Time to De-fang the Filibuster by Marjorie Arons-Barron

The entry below is being cross posted from Marjorie Arons Barron’s own blog.

Getting tired standing for hours in line waiting to vote in Georgia? Want someone to give you water or a snack?  If you live in Georgia, that is now illegal.  It’s just one of many restrictions the Peach State Governor has just signed into law to discourage people from voting. If this omnibus law had been in effect in 2020, the Georgia legislature could have overruled the Secretary of State’s certification of the Georgia vote- for President and Senate.

Georgia is not alone.  Some 43 states are in the process of eliminating drop boxes, shortening or ending early voting, reducing hours on election day, ending absentee voting for people with no disability or sickness to justify voting by mail, limiting registration, purging the rolls or requiring elaborate and costly voter ID procedures.  Republican legislatures across the country, under the false claim of seeking election integrity and fueled by the Trumpian lie of Stolen Election, want to turn back the clock to the days of Jim Crow voter suppression laws.  This is why the Senate must approve the House-passed  H.R. 1 (the For the People Act) and the John Lewis Voting Rights Act.

To get that done, changing the Senate’s filibuster rules is a must. The filibuster is defended as a way to keep the majority from trampling the minority. That’s fine in theory, but it hasn’t worked out that way. It enables a single Senator to prevent a vote. It’s not part of the Constitution but was incorporated into Senate rules in 1806 by Aaron Burr (another reason to dislike him?). Cloture, the power to end the speechifying, required a two-thirds vote in 1917. In 1975, that threshold was lowered to three fifths or 60 votes. Over the past century, it was most often used to pass Jim Crow-type laws or prevent civil rights reforms. Recently, it has been grossly abused, a tool for tyranny by the minority.

It would take “only” 51 votes to change Senate rules to make the filibuster to go away. It could be done if President Biden had the support of all Democrats, with Vice President Kamala Harris casting the deciding vote. Unfortunately, Joe Manchin III (D-W.Va.) and Kyrsten Sinema (D-Ariz.) oppose eliminating the filibuster.

There is an interim step, however, that the recalcitrant Senators seem to support: returning to the requirement that those blocking the vote do so in person on the Senate floor. South Carolina Senator Strom Thurmond holds the record for the longest-ever filibuster, speaking 24 hours and 18 minutes, in his effort to stop the 1957 Civil Rights Act. He did it again years later when he filibustered with other Southern Senators to stop the 1964 Civil Rights Law.  Today, however, a single Senator can just indicate an intention to block a vote, and that’s enough to gum up the works.  If Manchin and Sinema would agree, the Senate could vote to return to the “talking filibuster,” which might reduce the number of times it is utilized and even help force compromise on the matter at hand. It’s not a solution, but it’s a step in the right direction. The next step could be to carve out a filibuster exemption for voting rights, the same way the Senate has done for Supreme Court appointments.

Minority Leader Mitch McConnell promises a “scorched earth” response if such changes are made, but he has already blocked any serious action on major legislation from gun safety to voting protections, immigration, infrastructure and climate change– actions supported by a majority of Americans. To be sure, McConnell and company would try to do their worst if in coming years Republicans were to regain control of both houses of Congress and the presidency. But fear of a fire next time shouldn’t stop needed action now. As Democrats have learned to their chagrin, elections have consequences. Obama squandered his opportunities. We’re still living with the malign legacy of Donald Trump. With a structurally-biased Senate and Electoral College, and a likely more gerrymandered House in 2022, the window for generational reform could slam shut in less than two years. Carpe Diem.

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