter rolls. Redistricting is conducted by the state legislature, not any independent authority. All these practices would be overturned by S.1. It seems unlikely that Manchin would go the whole hog on such legislation, much less treat it as worthy of an exception to a filibuster precedent that he generally supports.
It’s important to understand that S.1 isn’t some sort of seamless garment of voting-rights essentials. Election law expert Rick Hasen, a strong voting-rights proponent, has argued that some elements of the For the People Act, like mandatory ex-felon enfranchisement may be found unconstitutional, while others, particularly public financing of congressional elections, are a bit remote from voting and voter registration. A more limited version of S.1, perhaps combined with the John Lewis Voting Rights Advancement Act (aimed at restoring provisions of the Voting Rights Act of 1965 killed by the Supreme Court in 2013), would not be subject to judicial revocation or nearly as much legitimate controversy. Indeed, some complaints about S.1 that seemed to agitate Mac Warner at the Rules Committee hearing (like the inability to conduct electronic transmission of military ballots), could be taken care of with amendments without doing violence to the bill’s central thrust.
More immediately, a limited bill focused on voting-rights essentials might secure Manchin’s support, particularly if he could take credit for convincing other Democrats to favor a more modest approach. It’s doubtful, for example, that restoration of Voting Rights Act provisions would trouble election officials in West Virginia, since the state was never under the requirement for Justice Department “preclearance” of voting-rules changes that the Supreme Court neutered in Shelby County v. Holder.
The prime objective for Democrats this year is to stop the rapid rollback of voting rights by Republican state officials that could skew election outcomes even more in the GOP’s favor for years to come. Maybe the courts will stop some of these reactionary excesses, but federal preemption via legislation is the only expeditious remedial measure available, and that’s going to be impossible without Manchin and other Democrats who aren’t sold on killing the filibuster altogether. A more realistic package of voting-rights guarantees would be helpful, along with the compelling argument that letting Republicans get away with an assault on the franchise will likely extinguish the careers of the very red- and purple-state Democrats who are reluctant to “overreach.”
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