Attention, Democrats: The Constitution Trumps the Filibuster

Attention, Democrats: The Constitution Trumps the Filibuster

Attention, Democrats: The Constitution Trumps the Filibuster

In the case of voting rights legislation, the filibuster is not applicable, or even relevant.


Four times during this past congressional session, Senate Republicans have blocked voting rights legislation. Democrats are currently trying to decide whether to use their shaky, one-vote majority to end or limit use of the filibuster in order to overcome Republican opposition and pass a voting rights reform bill. As usual, they are divided.

This time, however, here need be no dispute, for the filibuster should not be applicable or even relevant. The text, history, and judicial interpretation of Article 1 Section 4 of the Constitution, the “Election Clause,” decide this issue, and no procedural rule such as the filibuster—and probably not even a statute—can impose any limitation or additional requirements on what is in the Constitution: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.”

The inapplicability of a filibuster to this unique situation is not, however, a precedent for abolishing the filibuster entirely, or for a carve-out for other legislation.

In opposing the Democrats’ voting proposals, the Republicans initially argued that because the Constitution gives states the authority to regulate both state and federal elections, Congress cannot review what the states have enacted.

Nothing could be further from the truth. The “Election Clause” does authorize the states to regulate and administer federal elections, but immediately checks that authority by adding that “Congress may at any time by Law make or alter such Regulations.” For almost a century and a half—and as recently as 2013—the Supreme Court has made it clear that these “comprehensive words” in the Election Clause give Congress “plenary and paramount jurisdiction over the whole subject” of federal elections and authorize Congress to “alter those regulations or supplant them altogether…at any time, and to any extent which it deems expedient.” And Congress has often done so, most recently in the 2002 Help America Vote Act. That sweeping override authority was extended by the 14th, 15th, 19th, 24th, and 26th amendments to enforce antidiscrimination and voting rights in state elections.

The Democrats’ pending bills, based on a memorandum prepared by Senator Joe Manchin, are authorized by the Election Clause and the voting amendments. The clause is unique in its specificity and the broad scope it gives Congress to override state law, in order to preserve the free, fair, and equal voting and majority rule that are the life blood of what the framers called a “representative government.”

In 1787, there was no federal administrative apparatus to run the 1788 federal elections, so it made sense for “the Times, Places and Manner of holding elections for Senators and Representatives” to be turned over to the states. The framers, however, had a very low opinion of state legislators and legislatures, and were particularly concerned that many state legislators were hostile to the national government.

Before the Constitutional Convention began, James Madison wrote a pamphlet detailing the “base and selfish measures of the state legislatures and the legislators” and the “unjust violations of the rights and interests of the minority.” At the Convention he argued that Congress needed the override power in Article I, Section 4 because state legislators “sometimes fail or refuse to consult the common interest at the expense of their local convenience or prejudices.” And in The Federalist 59, Alexander Hamilton worried that some states even might “at any moment annihilate” the federal government. According to Hamilton, the fundamental premise of the near-total power given Congress over federal elections by the Election Clause was “that every government ought to contain in itself the means of its own preservation” (italics in original), a “plain proposition,” he wrote. His concern is especially relevant today as Republican state legislatures are hijacking their states’ entire state and federal election administration.

A measure of how seriously the framers considered such a threat is that the Elections Clause is the only provision in the original Constitution authorizing Congress to act directly against a state—authority extended to include state elections in the aforementioned amendments.

State legislators and legislatures haven’t changed much in the nearly two and a half centuries since 1787. At least 21 state and local officials participated in the January 6 insurrection, as did seven Republicans who were elected in November 2021. A Vice News report found that 19 of the 50 GOP state chairs, including the chairs of almost every swing state, support Trump’s big lie that the election was stolen from him. Nonpartisan election officials have been intimidated or fired; in Texas, Georgia, and other Republican states, these officials face criminal penalties if they exercise discretion to make it easier for people to vote.

Today’s Republican strategy is built upon voter suppression laws, gerrymandering, and elaborate attempts at election subversion, all leading to an initial goal common to all authoritarian parties: a loss of public confidence in elections, and ultimately in democracy.

The rash of red-state voting laws targets Blacks and other minorities in Atlanta, Houston, Detroit, and other urban areas. In Texas, for example, Republicans recruited political partisans from Anglo areas to go into minority districts as poll watchers to peer over the shoulders of voters and officials, a tactic often used in the past by Republicans to intimidate both. Similarly restrictive laws are almost certain to be passed in other red states in 2022.

The new congressional and state election districts required by the 2020 Census are also being reshaped to minimize the Democratic vote in Census districts where Democrats are in the majority. Although gerrymandering is done by both parties, more is done by the GOP, especially in the key swing states, because it controls 26 state legislatures.

The 2021–22 Republican gerrymandering will not, however, be like traditional gerrymanders where the party in control tries to create and win as many competitive districts as possible in the states it controls. This time, the Republicans are eliminating competitive districts to ensure that they will be able retain the huge gerrymandered majorities they created in 2011–12 and still retain in the 26 state legislatures they control, not just for the next decade but for decades to come. So far, the number of competitive House seats (those decided by 5 percent or less) has fallen from 38 to 15.

It is already clear that the 2021 redistricting cycle will hurt Black and Latino communities the most. GOP maps in Texas, North Carolina, Ohio, and elsewhere are concentrating on “packing” and “cracking” minority districts, including towns of historically Black colleges. That will render the minority vote of little or no effect in the district, undermining the foundational democratic principle that all legally cast votes must be given equal weight. As Ohio State professor Ned Foley recently observed, “The House of Representatives is supposed to represent the people. It doesn’t.” The voting rights bills now before the Senate would overturn gerrymandering by both parties and replace them with nonpartisan bodies; even if passed, they would probably not affect the 2022 election in many states.

The clear and present danger to American democracy today is that Republican leaders both in state legislatures and nationally are working to control—and if necessary subvert—the outcomes of the 2022 and ’24 elections. Some Republican officials in Arizona and Colorado have already broken into secure areas and allowed outsiders to copy the hard drives of voting equipment. In the 2020 presidential election, Georgia and Michigan Republican state legislators, encouraged by White House aide Stephen Miller, tried but failed to have alternate slates of electors favoring Trump accepted. In those states, as well as in Pennsylvania and Colorado and probably elsewhere, ballot counting, certification, and other basic voting matters are already in the hands of Trump allies. In particular, Republicans are working to ensure that Republican secretaries of state—the officials who count the votes, and in 2020 and prior elections were almost universally nonpartisan–will be Trump loyalists.

If the Republicans lose the 2024 presidential election, they apparently plan to have enough alternate slates accepted to throw the election outcome into the House of Representatives where the voting is by state, regardless of population, and the larger number of red states will produce a Republican president.

The Republicans’ primary weapon against the Democrats’ voting rights bills is Senate Rule 22, which requires a 60-vote majority before a bill can go to the floor for passage. This rule has no constitutional, statutory, or other legal foundation.

The current filibuster rules originated in 1917 during World War I, when opponents of a congressional push to arm America’s merchant ships produced such widespread opposition that the filibusterers were forced to accept Rule 22, which allowed a two-thirds vote of the Senate to end the filibuster. This has since morphed into a rule that once was limited largely to civil rights legislation but has now become a 60-vote prerequisite to all legislation. As E.J. Dionne recently wrote, the current filibuster “is now a barrier to normal governing…. From 1917 through 1970 (53 years), there were only 58 cloture motions to shut off filibusters. From 1971 to 2006 (35 years) there were 928 cloture motions. From 2007 to now (14 years) there have been 1,419 cloture motions.”

A mere procedural rule should not be able to add a supermajority precondition to consideration or passage of proposed electoral legislation. That would amount to allowing that rule to become a de facto amendment of the Constitution. Throughout the Constitution and our history—indeed in every democracy—legislative outcomes are based on majority rule. When a supermajority is deemed necessary, it is specifically provided for, as with treaties, amendments, and impeachment convictions in our country. A supermajority prerequisite to consideration of all legislation is especially anomalous and, in fact, astonishing, given the framers’ intense hostility to supermajorities and to the minority rule they produce.

Indeed, nothing short of a formal change in the Constitution itself can impose a new precondition to the exercise of a constitutionally created authority, as the Supreme Court indicated when it struck down a state’s effort to add term limits to the qualifications of members of Congress. This is equally true where a statute or rule not only imposes a new precondition to the exercise of a constitutionally authorized congressional power but also requires a supermajority to satisfy existing requirements. Accordingly, the filibuster has no applicability when Congress invokes its “plenary power” over elections, and any attempted filibuster is out of order. If the parliamentarian disagrees, the majority should overrule her.

The Constitution does provide that “each House may determine the rule of its own proceedings.” But this authority is not unlimited. A chamber of Congress could not adopt a rule that denied the right of any Black legislator to chair or serve on a congressional committee.

Allowing a Senate minority to block action by requiring a Senate supermajority for some purposes may well be within the Senate’s rulemaking authority under Article I, Section 5 in cases not involving elections. But where action to protect elections is based on the plenary power given Congress by the Election Clause, the Senate may not use its rulemaking power to block or override such action, for that could destroy the fundamental element of every democracy—the people’s right to choose their governors.

Today, history is repeating itself. The new Republican suppression and gerrymandering laws targeting minority voters and taking over election administration have been written to achieve perpetual control of Congress and the state legislatures, regardless of what the voters want. Allowing a filibuster with a supermajority requirement to block action by the current Democratic majority to protect Black, Latino, and other voters would also nullify the power specifically and uniquely given Congress to protect itself and the American voter against abuses by state officials. Today, the filibuster is being used to protect the red-state voting laws that continue more than 150 years of efforts by white supremacists to keep Black, brown, and other minority Americans from voting.

Ten months ago, most Americans watched in horror as a violent coup, whose purpose was to overturn a free, secure, and fair election, took place. That coup failed, but efforts are underway in some state legislatures and within the Republican Party apparatus to try again if its candidate loses the 2024 presidential election.

The voting rights bills currently before the Senate are an essential part of any strategy to prevent such an outcome. If the Democrats do not come together to pass these bills, and soon, they will have committed political suicide as a party and violated their oath as senators to defend the Constitution.

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