Will Democrats End the Filibuster to pass HR 1 and Save Democracy?

WASHINGTON — In the coming weeks, the battle over democracy’s future in America will hit a boil.

On one side is a group that looks at the last election and sees a resilient but damaged system. A system that withstood — sometimes only barely — a raging pandemic, a conspiracy-theory-peddling president, a major political party all too eager to amplify that president’s lies, a wave of hail-mary lawsuits intended to overthrow the election result, and a violent insurrection in the halls of the U.S. Capitol.

The other side of this battle sees that rickety system and wants to break it so badly the voters can never get in their way again.

On Wednesday night, the Democratic-controlled House of Representatives passed H.R. 1, the For the People Act, the most sweeping set of democratic reforms since the Voting Rights Act of 1965 and an effort to fortify our democratic system after the turbulence of the past six months. H.R. 1’s passage sets up a clash in the U.S. Senate where the bill stands little chance of passage without amending or removing the filibuster, an anti-democratic relic of the Jim Crow era that gives a minority of senators the power to block most legislation. Unless Senate Democrats reform the filibuster, H.R. 1 is dead on arrival, and the best hope for repairing and improving our democracy dies with it.

At the same time, Republican lawmakers in state capitals across the nation are introducing hundreds of bills to restrict the right to vote, using former President Donald Trump’s lie about a stolen election as a rallying cry and as political cover. This wave of legislation, experts say, will disproportionately restrict access to the ballot box for young, black, and brown voters — the most reliable voting blocs for the Democratic Party.

Without major change in Washington, the GOP backlash at the state level could lock in draconian new laws disenfranchising huge swaths of voters while gerrymandering state and congressional political maps for another decade. These anti-democratic maneuvers, political analysts say, could all but ensure that Republicans retake some or all of Congress in 2022, and make it easier to win back the White House in 2024.

The stakes of this moment aren’t lost on those leading the push for reform. “This is not a matter of ‘we can do it now or later,’” Rep. John Sarbanes (D-Md.), one of the architects of H.R. 1, tells Rolling Stone. “If we don’t do it now, there may not be a later.”

DANGLING BY A THREAD

There were many close calls. So many moments in the past few months when it felt like the country came within a hair’s breadth of democratic collapse.

Consider the insurrection on January 6th: What if Officer Eugene Goodman hadn’t lured the mob away from the Senate chamber just in time for members to escape? What if then-Vice President Mike Pence had followed Trump’s orders and disrupted the certification process? What if the violence had stopped the Electoral College certification?

Yet there were other near-misses before that day, choke points and bottlenecks when the transfer of power could’ve gone off the rails. Had Aaron Van Langevelde, a Republican member of the Michigan board of state canvassers, bowed to the pressure heaped on him by the Trumpist GOP and refused to certify Biden’s victory in the state, we might’ve entered into uncharted waters about who has the authority to certify an election result. Had the Republican leadership in Pennsylvania or Arizona or Wisconsin insisted that it did have the power to override the will of the voters and appoint its own electors, there might have been chaos in the counting of the Electoral College. Or had a judge allowed one of the post-election hail-mary lawsuits filed by Sidney “Unleash the Kraken” Powell or the other conspiracy-theorizing lawyers to proceed, it could’ve swamped the transition in a legal morass and maybe even led to the Supreme Court to helping determine the outcome, akin to what happened in 2000.

“We narrowly averted disaster,” says Rick Hasen, an election-law expert and professor at the University of California-Irvine law school.

There was no outright election meltdown in 2020 and 2021: The system held. But the treacherous path from election day to inauguration day revealed like never before the difference between laws and norms, written statutes spelled out on paper versus traditions and practices that men and women can choose, or not choose, to respect. “There’s just so much the law can do,” Hasen says. “Beyond that, you’re in the realm of a potential coup or raw power politics where the law doesn’t matter.”

THE NEW JIM CROW

Republican lawyers and legislators weren’t able to disrupt the 2020 election sufficiently to ensure Trump’s reelection, but they’ve wasted little time this year turning Trump’s “big lie” about election fraud into party gospel and using it to justify a nationwide assault on voting rights. By mid-February, legislators in 43 states had carried over, pre-filed, or introduced more than 250 bills to make it harder to vote, according to the Brennan Center for Justice. That’s more than seven times the number of voter-suppression bills put forward compared to roughly this time last year. Marc Elias, a Democratic election lawyer who assisted the Biden campaign during the 2020 campaign, calls it “the most massive voter suppression effort since Jim Crow.”

The bills run the gamut. They seek to curtail mail-in voting, slash the number of days of early in-person voting, scale back the use of drop boxes to make it easier to submit mail-in ballots, and in some cases reduce the hours for voting on Election Day itself. In Pennsylvania, Republican lawmakers have gone so far as to say they now want to throw out reforms that made it easier to vote like no-excuse absentee voting — reforms that, less than two years ago, they themselves had voted in favor of. “It’s like they are in a competition for who can pass the worst, most anti-voting law,” Elias says.

What these attempted rollbacks have in common, says Michelle Kanter Cohen, a senior counsel at the Fair Elections Center, is they take aim at voting options favored by young, black, and brown voters who turned out en masse in 2020. “In response to that, politicians who want to choose their voters rather than the other way around are moving to restrict voting,” she says.

Marc Elias predicts this new wave of suppression bills will lead to long lines at polling places in 2022, especially in minority communities and places where young people tend to vote. “If you are not in a pandemic, and you make voting by mail harder, and we know historically that black voters in particular in the South like to vote early in person, you’re going to have terrible lines unless you expand the polling places,” he says.

Alongside their suppression campaign, GOP legislatures have continued to push Trump’s “big lie” about the last election — that it was marred by fraud and stolen from him. (There is, it should be noted, no evidence to support this claim.) In Pennsylvania — the decisive state in the 2020 presidential race — the GOP-controlled legislature held a series of 14 hearings, all intended to determine if the election had been marred by widespread fraud. In some cases, these hearings served as little more than a venue for state lawmakers to parrot Trump’s claims and browbeat state election officials.

One of those officials was Kathy Boockvar, the Pennsylvania secretary of state. In an interview, Boockvar, who resigned last month, said she went into her job well aware of the problem of election-related disinformation. Lately, what stunned her, she told me, was hearing so much of that disinformation originate not from a foreign adversary but from Americans, even elected officials.

“This was the most heavily scrutinized, transparent election that we’ve ever had in American history,” she told me. “Despite that, there were these folks trying again and again to undercut the will of the people. It’s really disappointing. And to me, just as a human being, as an American, those people, a lot of whom are our elected officials, are doing the most un-American thing that I could imagine doing.” 

FIX THE FILIBUSTER — OR BUST

Rep. John Sarbanes says it’s no coincidence that for two sessions in a row House Democrats chose the For the People Act as their symbolic first bill: H.R. 1.

At 791 pages long, the bill is a mammoth piece of legislation that drags dark money into the sunlight, endorses statehood for D.C. and Puerto Rico, reins in partisan gerrymandering, calls for greater lobbying disclosure, paves the way for automatic voter registration, blocks candidates from coordinating with super PACs, and guards against foreign election interference. The first 300 or so pages of the bill alone are devoted to a dramatic expansion of voting rights and were authored by John Lewis, the late Georgia congressman and civil rights icon.

“The legislation is much the same as it was [in 2019] because we built it pretty carefully to respond to the grievances we heard from people out there,” Sarbanes says. But after the January 6th attack and the attempt to thwart the 2020 election outcome, he adds, “I think the appetite in the country for this kind of change is even broader and deeper than it was two years ago.”

In 2019, every single House Democrat voted in favor of H.R. 1; the same happened again on Wednesday evening. This time, however, the commander-in-chief is also a supporter of the bill, with the Biden administration saying in a statement that H.R. 1 was “urgently needed.”

But yet again, H.R. 1 faces a likely demise in the Senate. With only 50 members, Senate Democrats lack the votes to overcome a filibuster of any non-budget-related bills — and their Republican counterparts have made plenty clear they plan to filibuster H.R. 1 to death.

The fate of H.R. 1 will bring to the surface a battle that was inevitable: whether to change or abolish the filibuster. Both Democrats and Republicans have chipped away at the filibuster in the past decade, mostly to make it easier to confirm judicial nominees. A move to change the filibuster to pass bills like H.R. 1 on a simple-majority vote would be a more drastic move.

The fate of any filibuster reform will likely depend on the positions of a few moderate or conservative Democrats, senators like Joe Manchin of West Virginia and Kyrsten Sinema of Arizona. So far, there isn’t any indication those swing senators want anything to do with filibuster reform. “Never!” Manchin shouted at a journalist who’d asked him about reforming the filibuster. “Jesus Christ, what don’t you understand about ‘never’?”

Still, there’s movement elsewhere in the Democratic caucus toward filibuster reform. This week, Sen. Amy Klobuchar (D-Minn.), who had previously expressed skepticism about the idea, told Mother Jones that she now favored ending the filibuster, citing the surge in anti-voting bills at the state level. “We have a raw exercise of political power going on where people are making it harder to vote and you just can’t let that happen in a democracy because of some old rules in the Senate,” she said.

For the Democratic Party, the political ramifications are obvious, maybe even existential. Gerrymandered maps, the clustering of Democratic voters in urban and suburban regions, the rural skew of the Senate — all of this and more means the party needs real democratic reform to keep power in Washington and have any hope of passing legislation to address climate change, income inequality, civil rights, you name it. As the progressive data-scientist David Shor put it in a recent interview, “Basically, we have this small window right now to pass redistricting reform and create states. And if we don’t use this window, we will almost certainly lose control of the federal government and not be in a position to pass laws again potentially for a decade.”

None of those reforms can happen with the filibuster intact. Rep. Sarbanes, the H.R. 1 architect, told me he understands this. Democrats, he says, should look at “every possible consideration for how we can get this thing over the finish line.”

“I think the public wants to see this,” he told me. “And if we don’t deliver that, what are we saying to people across the country who feel so desperate right now? This is a moment of truth for lawmakers and our democracy.”

But the battle over H.R. 1, the filibuster, and democratic reform won’t necessarily be won or lost inside the Beltway. Kathy Boockvar, the former Pennsylvania secretary of state, told me that what kept her going through the turbulent past few months was the realization that there were far more people on the side of truth, facts, and democracy than against it. The people on her side, she said, may not have been as loud as the “Stop the Steal” crowd or the insurrectionists on January 6th, but they had them beat in the numbers, and could be just as loud if they made their voices heard.

“There’s far more of us who actually want to work for the truth, who want to rebuild our faith, who want to rebuild our everything it is to be American again,” she says. “We need to build on our own strength. Let’s be talking about calling out lies when we hear them. Let’s be out there talking about truth.”

Correction: This story originally named Kathy Boockvar as the current Pennsylvania secretary of state.