Here's How to End the Filibuster and Protect Democracy

Code Red! Unless the filibuster is eliminated--at the very least as it pertains to Voting Rights and Civil Rights laws--what's left of American democracy is dead. The Republicans will suppress the vote and gerrymander elections to guarantee a Republican Congress, President and Supreme Court of, by, and for the minority.

The best defense is a good offense--Passage of the John Lewis Voting Rights Act and The For The People Act would block most voter suppression tactics, prevent politicians from picking their own voters through partisan gerrymandering, and reduce the influence of big money on politics. The bills are supported by majorities in the House and Senate. But passage in the Senate requires a 60 vote supermajority to overcome an inevitable Republican filibuster.

It will take a carefully constructed, step-by-step strategy by the Senate Democratic leadership, in coordination with grassroots organizations--to potentially bring Manchin and Sinema around.

And while the threshold for ending a filibuster could be reduced to a simple 50 vote majority by all 50 Democratic Senators plus V.P. Harris voting for this change to Senate rules, so far Democratic Senators Joe Manchin and Kristen Sinema oppose such a step, leaving Democrats two votes short.

When the rubber hits the road, Manchin and Sinema will have to decide if an antiquated Senate tradition or the preservation of American democracy is more important to them.

It will take a carefully constructed, step-by-step strategy by the Senate Democratic leadership, in coordination with grassroots organizations--to potentially bring Manchin and Sinema around. (For purposes of this article, I assume that if Manchin comes around, so will Sinema, since she won't want to be the sole Democrat blocking voting rights.)

Here's how such a strategy might play out:

STEP 1: As an Interim Step, Make Senators Keep Speaking if they Want to Filibuster

When many people think of a "filibuster," they picture minority Senators debating non-stop for hours and days to indefinitely block an up or down vote on legislation they oppose.

Think of South Carolina Dixiecrat Strom Thurmond filibustering a civil rights bill for 24 hours while eating hamburgers and bits of bread and going to the bathroom only once. (I wonder who changed his diaper.) Or picture Joe Manchin's mentor and idol, West Virginia Dixiecrat Robert Byrd, filibustering the 1964 Civil Rights Act for 14 hours.

After the nation watched a long line of segregationist Senators speak endlessly in support of "segregation now, segregation tomorrow, segregation forever" for 60 days, President Johnson managed to convince a supermajority of Senators (including "liberal Republicans" who actually existed back then) to break the filibuster and pass the historic Civil Rights Act of 1964.

That was then. This is now. Today a filibuster doesn't mean endless debate. It means no debate whatsoever.

In the 1970s, the Senate changed its rules so that any single Senator can send an anonymous email to the Majority Leader that s/he intends to filibuster and all action on the bill comes screeching to a halt with no further debate. Unless and until a supermajority of 60 Senators votes for cloture (i.e. to end the filibuster) that's the end of the bill.

And filibusters are now secret, anonymous and silent. There are no daily TV clips of Senators holding forth for days on end reading children's books out loud in the Senate chambers and wearing diapers. There are rarely mass mobilizations to break the filibuster since most of the country doesn't know it's happening.

So a first interim step to limiting the filibuster is to go back to the old-fashioned talking filibuster. This can be enacted by a simple Senate majority vote. Since even Joe Manchin has indicated support for going back to a talking filibuster, the 50 Democratic Senators plus V.P. Harris can do it just by voting for a procedural motion.

This is only a temporary solution which would not completely solve the problem of minority rule. Republicans may be able to tag team debate on President Biden's agenda and keep much of it from a full floor vote. But by making these efforts to impose minority rule dramatically public, it would make the tactic more difficult to sustain. The Mitch McConnell-led minority Republicans would be in a constant state of filibustering as the country looks on aghast.

STEP 2: Bring The John Lewis Voting Rights Act to the Senate Floor

The next step should be for Majority Leader Schumer to put the John Lewis Voting Rights Act up for debate on the Senate floor.

While it's not a comprehensive as the For The People Act which outright prohibits most voter suppression tactics and eliminates gerrymandering, the John Lewis Act restores key provisions of the Voting Rights Act of 1965 requiring that states with a history of racial voting discrimination get pre-clearance from the Justice Department before changing their voting laws.

In fact, Joe Manchin has suggested expanding the John Lewis Act so that all 50 states, not just historically Jim Crow southern states, would be subject to pre-clearance of voting law changes to be sure they don't racially discriminate. In addition, the law should be made retroactive to election day, 2020, so that voter suppression laws like those recently passed by Georgia and Texas would be subject to pre-clearance.

STEP 3: Republicans Filibuster Voting Rights

Republicans would certainly filibuster the John Lewis bill. But with the talking filibuster revived, the Republicans would have to speak non-stop indefinitely to maintain the filibuster and block a vote. They would have to explain over and over again to voters why voting rights laws should be weaker in 2021 than in 1965 and why election laws geared toward disenfranchising minority voters should not be reviewed by the Justice Department as they were from 1965-2013.

While Republicans spout off endlessly from the Senate floor, the racial justice movement would massively mobilize in support of the bill. More and more voters would likely turn against the Republicans as they dog whistled racist rhetoric from the chambers of our nations' capitol. In a recent poll, a significant majority of voters support the key voting rights provisions of the even stronger For The People Act.

STEP 4: Change Senate Rules to Allow a Simple Majority to End a Filibuster on Voting Rights

After several weeks of the televised spectacle of Republican Senators blocking a vote on Voting Rights with racist speeches as the country watches, it will be time for Joe Manchin to put up or shut up. He will almost certainly have failed in his Quixotic quest to round up 10 Republican votes to end the filibuster. He will have to choose between supporting the filibuster and letting voting rights die at the hands of a Republican minority or changing positions and allowing a simple majority of 50 plus one end a filibuster and pass a Voting Rights bill. Will Manchin want to go down in history as the man who blocked Voting Rights and supported rule by the minority?

To bring Manchin along, Democrats could agree that needing 50 votes instead of 60 to end a filibuster would only apply for the time being to legislation protecting voting rights established by the 14th, 15th and 19thAmendments to the Constitution. This compromise wouldn't entirely eliminate the 60 vote supermajority needed to end filibusters on all legislation, such as immigration reform. But it would limit the supermajority requirement to fewer and fewer types of legislation.

The Democrats would then close debate and pass the John Lewis Act with a simple majority. After President Biden signs it into law, career professionals at the Justice Department would start to review voter suppression laws and rule many of them to be illegal and unenforceable as racially discriminatorry. Chalk up a win for the good guys.

STEP 5: Bring the For the People Act to the Senate Floor

With the rule change allowing a simple majority to end a filibuster on voting rights, Majority Leader Schumer could then bring the more comprehensive For The People Act to the Senate floor.

Republicans would undoubtedly filibuster (but now only by speechifying non-stop, not by a secret, anonymous email.) As a majority of the nation gets fed up with Republican racist dog whistles, a united Democratic Party could then vote by a simple majority to end the filibuster and pass the For The People Act.

In addition to making voter suppression laws enacted by Republican legislatures illegal, it would also replace partisan gerrymandering in which politicians pick their voters with non-partisan commissions charged with creating fair voting districts. For example, it would no longer be possible for Wisconsin Republicans legislators to gerrymander the state to win a minority of 45% of the popular vote compared to 54% for the Democrats, but still control the State Assembly by 61-38.

STEP 6: Change Senate Rules to Allow a Simple Majority to End All Filibusters

At this point, the filibuster will have been significantly limited. It has to be a talking filibuster, not a secret silent one. If it concerns voting rights, it can be ended by a simple majority vote. Confirmation of judges and Supreme Justices already only requires a simple majority. Under "reconciliation" rules, massive bills on taxes, spending and the debt limit can also already be passed in the Senate by a simple majority vote.

The 60-vote filibuster will increasingly look like an absurd rump. It would still apply to issues like immigration and climate change (to the extent they can't be contorted to fit under reconciliation.)

But people will ask the obvious question. Why does majority rule only apply to judges, voting rights, and money issues while minority rule applies to everything else including such major issues as immigration and the environment? With the scope of the minority filibuster limited, it may then only be a matter or time until it's eliminated completely and the Senate can pass any legislation by majority rule.