Elections Reform and Senate Rules – Will Rogers said, “you’ve got to go out on a limb sometimes because that’s where the fruit is.” This week (and not for the first time) Senate Majority Leader Chuck Schumer (D-NY) is out on a limb, but it’s not clear where the fruit is.
Here’s what we mean. Over the next few days, Schumer will exercise his prerogative as Majority Leader and call up the “John Lewis Voting Rights Act” and the “Freedom to Vote Act.” You don’t need to be a betting man to know the outcome: both bills will fail because all 50 Republicans (with maybe one or two exceptions) will oppose them, meaning Schumer won’t have 60 votes to proceed. This is where things get interesting.
As all DC knows, Schumer has vowed to change Senate rules—i.e., remove the filibuster in some manner—by Martin Luther King Day, if necessary (it will be), to pass these bills. How so? That’s the question. Eliminate the 60-vote threshold on the motion to proceed (also known as “cloture-on-the-front end”)? Maybe. Re-institute the so-called “talking filibuster”? Possibly. Assuming there’s sufficient support for these ideas—a dubious assumption—what do these reform proposals have in common? Neither would deep-six the filibuster preventing legislation from coming to a final vote.
What about a carveout? In other words, remove the filibuster for, say, legislation that covers “constitutional rights,” meaning, presumably, these two bills. An interesting idea, to be sure. But Schumer continues to be flummoxed by a basic problem: at least at this point, he doesn’t have the votes, for that proposal or any other of its kind (to effectuate the necessary changes he’d move to overrule the chair, the so-called “nuclear option,” which requires 51 votes). In his typical folksy way, Sen. Joe Manchin (D-WVA) said, “Once you change rules or have a carve-out—I’ve always said this: Anytime there’s a carve-out, you eat the whole turkey because it comes back. So, you want things that’ll be sustainable.”
To date, the national media have focused relentlessly on Manchin’s, and Sen. Kyrsten Sinema’s (D-AZ), opposition to filibuster reform. But they are not alone. Just yesterday, Sen. Mark Kelly (D-AZ), up for reelection in November, expressed reservations. “I’ve never been part of an organization where it’s really, really hard to do things,” Kelly said. “So if there’s a real proposal, I’ll take a look at it and evaluate it based on what’s in the best interests of the country.”
Similarly, Sen. Chris Coons (D-DE), who signed a bipartisan letter in 2017 supporting the legislative filibuster, is “seriously weighing” how to proceed. Sen. John Tester (D-MT) is reportedly in the same boat. Sen. Catherine Cortez Masto (D-NV), gearing up for a tough reelection fight this year, said she supports the talking filibuster—which, as noted, won’t get the election and voting rights bills across the finish line.
All the while, Senate Minority Leader Mitch McConnell (R-KY), banking on his minority position and a stalwart defender of the legislative filibuster, is categorically opposing any changes—and every Republican supports him. Republicans are leveling charges of hypocrisy at the other side. Expect them to highlight (at a minimum) that in 2020, at the start of the pandemic, Senate Democrats filibustered the CARES Act, and deployed it against Sen. Tim Scott’s (R-SC) police reform bill.
Is there a deal to be had? No chance. Republicans are certainly open to amending the antiquated and inscrutable Electoral Count Act (ECA), but not in exchange for filibuster reforms. Sen. Susan Collins (R-ME) is leading a bipartisan group to examine tweaks to the ECA, a group that includes Sinema and Manchin, along with Senators Thom Tillis (R-NC), Jeanne Shaheen (D-NH), Mitt Romney (R-UT), and Roger Wicker (R-MS). Where this goes is anyone’s guess. But recall that Sen. Collins led the aforementioned bipartisan letter in 2017 opposing elimination of the filibuster. In other words, don’t expect anything earth-shattering.
Certainly not anything that would leave the Progressive base satisfied. As for McConnell, few things are more important than preserving the status quo procedurally in the Senate. If ECA reform can achieve that objective, which means concomitantly keeping Manchin et. al convinced that the body can still function through negotiation, then fine, but not at the expense, as McConnell sees it, of protecting fundamental minority rights in the chamber.
So, what’s the likely outcome of this? It seems that Schumer could be left only with a talking point—that Republicans blocked essential reforms, and because of their intransigence (one can think of other epithets likely to be used), minorities will be prevented from voting in 2022 and beyond. Republicans appear eager to weather the criticism: they will pocket a win and continue to focus on inflation—the next round of BLS numbers released tomorrow will show the problem worsening—the lack of COVID testing, virtual schooling, crime, and the economy. And revel in their election prospects in November.
Appropriations – An omnibus spending deal appears no more likely than before the break, given the yawning gap between Democrats and Republicans on spending levels and policy riders. With the omicron surge, some lawmakers, such as Sens. Ben Cardin (D-MD) and Roger Wicker, want to provide emergency funding to restaurants still hurting from the pandemic. This seems like a tall order. The Biden administration may also request a COVID supplemental, an idea being lambasted by Republicans asking what happened to the $1.9 trillion passed last March in the American Rescue Plan.
But not so fast: some Republicans are at least broaching the notion that a supplemental deal on COVID could push Manchin to permanently kill the Build Back Better Act. Of course, others think Manchin has already done that, but time will tell.
Senate and House Floor This Week – In addition to election reform legislation this week, the Senate will consider nominations and potentially consider S. 3436, which addresses sanctions related to the Russian Nord Stream 2 pipeline. This stems from a deal forged between Schumer and Sen. Ted Cruz (R-TX); procedurally there will be only two hours of debate and no amendments will be in order. The Biden Administration is lobbying hard against the bill, making it difficult for Democrats who may be inclined to vote for it. Instead, though it’s being dubbed a violation of the Schumer-Cruz deal, a vote on a Democratic alternative could provide the cover that many Democrats want.
The House will begin its second session of Congress this week by considering H.R. 1836, the Guard and Reserve GI Bill Parity Act, and the Senate Amendment to H.R. 5746, the NASA Enhanced Use Leasing Extension Act.