S. 1 Shows Why the Filibuster Is Needed | National Review

S. 1 Shows Why the Filibuster Is Needed | National Review


Senate majority leader Mitch McConnell (R., KY) walks from the Senate Chamber after eliminating the filibuster rule against Supreme Court nominees in Washington, D.C., April 6, 2017. (Joshua Roberts/Reuters)

On Tuesday afternoon, Senate Democrats plan a motion-to-proceed vote on the so-called “For the People Act,” also known as H.R. 1 and S. 1. The legislation began as a kind of messaging bill a few years ago, but Democrats have talked themselves into treating its passage as utterly essential to the future of American democracy. Such claims are disconnected from the realities of our election system, and are dangerous to the very trust in that system that the bill’s champions claim to want to protect. A Republican filibuster now seems like the only way to avert its enactment, and Republicans should make sure to do just that.

Anytime we talk about election administration now, it is essential to begin from a plain fact that almost no one in either party is willing to acknowledge: Our election system is in very good shape. It is easier for more people to vote than it has pretty much ever been in America, and we have essentially no fraud in our elections. That’s not to say there aren’t problems to be taken up, but they should be dealt with from a position of confidence and trust. The 2020 election was an extraordinary accomplishment for this superb system. It was a close set of elections held under very challenging conditions because of the pandemic, and under assault by a reckless sitting president, and yet our 50 state election systems all functioned quite well, enabling more Americans than ever to vote in more ways than ever, and producing reliable results relatively quickly. We should be very proud of the election administrators and other state and local officials who have made this possible in every state.

Discussions of our election system don’t often enough begin from this premise because Republicans and Democrats are now committed to mirror-image narratives of illegitimacy, with Republicans arguing that our system is rampant with fraud and Democrats insisting it is choked by voter suppression. Each party of course blames the other for the trouble and is effectively telling its own voters not to trust our elections unless legislation it is advancing can pass. Most of this legislation (including Republican bills in some states and the Democrats’ H.R. 1/S. 1 in Washington) wouldn’t actually do all that much as a practical matter, or at least not much that should be expected to influence election outcomes. But all of it contributes to the public’s loss of confidence in our elections — which, unlike the problems these bills all claim to address, is actually a real threat to American democracy.

Our election system cannot function without the public’s confidence. So the debates we are now having about election administration, in which both parties are trafficking in baseless accusations and conspiracies, are themselves the most serious threat the system faces.

Some of the bills Republican state legislators are proposing would exacerbate that danger by leaving some voters in those states feeling like their public officials are out to make it harder for them to vote. Some would also create real confusion about post-election procedures by altering election boards and giving legislatures new and inappropriate roles in the process. The problems these bills claim to address don’t really exist, so the harm they risk is just not offset by any real benefits, and they should be rejected. Even if there are modest and beneficial adjustments to be made to election laws in these states, legislators should see that if these can only gain the backing of one party at this point then this is not the time to do it. They should want to reinforce public confidence in our elections. Too many of them seek to do just the opposite.

S. 1 poses an even more serious danger to public confidence, because it plainly gives the impression of a power grab on a much greater scale. Since the bill was never really intended to become law, it suffers from all sorts of practical problems, but as with the Republican bills in the states, it is the perception problem that runs deepest.

It is not easy to imagine a more effective way to persuade Republicans to lose trust in our democracy than to have the narrowest possible Democratic majority in Washington take over key election-administration rulemaking in every state and impose new and often looser rules involving voter registration, ID requirements, eligibility, ballot harvesting, early voting, drop-boxes, mail-in voting, locations and hours of polling stations, voting by felons, campaign donations, and more.

I think those rules probably wouldn’t actually affect election outcomes much, just as the Republican bills probably wouldn’t. Champions and critics of these measures tend to overestimate the degree to which manipulating access rules at the margins can actually change voter behavior, and tend to assume that higher turnout benefits Democrats and hurts Republicans — which is not true.

I also don’t think the median legislative backer of these bills is fundamentally a cynic. Lots of Republicans really believe Democratic legislators in Washington are out to systematically steal elections by letting ineligible people vote, and lots of Democrats really think Republican legislators all over the country are trying to keep minorities from voting. I think both those views are largely mistaken, and that each party is better understood as acting defensively as it understands things. But the sum total of these actions is an assault on public confidence in American democracy, and S. 1 is a major culprit on that front, undermining an assortment of election-integrity protections that the vast majority of Americans (including the vast majority of Democrats) support, and in ways that would leave a lot of (particularly Republican) voters with a sense that their state election rules are no longer legitimate.

This danger makes it very important to prevent the bill from getting enacted. And this is particularly so given the narrowness of the Democrats’ congressional majorities. In fact, those narrow majorities make this debate into a powerful argument for the importance of the filibuster.

Opponents of the filibuster often claim that it isn’t necessary for the protection of large and durable minorities because our system of government is full of other sorts of checks and veto points that perform that function. But the Democrats’ push for S. 1 shows that in this polarized moment that really isn’t true.

Let’s imagine, for the sake of argument, that one party has the narrowest congressional majority in our lifetimes. The Senate is tied and that party runs it only by virtue of the vice president’s vote. Its margin in the House is in the low single digits. The president was fairly narrowly elected. And let’s imagine the party with that narrow majority moves, in a totally partisan way, to nationalize and alter the election procedures of every state in the union. Let’s say every single elected federal official of the majority party supports that bill while every single elected federal official of the minority party opposes it. Can you name the checks and veto points that prevent that tiny majority from making that bill a law? Evidently, the filibuster is the only one.

Playing around with the infrastructure of American democracy in a purely partisan way is a dangerous mistake. It’s a mistake for Republicans to do it in the states where it’s happening, and it’s a mistake for the Democrats to do it at the national level. Maybe the filibuster has been overused in this century. But this situation plainly amounts to a proper use of it, and a necessary one.

Republicans in Washington are obviously being hypocritical about elections. Very few of them are willing to stand up to cynical lies about the last election, and indeed many of them perpetuate those lies. Few if any are willing to criticize needless election bills in their states that undermine public confidence in elections. They are far from coming to this issue with clean hands. And yet, they would still be doing our democracy a big favor by standing in the way of a reckless nationalization of election administration that would do terrible harm to the public’s trust in our elections.

Yuval Levin is the director of social, cultural, and constitutional studies at the American Enterprise Institute and the editor of National Affairs.





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About the Author

Tony Beasley
Tony Beasley writes for the Local News, US and the World Section of ANH.