Democrats’ high-profile bid to change to the filibuster and pass voting rights legislation is officially unraveling as they face the reality of dug-in opposition that leaves them short of the support they need.
President Biden made a high-profile trip to meet with Senate Democrats on Thursday, where he urged them to change the rules and pass voting rights legislation in the face of GOP opposition. Majority Leader Charles Schumer (D-N.Y.), meanwhile, has blitzed the TV networks as he and Biden invest significant political capital and try to pressure their own members.
But the effort to change the legislative filibuster, which requires 60 votes for most legislation, ran into a wall, leaving the path forward for voting rights legislation in limbo. The two are tied together because Republicans have previously used the filibuster to block three election bills.
Sen. Kyrsten Sinema (D-Ariz.) daggered already long-shot hopes of changing the rules when she gave a floor speech roughly an hour before Biden met with Democrats, reiterating that she doesn’t support changes to the 60-vote filibuster.
“I will not support separate actions that worsen the underlying disease of division infecting our country,” Sinema said during a Senate floor speech watched by several of her GOP colleagues. “Eliminating the 60-vote threshold will simply guarantee that we lose a critical tool that we need to safeguard our democracy.”
Sen. Joe Manchin (D-W.Va.) piled on Thursday afternoon, saying that “I will not vote to eliminate or weaken the filibuster” and that doing so would “pour fuel onto the fire of political whiplash and dysfunction that is tearing this nation apart.”
The remarks from the two moderate senators, though not out of line with their months-long position, underscored that Democrats’ bid to change the legislative filibuster have hit a wall. It’s a setback for the growing number of Senate Democrats and outside groups who are ready to change the filibuster, which has emerged as an obstacle to many of their priorities including immigration reform, police reform, raising the minimum wage and most recently voting rights.
Biden acknowledged that reality as he left the Senate Democratic caucus lunch, telling reporters, “The honest-to-God answer is I don’t know whether we can get this done.”
White House press secretary Jen Psaki vowed that the White House would keep pushing until the Senate voted, however, saying that “we’re gonna keep fighting until the votes are had.”
Sinema and Manchin are going to the White House early Thursday evening to meet with Biden to discuss voting rights. Biden talked about the history of rules changes during the closed-door lunch making the point, according to Sen. Tim Kaine (D-Va.), that “the Senate rules are not sacrosanct.”
But without a shift from Manchin or Sinema on changing the filibuster, and using the “nuclear option” to do so without GOP support, voting rights legislation is facing a dead end. Democrats need 50 votes, meaning total unity within their conference, to change the filibuster.
Democrats involved in the talks aren’t yet ready to admit defeat, pledging to continue trying to figure out a path forward.
Kaine declined to comment on Sinema’s speech but indicated that they would continue to try to win her over up until the Senate votes.
“We still are going to have a couple of very pivotal votes on this,” Kaine said.
But what happens next is unclear.
Sen. Jon Tester (D-Mont.), who, like Kaine, has led the voting rights discussions, said that Democrats will start debate and “everything after that I think is up in the air.”
Sen. Chris Coons (D-Del.), a close Biden ally, said that “the next couple of days it’s unclear to me what exactly is going to happen at what time.” Asked if he thought Manchin and Sinema were still open, he demurred.
“I have never found it a good idea to guess exactly where their views are,” Coons said.
Aside from the opposition from Manchin and Sinema, Democrats still have not unveiled what their rules change proposal will be as they continue debate amongst themselves about creating a talking filibuster, with which opponents could delay a bill for as long as they could hold the floor, or using a carve out from the filibuster that would leave the 60-vote hurdle in place for other issues.
In another blow to Democrats, Sen. Brian Schatz (D-Hawaii) announced that he had tested positive for the coronavirus in a breakthrough case. That deprives Democrats of the simple majority they need to start debate on the voting rights bill, absent cooperation from Republicans.
Democratic senators say they expect Schatz to be able to return to the Senate on Sunday, though Washington, D.C., will potentially get more snow that day after the Senate scrapped its plans last week because of the weather.
Democrats say absent GOP cooperation that they will likely take a first vote on the issue on Sunday, driving the Senate past Schumer’s self-imposed deadline for taking up a rules change by Jan. 17.
“With unanimous consent you can do anything so that’s the most important caveat, I’ve just had several scenarios outlined for me and they go into the middle of next week,” said Sen. Dick Durbin (D-Ill.), the No. 2 Senate Democrat.
The House passed legislation on Thursday that combines both the John Lewis Voting Rights Advancement Act, which strengthens the 1965 Voting Rights Act, and the Freedom to Vote Act, which would overhaul federal elections and campaign laws.
Senate Democrats are using a procedural loophole to avoid needing 60 votes to start debate on the bill. But, according to a memo from Schumer on Wednesday, they’ll need at least 10 GOP votes to advance the bill toward a final vote. Once that happens, Schumer has pledged to bring up a rules change proposal.
“Of course, to ultimately end debate and pass the voting rights legislation, we will need 10 Republicans to join us — which we know from past experience will not happen — or we will need to change the Senate rules as has been done many times before,” Schumer wrote in the memo to Democratic senators.
One idea being floated, in an effort to try to avoid needing 60 votes to advance the legislation, would be for Schumer to not move to formally end debate, which sets up the higher threshold, but rather try to force Republicans to mount a talking filibuster.
“It’s not necessarily the case that this ends with a rules reform. If you’re in a debate on a bill and you don’t file cloture, but you just allow the debate to go on until it’s done, then the last vote is just passing by simple majority,” Kaine floated to a group of reporters.
But a leadership aide questioned the mechanics of the idea. Durbin, asked about the possibility, said he would need to talk to Kaine.
“I’ve been asking that same question,” Durbin said, “[but] I have not had a definitive answer.”