[music]

Melissa Harris-Perry: Ladies and gentlemen, citizens of all parties, welcome to The Takeaway, where we begin today by channeling our inner schoolhouse rockers with a visit to our three-ring national circus.

[music]

Melissa Harris-Perry: Yes, the politics of Washington DC can seem downright clownish. So much so that we can forget that, in theory, our political system is actually pretty ingenious. Not only is American democracy a great experiment in self-governance, it's also an elegant solution to despotism. By dispersing authority across multiple branches of government, our system guards against the accumulation of power in a single entity. All right, just check out Article 1 Section 1 of the Constitution, which divides the legislative function into a bicameral system.

That means the 435 members of the House of Representatives have a brief two-year term, and this body is designed to be responsive, held accountable by citizens who know their members well and vote for them often. Meanwhile, the 100 member Senate enjoys more leisurely six-year terms. The Senate was idealized as the responsible body, slower-paced and famously deliberative. In 1831, Alexis de Tocqueville praised the American Senate writing--

Speaker 1: The Senate is composed of eloquent advocates, distinguished generals, wise magistrates, and statesmen of note, whose arguments would do honor to the most remarkable parliamentary debates of Europe.

Melissa Harris-Perry: In theory, this is one a heck of a system. Responsive and responsible, powerful, yet accountable in theory, but in practice, it's proven, let's say less lofty.

[music]

Melissa Harris-Perry: Those Senate debates that Tocqueville praised established a standard for democratic deliberation, but it's worth remembering that the substance of those debates was the expansion of slavery and the nullification of federal power. In theory, high-minded deliberation is valuable in democracy. In practice, these senators were arguing about whether my great-grandparents were fully human.

In the 20th century, the Senate used not only deliberation but the specific tool of the filibuster to block anti-lynching legislation and civil rights legislation for decades. Dixiecrat Strom Thurmond holds the record for the longest filibuster. He spoke for more than 24 hours straight to block the 1957 Civil Rights Act. This history calls to my less of Tocqueville's soaring praise, and more of the quip attributed to President Teddy Roosevelt.

Speaker 1: When they called the roll in the Senate, the senators did not know whether to answer present or not guilty.

Melissa Harris-Perry: Still, I'm enamored of rules that force the majority to slow down, to listen, and to consider the other side. I want to hold on to the possibility of how Huey Long used the filibuster in the 1930s, including his 15-hour filibuster that blocked an anemic version of social security and helped ensure a more progressive and far-reaching version. I want to imagine the filibuster as Jimmy Stewart in Mr. Smith Goes to Washington.

Jimmy Stewart: Bleary-eyed, voice gone, he can't go on much longer and all official Washington is here to be in on the kill. That's all I ask. Get up there with that lady that is up on top of this Capitol dome, that lady that stands for liberty. Take a look at this country through her eyes if you really want to see something, and you won't just see a scenery, you'll see the whole parade of what man has carved out for himself after centuries of fighting, and fighting for something better than just jungle law, fighting so as he can stand on his own two feet, free and decent, like he was created no matter what his race, color or creed.

Melissa Harris-Perry: Of course, that speech, it isn't real, it's a Frank Capra film. Recent Senate filibusters have sounded less like Jimmy Stewart and more like Ted Cruz in 2013 trying to overturn the Affordable Care Act.

Doctor Seuss: Do would you like green eggs and ham? I do not like them, sam-I-am. I do not like green eggs and ham. Would you like them here or there? I would not like them here or there. I would not like them anywhere. I do not like green eggs and ham. I do not like them, sam-I-am.

[music]

Melissa Harris-Perry: That was the kind of scene that led the late Senator Bob Dole to suggest, "If you're hanging around with nothing to do and the zoo is closed, come on over to the Senate to get the same feeling and you won't have to pay." I'm Melissa Harris-Perry, and we begin today's Takeaway asking whether it's time to change the rules of the game in the US Senate. Sahil Kapur is senior national correspondent at NBC News. It's always great to have you with us, Sahil.

Sahil Kapur: Great to be back, Melissa.

Melissa Harris-Perry: Okay. Last week, President Biden reluctantly and belatedly call for reform of the Senate filibuster and really tied it to this passage of Voting Rights Legislation. Is it enough or is this maybe too little too late?

Sahil Kapur: It is unlikely to be enough. The Senate is going to debate two major pieces of the Voting Rights Legislation this week, the Freedom to Vote Act and the John Lewis Voting Rights Advancement Act. Now, both of them have a majority support in the Senate to pass if they were to come up for a vote on the merits and up or down vote, but they don't have the support needed to overcome the 60 vote rule of the filibuster, nor do they have the 50 Democrats needed to change the rules, to create an exception to the filibuster the way there are exceptions for other issues and bring these bills to a vote.

As a result, they are stuck. President Biden and Democratic leaders face two immovable objects named Senator Joe Manchin and Senator Kyrsten Sinema. It seems that all the pressure over the last year from President Biden, from Democratic leaders, from fellow colleagues, from activists, from civil rights leaders has not made an impression on them to make an exception for the filibuster for voting rights.

Melissa Harris-Perry: I want to talk about that and presume for a moment that Senator Sinema perhaps, in particular, is being honest in her concern that the filibuster is this critical tool of democracy and her concern that, in fact, Democrats may in a fairly short order themselves want to have use of the filibuster. Let's just take a listen to her for a moment.

Senator Kyrsten Sinema: Eliminating the 60 vote threshold will simply guarantee that we lose a critical tool that we need to safeguard our democracy from threats in the years to come.

Melissa Harris-Perry: Sahil, do you buy that?

Sahil Kapur: That really depends on your perspective. You can look at this a number of different ways but the Sinema view is that the 60 vote threshold promotes stability in lawmaking. She said this repeatedly, including last summer and spring when reporters like me pushed her office to explain her view on the filibuster. She argued that if Democrats create an exception now for voting rights, then in a couple of yours, Republicans could use that same exception to, for instance, enact nationwide voter ID and repeal everything Democrats do.

Now, many of our colleagues don't buy it, I'll tell you that. They believe that this isn't a unique moment, an exceptional moment where Democrats have to use the tools necessary to combat former President Trump's big lie of a stolen election and all the results of it, which include restrictive voting laws across the country, as well as potential attempts at election subversion which the Freedom to Vote Act gets at. Some of Sinema's colleagues have also argued that if Republicans have the trifecta down the road and they really want to eliminate the filibuster, they would do it anyway, that they don't need Democrats to do it first.

That's where the majority of the Senate Democratic Caucus is, but a majority of the caucus is not enough. They need all 50 votes, they have a path to getting 48 to eliminate or create an exception to the filibuster, but Sinema controls her own vote and she is not being swayed.

Melissa Harris-Perry: Now, unlike the bicameral legislature that I was talking about, the filibuster isn't in the constitution. Help me understand why Senator Sinema and others perceive it as so critical to preserving the capacity of democracy to move forward.

Sahil Kapur: Firstly, you're correct. It's not in the Constitution. The filibuster is not in the original design of the Senate either. It has a fascinating bit of history. I won't go into the whole thing, but basically, it came about by way of historical accident according to historians who have looked at this in the early 1800s after the famous duel between Alexander Hamilton and Aaron Burr. Burr suggested a bunch of changes to Senate rules that they took up without knowing that it cut off their ability to end debate.

It was only generations later in the mid-1800s that the filibuster was even used, and it has evolved along the way from being a unanimous 100 votes to end debate to 67 votes, two-thirds of the Senate and now it is 60. Now, what does Sinema say about the filibuster? Her view, again, is that it promotes stability in lawmaking and it prevents wild swings from left-wing policymaking to right-wing policymaking which is what she fears. Of course, the Senate is not the only impediment to making legislation, you also have to pass something through the House of Representatives, you also have to have the President sign it, so there would be other checks to governance if the filibuster wasn't there.

Her view is that she likes a 60 vote threshold because it pushes policy to a centrist place. The other holdout on the filibuster, Senator Joe Manchin, his view is a little bit different. He believes that the filibuster promotes bipartisanship. Again, his colleagues disagree with this. They will say, what bipartisanship have you seen? They will argue that the filibuster does more to prevent bipartisanship than to promote it because the minority can simply block most legislation and reap the political benefits of the majority party failing to govern. Manchin's view is still the view of bipartisanship and I will say there is frustration in the Democratic Caucus toward both of them, but there's more frustration towards Sinema for the simple reason that she is from a swing state that has trended Democrat in recent years. President Biden won that state of Arizona in the 2020 election.

Mark Kelly is a democratic Senator from Arizona who also won, who did about as well as she did in a much tougher year for Democrats. The view is that she doesn't have to vote this way in order to survive politically. Manchin has a totally different story. He hails from a state that Donald Trump won in 2020 by nearly 40 points. There may be no other Democrat in the entire state of West Virginia who can win that seat. He over-performs Democrats massively there. Two different stories here, but to the original point, nobody else controls their vote card and no amount of arguments have been able to sway Sinema and Manchin on the filibuster. They're holding firm.

Melissa Harris-Perry: In my romantic appreciation for the filibuster, it is always a filibuster that causes debate. It's always, again, that sort of Jimmy Stewart, Mr. Smith Goes to Washington, Frank Capra version of the filibuster where we get to hear an impassioned debate. That is presumably the way that the Senate is supposed to hold up this cross partisanship that Manchin wants, and this responsible, long vision that Sinema wants. When you say that this week, beginning today, we're going to hear debate from the US Senate about voting rights. Are we going to actually hear debate, or is this something that's going to simply be Democrats making the case and Republicans remaining silent?

Sahil Kapur: Well, when the Senate says it's debating something, I usually use the word debate in quotes because nobody's convincing anybody. Everyone knows exactly how they're going to vote. We know exactly what the votes are going to be on these two bills unless there's something extremely surprising. The freedom to vote act will break 50/50 if it's an up or down vote and Vice President Kamala Harris will pass the tiebreaker. The John Lewis Voting Rights Advancement Act has 51 votes. That'll break 51 to 49 with all Democrats and the vote of Republican Lisa Murkowski.

The Senate has figured out a path to actually bring these two bills up for consideration and discuss them on the Senate floor. That was through a so-called message from the house of representatives where they passed the bills. They sent it over to the Senate and it's privileged in a way that you don't need the first 60 vote hurdle to begin debate. They can do that. They hope to start doing that as early as today. If not today, it'll be tomorrow, Wednesday. What is next?

They can begin debate on the Senate floor with 51 votes, but they need 60 to end debate. That's where the filibuster remains. That's where there's no loophole around the filibuster and Senator Chuck Schumer, the majority leader, a New York Democrat has said he will call a vote on a rules change if and when the Republicans filibuster those two voting bills. That's when all Democrats are likely to have to go on the record. If he follows through would that promise and cast their votes and say where they are.

Melissa Harris-Perry: Sahil Kapur is senior national political reporter at NBC News. Thank you for joining us today.

Sahil Kapur: Great to be back.

Copyright © 2022 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.