UPDATE: Mitch McConnell and Senate Republicans on Wednesday blocked the Freedom to Vote Act from advancing, as expected. The vote fell along party lines, with all 50 Republicans upholding a filibuster to stop the measure, which is aimed at safeguarding the right to vote.
Original story below.
WASHINGTON — It’s not often the leader of the United States Senate holds a vote knowing it will fail. It’s even less often that the Senate leader calls a doomed vote for one of the most important bills in his party’s legislative agenda.
Majority Leader Chuck Schumer (D-N.Y.) is about to do just that. The Senate will vote Wednesday on the Freedom to Vote Act, a once-in-a-generation bill to safeguard the right to vote, disclose dark money, and stop the partisan operatives who tried to steal the last election from stealing the next one. The vote is almost certainly going to fail. Democrats hold 50 seats, they need 60 votes to beat a Republican filibuster, and there’s no indication that even one GOP senator, let alone 10, plans to break ranks and support the bill.
But for the Democratic lawmakers and outside activists pushing the bill, failure on Wednesday’s vote isn’t just expected — it’s part of the plan. They say it’s one of the final steps in a years-long, carefully choreographed strategy, one more proof point that Republicans won’t support even the most popular voting-rights and clean-government reforms.
And if not a single Republican will vote for those reforms, then Democrats have no choice but to negotiate a change to the filibuster rules that will allow them to pass the Freedom to Vote Act and try to shore up America’s battered democratic system in time for the 2022 elections.
Even with years of planning, the odds are long they pull it off. They have to win over centrist Sen. Joe Manchin (D-W.Va.) and rogue Sen. Kyrsten Sinema (D-Ariz.), not to mention half a dozen other senators who’ve privately expressed doubts about changing the filibuster. But those close to the action, the congressional aides and activists on the inside, believe this is their moment.
A Tidal Wave of Lies
The timing of tomorrow’s vote — and the even more critical fight to follow — couldn’t be more urgent. From January to September, 19 states have passed 33 new laws that will make it harder to vote and easier to sabotage elections, according to the Brennan Center for Justice at New York University. Some of these laws seek to reduce the number of polling places available to voters and limit the number of hours for early voting. Some of these laws reduce the window of time available to apply for a mail-in ballot and minimize the number, location, and availability of dropboxes in which you can safely submit your mail-in ballot. Some of these laws increase criminal penalties for local election workers who try to assist citizens in exercising their right to vote, whether it’s giving out water or snacks to voters waiting in line, helping voters with disabilities turn in their ballots, or encouraging voters to request mail-in ballots.
Those are the only bills that have become law. According to the Brennan Center, more than 425 bills that include measures to restrict voting access have been introduced in 49 states this year. To be sure, there are state lawmakers pushing to improve voting rights at the state level, with at least 25 states passing 62 laws in 2021 that would help expand voting access.
But Daniel Weiner, a voting-rights expert at the Brennan Center, says the wave of voter-suppression laws this year is an unprecedented assault on access to the ballot box, driven, in large part, by Republican legislatures acting on former President Donald Trump’s baseless claims about a stolen election. “A lot of it has been driven by falsehoods about the 2020 election, particularly around things like vote-by-mail,” Weiner says.
Soon after winning control of the House, Senate, and White House earlier this year, the Democrats came out with the For the People Act, their answer to the growing assault on voting and democracy by Trump-inspired GOP lawmakers. The For the People Act was like the pot roast of progressive politics: A doorstop of a bill, Democrats had grabbed every reform idea they had in the cupboard and tossed it in the bill — combat gerrymandering, drag dark money into the daylight, protect the franchise, crack down on big-money super PACs.
The bill passed easily out of the House. But it died on arrival in the Senate. Not only would no Republican support it; Sen. Manchin, a key moderate member of the Democratic caucus, announced his opposition to the bill, saying it was a partisan piece of legislation affecting an issue that required bipartisanship. “Congressional action on federal voting-rights legislation must be the result of both Democrats and Republicans coming together to find a pathway forward,” Manchin said at the time, “or we risk further dividing and destroying the republic we swore to protect and defend as elected officials.”
In the same statement, Manchin also declared his opposition to weakening the filibuster. Democrats quickly offered up a revised version of the bill, one that Manchin was generally more supportive of, but it died in the face of a Republican filibuster. And with that, it seemed, the For the People Act was well and truly dead.
Manchin in the Middle
But the small group of Democratic lawmakers and the dozens of activist groups pushing for the bill took hope from another statement of Manchin’s. In a tweet in May about the need to reauthorize the landmark Voting Rights Act, Manchin said that “inaction is not an option.” The rest of the tweet talked about the need to act in a bipartisan way to reauthorize the VRA, but it was those initial five words — “Inaction is not an option” — that Senate Democrats and their allies seized upon. Speaking on the Senate floor last month, Sen. Schumer said: “As Senator Manchin said earlier this year regarding congressional action on voting rights, inaction is not an option. I agree with Senator Manchin in that regard.”
After the defeat of the For the People Act in June, Manchin released a list of requests for what he wanted to see in a retooled voting-rights bill. Democrats spent the rest of the summer incorporating Manchin’s demands into a new compromise bill called the Freedom to Vote Act. The new bill, which was announced in late September, contains much of what was found in the For the People Act — provisions to increase disclosure of dark money, make Election Day a federal holiday, enact automatic voter registration at DMV offices, and pass nationalized standards for expanded access to early and same-day voting. While the bill pares back reforms to the Federal Election Commission, redistricting reform, and the use of voter-ID policies, it includes a raft of new protections against efforts to subvert or sabotage the vote-counting and certification process along the lines of what happened after the 2020 election.
Despite the changes to parts of the bill, reformers say it would still make huge improvements to everything from voting and campaign funding to shoring up American democracy against the next onslaught of “stop the steal” skullduggery. “Following the 2020 elections, in which more Americans voted than ever before, we have seen unprecedented attacks on our democracy,” Sen. Amy Klobuchar (D-Minn.), a leader on voting rights in the Senate, tells Rolling Stone. “We must take action. The Freedom to Vote Act will protect the right to vote by setting basic national standards to ensure all Americans can cast their ballots in the way that works best for them, regardless of what ZIP code they live in.”
Democrats not only crafted the Freedom to Vote Act to address Manchin’s concerns, they also gave him several weeks this fall to try to find 10 Republican senators who would support the new bill. From June onward, Democrats have adopted a Manchin-centric strategy, according to multiple congressional aides who have worked behind the scenes on the bill.
Recent reporting indicates Manchin has not found GOP votes for the new bill, even though it contains policies that are popular with Democrats, Republicans, and independents, according to recent polling. “It’s lawmakers on the Republican side of the aisle in Washington standing against this reform; it’s not Republican voters,” says Rep. John Sarbanes (D-Md.).
Filibuster Reform — or Bust
Which brings us to Wednesday’s vote. The vote is not about whether to pass the Freedom to Vote Act — it’s a procedural vote on whether to begin debating the bill. If Republicans filibuster that vote, as they’re expected to do, then the final phase of Senate Democrats’ strategy begins.
To pass the Freedom to Vote Act, Democrats will need to change the filibuster. Beltway media outlets use scary language to describe this process — “going nuclear” or using the “nuclear option” is the typical formulation — but in truth, the Senate changes the rules of how it does business all the time. Between 1969 and 2014, the Senate made 161 such changes, according to research by the Brookings Institution. The Senate changed the filibuster during Barack Obama’s presidency to confirm lower-court judges by a simple 50-vote majority; it did so again during Donald Trump’s presidency to confirm Supreme Court justices and cabinet secretaries.
The bigger hurdles to filibuster reform are Manchin and Sinema. Manchin himself called for filibuster reform in 2011, but has since come out strongly against it, saying the existing rules of the Senate protect small, rural states like his. “We will not solve our nation’s problems in one Congress if we seek only partisan solutions. Instead of fixating on eliminating the filibuster or shortcutting the legislative process through budget reconciliation, it is time we do our jobs,” he wrote in April.
Sinema, for her part, takes the opposite position of her more liberal counterparts: She argues that a strong filibuster is good for the Senate and for democracy. “The filibuster compels moderation and helps protect the country from wild swings between opposing policy poles,” she wrote in a June op-ed. The filibuster, she rightly points out, has been used to stop policies that Democrats deem dangerous or hateful — indeed, Democrats used the filibuster hundreds of times during Donald Trump’s four years in office.
If anyone can convince Manchin and Sinema — and that’s a big if — it’s President Biden. Publicly, Biden has signaled his support for bringing back the talking filibuster, which would require physically holding the Senate floor and speaking continuously for however long you intended to block a vote. Privately, as Rolling Stone first reported, Biden has told Schumer he’s ready to pressure Manchin, Sinema, and other resistant Senate Democrats to vote in favor of filibuster reform of some kind.
This is the endgame, Democrats and activists say. It will play out over the next few weeks, this pressure campaign to get all 50 Senate Democrats to approve filibuster changes in order to pass the Freedom to Vote Act along party lines. If Democrats can’t find the votes to so much as tweak the filibuster, then their once-in-a-generation voting-rights bill is dead.
All year long, Democratic leaders have invoked Manchin’s line that “inaction is not an option.” Senate Democratic leader Schumer, likes to go one step further. “Failure,” he says, “is not an option.” That vow will now face its toughest test yet.