The Senate resumes Tuesday at noon, foregoing what would have been a week of recess for Martin Luther King Jr. Day, in order to debate the Freedom to Vote: John R. Lewis Act, the combined voting rights and election reform bills passed by the House last week. That debate can’t be avoided, thanks to the process Majority Leader Chuck Schumer and Speaker Nancy Pelosi engineered to bypass the first Republican filibuster, on the motion to proceed. The House folded the combined voting rights bill into an unrelated bill that was in reconciliation between the two chambers. Because the Senate had already passed the underlying bill, the whole thing can go directly to the floor for debate.

There, Democratic senators who aren’t Joe Manchin and Kyrsten Sinema will talk about its importance and—other than Mitch McConnell and a few grandstanders declaring that it’s a Democratic power grab trying to seize power from the states—Republicans will mostly not show up. That argument, by the way, is exactly the same framing that Southern segregationists in the 1950s and ‘60s used while filibustering civil and voting rights legislation.

Republicans—with the help of Manchin and Sinema—will use the filibuster in the most Jim Crow tradition to defeat the bill. Schumer and fellow Democrats—minus Manchin and Sinema—will move to alter the filibuster in order to pass the bills. Because the two saboteurs will refuse to help save democracy, the bill will fail to pass. That is unless a miracle of decency and enlightenment occurs between now and then for the two, or Democrats agree to use another procedural gambit to outlast Republicans and pass it with a simple majority without ending the filibuster.

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            Tuesday, Jan 18, 2022 ·  5:51:47 PM +00:00

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      Joan McCarter
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    Looks like Plan B might have already been ruled out. But that’s not a certainty. 

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Democrats are pushing forward because, in the words of Virginia Sen. Tim Kaine “We all have to be recorded at this moment in time about where are we in protecting the right to vote.”

In comments at a National Action Network event on Martin Luther King Jr. Day, Schumer reiterated that, calling out Manchin and Sinema. He said he would do “everything in [his] power to advance legislation that would strengthen our democracy” despite the “two Democrats who don’t want to make that happen,” adding that the “fight is not over.”

“Far from it,” Schumer said. “I’m going down to Washington, and we are going to debate voting rights. We are going to debate it, and, in the Senate, you know we need 60 votes to break a Republican filibuster … but since we only have 50 Democrats in our razor-thin majority, the only path forward on this important issue is to change the rules to bypass the filibuster.”

“We must never give up,” Schumer said Monday. “We are going to continue till we get full voting rights for all Americans. We will never give up until we stop these horrible, horrible laws from passing until we expand the right to vote, not contract it.”

How that’s going to happen, or when exactly, is not clear. As of Tuesday morning, the health status of all Democrats wasn’t apparent—Sen. Brian Schatz of Hawaii had tested positive for COVID last week, Sen. Dianne Feinstein of California was absent for an undisclosed reason. It’s possible there won’t be 50 Democrats available right now to move forward.

That could argue for that other procedural trick at Schumer’s disposal—it would buy time. That’s to use yet another Senate rule to force Republicans to hold the floor with speeches and procedural motions and tire either them or the two traitor Democrats out enough to just break the filibuster.

This is something Democrats are looking at. “There are a couple of paths here. Do we go down the path and do a long debate until it’s done and then have a simple debate?” Kaine said last week.  “We wouldn’t need a rules change to pass the bill by simple majority if the debate is over. Theoretically, you do not need a rules change to pass a bill that’s on the floor, you just have to allow debate to occur,” he added.  

James Wallner, a former Senate Republican aide and expert on Senate procedure, explained how it would work. “The easiest way to get to final passage on this bill is to put it on the floor and have Vice President Kamala Harris or Majority Leader Schumer or any other senator start to make points of order against any senator who tries to speak more than twice.” That’s Senate Rule XIX, which says a senator can’t speak more than twice on the same question on a legislative day. That would mean Schumer would have to keep the Senate in session indefinitely—staying on the same legislative day for days, possibly weeks. That means simply recessing at night instead of adjourning. That would force Republicans to debate until all 50 of them had spoken twice.

That would put some pressure on the 16 sitting Republicans, including McConnell, who are on the record in support of the federal government protecting voting rights. Those sixteen have all voted to reauthorize the federal Voting Rights Act.

But it would also require a much more coordinated Democratic caucus than we’re used to seeing, and a presiding officer who was rock solid on the rules. “This requires a more aggressive presiding officer,” a senior aide to Senate Democrats told The Hill. “The parliamentarian is not going to advise the presiding officer, ‘Nobody seems to be seeking debate so bring the question.’ It will have to be affirmatively sought by the presiding officer.” The aide added: “The two-speech rule is hard to make work because you can always offer another amendment or bring up a new debate proposition and then get two more speeches out of that. And once again, the parliamentarian doesn’t look to enforce it again, so it would have to be presiding officer causing the parliamentarian to do something they don’t traditionally do.”

It would also mean that all 50 Democrats and Vice President Kamala Harris would have to be available all the time to squash Republican procedural motions. It requires both energy and discipline. If Schumer could muster that among his conference for a week, maybe two, it actually might wear Sinema and Manchin down to the point where they would give in on a filibuster carve-out for voting rights. Or not. The tactic would also force Manchin to either stand by his claims that he thinks the talking filibuster should be restored. Because this would be essentially that, a talking filibuster.

There’s really nothing else pending in the immediate term to keep Democrats from trying this, though we’re just one month away from the next must-pass government funding bill. The continuing resolution that government is currently operating on runs out on Feb. 18. A potential government shutdown could serve as an additional pressure point on Manchin and Sinema, who were more than happy to support a filibuster carve out in a similar situation last month, with the debt ceiling.

“They can table at any point anything before the Senate, so the Democrats are literally in simple-majority territory right now,” Wallner told The Hill. They’ve got the majority, even though in a 50-50 Senate that’s kind of a technicality. They have it and they need to use it.