Democrats Can Save Abortion and Voting Rights by Bringing Back the Mr. Smith Filibuster

A reckoning is coming: the Senate shouldn't fiddle while women lose the right to choose and democracy burns

Abortion rights advocates holding cardboard cutouts of the Supreme Court Justices, demonstrate in front of the U.S. Supreme Court, Dec. 1, 2021

This article is adapted from one originally posted in The Daily Beast

Amid the oral arguments in the landmark Mississippi abortion case, Justice Brett Kavanaugh tipped his hand: "Why should this Court be the arbiter rather than Congress, the state legislatures, state supreme courts, the people?" 

To the surprise of many Court watchers, Kavanaugh and four of his conservative colleagues seemed to reject the compromise hinted at by Chief Justice John Roberts and to be on a path to overturning Roe vs. Wade when the Court announces it's decision next spring. That's enough votes for a political and social earthquake. 

While absorbing that, I also focused on one word in Kavanaugh's question: Congress. For more than four decades, courts and red state legislatures have chipped away at abortion rights. But Democrats—backed by Roe and full reproductive rights in most blue states—have not bothered to push hard for federal legislation. Now that has changed.  In anticipation of the demise of Roe next spring, the battle will move to Congress, which has the authority to supersede anything passed by state legislatures—either pro-choice (e.g. New Jersey and New York) or anti-abortion (e.g. Mississippi and Texas.)

Democrats have already introduced bills in both chambers and—especially with the probable end of Roe—they will likely soon garner majority support. But of course that's not enough.  With abortion rights and voting rights suddenly at risk, Senate Democrats face a critical question: Will they finally do something about the filibuster?

For months, much of the press has wrongly covered the issue as a binary choice: end the filibuster or keep it. Elimination has never been a realistic option. A handful of Democratic senators have made it clear they won’t get rid of it altogether, for fear of what would happen when the shoe is on the other—Republican—foot.

But keeping the filibuster intact is no longer tenable, either. As Joe Manchin learned last month when no Republicans backed the voting rights bill he co-authored, federal action to override new state-level voter suppression is impossible under current Senate rules.

Democrats are now in agreement that, as Majority Whip Dick Durbin put it, a “reckoning” is coming on the filibuster. They don’t want the Senate to fiddle while democracy burns.

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Democrats are now in agreement that …. a ‘reckoning’ is coming on the filibuster. They don’t want the Senate to fiddle while democracy burns.

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So that leaves the option of reforming the filibuster, which President Biden endorsed as an idea in his CNN Town Hall last month with Anderson Cooper. But how?

The most common reform idea is the so-called “carve-out,” under which Democrats would change the rules so that the filibuster does not apply to voting rights bills.

The Senate has already established three carve-outs—on the tax and spending bills that are part of the budget reconciliation process (1980); executive branch and judicial nominations (2013); and Supreme Court nominations (2017).

The votes don’t seem to be there for a fourth, with Senators Krysten Sinema and Joe Manchin skeptical of a carve-out on voting that would let Republicans, when they regain power, easily repeal what the Democrats pass and enact damaging national voter suppression bills.

But Manchin has said “failure is not an option” on the Freedom to Vote Act he sponsored, and he and Sinema have both strongly hinted they are open to the “talking filibuster”—also known as “the Jimmy Stewart filibuster” after Senator Jefferson Smith holding the floor all night in the 1939 classic, Mr. Smith Goes to Washington. 

Those old-fashioned all-night filibusters, while rare, took place in various forms until the 1970s, when they gave way to rules that currently allow senators to filibuster without even showing up for work.

So why has it been so hard to restore the talking filibuster, a rule change that could be accomplished with just 51 votes?

The short answer is that both parties have long worried about tying up the Senate for days or weeks on one bill.

But there is a more selfish reason.

Shortly before he died in July, former Senator Carl Levin of Michigan explained to me why he was one of only three Democrats to vote against then-Majority Leader Harry Reid’s 2013 carve-out for judges (Manchin was another).

Levin was worried that when Republicans regained control, Mitch McConnell would end the filibuster for Supreme Court nominations. Sure enough, after Donald Trump became president, that’s how we got Neil Gorsuch, Kavanaugh and Amy Coney Barrett.

But Levin was also peeved at his Democratic colleagues for rejecting a talking filibuster. He argued that Democratic senators simply wouldn’t inconvenience themselves to confirm judges.

They didn’t want to “give up weekends, and fundraising and getting to their kids’ and grandkids’ soccer games,” Levin told me. “Why disrupt their normal lives to protect some district court judge in some state that they have no connection with?”

“They didn’t want to '‘give up weekends, and fundraising and getting to their kids’ and grandkids’ soccer games,” Levin told me. “Why disrupt their normal lives to protect some district court judge in some state that they have no connection with?”

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Today’s circumstances are different. Imagine if this month—when the debt ceiling must be lifted to keep the government open— McConnell has to keep Republicans on the floor 24/7 arguing in favor of a government shutdown. That won’t go well for them.

The talking filibuster rule change could be written to apply to all bills or just some. On voting or abortion rights, grandkids’ soccer games would not be an issue. Democrats would bring in the cots and stay on the floor for as long as it takes to break a filibuster.

Of course Republicans, who believe the future of their party depends in part on making it harder to vote, would be motivated to continue their obstruction. Same for conservatives who see banning abortion as a cause.

But it is Democrats who would be writing the new talking filibuster rules. Under the most likely version, first floated by political scientist Norman Ornstein, the burden of moving or blocking legislation would be flipped. Instead of supporters of a bill needing a super-majority of 60 votes to approve most legislation, opponents would need 41 senators to prevent a bill from coming up for a vote.

That’s a crucial difference. Under the Constitution and longstanding Senate rules, the majority needs a minimum of 11 members present for a quorum and roll-call votes. If Republicans could not immediately muster 41 filibustering senators, debate would end and a vote would be called.

Senate leadership is often compared to herding cats. Herding 11 is easier than herding 41.

And if he wants to be tough (like McConnell), Majority Leader Chuck Schumer has the authority to give his Democratic members a heads-up of when the Senate will be in session, while the filibustering Republicans would have less time to get back to the Senate for a 4:00 a.m. vote.

Properly structured, the “41 on the Floor” filibuster rule would contain a “germaneness” clause, which would empower the presiding officer (the vice president or a Democratic senator) to prevent, say, Ted Cruz from reading Dr. Seuss’ Green Eggs and Ham, as he did during a mock filibuster in 2013. That means Cruz, Josh Hawley, Tom Cotton and company would have to spend dozens or hundreds of hours peddling the Big Lie about vote fraud, which has no supporting evidence and isn’t playing well for two-thirds of the country.

Sen. Ted Crus (R-TX) reads Green Eggs and Ham on Senate floor Sept. 2013

For some Republicans, this will require acts of contortion. Fifteen years ago, the Senate extended the Voting Rights Act by a vote of 98-0. Mitch McConnell and the other Republicans who voted for that bill and are still in the Senate won’t have any trouble reversing themselves, but are they prepared to defend their hypocrisy on the floor night-after-night?

Over on the House side, Minority Leader Kevin McCarthy’s eight-hour speech (not a filibuster, which they don’t have in that chamber) opposing Build Back Better didn’t go over well anywhere. Most of his colleagues in both parties wanted to go home long before he quit at 5:00 a.m. Imagine Senators James Inhofe, Charles Grassley and Richard Shelby—all 87 years old—staying there until the wee hours night after night. They’re all more than five decades older than Jimmy Stewart was when he played Jefferson Smith in the movie.

Cots filled the Old Supreme Court Chamber during the 1964 civil rights debates.

And media scrutiny would not favor the Republicans. In 1964, Strom Thurmond and other segregationists tied up the Senate for 75 days in a futile effort to kill the Civil Rights Act. As the obstruction dragged on, support for the bill grew. The same would likely happen when the whole country focuses on voting rights. By overwhelming margins, Americans want to make it easier to vote, not harder.

A similar political calculus applies to abortion. Republicans and Roe are often compared to the dog that caught the car. In a country where 80 percent support abortion rights, a long, high-stakes Senate debate under public glare is not likely to go well for old men on the wrong side of public opinion.

Would these momentous debates possibly tie up the Senate for weeks? Yes, but Al Franken is among those who believe the filibuster would last only a day or so. “I know these guys—they’re babies,” Franken told me. “They’ll want to go home.”

And if it drags on a while—so what? After passage (assuming it happens) of Build Back Better, what else is a more important use of the Senate’s time?

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“I know these guys—they’re babies,” Franken told me. “They’ll want to go home.”

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If they break the filibuster on the debt ceiling and the Freedom to Vote Act, Democrats would have renewed hope of doing the same not just on abortion rights but on immigration reform, gun safety legislation, family and medical leave, policing, and other bills. Even if they return to majority rule just on voting rights, this would mark a critical moment in the protection of American democracy.

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