The FVA, the Constitution, the “Ryan Syndrome,” and the Filibuster: a Postscript

On November 3, Republican senators utilized the filibuster to block consideration of another measure proposed by Democrats to safeguard the voting rights of all Americans, the John Lewis Voting Rights Advancement Act.  I need to note that one of the moderate Republican Senators whom I called out in Part II of this post for failing to fairly consider federal voting rights legislation, U.S. AK Sen. Lisa Murkowski, voted with Democrats to allow debate on the bill.

By coincidence, shortly before Part II was posted, U.S. UT Sen. Mitt Romney – another of the Republican Senators I specifically took to task for obstructing consideration of voting rights measures intended to protect all Americans’ voting rights — published an opinion piece in the Washington Post defending the filibuster, in which he stated in part, “The need to marshal 60 votes to end a filibuster requires compromise and middle ground. It not only empowers the minority but also has helped to keep us centered ….  Have Democrats thought through what it would mean for them for [former President Donald] Trump to [be re-elected and] be entirely unrestrained, with the Democratic minority having no power whatsoever?” 

I have genuinely high regard for Mr. Romney; over the last several years he has stood, sometimes alone among in his party, against Mr. Trump’s untoward conduct of the presidency.  If in his place, I hope that I would have had the courage to act as he did, but honorable sentiments such as I express are easy until one is put to the test.  That said, the Senate filibuster fosters the compromise of which Mr. Romney speaks only if both sides are acting in good faith.  It is a disheartening irony that it is the tribal failure of Mr. Romney and his sensible Republican Senate colleagues (now, save Ms. Murkowski) to break with the patently obstructionist and partisan members of their caucus over voting rights that has caused somebody like me, who values traditional institutional safeguards like the filibuster, to call for its abandonment.  As for Mr. Romney’s allusion to the danger the country will face if Mr. Trump is re-elected – a fear (indeed, a fright) that I absolutely share — I would suggest to him that the voting laws that Republican legislatures are implementing across the nation – statutes that the safeguards set forth in the Freedom to Vote Act (the “FVA”) are intended to circumvent – will, if unchecked, increase the potential that Mr. Trump will return to the White House.  If Mr. Trump returns, he will almost certainly be accompanied by Republican majorities in both Houses of Congress; and if such is the case, it takes no prescience to suggest that the first thing an obsequious Republican Senate majority will do is end the filibuster to do Mr. Trump’s bidding.

Senate Democrats must discard the filibuster, at least insofar as it blocks their ability to pass voting rights protections such as those set forth in the FVA.  I would readily give up the entire human infrastructure package that Democrats continue to haggle over if that was what was required to get Democratic Sens. Joe Manchin and Kyrsten Sinema to vote to modify the Senate’s filibuster rule to enable the passage of voting rights legislation.  There will always be benefit programs to consider.  As I suggested in Part II of this post, the race this year by state Republican-led legislatures to enact new voting laws, notwithstanding the lack of any credible evidence that voter fraud materially affected the outcome of the 2020 Presidential and Congressional races, cannot help but cause one to conclude that their efforts are no more than an entirely partisan attempt to tilt the electoral landscape in their favor.  I would submit that their obvious lack of good faith, if left unchecked, is an existential threat to our republic.

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