Facing an intractable standoff with Sens. Joe Manchin and Kyrsten Sinema on one plank of the party’s agenda, Democrats decided to refocus on something else: an even more intractable standoff with the two senators on a different plank of their agenda.
Manchin, the conservative West Virginia Democrat, is the biggest obstacle remaining to passage of the $1.75 trillion Build Back Better Act, the sweeping bill carrying the party’s social, economic, and climate priorities.
Despite multiple rounds of talks between Manchin and President Joe Biden, the senator isn’t budging from his deep-rooted skepticism of the bill’s price tag, scope, or key proposals. Sinema, the Arizona centrist, has raised fewer objections, but her vote is far from assured. And so Democrats are likely to end the year with no further progress on Build Back Better and its fate in the new year looks uncertain.
It’s against that backdrop that Senate Democrats are making a last-ditch effort to revive their stalled legislation to reform elections and voting. Their efforts to shore up voting rights have languished all year, despite unanimous Democratic support, because Manchin and Sinema are opposed to changing Senate rules to pass it over a Republican filibuster.
Manchin has insisted that both voting legislation and Senate rules changes be bipartisan, neither of which are in the realm of possibility.
In a statement Wednesday night, Sinema also unequivocally rejected the prospect of a rules change in order to pass voting protections legislation.
Still, many Senate Democrats—emboldened by Majority Leader Chuck Schumer’s continued hope—have avoided coming to the fatalist conclusion that no rules changes at all are possible.
So as Manchin and Sinema close the door on passing Build Back Better before the end of the year, Democrats have looked at the possibility of using the remainder of their legislative session this year to advance voting reforms.
A reasonable goal, lawmakers and aides have said, is to advance a package of rule changes with the time they have left this year—essentially, a couple of legislative days before Christmas—to set up consideration of voting bills under more favorable rules early next year.
However, such changes would be far more modest than what nearly all Senate Democrats want to see: a so-called carve-out that would allow any voting legislation to pass with 50 votes.
Plenty of Democrats are skeptical they could even secure more modest reforms, despite the full-court press to persuade Manchin and Sinema.
“If this is not Lucy and the football,” said one Democratic aide, “I don’t know what is.”
The aide predicted Democrats would likely go home for Christmas empty-handed having squandered this moment—or that Schumer and lawmakers wooing the holdouts are correct in betting they are persuadable.
There are a few reasons that animate such hopes. For one, some Democrats believe Manchin might be more open than he was before to certain rule changes.
Sen. Jon Tester (D-MT), who is involved in the direct talks with Manchin, said Democrats were “moving forward, having good conversations, progressing.”
If a package of rule changes to set up more favorable consideration of legislation sounds far-fetched or meaningless, it’s not.
Just last week, the Senate showed how important that sort of step can be—and how fungible its own rules and procedures are when Republicans play along.
Essentially, Republicans blessed a maneuver to suspend the filibuster and let Democrats extend the U.S. government’s borrowing authority—which they did not want to do—on a party-line vote.
A similar tactic for voting legislation, in some capacity, could be crucial to actually enacting reforms, especially as Democrats become more alarmed at Republican-led movement on the state level to influence elections in the GOP’s favor.
Mostly, it’s clear to Democrats there’s a need to say they did something of significance before leaving for the holidays—even if the something they have chosen to tackle has eluded them for a year.
The larger issue for Democrats is that even success in this particular fight could ultimately look like failure to the public and, particularly, the party base, which has been demanding election reforms.
That’s because some of the rule changes Democrats are discussing are so modest that they would not help much in actually passing election reform legislation.
According to one source, the focus is on persuading Manchin to embrace measures that would create more opportunities for debate on legislation and make the process of filibustering more onerous. That includes the so-called “talking filibuster,” for example, which would require the opposition to fill every hour of debate with actual talking.
Given the overwhelming, intense GOP opposition to Democratic voting proposals, such rule changes would only delay and complicate the inevitable: a successful GOP filibuster.
Democrats have also tried to see if Manchin and Sinema might be open to a very narrow filibuster exception, Politico reported on Wednesday, covering gerrymandering reforms and legislation to restore the Voting Rights Act.
Activists who have been pushing Democrats to fulfill this key campaign promise have been exasperated with party leadership for the slow pace of progress, and they are signaling they will be far from satisfied with procedural reforms that don’t result in the passage of legislation.
“We have a simple metric for assessing success—it’s whether this legislation passes,” said Leah Greenberg, co-founder of the progressive advocacy group Indivisible. “The drip-drip of, maybe next month, maybe next month, is not going to cut it with our folks.”
Many Democrats believe the recent debt limit gambit—plus the pressure on Democrats to respond to GOP voting measures—is making Manchin and Sinema’s filibuster stances increasingly difficult to defend.
A number of colleagues have already found that their opposition to a filibuster exception for voting rights is longer tenable. Just on Tuesday, Sen. Mark Warner (D-VA) announced he supports a carve-out to pass voting legislation with a simple majority.
Manchin and Sinema, alongside 10 Republican senators and a majority of the House, last week enacted a one-time carve-out to raise the debt limit without needing 60 votes in the Senate. The deadline for lifting the debt ceiling was rapidly approaching, yet Republicans maintained they didn’t want to be part of an actual vote to address the issue. So, within a matter of days, a deal was struck.
Democrats say the carve-out was a reminder these rules are not the “sacrosanct constitutional matters” that filibuster defenders make them out to be, as Sen. Brian Schatz (D-HI) put it.
“If somehow or another we can figure out a way to pass the debt ceiling with 50 votes, I think we can do the same with voting rights. I think it's a question of priorities,” Sen. Bernie Sanders (I-VT) told The Daily Beast.
But the debt ceiling provided unique circumstances for a one-time filibuster loophole. Republicans, by and large, agreed the ceiling needed to be raised; they just didn’t want to take an active part in it. Voting for a procedural carve-out allowed them to avoid putting their name on the issue while simultaneously not sending the nation into default.
Issues like voting rights are different. Republicans don’t want reforms and are nearly guaranteed to deny Democrats the 10 supporting votes they’d need to create a carve-out, with carve-out proposals themselves also being subject to filibusters—as is the circle of life in the Senate.
Proponents of creating an exception to the filibuster for voting rights, however, remain hopeful.
“Eliminating the filibuster on this debt limit vote was another big crack in the filibuster brick wall, and now Senate Democrats need to take the next step and finally fix the broken Senate rules that Sen. McConnell is abusing to block the Freedom to Vote Act and prevent President Biden from delivering on so much of his popular agenda,” said Eli Zupnick, spokesperson for Fix Our Senate.
It’s clear that ahead of midterms, with Republicans projected to wipe out Democrats in the House and the Senate very much up for grabs, Democrats need successes to campaign on. It likely wouldn’t hurt if those successes were to the benefit of voter turnout.
But some activists still aren’t buying the this-for-that swap between voting rights and the Build Back Better Act.
“These are not competing priorities. Both are vital. Both need to get done, and now,” said Rahna Epting, director of the progressive group MoveOn. “Enough of the delays. Enough of the excuses. Enough of the negotiations. Our democracy, our economy and tens of millions of families across this country can not afford any more political games or delays.”
In a statement, Varshini Prakash, executive director of the climate-focused Sunrise Movement, was even more blunt about the cost of failure for Democrats.
“I want to be clear: if Democrats come to the midterm elections with a message of ‘we tried, please vote for us,’” Prakash said, “they will lose and they will deserve it.”