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The U.S. Senate is broken. Missouri’s talking filibuster could fix it

How can you keep the filibuster, which Manchin sand Sinema see as a vehicle for compromise, but also pass a voting rights bill whose main components have broad support? The answer is to adopt Missouri’s talking filibuster. (Samuel Corum/Getty Images)

U.S. Rep. Willard Duncan Vandiver coined Missouri’s motto during an 1899 Philadelphia speech. “I come from a state that raises corn and cotton and cockleburs and Democrats,” he said, “and frothy eloquence neither convinces nor satisfies me. I am from Missouri. You have got to show me.”

As a former state senator who still haunts the Capitol, I know how infrequently Missouri is the first state to adopt any policy. In the tradition of Congressman Vandiver, we want other states to “show us” that a policy can work before we embrace it.

But given the present preoccupation of national politicos — can U.S. Senate Democrats find a procedural adjustment enabling them to pass meaningful election reform? — it is, ironically, Missouri with something worth showing the nation: The efficacy of a talking filibuster.

Since January 2021, 19 states have passed 34 laws to: reduce voting days, hours or drop boxes; limit absentee ballot requests; add identification requirements; restrict provisional ballots from incorrect voting places; or criminalize offers of water to voters in line.

In other instances, Republicans have neutered nonpartisan election officials (or specific officials overseeing elections, such as Georgia Secretary of State Brad Raffensperger).

Separately, 15 current Republican Secretary of State candidates — at least five of whom were at the Capitol last January 6 — have suggested that the 2020 election was stolen. Trump has already endorsed several in key swing states like Georgia, Arizona and Michigan.

And of course, President Trump tried to overturn 2020 election results in those states, not just through dozens of failed lawsuits but also by 1) summoning Michigan legislative leaders to the White House to suggest that they refuse certify the state’s presidential election results, 2) pushing the Arizona Senate to commission an elaborate election audit (which ultimately found no fraud) and, most famously, 3) telling Raffensperger that Georgia’s count was “off by hundreds of thousands of votes” and badgering him to “find 11,780 votes,” the precise number Trump needed to win.

In response to the aforementioned new laws, congressional Democrats have filed election reform legislation setting national standards to ease the registration and voting process.

In response to former President Trump’s alarming efforts, Democrats propose reforming the 1887 Electoral Count Act to ensure that a vice president cannot override a state’s election results as Trump exhorted Vice President Mike Pence to do.

Unfortunately for U.S. Senate Democrats, 60 votes are necessary for cloture (the parliamentary move to end debate and call a vote), and so far, only one Republican has announced support for Democratic electoral reform legislation, leaving Democrats nine votes short.

Those accustomed to the Missouri Senate may reply: “Why are you worried about how to end debate when the U.S Senate hasn’t even started debating any of this?”

Great question. The reason the U.S. Senate has yet to start debate on voting rights is that 60 votes are necessary to overcome a filibuster on the motion to proceed with debate.

That’s because U.S. senators do not actually have to filibuster — that is, talk for hours on end, as Missouri senators have long had to do — in the way they once did.

Until 1970, U.S. senators had to actually speak to hold the floor and prevent a vote, so filibusters were rare spectacles reserved for the most polarizing legislation (i.e., civil rights), paralyzing the Senate and grinding the nation’s business to a halt.

Senate leaders tried to solve this by adopting a two-track system allowing bills threatened by filibuster to be temporarily set aside so that others could be debated on the floor.

But the cure proved worse than the disease: Now that anyone could derail a bill by merely threatening a filibuster, it became routine for any minority party member to seamlessly kill bills without consequence.

So what does this have to do with the current voting rights debate?

Despite Democrats’ persistent effort to nuke the filibuster to move legislation with 50 senators plus Vice President Kamala Harris breaking ties, Sens. Joe Manchin, D-W.V., and Kyrsten Sinema, D-Ariz., have consistently killed any hope of that happening.

Thus the conundrum: How can you keep the filibuster, which Manchin and Sinema see as a vehicle for compromise, but also pass a voting rights bill whose main components have broad support?

The answer is to adopt Missouri’s talking filibuster.

Presently, all U.S. Senate Republicans have to do to start and maintain a filibuster is draft a one-sentence letter informing leadership of their objection.

That’s insane.

A filibuster should be a principled stand against the majority, not a formality. It should be something about which committed minority members feel so strongly that they are willing to stand, day after day, night after night, public opinion be damned.

In 2007, just a couple months into my tenure in the Missouri Senate, then-Sen. Jason Crowell brought HB 444, which eliminated all taxes on Social Security income to the floor. The bill had been fast-tracked through the House as the only one sponsored by then-Speaker Rod Jetton that session.

While I had no problem using our budget surplus to cut those taxes for poor or even middle-class seniors, I didn’t think the state should give a handout to wealthy seniors. So I visited with a few Democratic colleagues, informed them of my plan to filibuster and invited them to join me.

After the first couple hours, the Senate broke for committee hearings. Jefferson County Sen. Ryan McKenna pulled me aside and asked me to accompany him to the Speaker’s office.

“That’s a helluva way to introduce yourself to the Speaker, by filibusterin’ his bill!” exclaimed the Speaker when I walked in.

“Haha,” I said dryly, shaking his outstretched hand.

“Well, McKenna wanted to bring ya down here because he wants everybody to get along, which is great – Ah love McKenna – but Ah don’t really care if you filibuster or not,” he said.

“You don’t care if your bill passes?” I asked skeptically.

“Ah don’t,” he replied matter-of-factly. “If it passes, great — we cut some ol’ folks’ taxes. If it don’t, that’s great, too. It polls over 80%, so we’ll just beat the crap outta you guys for the next year, pick up more seats till we have a supermajority.”

I considered his logic.

After speaking on the floor for several more hours as our afternoon session turned to night, I negotiated a compromise that eliminated taxes on Social Security payments for recipients with total incomes (including government benefits) under $75,000/year — it would help, say, retired cops and teachers with sturdy public pensions without giving more to the wealthy.

Was it perfect? No. But it buried a potentially potent election issue, and most importantly, it wasn’t nearly as bad as the original version.

Other times, on other bills, I continued to filibuster, sometimes overnight.

One memorable occasion was alongside Sens. Jolie Justus, Joan Bray and Rita Days against a bill pushing abstinence-only education despite extensive research showing that it was less likely than comprehensive sex education to reduce unintended teenage pregnancies.

At 32, I was one of the youngest state senators in Missouri history and a competitive athlete. And it was damn difficult to stand — without leaning on one’s desk (prohibited by chamber rules) or using the bathroom – and talk for more than 4 or 5 hours at a time.

From these experiences I can say that:

1) a filibuster is not something one decides to do lightly;

2) a filibuster by one person for more than a day is impossible, so a team of at least three is necessary to allow for breaks; and

3) there is no way, given the age of U.S. senators and their political wherewithal, that 41 Republicans could be mustered to speak on germane topics (as required by U.S. Senate rules) from today through November 2022 against a popular election reform bill.

Some would not be able to speak for even an hour at a time, and the mostly younger senators leaned on as workhorses simply would not be willing to spend a year of their lives this way, neglecting their families, their political interests, and their health.

If the talking filibuster is floated, Republican pundits will cheer “bring it on!” and exhort their side to battle.

But amateurs talk strategy; professionals talk logistics.

Once those who would actually have to stand and talk for the next 7,000 hours assess the logistics, they’ll negotiate. If they don’t fold immediately, check back in with them after a month.

The key is that Democratic Senate leaders must be committed enough to be just as miserable as the Republicans. Because the instant they decide to let the Senate break for a night, or God forbid a weekend, they’re showing weakness that will embolden the opposition.

Don’t take my word on that. Ask Missouri Senate Majority Leader Caleb Rowden.

And so instead of continuing to browbeat Sens. Manchin and Sinema into eliminating the filibuster (which will never happen), or placing a bill with zero chance of garnering 60 votes on the floor, U.S Senate Democrats should force every Republican senator to make the same calculation I had to make every week.

If Republicans want to spend months trapped in Washington, D.C., missing important family and political events back home and halting the nation’s business in order to obstruct popular reforms like automatic voter registration (supported by a 60-21% margin in recent nonpartisan polling), fixing the Electoral Count Act (favored 62-18%), and banning partisan gerrymandering (cheered by 88% of voters), then Democrats can bludgeon them in their home states just as Speaker Jetton once threatened to do to me.

A protracted filibuster will clarify the policy differences between the parties, and — based on the above polling — should be a Democratic political win.

If, on the other hand, Democrats overreach, lose message discipline and load up the bill with more polarizing items perceived as tools for partisan advantage, Republican resistance could win broader support in the country, weakening swing state Democrats’ resolve and likely killing the bill’s prospects.

But more likely, the outcome would be similar to that usually seen in Missouri: The House would pass a more comprehensive and partisan bill, and minority party senators, weary after weeks of filibuster, would negotiate a compromise stripping a few components they find most objectionable, leaving the more popular ones, and perhaps even using the leverage of their filibuster to add one of their own rare popular proposals (say, a photo identification requirement, backed by 72% of voters).

Such legislation would, in its totality, be broadly accepted.

That’s how the Founders designed Washington to work.

Now if only Congress would step aside and let Missouri “show them” how the world’s so-called greatest deliberative body should operate.

Jeff Smith is executive director of the Missouri Workforce Housing Association and a former Missouri state senator. This essay was first published by the Missouri Independent.

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