Sometime this fall, Senate Democrats will bring a second major voting rights legislation to the floor: the John Lewis Voting Rights Advancement Act, which would restore sections of the 1965 Voting Rights Act that were gutted by the conservative Supreme Court.
If Senate Republicans filibuster the bill, as they are almost certain to do, it will be the fourth time they’ve done so with voting rights legislation — and will provoke a decision from Senate Democrats on whether to finally change the body’s antiquated filibuster rules, HuffPost has learned.
In the immediate aftermath of Senate Republicans’ third filibuster of opening debate on voting rights legislation this week, leading Democrats did not directly call for the filibuster ― a procedural rule that requires 60 votes to begin or end debate on legislation ― to be reformed to clear the bill’s path for passage by a simple majority vote. The new refrain was instead for “restoration,” something that it was hinted might only be possible by getting rid of the 60-vote requirement.
“The Senate needs to be restored to the status of the world’s greatest deliberative body,” Senate Majority Leader Chuck Schumer (D-N.Y.) said on the Senate floor after the party-line filibuster of the Freedom to Vote Act, a package of voting rights, redistricting and campaign finance reforms.
Sens. Amy Klobuchar (D-Minn.), Jeff Merkley (D-Ore.), Jon Tester (D-Mont.) and Raphael Warnock (D-Ga.), four of the bill’s eight chief sponsors, echoed some form of Schumer’s call to “restore the Senate.” Others have joined in the use of this language, including Sens. Sheldon Whitehouse (D-R.I.), Martin Heinrich (D-N.M.) and Brian Schatz (D-Hawaii) and voting rights supporters like former Georgia Democratic gubernatorial candidate Stacey Abrams and former Attorney General Eric Holder.
The rise of the “restoration” framing comes as Senate Democrats approach a final-decision moment on the filibuster.
President Joe Biden finally came out in support of filibuster changes to pass voting rights legislation, “and maybe more,” at a CNN town hall event Thursday night. But he noted he can’t push for it while Democrats are still wrangling over their infrastructure and budget reconciliation bills, lest he lose “at least three votes.”
Instead, it appears that Democrats’ final showdown over the filibuster will likely wait for the completion of Biden’s economic agenda. It will also wait until Schumer brings the John Lewis voting rights law ― named for the late civil rights leader and U.S. representative from Georgia ― to the floor for a vote.
While discussions about changing the filibuster are ongoing within the Senate Democratic caucus, it is after this presumed fourth filibuster of voting rights ― this time on legislation to restore a landmark civil rights bill last reauthorized with near-unanimous bipartisan support ― that a final decision on the filibuster will need to be made, according to sources familiar with Democratic leadership’s thinking.
A filibuster of the John Lewis voting law, combined with the three prior filibusters of voting rights bills, “will create a new urgency that will come to a head in the coming weeks,” a Democratic congressional source said.
In the meantime, Democrats are expected to refine their pitch to the public and, most importantly, to the two Democratic senators who openly oppose changing the filibuster.
For the past decade, much of the discussion among progressive groups has framed the filibuster as something to be reformed. The theme of “restoration,” however, is intended to paint the coming debate over the filibuster as a debate over the fundamental principles of the country, not simply one about an esoteric parliamentary rule change.
Schumer framed his call to “restore the Senate” and pass voting rights by likening it to the post-Civil War period of Reconstruction, when Republicans in Congress enacted the 13th, 14th and 15th amendments on party-line votes. These amendments, which banned slavery, established birthright citizenship and equality under the law, and forbade discrimination in elections, respectively, mark what historian Eric Foner calls the “Second Founding” of the United States. The enactment of these amendments began to put into actual practice the Declaration of Independence’s assertion that “all men are created equal.” They acted as a restoration of original principles.
“Today we feel the same way,” Schumer said this week. “The question before the Senate is how we will find a way forward in protecting our freedoms in the 21st century.”
In a speech given the night before the filibuster of the Freedom to Vote Act, Sen. Angus King (Maine), an independent who caucuses with the Democrats and a chief sponsor of the bill, said that “we are in the midst” of a constitutional crisis “right now.” He framed the discussion over changing filibuster rules to pass voting rights legislation as an opportunity to restore democracy, while evoking similar moments in American history.
“We in this body, perhaps more than anyone else in the country, have the power to change direction, to pull our country back from the brink, and to begin the work of restoring our democracy, as we did in the Revolution, the Civil War, and the civil rights struggles of 60 years ago,” King said. “First, by simply telling the truth, and then by enacting a set of basic protections of the sacred right to vote.”
This narrative framing is also aimed squarely at winning the support of Sens. Joe Manchin (D-W.Va.), who is a chief sponsor of the Freedom to Vote Act, and Kyrsten Sinema (D-Ariz.). While these two now oppose changes to the filibuster, the language of restoration casts that change as not a reform but a return.
Filibusters are most popularly known (if they are known at all) as the act of a senator speaking without cessation on the Senate floor to prevent action on a bill. The most well-known depiction of this is Jimmy Stewart’s performance in the 1939 film “Mr. Smith Goes To Washington.” But that reference point, now more than 80 years old, is almost as dated as the talking filibuster it portrays.
Today, senators only need to send a text or an email to the majority controlling the floor to object to a bill and increase the threshold for the legislation to pass, from a simple majority of 50 to a supermajority of 60. In the past 40 years, there has only been one occasion where a single party held 60 seats in the Senate, and even then it was only for a few months.
It’s not as though the filibuster has not been changed over the years. Indeed, there have been more than 150 changes, including ending the talking filibuster, dropping the threshold to end a filibuster from 67 votes to 60, and creating carve-outs for budget bills and executive branch and judicial nominations.
At the CNN town hall discussion on Thursday, Biden framed his support in the same language of restoration.
“It used to be you had to stand on the floor and exhaust everything you had,” Biden said. “And when you gave up the floor ― they had to talk until they finished. You’re only allowed to do it a second time. After that, it’s over. You vote. Someone moves for the vote. I propose we bring that back now, immediately.”
Biden’s endorsement of bringing back some version of a talking filibuster combined with the existing two-speech rule ― that a single senator may only speak twice on a single legislative matter during a single legislative day ― fits with the language of restoration. He also said that voting rights should not be subjected to a filibuster.
In early 2021, Manchin similarly signaled an openness to restoring a talking filibuster of some kind ― before taking it back.
“If you want to make it a little bit more painful, make him stand there and talk, I’m willing to look at any way we can,” Manchin said in March.
The restoration of some kind of talking filibuster is one of two filibuster changes, along with a carve-out specifically for voting rights legislation, that some Senate Democrats have discussed this year. A new talking filibuster would most likely look like the proposal crafted by Norm Ornstein, a scholar at the American Enterprise Institute, to force the filibustering senators to hold the floor with at least 41 members for as long as they can, or until they can no longer muster 41 members.
It remains to be seen whether this framing would provide the space for filibuster proponents like Manchin and Sinema to support a change that allows voting rights bills to pass.