Democrats Still Have a Way To Pass Their Voting Rights Legislation

(Editor’s Note: This piece first appeared in Reason on January 28, 2022.)

Senate Democrats keep trying to change the filibuster rules so they can pass the John Lewis Voting Rights Advancement Act and the Freedom to Vote Act. They also keep failing, and last week they failed again. So it still takes 60 votes to curtail a filibuster by ending debate on a bill. The Democrats don't have 60 votes in the Senate, so many people declared both bills dead.

But there is still a conceivable way the Democrats could pass their legislation with a simple majority vote. It would take a marathon "talking filibuster" in true Mr. Smith Goes to Washington fashion.

Under the Senate's rules, Republicans can delay a vote as long as they keep the debate alive on the Senate floor. And as Sen. Ted Cruz (R–Texas) and others have demonstrated, it is possible to hold the floor for a long time. But Senate Rule XIX limits the number of speeches a senator can make, stating that "no Senator shall speak more than twice upon any one question in debate on the same legislative day." The Senate's presiding officer must call a vote on a bill when no senators left on floor can speak within the limitations of the rule. After this, a simple majority can pass a bill.

Could the Republicans simply take turns talking until the day is over, then start over again? No, because the Democrats control when the Senate adjourns. A legislative "day" does not end at 5 p.m. Senators have to vote to adjourn the Senate, and this does not have to happen at the end of the calendar day. Democrats can make a legislative day last for multiple calendar days by keeping the Senate in continuous debate on the bill, or by voting for a temporary recess rather than adjourning.

The Democrats have tried to narrow Rule XIX to create a carveout for this specific legislation. In effect, they wanted to strip away Republicans' ability to offer amendments, make motions, and raise points of order during the debate. But Sen. Joe Manchin (D–W.Va.) wasn't on board with this—not because he opposes the "talking filibuster," but because the proposed rule change would substantially limit Republican participation in the legislative process.

Yet Democrats don't need to change the rules to block GOP amendments. They can defeat amendments from Republicans with no debate on a simple majority vote. While Republicans may offer different motions to prolong their filibuster once they have exhausted their two speeches, historical precedent suggests that the effort to do so will be futile. When given the opportunity, senators have never offered amendments—or other motions—indefinitely to postpone a vote.

Manchin and Sen. Kyrsten Sinema (D–Ariz.), who have joined the chamber's Republicans in opposing changes to the filibuster, are more likely to support this strategy, since it keeps the Senate's current rule in place. Sinema has stated that she supports the two bills and is opposed only to "eliminating the 60-vote threshold." Manchin has not ruled out supporting the legislation, and he says he supports efforts to increase the pressure on filibustering senators. Speaking on NBC's Meet the Press last year, Manchin commented, "If you want to make it a little bit more painful, make him stand there and talk." It seems that Manchin draws the line at "breaking the rules to change the rules," not at passing voting rights legislation on a simple majority vote.

If Democrats want to pass their voting rights bills, they should listen to Manchin and Sinema and force Republicans to embark on a "talking filibuster". No matter what happens next, Democrats should remember that the filibuster is not a simple roadblock—it's a tool in legislators' arsenal.