Here's Chuck Schumer's Tricksy Plan To Jump Start Debate On Voting Rights
Senate Majority Leader Chuck Schumer (D-New York) will use a very tricksy bit of congressional rules magic to get around the filibuster so Democrats can bring the debate on voting rights to the floor of the Senate today or tomorrow. The procedural trick, which we'll explain in a moment, will prevent Republicans from filibustering the start of debate on the legislation, but as with all rules magic, there's a catch. While the gambit will get the legislation debated, it will still need to either get 60 votes to end debate and move to a vote, or, as Schumer has already promised, there will have to be a successful vote to modify Senate filibuster rules so voting rights can be passed with a simple majority, meaning all 50 Senate Democrats plus VP Kamala Harris.
At the moment, Schumer knows that all 50 Senate Dems support the voting rights legislation. But there's no sign that Sens. Joe Manchin (D-West Virginia) or Kyrsten Sinema (D-Arizona) are willing to vote to modify the filibuster rule, even if it were to apply only to voting rights. Maybe they can be persuaded yet, particularly if the vote on changing the rules comes at the end of actual debate over the need to keep Republican states from eviscerating the right to vote. The voting rights bill may dress up as an adorable little bunny rabbit with great big eyes looking right at the two holdout senators and begging them not to let it die.
Or if you prefer another analogy, on MSNBC last night, Sen. Elizabeth Warren (D-Massachusetts) told anchor Chris Hayes that the process was a bit like launching an airplane and hoping you can get some landing gear constructed to bring it in to a safe landing.
Let's back up a little and briefly explainer the process Schumer's pulled out of his hat to get the legislation onto the Senate floor and headed for that vote. (We suspect perhaps he's using the procedural trick at least least partly in honor of the late Harry Reid, too, a master of Senate rules games.) The process involves a thingy called "messages between the Houses," as Democracy Docket explained yesterday in a Twitter thread.
Basically, the House and Senate often send different versions of the same bill back and forth to each other, to reconcile the versions into identical legislation that can be voted on. Once a bill has ping-ponged between the two houses three times, the motion to proceed to debate can no longer be blocked in the Senate — it can be debated without being filibustered.
That's where the Democrats' voting rights bills have been knocked down by Senate Republicans, who have now voted four times to block debate on any voting rights measure.
Now, here's the other tricksy part: To get the debate on the floor, House Dems will take a completely unrelated bill that's already gone between the houses three times — in this case, it's HR 5746, a bill covering NASA's ability to lease "underutilized" property to private enterprise — strip out all the text, and then swap in the text of the two voting rights bills the House has already passed, so they can be debated in the Senate as a single piece of legislation. Then the bill goes to the Senate, where Schumer will bring it to the floor for debate, bypassing the need for a vote on debating it.
We think somehow the process may also depend on a purple unicorn in flowing wizard robes blessing the legislation, but we may be confusing that with this weird dream we had.
So now the Senate will debate a bill combining
1) the Freedom to Vote Act, which would fight back against voter suppression by setting basic standards for federal elections, like three weeks of early voting, automatic voter registration, making Election Day a holiday, and making sure voting by mail is easy and accessible to all. It would also ban gerrymandering of congressional districts, and, for states that require voter ID, make sure those forms of identification are easily obtainable, including student photo IDs, for instance. (And if someone doesn't have an ID, they can still cast a ballot with an affidavit attesting to their identity.) It would also restore former felons' voting rights, set basic campaign finance standards, and prevent state legislatures from fucking around with elections boards or overturning the vote.
2) The John Lewis Voting Rights Advancement Act, which would restore parts of the original VRA that the Supreme Court struck down in 2013. In particular, it would restore the process of requiring Justice Department "pre-clearance" for changes to voting laws and procedures in states that have a history of discrimination against minority voters. Details on how that would work here.
The debate is likely to start today, tomorrow at the latest, depending on when the House finishes its part of the action. During the debate, Senate Republicans won't be able to shut things down, but they can do all the debatey stuff you'd expect in any floor debate, like speechifying and adding amendments. Republican senators no doubt will have all sorts of ideas to improve the bill, like only allowing NRA members in good standing to vote, or prohibiting drivers of electric or hybrid cars from parking within three miles of a polling place.
The scary part will come when it's time to wrap up debate, because as we say, the tricksy stuff only gets the voting rights legislation to the floor of the Senate. To actually pass and send it to President Joe Biden, Schumer will need a vote to end debate, and that vote would be subject to the filibuster. And as they made abundantly and goofily clear in speeches yesterday, there's no way 10 Senate Rs will agree to end the filibuster while there's a Democrat in the Oval Office.
WOULD YOU LIKE TO KNOW MORE?Republicans Remind Us What A Friend We Have In The Filibuster
Once Republicans block bringing debate to a close so the bill can be voted on, Schumer will move forward a change to Senate rules allowing debate to end with a simple majority — i.e., a modification of the filibuster. It's not clear what form that will take yet; Politico sums up the options:
Senate Democrats are weighing several potential changes, including reinstating a talking filibuster, creating a “carve-out” that would allow the elections and voting legislation to pass by a simple majority and allowing the Senate to begin debate on a bill by a simple majority vote. They need all 50 Democrats on board to unilaterally weaken the filibuster.
Politico reports that one unnamed senator who's "familiar with the discussions" said that it's possible there might be votes on both ideas, which would be just fine as long as one or the other passes.
Sen. Martin Heinrich (D-New Mexico) told Politico yesterday that
current negotiations “are in flux” but that he supports a talking filibuster.
“If you look at every other democracy in the world there are measures for the minority party to be able to slow things, but they don't get a veto. So eventually they get a vote,” he said. “I think that’s key: that you have a path for a majority to enact policies to get to a majority vote.”
Whether either idea will win the support of Manchin and Sinema remains to be seen, but it's just possible that after a couple days of debate — complete with very obvious Republican obstructionism to the very idea of expanding voting rights — they may decide that the threat to democracy really is serious enough that the filibuster should be modified. At the very least, the debate should make clear that the filibuster itself, as currently used by Republicans, isn't the engine of bipartisan comity both keep insisting it is.
And how could they let that poor little big-eyed bunny rabbit get strangled by Mitch McConnell?
[Politico / Democracy Docket on Twitter / NYT / Brennan Center for Justice / Photo: Edward Kimmel, Photo: Edward Kimmel, Creative Commons License 2.0]
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