Joe Manchin has been working with other Democratic senators on a voting rights “compromise” — apparently an amalgam of the John Lewis Voting Rights Advancement Act and a few key features from the much more comprehensive For the People Act. Both these bills have been passed by the House this year, and have been blocked by Republicans in the Senate who threaten a filibuster. The same is almost certain to be the fate of any new bill based on the two proposals, although Manchin will allegedly spend some time marketing the new item among Republicans in search of the ten votes that would be needed to overcome a filibuster.
Assuming he fails, then the final moment of reckoning on voting rights will arrive: Will Manchin, along with Kyrsten Sinema and perhaps a few other tradition-minded Senate Democrats, consider a filibuster reform for the limited purpose of passing voting rights legislation, or can Democrats just forget about it until a future moment when they have a stronger Senate majority or until Republicans stop making voter suppression part of their strategy for survival in a rapidly changing America? Either of those contingencies could take a good while to arrive, and in the meantime Republican-controlled states will continue to weaken democracy by every available means.
It’s helpful to understand exactly what it means to create an exception (or as some say a “carve-out”) for voting rights legislation from the usual Senate procedures allowing filibusters and requiring 60 votes to end them via a cloture vote. For starters, the filibuster and its limits are not in the U.S. Constitution but merely in the standing Senate rules. So they can be amended by a simple majority vote. That has happened several times in recent years.
In 1973 in the Congressional Budget Act, a complex procedure was created for legislation necessary to implement a congressional budget resolution to clear the Senate under rules providing for limited debate and majority votes in both Houses. This is the famous “reconciliation” loophole through which Joe Biden is trying to get most of his 2021 legislative agenda enacted. But it only applies to budget-germane proposals, as determined by the Senate parliamentarian, and nobody much thinks there is a way to devise voting rights legislation that can pass that “Byrd Rule” test.
In 1975, the Senate lowered the threshold for invoking cloture to end filibusters from 67 to 60 votes. This “compromise” also changed the denominator of the fraction required for cloture from senators present and voting to the membership of the Senate present or absent, making cloture a bit harder in a less than full chamber.
In 2013, Senate Democrats created a “carve-out” for votes to confirm executive branch appointees and judicial branch nominees other than those for the Supreme Court. And in 2017 Republicans extended the “carve-out” to Supreme Court nominees too.
So there’s plenty of precedent for limiting the filibuster partially; killing it altogether, or keeping it intact has never been the exclusive choice, much as those who hate or love the dilatory tactic might pretend otherwise.
How would another carve-out for voting rights work in practice? Distinguished scholars Norman Eisen and Norman Ornstein explain at the Washington Post:
Senate Majority Leader Charles E. Schumer (D-N.Y.) would raise a point of order that cloture on election-related legislation can be decided by a simple majority vote, which would be denied by the presiding officer (acting on advice of the parliamentarian). The leader would then appeal the ruling to the Senate — in a vote that, if done in reconsideration of a failed cloture vote, is not subject to debate. The Senate would then vote on the appeal. If the appeal won a simple majority, the new precedent would prevent the filibuster of voting legislation. It would leave the filibuster in place for other legislation.
Manchin explicitly ruled out supporting a voting rights carve-out in a July meeting with Texas Democrats who had flown to Washington to ask for Senate action to preempt the voter suppression law the GOP legislature in their state was trying to (and subsequently did) enact. But if Senate Republicans continue to refuse to consider any voting rights legislation, and Manchin and others grow frustrated, the carve-out remains the least obtrusive measure for dealing with the problem without disturbing the underlying “tradition” any more than it has already been disturbed by earlier actions. The real key is whether all Democrats share the view of most Democrats that preemptive federal voting rights legislation is both a moral imperative and a practical necessity. It’s not something anyone can afford to be too mush-mouthed or lily-livered about in the current political environment. And the time for action is right now, before the Democratic trifecta in Washington becomes a thing of the past, which could very well happen next year.