Democrats need to choose: The filibuster or democracy

The pandemic relief package is reportedly close to passage, and so Democrats are turning their attention to House Resolution 1 (or HR1), a massive voting rights overhaul that would ban partisan gerrymandering, expand voting rights protections, impose new restrictions on campaign finance, and more. If passed, it would be the most significant such law since the Voting Rights Act of 1965.

With any luck the pandemic relief package will be big enough to restore a prosperous economy within a year or so. Therefore, whether or not Democrats can overcome the Senate filibuster and their own timidity to pass HR1 is now the most important single factor in whether they can hang on to their congressional majorities, and hence stop Republicans from cheating them permanently out of national power.

In the background, Republicans are loudly promising to cheat their way to victory in 2022. Brutal gerrymanders in Republican-controlled states are already on deck, ready to go as soon as problems with Census data get ironed out. More than 250 vote suppression bills have also been introduced at the state level. I would not be at all surprised to see some state Republican party attempt to pass a law straight-up banning Democrats from voting at some point.

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Republicans are also trying to further eviscerate Americans' voting rights through judicial rule-by-decree. Chief Justice John Roberts already unilaterally rewrote Section 4 and 5 of the Voting Rights Act (in a decision that didn't even cite the Constitution), and now Arizona Republicans are pressing forward with a case trying to strike down Section 2, which bans Jim Crow-style infringements of the right to vote based on race. With a 6-3 conservative majority on the Supreme Court, the prospects look grim.

Even if Democrats get exactly the same proportion of the vote they got in 2020 in the midterms next year, unchecked gerrymandering will probably cause them to lose the House at least. Stringent vote suppression will probably lose them the Senate too. And from there, Republicans evince every intention of trying to cheat their way to permanent one-party rule. They already tried to overthrow the 2020 election and install Trump through legal chicanery and fomenting a literal putsch; if they took back the House and Senate it would not be that hard to finish the job.

In other words, if we want a good chance of American democracy continuing to exist at all, HR1 is a necessary precondition.

But that brings me to the Senate, the place where hopes and dreams go to die. Voting rights have nothing to do with the budget, so according to the Kafkaesque Senate rules, HR1 can be filibustered. So far conservative Democratic senators like Joe Manchin and Krysten Sinema have said they do not support ending the filibuster. If even one of them holds to that view, HR1 is dead.

From a historical standpoint, this is a maddening position. Manchin and Sinema pose as the defenders of traditional Senate norms and procedures, but as I have previously written, the modern Senate filibuster — where basically every normal bill is blocked, and only must-pass budget items or totally anodyne things get through — is not even 15 years old. Mitch McConnell basically invented this filibuster by himself in 2007, and even since then it has been amended several times.

The routine 60-vote requirement has ended regular order budgeting (incidentally leading to a plague of sloppy bill drafting), concentrated power in the party leadership in both the House and the Senate, throttled traditional congressional careers, and even harmed moderates' beloved bipartisanship. Back when 51 Senate votes were enough to pass a law, there was a lot more compromise and collaboration, because members of Congress often figured that if something was going through anyway, they might as well see what they could get with their vote.

The reconciliation process is another procedure that bears almost no resemblance to how it was originally intended to work. It was created in 1974 with the Congressional Budget Act. Originally supposed to be a way to pass through annual budget measures in an expedited fashion, it was hence only used occasionally. But since it can also be used as an end run around the filibuster, now the parties try to lard up their reconciliation packages by bending the rules as far as possible — thus the recent argument between Bernie Sanders and the Senate parliamentarian about whether the predicted budget impact of a $15 minimum wage would be "merely incidental" in keeping with reconciliation rules (which Sanders lost, alas).

One can easily despair over all this stupid nonsense. A great nation should pass laws based on who wins elections, not who can come up with most tendentiously expansive readings of some obscure procedural rule.

However, it's also true that the Senate can overrule the parliamentarian or change its own rules at any time, to keep "the filibuster" while getting rid of the one McConnell invented. Fifty senators plus Vice President Harris could vote that voting rights measures can't be filibustered, or could be included in reconciliation. Or Democrats could make filibusters much harder to do (currently they only require a single email), or add a time limit, or some other fix. The options are endless.

Moderate Democrats in the Senate have a choice to make: They can either defend democracy and the Constitution by passing HR1 or they can save the McConnell filibuster. They can't do both.