By Michael Feinstein
Jan 13, 2022
This Opinion is reposted from the West Virginia Charleston Gazette:
The U.S. Senate is expected to vote soon on the Freedom to Vote Act, in response to increasing restrictions upon voting rights passed by Republican-controlled state legislatures. In 2021, at least 19 states passed 34 laws restricting access to voting. Over 100 more such bills are scheduled to be heard in 2022.
The Freedom to Vote Act is a pared-down version of the Democrats’ For the People Act. The newer bill was negotiated by Sen. Joe Manchin, D-W.Va., to address his concerns. Manchin’s compromise legislation even includes a voter ID provision in the hope of gaining at least 10 Republican votes to avoid an unbreakable 60-vote filibuster.
But with no Republicans indicating they would support it, the Freedom to Vote Act can only pass if there is a change to the filibuster rule. Manchin has been visibly reluctant to consider any change. Unless he supports at least a filibuster “carve-out” for voting rights, the Freedom to Vote Act has no chance of being enacted into law in 2022.
In May 2021, Manchin wrote, “Protecting Americans’ access to democracy has not been a partisan issue for the past 56 years, and we must not allow it to become one now.”
Agreed — voting rights should be about what is good for people and country, not any political party. But Manchin also argues that passage of voting rights legislation needs to be bipartisan.
“Nonpartisan” and “bipartisan” are not the same. The former is an absence of political interest. The latter is a confluence of political interests.
In today’s deeply polarized environment, many politicians have concluded the easiest way to win elections is by reinforcing partisan divides, rather than passing bipartisan legislation. Instead of pushing parties to find common ground, the filibuster is weaponized by the minority to deny the majority achievements, in the hope it will swing the next election the minority’s way.
The Freedom to Vote Act contains desperately needed provisions to preempt new Republican state laws promoting partisan gerrymandering, voter suppression, partisan election certification and intimidation of voters and election administrators. The Republicans’ gambit is they have a better chance to win elections if these laws remain in place. Their lack of support for the Freedom to Vote Act is a natural consequence of our duopoly electoral system.
At the same time, the U.S. Constitution grants Congress the authority to “make or alter” state regulations regarding elections. Since the power invested in the legislature derives from “the consent of the governed” — if the governed are denied their say in electing the legislature, then no act of the legislature is valid. Upon that basis, protecting voting rights should be exempted from the filibuster.
But before making such a principled exemption, there remains a major ethical contradiction — the major parties’ own partisan self-interest in the bill’s campaign finance section.
The Freedom to Vote Act would terminate the Presidential Election Campaign Fund — a post-Watergate era reform meant to reduce big donor influence by providing alternate public funding for campaigns. Abandoned by major party nominees (because they can raise and spend more private money outside of it), the program’s public matching funds are critical to help minor party presidential candidates (and their parties) fund expensive petition drives to meet onerous ballot qualification requirements established by Democrats and Republicans — a use affirmed by the Federal Election Commission. In many states, a certain result for president is even required for minor parties to retain ballot status. Without these funds, minor parties would disappear in many states.
True freedom to vote includes the freedom to vote for whom you want. Party suppression is a form of voter suppression.
Instead of reducing voter choice, it’s time to move beyond bi-polar politics to a viable multi-party democracy, by enacting proportional representation elections from multi-seat districts, where voters and parties win representation according to the percentage of their vote.
But for now, no voting rights bill should be used to convey partisan electoral advantage — in this case, to a major party by depressing its minor party competition. A filibuster exemption supporting this would be hypocritical. If Manchin is to be consistent that voting rights legislation must be non-partisan, he must insist this partisan element of the Freedom to Vote Act be removed.
Michael Feinstein is a former mayor and city council member in Santa Monica, California, and a former co-chairman of the Green Party of the United States.