Senate unlikely to end this parlimentary procedure
Could abolishing the filibuster to enact the For the People Act be the one reform of Senate procedure to unlock more ambitious democracy reforms? This is the dream of many congressional Democrats, but likely a dream that will be unfulfilled.
Democrats are enthused by beating Donald Trump, unexpectedly winning two Georgia runoff races and taking control of the presidency and both houses of Congress for the first time since 2010. Yet that enthusiasm should be tempered by the 50-50 Senate, understandable resistance to doing away with the filibuster, and the democracy reform bill, For the People Act, that is too big, raises significant federalism concerns and lacks bipartisan support.
Many familiar arguments against the filibuster might prevail even if Democrats had a larger majority in the Senate. What would Republicans do in the absence of the filibuster in the future when they are in
the majority? Would it change the character of the Senate to make it more majoritarian like the House and thereby take away important prerogatives of individual senators? Would it undermine bipartisanship in the Senate by encouraging Senate majorities to pass measures on a majority vote rather than seeking some votes from the minority?
But with a 50-50 Senate the questions are multiplied. Key Democratic senators such as Joe Manchin and Kyrsten Sinema have sympathy for the filibuster, but are also in a tough political position. A vote to abolish the filibuster would be followed by two years of tough votes on key Democratic priorities. Would Manchin want to be seen as Mr. No on a series of votes that are important to the progressive base of the party? With the filibuster in place, he is only one vote in the quest to secure 60 votes to break a filibuster. In the post-filibuster Senate, he is the deciding vote.
If abolition of the filibuster is unlikely, passage of For the People Act is more difficult.
First, the act is not only long in pages (866), but enormous in scope. It is the omnibus bill of democracy reform. It includes: Election administration, including expansion of voting by mail and undercutting voter ID laws; campaign finance reform, including new modes of public financing; ethics reform; redistricting reform; and precursors to a new voting rights act and preparation for the admission of new states.
Each of these subjects is complex, with many detailed provisions, requiring extensive hearings and debate. Past efforts have seen smaller, stand-alone bills fail or the passage of modest compromise bills.
Second, federalism is important in the conduct of elections. It is not the case that the Constitution puts elections solely in the hands of the states. Congress by law can preempt state election laws. But the Constitution’s language starts with the assumption that states will be the first place where election laws are made: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof.”
Throughout our history, elections have been mostly the province of states with local administration. In key areas such as voting rights, voter registration, overseas voting and the post-2000 Help America Vote Act, Congress has passed federal laws. But more important, even with some federal laws, the federal government does not directly administer elections. This federalism leads to differences among the states, many of which are jealously guarded.
States such as Oregon and Washington have been voting nearly exclusively by mail for a number of years, while other states have employed mostly polling place voting. The hours of voting, purchase of voting technology, rules about photo ID, many details about voter registration and many other topics have their own particular look in each of the states, and attempts to impose a federal standard will likely engender push-back. We might even see local Democratic election officials criticize aspects of the bill, not necessarily on the aims, but on the means of implementation.
Finally, the For the People Act is unlikely to garner Republican support. The House-passed version received no Republican support. While not a requirement, most of our major election administration legislation has had significant support from both sides. And in a number of instances, the act undoes past compromises, such as imposing a single standard on how to handle voters showing up at the wrong polling place, limiting maintenance of voter lists based on unanswered mailings.
If election reform is to occur, it will likely be on more discrete topics, at the state level, and with at least partial support from both parties.