With voting rights legislation that passed the House this week marching toward a likely death in the Senate, activists are readying for a fight to save it: they're taking on the bill-slaying filibuster, the Senate rule requiring 60 votes to end debate on a measure. In an evenly split 50-50 Senate, it will always be a struggle to win over 10 senators from the other side.
"Those who won the election, who have the majority are going to be faced with a choice: do they protect voting rights or do they protect the filibuster rule?" said Stephen Spaulding, senior counsel for public policy & senior adviser at Common Cause. "I don't think saying, 'Oh, but the filibuster,' is going to cut it."
The "For the People Act," known as HR1, is a broad bill that would create automatic, same-day, and online voter registration nationwide. It includes some measures that would require states to overhaul their registration systems. It would expand absentee voting, limit the states' ability to remove people from voter rolls, increase federal funds for election security and reform the redistricting process.
Democrats argue that efforts underway in Republican state legislatures to tighten voting laws in the wake of the 2020 election — along with the looming possibility that the conservative-heavy Supreme Court could weaken a key provision of the Voting Rights Act this summer — make federal legislation imperative.
"The major effort to change state laws to limit access to the ballot needs to be protected by legislation," says Robert Brandon, president of the Fair Elections Center. "Beyond that, there are probably some things the [Biden] administration can do, but it's really the law...that's why legislation like HR1 is so important."
Republicans unanimously oppose the measure, arguing that it amounts to a federal takeover of state-run elections. Opposition to HR1 is one issue uniting the GOP at this point, even as they disagree about how to move forward as a party in the post-Trump era. It was a key topic of conversation at CPAC last week, and moreover, former Vice President Mike Pence, who has taken pains to remain out of the fray, broke his silence by writing an op-ed urging his party to vote against the measure.
On Thursday, Pence cheered Republicans for sticking together in their opposition, tweeting: "Election Integrity is a National Imperative."
The legislation is unlikely to garner support from any Republicans, let alone the 10 needed to override a filibuster. And as other legislative debates have shown, the Democratic majority is fragile. A group of 20 U.S. senators have urged President Biden to take executive action. But even their prescriptions acknowledge that there isn't much he can do to beef up voting laws.
"The ability for the executive branch to act in a way through executive action is pretty limited," said David Becker, the executive director and founder of the Center for Election Innovation and Research. "If we want to see new policies regarding access to the ballot, election integrity, funding for elections and election security, that will likely have to come through legislation either at the federal level or like we're seeing in the states."
As for what Mr. Biden can do, the Brennan Center for Justice wrote in October 2020 that the president could improve cybersecurity and direct more federal agencies to offer voter registration. Spaulding said that the president could also provide more resources for the Justice Department to enforce the Voting Rights Act, the National Voter Registration Act and other voting rights legislation. He applauded the White House for supporting the bill and said the administration needs to "really use the bully pulpit" to help pass legislation.
South Carolina Congressman James Clyburn, the House Democratic Whip and close ally of Biden, told CBS News that while he hasn't spoken with the president recently about issuing an order on voting rights, "I did say to him more than once that Abraham Lincoln freed slaves with an executive order. Harry Truman integrated armed services with an executive order, so Congress never passed a law to integrate the armed services. Never. So I just think that that is something he must keep in mind going forward."
He added, "If Congress refuses to erect the safeguards for voting rights, I just think that executive authority ought to be used to do what can be done."
The fate of HR1 in the Senate is a reminder of the limits of the Democrats' control of the upper chamber. "Democrats are not in charge. You've got these filibuster rules and the filibuster seems to be in charge," Clyburn said. "I don't believe we can afford for racial issues to be filibustered."
Clyburn is hoping the House can pass another piece of voting legislation, The John Lewis Voting Rights Act, around Labor Day. The measure, named for the late congressman and civil rights icon, would restore a key provision in the Voting Rights Act struck down by the Supreme Court in 2013: it required states with a history of discrimination to seek federal approval to change election laws.
"Hopefully, the Senate will not filibuster that. If they do, there is going to be one hell of a price to be paid in next year's elections," Clyburn said.
In his eulogy for Lewis in July, former President Obama proposed abolishing the filibuster to pass voting rights legislation, calling it "a Jim Crow relic." But President Biden has been reluctant to support eliminating it. When asked Thursday about getting rid of the Senate rule in order to pass HR1 and other measures, White House Press Secretary Jen Psaki said the president's "policy has not changed on that issue" and that he wants to find a path forward to work with both parties.
It's also true that filibuster reform faces its own uphill battle in the Senate within the Democratic caucus. Minnesota Democratic Senator Amy Klobuchar, chair of the Senate Rules Committee which has oversight over federal elections, supports reforming the filibuster to pass HR1. But West Virginia Democrat Joe Manchin on Monday said he's not changing his opposition to killing the filibuster. Without his support, Democrats won't be able to muster the simple majority they would need to eliminate it.
"Never!" Manchin told reporters who asked if he'd change his mind if the Senate was holding up Democratic legislation. "Jesus Christ, what don't you understand about 'never'?"
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