Joe Biden has always opposed eliminating the Senate’s filibuster rule, and for good reason. Proponents of its elimination ignore the reality that today’s majority will surely be in the minority again. And the losers will then realize the value of being able to thwart the winners’ worst impulses.
This is not a hypothetical question. In 2013, Democrats foolishly altered the filibuster rule — which requires 60 votes to end debate — so it no longer applied to federal judgeships. Four years later, Republicans followed their lead, ending the filibuster for Supreme Court nominations and enabling President Trump to fill three seats in four years.
Do you think Democrats might regret being powerless to block Amy Coney Barrett’s elevation to the court in the waning days of Trump’s presidency?
But now Biden faces a crisis, an inflection point, that’s forcing him to reconsider his position on the filibuster. Following their defeats last fall, Republicans across the country are mounting a concerted effort in state legislatures to change the rules and make it harder to vote. The Brennan Center for Justice counts 253 bills introduced in 43 states that would restrict the franchise and damage basic democratic norms.
Michael McDonald, an expert on election law at the University of Florida, warns: “I don’t say this lightly. We are witnessing the greatest rollback of voting rights in this country since the Jim Crow era.”
A Washington Post editorial adds that Republicans “have embraced a strategy of voter suppression because they fear that, if the rules are fair, they will lose.”
What makes the crisis even more acute is that the Supreme Court, with its 6-3 conservative majority, is unlikely to uphold legal challenges to those laws once they’re passed. The best option for Biden and the Democrats is to adopt federal legislation that sets national guidelines and impedes the GOP’s attempts at voter suppression.
Two bills are moving steadily through Congress that would do just that. One measure, which has already passed the House on a party-line vote, would mandate procedures like automatic voter registration, expanded early voting and free mail-in ballots. The second proposal would restore provisions of the Voting Rights Act of 1965 — gutted by the Supreme Court in 2013 — that imposed federal supervision over states and districts with a history of discrimination.
Here’s Biden’s first problem: Those bills will inevitably be blocked in the Senate by Republican filibusters. So the new president must make a choice: stick with his loyalty to the filibuster and lose on voting rights? Or alter his position and entertain changes to the Senate rules?
The argument for change is rapidly gaining strength. For one thing, the entire Republican voter suppression effort is premised on a ‘Big Lie’: that the last election was somehow stolen by the Democrats, and that stricter laws are necessary to prevent future fraud. But, as countless courts, election officials and Trump’s own attorney general have concluded emphatically, that is not true.
Here’s the president’s other problem: Even if Biden were to change his position, Democrats almost certainly don’t have the votes to eliminate filibusters entirely. With only 50 seats in the Senate, they can’t afford to lose anybody, and Sen. Joe Manchin of West Virginia has made his position very clear. Asked if he’d consider ending the filibuster, he recently told reporters, “Never!”
But there is another option, one that Manchin has indicated he might support: amending the filibuster rules to make an exception for bills on voting and civil rights. Those rules are hardly sacrosanct; they have been altered many times. For instance, the number of votes needed to break a filibuster was dropped from 67 to 60 in 1975.
Carve-outs already prevent filibusters on budget bills, trade deals and military base closings. Voting rights are at least as important — if not more — than any of those issues. In his eulogy last July for civil rights icon John Lewis, Barack Obama made this precise point: “If all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that’s what we should do.”
In 1965, my late father-in-law, Hale Boggs, then a congressperson from Louisiana, risked his career to endorse the Voting Rights Act. Boggs said on the House floor, “I shall support this bill because I believe the fundamental right to vote must be a part of this great experiment in human progress under freedom which is America.”
Biden and the Democrats must amend the filibuster rules to protect that “great experiment” once again.
Steven Roberts teaches politics and journalism at George Washington University. He can be contacted by email at email@example.com. His column is distributed by Andrews McNeel Syndicate.