Mellman: Voting rights or the filibuster? 

Protesters march in favor of increased protections for voting rights with a blue "Deliver Voting Rights" banner during Martin Luther King Jr. Day event.
Paul Morigi/AP Images for Deliver for Voting Rights

It’s neither a bumper sticker nor a rallying cry, but it’s a fact: One cannot claim loyalty to the text, history and principles of our Constitution while valuing preservation of the filibuster above protecting voting rights. 

It’s true that to forge a united states of America out of 13 sovereign states, our Founders at best enabled, and at worst entrenched the enslavement of Black Americans. In the early years of the republic, voting rights were also regularly denied to women, men without property, Native Americans, Catholics, Jews, Quakers and others. 

But by the mid-to late 1800s, most, though not all, of these restrictions were repealed. More than 100 years ago, women finally joined those whose right to vote was constitutionally protected. 

In 1964, the Supreme Court deemed voting rights fundamental: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government … the right of suffrage is a fundamental matter in a free and democratic society.” 

The Constitution itself empowers Congress to promulgate the kind of voting regulations contained in the legislation currently under consideration. 

Article 1, Section 4 states, “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof, but the Congress may at any time by Law make or alter such Regulations.” 

Writing for a Supreme Court majority, no less a conservative than Justice Antonin Scalia emphasized Congress’ ultimate authority, saying, “The power of Congress over the ‘Times, Places and Manner’ of congressional elections is paramount, and may be exercised at any time, and to any extent which it deems expedient; Times, Places, and Manner … are comprehensive words, which embrace authority to provide a complete code for congressional elections.” 

Does the constitutional pedigree of the filibuster match that of voting rights?  

Certainly not. 

The filibuster is an accident of multiple Senate rules changes. Even the idea of unlimited debate lacks any foundation in the text or history of constitution. 

The Founders were also deeply resistant to requiring super-majorities. Alexander Hamilton fulminated against the idea in Federalist No. 22, labeling situations where minorities stopped a majority from acting as a “weakness” bordering on “anarchy.”  

Nonetheless, our founding document does delineate a narrow set of circumstances under which supermajority votes are required — impeachment, treaties and overriding presidential vetoes. 

That list does not include voting rights laws or Senate rule changes.   

I confess, I previously argued for a 60-vote threshold for confirming Supreme Court justices. A broad base of support for a lifetime appointment to a Court with the far-reaching powers seemed reasonable. Historically, the overwhelming majority of justices had been confirmed with more than the equivalent of 60 votes. 

Today, that may be a recipe for an empty bench. The last justice confirmed with 60+ votes was Elena Kagan, more than a decade ago. Can you imagine she would enjoy that level of support today? The last three additions to the court averaged just 52 votes in the Senate. Add to that Merrick Garland, who never got a hearing. 

The argument that the filibuster heals partisan divisions is undercut by this and other evidence.  

Was the Senate united by Republicans’ refusal to give Garland a hearing? Or was it further rent apart? Is this moment unifying? 

Republicans apparently believe they can only cling to power by creating obstacles limiting the freedom to vote, or by allowing legislatures to subvert the expressed will of the people.  

In our hyperpolarized polity, where both sides see the other as fundamentally evil, they justify this assault on constitutional rights as necessary to prevent Democrats from destroying the country.

As Republican Leader Mitch McConnell (Ky.) put it, “One-hundred percent of our focus is on stopping this new administration. We’re confronted with severe challenges [from Democrats who’re trying] … to turn America into a socialist country, and that’s 100 percent of my focus.” 

Republicans are focused here on power, not principle. The principle is clear: voting rights are primary, the filibuster is, at best, tertiary. 

Mellman is president of The Mellman Group and has helped elect 30 U.S. senators, 12 governors and dozens of House members. Mellman served as pollster to Senate Democratic leaders for over 20 years, as president of the American Association of Political Consultants, and is president of Democratic Majority for Israel.   

Tags Constitution of the United States Elena Kagan filibuster legislation Merrick Garland Mitch McConnell mlk day march Supermajority voting rights

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