Majorities aren’t enough in US politics.
Democrats control both chambers of Congress and the White House, but without the 60 votes needed to break a filibuster in the US Senate, they are unable to pass a bill to create a national voting standard that cuts down on voting restrictions.
Now, Democrats in Texas have robbed the Republicans who control the state government of their ability to pass a bill to impose new voting restrictions by leaving the state — leaving the legislature short of a quorum, or the minimum number of lawmakers needed to hold a vote.
These are the rules governing our democracy. They exist to protect the rights of the minority — but in an increasingly polarized environment, they are allowing one side or the other to grind government to a halt.
Drama worthy of the moment. Democrats from Texas to the White House are marshaling their arguments to put new pressure on Republicans and convince voters it’s all a threat to democracy.
President Joe Biden, speaking at the National Constitution Center in Philadelphia, gave a rousing defense of US government and called out a raft of new laws in key states meant to limit early and absentee voting in the name of voter security. They’re bred from former President Donald Trump’s false, specious and petulant allegation the 2020 election was fraudulent and rigged against him.
The allegation that democracy is being put in danger is a grave one. It’s justified by Trump’s persistence in pushing the lie that he rally won the election and the growing acceptance among Republicans of the falsehood that he might be on to something. Their concerns about election security led directly to these voting restrictions in Texas, Arizona, Georgia and elsewhere.
Where’s the proof? On Monday, a skeptical federal judge in Michigan demanded Trump-allied lawyers provide proof for their repeated allegations that the 2020 vote in Detroit could be compromised. She could discipline the lawyers, who include Sidney Powell and Lin Wood, according to CNN’s Katelyn Polantz. But rather than give up on the lie, it seems clear that Trump and his allies won’t let go.
Last resort. Rather than roll over and let the restrictive bill pass, Texas Democrats have fled the state to shut down the state legislature and block state Republicans’ second effort to pass legislation to restrict early voting and increase penalties for voting irregularities. They’ll need to evade Texas authorities until August 7 to wait out the special session.
Quorum math. Two-thirds of the chamber is required to achieve a quorum in Texas — that’s 67 members of the Texas House and 21 in the Texas state Senate.
When the Texas House gaveled in Tuesday morning, 57 of the 61 House Democrats were not in attendance, according to CNN’s Diane Gallagher.
The Texas state Senate did have a quorum with 22 members present. There were four Democrats on the floor when the Senate convened.
Two additional members would have to leave to deny quorum in the Texas Senate (21 are needed for a quorum).
The Democrats’ scorched-earth maneuver brings all legislative business to a halt, a worthwhile effort, they say, to block the bill, although Texas Gov. Greg Abbott is exploring ways to arrest them upon their return.
Republicans do this too. In Oregon, where Republican legislators have staged walkouts to prevent action on climate change legislation, gun control and vaccine legislation and also Covid restrictions in recent years, there are proposals by Democrats in the supermajority to change quorum rules. But Republicans there might be able to block those changes with another walkout, according to Oregon Public Broadcasting.
This is not a new idea for Texas Democrats. Lawmakers in Austin also walked out earlier this year, delaying the same voting restriction effort back in May.
They tried something similar to temporarily stop Republicans’ plan to redraw congressional lines in their own favor in 2003. In the late 1970s, a group of senators from both parties calling themselves the “Killer Bees” broke quorum and killed a proposal to separate the state’s presidential primary from its regular primary in 1980 and give an advantage to a former Republican governor who was running.
It arguably hands Texas Republicans a taste of the medicine Republicans in Congress are using in their own efforts to block Democrats’ voting bills.
Obstruction is more refined in Washington, where filibusters are presumed, rather than spoken, and managed like in a chess match between Democratic and Republican leaders.
Texas Democrats, meanwhile, flew in on chartered planes to upset the status quo and have set up shop, perhaps until August, as they wait out a special session and run out the clock on the voting bill. Abbott has vowed to call more special sessions until they relent.
Stalling tactic. The Texas Democrats hope their obstruction will help convince moderate Democrats to end the DC version of by-the-rules obstruction and change the rules to end a Republican-led filibuster of the national voting rights bill.
In DC, unlike Texas, a quorum is a bare majority in the US Senate, so nobody needs to flee the nation’s capital, as minorities have learned. The real magic number in the US Senate is two-fifths of the chamber — usually 40 senators — for a minority to block most legislation by refusing to limit debate, or invoke cloture. That’s exactly the rule national and Texas Democrats want to change. It’s been foiling their attempts to make American democracy a bit more democratic for decades.
Quorum-busting of yore. There are some dramatic tales of quorum-busting in the US Senate. Read this history of Oregon Sen. Bob Packwood being carried feet-first into the chamber in 1988.
But the Senate’s filibuster rule trumps a quorum. The campaign finance bill Packwood opposed failed because it couldn’t overcome a 60-vote threshold. Supporters forced eight cloture votes on the bill, culminating in Packwood’s staged collapse and Capitol Police carrying him onto the Senate floor.
The Supreme Court trumps them all. Justices threw out elements of the campaign finance bill that did ultimately pass 14 years later, in 2002, and was supposed to clean up American democracy. They’ve also whittled away at the Voting Rights Act passed in 1965, in a series of decisions. Democrats want to restore more national control over local elections.
Variations on history repeating itself. The Supreme Court today has let stand restrictive voting bills passed in Arizona.
They did it along conservative-liberal ideological lines, suggesting they’d be friendly to the Texas bill if Republicans there can round up enough Democrats to pass it. They also invalidated a California campaign finance rule that sought more disclosure in donations for charitable organizations, which could have major repercussions in campaign finance reform.
Ultimately, the only recourse for a new national voting standard is to get Republicans to agree to one (and give up some of their power) or to pass one without them.
One new idea offered by South Carolina Rep. James Clyburn, a top Biden ally and the third-ranking Democrat in the House, is for Senate Democrats to carve out a filibuster exception for constitutional issues.
Clyburn’s idea is the slipperiest of slopes. Look how Democrats and Republicans have used a filibuster carve-out meant to keep the federal budget balanced in order to explode federal budget deficits with tax cuts (Republicans) and spending (Democrats).
Democrats may well try to end-run around the filibuster again to pass a massive infrastructure bill now that bipartisan talks are on the ropes.
They’ll need 100% of Democrats on board to do much of anything as a result. That includes Biden, who despite his forceful condemnation of Trump’s Big Lie Tuesday, failed to himself condemn the filibuster or call out the Democrats who oppose changing it by name, including Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona.
As a longtime senator himself, he knows that passing legislation at the federal level will require some change in the calculus.