On Tuesday afternoon, President Joe Biden employed the bully pulpit—ostensibly one of the most powerful instruments in the executive toolbox—to press the Senate to pass voting rights legislation as soon as possible, in order to counteract a spate of measures that are either being enacted or considered in Republican-led states that may suppress voter turnout, as well as to fulfill a key campaign promise while Democrats still hold the majority in Congress.
Biden, a self-proclaimed institutionalist who served for decades in the Senate, for the first time endorsed changing Senate rules to allow voting rights legislation to be passed with a simple majority. Senate Republicans blocked voting rights bills on multiple occasions last year, through the use of the Senate filibuster.
“I believe the threat to our democracy is so grave that we must find a way to pass these voting rights bills. We have no option but to change the Senate rules, including getting rid of the filibuster for this,” Biden said. “Today, I’m making it clear, to protect our democracy, I support changing the Senate rules whichever way they need to be changed.”
Senate Republicans blocked three separate voting rights bills last year: the For the People Act, a sweeping elections and campaign reform bill; the Freedom to Vote Act, a slightly less sweeping elections and campaign reform bill crafted by Democrats with the ultimately futile goal of obtaining Republican support; and the John Lewis Voting Rights Advancement Act, a bill restoring a provision of the 1965 Voting Rights Act gutted by the Supreme Court, which thus far is supported by just one Republican, Senator Lisa Murkowski.
In order to pass voting rights legislation, Democrats must circumvent the filibuster. All together now: Most legislation requires 60 votes to advance in the Senate, and Democrats only hold 50 seats. That means that without support from at least 10 Republicans, bills are dead on arrival. Predictably, Republicans in the Senate do not view the measures passed by Republican legislatures restricting voting rights as an existential threat.
Activists have been calling on Biden to take voting rights more seriously for the past year. “I think there’s a lot of frustration that it took a year to get here. But I do think that late is better than never, and I don’t think it’s too late,” said Sean Eldridge, the president and founder of Stand Up America, a progressive organization that has advocated for eliminating the filibuster.
Biden’s speech may or may not make a difference with senators waffling on whether to change the rules, but the onus is still on lawmakers to pass voting rights legislation. “While President Biden delivered a stirring speech today, it’s time for this administration to match their words with actions, and for Congress to do their job. Voting rights should not simply be a priority—it must be THE priority,” said Derrick Johnson, the president of the NAACP, in a statement after Biden’s remarks.
Martin Luther King III, the son of the civil rights leader and chair of the Drum Major Institute, said in a statement after the speech that “we need to see a plan” from Biden.
“He can’t rest this call at the feet of the Senate and walk away—he must use the full power of his office to ensure this Jim Crow relic finally falls,” King said. “We will be watching closely and mobilizing to ensure his speech is backed by the full power and influence of his office.”
Even before the start of the new year, Senate Majority Leader Chuck Schumer had been pushing to “restore the Senate,” that is, return it to a bygone era of relative functionality. A group of moderate Democrats, including Manchin, have met frequently in recent weeks to discuss potential rules changes. Last week, Schumer announced that Democrats would be moving forward with voting rights legislation, regardless of where Republicans landed on the issue, culminating with a debate and potential vote on some rules change by January 17, Martin Luther King Jr.’s birthday. Schumer has remained focused on voting rights in the days since; during Democrats’ weekly caucus lunch, which has recently gone virtual in the wake of the omicron variant, the Democratic leader hosted Professors Steven Levitsky and Daniel Ziblatt, the authors of How Democracies Die, to talk about the need to pass voting rights legislation.
“As soon as tomorrow, it is my intention to once again bring legislation to the floor to fight back against the threats to democracy and protect people’s access to the ballot,” Schumer said in remarks on the Senate floor on Tuesday. “If Republicans continue to hijack the rules of the Senate to prevent voting rights from happening, if they continue paralyzing this chamber to the point where we’re helpless to fight back against the Big Lie, we must consider the necessary steps we can take so the Senate can adapt and act.”
Biden had previously urged Congress to vote on the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act, but Tuesday marked the first time that he openly advocated for changing Senate rules to pass the legislation. “I’ve been having these quiet conversations with members of Congress for two months. I’m tired of being quiet!” Biden said.
Changing Senate rules can be a finicky business, however. Senators need to reach a 67-vote threshold to formally alter the rules, a nigh impossibility given the current polarized nature of the Senate. Otherwise, they can use a procedural gambit known somewhat melodramatically as the “nuclear option” to change Senate precedent with a simple majority. However, this requires all 50 Democratic senators to be on board with any changes. At least two, Senators Joe Manchin and Kyrsten Sinema, have said that they will oppose eliminating the filibuster, making Biden’s job all the more difficult.
“The presidency is turning on microphones when he knows everyone’s going to listen. The reality though is it’s unlikely to change votes,” said Casey Burgat, the director of the Legislative Affairs program at the George Washington University Graduate School of Political Management. “This isn’t the LBJ era, where he grabs [Manchin] by the coattails and persuades him that this is in his best interest as a senator.”
Manchin has also raised concerns about making any reforms without Republican support. “We need some good rules changes. We can do that together. But you change the rules with two thirds of the people that are present, so Democrats and Republicans changing the rules to make the place work better. Getting rid of the filibuster does not make it work better,” Manchin said on Tuesday.
Manchin later on Tuesday described some potential rules changes that he would support, such as circumventing the 60-vote threshold by requiring three-fifths of everyone in attendance to support a bill in order for it to advance. So if only 90 senators were in attendance, only 54 votes would be needed to advance a bill, for example. Another change would pertain to the motion to proceed, a vehicle by which the Senate can take up a bill for consideration and debate. Right now, a motion to proceed can be subject to a cloture vote—basically, the minority party can block a bill from even being brought up for debate. Manchin suggested that a motion to proceed not be subject to a cloture vote, so only 51 votes would be necessary to open debate.
“There’s a lot of good things that can be done to make the place work,” Manchin told Lisa Desjardins of PBS NewsHour. “Voting is very important. It’s a bedrock of democracy. But to break the opportunity for the minority to participate completely—that that’s just not who we are.”
Some Republicans may be open to changing Senate rules, but it would likely still fall far short of what Democrats need to pass their voting rights bills. Murkowski said that “a lot of us have been talking about this motion to proceed, whether that’s something we can do there.” She also said she would consider changes to make the Senate more efficient, such as smoothing the process for bills that have passed through committee on a bipartisan basis.
But even modest reforms may be too much for some Republicans, who would likely view any changes to Senate precedent as an act of war. Senate Republicans launched a series of speeches on Tuesday warning against ending the filibuster, and Senate Majority Leader Mitch McConnell threatened to weaponize basic Senate procedure to bring the everyday functioning of the body to a standstill if the nuclear option is invoked. “The Senate isn’t broken and doesn’t need fixing,” McConnell told reporters later on Tuesday. Senator Roger Wicker also told The New Republic that he didn’t believe a rules change was “necessary.”
“I can think of election laws that could get 80 votes, though. Sensible and bipartisan,” Wicker said. Wicker is part of a bipartisan group that has recently held talks on reforming the Electoral Count Act.
Senator Mitt Romney, who is part of the bipartisan group, told reporters on Tuesday that they would “get together again sometime this week,” but said that there was not necessarily urgency to reform the law. “We don’t have an election where the Electoral Count Act will come into play for three years,” Romney said.
This highlights a problem that Democrats have with reforming the Electoral Count Act: While the chaos of the 2020 presidential election and its aftermath only underscore the need for changes to the rules that govern the counting and certification of Electoral College votes, those reforms are limited to the last stage of a presidential election. They wouldn’t address voter suppression in general, nor would it forestall the potential for electoral subversion in a congressional election. “I think the Electoral College is important, but it is not a solution for the voting rights issue,” Senator Jon Tester said on Tuesday.
“Anyone who has been watching the Senate closely over the past year has seen nothing but obstruction from Republicans when it comes to protecting our democracy,” Eldridge said. “I have very little faith that this is good faith outreach, that there’s a real intention to negotiate.” (Senator Susan Collins told reporters on Tuesday that the bipartisan group was also looking at reforms such as protecting poll workers from harassment and reauthorizing the Election Assistance Commission.)
Republicans argue that Democrats are attempting a naked power grab by federalizing the elections process. They have also pointed to the overwhelming turnout in the 2020 presidential election. But several of the bills considered and passed in Republican-led states were introduced after Donald Trump’s electoral loss, and after his repeated lies that the election was stolen. Moreover, many of them make it more difficult to vote by mail, after absentee voting spiked in many states, particularly among Democrats.
Biden’s trip to Georgia for the speech was laden with symbolism, as the state has been at the center of discussions on voting rights in the wake of the state’s Republican legislature and governor approving restrictive voting measures last year. He laid a wreath at the tomb of Martin Luther King Jr. and met with members of his surviving family, as well as visiting the Historic Ebenezer Baptist Church, where the civil rights leader once served as pastor. The church’s current leader, Senator Raphael Warnock, is up for reelection this year. Biden’s speech, attended by a variety of elected officials and civil rights leaders, occurred at the Atlanta University Center Consortium on the grounds of the historically black Morehouse College and Clark Atlanta University, located in the district of the late civil rights icon, Representative John Lewis.
By harkening back to the fights led by the Atlanta-based civil rights icons, Biden challenged Manchin and Sinema without naming them, creating a dichotomy of standing for securing voting rights or against it. (He also noted that Republicans had previously supported reauthorizing the voting rights act, and made the less convincing argument to GOP senators to support the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act.)
“Every senator—Democratic, Republican and independent—will have to declare where they stand, not just for the moment but for the ages,” Biden said. “Will you stand against voter suppression? Yes or no? That’s the question they’ll answer.”
It’s unclear whether Biden’s pitch will be successful, particularly given his sliding poll numbers. Perhaps a newly elected president at the height of his influence may have had more muscle to convince recalcitrant Democrats in Congress. His speech also comes after a December defeat in which Manchin essentially tanked the Build Back Better Act, Biden’s signature legislative priority, after relationships with the White House crumbled.
But just getting all 50 Democrats on the record for their support or opposition to a change in Senate rules may be enough for Democratic leadership in the Senate and Biden to show that they are taking the fight for voting rights seriously. “I think a win right now for Democrats, understanding that they don’t have the votes, to change the rules or get Republicans to sign on is to at least get a recorded vote of where members stand,” Burgat said.