The House stayed in session late Wednesday to wrap up a critical week of work: passing H.R. 1, the sweeping voting and democracy reforms, and an expansive overhaul of American policing, the George Floyd Justice in Policing Act. The House was shuttered Thursday, a result of the threat of violence against the Capitol bubbling up from those forces that, in part, make the legislation necessary: those with fascist and white supremacist instincts to impose their will over the majority, and particularly citizens of color, by keeping them out of the polls and under constant threat from law enforcement.
Each bill would restart the crucial work of racial justice, providing real and transformative changes to federal elections by ensuring equal access to the voting booth and federal representation, and in policing by creating national standards for law enforcement and constraints on the use of force, including the kind of force police used in killing George Floyd and Breonna Taylor. Each bill faces the ridiculous hurdle of a Democratic majority in the Senate that could fail to pass them because of what former President Barack Obama calls a “Jim Crow relic,” the filibuster.
There’s a depressingly long history of the use of the filibuster to stop civil rights, voting rights, immigrant rights and—since the ascendancy of Mitch McConnell to Republican leadership—any and all progressive priorities that majorities of Americans support (which doesn’t need to be rehashed here). But the passage of these two laws comes at what could be a breaking point for the nation, and the convergence of the House work happening in the midst of another serious threat to the heart of democracy—we have to carry that history to this moment. The Senate, and specifically the eight Democratic senators who say they are opposed to abolishing the filibuster, have to reckon with it. They have to reckon with that and the fact that right now, 43 state legislatures have more than 250 new and proposed laws to restrict voting, which could mean the end of Democrats winning congressional majorities again for the foreseeable future.
That’s not going to be corrected unless the Senate passes these bills. That’s not going to happen unless those eight senators, but particularly Joe Manchin and Kyrsten Sinema, who have gone out of their way in vocal opposition to getting rid of the filibuster—relent. To that end, good government scholar Norm Ornstein has some ideas. He recommends taking Sinema’s and Manchin’s views at face value, that they want to preserve the rights of the minority and that they want to preserve the filibuster to “fully consider, debate, and reach compromise on legislative issues that will affect all Americans,” in Sinema’s words, and enacting reforms that would force that—debate and consideration. Do it by making the minority do the work, for once, of having that debate.
As it stands, 60 senators have to agree in order to get everything done, meaning a minority of 40 can stop everything just by having one senator object to moving forward on a bill and forcing a cloture vote. Turn that on its head and put the burden on the 40, Ornstein argues. Make those 40 be present and keep debating and keep voting to maintain their 40 votes—”including weekends and all-night sessions”—and once they couldn’t sustain those 40 votes, debate would end with an up-or-down vote for final passage. Other options would be to go back to the idea of the “present and voting” standard; the Senate would have to have three-fifths of those senators present, or to narrow the supermajority to 55 rather than 60. Keep them on the floor debating, and force them to have all their members there, all the time, to debate and to share their views. To explain to the American public and their fellow senators why they are so opposed to ending police brutality, or why they believe every American citizen should not have equal access to the ballot.
The critical thing is to end the silent filibuster in which one senator can object to moving forward, force the Senate to halt all its work while “debate” time lapses, and then they can all swan off for a few days or a long weekend, then come back and kill the bill in the cloture vote. Make them stay in D.C. and stand on the floor for all those “debate” hours actually debating. If Manchin, Sinema and all really want to preserve the supposed tradition of the Senate filibuster, them they couldn’t possibly object to making it like the “tradition” they saw in the old movie.
That’s not the only possibility for restoring actual majority rule for the Senate and for the nation’s democracy. Oregon Democratic Sen. Jeff Merkley, who has been working for filibuster reform his entire tenure in the Senate, is a lead sponsor of the Senate’s version of the For the People Act. He told Ron Brownstein that representative government “slid over the cliff, and [it’s as if] we caught a root, and we are just holding on by our fingertips” after the 2020 election and Trump’s efforts to subvert it. “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.” He wants, at the very least, to reform the filibuster for democracy-reform legislation. His strategy “is to encourage an extended debate on the bill, both within the committee and on the Senate floor, and to allow any senator to offer amendments.”
Once they got to the point of a cloture vote for final passage, if Republicans blocked it, the Democratic majority (with Vice President Harris) could vote then and there to “carve out” election reform or civil rights legislation from the filibuster, allowing it to pass with a simple majority. Or they could change the filibuster rules for this category of legislation, telling Republicans “you’d 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.”
Merkley has a strong ally in this, particularly on H.R. 1. Sen. Amy Klobuchar, chair of the Rules Committee, is fired up to get the For the People Act passed. She told Mother Jones’ Ari Berman, “I would get rid of the filibuster. […] I have favored filibuster reform for a long time and now especially for this critical election bill.” This is her most proactive stated reform position to date. “We have a raw exercise of political power going on where people are making it harder to vote and you just can’t let that happen in a democracy because of some old rules in the Senate,” she told Berman. She is planning to hold hearings on S. 1, the Senate’s version of the bill, in Rules Committee this month and advance the bill to the floor, setting up this filibuster fight. It’s the critical bill to have this fight for, filibuster scholar Adam Jentleson said. It would be “poetic justice,” to do it. “You would be ending the filibuster on an issue of civil rights.”
At the very least, the filibuster has to be reformed to make Republicans do the work and show their obstruction of progress before the whole nation. They have to stand on the Senate floor for hours on end, be forced to be at the Capitol to do it, and tell us why they believe whole swathes of Americans should be refused the vote and terrorized by police.