‘Déjà vu all over again’: Ending Senate filibuster to advance election reforms unlikely to succeed

WASHINGTON – In 2021, Democrats in the nation’s capital seized a rare opportunity.

The party controlled the “trifecta” of the House, Senate and White House, so they passed a sweeping election-reform bill through the lower chamber despite universal opposition from Republicans and concerns from election administrators that the legislation would force states to foot the bill and would be impossible to implement in time for the coming midterm elections.

With the support of then-President Joe Biden and nearly every Democrat in the House and Senate, the only thing that stopped the bill from becoming law was the Senate filibuster, a rule that requires a 60-vote supermajority to end debate and pass most legislation. Democratic senators could have changed that rule with a simple majority of 51 votes, but not every Democrat agreed the so-called “nuclear option” was worth it, even to pass what party leaders had identified as their top legislative priority.

Five years later, a remarkably similar scenario is playing out, this time with a Republican trifecta. President Donald Trump has demanded that GOP lawmakers pass the “SAVE America Act,” a similarly dramatic overhaul of the nation’s elections that would require Americans to show photo ID when they vote – by including a photocopy with the mail-in ballots used in Washington and many other states – and prove U.S. citizenship each time they update voter registration.

It would also require states to turn their voter rolls over to the Department of Homeland Security and would make local election officials face prison time or lawsuits by private citizens if they help someone register to vote without proper proof of citizenship, even if that voter is a citizen. The president has asked senators to amend the bill to ban mail-in voting almost entirely, a provision not in the version passed by the House in February.

Trump has threatened the political careers of any Republican who doesn’t back the bill and pledged not to sign any other legislation until they pass it. But despite GOP senators holding a 53-47 majority, Senate Majority Leader John Thune, R-S.D., has said there isn’t enough support among the conference to change filibuster rules and pass the bill.

“This is déjà vu all over again,” said Cornell Clayton, professor of political science at Washington State University. “The exact same arguments were made back in 2021 as are being made right now, just by different sides.”

Caught between pressure from Trump and quiet resistance from some of his fellow GOP senators, Thune opted to dedicate most of the week on the Senate floor to debating a bill he knew didn’t have the support to pass, at least at the time. Like their Democratic counterparts five years earlier, the impasse among Senate Republicans has turned the fight over the bill into a political messaging exercise, with lawmakers in the majority party blaming the minority for blocking a bill supported by the GOP base.

“The minority party obviously likes the filibuster because they can stop majority actions,” said Matt Glassman, a senior fellow at Georgetown University’s Government Affairs Institute. “But the majority party likes the filibuster, too, because it allows them to shift blame for things that they otherwise might not want to do. They can blame it on the filibuster when actually they just don’t want to do it.”

Glassman said getting rid of the filibuster is popular among voters, because to the average American, “It just seems wacky that the majority doesn’t win. That sort of goes against basic democratic principles.”

A pattern of voters electing politicians based on promises that are often broken when they run into the inertia of the Senate breeds cynicism among Americans, he said.

“But the underlying political theory of our system is not that the majorities rule,” Glassman said. “It’s that competing factions should all be part of the government to prevent anyone from being able to centralize power and make unilateral decisions.”

A week after Sen. Jim Risch, R-Idaho, told right-wing radio host Neal Larson he would do “whatever it takes” to pass the SAVE America Act, he took to the Senate floor on Wednesday to describe the bill as a no-brainer. In a brief interview after the speech, he declined to elaborate on his previous statements, even to confirm that he supports changing filibuster rules.

“Let me say it again: ‘Whatever it takes.’ And you can interpret that as you see fit,” Risch told The Spokesman-Review, before joking that he would draw the line at “armed conflict.”

Sen. Mike Crapo, another Idaho Republican, told Larson he supports changing filibuster rules to pass the election-reform bill a day before Risch appeared on the same radio program. Through his spokeswoman, Crapo declined to talk about the filibuster.

“The history and the functioning of the filibuster is a really, really interesting subject matter for somebody who drills down into the weeds,” Risch said. “The problem is, if we have this conversation around where we are right now, people will take something out of there and apply it to this situation. I don’t want to do that.”

Glassman, who spent a decade studying congressional procedure at the nonpartisan Congressional Research Service, said members of the Senate realized early on that “if you just keep talking, you never take a vote.” That changed in 1917, when senators adopted a rule that allowed a two-thirds majority to end debate and vote on a bill.

The threshold to invoke “cloture” and end debate was lowered to 60 votes in 1975, when the modern filibuster was born. Both parties have chipped away at it since then, with a Democratic majority in 2013 changing Senate rules to require only 51 votes to confirm a president’s nominees to fill executive-branch positions and vacancies on federal district and appellate courts. In 2017, a Republican majority expanded that exception to Supreme Court nominees.

But with the notable exception of the “budget reconciliation” process, which lets the Senate majority pass one bill related to taxes and spending each fiscal year, the filibuster still applies for most legislation.

Laura Dove, a longtime Republican aide in the Senate who served until 2020 as secretary for the majority under then-Majority Leader Mitch McConnell, R-Ky., said many House members run for Senate because, unlike in the House, even first-term senators can have an impact on virtually any issue. That’s largely because of the filibuster, she said, which prevents policy from swinging back and forth as power in D.C. passes from one party to the other.

“Supporting the filibuster is pretty fundamentally conservative, because the filibuster is really putting a check on the role of the federal government at the end of the day,” said Dove, a fellow at the conservative American Enterprise Institute. “So if you want smaller government, you like the filibuster. You like that notion that it should be hard to pass a law and it should have broad support from all over the country.”

Facing pressure from her party’s base, Democratic Sen. Patty Murray of Washington said in March 2021 she would “consider every legislative option, including an exemption to the filibuster” to pass the election-reform bill Democrats dubbed the “For the People Act.” Now, as the top Democrat on the Senate Appropriations Committee, the filibuster means most legislation needed to fund the government needs Murray’s approval, making her one of the most influential people at the Capitol, even in the minority.

Asked what it would mean for the Senate if Republicans change the filibuster rule to pass their election-reform bill, Murray said Wednesday that’s “really hard to predict.”

“Right now, I don’t believe they have the votes to do that,” she said. “I know they’re discussing it. They’re trying to talk about whether or not they move forward. But whenever you do something like that, you’ve got to think about the consequences for the future. And the consequences on this bill in particular is that for the first time ever, they would be taking away the ability for people to participate in this democracy by using their vote, which is critical to our democracy and our future.”

Alan Wiseman, a political science professor at Vanderbilt University, said the end of the filibuster would likely make for big swings in policy as power changes hands between the parties. Its continued existence can be credited for the occasional bipartisan bills that emerge from the Senate, he added, like the housing legislation senators passed by a wide margin on March 12.

“Absent having one party that has 60-plus votes, the only other way in which you’d see really substantial changes in policy is if there’s really broad consensus across the parties to make really large changes,” he said.

Wiseman serves as co-director of the Center for Effective Lawmaking, a nonpartisan partnership between Vanderbilt and the University of Virginia that studies what makes some members of Congress more productive than others. He said their analyses have consistently found that among the party in the minority at a given time, senators tend to have more success advancing their priorities than members of the House.

Another reason senators are so attached to the filibuster, Glassman said, is that the nation is living through an era of negative polarization, when many Americans are more afraid of the other party achieving its goals than they are interested in their own party succeeding.

“I think there’s a basic outlook sometimes among legislators and citizens right now that they dislike what the other party might do more than they like what their party might do,” he said. “And that is, if that’s your case, if you hate what the other side is going to do more than you like what you’re going to do, that’s a pretty good reason to not get rid of the filibuster.”