Democrats are barreling toward a showdown over voting rights and changes to the Senate rules, after months of growing frustration from within the caucus.
The party is under pressure, from both outside groups and lawmakers, to pass federal election legislation as GOP-run state legislatures debate new voting rules and as the start of the 2022 midterm election is fast-approaching.
After watching Senate Republicans block election and voting bills via the filibuster, which requires 60 votes for most legislation to advance, Senate Majority Leader Charles Schumer (D-N.Y.) is vowing to bring the fight to a head in January.
“The Senate will consider voting rights legislation, as early as the first week back. … If Senate Republicans continue to abuse the filibuster and prevent the body from considering this bill, the Senate will then consider changes to any rules which prevent us from debating and reaching final conclusion on important legislation,” Schumer wrote in a letter to the caucus.
But forcing a vote could highlight division within the caucus, where both Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-Ariz.) support the 60-vote threshold. Democrats need both of them to ultimately vote to change the rules.
Voting rights legislation and potential changes to the Senate’s legislative filibuster are linked because Republicans have used the 60-vote hurdle to block bills that would overhaul federal elections or strengthen the 1965 Voting Rights Act.
Democrats are having behind-the-scenes talks to try to come up with ways to change the Senate’s rules to break the logjam and a group of Democrats — including Sens. Tim Kaine (D-Va.), Jon Tester (D-Mont.) and Angus King (I-Maine), who caucuses with the party — was tapped by Schumer to lead the discussions and come up with options.
“We’ve got to get this done. … We are having a robust conversation,” said Sen. Raphael Warnock (D-Ga.), who has publicly and privately pushed his colleagues to be more aggressive in coming up with a plan to pass voting rights legislation.
Kaine added that “there’s ideas on the table now that people are attracted to.”
“We’re looking at reforms to restore the Senate. It’s not just filibuster reforms,” he added.
Democrats haven’t settled on a plan, but instead are discussing a range of options aimed at winning over the 50 votes needed to invoke the “nuclear option” and change the Senate’s rules with a simple majority.
Though the Senate is evenly split, Democrats would be able to change the rules on their own because Vice President Harris can break a tie.
One option, backed by some in the caucus, would be to revert to a talking filibuster where opponents to a bill could delay it for as long as they could hold the floor, but that legislation would then only need 51 votes to clear the Senate.
Another would create a carveout from the 60-vote requirement for voting rights or election legislation. Though that would leave the hurdle in place for other legislation, Republicans warn that it would pave the way for the legislative filibuster to be neutered altogether.
The carveout idea has picked up support from within the Democratic caucus.
Sen. Maggie Hassan (D-N.H.), who is up for reelection in 2022, announced that she supported letting voting rights legislation pass the Senate by a simple majority.
“A set of arcane Senate rules are being used as an excuse not to act. This cannot stand,” Hassan said.
Smaller options include changing the number of votes from 60 “yes” votes needed to break a filibuster to 41 “no” votes needed to sustain it. Supporters argue that it would put the onus on senators blocking the bill, rather than on supporters who want to advance a piece of legislation.
Senators have also discussed getting rid of the 60-vote hurdle to start debate on a piece of legislation combined with a deal that guarantees a certain number of amendment votes for both sides.
That is unlikely to satisfy reform advocates because it would leave in place the 60-vote hurdle needed to end debate on legislation and ultimately move it to a final vote. But it would make it easier to debate bills in the Senate, where opponents are currently able to prevent a bill from being brought up, and gets around a current rule that allows any senator to block amendment votes unless leadership is willing to eat up days of time.
To change the rules through so-called normal order, Democrats would need the support of at least 17 GOP senators, in addition to all their members.
Though Manchin has talked with a group of GOP senators about ideas including getting rid of the 60-vote hurdle needed to start debate combined with a guarantee on amendment votes, Republicans are unlikely to support any rules change that gets rid of the 60-vote hurdle needed to end debate on the bill.
That means Democrats will need to use the “nuclear option” to change the legislative filibuster on their own.
But they don’t yet have the votes to do that, and it’s not clear how they get there on the two changes — a talking filibuster or a carveout — that would be needed for Democrats to be able to pass voting rights legislation on their own.
Both Manchin and Sinema have made clear recently that they remain adamant in their support for the 60-vote hurdle.
“If you can make the Senate work better, the rules are something we’ve changed over the years; 232 years, there’s been rule changes. But there’s never been a change with the filibuster, the rights of the minority,” Manchin said during a “Fox News Sunday” interview Dec. 19.
Sinema has also been skeptical of a carveout for voting legislation, raising concerns about what types of legislation a Republican majority could enact under the same rules change.
In addition to talking to Republicans, Manchin has been in talks with Kaine, King and Tester. Though Manchin hasn’t publicly committed to supporting any change, and continues to say that rules reforms need to be bipartisan, senators believe that they are making progress with the key holdout.
“He’s ain’t there yet, but he’s open,” Tester said about Manchin, noting that they had given language on potential changes.
Manchin added during the Fox News interview that he had made “no commitments” on what changes he could potentially support.
“I am working on trying to make the Senate work better, bringing bills to the floor, amending them, having debates, understanding, being transparent to the public, what you agree or disagree,” he said.
Sinema, meanwhile, is calling for a public debate in the Senate on the rules, a similar position she staked out during a July Washington Post op-ed.
Failing to change the Senate’s rules and pass voting rights legislation would be a significant blow to both the White House — which has signaled its a top priority — and outside civil rights and progressive groups, which see passing legislation as fundamental to protecting democracy.
Schumer, during an interview with SiriusXM’s The Joe Madison Show, urged advocates to keep up the pressure heading toward the Senate action—including on his own members.
“Keep up the drumbeat,” Schumer said. “We need all the anger and the protests, etc., that have occurred here.”
“So now we’re in the final stages,” he added, “and we’re asking people to keep up the pressure.”
–Updated on Jan. 3 at 1:17 p.m.