The Constitutionality and Practicality of Voting Rights Legislation Under a Filibuster Exception

Senators like Mark Warner are proposing a small carve-out around the filibuster to pass crucial voting rights legislation. However, the argument that such legislation would face constitutional issues is misguided and self-serving. This article explores why the filibuster is a Senate rule and why changing it would not pose any constitutional problems.

Understanding the Filibuster: A Senate Rule

The filibuster is a Senate rule that can be changed by a majority vote. It has no constitutional backing and can be altered or abolished at any time. This means that any change to the filibuster, including a carve-out to protect voting rights legislation, would be a simple procedural adjustment. Senators like Mark Warner propose a carve-out, suggesting that such legislation would need a special exception. However, this is unnecessary and contradictory.

Procedural Rules and Constitutional Flexibility

Under Article I, Section 5 of the U.S. Constitution, each house of Congress has the power to set its own procedural rules. This power includes the ability to establish and change the filibuster. Hence, no Senate rule, including the filibuster, is beyond the reach of amendment or elimination.

The Political and Legal Landscape of Voting Rights Legislation

Although any voting rights legislation is likely to face significant legal challenges, particularly from GOP-packed courts, the filibuster is not a component of these challenges. The Senate has the authority to change its rules, and this power is explicitly granted by the Constitution. Therefore, any attempt to change the filibuster to facilitate voting rights legislation would not trigger constitutional concerns.

Historical Context: The Voting Rights Act and Its Challenges

Historically, the Voting Rights Act (VRA) has faced numerous challenges. The original VRA, which was comprehensive in protecting voting rights, survived for five decades before the Supreme Court made changes. The Roberts Court's interpretation of the VRA allowed states with a history of discrimination to limit voting rights, often under the guise of "voter fraud." This is an issue that judicial systems and the Senate must be vigilant about. However, it does not mean that the current VRA, if enacted, would face insurmountable legal obstacles. The Senate's ability to change its rules to pass such legislation remains valid.

Conclusion: The Senate's Power to Change Its Rules

In conclusion, changing the filibuster to pass voting rights legislation is a constitutional and practical option. The Senate possesses the authority to make its own procedural rules, and these rules can be altered or abolished with a simple majority vote. The filibuster is not a constitutional requirement but a Senate rule, making any carve-out or change a straightforward procedural matter without raising constitutional concerns. As such, the argument that such legislation would be constitutionally problematic is unsubstantiated and counterproductive.