The last chance for federal legislation to stem the tide of Republican state-level attacks on the franchise died this week, when Senators Joe Manchin and Kyrsten Sinema rejected a bid by the Senate’s Democratic majority to change the filibuster rules to allow the passage of two voting rights bills.
The Freedom to Vote Act and the John Lewis Voting Rights Act would together serve to establish a baseline of federal rules enabling access to the ballot in all 50 states, and would restore the congressional authority to oversee new election laws in states that have a history of racist voting restrictions – a civil rights-era provision that was gutted by the Republican-controlled supreme court. But the two bills have been blocked repeatedly by Senate Republicans, who have used the chamber’s supermajority rule to prevent them from coming to a vote.
With the support of President Biden, who endorsed filibuster changes in a speech in Atlanta last week, the Democrats hoped to carve out an exemption that would finally allow the bills to be passed – Sinema and Manchin, after all, had both professed support for the bills themselves, though Manchin’s endorsement had to be cajoled. And exemptions to the filibuster are nothing new: according to Exceptions to the Rule, a book about the filibuster by the governance scholar Molly Reynolds, the filibuster was amended 160 times between 1969 and 2014. Both Manchin and Sinema supported a carve-out to the filibuster just weeks ago, when they both agreed to amend the rule to allow the Senate to raise the national debt ceiling.
But evidently, voting rights are different. Last Thursday, in a tearful speech on the Senate floor, Sinema announced that she would not support changing the filibuster to pass the bills. She called for compromise, and chided Democrats for not doing more to reach out to Republicans to treat the nation’s “disease of division”. For his part, after a meeting with Senate Democratic leaders on Tuesday night, Manchin, too, reiterated that he would not support a voting rights filibuster carve-out, and dismissed fears that Black Americans would be denied the ballot. “The government will stand behind them to make sure they have the right to vote,” Manchin said. “We have that. The things they’re talking about are in court.”
Responsible adults, assessing the state of voting rights in America in good faith, would of course know that neither the Republican party nor the federal courts are partners in the effort to preserve voting rights. Republican-controlled state legislatures have spent years imposing restrictive laws that make it harder and harder for people of color to vote, and have now progressed to making it easier for themselves to discard the voters’ preferences if they choose. These efforts have largely been supported by the federal courts, where Republican partisans in robes have gutted voting protections and given the green light to severe restrictions. It was the supreme court’s evisceration of the 1965 Voting Rights Act, in the cases Shelby County v Holder and Brnovich v DNC, that spurred congressional Democrats to write the John Lewis Voting Rights Act in the first place – the bill that Manchin and Sinema profess to support. The Republican party and much of the federal judiciary won’t preserve the franchise; they’re in fact working in concert to destroy it. Any competent and honest political observer will acknowledge this. That Manchin and Sinema will not suggests that they are either cynical or stupid.
But for all Manchin and Sinema's platitudes, there is little evidence that the filibuster encourages compromise
For the past year, Manchin and Sinema have used the filibuster, and the Democrats’ paper-thin majority in the Senate, to flex their own influence, withholding their support on essential measures and hampering the Democrats’ agenda – most recently the Build Back Better Act, the Biden social infrastructure bill that Manchin single-handedly killed in December. They have served primarily as saboteurs, scuttling hopes that a Democratic trifecta in government might yield the actual realization of Democratic priorities. To hear Manchin and Sinema tell it, the filibuster has become a kind of totem: they speak of preserving the rule as a way of maintaining the principle that unity, cooperation and bipartisanship remain both possible and desirable. But for all their platitudes, there is little evidence that the filibuster encourages compromise. Critics like the writer and former Senate staffer Adam Jentleson have suggested that the filibuster in fact incentivizes obstructionism, giving the minority more opportunities to sabotage the majority’s agenda and few reasons to try to shape it. But Manchin and Sinema are immune to reality. They still speak as if the procedural accident of a 60-vote threshold represents some kind of republican virtue. Getting rid of it, they say, will plunge the country into disunity and distrust. One wonders what they think the state of the country is now.
Manchin and Sinema’s naive intransigence on the filibuster is now helping the Republican party to usher in an era of nationwide voter suppression and election subversion that will end meaningful representative government as we know it. The senators insist on delivering bromides to cooperation and bipartisanship, and baselessly claim that the Republican party, radicalized against democracy and increasingly centering its politics around interpersonal cruelty, can be persuaded to support voting rights if only the Democrats were kinder, more patient and less willing to use the power that the voters gave them. Listening to them try to justify themselves, Manchin and Sinema sound bizarrely detached from reality, as if they’re reading lines from the wrong play. The Senate they describe, the Republican colleagues they imagine themselves to have, the country they think they are living in – none of these bear much relation to the present reality of politics in America.
They offer no solutions for that reality, and no insight into its increasingly frayed constitutional order. Their best ideas consist of pretending that the Senate is not what it is, pretending that Republicans are not who they are. Like ostriches with their heads in the sand, they think that if they pretend not to see what is happening, then the circumstances will change by the force of their denial. This hasn’t worked, but Manchin and Sinema seem more committed to maintaining the delusion than to protecting the rights of this American people. And this is what makes their failure to do what is necessary to protect voting rights not only a tactical failure, but also a moral one.
Moira Donegan is a Guardian US columnist