Lawmakers today are jockeying before tomorrow's test vote in the Senate on S1, the For the People Act. This is a sweeping bill that protects the right to vote, ends partisan gerrymandering, limits the influence of money in politics, and establishes new ethics rules for presidents and other federal officeholders.
Passing election reform is a priority for Democrats, since Republican-dominated legislatures across the country have gerrymandered states to make it almost impossible for Democrats to win majorities and, since President Biden took office, have passed laws suppressing the vote and making it easier for Republican state officials to swing elections to their candidates no matter what voters want.
But it is not just Democrats who want our elections to be cleaner and fairer. S1 is so popular across the nation—among voters of both parties—that Republican operatives agreed in January that there was no point in trying to shift public opinion on it. Instead, they said, they would just kill it in Congress. This conversation, explored in The New Yorker by Jane Mayer, happened just after it became clear that Democrats had won a Senate majority and thus Mitch McConnell (R-KY), who had previously been Senate Majority Leader, would no longer be able to stop any legislation Republicans didn't like.
Still, Republican senators can deploy the filibuster, which permits just 41 of the 50 Republican senators to stop the act from passing. It is possible for the Democrats to break a filibuster, but only if they are all willing. Until recently, it seemed they were not. Senator Joe Manchin (D-WV), a conservative Democrat in a Republican-dominated state, opposed some of the provisions in S1 and was adamant that he would not vote for an election reform bill on partisan lines. He wanted bipartisan support.
Last week, Manchin indicated which of the measures in the For the People Act—and in the John Lewis Voting Rights Advancement Act—he will support. In a mixture of the priorities of the leadership of each party, he called for expanding access to voting, an end to partisan gerrymandering, voter ID, automatic registration at motor vehicle offices, making Election Day a holiday, and making it easier for state officials to purge voters from the rolls.
Democrats across the ideological spectrum immediately lined up behind Manchin's compromise. Republican leadership immediately opposed it, across the board. They know that fair voting practices will wreck them. Today, McConnell used martial language when he said he would give the measure "no quarter."
Tomorrow, Senate Majority Leader Chuck Schumer (D-NY) will bring up for a vote not the measure itself, but whether to begin a debate on such a measure. "Tomorrow, the Senate will also take a crucial vote on whether to start debate on major voting rights legislation," Schumer said today. "I want to say that again—tomorrow the Senate will take a vote on whether to start debate on legislation to protect Americans' voting rights. It's not a vote on any particular policy."
Republicans can use the filibuster to stop a debate from going forward. Getting a debate underway will require 60 votes, and there is currently no reason to think any Republicans will agree. This will put them in the untenable spot of voting against talking about voting rights, even while Republicans at the state level are passing legislation restricting voting rights. So the vote to start a debate on the bill will fail but will highlight the hypocrisy of Republican lawmakers.
Perhaps more to the point in terms of passing legislation, it will test whether the work the Democrats did over the weekend incorporating Manchin's requests to the measure have brought him on board.
If so, and if he gets frustrated with Republican refusal to compromise at all while the Democrats immediately accepted his watering down of their bill, it is possible he and Senator Kyrsten Sinema (D-AZ), who has also signaled support for the filibuster in its current form, will be willing to consider altering it. The Senate could, for example, turn it back into its traditional form—a talking filibuster—or carve out voting rights bills as they have carved out financial bills and judicial nominations.
There are signs that the Democrats are preparing for an epic battle over this bill. Today White House Press Secretary Jen Psaki indicated that the administration hopes the vote will show that all 50 Senate Democrats are now on board and that they will find a new way forward if the Republicans do not permit a debate.
More telling, perhaps, is an eye-popping op-ed published yesterday in the Wall Street Journal by Mike Solon, a former assistant to McConnell, and Bill Greene, a former outreach director for former House Speaker John Boehner; both men are now lobbyists. In order to defend the filibuster, they argue that the measure protects "political nobodies" from having to pay attention to politics. If legislation could pass by a simple majority, Americans would have to get involved. The system, they suggest, is best managed by a minority of senators.
"Eliminating the Senate filibuster would end the freedom of America's political innocents," they write. "The lives that political nobodies spend playing, praying, fishing, tailgating, reading, hunting, gardening, studying and caring for their children would be spent rallying, canvassing, picketing, lobbying, protesting, texting, posting, parading and, above all, shouting."
The authors suggest misleadingly that the men who framed the Constitution instituted the filibuster: they did not. They set up a Senate in which a simple majority passed legislation. The filibuster, used to require 60 votes to pass any legislation, has been deployed regularly only since about 2008.
But that error is minor compared to the astonishing similarity between this op-ed and a speech by South Carolina Senator James Henry Hammond in 1858, when he rose to explain to his colleagues that the American system was set up to make sure lawmakers could retain control no matter what a majority of Americans wanted. Hammond was one of the nation's leading enslavers and was desperate to make sure his party's policies could not be overridden by the majority.
Voting only enabled people to change the party in charge, he said. "It was not for the people to exercise political power in detail… it was not for them to be annoyed with the cares of government."
Hammond explained that the world is made up of two classes: those who "do the menial duties… perform the drudgery of life. That is, a class requiring but a low order of intellect and but little skill….. It constitutes the very mud-sill of society and of political government." On them, he explained, rests "that other class which leads progress, civilization, and refinement."
It was imperative, he said, to retain these distinctions in politics. The South had managed such a thing, while the North, he warned, had not. "Our slaves do not vote. We give them no political power. Yours do vote, and, being the majority, they are the depositaries [sic] of all your political power. If they knew the tremendous secret, that the ballot-box is stronger than 'an army with banners,'... where would you be? Your society would be reconstructed, your government overthrown, your property, divided, not… with arms in their hands, but by the quiet process of the ballot-box."
James Henry Hammond, "Speech on the Admission of Kansas…," in Selections from the Letters and Speeches of James H. Hammond (New York: John F. Trow & Co., 1866), 301-322, available at Google Books (for free).