Detailed update on the voter bills and the filibuster

[Celerity]

No link, this is from an email newsletter (Punchbowl)

Today is going to be all about tactics and strategy for House and Senate Democratic leaders, and the White House. Senate Democrats are preparing a showdown over voting rights and the filibuster this weekend and possibly into Martin Luther King Jr. Day Monday.

Right now, Senate Majority Leader Chuck Schumer doesn’t have the votes to win on voting rights or the filibuster, despite a fierce appeal from President Joe Biden on Tuesday. So the larger strategy being employed here – forcing votes that are likely to fail – is already in question. But we’ll get back to this and how it figures into the larger Democratic problems of the moment.

Now onto tactics. Schumer can call up the Freedom to Vote Act (supported by all 50 Senate Democrats) or the Senate version of the John Lewis Voting Rights Advancement Act (supported by all Senate Democrats besides Sen. Joe Manchin of West Virginia) or both. Both bills have been blocked by unyielding GOP opposition. Schumer can call for their reconsideration at any time.

However, there’s another, more complex plan under consideration to provide an alternative way for Senate consideration.

The House this week is supposed to take up an amendment to a bill dealing with NASA’s leasing “underutilized” property to private entities. The House and Senate have ping-ponged this bill back and forth already.

Under this new plan – which is still just under consideration, it hasn’t been agreed to yet – Speaker Nancy Pelosi and House Democrats would use this NASA bill as a shell, strip out the existing language and insert the Freedom to Vote Act instead. The House would then pass this revised bill and send it onto the Senate. Since it’s a “message” between the House and Senate, there’s no filibuster on the motion to proceed to the legislation. That means the Senate could take it up quickly.

Senate Republicans will still filibuster the underlying bill and Schumer would have to file cloture in order to cut off debate and force a vote. That hasn’t changed. So, in sum, a GOP filibuster still has to be overcome, but there’s only one cloture vote, compared to two with a regular bill.

Yet the advantage of this proposed plan is that Schumer would be filing cloture on a voting rights bill that’s already been adopted by the House, instead of the Senate-only version of the legislation. Thus when Republicans filibuster the measure, they’d be blocking a bill that just needs Senate approval in order to head to the president’s desk. It’s a distinction with a difference.

Schumer is expected to unveil more on his next steps today, so let’s return to the strategy discussion. As we said, Schumer doesn’t have the votes to pass the Freedom to Vote Act – any version of it – due to a GOP opposition. And he can’t pass the John Lewis Voting Rights Advancement Act for the same reason. All 50 Senate Republicans will vote no.

More importantly, Schumer doesn’t have 50 Democratic votes to trigger the “nuclear option” to change Senate rules unilaterally and get rid of the filibuster. Manchin and Sen. Kyrsten Sinema (D-Ariz.) remain opposed to any such move.

Manchin will back some technical changes to the filibuster, although he won’t back getting rid of the 60-vote threshold to cut off debate on a bill.

“I'm not for breaking the filibuster, but I am for making the place work better by changing the rules,” Manchin told reporters on Tuesday, one of several statements he made laying out his continued opposition.

For her part, Sinema met Tuesday night in the LBJ Room with a group of Senate Democrats from the Rules Committee. The group included Sens. Angus King (I-Maine), Tim Kaine (D-Va.), Jon Tester (D-Mont.), Elizabeth Warren (D-Mass.), Brian Schatz (D-Hawaii), Ben Cardin (D-Md.), Maggie Hassan (D-N.H.), and Jeanne Shaheen (D-N.H.) to discuss potential rules changes.

As far as we can tell, however, Sinema’s position didn’t change following that session either. More meetings with Manchin and Sinema are likely today, Democratic insiders told us.

But if the voting rights-filibuster push fails, where does it leave Biden, Schumer, Pelosi and Democrats?

Despite control of the House and Senate – by razor-thin margins, admittedly – and having Biden in the Oval Office, the key elements of the progressive agenda are stalled, which is causing growing unrest on the left.

→ The $1.7 trillion Build Back Better Act, the centerpiece of Biden’s agenda, could go down in flames because of the post-pandemic surge in inflation. (Note: The December inflation report from the Bureau of Labor Statistics will be released at 8:30 a.m., which could make the political environment even worse for Democrats.)

→ During the Omicron-fueled surge in Covid cases, huge lapses in testing capacity remain. Democrats are already talking about passing more relief for small businesses and restaurants, despite passage of the $1.9 trillion American Rescue Plan less than a year ago.

→ Democrats can’t get anything done on gun control since that stalled out last year, despite a huge spike in gun violence.

→ Guaranteed access to abortion – already restricted in Texas, the nation’s second most populous state – could be be struck down by the Supreme Court.

→ Democrats failed to raise the minimum wage.

→ Democrats have gotten very little done on climate change.

→ Democrats haven’t been nearly as aggressive as activists want on student loan debt thanks to Biden’s opposition.

→ Images of empty store shelves are popping up all over social media as supply chain problems – exacerbated by bad weather and the Omicron surge – continue to dog stores.

This isn’t how a lot of Democrats pictured their full control of Washington.

[Fiendish Thingy]

1. I don't care how Schumer gets there, he must force a vote, NOW.

Get Manchin and Sinema on record as killing BBB, and blocking voting rights.

The narrative will instantly shift, and the media attention the obstructionists have been getting will evaporate.

Negotiations with the two obstructionists have been proven to be a complete waste of time.

If Manchin and Sinema vote No on either of these issues, their senate careers will end with the current term.

Make. Them. Vote.

Furthermore, if Dems lose control of the Senate in November, Manchin and Sinema must be expelled from the Democratic caucus. At that point, There would be absolutely no reason to keep them in the caucus or allow them to run for re-election as Democrats.

[FBaggins]

2. How do you propose doing that?

Before a bill can be considered on the floor, the Senate has to agree to bring it up... either by unanimous consent or by adopting a motion to proceed to the bill.

48 votes can't do that... no matter who the majority leader is.

[Fiendish Thingy]

3. Schumer could force a vote on a motion to proceed, or use the nuclear option

And force a vote on the rule change, which would put Manchin on the record.

[uponit7771]

4. What's the nuclear option on the rule change? thx in advance

[Fiendish Thingy]

5. It's a procedural maneuver to force a simple majority vote on changing the filibuster rule

https://en.wikipedia.org/wiki/Nuclear_option

[FBaggins]

6. And when the motion to proceed fails?

Then there is no vote on the bill, nor even a filibuster that allows Schumer to raise a point of order to try to trigger a "nuclear" option.

Once again - 48 votes in the US Senate isn't enough to "force" much of anything.

[Fiendish Thingy]

7. The same way Harry Reid did it

Mr. REID. I raise a point of order that the vote on cloture under Rule XXII for all nominations other than for the Supreme Court of the United States is by majority vote.
The PRESIDENT pro tempore. Under the rules, the point of order is not sustained.
Mr. REID. I appeal the ruling of the Chair and ask for the yeas and nays.
(48–52 vote on upholding ruling of the chair)
The PRESIDENT pro tempore. The decision of the Chair is not sustained.
The PRESIDENT pro tempore. *** Under the precedent set by the Senate today, November 21, 2013, the threshold for cloture on nominations, not including those to the Supreme Court of the United States, is now a majority. That is the ruling of the Chair.[8]

Schumer could raise a point of order regarding the cloture vote on the motion to proceed (which is a filibuster before the filibuster on the bill) and force a vote on the ruling of the chair, which would put Manchin and Sinema and anyone else on the record as opposing a modification of the filibuster rule in order to pass voting rights.

[FBaggins]

8. Nope.

Reid was on the side with 52 votes. Schumer doesn't have that option.

Just as importantly... you can't just raise a point of order out of thin air some afternoon. Reid's point of order was made during the cloture vote. There won't be a cloture vote to close debate on a voting rights bill until the debate is opened on the voting rights bill. Which can't happen unless Manchin allows it.

[Fiendish Thingy]

9. Are you saying Schumer cannot raise a point of order on a motion to proceed?

Do you have a source for that assertion?

Why would the 60 vote threshold on a motion to proceed be immune from a point of order, when the 60 vote threshold on a cloture vote to end debate is not?

Of course I know Reid was on the winning side of the 48-52 vote to appeal the ruling of the chair- that’s my whole point- Schumer could force a vote on the ruling of the chair, knowing he could very well lose that vote, because the vote would put every senator on the record as either supporting or obstructing moving forward with voting rights legislation.

[FBaggins]

10. On a motion to proceed?

You can only raise a point of order on something that is currently pending before the body.

If he wants to raise a point of order on the motion to proceed that says that motions to proceed now only require 40 votes... he can do that (Of course it would fail). But he can't raise a point of order on interpretations of the filibuster rule unless the pending matter before the Senate is a cloture vote.

Do you have a source for that assertion?

Have you had a source for yours over the months that you've been corrected on this?

That's what a point of order is. It's a claim that the process is the pending matter is not being followed

Here's the House version, but it's essentially Roberts' Rules

https://archives-democrats-rules.house.gov/archives/house_po.htm
A point of order is an objection that the pending proposal or proceeding (bill, amendment, motion, etc.) is in violation of a rule of the House.

Why would the 60 vote threshold on a motion to proceed be immune from a point of order

It isn't... but you keep missing the critical fault in your logic. This isn't overcoming a filibuster to block a motion to proceed if Manchin doesn't want to give Schumer a vote. The motion isn't filibustered/blocked... it's straight-up rejected. There's a huge difference between failing to get 60 votes... and failing to get even 50.

Schumer could force a vote on the ruling of the chair,

The chair doesn't get to make rulings out of thin air. They are necessarily responses to points of order - which are themselves limited to whatever it currently pending. He can't wake up one morning and say "I'm going to force a vote on a carve-out for the filibuster". There has to be a cloture vote currently before the Senate. And, for a voting rights carve-out (rather than getting rid of the filibuster entirely) it would have to be a cloture vote on voting rights.

[Fiendish Thingy]

11. So a minority can block a motion to proceed

But it’s not considered a filibuster, but is covered under a separate rule requiring 60 votes to proceed to begin debate on a bill?

Are you saying the 60 vote rule on a motion to proceed is not covered under Rule XXII, which covers the cloture/filibuster rule?

If so, that is the most succinct argument for abolishing the senate entirely.

[FBaggins]

12. Same error... same correction

52 Senators isn't a minority.

52 Senators can block just about anything without using a filibuster. They just vote "no" and win the vote.

[Fiendish Thingy]

13. You are misunderstanding me, or I you, or both

I’m not sure where you’re getting “52 votes” from.

Is it not true that a motion to proceed requires 60 votes to pass?

And if Schumer forced a point of order on the rule requiring 60 votes, it would force an on-the-record vote regarding whether to overrule that 60 vote threshold, correct?

Yes, I know such a vote could likely result in a 48-52 vote to uphold the 60 vote threshold, that’s not my point, I’m not asserting Schumer would certainly win such a vote.

My point is, in forcing such a vote, it would put Manchin on the record and presumably settle the issue, at least for the time being, rather than continuing his hallway rhetoric with the press. By putting Manchin on record with an actual obstructing vote, rather than continuing his fickle, insincere attention seeking, he cannot weasel out of accountability for his obstruction.

[FBaggins]

14. That much is clear

I’m not sure where you’re getting “52 votes” from.

50 Republicans plus Manchin and Sinema.

Is it not true that a motion to proceed requires 60 votes to pass?

No. It takes a simple majority. It takes 60 votes to overcome a filibuster. But if you don't even have 51 votes, they don't need to filibuster.

The rest of the imagined scenario is thus moot. Schumer can't force a point of order on something that isn't pending.

As for "putting Manchin on the record". He's already very clearly on the record in opposing killing the filibuster or using a "nuclear" process to change it.

[Fiendish Thingy]

15. My sources say it takes 60 votes to begin debate

Voting rights has been stalled at a motion to proceed to debate for months because the GOP has filibustered the motion to proceed to begin debate.

https://www.npr.org/2021/06/22/1008737806/democrats-sweeping-voting-rights-legislation-is-headed-for-failure-in-the-senate

Also reported at NYT, CNN and numerous other sources, all used the term “filibuster” to describe to procedural move by Republicans to block the motion to begin debate on voting rights bills.

We clearly disagree on the significance of having Manchin on record, via an official Senate vote, as opposing modifying rules to pass voting rights, versus his empty rhetoric to the press, from which there is little if any accountability.

Your insistence that a point of order must be linked to a pending matter is not entirely true.

https://sgp.fas.org/crs/misc/R40948.pdf

Schumer forcing a vote on a rule change would, IMO, have a significant impact on the current narrative. Whether it would affect the eventual outcome is another thing.

[FBaggins]

16. Your sources are incorrect

It takes a majority to proceed to debate

But that question is itself "debatable" - which means that it can be filibustered if a minority wants to block it. This ceases to be a question if a majority wants to block it.

Your insistence that a point of order must be linked to a pending matter is not entirely true.

And then you link to a document proving your statement wrong? Nothing in that CRS report says that a point of order can be raised for something that is not currently pending before the chamber. It's about how certain points of order that raise constitutional questions are not always ruled on first by the presiding officer but instead go directly to the members. This, by the way, destroys some DUers earlier fantasies about VP Harris' potential role in killing the filibuster entirely.

Note, however, today's news re "message between the houses" that potentially answers my question in #2 and simultaneously addresses this current confusion. Obviously, Schumer did not expect to be able to use the "begin debate" question to hold a "nuke" vote (because 48 votes can't do that) but some motions are privileged (like a conference report) and debate can't be blocked.

So - while Republicans wouldn't need to filibuster a vote that they expected to win... they'll have to filibuster the vote to end debate - because Manchin supports the bill. Thus giving Schumer an opportunity to raise a point of order on the back end.

No additional chance that he'll win the vote (absent a miracle "come to Jesus" moment) - but he may indeed get him to vote on the record.

[Fiendish Thingy]

17. Bottom line- Schumer has stated he will schedule/force a vote before Jan. 17

Why would he say this if the existing filibuster on the motion to begin debate would prohibit him from using the nuclear option?

[FBaggins]

18. You have it backwards

Why would he need to bypass the vote you think gives him the options of nuking?

Obviously it’s because it doesn’t… because they don’t need to filibuster a motion to open debate if they have a majority opposing the opening of debate.

[Fiendish Thingy]

19. You claim CNN, NPR and NYT are all wrong in reporting GOP has filibustered motion to debate

All those sources report that 60, not 51 votes are needed to begin debate on voting rights.

If it was a simple majority, a vote would have been taken and debate would have begun on the bills over the summer as planned.

As reported by these sources, a filibuster is blocking beginning debate and thus moving forward on the voting rights bills.

Edit: with the reports of “message between houses” strategy, this whole discussion is indeed moot, with the exception that Schumer may still move to use the nuclear option to end debate on the voting rights bills, as described here:

https://www.democraticunderground.com/100216240462