Passing the Freedom to Vote legislation by Marjorie Arons-Barron

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

The hypocrisy of Senate Republicans is breathtaking. They give standing ovations to Volodymyr Zelenskyy’s heroic battle for democracy in Ukraine, they line up to take selfies with Ukrainian Ambassador Oksana Markarova in the Capitol, they’re moved to tears by videos of courageous citizens fighting for their country, and they fight like hell to diminish democracy here at home. Not only will they not vote for the Freedom to Vote Act and the  The John Lewis Voting Rights Advancement Act on the merits, they’ll use every arrow in the parliamentary quiver to keep the current bill from getting out of committee. They even refuse to show up at committee meetings to deny a quorum for moving ahead.

The House did its job, but the obstacle to Senate passage is the mandatory 60-vote super-majority needed to end a filibuster on the vote. Without reaching that cloture threshold, debate could go on and on… “talking” the bill to death. Democratic Senators Kyrsten Sinema and Joe Manchin (who has negotiated a compromise proposal) say they support the legislation itself, but not enough to change the filibuster threshold to a simple majority. They won’t even vote to modify the filibuster rules to return to their original form, requiring Senators actually talking from the podium for extended hours rather than just signaling their intention to do so. The smallest minority of Senators can kill even a foundational matter like preserving voting rights.

There is a way around this, insists legislative tactician David Cohen. The former three-term mayor of Newton, MA and six-term state rep has decades of law-making experience at city and state level. He was known for his seemingly limitless ability to deal with parliamentary minutiae to facilitate bills that seemed not to have a chance. Think dog with a bone. His gritty approach often worked.

Sustaining access to the ballot box is the underpinning of all other issues in a democracy. Pending bills could, Cohen insists, pass with the support a simple majority of 50 Senators (plus a tie-breaking vote from Senate President, Vice President Kamela Harris) without having to change the chamber’s controversial filibuster rule.

The key to Cohen’s approach involves adding a substantive appropriation component to the pending legislation.

According to Senate rules, the so-called “Byrd Rule” allows appropriation bills to pass with a simple majority vote limiting debate to a total of 20 hours. The key word here is “appropriation.” Shouldn’t voting rights legislation carry with it money to help fund mandates imposed by the federal government on the states? Wouldn’t this approach enable voting rights to be achieved through a reconciliation bill supported by the Byrd rule?

Requiring states to start early voting at least two weeks before election day requires election officials to staff implementation and incur other expenses – personnel costs at virtually every step of the process – extra voting hours, managing online voter registration, acquiring minimum numbers of voting machines and drop boxes, maintaining data bases, additional printing and legal costs and many more.

Virtually every provision of the Freedom To Vote Act imposes a financial obligation on state or local government. If the act is amended to fund those mandates, it will require only 50 votes to pass – plus the Vice President as tie-breaker. Some Senators who support the substance fear that the parliamentarian would dismiss this approach as an underhanded way to enact policy change and dismiss it as a sham.

Democrats tried this with the immigration law proposal and failed. Cohen makes a distinction between the immigration bill and the voting bill however. So, while the Republicans are being obstructionist and hypocritical, I fear the Democrats are being defeatist. Even at the risk of running into a parliamentary stone wall, voter protection is worth every effort, even a Hail Mary pass. It’s that important.

We’re taught from junior high that in a democracy “majority rules,” and we certainly give lip service to the principle. Senate Republicans applaud people elsewhere who fight for democracy, even against great odds, then stack the deck against democracy on the home front. Right now, all 50 Republican Senators, including Mitt Romney, Lisa Murkowski, Susan Collins and their retiring colleagues are all opposed to this vital legislation. And too many Democrats are weak at the knees. Alexis de Tocqueville weeps.