The Filibuster is No Virtue

Democrats must oppose the SAVE Act and the filibuster

Republicans have put on the Senate floor (barely, with only 51 votes) their massive voter suppression bill, inaptly named the SAVE Act. Republicans face a considerable hurdle, but not from any constitutionally reverent batch of Republican senators who object to requiring a passport or birth certificate (both at considerable cost and/or inconvenience). Nor is it due to mandating that states turn over voter data to the feds, whose inaccurate database will inevitably purge thousands, if not millions, of perfectly eligible voters. And Republicans certainly are not concerned about a new requirement of mail-in voting that requires a photocopy of a picture ID to accompany the ballot. No, these techniques are features, not bugs, for a MAGA party that resorts to voter suppression to retain power. (As an aside, Republicans’ SAVE Act would disenfranchise millions in their own base, including non-college-educated and rural voters, who may disproportionately lack passports and easy access to original birth certificates.)

What will likely trip up Republicans is not the substance of the bill, but fiddling with the filibuster, which will be necessary to pass this anti-democratic monstrosity. A critical segment of the Republican Senate caucus cares about maintaining the filibuster, a tool Republicans have used repeatedly to block bills with majority support, such as reauthorization of the Voting Rights Act.

Put differently, the SAVE Act may fail because some Republicans want to preserve a procedure critical to future battles against civil rights legislation. Don’t throw it away now, the thinking seems to go, when there are so many battles ahead to thwart pluralistic democracy.

Left unsaid is that the SAVE Act would violate multiple constitutional provisions. The cost to get a passport or birth certificate effectively turns this into a poll tax. Its adverse impact on women who have changed their names and on non-white voters (who have less access to proof of citizenship documents) would likely violate the 19^th and 15^th Amendments, respectively. The bill arguably would also create a new federal voting requirement, something the Constitution says only the states can enact.

That stated, Democrats would be foolish to rely on this Supreme Court for a consistent or fair reading of the Constitution. The same court that held that Section 5 of the Voting Rights Act was too great an infringement on states’ control of elections could gleefully twist itself in knots to uphold an onerous proof of citizenship requirement that almost no state currently has in place. Democracy is too important to be left to the MAGA Supreme Court majority. Democrats must therefore defeat this Jim Crow bill in the Senate.

However, Democrats should be careful about the way they oppose and defeat the SAVE Act. They certainly do not want to defeat it by defending the filibuster. (Recall the fury at former West Virginia Sen. Joe Manchin and former Arizona Sen. Kyrsten Sinema, who refused to break the filibuster to protect voting rights.)

Republicans in recent decades have compulsively abused the filibuster, which is mentioned nowhere in the Constitution. Democrats under a future president may need to modify the procedure to repair the extensive damage the MAGA authoritarian movement has done to our democracy.

The Center for American Progress in 2024 explained:

Since the end of the 19th century, the filibuster—a political procedure used in the U.S. Senate by one or more members to delay or block legislation—has emerged as a preeminent institutional tool used to deny rights and liberties to tens of millions of Black and brown Americans. Over the past two centuries, it has been abused repeatedly during some of the darkest periods of America’s history to prevent the passage of legislation that would protect the civil rights and voting rights of Black Americans, including to block anti-lynching legislation.

This legacy, however, is not a relic of the past; it is alive and well today through the repeated use of the filibuster to prevent the passage of critical voting rights legislation, including the Freedom to Vote Act (FTVA) and the reauthorization of the monumental Voting Rights Act of 1965 (VRA).

Moreover, exceptions to the filibuster (e.g., budget reconciliation, confirmation of nominees) previously jettisoned the 60-vote barrier to measures Republicans especially favor (e.g., confirmation of extremist judges, or tax and spending cuts). Democrats should be free to modify the filibuster to advance voting and other core constitutional rights. (There are a host of suggestions as to how to accomplish this.)

Democrats’ list of priorities that may require future filibuster alteration would include term limits and expansion of the Supreme Court, reauthorization of the Voting Rights Act, statehood for D.C. and Puerto Rico, codification of abortion and gay marriage rights, guaranteeing private lawsuits against the federal government for deprivation of constitutional rights, and a major revamp of the Department of Homeland Security (including abolition of ICE in its current form).

Democrats should let Republicans stew over those items and ponder if backing a constitutionally infirmed voter suppression bill is worth opening the floodgates for all that pro-democracy legislation down the road.

In working to defeat the SAVE Act, Democrats should also keep their eyes on the greater goal of protecting democracy. They should aim both to kill the bill and to preserve their future options to modify the filibuster (as they sow seeds of panic on the MAGA side by describing all the wonderful things they would do if the filibuster were significantly altered).

Certainly, Democrats should deplore the specifics of the SAVE Act, highlight Republicans’ desperation to cling to power at all costs, remind voters (including Republicans) of the MAGA party’s goal to disenfranchise many of them, and stress that MAGA politicians would rather keep Americans from voting than address voters’ concerns about affordability, an unpopular/disastrous war, Trump’s massive corruption, ICE shock troops, or the Epstein-Trump pedophile scandal.

What Democrats should not do is cast the filibuster as a virtue. Both the legislation and the Senate procedure are fundamentally at odds with democracy, which Republicans — advocates of a cruel, ineffective, and unpopular agenda — fear most of all. Easy access to voting (no Jim Crow Act) and protection of majority power to advance constitutional rights (disarming the filibuster) are worth fighting for.