A view of Capitol Hill during heightened security concerns over possible protests or violence tomorrow March 3, 2021, in Washington, DC. - Washington's security posture has been bolstered after threats of a possible March 4, 2021, "breach" of the US Capitol, with the House of Representatives changing its voting plans to avoid gathering members on a day of potential unrest. (Photo by Brendan Smialowski / AFP) (Photo by BRENDAN SMIALOWSKI/AFP via Getty Images)
Rep. Sarbanes: Failure to pass HR 1 'would split our democracy in two'
03:18 - Source: CNN

Editor’s Note: Norman Eisen served as President Obama’s ethics czar and ambassador to the Czech Republic and was special impeachment counsel to the House Judiciary Committee for the first impeachment and trial of President Trump. Richard W. Painter was the chief ethics lawyer for President George W. Bush from February 2005 to July 2007 and is currently the S. Walter Richey Professor of Corporate Law at the University of Minnesota Law School. Jeffrey Mandell is the founder, president, and lead counsel of Law Forward, a nonprofit, nonpartisan law firm devoted to advancing democracy in Wisconsin. The opinions expressed here are their own. Read more opinion at CNN.

CNN  — 

Senators who vehemently defend the Senate’s 60-vote threshold for legislation are nonetheless about to accept a simple majority of 51 votes when they decide on the Covid-19 relief bill currently being debated. That paradox is made possible through an exception to the filibuster for fiscal measures known as “reconciliation.”

It’s time to craft another exception. Now that the landmark HR 1, the “For the People Act,” has passed the House and is headed for the Senate, the time has come for a parallel reconciliation exception for an even more fundamental category of legislation: the ethics, rule of law and fair election provisions that are central to our democratic republic.

Call it democracy reconciliation. Without it, we cannot fix what is broken in our elections and our government.

We start with the premise that voting protections, campaign finance limits and ethics rules for federal officials are all badly broken. The authors of this column include former White House ethics chiefs for President George W. Bush and for President Barack Obama. We watched (and spoke out) with horror during the past four years of attacks in all those areas by President Donald Trump, his cronies, and his enablers. They did great damage to a “government of the people, by the people, for the people.”

Voter suppression in particular has become the standard operating procedure of Republican political operatives and the candidates they support, with Trump’s Big Lie that the election was stolen inspiring 253 needless proposed bills in 43 states to end mail-in voting and otherwise suppress free and fair elections.

Making matters worse, the legislative options available to Congress for the big money that infects our politics are considerably narrowed by an activist Supreme Court. In the 2010 Citizens United case the court struck down key portions of a campaign finance reform bill passed 20 years ago and cosponsored by Senator and later Republican presidential nominee John McCain. The same lobbyists and corporations, even foreign-controlled ones, who fund this gusher of cash also exert undue influence over the government and poured vast amounts into the most recent ex-president’s political and business coffers.

HR 1 and its Senate version, S 1, will address these exact voting, campaign finance and ethics concerns. That is why Senate Minority Leader Mitch McConnell and members of his caucus have made clear their implacable opposition to the bill. Flimsy justifications about preserving the states’ prerogatives barely conceal what are clearly their real worries: that the reforms would dilute their political power, including the power of money in politics, and the power of Republican political operatives at the state and national level. As a lawyer for the Arizona GOP said when pressed at the Supreme Court this week about why the party was fighting a particular application of the Voting Rights Act: “because it puts us at a competitive disadvantage relative to Democrats. Politics is a zero-sum game.”

The original vision of the Republican Party in its earlier years, embodied in the 15th Amendment of the Constitution guaranteeing voting rights, is unfulfilled. Meanwhile, the minority digs their heels in, signaling they will filibuster any reform. The 60-vote threshold needed to break a filibuster is a substantial hurdle to these or other democracy reforms. There is no reason that this type of legislation should not be excepted from the filibuster, just as budgetary matters are under the majority vote of reconciliation.

While it is true that the government cannot function without appropriating public funds, ethics, rule of law and voting issues are even more foundational. They are the ground rules by which our leaders are chosen and regulated, our government is structured and our laws are made. The past decades have proven the budgetary reconciliation mechanism works for financial issues; it follows that such a mechanism can work for indispensable democracy matters as well. Variations on this idea have been advanced by scholars and senators alike.

Indeed, the Senate has already recognized that democracy issues are special by excepting voting and election legislation from the “unfunded mandate rule.” That rule prohibits federal legislation from imposing financial burdens on state and local governments without also offering aid to pay for those burdens. The practice of democracy should also get special treatment when it comes to any use of the filibuster against HR 1.

In contemplating this adjustment, we cannot escape the history of the filibuster. Although it was first developed by Vice President Aaron Burr, it was adapted by Southern Democrats starting in the first part of the 20th century to block efforts to address segregation. Its shameful taint of a bygone Jim Crow-era still lingers. There is poetic justice to creating a democracy exception to a tool that was used to frustrate democracy for so long.

To be sure, democracy reconciliation is not a guarantee of permanence. Even those bills passed through such a new mechanism could be repealed when Congressional control changes hands. But that is no simple matter, even when the stars align and there is unitary control of the White House and Congress by a party opposed to a law. History teaches us that landmark laws have staying power. The Civil Rights Act and the Voting Rights Act were hotly contested when passed yet have withstood the test of time. The democracy reforms in HR 1, if passed by the Senate and signed by the President, will likely be permanent.

Democracy reconciliation will not solve all of our nation’s challenges. Some may ask why democracy legislation should get this special treatment when other existential threats such as climate change do not? The Senate should toss out the filibuster for those matters as well. It is an anti-democratic relic, not enshrined in our Constitution, that has outlived its use. Indeed, the filibuster has already been abandoned for the appointment of justices, the last three justices of the Supreme Court being confirmed by thin margins in the Senate.

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But we recognize the reality that the votes for a wholesale abandonment of the filibuster for legislation are not yet there. Compromise is needed. If we must have one exception, let it be for the democratic norms upon which all else turns. If we can restore ethics, rule of law, and fair voting, our government will be more able to tackle other policy changes.

Democracy in America faces profound challenges – but good solutions are available if they can be passed. When it comes to budgets, reconciliation has worked for the Senate and for our nation for nearly half a century. Democracy reconciliation can work, too. We should block the filibuster of HR 1 and give democracy a chance.