When the U.S. House of Representatives passed H.R. 1, it addressed a series of comprehensive and desperately needed reforms that would strengthen voting rights and election security.

It would ban partisan gerrymandering, reduce big money in politics and establish a basic ethics code for essentially all decision-making members of government.

The legislation has the committed support of 50 senators, and President Biden is ready to sign it. So what’s the problem? Majority support in the Senate isn’t enough. A supermajority of 60 votes is required to pass it. Fewer than 60 votes means that it doesn’t pass.

This political reality is not found in the Constitution. The requirement comes from a century-old rule of the Senate that has become a weapon for strangling legislation by a minority of senators.

The framers of the Constitution did not include a supermajority requirement for the Senate to pass legislation. They had seen how a similar requirement under the Articles of Confederation had prevented the government from doing almost anything. As Alexander Hamilton wrote in Federalist Paper 22, “What at first sight may seem a remedy, is, in reality, a poison.”

The filibuster destroys the energy of the government and enables the whim of a minority to negate the regular deliberations and decisions of that governing majority.

The filibuster arose during the 19th century as a means to protect the institution of slavery from a majority of abolitionist senators. From its beginnings through the middle of the 20th century, when segregationists like Sen. Strom Thurmond, of South Carolina, used the filibuster to try to kill multiple civil rights bills, the pattern has been clear: It has been used regularly by those who reject inclusive democracy.

The relevance of the history is that the pattern continues. The filibuster has not been a protection of the minority from oppression by the majority. It has become an instrument of minority rule in essentially every form of legislation, such as energy regulation, class-action litigation, welfare reform, Patriot Act amendment, defense appropriations, estate taxation, lobbying disclosure and protection of national parks. The filibuster has actually become a reality of minority rule in our national legislature.

It is also a redundant protection in a system that already includes multiple veto points and protection of minority views, including the very existence of our bicameral legislature, a Supreme Court and a presidential veto. The Senate itself protects minorities in its very design, which gives small states the same representation as large ones. The array of our basic governmental structure provides multiple protections to ensure that protection exists for the minority of our citizens. Now, they effectively govern us all.

If the political reforms in H.R.1 are not undertaken at the federal level, some states will continue to limit the facility of voting by the true majority of citizens. Further, the claim that voting limitations will protect the integrity of elections is totally contradicted by the lack of evidence of any corruption of present laws.

The Supreme Court should be blocking these measures and protecting the right to vote, but far too often under Chief Justice John Roberts, it’s done the opposite. In 2019 it refused to stop even the worst partisan gerrymanders, and in 2013 it struck down the heart of the Voting Rights Act, opening the door to a wave of voter-suppression laws that continues to crash. That’s why federal law, as HR1, is the only real solution.

There have been many revisions to the Senate’s filibuster rule. In the 1970s, Congress created a loophole for spending and revenue bills to avoid the filibuster, allowing such legislation to pass with a simple majority, a process known as reconciliation. More recently, in 2013, Democrats eliminated the filibuster for nominations of lower-court federal judges and executive-branch officials.

The perverse result of all this is that it is now easier to block any piece of legislation, and it no longer applies for the minority to block an offensive federal judge seeking a lifetime appointment. Any intellectual justification for the filibuster has been gutted by the fact that it doesn’t apply to the most important issues before the Senate.

The point of H.R. 1 is not to help one party over the other. It is to rebuild and reinforce the foundations of American self-government and abolish voter restrictions erected for explicitly partisan gain. It is a federal law that would protect all the sanctity of the basic voting process. However, it lies on the filibuster killing block.

Don Tortorice is a former attorney and professor at the Law School of the College of William and Mary.

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(20) comments

Jim Tomashoff

Linda, I checked out the website for the Heritage Organizations study of voter fraud. You chose not to mention that there total number of proven voter fraud goes back 40 years! So about 35 per year on average. How many people voted in total over that 40 year period? Hundreds of millions, maybe even a billion. Makes you and Republicans who claim voter fraud is a significant problem somewhat hysterical, don't you think?

Linda Adams

Jim, ah yes, hysterical, Dems favorite response to Common sense. Hysterical when Repubs said defunding the police, no cash bail and not prosecuting criminals would lead to historical rise in crime, and it did.

Dems cry hysterical when Repubs said that Dems lack of a border policy would lead to an unprecedented rise of migrants coming across the border overwhelming border towns and border patrol, resulting in more drugs and human trafficking, and it did.

Hysterical when there was growing evidence that the Covid Virus leaked from the Wuhan Bio lab. Now Scientists and the former head of the CDC are saying that is the most probable conclusion. You know, when Dems cry hysterical, I tend to pay attention to what the Repubs are saying since it usually leads to the truth.

Susan Thomas

Well stated, Don.

Linda Adams

Don Tortorice, are you insane? Biden and the democrats didn't get a mandate.

There is a very slim majority in the House and evenly split in the Senate. There is no data showing that voter rights are restricted. In fact the exact opposite was the case in the last few elections. People of Color are voting in increasing numbers each election. HR1 allows for massive fraud with ballot harvesting. No reasonable person can say that people of color don't have ID. That's insulting. No ID: no driving, no renting a hotel room, no entering a federal of state building, no bank account, no receiving of government benefits, no plane ride. Are you telling me that People of Color don't partake in any of these activities??

People that aren't able to go to vote can get an absentee ballot. HR1 will turn this country into a banana republic for ideologies. "How many votes do we need to win? Well, just go out and copy how many we need". That's what would happen. The Constitution clearly states that any powers not explicitly granted to the federal government belongs to the states.

Jim Tomashoff

You stated: "HR1 allows for massive fraud with ballot harvesting." How so? The only fraud committed by ballot harvesting occurred here in North Carolina a few years ago by a Republican operative who was caught doing so. How does H.R.1 make that easier to do and avoid being caught by existing means? Your last sentence refers to the 10th Amendment, which is not relevant in H.R. 1 as the Supreme Court has ruled that the Federal Government can and has set election requirements that States must follow.

Linda Adams

Jim, you stated: "The only fraud committed by ballot harvesting occurred here in North Carolina a few years ago by a Republican operative who was caught doing so". Be careful with the word "only". Looks like you are only getting your info from Democratic slanted "news". Check out the Heritage Site https://www.heritage.org/voterfraud

There are over 1328 proven cases of voter fraud, 1143 criminal convictions

https://www.texasattorneygeneral.gov/initiatives/election-integrity - 534 cases of voter fraud successfully prosecuted in TX.

The Albany Herald, Ga. - 35 cases of voter fraud . State Election Board turns over to State DA.

I could go on if I had more time, but at least I did some research as opposed to you.

Why on earth would you want to give the federal gov any more power. Political affiliation aside, when do the Feds do anything better. Again, since voting is one of our most important freedoms, rights and duty, why is voter ID, to ensure a honest election so bad? Again, people of color DO have ID.

Kent Misegades

Do as I say and not as I do? The hypocrisy of the left knows no bounds. Elections are the business of the states, period. Try to wrest this away from the states and the Union is dissolved for good. We’re on that path now anyway.

Jim Tomashoff

Kent's wrong, as usual.

"Article I, Section 4, Clause 1:

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, except as to the Places of chusing Senators.

By its terms, Article I, Section 4, Clause 1, also contemplates the times, places, and manner of holding elections being prescribed in each State by the Legislature thereof, subject to alteration by Congress (except as to the place of choosing Senators). However, the Court did not have occasion to address what constitutes regulation by a state Legislature for purposes of the Elections Clause until its 2015 decision in Arizona State Legislature v. Arizona Independent Redistricting Commission. There, the Court rejected the Arizona legislature’s challenge to the validity of the Arizona Independent Redistricting Commission (AIRC) and AIRC’s 2012 map of congressional districts. The Commission had been established by a 2000 ballot initiative, which removed redistricting authority from the legislature and vested it in the AIRC. The legislature asserted that this arrangement violated the Elections Clause because the Clause contemplates regulation by a state Legislature and Legislature means the state’s representative assembly.

The Court disagreed and held that Arizona’s use of an independent commission to establish congressional districts is permissible because the Elections Clause uses the word Legislature to describe the power that makes laws, a term that is broad enough to encompass the power provided by the Arizona constitution for the people to make laws through ballot initiatives."

https://constitution.congress.gov/browse/essay/artI_S4_C1_1_1_1_1/

Mark Hayes

When Joe Biden stated that he didn't even know if there would be a Republican party participating the the next Presidential election, it seems that he and his Democrat followers are attempting to make that a reality. The Democrats have have taken a page out of Hitler's Nazi playbook. Hitler and the Nazi party achieved the goals of racial unrest, through propaganda and manipulation, the Nazi party managed to turn a once coexisting, mixed demographic, German population, into hating the Jewish population, blaming them for the WWI surrender, the economic collapse, German high unemployment, in short, Jews were the root cause of all the problems Germany was going through. Democrats have achieved their own goals of racial unrest, through propaganda and manipulation. The Democrats have turned a once coexisting, mixed demographic, American population, into hating the White Republican population, blaming the White Republicans as the root cause of all the problems this country is going through. Democrats should just go ahead and do as Hitler Nazi party did. Article 1. Proclaim the National Socialist Workers ( Democrat/ Progressive ) Party is the only political party in the U.S. Article 2, Organizational cohesion of another political party or founding of a new political party is punishable with prison. The Democrats have succeeded in their pursuit of racial unrest, political dominance and handing out other peoples money as rewards for loyalty to their followers.

Jim Tomashoff

Utterly absurd comment. Ahistorical in the extreme.

Mark Hayes

As expected. Possibly a bit heavy on the Democrat issues, not so on the Nazis, all verifiable, but then you already knew that. BTW, Hitler confiscated weapons, the Jewish population had no way to defend themselves, sound familiar ? [wink]

Jim Tomashoff

Yeah, it's good to know that the 300 million guns owned by Americans will be able to easily defeat the U.S. Army, Air Force, and Navy should they for some unfathomable reason(s) choose to use their combined arms, intelligence assets, and communication abilities against said Americans. But I am somewhat at a loss to understand just how small arms and rifles will shoot-down F-22s, A-10s, Apache helicopters, blow away M1 tanks, and sink the Navy's warships. Please enlighten me Mark.

Comment deleted.
Jim Tomashoff

You lie again. Biden is a completely legitimate President. You can't handle that truth, so you just make easily repudiated lies, over and over.

This column is hilarious. If the Republicans were trying to get rid of the filibuster, Mr. Tortorice would argue just as vehemently that we should keep it. The purpose of the filibuster is to encourage compromise and cooperation among Senators and Representatives, and to discourage excessive partisanship. Does anyone think we need even more partisanship than we already have?

Stephen Woodward

Under our Constitution states control elections. HR 1 is an attempt to hijack the Constitution.

Jim Tomashoff

Not true. Why do you and Kent always lie? Note the case I quoted from above and what's left of The Voting Rights Act, which as you may know, is Federal Legislation that the States must abide by when holding elections.

Ed Pieczynski

I was looking for your column on ending the filibuster when Dems. were in the minority and used it more than 300 times but somehow I just couldn't find it.

"When Schumer was minority leader, he vigorously used the filibuster to do just that. Under his leadership, Democrats used the filibuster to block funding for construction of Trump’s border wall in 2019. They used it not once, but twice to impede passage of the Cares Act — forcing Republicans to agree to changes including a $600 weekly federal unemployment supplement. They used it in September and October to stop Republicans from passing further coronavirus relief before the November election. They used it to halt Sen. Tim Scott’s (R-S.C.) police reform legislation so Republicans could not claim credit for forging a bipartisan response to the concerns of racial justice protesters. They used it to block legislation to force “sanctuary cities” to cooperate with federal officials, and to stop a prohibition on taxpayer funding of abortion, bans on abortions once the unborn child is capable of feeling pain, and protections for the lives of babies born alive after botched abortions."

Jim Tomashoff

Ed, it is generally proper to provide the source of a quote when you cite it. What is the source of this quote?

Conrad Meyer

Jim, it is easy enough to find. Google the first two sentences and you get: https://www.washingtonpost.com/opinions/2021/01/26/democrats-have-vigorously-used-filibuster-its-pathetic-they-now-wont-pledge-protect-it/

But you knew that.

Jim Tomashoff

I did. And Ed's correct. What he failed to mention was any kind of context. Filibusters were quite rare historically. Its use increased dramatically beginning in 2009, you know, when Obama became President. 99% of the time it was Republicans using the filibuster. So in suggesting that Democrats used the filibuster 300+ times Ed is being either lazy or intentionally misleading. I don't know which.

https://en.wikipedia.org/wiki/Filibuster_in_the_United_States_Senate

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