The filibuster, the Supreme Court, and a plan of action

Protecting voting rights in 2022 requires BOTH the filibuster nuke and Supreme Court expansion. They go together, and the iron will never be hotter than right now.

Posted by LM on February 11, 2021

This week has seen history made as Donald Trump is tried in the Senate on an impeachment charge of incitement to insurrection (the first time a president has ever been impeached twice and the first time a former president has ever been tried) for his leadership of the terrorist attack on the Capitol on January 6th. Of course it's a gong show so far, but so long as Democrats either secure a conviction, or a simple-majority vote on the 14th Amendment, Section 3, we can be done with him forever. That abbreviated passage, by the way, reads:

"No Person shall be... elector of President... who, having previously taken an oath... to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof."

But because this is the multitask age, Democrats not directly involved with the trial (and newly-elected president Joe Biden) should be focused on their future. And ours. Near the tip of everyone's tongue lately has been the Senate filibuster, which prevents contentious legislation from passing without a 2/3 majority vote. Its power has been reduced twice in the last ten years: majority leader Harry Reid (D) lead the effort to eliminate its use on executive branch and judicial nominees, except to the Supreme Court, in 2013. In 2017 Mitch McConnell (R) lead the effort to remove the restriction on SCOTUS justices too. But it remains in place as a procedural move on other legislation the minority party finds contentious, as it was designed to do to preserve the deliberative power of the "world's greatest deliberative body."

However, the political culture of extremism and hyperpartisanship has brought us to an inflection point. After ten years of Republican focus on both voting rights (gerrymanders, voter roll purges, last-minute changes to governor powers, and almost too many others to mention or, honestly, believe); as well as ten years of Republican focus on preserving ethnic/racial/gender power through the courts (Federalist Society + changing national demographics = call to arms), and we are now left with a deeply decimated democracy in which the filibuster is now a harakiri-like weapon rather than a shield for defense against oppressive majorities.

This is where the miracle of 2021 comes in. Thanks to an amazing turn of events in Georgia last month (the day before the terror attack ironically), not just one but two Senate seats flipped into the Democratic column, giving each party 50 each. With this, and with Vice President Kamala Harris' tiebreaking power as Senate president, the Democrats have complete control of Washington for the first time since 2010 - when the tea party-infused midterms took place and the aforementioned hyperpartisan era began. But this is a short hayride if Democrats are not properly prepared to stop a repeat of the last decade from taking place, starting with the 2022 midterms. One of the Georgia senators, Raphael Warnock, defeated incumbent Kelly Loeffler. But Loeffler was selected by governor Brian Kemp to replace Johnny Isakson, who resigned his position in 2019, and so Warnock is still finishing Isakson's term and will need to run again in 2022. In the House, Democrats lost seats in the election and are seen as quite vulnerable in the midterms, especially after the 2020 census prompts the drawing of new congressional maps (and also considering the vulnerability usually associated with a president's party in his first midterm).

Much of what led to the terror attack were Trump's comments that the election was stolen and his defeat illegitimate. His conspiracy theories regarding mail-in ballots, drop-off ballots and every which manner Democrats could have a proper voice in democracy is now being brought to a scary degree of reality thanks to state Republicans. Many red states, or states with red legislatures, are planning a whole new round of conservative voter fraud that, if successful, will make their efforts of the last decade look like a starter kit. In addition to the *actual* advantage they'll enjoy heading into 2022, some of what they are rumored to be attempting include:

1. Requiring photo ID photocopies to be mailed in with a ballot.

2. Requiring mail-in ballots be notarized.

3. Outlawing the ability to drive another voter to the polls.

4. Transferring power from the people to the legislature, including permitting a legislature to choose their own electors should an Electoral College result work against them (something Trump recommended in his failed coup attempt). Of course this is after many of these states have already chosen their legislatures by first choosing their own voters via gerrymandering.

This is in addition to the regular power afforded states when conducting elections, such as determining the number of open polling locations (which Republicans decide based on a district's political lean) and number of early voting days and daytime hours, for example.

The new Democratic Senate majority has wasted no time addressing this, announcing their continued support for the For the People Act (HB1), which passed the House in 2019 and was introduced in the Senate this year. Among other provisions the law would, according to The Guardian's report on the bill:

1. Require every state to offer automatic, same-day and online voter registration.

2. Require states to let anyone vote by mail if they wish and implement new guidelines to prevent states from being overly aggressive in how they purge their vote rolls.

3. Strip state lawmakers of their power to redraw congressional districts every 10 years, curbing their ability to draw lines that virtually guarantee re-election.

The last provision would be accomplished by requiring all 50 states to set up independent, nonpartisan redistricting commissions, which are already in use in several states (Arizona most recently). And these provisions are in addition to restoring the provisions of the Voting Rights Act of 1965 that were weakened by the 2013 John Roberts Supreme Court. Most notably the "preclearance" provision, which required states with a history of racial discrimination to first clear any proposed voting changes with the federal government before enacting them.

These fixes sound absolutely spot-on, and many liberals cannot wait to see an America that begins to work for all. However the filibuster and SCOTUS stand in the way, which is why we must address them both and why we should see them as two parts of the same plan of action. Indeed, the whole point of removing the filibuster is to pass legislation by majority vote. There's no point to doing that if a 6-3 SCOTUS, ever more conservative than in 2013, will simply shoot down such legislation like fish in a barrel. The most likely Democratic defense of For the People, or the most accessible and easy to predict, would be the 14th amendment to due process and equal protection before the law. But the radicalized SCOTUS would never allow that to stand against what would be a robust Republican defense of the 10th amendment protecting federalism and state power, whose role in managing even federal elections is plainly laid out in the Constitution (but of course can be sensibly offset by the 14th when necessary).

Such a fight, if it ever materializes, would be more intense than the debate over Obamacare (a major partisan factor in the 2010 midterms) and would likely take place far too close to the 2022 midterms for Democratic comfort. Which is why their best option is to prevent the fight from ever taking place. They can do that by adding seats to SCOTUS after nuking the filibuster, but before passing For the People or any other new voting rights legislation.

Which brings us back to the filibuster and its own challenges within the Senate Democratic caucus, most prominently the rejection of such a move by conservatives like Joe Manchin (D-WV). He has publicly stated that there is nothing that can change his mind, but I believe the right kind of pressure could be applied if done strategically. The answer is to first convince Joe Biden, who is currently against nuking as well, but has made prior comments suggesting he could be convinced. And if his party is systematically stonewalled he may change his mind quite quickly. Convincing Biden - the president of the United States and leader of the Democratic party - that his agenda is at risk and his presidency could effectively end after just two years (which he saw happen to Obama, from a front row seat as his VP, in 2010)? That could be what's necessary to then convince Manchin. In fact, there's probably no other way. A personal, 1-1 phone call from a newly filibuster-soured president informing Manchin that he alone is putting everything at risk would be incredible pressure no politician may be able to escape from. And once they nuke the filibuster, isn't the party (and the political climate) basically as partisan as it needs to be to then expand SCOTUS and complete the journey?

Right now - early in the Biden presidency - is the best political convergence for this two-part plan. Republicans are at their most fractured, more fractured by far than they've been over the last forty years, and it is unclear if they will repair themselves enough by 2022 to message effectively (but we should assume they'll manage). On the other side, Democrats are at their most progressive: they are aggressively attacking COVID, the economy and the unTrumping of America. But eventually those factors will fade. COVID will be under control, the economy will either rebound or be well on its way to recovery, and Biden will run out of things to unTrump. The energy in the Democratic party will cool, they will move back to their post-Reagan default position (the center), and they will be too scared to do anything aggressive close to the midterms (and from the center). The best time to make this energy last, to pull the party into a more permanent position on the left, is now. Doing so will protect voting rights, give Dems a fair shot at keeping power after 2022, and ensure democracy's survival for at least a few more years. If we do not do this, we risk wasting two years at the expense of power and democracy for the next twenty.

2010 midterms
2020 election
2022 midterms
Voting Rights
Electoral College
Tea Party
Joe Biden
Harry Reid
Mitch McConnell
Joe Manchin
John Roberts