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Sen. Joe Manchin gestures to reporters while boarding an elevator on Capitol Hill on December 2, 2021.
Tom Williams/CQ-Roll Call, Inc via Getty Images
Sen. Kyrsten Sinema takes a phone call outside a Senate Democrats luncheon at the Capitol on December 16, 2021.

This month’s vote is forcing a conversation about potential options and putting pressure on Democrats to publicly reveal where they stand on the issue. Schumer’s willingness to hold a vote on the subject, alone, sends a strong message about how much many Democrats, including himself, have shifted when it comes to openly pushing for filibuster reforms.

“We must adapt. The Senate must evolve, like it has many times before,” Schumer wrote in his January letter.

Why the filibuster vote matters

Schumer’s decision to hold a filibuster vote is a reflection of increasing Democratic support for rules changes, amid frustration that Republicans have recently been able to obstruct everything from voting rights to the establishment of a committee designed to investigate the January 6 insurrection.

At this point, Republicans have now blocked Democrats’ voting rights legislation four times in the span of eight months, one of many reminders that the voting protections Democrats want don’t have the bipartisan support needed to clear a filibuster. This repeated obstruction is a major reason Democrats, including Schumer, are now considering rules reforms more aggressively.

Just last December, several moderates including Sens. John Hickenlooper (D-CO) and Maggie Hassan (D-NH), came out in support of changes to the filibuster in order to pass voting rights legislation.

“Sen. Bob Casey [D-PA] recently tweeted that he used to think the filibuster was this thing that protected debate and he has evolved on that,” Easton said. “That’s the story of a lot of senators in the Democratic caucus.”

I used to believe that the filibuster forced sides to engage more—but recent events have forced us to reevaluate. Modern times require modern reform. We can’t let something as urgent and consequential as voting rights be lost to an arcane procedural tool.

— Bob Casey Jr. (@Bob_Casey) January 4, 2022

This vote puts pressure on the Democratic caucus to come together on a rules change that all 50 lawmakers can get behind. At this point, lawmakers still haven’t arrived at a resolution, but discussions about which path to take, which are being led by Sens. Tim Kaine (D-VA), Angus King (I-ME), and Jon Tester (D-MT), have ramped up.

Because both Manchin and Sinema have been resistant toward a full elimination of the filibuster — or even a carveout for voting rights, which President Joe Biden has endorsed — other ideas have been suggested as well. Democrats have floated bringing back a rule requiring filibustering lawmakers to actively speak on the Senate floor, and lowering the vote threshold needed to proceed to debate on a bill from 60 votes to a simple majority.

Manchin has indicated that more limited reforms might be the most he’s willing to back at the moment. “I think the filibuster needs to stay in place, any way, shape or form that we can do it,” Manchin told reporters earlier this week. Sinema, too, has indicated that she’s reluctant to consider more sweeping options. Passage of more modest changes would still mark progress for Democrats, though they wouldn’t guarantee that bills like voting rights would actually advance.

Without Manchin and Sinema’s support, any vote on a rules change will fail. In the past, although both have been vocal about their stances, they’ve never had to take a formal vote on the issue, however. A vote will force them to make their positions clear, and could reveal if there are any other, less vocal, senators who agree with them.

“It seems to be two people that are preventing it,” Hatcher-Mays said. “On the Senate floor, they need to defend their position to the American people.”

Nicholas Kamm/AFP via Getty Images
Supporters of the Freedom Riders for Voting Rights demonstrate on the National Mall near the Capitol in Washington, DC, on June 26, 2021.

The voting rights bill would push back on restrictive, post-Trump state laws

Any vote on the filibuster would come after a vote on the Freedom to Vote Act, which Democrats would like to pass ahead of the fast approaching midterms to combat state laws attempting to suppress the right to vote.

The Freedom to Vote Act aims to address a couple of key priorities. Among other provisions, it would:

“The single most important thing is to have uniform national standards to protect the right to vote and that includes the right to vote early, the right to vote by mail, the right to not stand in a line for nine hours, and that’s exactly what the bill does,” said Daniel Weiner, co-director of the Elections and Government Program at the Brennan Center for Justice.

Many of the provisions directly push back against state laws that have been passed in states like Arizona, Texas, Georgia and Florida, according to a report compiled by Danielle Root, Michael Sozan, and Alex Tausanovitch of the Center for American Progress. In Georgia, for example, the state legislature has passed a law that prohibits election officials from distributing mail ballots to registered voters. The Freedom to Vote Act would guarantee that officials would have the ability to do so, improving people’s access to voting during a pandemic.

The bill would tackle states’ efforts to remove or intimidate election officials. Since last year, when Trump questioned the outcome of the 2020 election, multiple states have attempted to undermine the roles of election administrators and give more power over the process to partisan state legislatures. In Georgia, multiple Black Democrats have been removed from county election boards, for example. The bill attempts to curb this behavior by empowering election officials to contest these removals in court.

Finally, the bill would push back on partisan gerrymandering and boost campaign finance protections through a variety of measures, including new mandatory criteria for redistricting and requiring greater transparency from organizations donating more than $10,000 in an election cycle. As states complete redistricting this year, many are reinforcing existing gerrymandering, or drawing new districts that are more safely partisan. These efforts often undermine the presence and power of communities of color, and attempt to undercut the population growth that has taken place in certain districts in recent years.

The legislation includes a long list of protections like this, as Vox’s Fabiola Cineas reported last fall.

Following Schumer’s pledge to hold a vote on filibuster changes, some Republicans have indicated support for updates to the Electoral Count Act instead. Republicans claim that this would fix some of the problems around elections by making it impossible for a sitting president to pressure a vice president to overrule the election results, something Trump pushed former Vice President Mike Pence to do in 2021.

But many Democrats see this an effort as an attempt to convince moderate Democrats not to back rules changes. Sen. Raphael Warnock (D-GA), for instance, has called it “a distraction.”

If Democrats want to enact their voting reforms, they’re running out of time. Democratic leaders have stressed that the legislation needs to pass soon in order to be implemented this fall. That means quickly changing Manchin and Sinema’s minds about the filibuster. Schumer’s given his party roughly two weeks to do so — and whether he and other Democrats are successful will have a major impact on what Democrats are able to accomplish in their second year in power.

  1. United States (1989), “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”

    Although the plaintiffs in both cases argued that neither statute’s text authorizes the particular vaccination rules implemented by OSHA and the secretary, the argument in NFIB focused far less on the proper way to parse the OSH Act, and much more on whether Congress is even permitted to give such sweeping authority to a federal agency.

    And the Court’s conservative majority seemed to agree it isn’t permitted to. Several justices, for example, brought up the “Major Questions Doctrine,” a judicially created doctrine that appears in no statute and that is mentioned nowhere in the Constitution, but which the Court sometimes uses to justify striking down particularly ambitious regulations promulgated by federal agencies.

    Under it, the Court has told Congress to “speak clearly if it wishes to assign to an agency decisions of vast ‘economic and political significance,’” in a principle laid out in Utility Air Regulatory Group v. EPA (2014). As Justice Elena Kagan noted, this doctrine has historically been used to help the Court understand statutes that it deems to be ambiguous or vague.

    But it now appears likely that the Court will expand this Major Questions Doctrine considerably, holding that it limits Congress’s power to delegate broad swaths of authority to a federal agency — even if Congress does so unambiguously.

    Chief Justice John Roberts, for example, implied that a federal agency’s power to respond to Covid-19 might be quite limited indeed unless Congress specifically authorized that agency to deal with a pandemic. Though Roberts seemed to concede that the OSH Act’s text gives a great deal of authority to the agency, he noted that that law is more than 50 years old, before quipping that when Congress enacted the OSH Act, “I don’t think it had Covid in mind.”

    Justice Brett Kavanaugh made a similar argument, pointing to a speech President George W. Bush gave in 2005, which predicted the emergence of a deadly global pandemic. And yet, Kavanaugh noted, Congress did not pass a new law addressing Bush’s concerns. The implication of Kavanaugh’s remarks was that pre-2005 laws, such as the OSH Act, are insufficient to justify OSHA’s actions.

    Justice Amy Coney Barrett, meanwhile, suggested that she might support a vaccination rule that targets workplaces where there is an especially high risk that workers will be infected by Covid, such as a meatpacking plant or a dental office, but she also suggested that OSHA’s rule is too broad. The “problem here is its scope,” she said of OSHA’s rule. And she suggested that OSHA would have to perform a “more targeted industry by industry analysis” if it wishes to encourage vaccination in individual workplaces.

    Although Roberts, Kavanaugh, and Barrett are all extraordinarily conservative justices, they represent the middle of the current Court, with its six Republican appointees. So if none of these three justices are inclined to uphold the OSHA rule, it’s almost impossible to imagine that the rule will survive.

    Several justices, it’s worth noting, also suggested that OSHA’s vaccination rule is suspect because it is unprecedented — pointing out that OSHA has not historically imposed vaccination requirements.

    But there are two very good responses to this concern, both of which were made by the Justice Department lawyers tasked with defending the two vaccination rules. The first is that the United States typically promotes vaccination by requiring vaccines for schoolchildren and for immigrants. That means that by the time an adult enters the US workforce, they have typically already been vaccinated against an array of diseases.

    But Covid-19 emerged in 2019, and the vaccines only became widely available in 2021. So most workers did not enter the workforce with the same protection against Covid-19 that they have against, say, diphtheria.

    The second problem with the argument that OSHA’s rule is invalid because it is unprecedented is that it also is a response to an unprecedented crisis. According to the Biden administration, Covid-19 is the deadliest disease in American history. It is certainly the worst public health crisis since the great influenza pandemic of 1918.

    But, regardless of whether the OSHA rule may be wise, the Court appears likely to strike it down anyway.

    The vaccination mandate for health workers could survive

    That said, it appears after the argument in the Missouri case that the rule targeting health providers could survive. Barrett’s question about vaccine mandates which target specific industries, for example, suggests that her vote is in play in the Missouri case.

    Similarly, Chief Justice Roberts noted that the rule for health providers is different from the OSHA rule in that it only applies to hospitals and other institutions that accept federal funding. It’s one thing, he seemed to suggest, for the government to command broad swaths of employers to do something, and another thing entirely for the government to effectively pay those employers to encourage vaccination.

    Kavanaugh also had some difficult questions for Jesus Osete, the lawyer for the state of Missouri who argued against the health provider’s rule. Among other things, Kavanaugh noted that major health employers and health-related professional organizations generally support vaccination requirements. He also asked why a vaccination requirement is different in any legally significant way from other requirements Medicare and Medicaid impose on health providers, such as rules requiring them to wear gloves and wash their hands, in order to arrest the spread of communicable disease.

    So the Court could potentially hand down split decisions in NFIB and Missouri, striking down the OSHA rule and upholding the health providers’ rule. A majority of the justices appeared more comfortable with the limited power the Biden administration exercised in the Missouri case than they were with the broader power it exercised in NFIB.

    That may be a comfort to anyone who doesn’t want to catch Covid from their doctor, but it should not comfort anyone who believes that unelected judges should not have an unrestricted veto power over federal policy. The bottom line remains that Congress wrote expansive language when it passed the OSH Act, and OSHA relied on its expertise when it handed down a broad vaccination-or-test rule.

    But neither the will of Congress nor the considered judgment of an expert agency appear to matter when five justices oppose a rule.

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