Democrats in the U.S. Senate recently introduced a new piece of legislation, the Freedom to Vote Act. This proposal represents the latest efforts by members of the Senate to pass comprehensive voting rights and pro-democracy legislation. Earlier legislation on these issues failed to advance in the Senate, in part because there was no clear path for the legislation to pass in the face of the filibuster. Let’s unpack that.
Before we get too much into the filibuster itself, however, let’s clarify exactly what the Freedom to Vote Act is. You may have heard of previous iterations of voting rights and democracy legislation, such as the For the People Act, which passed in the House but stalled in the Senate. Sen. Joe Manchin, D-WV, found pieces of the For the People Act to be not to his liking, and so even if the filibuster did not exist, it would not have passed without his approval to receive a majority vote in the Senate.
In an effort to reach agreement, several senators worked on removing some of the legislation that Manchin and Senate Republicans found most controversial, while incorporating suggestions from Manchin and possibly other conservative and moderate Senate Democrats. The Freedom to Vote Act represents the compromise legislation that still preserves some of the most popular provisions of the For the People Act and even incorporates some new legislation that protects election officials from harassment. The bill would make Election Day a federal holiday; mandate automatic voter registration; and give every American the opportunity to mail their ballot or drop it off at a drop box, among other important provisions you can read more about here.
Manchin believes he might be able to recruit some Senate Republicans to vote for this bill. But it seems unlikely that even with the significant compromises Senate Democrats have made in good faith efforts to reach moderate Republican senators that any will vote for the bill. Even two of the most moderate of Republicans, Sens. Susan Collins of Maine and Lisa Murkowski of Alaska have expressed concerns about the compromise legislation.
So where does that leave us?
The reason Senate Democrats are bending over backwards to compromise with Republicans is because of the filibuster, the Senate rule that requires 60 Senators to vote in favor of advancing legislation toward a final vote for passage. This is known as “voting for cloture.” The filibuster is not in the U.S. Constitution, but merely a rule made up by senators over 100 years ago. And unlike what you may have seen in state legislatures, the U.S. Senate filibuster rule does not require a senator to stand at a podium and speak for hours on end. Theoretically, the requirement to get 60 votes to proceed encourages compromise and moderate legislation. But in reality, the Senate minority has used it to stop debate on legislation entirely.
Interestingly, this rule to require 60 votes only needs a simple majority of 51 votes to change it. And, over the years, the Senate has changed the filibuster rule to allow for certain exceptions, such as Supreme Court confirmations and what’s known as budget reconciliation, which pertains to certain government spending and tax issues.
So, between the Freedom to Vote Act and the filibuster, how does pro-voter, pro-democracy legislation move forward?
Senate Democrats could try to further water down the Freedom to Vote Act to get 10 Republican Senators to support the legislation. But that seems unlikely given that Republican senators oppose any voting rights and federal election legislation at all. Apparently, assuring the freedom to vote is an “overreach,” as Murkowski put it.
Forgoing that, Senate Democrats could try to abolish the filibuster altogether. But conservative and moderate Democrats, like Manchin and Sen. Kyrsten Sinema of have explicitly opposed such efforts. They still argue that the filibuster promotes moderate legislation and compromise. Whether or not that’s true, Senate Democrats still need a simple majority to change the filibuster rule. So that means any change to the filibuster rule will need to be palatable to senators like Manchin and Sinema.
So, the third option: reform the filibuster, which Manchin has already proposed before. There are a few options here. Like the changes made by Senate Republicans disallowing use of filibusters on Supreme Court confirmations, Senate Democrats could allow certain types of legislation — such as legislation that protects and expands access to voting — to receive an exception from the filibuster. Another idea would be to allow the filibuster to delay, but not stop, legislation coming to a vote. Or the Senate could impose a type of talking filibuster. Or, perhaps, the filibuster could be preserved, but only by a number of senators representing a majority of U.S. residents. All of these and others have been suggested by scholars and procedural experts.
The bottom line: It’s either the filibuster or protecting the freedom to vote. Which will the senators like Manchin and Sinema choose?
Nick Harper is a voting rights attorney and civic engagement director for the League of Women Voters of Minnesota. This essay was first published by the Minnesota Reformer.