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Protesters sound off against Manching filibuster reform opposition.

Activists rally against Sen. Mitch McConnell (R-Ky.) and Sen. Joe Manchin (D-W.V), calling on them to eliminate the legislative filibuster and pass the "For The People" voting rights bill, outside the Supreme Court on June 23, 2021 in Washington, DC. The event was organized by a group called the Poor Peoples Campaign. (Photo: Drew Angerer/Getty Images)

Democrats Urgently Need a Plan B for Voting Rights and Filibuster Reform

If they can't figure this out, the GOP will continue to pass partisan voter suppression laws in states nationwide and activists pushing to save democracy will become disillusioned and demobilized.

Miles Mogulescu

Democratic Senate Majority Leader Chuck Schumer has said that failure to pass voting rights protections is not an option. Indivisible, The Poor Peoples Campaign, and other progressive organizations are planning mass mobilizations over the next several weeks. Yet there doesn’t seem to be a clear strategy among either the Senate Democratic leadership nor the activist movement to change the outcome of Tuesday's unanimous vote by all 50 Republicans to block even debating voting rights.

So far it seems like the best the Democrats can come up with is to periodically bring the For The People Act up for another vote, watch as Republicans again block debate, and hope it somehow changes Sens. Joe Manchin's and Kristen Sinema's views of filibuster reform. It's not likely to happen that way. More likely, repeating the same scenario will lead to increasingly less media attention and less pressure for change. Republicans will continue to pass partisan voter suppression laws in the states and activists will become disillusioned and demobilized.

The situation is dire, unless Senate Democrats and their outside supporters can come up with a new strategy.

Ezra Levin, a leader of Indivisible, pins success on Schumer forcing Sen. Mitch McConnell (R-Ky.) to "keep filibustering on the Senate floor for days or longer…The only realistic pathway to victory on democracy reform is a drawn-out legislative fight." Unfortunately, this strategy is currently impossible to execute.

Indivisible's premise that the only pathway to victory is a drawn-our legislative fight is correct—watching Republican senators speechify for hours and days on end on why voting rights need to be suppressed to "stop the steal" would likely increase public support for reforming the filibuster and put pressure on Manchin and Sinema to modify their positions. But under current Senate rules, there is no way for this to happen. Current filibuster rules mean there's no debate whatsoever, not speeches on the Senate floor "for days or longer." 

But therein lies the seeds to an alternative Plan B strategy that could lead to eventual victory. Up until the 1970s, filibusters were hard. Filibustering senators had to hold the floor continuously, alone or in relays, no other Senate business could be conducted, and 41 senators supporting the filibuster had to be on the floor lest opponents ask for a quorum call that in the absence of enough filibuster supporters, could result in a vote to end debate.

But in the 1970s, the Senate flipped the filibuster rules. Any one senator can now start a filibuster by sending a memo (even anonymously) stating his/her intent to filibuster, at which point there's no further debate on the issue and the Senate moves on to other matters unless a supermajority of 60 Senators votes to end the filibuster. That's what happened this week with the For The People Act. Republicans filibustered, Democrats failed to get a single Republican vote to debate, and voting rights legislation now appears dead.

There's not going to be a drawn-out legislative fight as Indivisible hopes. There's going to be no legislative fight at all. Check mate. McConnell wins. Most of the Democratic agenda will be filibustered to death. Republican legislatures will continue to suppress the vote. Small "d" democracy will be drastically weakened. And Republicans can win the 2022 and 2024 and future elections with only a minority of the voters. The situation is dire, unless Senate Democrats and their outside supporters can come up with a new strategy.

Ironically, Sen. Manchin himself may have suggested the basis for such a strategy. He said on "Meet The Press" that he's open to bringing back the talking filibuster, telling Chuck Todd "If you want to make it a little bit more painful, make them stand there and talk. I'm willing to look at any way you can."

So Senate Democrats' best remaining strategy is to take that as a "yes" from Manchin on the talking filibuster: Majority Leader Schumer brings the For The People Act back to the floor (perhaps as amended with some of Manchin's suggestions). Simultaneously, he brings a procedural motion that to block a vote on the legislation, a filibuster must be live and in person, ongoing, and requires 40 votes at any time to continue. Such a procedural motion can't be filibustered—it requires only all 50 Democratic Senators plus Vice President Harris to pass. If Manchin (and Sinema) will vote for this more modest filibuster reform to take the filibuster back to where it was before the '70s, then Republicans will have to be prepared to put on their diapers to hold the floor continuously.

That would then give us the drawn-out legislative fight that Indivisible has called for. Every day, the news would be filled with reporting on Republican speechifying against voting rights. Mass mobilization for voting rights protections would have time to build. An increasing number of voters would likely turn against Republican's racist dog whistles spouted endlessly from the Senate floor.

As I wrote recently,

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 to 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, reducing the threshold to ending a filibuster from 60 to 50 votes could apply for the time being only to protecting voting rights established by the 14th, 15th and 19th Amendments to the Constitution. But it would let the For The People Act and The John Lewis Voting Rights Act pass with 50 Democratic votes, going a long way towards protecting democracy from growing autocracy.

At this point, the filibuster will have been eliminated for voting rights, tax and financial matters through reconciliation, and confirmation of judges. It will increasingly look like an absurd historical anomaly and its remaining days will likely be numbered.

In any case this is a strategy for passing the Voting Rights Act and going a long way towards protecting democracy from growing autocracy instead of effectively giving up after the Republicans' successful filibuster this week and their continued passage of partisan voter suppression laws in the states.

Our work is licensed under Creative Commons (CC BY-NC-ND 3.0). Feel free to republish and share widely.
Miles Mogulescu

Miles Mogulescu

Miles Mogulescu is an entertainment attorney/business affairs executive, producer, political activist and writer.

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