Democrats Can Beat a GOP Filibuster Without Wrecking Senate Rules

Kamala Harris, Vice President Kamala Harris, and President Joe Biden both want Congress pass the two voting rights bills currently in the Senate. Biden, Harris and others blame Republicans for keeping the Senate from discussing the issue. Freedom to Vote ActAnd the John R. Lewis Voting Rights Advancement Act. They also urged Democrats to amend the Senate rules in order to overthrow Republicans’ obstruction, if needed to pass these two bills.

Harris delivered a series of forceful statements at Morehouse College in Atlanta (Georgia), urging Democrats to do all they can to keep Republicans from “exploiting archaic rules” that permit senators to filibuster the Senate to block it from discussing voting rights legislation. Biden stated that Democrats are forced to amend those rules to remove the filibuster in the interest of protecting the right to vote.

Despite the merits and their opinions on election policy Harris and Biden are incorrect to say that Republicans are responsible for the Senate’s inability to discuss voting rights legislation. Their denigration of Senate’s “arcane Rules” fails to mention that these same rules allow Democrats to start debate over voting rights legislation, regardless of Republican objections. The Senate’s rules and practice allow a majority of senators to vote for a motion to move forward over objections from a minority. The rules don’t have to be the problem, Democrats do.

To vote on voting rights legislation, Senators need to cast a ballot before they can debate a bill on the Senate Floor. The Senate rules allow for debate on motions to move forward in almost all cases. Republicans are able to filibuster these motions and prevent them from being passed by the Senate.

Democrats sought to invoke Cloturei.e.(End debate), on a motion for each bill to be moved. They were also unsuccessful due to the cloture ruleCloture requires that “three-fifths” of Senators must be duly elected and sworn (typically 60). Therefore, the Senate rejectedDemocrats attempt to stop the debate over whether each vote rights bill should be voted on by all. party-line vote

This is why Biden, Harris and others call for Democrats to take the nuclear option (to eliminate filibuster) to get their votes.i.e.Cloture rules’ super-majority requirement for a vote to move to legislation to close debate. They ask that Democrats disregard, ignore or change the Senate’s standing rules, in direct violation. 

Biden and Harris—both former senators—did not acknowledge in their remarks that Democrats can use other Senate rules to begin debate on the voting rights bills. For example, any Democratic senator—or Harris, as the Senate’s presiding officer—can limit a Republican filibuster of voting rights legislation by enforcing rule XIX. This rule prevents senators from speaking on more than one issue in the same legislative session without leaving the Senate.

Senate StartA new day of legislative action is established whenever the legislature convenes following a vote to adjourn. A legislative day can last for up to 2 years, as Democrats have the option to vote to not adjourn 50-50 Senate without Harris’ tiebreaking vote (if all of them vote together). And former Senate Majority Leader Harry Reid (D–Nev.To pressure Republicans into agreeing with Democrats’ proposal to reform Senate rules, Reid kept the Senate in one legislative session for many weeks. Reid AnnoucedOn the Senate floor, he discussed his plans. “It is my intention to have the Senate recess instead of adjourn today in order for us to carry on the same legislative day.”

To end the filibuster by Republicans, Democrats use rule XIX. Instead of ruleXXII. Democrats must keep the Senate in the current legislative day until any Republican senators are physically unable to speak. Once the Republicans have made the two speeches that are permitted by rule, the Senate will vote on the motion. After that, the Senate’s presidency can ask the question or vote for the adoption of the motion to move to legislation. 

The Presiding Officer will ask the senator if he or she does not want to be recognized (i.e., he/she is no longer able, or wants, to speak). Senate Practices and rulesSay that “when a senator yields to the floor and no other Senator requests recognition, and there’s no order in the Senate to support the contrary”, the Presiding Officer must bring the pending question up for a vote. It takes only a simple majority (typically 51 senators) to approve the motion.

Using rule XIX to begin debate on the Freedom to Vote Act and the Voting Rights Advancement Act with 51 votes takes more effort on the part of Democratic senators—and Republican senators, which is why their filibuster cannot last indefinitely—than invoking cloture on a motion to proceed to each bill with 60 votes. Biden and Harris made no secret of their willingness to make these two bills a reality. 

These voting rights bills could have been debated by the Democrats if the Republicans had not filibustered them. Because they want legislating easy and convenient, they haven’t. The president made reference to election officials and the voters in his comments, referring to them as “the hard work that goes into democracy.” But his career in public service—in the Senate—should have taught him that “the hard work of democracy” does not stop when the polls close. In places such as the Senate, democracy also takes place between elections. Senators should be prepared to take on the “hard work of democracy” in order to ensure democratic self-government. 

And if they aren’t then why bother working to get them elected?