Today, Explained - "Break the Senate"

Episode Date: January 12, 2022

President Joe Biden wants to change how the Senate works to pass voting reforms. Sen. Mitch McConnell is threatening hell if it happens. Today’s show was produced by Miles Bryan, edited by Matt Collette, edited by Efim Shapiro, fact-checked by Laura Bullard and hosted by Sean Rameswaram. Transcript at vox.com/todayexplained Support Today, Explained by making a financial contribution to Vox! bit.ly/givepodcasts Learn more about your ad choices. Visit podcastchoices.com/adchoices

Get groceries delivered across the GTA from Real Canadian Superstore with PC Express. Shop online for super prices and super savings. Try it today and get up to $75 in PC Optimum Points. Visit Superstore.ca to get started. I know where I stand. I will not yield. I will not flinch. I will defend the right to vote.

Our democracy against all enemies, foreign and, yes, domestic. And the question is, where will the institution of the United States Senate stand? Andrew Prokop, Vox, President Biden made a big speech in Georgia on Tuesday in support of some voting rights bills he wants to see passed by Congress. What's he trying to accomplish? The optimistic point of view for Democrats is that President Biden is trying to whip up support for a rules change in the Senate that would finally allow the party to pass their major voting rights bills. The more pessimistic case is that President Biden already knows that agenda is doomed in the Senate, but he's sick and tired of himself being criticized for not doing enough on voting rights.

So he's kind of going through the motions, trying to make sure somebody else gets the blame when this thing fails. And why is he shifting his focus to voting rights when we haven't had a resolution on his big presidency-making legislative fight, which is Build Back Better? Well, the news right before the Christmas holidays was that Joe Manchin killed Build Back Better.

I cannot vote to continue with this piece of legislation. I just can't. I've tried everything humanly possible. I can't get there. You're done. This is a no. This is a no. There are still hopes that it could be revived, that it could be overhauled. But apparently they're not very far along with that effort just yet. And so there is now a shift in focus this month, and they are going to spend a little time on voting rights and election reform instead.

OK, so what should we be shifting our focus to specifically? What are these other bills called? So one big bill is called the Freedom to Vote Act. Now, this bill is kind of a successor to one that's been discussed on the show before, the For the People Act. There's a provision in there calling for independent redistricting commissions in all 50 states in order to tamp down on gerrymandering. It's a very potent bill. That was Democrats' kind of dream election reform bill.

It would have created national standards for voting accessibility nationwide, you know, how much early voting there has to be, how much mail voting you have to do, whether there has to be alternatives to voter ID requirements, and also bans on gerrymandering, campaign finance reform, and so on. Joe Manchin blocked that bill. This is a no. Which was already headed for the Senate filibuster anyway. So Democrats overhauled the bill a bit to get Manchin's support. And it still has a lot of the same stuff I already mentioned, but certain aspects of it have been dropped and a new theme has been added,

which is preventing election subversion. So there are some provisions in this new version of the bill that would directly address what happened after 2020 when Trump tried to get states to block the certification of their results and so on. There are certain reforms in the Freedom to Vote Act that would let ordinary citizens sue if they think their state's result has not been certified in a corrupt manner. Okay, so that's the Freedom to Vote Act. And there's another one? The other major bill is the John Lewis Voting Rights Advancement Act. So this is really about the Voting Rights Act of 1965. It's considered one of the most important pieces of civil rights legislation ever passed. Major parts of that bill have been effectively hollowed out.

By 5 to 4, the U.S. Supreme Court today took the teeth out of a law enacted nearly 50 years ago. Specifically, there used to be a power that the federal government had that they could review new voting laws passed by certain states and review whether they were discriminatory towards racial minorities. And the Supreme Court struck down that power and this bill would essentially restore it. Why are there two bills here? Why not just one bill to rule them all? And in the darkness, fight them. Basically, boring congressional procedure and turf reasons. Freedom to Vote Act

was the successor of the For the People Act, which was put together by Democratic leaders and key committee chairs a while ago. The John Lewis Voting Rights Advancement Act

was more crafted by the Congressional Black Caucus and named after Representative Lewis, who passed away in 2020. Okay, but there are just two. It's not like insane. There aren't like three. Well, there is an somewhat related but largely different election reform topic that is under consideration in Congress, and that is the reform of the Electoral Count Act. So one of the ways that President Trump tried to get Biden's win overturned was that he tried to exploit various

policies of the Electoral Count Act to get the result blocked in Congress. He both tried to get Congress to throw out the results of certain states. Mr. Vice President, I, Paul Gosar from Arizona. For what purpose does the gentleman from Arizona rise? I rise up for myself and 60 of my colleagues to object to the counting of the electoral ballots from Arizona. And he tried to get Vice President Mike Pence to throw out results in some states Biden won. I hope Mike Pence comes through for us, I have to tell you. I hope that our great vice president, our great vice president comes through for us. He's a great

guy. Of course, if he doesn't come through, I won't like him quite as much. So the Electoral Count Act, it was passed in the aftermath of a very controversial election in the Civil War Reconstruction era, 1876. It's pretty badly written, everybody agrees, and definitely some reforms are necessary here. And the interesting part is that some Republicans, like Senate Minority Leader Mitch McConnell, have said they are interested in reforming the Electoral Count Act. And Democrats are a little skeptical that they will actually come through for this.

But there are some reasons that McConnell might want to do this. He did not like what happened in Congress last time around. He was a big critic of the January 6th violence and Trump's effort to get the result overturned in Congress. The United States Senate will not be intimidated. We will not be kept out of this chamber by thugs, mobs, or threats. I think he would like basically this to be taken out of Congress's hands and the vice president's hands. He would prefer a reform of the Electoral Count Act that says the vice president can't throw out state results and Congress. It depends on the various proposal under consideration, but it might make it harder for Congress to toss out state results or prevent them from doing it entirely. And I think Democrats would be

theoretically on board with a lot of that. But there is the concern that the election could essentially be stolen in the states that, you know, you could have a corrupt state legislature steal the election. And then now because of this reform, Congress or the vice president can't do anything to stop it. Majority leader Schumer said that Donald Trump wanted Pence to rig the election. This law might say, well, let's let the state legislatures rig the election. Neither is good. The other concern is for advocates of major reforms that they think this would derail their push to get the more sweeping, bigger bills passed. If there is a bipartisan deal on this, they think it would let Senator Manchin, Senator Kyrsten Sinema, and others sort of off the hook, give them their fig leaf of bipartisan compromise and take the pressure off them to support more sweeping reforms. Interesting. Well, let's talk about support for the other two big bills, starting with the Democrats. Are they united on these fronts?

They are mostly united. Versions of both bills have already passed the House of Representatives. Nominally, pretty much every democrat is on board with this but the problem is that key senators like mansion this is a no and cinema they aren't actually on board with the rules change that would be required to let democrats get this bill past the filibuster what about republicans republicans are kind of uniformly opposed to all of this, though. Senator Lisa Murkowski of Alaska did sign on with the John Lewis voting rights bill. She's the only one. And it looks like both of these are certain to be filibustered. And the reason for that is that Republicans argue that this is essentially federal power grabs over

states' rights to run their own elections. They say, why should the federal government decree how much early voting a state should have to have or how much mail voting or what voter ID requirements are necessary? Why can't this stuff be let to the states to decide? And they also give, you know, criticisms of Democrats. They say that what this is really about is Democrats trying to change the rules to help them win. This isn't really about protecting democracy. And, of course, Democrats fire back, well, that's what you've been doing in the states, Republicans. You've been passing these bills in states like Texas and Georgia that would toughen voter ID requirements and make other restrictive measures because you're trying to win as well.

And it sounds like the country's top Democrat has a plan for maybe getting this stuff around the filibuster. In theory, he has a plan, but having a plan and having the votes to do anything about that plan are two entirely different things. As an institutionalist, I believe that the threat to our democracy is so grave that we must find a way to pass these voting rights bills. Debate them. Vote. Let the majority prevail. And if that bare minimum is blocked, we have no option but to change the Senate rules, including getting rid of the filibuster for this. Support for Today Explained comes from Aura. Aura believes that sharing pictures is a great way to keep up with family,

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BetMGM operates pursuant to an operating agreement with iGaming Ontario. Andrew, President Biden did not want to change the filibuster last year, but it sounds like he maybe does now. What changed for President Biden? as vice president. And I think he had an instinctual inclination to respect the Senate's traditions and the way they'd done things. I think he also came in not wanting to ruffle feathers among the key moderate Democrats in the Senate. He had and still has the narrowest possible majority, just 50 Democrats in a 100-person body. And he wanted to focus on things where he thought he had a good chance of winning those moderate Democrats' support, not the stuff that would be a heavier lift. And this approach worked for passing the COVID relief bill early last year. He also got a bipartisan infrastructure bill through,

and then he devoted the latter half of the year through Build Back Better, which he was trying to pass through the budget reconciliation process. So you don't need a 60-vote supermajority for that. You can pass it with a simple majority. But that stalled. And as he's trying to revive that,

what's been happening in the background is that he's been hammered with criticism from advocates, voting rights groups, progressive members of Congress on the left saying, why aren't you doing more? Republicans keep on passing these restrictive measures in the states, and you do not even seem to be fighting for this. You don't even seem to care that much. You give an occasional speech. You say it's bad. But where is the full investment of the White House in trying to actually do something about it?

So what does he want to do about it? So the solution that he has proposed is to not fully get rid of the filibuster, but to get rid of it for certain bills that would impact constitutional rights or voting rights in particular. State legislators can pass anti-voting laws with simple majorities. If they can do that, then the United States Senate should be able to protect voting rights

by a simple majority. So this is known as the carve-out approach. There would be an exception to the filibuster, sort of like there already is for budget reconciliation, which is restricted to measures affecting taxes and spending. But now this would be for voting rights measures as well.

So it's like an additional half measure, it feels like. Why not just get rid of the filibuster, which is not in the Constitution or something that even exists in the House of Representatives once and for all. The simple reason is just that the votes aren't there. And the votes aren't there for the carve-out either. But it's at least somewhat more plausible that he will get the holdout senators to yes on the carve-out, he hopes at least, as opposed to ditching the filibuster entirely, which Manchin and Sinema have been very, very clear for over a year that they are not going to do. This is a no.

So the votes aren't there for getting rid of the filibuster whole cloth. There may not even be votes for doing what President Biden wants to do. But let's hear about how that might work. Let's talk procedure. How exactly do you go about changing the filibuster? Does that not also require 60 votes? Well, it actually requires a two-thirds vote of the Senate to change its rules according to those Senate rules. But there is a catch, which is that any Senate

can use what's known as the nuclear option, set off that nuclear bomb, wipe out the rules, and just ram something through with a simple majority if they want to. This power always exists and can always be used by a majority. The thing is that majorities generally haven't wanted to do this, but we do have some recent precedents. Democrats used the nuclear option in 2013 to get rid of the filibuster for almost all types of nominations because they were frustrated that McConnell and Republicans were blocking too many of President Obama's nominations. To the average American, adapting the rules to make the Senate work again is just common sense. Then in 2017, McConnell had the majority in the Senate by then

and Trump was president and McConnell finished the job. He eliminated the filibuster for Supreme Court nominations as well, so he could get Neil Gorsuch passed a filibuster and confirmed. We need to restore the norms and traditions of the Senate and get past this unprecedented partisan filibuster. Therefore, I raise the point of order that the vote on cloture under the precedent set on November 21st, 2013, is a majority vote on all nominations. So that finished off the filibuster for nominations, but it still exists for bills.

And I imagine Republicans don't like the idea of Joe Biden doing this right now to get through his voting reforms? You could say that. Republicans are resolutely in opposition to any sort of nuclear option. Rules change. That's not done by them themselves when they're in the majority. McConnell has promised a scorched earth response if Schumer actually does try to ram this through and succeed in it. Wow. People kind of laugh at that. They say, well, McConnell, isn't he already blocking everything? And that's actually not true. The way the Senate runs, it's very much determined by negotiations between the majority and minority parties about the schedule, about how long things take. And McConnell could

theoretically do a whole lot more to slow things down in the Senate, really bring everything to a crawl than he is currently doing. Everything that Democrat Senates did to Presidents Bush and Trump, everything the Republican Senate did to President Obama, would be child's play compared to the disaster that Democrats would create for their own priorities if, if they break the Senate. But if he did do that, then Democrats could always use the nuclear option again to change the rules further and limit his ability to use such obstructive tactics. But you see that this would just be a kind of spiraling tit for tat kind of showdown going forward if this did happen. Okay, so that's the word from the official Republicans. What about the unofficial ones? What about Senators Joe Manchin and Kyrsten Sinema? Would they be on board for making up the 50 votes that Biden needs here?

Sorry. Was that you laughing at my joke, Andrew? No, no, no. That was a non-COVID cough. Oh, thank God. So the short answer is probably not this is a no the complication is that occasionally mansion or cinema do seem at least somewhat open to somewhat more minor senate rules changes of some kind they have been both opposed to a carve out for voting rights they

have been both opposed to abolishing the filibuster entirely. But occasionally they muse about, oh, well, what if instead of the way the filibuster currently works, which is that Republicans can just object and everything is blocked. What if Republicans had to actually give a speech if they wanted to filibuster something? It's our first filibuster and I'm not a rules expert, but the rules wanted to filibuster something. It's our first filibuster, and I'm not a rules expert, but the rules of a filibuster are simple enough. You keep the floor as long as you hold the floor. What does that mean? It means you can't stop talking ever. This is known as the talking filibuster reform. Right. Maybe that would be a useful change. And activists got pretty excited about this when

Manchin said he was open to it because what activists think about, Democratic activists here, is they imagine, oh, then we can physically exhaust them. They'll no longer be able to speak. And then we'll be able to get our bill through with a majority. But Manchin, of course, clarified that he didn't mean anything like that. He still wants, you know, a 60 vote threshold for advancing a bill. He just wants to see them talk a little more. So it's not clear that that would actually change anything significant in, you know, the form that Manchin would actually be willing to support for this reform. And Sinema? Sinema doesn't publicly speak out as much about this, but she reiterated this month reportedly that she still was not going to do anything to get rid of the 60-vote threshold.

And are those the only two Democrats who are on the fence about these kinds of reforms? There are certainly more who are privately a little queasy about it, and that occasionally spills out into public. There are some who are not committed to those changes, who try to float support for these lesser changes, like the talking filibuster. You've seen John Tester of Montana, Gene Shaheen of New Hampshire. I think Mark Kelly of Arizona is undecided. But the thing about this type of opposition is that basically, if you're not loud and proud and willing to oppose it right now are you really going to be willing to do so when the vote is truly called maybe they would but really mansion and cinema are the ones who have shown themselves willing to take all the public heat for this and so i do

think that they are really the two that are by far most important here. And they are also the two that President Biden seems to have the least amount of leverage over. He seems to have few tools by which he could actually bend them to his will. He's kind of at their mercy and they've proven willing to defy what the leaders of their party want and go their own way. So even if President Biden and the Democrats in Congress are willing to risk whatever scorched earth promise Mitch McConnell has made, with this many Democrats skeptical of changing the filibuster rules, is this whole effort just doomed? Not only changing the filibuster, but all these voting

rights reforms we talked about in the first half of the show. To me, it certainly looks doomed with the qualification that, you know, something crazy could happen. So why is President Biden spending his political capital on this? I think the real reason is that he was sick of getting blamed for it. But, you know, the criticism seems to have eventually spooked the White House. They want to make sure their supporters are engaged and energized for 2022. So I think they are trying to turn this into, you know, more of an election issue saying, look, we're fighting for this. We want this. If we had a couple more Senate seats, then we could actually pass it maybe. So how about

you go out and vote and get us those extra Senate seats and we'd be in a better place? That is probably the pivot that they want to be able to make. You can read Andrew Prokop's reporting at Vox.com. Our episode today was produced by Miles Bryan. It was edited by Matthew Collette and engineered by Afim Shapiro. Fact-checking by Laura Bullard. I'm Sean Ramos for him. It's Today Explained. Thank you.