The New York Times reports: “In an embarrassing setback for Mr. Biden, Senator Kyrsten Sinema, Democrat of Arizona, stunned her colleagues just hours before the president was slated to make his case to them in person at the Capitol by taking the Senate floor to declare that she would not support undermining the filibuster to pass legislation under any circumstances.” Senator Sinema disappointed colleagues and citizens who had hoped for progress on passing legislation to protect voting rights. But Sinema “was cheered by Republicans who credited her with nothing less than protecting the Senate.”

Why has President Biden and Senate Majority Leader Charles Schumer allowed the debate about voting rights — the most vital item of their entire legislative agenda– to become one about getting rid of the filibuster?

The filibuster is a Senate rule that allows a member of the Senate to speak as long as they wish during debate unless three fifths of the Senators “duly chosen and sworn,” vote to bring debate to a close by invoking cloture under Senate rule XXII. This rule, not anything in the Constitution, is what has sometimes been called the Soul of the Senate. In the past, the rule usually served to delay passage of legislation rather than prevent legislation. But with discipline and persistence a determined minority can prevail this way. It requires work on the part of the minority –work they might be willing to undertake in order to bring attention to an issue or to extend debate, and possibly to prevent unjust or unwise legislation despite majority will. This original practice, one could say the original meaning, of the filibuster is sometimes referred to now as the “talking filibuster” because it allowed unlimited debate if the minority wanted it.

But the present day practice of requiring sixty votes to have a vote on the merits rather than sixty votes to end debate about the concerns of the minority is not a filibuster. It is rather, a routine minority veto that requires no work, no argument, no stamina, and no sustained attention for a consequential legislative matter.

Democrats should reframe the voting rights debate as one in which Senators are in favor, or not, of the real filibuster and being against, or not, the pretend filibuster.

Senator Schumer and President Biden should privately discuss and propose restoration of the actual filibuster to Senators Sinema and Manchin. 

Senators Sinema and Manchin could take the lead publicly in restoring the Soul of the Senate, backed by Biden, if they have been sincere about their concern to preserve the filibuster for the future.  

Or, if the Senators refuse to commit to advancing voting rights this way , the Majority Leader could call for an on the record attempt to replace the pretend filibuster with the real filibuster.