Hardball
Politics is not a “recreational sport”. Politics, at every level, has real consequences. Ask your local school board about mask mandates during the Covid pandemic, or the state of Virginia about I-95 snow removal.
The United States Senate has two voting rights bill under consideration in the next few weeks. One, the John Lewis Voting Rights Act, would modernize original Voting Rights Act passed in 1965. That law protected the voting rights of minorities from state actions that restricted voting, by allowing the Justice Department the “right” to pre-certify state changes. If a state law restricted voting, it didn’t go into effect. The 1965 Act put the burden on the state to show it was NOT discriminating, rather than on the Justice Department to show discrimination.
The Voting Rights Act was re-enacted several times since 1965, usually by huge margins in both the House and the Senate. However, in 2013, the Supreme Court gutted the pre-certification clause in the case Shelby County v Holder. The Court made it clear that the Congress had the authority to control voting, but that they thought the reasoning underlying the 1965 Act was out of date.
Freedom to Vote
A second bill, the Freedom to Vote Act, is also under consideration by the Senate. This Act would do a lot to standardize voting across the United States in Federal elections, including:
- Allow for same day voter registration,
- Establish automatic voter registration,
- Protect and expand access to voting by mail,
- Establish 15 days of early voting, including at least two weekends,
- Restore voting rights to individuals previously incarcerated,
- Prevent partisan gerrymandering, and
- Protect against voter intimidation.
Both of these bills will counter the Republican state-by-state insurgency. It’s fueled by the “Stop the Steal” lie, and “legally” prevents many Democratic supporters from voting at all.
Fifty Plus One
There are fifty US Senators who agree that both these bills should become law. They are the forty-eight Democrats, and the two Independent Senators (King of Maine, Sanders of Vermont). There are fifty US Senators united in opposing both these bills, all of the Republicans. Were these bills to get to a final vote, a fifty-fifty tie would be broken by the Vice President, Democrat Kamala Harris, and both bills (already passed by the House) would be signed into law by President Biden.
But the Senate has the procedural rule allowing a “filibuster”. While many think of the movie scene with Jimmy Stewart speaking for hours in Mr. Smith Goes to Washington, in practice today’s filibuster is simply a vote count. To allow for debate (and subsequent vote) on a bill, it requires sixty Senators to agree. Otherwise, the bill is considered “filibustered” and blocked even from discussion.
The filibuster is not in the Constitution, and not even written into the original rules of the Senate. It was added later. As a procedural rule, it can be altered by a simple majority of the Senate, fifty votes (plus the tie-breaker). That alteration is the so-called “nuclear option”, but it actually is already part of the process. On budget bills and Presidential judicial appointments, the Senate already debates and votes on a simple majority basis.
So the question isn’t about “ending the filibuster”. The question is: can voting rights be added to the list of issues that are “exempted” from the filibuster rule. And that is where the politics begin.
Forty-Eight plus Two
There are two Democrats who, while they claim they are in favor of the voting bills, stand opposed to adding voting to the filibuster exemptions: Kristin Sinema of Arizona, and Joe Manchin of West Virginia. There voiced reason is simple: if Democrats add voting rights to the “exempted list”, there will be nothing to prevent a future Republican controlled Senate from adding something else.
They aren’t wrong. Democrats added non-Supreme Court judicial appointments to the exempted list during the Obama Administration. When Republicans gained control of the Senate and the Presidency, they added Supreme Court appointees, allowing for the three Trump Justices now on the Court. Democrats have since added “debt ceiling” votes to the list. So when Senate Republican Minority Leader Mitch McConnell says that “Democrats started this”, he’s right.
But regardless of what Democrats do now, there is nothing to prevent a future Republican Senate from adding issues to the “exempted” list, or getting rid of the filibuster all together. The Sinema and Manchin argument: “If we do it now, they’ll do it later,”sounds good. But “they” could do it later anyway.
Sinema
The political question is what can Democrats do to pressure their own Senators Sinema and Manchin to allow voting rights to be added to the exempt list, and then passed into law. Kirsten Sinema is more “vulnerable” to internal Democratic pressure. She is up for re-election in 2024, and there are several progressive Democrats in Arizona interested in challenging her in the primary. Sinema’s “theory” of re-election is that she can appeal to the “middle ground” of Arizona politics, what she calls the “McCain Republicans” who crossover to her as a result of Trumpism. Her stand on the filibuster is based in that “McCain” tradition.
But those “McCain” voters won’t be voting in the Democratic Primary. Sinema needs financing for the primary, and would like her opponents to be “underfunded”. This is where pressure from the national Democratic Party can make a difference. The Party can offer, or refuse money, both to Sinema and to her potential primary opponents. So the road to Sinema’s agreement goes through the 2024 Arizona Primary.
The Unicorn
Joe Manchin is a different issue. He too is running for re-election in 2024. But as the only statewide elected Democratic official in West Virginia, he holds a unique position. While Democrats could challenge him in a primary, there is little likelihood of them defeating Manchin, or a Republican candidate in the general election. Donald Trump received two-thirds of West Virginia vote in 2020. Manchin is a “unicorn” in West Virginia, and like any “unicorn” he must be coddled and cared for, or he will cease to exist.
So it is difficult to pressure Manchin, and there’s not much weight that can be brought to bear. But Congressman Jim Clyburn of South Carolina, I think, has the answer. He suggests that Joe Manchin doesn’t want to go down in history as “the Democrat who stopped voting rights”. Manchin himself re-wrote the John Lewis Bill to try to gain some Republican support. And while there were a few Republican Senators who showed interest, there was nowhere near the needed ten to avoid the filibuster.
History’s Eyes
Look at two famous figures in American Senate politics. The first is Strom Thurmond, a Senator from South Carolina who served past his one-hundredth birthday and married a twenty-two year old woman when he was sixty-six. He was an original “Dixiecrat”, a Democrat who switched political parties because he was so opposed to civil rights. Thurmond led the filibuster of the 1957 Civil Rights Act, setting the “record” of twenty-four hours and eighteen minutes for holding the floor. When he switched parties, he became a senior Republican Senator. Like the removed statues of Robert E. Lee and “Stonewall” Jackson, he is a symbol of the segregated South.
The other figure is Lyndon Johnson, a master Senate tactician who became President of the United States. Johnson was a Southern Democrat from Texas, also a segregationist for most of his political career. But Johnson as President, masterminded the passage of the 1964 Civil Rights Act and 1965 Voting Rights. Along with his Great Society Program, they were the highpoints of his political life.
Google states that Unicorns eat “…grass, plants, flowers and berries”. What can Democrats offer their “unicorn” from West Virginia? All they have for Joseph Manchin III, besides whatever campaign financing he might need, is a place in history.
He can stand for civil rights with Lyndon Baines Johnson. Or he can stand for discrimination with James Strom Thurmond Sr.
It’s the unicorn’s choice.
