Wednesday, January 19, 2022
The U.S. Senate today is debating the Freedom to Vote: John R. Lewis Act, a sweeping and, I believe, essential set of proposed changes to the nation’s election systems. This bill is unlikely to pass. As a result, the already frail machinery of our democracy will suffer increased sabotage and possible collapse in several states—adversely affecting the lives of all Americans, even those who don’t live in those states.
As I write this, the Freedom to Vote bill has one slim chance of success, which I’m not much counting on. We know that all 50 Republican senators, as a block, oppose it. All 50 Democratic senators, as a block, claim to support it. With Vice President Harris poised to break the tie, Democrats could theoretically pass it, since all legislation—technically—passes on a simple majority basis. But alas, beyond the technicality, the dreaded filibuster in the Senate’s rules sets a 60-vote threshold both (1) to bring legislation to the floor for debate and (2) to close debate and proceed to a vote on the legislation itself.
Democrats this week used a devious maneuver to bypass the on-ramp filibuster and get the Freedom to Vote Act to the debate stage: that is, they packaged all of the voting provisions into another completely unrelated bill about NASA. I don’t get why this worked, but apparently it did, but they still need a way to bypass the looming off-ramp filibuster—meaning that when today’s speechifying is over, the bill itself is unlikely to get an up-or-down vote. The legislation’s debate stage will theoretically never end, and the bill will never advance to the vote stage.
The Senate can revise its rules, including the filibuster rules, by a simple majority vote. As everyone knows, however, Joe Manchin of West Virginia and Kyrsten Sinema of Arizona—the problem children in the Democratic caucus—are on record opposing a “carve-out” of the filibuster in order to pass this vital set of protections for our democracy.
The one slim chance for success that I mentioned involves a proposal to turn back the clock, so to speak, and demand a “talking filibuster” on the Freedom to Vote Act, as in Mr. Smith Goes to Washington. That is, keep the filibuster, but require all senators opposing the bill to explain their opposition to it to the American people on the Senate floor. Each senator would get two chances to speak and could do so ad nauseum, so the process could drag on terribly, but a talking filibuster would offer two advantages. First, it would require GOP senators to explain in public why they oppose voting rights, which could be embarrassing and provide fodder for future campaign opponents. But the second advantage—the fact that the talking filibuster is a finite process—would be huge. Even senators have to pee, and no senator can speak forever, and when every senator has used up his filibuster allotment, the bill would automatically move to the vote stage and presumably pass by a simple majority.
The current, prevailing “silent filibuster” process, on the other hand, is so streamlined, so painless, so easy to use, that senators don’t even need to leave their offices to block bills. They quite literally just phone it in, no questions asked, no explanation required. The silent filibuster costs senators nothing and gives them infinite power, because the bills they oppose simply never come up for debate or for a vote.
But Manchin and Sinema claim to oppose the talking filibuster. One has to wonder who’s paying them.
The provisions of the Freedom to Vote: John R. Lewis Act would check a dangerous trend threatening democracy in several states, and its likely failure will accelerate that trend and constitute an epic calamity for American self-government. States with GOP-controlled legislatures are making it harder at the local level for young people, people of color, older and handicapped people, and low-wage working people to vote. Unless checked, Republicans at the state level will find it supremely easy to gerrymander Congressional districts, dominate local election boards, and manipulate vote counts. With such thorough control at local levels, the GOP will easily regain and maintain control over both houses of Congress and reelect Donald Trump to the White House, regardless of the wishes of the majority of American voters. If Republicans regain control of the House of Representatives at the end of this year, which is probable, they are likely to impeach Joe Biden just for the hell of it—as retaliation for the Democrats’ two completely justifiable impeachments of Trump. Not to put too fine a point on it, failure of the Democrats to pass today’s voting rights bill could usher in a very ugly, authoritarian phase in this country for at least a decade, making Trump’s first term seem like a walk in the park. Trump, once again in the Oval Office, will be so much more adept at intimidating and dominating all the departments of government, at bending them to his will. He will know how to eliminate those pockets of integrity in the civil service that frustrated some of his corrupt and authoritarian plans in his first term. If Trump enters the White House again, will he ever leave?
I know I sound alarmist, but I actually think this is quite realistic. We should now entertain no illusions about what Republicans are capable of doing to retain power.
In my first sentence I called today’s Freedom to Vote Act “sweeping.” That’s both a good thing and a bad thing. Here’s what’s in the bill.
1. First, it would create an affirmative right to vote under federal law.
2. Second, it would restore a key mechanism of the Voting Rights Act of 1965 (VRA) that prevented states from rewriting their voting laws to discriminate against minority voters. In 1965 the VRA gave the U.S. Justice Department “preclearance” powers in regard to state election laws, and thus ended the myriad Jim Crow practices in the south by which voting had remained, for almost a century, a purely white privilege. The VRA prohibited certain states from implementing any change affecting voting without receiving Justice Department preapproval, ensuring the change did not discriminate against minorities. But in 2013, in its Shelby County vs. Holder decision, the Supreme Court found that the VRA’s criteria for determining discrimination were out of date, and thus put a hold on the DOJ’s preclearance process. Since Shelby, and especially since last November’s election, red states have scrambled to pass laws clearly designed to make it harder for racial minorities, young people, and older and disabled people to vote, since federal authorities no longer had the power to look over their shoulders and block such injustices before they occurred. The Freedom to Vote Act being debated today would restore the Justice Department’s preclearance powers under VRA by updating the discrimination criteria following the Court’s guidelines in Shelby.
3. Third, simply to make it easier for everyone to vote, the bill would -
· Make Election Day a federal holiday.
· Require online, automatic, and same-day voter registration.
· Require 15 days of early voting, including 2 weekends.
· Require no-excuse mail voting, ample ballot drop boxes, online ballot tracking, and streamlined election mail delivery by the USPS.
· Require states to accept multiple types of voter IDs.
· Require states to count provisional ballots cast in the wrong precinct.
· Restore voting rights to formerly incarcerated felons.
· Make it harder for states to remove eligible voters from their rolls.
· Provide resources to serve voters with disabilities and overseas military voters.
· Improve voter registration resources.
4. Fourth, it would bring election administration and redistricting under federal standards and controls, by –
· Prohibiting partisan gerrymandering and specifying criteria for drawing new congressional district maps.
· Requiring states to use voter-verifiable paper ballots and conduct post-election audits.
· Enhancing resources and standards for the cybersecurity of voting equipment.
· Protecting local election officials from being fired or removed without cause.
· Criminalizing interference with voter registration and imposing penalties for harassment, threats, and intimidation of election workers.
· Stating chain-of-custody requirements for the integrity of ballots and election materials.
5. Finally, the Freedom to Vote Act would reform campaign finance by –
· Targeting dark money in elections and enhancing transparency in campaign advertising.
· Creating a public financing program for House elections.
· Requiring campaigns to report instances of foreign interference.
· Enforce laws against coordination between PACs and campaigns.
· Strengthen enforcement of campaign finance regulations by the Federal Election Commission.
These are all good things. Each one of them would add to the freedom and integrity of our election process. But there’s a problem in putting so many good things into one piece of legislation, and it’s a problem shared by President Biden’s other major—and so-far failed—initiative, the Build Back Better bill. Such “portmanteau” bills are nearly impossible to pass.
I know why Democrats in Washington do this. President Biden’s 100 days have long since passed, the Democratic majorities in both chambers are so thin, the opposition is so solid and vicious and relentless; Democrats feel that they have so much they need to get done, and so little time, and so little power. Pack it all in and push hard.
But it doesn’t work.
First, by packaging so much change into one bill, Democrats practically hand their opponents their talking points on a silver platter: it’s “overreaching,” “overambitious,” “a federal takeover,” and “radical.”
More importantly, to my mind, legislation like this removes citizens—activist citizens, even generally well-informed citizens—from the process, because most people have absolutely no idea what’s in a particular bill, what it’s specifically about. And citizens are not going to get energized into calling their senators and representatives, into writing letters and emails, and doing it over and over again for impact, without really clear, specific talking points of their own. A “Freedom to Vote” bill doesn’t explain itself: you may as well call it a “Cute Puppy” bill. I had to look up all the specific details of this bill myself today, in preparation for writing this. I try to follow this issue carefully, but I realized this afternoon that the only provisions in this bill that I already understood were the ones involving the Voting Rights Act of 1965 and the Supreme Court’s Shelby decision. I love all the stuff in this bill, but if I were to draft an email in its support to Senators Casey and Toomey I would be hard pressed to state exactly and concisely why I support it—without, of course, sounding like an alarmist nut.
Consider, for example, how much easier it would be to organize citizens to support a bill making Election Day a federal holiday. People would get it, like it, be able to describe it.
It may be time for citizens to start taking these initiatives on themselves and start mobilizing around them. One by one.