May 25, 2021
What is the current status of S. 1?
On May 11, the Senate Rules Committee held a markup of S. 1, the “Corrupt Politicians Act.” There were 40 amendments voted on during the markup, with 11 passing and 29 failing. The final vote to discharge the bill from the Committee, as amended, failed by a party-line vote of 9-9. Under the rules of the power-sharing agreement reached by Majority Leader Schumer and Minority Leader McConnell at the beginning of this Congress, bills that are not discharged from committee because of a tie vote can still be considered by the full Senate on the floor if a majority of the members of the full Senate vote in favor of discharging the bill from committee.
This means that in order to bring S. 1 to the floor, all Democrats would have to vote in favor of discharging the bill, and Vice President Kamala Harris would then break the tie. As it currently stands, Senator Manchin has indicated that he does not support S. 1, and so the possibility of even bringing it to the floor is out of reach for Democrats for the time being. Even if Senator Manchin flip-flopped and supported the bill itself, this would only allow Schumer to set up a cloture vote on S. 1 to begin debate of S. 1 on the Senate floor. A cloture vote would require 60 votes under current Senate rules in order for S. 1 to be considered. Without Senators Manchin and Sinema changing their stance on ending the filibuster, S. 1 cannot become law.
Does this mean we’re out of the woods on S. 1?
First, there’s nothing to stop Senators Manchin and Sinema from changing their mind and working to blow up the filibuster and enact S.1. We are dealing with politicians, and politicians are known to flip-flop on past statements and then justify the reasons with mental gymnastics.
Second, the makeup of the Senate can change, even in the middle of a legislative session.Leader Schumer will keep his options open because the state of play in the Senate is fluid and subject to change. It isn’t outside the realm of possibilities that health could cause a member to retire early or pass away, creating an opening that could alter the balance of power in the chamber. Many states give the governor the ability to fill an open Senate seat, and most have no requirement that the replacement is from the same party as their predecessor.
The right seat opening up in the Senate could allow for a Democratic governor to replace a departing Republican Senator with a Democrat, bolstering Leader Schumer’s margin in the Senate. There are currently 6 Republican Senators from states with Democratic governors who have the authority to appoint a new Democratic Senator if there is a vacancy - Cassidy (LA), Collins (ME), Kennedy (LA), Marshall (KS), Moran (KS), and Toomey (PA). With 51 or 52 Democrats in the Senate, Schumer could discharge S. 1, end the filibuster over the objections of Senators Manchin and/or Sinema, and pass S. 1 into law.
Barring a vacancy, what’s the Democrats’ next move?
Democrats understand that they don’t have the votes to pass S. 1 -- and they haven’t for some time -- which is why they began to publicly discuss and highlight H.R. 4, the John Lewis Voting Rights Act almost immediately after the S. 1 markup concluded. Democrats are going to brand this bill as a compromise and as bipartisan (we're already seeing this) - but that simply isn’t true. Nothing about this bill is a compromise or bipartisan - it’s simply a backdoor way to federalize elections so that the Left can maintain power.
What is the John Lewis Voting Rights Act (H.R. 4)?
The John Lewis Voting Rights Act would overturn the Supreme Court’s ruling in Shelby County v. Holder, which effectively struck down Sections 4 and 5 of the Voting Rights Act. Sections 4 and 5 of the Voting Rights Act required certain states to get permission from the Department of Justice to make changes to their own state’s election laws. As Heritage Senior Legal Fellow Hans von Spakovsky explains, this ruling was constitutionally justified and preserved the Justice Department’s ability to act in cases of discrimination:
Section 5 was an unprecedented, extraordinary intrusion into state sovereignty since it required covered states to get the approval of the federal government for voting changes made by state and local officials… No other federal law presumes that states cannot govern themselves as their legislatures decide and must have the federal government’s consent before they act. As the Supreme Court said, Section 5 “employed extraordinary measures to address an extraordinary problem.”
The Supreme Court in Shelby County found that the general conditions in covered states today do not justify their continued exception from general constitutional principles and strictures. However, a court can still appoint federal examiners and place a particular jurisdiction into the equivalent of Section 5 preclearance if it finds sufficient evidence of current, repeated discrimination and a recalcitrant defendant under Section 3’s requirements. The Justice Department has filed far fewer enforcement actions since the Shelby County decision and there is no need for Section 5 to be reinstated.
The bill would reestablish preclearance for states and jurisdictions allegedly engaging in discriminatory voting behavior under a new “strikes” system, which would trigger Section 5 requirements after a certain number of strikes within a 25 year period.
The bill goes far beyond Section 4 of the original Voting Rights Act in a number of ways:
In addition to giving the Attorney General the ability to unilaterally issue “strikes” against states and jurisdictions, H.R.4 would also count as strikes any other court’s ruling against new election rules or procedures, any denial of declaratory judgments in favor of such changes, and any consent decrees, settlements, or other agreements that result in the alteration or rollback of voting practices.
The bill would give any “aggrieved citizen” standing to sue in a Federal district court to get an immediate enjoinment of new or existing voting practices.
The bill would give activist “civic participation organizations” the ability to appeal to the Attorney General for assigned observers over local elections on behalf of a new protected category called “language minorities.”
H.R.4 would expand the definition of violations to include not just intentional discrimination, but instances of disparate impact, while also establishing a “hardship” standard favoring those suing under the law.
In sum, the bill would give the Biden Department of Justice the ability to veto any state election law that they don’t like - essentially allowing President Biden the ability to rig the rules in favor of Democrats in key states and giving him the authority to void all existing and recent laws that states have passed to improve election integrity. This bill is no better than S. 1 - instead of Congress telling states that they can’t run their own elections, it gives that power to the President to rule over state elections by Executive diktat.