The Tool That Joe Biden Refuses to Use

The president’s speech about the sanctity of the vote did not go far enough.

Joe Biden speaking at a podium.
Michelle Gustafson / Bloomberg / Getty

For all the passionate words President Joe Biden delivered in defense of voting rights in his speech yesterday, it was the one word he never mentioned that provoked the strongest response from civil-rights advocates: filibuster.

Nowhere in his remarks did Biden utter what may go down as the political word of the year. The Senate procedure known as the filibuster now stands as the insuperable obstacle to the new federal voting-rights legislation that represents Democrats’ best chance to counter the restrictive voting laws proliferating in red states.

Biden’s refusal to call for changes to the filibuster—or even to promise greater personal involvement in passing voting-rights legislation—reinforced the long-standing concern of many advocates that he remains more personally engaged in passing his economic plans, particularly a bipartisan infrastructure deal, than in countering the red-state offensive against voter access.

Beto O’Rourke of Texas, the state now at the epicenter of the voting-rights struggle, told me the speech was “forceful” in how it “connected the dots” between the red-state laws and former President Donald Trump’s disproven claims of fraud, and also “unsparing” in characterizing this moment “as the greatest threat to democracy since the Civil War.” But, in a common complaint among the activists I spoke with, O’Rourke, who ran high-profile campaigns for both a Texas Senate seat and the presidency, added that Biden “didn’t mention the filibuster or even hint at the political courage needed to meet this moment and overcome this challenge.”

LaTosha Brown, a co-founder of Black Voters Matter, had a similar reaction. While “the speech was stronger than I thought,” she told me, the fact that Biden never addressed the filibuster raised questions to her about whether he recognizes the gravity of the current challenge, despite his strong words at several points.

“When you are at war, you have to know that you are at war,” she said. “And we are in wartime as it relates to democracy right now.” Biden’s remarks might have been “a landmark speech at a different time,” she said, but she believes he missed an opportunity to acknowledge that today’s “extraordinary circumstances … will require all of us to move out of our comfort zone, including him. He has to be willing to shift his idea of what it takes to get things done.”

If anything, the speech underscored why the intensely partisan, highly racialized battle over voting rights is a difficult issue for Biden politically. The struggle conflicts with the broader political positioning that he and his staff have pursued since he’s taken office. Biden has limited his personal engagement with cultural issues (such as immigration reform and LGBTQ rights) and has focused instead on kitchen-table economic concerns—checks in the pocket, shots in the arm, and more recently, shovels in the ground. As has been the case with the earlier stages of his career, he has stressed his determination to work with Republicans.

The bipartisan infrastructure bill represents the sweet spot for those two priorities: a tangible lunch-bucket initiative that allowed him to slap Republican senators on the back when they emerged from the White House together. Voting rights is almost at the opposite end of that spectrum; it starkly divides the parties and has become a symbol for the larger struggle for power between a racially diverse and urbanized Democratic coalition and a GOP coalition centered on noncollege and non-urban white voters. It’s dissonant for Biden to acknowledge that the GOP is radicalizing on voting and democracy while he’s effectively normalizing the party by seeking agreements with it so ardently. (Even in his speech, he implored “my Republican friends” to rally against the voting restrictions that virtually every GOP state legislator in the affected states has voted for.)

Advocates don’t doubt Biden’s personal commitment to the voting-rights cause or whether he believes, as he said yesterday, that the combination of new red-state laws, the January 6 insurrection, and the widespread GOP embrace of Trump’s Big Lie conspiracy theory constitutes “the most significant test of our democracy since the Civil War.” (Biden seemed especially worked up in his speech about the laws that Republicans are advancing in states like Georgia, shifting authority for vote-counting from election administrators to GOP state officials.)

The concern among voting-rights groups is that Biden has devoted far more time, energy, and political capital to lobbying members of Congress and selling the public on his economic plans, particularly the bipartisan infrastructure bill. “The reality is, to this day, the infrastructure bill has been his No. 1 priority, and the voting-rights bill has not been a priority,” says Fred Wertheimer, the longtime government-reform advocate and president of Democracy 21.

That relative emphasis on infrastructure over voting rights may reflect several calculations in the White House. One is the belief, as officials have described to me, that the best way for Biden to prevent Republicans from stealing future elections is for Democrats to maintain control of the House and Senate in 2022—and the best way to ensure that is for him to pass the bread-and-butter agenda he ran on (which includes, in their view, working with Republicans).

Others see in Biden’s approach an implicit acknowledgment that he is highly unlikely to persuade the Democratic holdouts—led by Senator Joe Manchin of West Virginia and Senator Kyrsten Sinema of Arizona—to change the Senate filibuster, the necessary precondition to passing any new federal voting-rights legislation. By that analysis, the White House is modulating Biden’s engagement in a fight that he is very unlikely to win. “I believe they have decided that Manchin, and maybe others, are unmovable on the filibuster, and if they are unmovable, let’s focus on what we can do and not beat our heads against a wall that is simply never going to crack,” Matt Bennett, the executive vice president for public affairs at the centrist Democratic group Third Way, told me.

A third possible factor in the White House ranking may be the most confounding to voting-rights groups. In his speech yesterday, Biden, like Vice President Kamala Harris in an address last week, seemed to suggest that Democrats could overcome the recent red-state moves with sufficient on-the-ground organizing. A top White House official had first made that argument to me in May in response to the initial wave of criticism from civil- and voting-rights groups that the administration was not adequately engaged in this fight.

The repeated White House suggestion that voters—particularly voters of color—can overcome these restrictive laws with more effort has infuriated many civil-rights activists. They say it deflects responsibility from the real issue: whether Biden and Senate Democratic leaders are making enough of an effort to pass a new floor of federal voting rights. Cliff Albright, a co-founder of Black Voters Matter, expressed that discontent most sharply in a recent tweet: “Don’t come relying on activists to out-organize voter suppression to compensate for your legislative failures. This ain’t The Green Mile or Bagger Vance and we are NOT your magical negroes—covering up your mediocrity, lukewarm support & broken promises.”

In less pointed language, O’Rourke agreed that grassroots activists cannot overcome the obstacles to voting that red-state Republicans are erecting. “This is not something we can organize our way out of,” he told me. “You couldn’t ask the civil-rights and voting-rights leaders in 1964 to organize their way out of voter-suppression laws that existed in Mississippi and Georgia and Texas at the time. You needed federal legislation.”

O’Rourke, like others, worries that the focus on organizing is not only misguided, but also counterproductive, because it could allow the Democratic senators hesitant about changing the filibuster to argue that the state laws are not, in fact, a threat of the magnitude that would justify such a difficult step. “What I’m afraid Biden did is he just gave reluctant senators a permission slip for Senate inaction,” Eli Zupnick, a spokesperson for Fix Our Senate, a liberal group pushing to end the filibuster, told me immediately after the speech. “If you want legislation to pass, you focus on what is needed that can’t be done without legislation. If you want to make an excuse for why legislation won’t pass, you talk about all the things you are doing beyond legislation.”

Biden’s speech came at a precarious moment for the Democrats’ voting-rights legislation. In mid-August, the Census Bureau is scheduled to send out population data that the states use for redistricting; the fear among Democrats is that key states with Republican-controlled legislatures, including Florida, Georgia, and Texas, will move as quickly as possible after that to draw new lines for congressional districts.

The GOP’s goal, Democrats believe, will be to lock in new districts that favor Republicans—and improve their odds of recapturing the House in 2022—before congressional Democrats can pass new constraints on such gerrymandering in any voting-rights bill. Party strategists worry that if red states finish the districts before Biden signs any voting-rights bill, this Supreme Court is highly likely to rule that new standards for drawing the seats can’t be applied retroactively. (Some voting-rights advocates considered it a worrisome sign that Biden, in his speech, didn’t cite that mid-August deadline—or any deadline—for passing voting-rights legislation.)

Other events are heightening pressure on congressional Democrats. The late-June ruling by the six GOP-appointed Supreme Court justices further weakening the Voting Rights Act diminished the odds that the Justice Department or civil-rights groups can block these new state laws in court. And when Texas Democratic state legislators traveled en masse to Washington on Monday—to deny Republicans a quorum to pass a restrictive voting bill there—they underscored how few options Democrats have to block these laws in red states.

With the Democratic options narrowing, the one lever the party possesses is federal legislation establishing a nationwide floor of voting rights, including guaranteed access to early and mail voting, as well as automatic and same-day voter registration. After a Republican filibuster blocked Senate debate on such a bill last month, Democrats have been attempting to negotiate a scaled-down version of the legislation based on the principles that Manchin indicated last month he could support.

One source familiar with the discussions said progress has slowed in recent days because Manchin remains preoccupied by trying to complete the bipartisan infrastructure deal. Still, most voting-reform advocates remain optimistic that Manchin and other Democrats—including House sponsors of the bill—eventually will reach an agreement on legislation that all Senate Democrats can endorse.

But no one can say for sure whether Manchin, Sinema, or any other hesitant Senate Democrats will agree to some exemption to the filibuster for voting rights if Republicans block that compromise too. The one thing of which advocates are certain is that the Democratic holdouts are highly unlikely to act against the filibuster unless Biden, in public or private, shows much more urgency about doing so than he displayed in his otherwise forceful remarks yesterday. Until Biden confronts the filibuster, his words will ring hollow for many on the front line of this fight.

“People can stomach a loss when they know that you have given everything in the fight,” Brown, of Black Voters Matter, said. “But we will not be satisfied until we see that he is willing to use every single tool that is available to him. This country has gone to war in the name of democracy … so why should we expect anything less urgent, anything less intense, now?”