After months of speculation about the future of the filibuster, Democrats will attempt to change Senate rules today to force the chamber to move forward with voting rights legislation. The gambit — lacking unanimous support from within the Democratic caucus — is expected to fail. Here’s how it will work:
First, let’s refresh on the Senate’s current rules. Right now, to pass a bill in the Senate, only 51 votes — a simple majority — are needed. But to get to that final, up-or-down vote on passing legislation, bills must first survive a “cloture vote,” which cuts off debate on the measure and allows the chamber to move to a vote on the bill’s passage.
That cloture vote requires support from 60 senators, meaning that a supermajority of senators must agree to end debate on a bill before a simple majority of senators can vote to pass it. If a bill fails to reach the 60-vote threshold to move beyond a cloture vote, it is said that the minority party is staging a “filibuster” to block the legislation. (Although the filibuster has roots dating back even further, the Senate’s cloture rules were formalized in 1917.)
The voting rights bill currently before the Senate is supported by a simple majority (all 50 Democrats plus Vice President Kamala Harris, who breaks ties in the Senate) but lacks support from a 60-vote majority to end debate (which would require assistance from 10 Republicans).
The measure, dubbed the Freedom to Vote: John R. Lewis Act, would establish new nationwide standards for voting in the U.S. by requiring states to institute online, automatic, and same-day voter registration; a minimum of 15 days of early voting; and no-excuse mail voting, among other changes. It would also make Election Day a federal holiday and restore provisions of the Voting Rights Act of 1965 that require new voting rules in certain states to be “pre-cleared” by the federal government.
How will Democrats seek to change Senate procedures today to pass the bill? Generally, a two-thirds majority of senators (67 of them) are needed to change the rules of the Senate. However, there exists a work-around known as the “nuclear option,” in which the majority party can attempt to amend Senate rules with only 51 votes.
Here’s how the nuclear option works: the Senate is scheduled to hold a cloture vote on the Democratic voting rights bill at 6:30 p.m. Eastern Time today. Because only 50 senators — and not 60 — support ending debate on the measure, that vote will fail.
Once the presiding officer has declared cloture was not invoked, Senate Majority Leader Chuck Schumer (D-NY) will stand to raise a point of order, arguing that the presiding officer is wrongly interpreting Senate rules. The presiding officer will reject the point of order — but here’s the catch: Schumer will then appeal, and overturning a “ruling of the chair” only takes 51 votes (instead of the 67 usually needed to change the rules), creating a backdoor to effectively changing Senate rules (not in text, but in how they are implemented).
The Senate has “gone nuclear,” using this same work-around, three times in the past: Democrats did it in 2013 to change the cloture threshold to 51 votes for all presidential nominations except to the Supreme Court, then Republicans expanded that change to include Supreme Court nominees in 2017 and also shrank the minimum debate time for lower-level nominees in 2019. (The nuclear option has never before been used to change how legislation is passed in the Senate.)
Schumer announced on Tuesday exactly how he will propose to amend the rules. His modification won’t apply to Senate Rule XXII(which regulates cloture votes), but to Senate Rule XIX — specifically, the provision in that rule that senators can only speak twice “on any one question” (a vague dictum which doesn’t currently preclude speaking more than twice on a particular piece of legislation).
In effect, Schumer will attempt to force a clarification stating that senators can only speak twice on the Democratic voting rights bill. (He will seek to apply his new rule only to this specific bill, without setting a permanent precedent.)
No change will be made to the cloture threshold: during the debate, it would still take 60 votes to cut off discussion. But, under this theoretical rule, once senators have spoken twice on the bill (after a likely “talking filibuster,” when Republicans would speak for as long as they could muster), debate on the measure would simply be deemed over and the Senate could hold a vote on final passage at a simple majority threshold.
A reality check, though: Democrats don’t have the votes to make this happen. Invoking the nuclear option takes 51 votes (again, that would be every Senate Democrat plus Harris in this case), but at least two Democrats are expected to oppose the move.
Sen. Joe Manchin (D-WV), who opposed all three previous nuclear option attempts, reiterated his opposition on Tuesday, after Schumer outlined his plan. “I don’t know how you break a rule to make a rule,” he said.
Manchin is joined by Sen. Kyrsten Sinema (D-AZ), who announced last week that she would oppose any rules change without bipartisan support. “While I continue to support [the voting rights bill], I will not support separate actions that worsen the underlying disease of division infecting our country,” she said.
The likely failure of the voting rights package will be a major setback for Democrats. President Biden and his allies have characterized this struggle as a crucial one for the survival of democracy, and expended a large amount of political capital to push forward with it.
“At consequential moments in history, they present a choice: Do you want to be on the side of Dr. King or George Wallace? ... Do you want to be on the side of Abraham Lincoln or Jefferson Davis?” Biden said in a speech in Atlanta last week. “This is the moment to defend our elections, to defend our democracy.”
The bill is a response to measures passed in Republican-led states across the country that have restricted access to the ballot box. Republicans have characterized the Democratic bill (and the attempted use of the filibuster to enact it) as an unprecedented power grab: “They want to take over the Senate, so they can take over elections, so they can take over America,” Senate Minority Leader Mitch McConnell (R-KY) said last week.
In opposing the rules change, Manchin and Sinema will effectively kill their party’s own top legislative priority. Their stance has already provoked deep anger within the Democratic base — and among top Democratic leaders and groups. Sen. Bernie Sander (I-VT) told reporters on Tuesday that he’d consider supporting primary challengers to the duo; EMILY’s List, the prominent pro-choice organization, pulled its support of Sinema.
Manchin, though, hailing from a deep-red West Virginia, indicated Tuesday that he was not afraid of a primary fight. “I’ve been primaried my entire life,” he said. “That would not be anything new for me ... We’re used to that, so bring it on.”