Senate Majority Leader Chuck Schumer (D-N.Y.) succeeded in getting what he declared to be the single most vital piece of legislation undergirding American democracy onto the Senate floor for debate. And then, in one day, the Freedom to Vote Act disappeared in a flash.
Perhaps Sen. Schumer’s thinking was that because he didn’t have the votes to change the Senate’s filibuster rules and get a vote on voting rights, it made no sense to leave it as the Senate’s standing business. But that logic is odd since he always knew he didn’t have the votes.
Schumer’s decision to rob the nation of a chance for extensive debate — to learn what the act would do to stop voter suppression, to refute whatever electoral fraud concerns exist — was, at best, a missed opportunity and, at worst, a signal that some Democratic Party elites care less about democratic institutions than they profess.
The Freedom to Vote Act didn’t get to the Senate floor easily. Schumer’s team ingeniously led it through the thicket of rules that keeps the Senate paralyzed on anything that excites hearts on either side of the political aisle: 60 votes to begin debate; 60 votes to end debate; 60 votes to vote — there ought to be a song.
And yet the Freedom to Vote Act made it to the Senate floor so that debate could ensue through a bank shot: An agreement between the Speaker of the House and the Senate Majority Leader that a bill that needed to be reconciled between the House and Senate — a bill about NASA — could be amended with the John Lewis Voting Rights Act and the Freedom to Vote Act and then sent to the Senate for debate and consideration. The bill had essentially become a NASA rocket with voting rights legislation tucked inside.
The dance that Schumer’s team concocted is legislatively brilliant — until it’s not. Schumer shared the draft of his premeditated exchange with the Senate president with his Democratic colleagues:
“Schumer: Mr. President, I make a point of order that for this Message from the House with respect to H.R. 5746, the only debate in order during consideration of the Message be on the question of adoption of the motion to concur in the amendment of the House; further, that no further amendments, motions, or points of order be in order, and that any appeals be determined without debate.
“Chair: The point of order is not sustained as it is a compound motion that would require consent.
“Schumer: I appeal the ruling of the Chair.
“Chair: The question is: Shall the ruling of the Chair stand as the decision of the Senate?
“Schumer: I ask for the yeas and the nays.”
These were the pre-scripted moves, and this is what got the Voting Rights Act onto the Senate floor with 51 votes rather than 60. Not something one sees happen every day.
But in this exchange, Schumer also muzzled debate on this 785-page bill deemed “vital” for saving American democracy. No amendments, no motions, no points of order, no appeals. A senator recently told me that the two most important things senators do are talk and make amendments. But talking was constricted and amending was shut down.
One of the senators most resistant to changing the Senate’s filibuster rules, Joe Manchin (D-W.Va.), nonetheless believed the Voting Rights Act should be debated, amended, with stories told that were both heroic and diabolical about Americans’ voting experiences. Manchin said on the Senate floor, “We can make it easier to vote. We must. We can make it harder to cheat. I think we can. We have heard from our Republican colleagues who basically agree with us on that.”
Telling a story of his own from when he was West Virginia’s governor, Sen. Manchin recounted:
“I also started the Saving History and Reaching Every Student (SHARE) program in West Virginia because I thought, ‘I can’t teach the old dogs new tricks, but I can teach the young pups a few things.’ So I got the children excited about voting in high school, and we’d honor the high schools with the Jennings Randolph Award, because he was the one that fought for the 18-year-old right to vote. You’d be surprised by all the competition you got across the state. Those kids, those high schools, would fight for that award. And I guarantee, those students took their mom and dad to vote. And their grandparents. And their aunts and uncles. We were able to increase turnout. I believe with every fiber of my being that every eligible citizen should have the right to vote and that right should be protected by law.”
But there are stories today that run in the other direction. In El Paso right now, for example, mail-in voter registration rejections under new laws passed in Texas have surged from less than 1 percent in 2020 to 22 percent so far in 2022. If Schumer had allowed debate, amendments and more debate to continue, those stories would have been told to Americans.
Manchin often says he believes there are 10 or more Republican senators who want to come to a workable deal on voting rights. If those Republican senators actually exist, they would have had the runway to offer amendments to improve the bill from the perspective of their constituents, even if they failed to vote for final passage. Their DNA would be in the final product — and that’s bipartisan progress. Those who offered irrelevant amendments, or who burned time with outrageous attacks on voting rights protections, would have had to do so with the public spotlight on them. Non-germane amendments could have been tabled by majority vote, just as then-Senate Majority Leader Mitch McConnell (R-Ky.) did when he ran the Senate floor debate on the Keystone Pipeline bill.
A debate with amendments would have been a constructive lesson for the nation. Many Republicans would have challenged federal voting rights protections with a defense of state’s rights — but that, too, would have been leavened by the stories told, good and bad.
Most importantly, Schumer could have kept that bill on the floor for weeks if not months — if indeed it is the most important legislation facing the nation. Instead, debate on the bill started at 10 a.m. and it was off the floor by 10 p.m. the same day.
The tools Schumer could have used to keep public attention on the bill are the rules about “unanimous consent” and “motions to proceed.” Nearly all of the mechanics in the Senate require unanimous consent from the chamber; if a senator withholds consent, it acts like a filibuster and requires 60 votes to overcome that objection. With the Voting Rights Act on the floor, it would have taken either unanimous consent to get to a vote or other business, or alternatively a “motion to proceed.” Motions to proceed require only a simple majority vote but are themselves subject of debate —and, thus, extended debate is possible, requiring a cloture vote and 60 votes to end debate.
As Manchin said, with a floor placard behind him, “the United States Senate has never been able to end debate with a simple majority.” Schumer could have kept that debate on voting rights going indefinitely.
It would have been educational. It would have grounded Americans in a very public civics lesson. And if the GOP refused to be constructive and resisted passing federal protection of voting rights, don’t you think that Schumer and his Democratic colleagues might have had more standing to say to Sens. Manchin and Kyrsten Sinema (D-Ariz.), “See, we have done everything — everything possible. We have built them in to the debate, listened to them, tried to work with them in every way, but nothing. We have gone the last inch of the last foot of the last mile. Won’t you now change your mind on the filibuster?”
Maybe Manchin and Sinema still wouldn’t have moved. But to deprive the nation of the debate this bill deserved — and to try to nuke the filibuster in the process — was a way to lose before even starting.
Steve Clemons is editor at large of The Hill.