The filibuster is a Senate rule, a tradition. It is not mandated by law, and it is not in the Constitution. For legislation to advance in the Senate, 60 Senators need to agree to end debate in order to proceed to a vote on the bill.
Why do I say the filibuster is a tool of structural racism and voter suppression? The filibuster magnifies the effects of the already un-representative US Senate, and has created a trap that I don’t know how we will escape as far as voting rights are concerned.
The US Senate is already quite skewed in its representation due to its essential structure, 2 Senators from each state. So, 39 million Californians and 580,000 people in Wyoming each have their interests represented by 2 Senators. Yes, I know this is how it was set up in the Constitution, but I don’t think the Founders imagined a country where the largest state has 67 times as many people as the smallest.
The US Senate is currently split 50/50 between Democrats and Republicans, but because of the population distribution of large blue states and small red states, the Democratic half of the Senate currently represents 41.6 million more people than the Republican half, as estimated by Ian Millhiser writing on Vox. This proportion is way out of whack! That margin is a whole “extra” California’s worth of people, and then some.
And this is BEFORE we get to the filibuster. It is unrealistic to think we will get to 60 Democratic Senators. I can’t even figure out how to calculate what that would take right now, what the proportion of the US population would need to vote for Democratic Senators to get to 60. We are clearly in a massive minority-rule vise grip when it comes to the US Senate.
It gets worse—here is the pickle we are in for defending voting rights in particular. The enforcement powers of the Federal Civil Voting Rights Act were upended by 2 Supreme Court Decisions, which means we get a lot less voter protection from the Federal Level than we used to. 16 Southern states with a history of discrimination used to have to go through a “pre-clearance” process before changing their voting rules. No more.
Those Supreme Court Justices were approved by the Senate by a simple majority: their approvals were exempted from the filibuster, thanks to moves by Mitch McConnell.
Without federal protection, the power to set voting rights flows back to the states. And in your state houses there is no filibuster: the more restrictive voting laws can be passed by a simple majority.
So to summarize:
Federal Voting protections have been largely negated since 2013….
by Supreme Court Justices who were confirmed by the US Senate by 51% vote….
And at the same time, voting restrictions and changes to the election process, including who runs elections and how the votes are counted, are decided by each state by 51% vote. That 51% vote is often controlled by elected representatives who were elected by less than half of the voters, due to gerrymandering. That, along with what is going on in the US Senate, is what I mean by “minority rule.”
What could help us? The John Lewis Voting Rights Advancement Act and the Freedom to Vote Act have been approved by the House but face an uphill battle in the Senate. The Democrats want to do away with the filibuster for these bills, as has been done for many other things, including raising the debt ceiling, and the Supreme Court Justice confirmations. But their own 2-supposedly-Democratic Senators Manchin and Sinema are blocking that effort to do away with the filibuster for this legislation.
So as it stands right now, voting rights need to clear a 60% threshold (representing way more than half of the US population) while voting restrictions are passed by a 51% majority in state houses.
I hate this trap, especially as it represents a steep erosion from where we were just 10 years ago! The ways out? Keep pressuring US Senators to set aside the filibuster for voting rights; protest in DC and at your State capitols; register and turn out as many voters as possible; and help Democrats win back majorities in state legislatures. Republicans figured out years ago that state houses and senates are key battle grounds, and they have taken the majority in 30 state legislatures. Be clear-headed about where we are, and keep holding the Democratic party’s feet to the fire, to keep fighting.
Former Attorney General Eric Holder has dedicated a lot of work to restoring voter rights and fair, un-gerrymandered electoral maps. Learn more about "All on the Line." https://www.allontheline.org/