Will they get rid of the filibuster if it means passing their voting-rights and election-reform agenda?
by Ronald Brownstein
No decision facing Democrats over the next two years will shape the long-term political competition between the parties more than whether they end the Senate filibuster to pass their agenda to reform elections and expand access to the vote.
The party’s immediate political fate in the 2022 and 2024 elections is likely to turn mostly on whether Joe Biden can successfully control the coronavirus outbreak—restarting the economy and returning a sense of normalcy to daily life. But the contours of American politics just over that horizon, through 2030 and beyond, will be determined even more by whether Democrats can establish new national standards for the conduct of elections through a revised Voting Rights Act and sweeping legislation known as H.R. 1, which would set nationwide voting rules, limit “dark money” campaign spending, and ban gerrymandering of congressional districts. With both bills virtually guaranteed to pass the House, as they did in the last Congress, their fate will likely turn on whether Senate Democrats are willing to end the filibuster to approve them over Republican opposition on a simple-majority vote.
That decision carries enormous consequences for the future balance of power between the parties: The number of younger and diverse voters participating in future elections will likely be much greater if these laws pass than if they don’t, especially with state-level Republicans already pushing a new round of laws making it tougher to vote based on Donald Trump’s discredited claims of election fraud in 2020. Given those stakes, the Democrats’ voting-rights agenda is quickly becoming a focal point of the pressure from left-leaning activists to end the filibuster. “Our grass roots will not accept the notion that we had good intentions, but we just failed” to pass these laws, Senator Jeff Merkley of Oregon, a Democrat who is the lead sponsor of the Senate companion to H.R. 1, told me.
These grassroots activists, who spurred the enormous turnout that propelled Democrats to unified control of Congress and the White House, are sending the same unambiguous message: Allowing GOP filibusters to kill the Democrats’ democracy-expansion agenda not only threatens to demobilize the party’s electoral base in upcoming elections, but also virtually ensures that Republican-leaning states will continue to erect barriers that dilute the long-term influence of the diverse younger generations now entering the electorate in large numbers.
The consequences will be “enormously catastrophic” if Democrats allow the next two years of unified control in Washington to expire without passing this part of their agenda, says Nsé Ufot, the chief executive officer of the New Georgia Project, a Stacey Abrams–founded group that helped power the Democratic victories in Georgia earlier this month that gave the party the Senate majority. Protecting the right to vote “is the antecedent civil right that we need to … shore up if we are going to have a fighting chance to win and defend any of the other rights that are important to the progressive activist wing of the Democratic Party,” Ufot told me.
Between them, the new VRA and H.R. 1 would create comprehensive new rules for federal elections. The new VRA is a direct response to the Supreme Court’s 2013 Shelby County decision, which invalidated the original VRA’s central pillar: the requirement that states with a history of discrimination in voting receive “preclearance” from the Justice Department to make changes to their election laws that could disenfranchise minority voters.
That decision, backed by the Court’s five GOP-appointed justices over the opposition of the four Democratic appointees, functioned like a starting gun for the construction of new barriers to voting in Republican-controlled states. Following the party’s big gains in the 2010 election, red states had already begun advancing laws making it more difficult to vote, but after Shelby County that effort significantly intensified. In December 2019, every House Democrat voted to approve a new VRA that would restore the preclearance requirement and establish a new system for determining which states would be subject to it. (All but one House Republican opposed the bill.) But the legislation died when Mitch McConnell, then the Senate majority leader, refused to consider it.
If anything, the election-reform legislation that Democrats have introduced in both chambers—H.R. 1 and its Senate companion, S. 1—is even more ambitious. The bill, in fact, “may be more sweeping” than the original VRA, passed in 1965, Paul Smith, the vice president for litigation and strategy at the nonpartisan Campaign Legal Center, told me. For federal elections, it would require every state to do the following: provide online, automatic, and same-day registration; ensure at least 15 days of in-person early voting; provide all voters access to no-excuse, postage-free absentee balloting; and offer drop boxes where they can return those ballots. It would also end gerrymandering by requiring every state to create independent commissions to draw congressional districts; establish a system of public financing for congressional elections; institute new safeguards against foreign interference in elections; and require increased disclosure of the unlimited dark-money campaign spending that was unleashed by the Supreme Court’s 2010 Citizens United ruling, which like Shelby County was backed by the Court’s conservative majority. (It also endorses statehood for Washington, D.C., though a separate bill, which also passed the House in 2020, is required to actually implement that.)
In all, the legislation is, as Joe Biden once said to Barack Obama about the Affordable Care Act, a “big fucking deal.” Under current Senate rules, it is also doomed.
No House Democrat opposed H.R. 1 when it passed in 2019, and its sponsors are confident it’ll clear the House again, probably no later than early March. In the Senate, every Democrat co-sponsored the bill when it was first introduced in the last session, and Merkley told me he expects they all will sign on again. That means it will have at least 50 votes, enough for a majority with a tie-breaking vote from Vice President Kamala Harris.
But the legislation is certain to face a Republican filibuster. McConnell has excoriated it as “a radical half-baked socialist proposal” and an improper federal overreach into state prerogatives. Because McConnell has always been sensitive about being seen as racially biased, some Democrats think he might be hesitant to filibuster a new VRA, stepping into the shoes of Southern segregationists like Senators Strom Thurmond and Richard Russell. (Ten Republicans might support the law even if he does, giving it enough votes to overcome any blockade.) But there’s little doubt McConnell and almost all Republicans would be more than comfortable filibustering the democracy-reform bill. “H.R. 1 is going to require an end of the filibuster,” Smith told me. “There is no way 10 Republicans are going to vote for [it].”
That means the fate of the democracy-reform legislation, and perhaps also the VRA if Republicans try to block that too, depends on whether Senate Democrats are willing to end the filibuster to pass it. That’s true of a lot of things Biden and the party want to do, from immigration reform to new gun-control measures. But the electoral consequences of passing their election agenda may be greater than that of any other issue on their plate.
Three big factors are converging to raise the stakes for Democrats’ decisionmaking on voting rights. The first is that the astonishingly large number of Republicans who supported Trump’s attempts to overturn the November election signals that GOP tolerance for anti-democratic measures is growing, and likely to increase in the years ahead. Already, legislators in an array of competitive states are employing Trump’s discredited claims of voter fraud to justify a new round of voting restrictions. In Georgia, Texas, Pennsylvania, Michigan, and Wisconsin, for example, Republican officials want to roll back on-demand mail balloting; eliminate ballot drop-boxes; and/or impose tighter voter-identification laws. One hundred and six bills to restrict voting access have been introduced this year in 28 states, the Brennan Center for Justice, which advocates for voting rights, reported this week.
The Republican campaign to block access to the vote “will probably get to a level that we haven’t seen since the 1960s, at least in some states,” Smith, who also teaches at Georgetown Law School, told me. Widespread Republican support for Trump’s efforts to subvert the election shows that “there has been this kind of validation of the idea [in the GOP] that we should win no matter what, and … that loops around and justifies more anti-democratic measures and voter suppression,” Smith said.
The second factor raising the stakes is the new 6-3 Republican majority on the Supreme Court. While Chief Justice John Roberts has displayed independence on some issues—with an eye toward protecting the Court’s public reputation—he has voted almost uniformly with the GOP’s preferences on questions related to the fundamental rules of elections (including Citizens United, Shelby County, and cases involving gerrymandering and voter purges). That’s convinced almost all election-reform advocates I’ve spoken to that the Supreme Court won’t stand in the way of a new red-state offensive to restrict voter access; some recent opinions suggest the Court’s Republican appointees might even try to block state Supreme Courts from resisting restrictive voter laws or extreme gerrymanders. “Courts are not the Democrats’ friend on voting rights,” Lee Drutman, a senior fellow at the centrist New America think tank, told me.
Each of those dynamics are compounded by a third factor: the changing nature of the electorate—and of the Democratic coalition. Non-white and younger voters, the groups typically most disadvantaged by barriers to voting, will only become more important to Democrats in future elections. By 2024, Millennials and Generation Z, the two most racially diverse generations in American history, will significantly exceed the preponderantly white baby-boomer and older generations as a share of eligible voters, according to projections by the nonpartisan States of Change Project.
If Democrats don’t establish national standards for ballot access, the political influence of those diverse younger generations could be suppressed for years by restrictive state voting laws. That’s especially possible in states like Texas, Georgia, North Carolina, Arizona, and South Carolina. There, Republicans still maintain an advantage based on big margins among older and non-urban white voters, but they’re watching growing diversity in younger generations shave their edge.
For all these reasons, many experts in voting and elections believe the choices Democrats make on their democracy and voting-reform agenda represents a fundamental crossroads in American politics. Passage of these laws wouldn’t guarantee a sustained period of Democratic political dominance: In both 2016 and 2020, Trump’s incredible mobilization of infrequent white voters demonstrated that Republicans could compete in a high-turnout environment. But failing to pass the laws might ensure the reverse: a lasting Democratic disadvantage. The absence of national election standards would further entrench the current system, which has allowed Republicans to frequently control Congress, the White House, or both during the past three decades, even though Democrats have won the popular vote in seven of the past eight presidential elections.
If the Democrats don’t pass H.R. 1 and the new VRA, “there is a very good chance that America will wind up under an extended period of minority rule in which the party that represents 45-46 percent of the country can have a majority of power in Washington,” Drutman told me. “Which is not only fundamentally unfair, but it contravenes any set of democratic values and creates a sense of fundamental illegitimacy [that] is deeply destabilizing for a democracy.”
Merkley, the principal sponsor of the Senate companion bill, is no less emphatic. Especially with Trump’s efforts to subvert the election, the American vision of representative government has “slid over the cliff, and [it’s as if] we caught a root, and we are just holding on by our fingertips,” he told me. “We must find a way to pass this bill. It is our responsibility in our majority … to defend citizens’ rights to participate in our democracy. There is no other acceptable outcome.”
Still, passing the bill, and perhaps the new VRA, will almost certainly require every Senate Democrat agreeing to end the filibuster in some fashion—and at least two of them, West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema, have been adamantly opposed to that action. Merkley’s strategy for convincing Democrats to reconsider—at least for the democracy-reform legislation—is to encourage an extended debate on the bill, both on the committee and on the Senate floor, and to allow any senator to offer amendments. If Republicans still block final passage with a filibuster after that process, Democrats could either vote to “carve out” election-reform legislation from the filibuster, or require Republicans blocking the bill to actually filibuster in person, he told me. Democrats could change the rules to tell Republicans “you better be here day and night, because we are going to go for weeks and if you are not here, we are going to a final vote on the bill.”
Whatever mechanism Democrats employ, it’s clear the voter-mobilization groups that worked to produce their unified control are prepared to erupt if the party allows procedural constraints to block passage of H.R. 1 and the VRA. Ufot told me that when Biden and Vice President Kamala Harris campaigned in Georgia just before the twin run-off elections, they promised big change if the state’s voters gave them the Senate majority. They didn’t add an asterisk that change would only be possible if McConnell somehow chooses not to filibuster their agenda. “The filibuster never made it into any of Chuck Schumer’s campaign ads, the filibuster was not a part of President Biden’s stump speeches, or Vice President Harris’s when she was down in Savannah,” Ufot told me. “Their campaign rhetoric was on full blast, on 10, about why we needed to send them to Washington, D.C., to work on a progressive agenda.”
Saying “we can’t make progress on that agenda because of existing rules that they have the ability to change will ring like a hollow argument and it won’t bode well for this coalition,” Ufot added.
The last four times a president went into a midterm election with unified control of Congress, voters revoked it. That past isn’t necessarily prologue, but it does suggest that if Democrats don’t establish a national floor for voting access in the next two years, they might not have another opportunity to do so anytime soon.
Even if Democrats pass these laws, the Roberts-led Court could strike down portions of either H.R. 1 or a new VRA (though legal analysts I’ve spoken to doubt they would invalidate either measure entirely). A few years down the road, that might trigger another crisis over the Supreme Court’s partisan tilt. What’s clear now is that allowing a filibuster to kill these sweeping bills would precipitate a crisis in the Democratic coalition today—and also guarantee years of grinding state-by-state warfare over the right to vote and aggressive gerrymanders. If Democrats unilaterally surrender their current leverage, the consequences not only for the partisan competition, but the underlying health of American democracy itself, could reverberate for decades.
Ronald Brownstein is a senior editor at The Atlantic.