Democrats' Voting Rights Plan Is Dead After They Failed To Change Senate Rules

Senate Democrats were not able to vote together to change the filibuster for the bill, stalling a core Democratic campaign promise.

Kent Nishimura / Los Angeles Times via Getty Images

Sen. Joe Manchin on a phone call after speaking on the floor of the Senate on Jan. 19

WASHINGTON — Democrats failed to change Senate rules on Wednesday to pass a voting rights package that they repeatedly touted as necessary to stamp out voter suppression.

The votes on the bill and the rule were a culmination of two major political issues facing the country: Whether the federal government should step in to reverse state-level laws seen as restricting access to the polls, and whether a minority party in the Senate should have effective veto power over almost all legislation moving through Congress.

Democrats lost on both fronts, marking a disappointing final day of Biden’s difficult first year in office. State governments will continue to have broad authority to taper voting laws and Republicans in the minority will continue to have the power to block progressive legislation.

It was a foregone conclusion that the bill would fail. Biden conceded as much last week. But in a rare move, Senate Majority Leader Chuck Schumer pushed the votes forward despite it being a divisive issue for his party. Ultimately Sens. Kyrsten Sinema of Arizona and Joe Manchin of West Virginia both voted to advance the voting rights bill, but against making the necessary change to Senate rules to allow it to pass.

With all Republicans opposed, the move to change the filibuster rules failed in a vote of 48–52.

Manchin said he could not support one party changing Senate rules “through raw majority power” without the cooperation of the full Senate. “Let the change happen this way and it will be a body without rules,” he said.

Senate Majority Leader Chuck Schumer said on the Senate floor just before the final vote that he was seeking a modest, one-time exception to the rules in order to reverse voter suppression across the country.

“The only way to achieve our goal of passing voter rights, ending dark money, and ending partisan gerrymandering is by changing the rules,” he said. "Because our colleagues from the other side of the aisle don’t want to join us in these noble endeavors."

Biden said in a statement after the vote that he was "profoundly disappointed that the United States Senate has failed to stand up for our democracy," but that he was not "deterred."

In an afternoon press conference, the president refused to give up on making progress on voting rights through the rest of his term. “We’re not there yet. We’ve not run out of options yet,” he said. "We’ll see how this moves."

Named after the late civil rights icon and member of Congress John Lewis, the voting rights package would have rolled back dozens of state-level access restrictions, mandated at least 15 days of early voting, made Election Day a federal holiday, and allowed the courts and federal government to intervene if a state passes restrictions that target voters of ethnic and racial minorities.

Last year, Republicans put in place 33 laws across 19 states to make voting more restrictive.

The Senate filibuster evokes the image of senators talking for hours to block legislation, but in fact senators can filibuster a bill just by staying home. The Senate rules require at least 60 votes in the 100-seat chamber to end debate and move to a final vote. This allows for a minority of senators to block legislation.

In the current 50–50 split Senate, with Democrats only in control because Vice President Kamala Harris casts tiebreaking votes, there was no chance of bypassing the filibuster. But while it takes 60 votes to pass a bill, a simple majority of senators can vote to do away with the filibuster — either entirely or in certain circumstances. This process is often referred to as the “nuclear option.”

While many Democrats support getting rid of the filibuster altogether, Thursday’s vote would have carved out an exception for this bill only.

The Senate initially voted on whether to end debate on the voting rights bill. That deadlocked along party lines, well short of the 60 needed. Schumer then put forward a vote to change the rules so that senators could continue to filibuster by talking, but eventually debate would end and a vote would commence. That fell 48–52, with Manchin and Sinema defecting.

The filibuster has become a powerful tool of obstruction. When he was majority leader, Mitch McConnell boasted about turning the Senate into a graveyard of progressive legislation. Thanks to the filibuster, he can maintain that status quo in the minority.

At the same time, frustration with the rules has caused both parties to pass exemptions when they have been in the majority. Former Democratic Senate majority leader Harry Reid nuked the filibuster, via a majority vote, for some judicial nominations during the Obama years. He said it was necessary to bypass Republican obstruction.

When Donald Trump was president, McConnell erased the filibuster for Supreme Court nominations when Democrats blocked him from getting 60 votes to confirm Neil Gorsuch.

McConnell also took an aggressive approach to budget reconciliation bills, which are exempt from the filibuster. Typically used to simply authorize spending for the year, Republicans tried to use budget reconciliation to repeal the Affordable Care Act.

That ultimately fell short, but Democrats are now attempting to use budget reconciliation to pass practically all of their domestic and climate change agenda via the Build Back Better Act. That bill currently remains stalled in the Senate due to opposition from Manchin.

The filibuster now sits on odd historic ground. Both parties aggressively use the filibuster and aggressively circumvent it. Many believe its days are numbered.

The filibuster is not mentioned in the Constitution and in fact arose from a gap in the country’s founding documents. There was no mechanism for ending debate in the Senate until 1917, when senators voted to adopt a rule to close debate with a vote of two-thirds of the chamber. In 1975 that threshold was lowered to 60 votes.

McConnell on Wednesday night accused Democrats of hypocrisy for using the filibuster when they were in the minority. “That’s why many of them look so foolish, because they’ve been on the opposite side of this. Not long ago but quite recently,” he said on the floor.

While Republicans were unanimously opposed to the broader voting rights package, some have expressed openness to reforming the Electoral Count Act of 1887. That law lays out how Congress counts and certifies Electoral College votes in a presidential election.

Trump and his allies had hoped to exploit ambiguities in that law to overturn the results of the 2020 election. That would have involved then–vice president Mike Pence rejecting the state-approved slate of electors and potentially replacing them with pro-Trump slates. Pence did not go along with the idea and approved the state electors who confirmed Joe Biden won the presidency.

Some senators have talked about rewriting the bill to make it explicit that the vice president plays only a procedural role and does not have the discretion to reject the electors sent by the state. It is not clear whether there is enough Republican support to amend the law.