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Voting Rights—This week on Rubicon, Brian Beutler talks to FiveThirtyEight senior writer Perry Bacon about the wave of voter suppression laws that are hitting states like Georgia—and what President Biden and the Department of Justice can do about it. They also talk about the biggest threats to HR1 and the John Lewis Voting Rights Act, looking beyond the filibuster to other ways Republicans are preparing to fight those bills—in both the court of public opinion and the regular kind.

Transcript

[clip of Norah O’Donnell] Joe Biden has been elected president of the United States . . . Joseph Robinette Biden at 77 years old.

[voice clip] I believe the whole country just took a sigh of relief.

[chant: Count Every Vote, Count Every Vote.]

man: They did they did: we won. [laughs].

[chant: USA USA USA]

[clip of Wolf Blitzer] Jon Ossoff, the Democratic candidate in Georgia, he is defeating David Perdue, the Republican candidate. Earlier, we projected that the Democrat, Raphael Warnock, will beat Kelly Loeffler. So the Democrats will be in the majority, the Republicans—

Brian Beutler: When Democrats won the 2020 election, a fight over voting rights—democracy reform—became inevitable. Donald Trump exposed and underscored all kinds of undemocratic aspects of America’s system of government: voter suppression, corruption, disenfranchisement, partisan gerrymandering, the Electoral College, the rules and structure of the U.S. Senate—but the imperative to shore-up democracy wasn’t fated to be the kind of emergency Democrats faced today, just weeks into Joe Biden’s presidency. Republicans could have accepted the results of the election gracefully, and overseen a peaceful transition of power. They could have responded to defeat by retooling their agenda to appeal to a majority of voters. Instead, they went to war against free and fair elections themselves.

[reporter] Nine new election bills were introduced in the state Senate today, all of them coming from Republicans. Those leaders wanting to restrict absentee ballots and curb voter registration, among other things.

Brian Beutler: Rather than condemn Trump’s efforts to steal a second term, they introduced bills at the state level aimed at assuring that the next Republican candidate might succeed where Trump failed. In Georgia, they passed a new law aimed at both making it harder for Democratic voters—disproportionately Black voters—to cast ballots, and easier for Republican officials to toss out those ballots and overturn elections. As if to put a fine point on what the bill’s purpose is, Governor Brian Kemp signed it behind closed doors at the state capitol, surrounded by a throng of white Republicans, with the image of a slave plantation decorating the wall behind them. While on the other side of those doors, state police forcibly arrested a Black Democratic lawmaker for knocking on them, and trying to bear witness to the ceremony.

[voice] Under arrest for what? For trying to see something that our governor is doing? What is she in violation of? I want you to sign the code. Cite the code! Cite it!

Brian Beutler: All of which is to say democracy reform, stopping just about fixing long-standing deficiencies in the system, and became additionally about stopping Republicans from stealing future elections, and establishing a 21st century Jim Crow before it takes root. We’ve talked a lot about the For the People Act and the John Lewis Voting Rights Act on the show, but here’s what Biden had to say about why they’re so necessary at his first White House press conference:

[clip of President Biden] Well, I’m worried about is how un-American this whole initiative is. It’s sick. It’s sick. And it cannot be sustained and I’m going to do everything in my power, along with my friends in the House and the Senate, to keep that from uh, from becoming the law.

Brian Beutler: That’s about as forceful a statement as Biden has made about anything. But stopping these bills will require equally forceful action: getting his A-team confirmed at the Justice Department, abolishing or reforming the filibuster, passing new legislation that we should assume every single Republican will oppose. The good news for Democrats is that for now, anyhow, democracy reform is popular. But Republicans will do whatever they can to make it unpopular, or at least to polarize the country around it, the way they’ve done with the other pressing civil rights issues of our time. What will Democrats do then? My guest this week is Perry Bacon, senior writer for FiveThirtyEight. He joined us to discuss why the new law in Georgia and other laws like it are so important and so wrong, even if they don’t ultimately succeed at manipulating future elections. I’m Brian Beutler. Welcome to Rubicon.

Brian Beutler: All right, great to have you on the show.

Perry Bacon: Thanks for having me.

Brian Beutler: So you wrote an article last week called “Why Georgia’s New Voting Law is Such a Big Deal.” The whole thing is great, but I wanted to zoom in for a second on this one line. You wrote: even if the law does take effect, it’s hard to say exactly how this would affect the Republican and Democratic electoral prospects in Georgia. It seems clearly designed to make it harder for Democratic-leaning voters to exercise that right. But Democrats might still be able to win, so we don’t know exactly what this law will mean in an electoral sense.”

Perry Bacon: Yeah, well, I mean, so I guess part of the reason why I wrote that was from 2010 to like 2017 or ’18, you had voter ID laws passed and a lot of states, and what you’d find is the academic studies were not particularly conclusive. And it looks like if you pass the voter ID law, you know, and you have pretty organized civil rights groups in state X, you can often make sure people get IDs and so on. So voter I.D. specifically has not necessarily been found to suppress or stop that many votes. But on some level, changing law like, you know, the way North Carolina looked to find out what IDs it would be hard for Black people particular to get, and then pass a law is not an ideal law even if we don’t know the effects. Like these things can be hard. All these bills are complicated. All of them have a lot of elements in them. The people on the ground in Georgia who try to turn out Democratic voters work really hard at them, and they sort of overcome a lot of challenges already. So I don’t, I’m not necessarily going to say Democrats can’t win an election in Georgia after this, because I’m not really sure, I’m not sure the question is that important. I mean, at least at least for me right now, the Democrats win an election, the Republican president says it was unfair, tries to overturn i, they have a runoff, a plurality of Black people elect a Black senator for one of the first times in Georgia—the response is not look at how historic this is or the Republicans trying to figure out how do we gain new Black voters, but how do we stop the process, change the process?

[Brian Williams clip] The new law introduces a raft of new restrictions for voting and elections in the state, including making it a crime to offer food or water to voters waiting in lines.

Perry Bacon: That’s not good in a sort of democratic, small D sense, no matter what the effects on the parties are.

Brian Beutler: Right. So there’s this sort of savvy school of thought among election analysts that Democrats shouldn’t really sweat voter suppression efforts so much, for precisely the reason you say because they can backfire: if people rebel against them, get organized and surmount the obstacles to voting. And so that maybe the Georgia law was just self-defeating in that sense. But if you set aside the moral dimensions of that take, I kind of read the implication of your view to be that they’re wrong to be confident about that, but they might turn out to be right.

Perry Bacon: So the “you can’t give people water” is heinous and bad, but actually, I’m not sure how much it will matter. What I think is the really potentially heinous part is the law seems pretty well to set up a process by which the state board of Elections can kind of override the decisions of local election boards. And that, to me, gets into questions of like: if we ran last year’s election but the state election board, which is controlled by Republicans and I’m guessing can be controlled by Republicans who are more conservative or more on the team than the Secretary of State was willing to be—that’s the thing that I worry about is we’re having disputes about the count or anything else and Fulton County or one of the more Democratic leaning counties is overruled, you know, their decisions are all overruled by the state. That’s where it becomes really easy for a close race to become one that Republicans win. So I very much think this could change the results in a race especially one that’s close.

Brian Beutler: Yeah, that’s interesting because, right, like we could all kind of talk about like, “will Democrats be able to counter-mobilize more than the the effect of the suppression law itself?” There’s a novel element to this bill, which is that even if Democrats respond to the law by organizing, mobilizing an outvoting Republicans, Republicans have inserted a kind of tripwire in there that allows them to say: well, we’re going to throw out the results anyway if we deem it to be too close or nevertheless suspect.

Perry Bacon: Yeah, if there are 3,000 votes in Fulton County that seem like they should be counted but the Republican view it is a close election, you can imagine how that’s going to go if it goes to the state board. Iowa just passed a similar law. You know, we’ve had this long trend in states where Democratic-led cities or counties pass laws and they’re preempted at the state level. So no city in the south can pass a minimum wage increase because the state has banned that. So we basically now have preemption of voting procedures, where the states of Georgia and Iowa have now given themselves the power—again, if Raphael Warnock wins by seven points, you’re not going to be able to change that—but it’s a sort of a fail-safe. They now have a little bit more control of the process than they did before.

Brian Beutler: If this law had been in effect during the January six runoff, we can’t say for certain that Ossoff and Warnock would be senators today.

Perry Bacon: This is my view of it. Yes.

Brian Beutler: OK. Well, so that’s a very stark view.

Perry Bacon: Right.

Brian Beutler: So the other thing that struck me about that line of your piece is what it implies about how we should gauge the reaction to the bill. You’re saying that since the mechanics of this law, whether it will accomplish its goal of reducing Democratic voters—sure, can’t be known in advance. I feel like that leaves the only valid dimension upon which to analyze it are abstract things, like: is it constitutional? Is it moral? Is it consistent with life in a democratic society? Is that is that fair?

Perry Bacon: I’m not saying people shouldn’t evaluate on electoral terms, what I was saying was the law passed on a Thursday. I wrote a piece on a Friday. So I’m not exactly super confident of my ability to predict. I think people should do pieces that analyze the effects, the electoral—I just think that’s the not the only way to look at these. I just think we’re, I mean, I don’t think it’s a partisan statement to say I generally want to see it easier than harder to vote. It’s disconcerting to see high turnout in Georgia that results in a Black senator being elected—that’s a historic thing, we only have three Black senators in a country with 30, 32% of people are Black—like this is a historic change and the result seems to be to say, in other words, like the—the passage of this law basically validated the Big Lie, and sort of put Trump’s sort of language in. Like even though Georgia officially rejected what Trump did in terms of certifying the election for Biden, in reality, two months later they passed a law that basically said: well, there were a lot of things that people were concerned about, and we’re going to pass a law to address things. And it implies that there was fraudulent voting. It implies somehow Biden and Warnock and Ossoff didn’t actually win. So it’s a very questionable democratic, small D decision.

Brian Beutler: Right? Well, I guess what I mean is I’ve seen at least a few reporters and pundits argue, you know, neither party is operating from principle here. Democrats are operating in their partisan self-interest just as much as Republicans are. But I think that, again, kind of presumes that the future is knowable. Right? And if it isn’t knowable, then the most non-judgmental thing we can say is—I think what you’re getting at—is that one party is sort of throwing in for letting eligible citizens vote, chips fall where they may, and the other is trying to kind of manufacture an electorate that it thinks will maximize its chances of winning. What is your sense of how Joe Biden and Democrats have responded so far, like what is in their power to do about it? What have they actually done, and has any of it surprised you?

Perry Bacon: So to be honest, I was a little surprised that, you know, itn his big press conference Biden used a pretty aggressive statement, invoked the idea of Jim Crow. He used the language that you’re seeing the civil rights leaders, voting rights experts like Ari Berman and Stacy Abrams and people who have been leading on this issue have been using. So I was surprised that he really went there on the policy. So the question is: what can they do about it? So I think initially you’re seeing lawsuits happen.

[news clip] Tonight, a second federal lawsuit has been filed in response to those sweeping new voter restrictions signed into law by Governor Kemp last week. Several advocacy groups, including the Georgia NAACP and the Georgia League of Women Voters are looking to block the changes made by Senate bill—

Perry Bacon: Biden hinted the DOJ might get involved. Kristen Clarke is the nominee to run the DOJ Civil Rights Division and then Vanita Gupta is going to be a, I think, the number three official at DOJ overall and she ran civil rights in the Obama administration. So Biden has two people who have sort of spent like, you know, the last decade in these voting rights fights. They’re going to be very involved. I would assume that once they, once they’re up and running, their DOJ is going to join some of these lawsuits, putting the government on the side of the, on the side of voting rights advocates in states like Texas, Georgia. So that’s the part where the Biden team is going to be involved. The other question, of course, is what does the Senate do? And that gets to this in the question about H.R.1, which would either stop these laws from passing or sort of override some of them in a certain way.

Brian Beutler [narrating]: Loosely speaking, Democrats have split democracy reform into two bills. H.R.1, also called the For the People Act, is a sweeping measure that would bring us closer to the “one person, one vote” principle on many fronts: by expanding and facilitating ballot access, reforming the campaign finance system, ending partisan gerrymandering, requiring more disclosure from federal officers, and adding new states to the union. H.R.4, also known as the John Lewis Act, would repair the damage to the Roberts Court did to the Voting Rights Act by establishing new requirements governing when state and local jurisdictions have to get sign-off from the Justice Department for new voting-related laws, like the one that just passed in Georgia. Neither of these bills can pass, though, unless Democrats get rid of the filibuster.

Perry Bacon: I mean, to put this bluntly, it looks to me like does Joe Manchin prioritize voting rights for people in Georgia, or his friendship with Susan Collins? And this is actually a very harsh way to put it but I think those actually are some of the issues at play here. My impression is the Ron Klain strategy was to delay the question about the filibuster until it was about policy, but instead it’s been about these sort of technical issues where it’s like: do you support majority or minority rule? And I think Manchin is bipartisan. My sense was Biden the whole time was planning to give a speech in like June and July being like: I’m for the filibuster, I respect the minority rules, but the Republicans have forced me through their, you know, their intransigence to change my position. And then I think he’s always wants to be sort of a reluctant filibuster reformer as opposed to a enthusiastic one. So I don’t think Biden’s strategy is changing that much, and I think his strategy may be a pretty good one.

Brian Beutler: It’s kind of interesting to conceive of what happened in Georgia as sort of accelerating the timeline—

Perry Bacon: Right.

Brian Beutler: —upon which Democrats were going to get to this question anyway. They just wanted to do it on sort of less abstract grounds, you know. Right? Like they’re blocking the minimum wage and so we’re going to steamroll them versus we’re down having an abstract conversation about like: what does minority rights mean?

Perry Bacon: I wrote a long piece about this whole filibuster fight in February. One thing I missed, it seems obvious now, is the whole strategy about we’re going to have a series of bills in June and July, but the voting rights fight was going to happen in the states from January to April because that’s when state legislatures meet. So it’s now, I think, I’m not even sure Manchin or Ron Klain or Biden thought about the fact that state legislators were going to be passing really aggressive voting laws in this early period. So the fight has sort of pushed up. I don’t think Joe Manchin is like Mr. Civil Rights. I also don’t think he necessarily thought in April he would have the new Black senator basically calling him out from the Senate floor either.

[clip of Sen. Raphael Warnock] It is a contradiction to say we must protect minority rights in the Senate while refusing to protect minority rights in the society . . .

Perry Bacon: Like I think you’ve seen, like the sharpest criticisms of Manchin have been from Clyburn and from Warnock.

[clip of Rep. James Clyburn] It’s going to be very difficult. No matter how you look at it, you’ve got to get 51 votes, and we do have some difficulty with some of the members as it relates to getting rid of the filibuster. But you know, it would be catastrophic consequences for the John Lewis Voting Rights Act to die at the altar of the filibuster.

Perry Bacon: I don’t know that Joe Manchin—and I don’t talk to Joe Manchin that much—but I’m not sure he reads the news in Georgia that carefully. But I wonder if this sort of snuck up on him too a little bit. Is like: now my defense of the filibuster seems like I’m aligning myself with people who want to deny Black people water in lines to vote.

Brian Beutler: Coming up, what can Biden’s Department of Justice do about the wave of voter suppression bills in states like Georgia? And what happens when these bills inevitably get to the Supreme Court? When we return.

[ad break]

Brian Beutler: Welcome back to Rubicon. My guest is FiveThirtyEight senior writer Perry Bacon. We’re talking about the levers President Biden and Senate Democrats have in their reach to strengthen civil rights laws and blunt the recent actions by Republicans to restrict voting access.

Brian Beutler: So we talked about the bully pulpit, the filibuster, the legislative response to voter suppression. The third leg you mentioned is the law enforcement power. Biden’s team is Merrick Garland, Lisa Monaco, Vanita Gupta with, as you said, Kristen Clarke nominated to run the Civil Rights Division. I think voting rights advocates are pretty happy with that team. But I think the implication of the fact that you need the John Lewis act to restore the preclearance requirement is that there’s nothing immediately stopping the Georgia law from taking effect right away. I mean, it is the law there now. What can even like this sort of dream team of civil rights litigators do besides join a lawsuit, file lawsuit, and hope that the same judiciary kind of sees it a different way.

Perry Bacon: So, not much. I think they’re going to be joining a lot of lawsuits, is my sense.  Mark Elias on some level is the most important person.

Brian Beutler [narrating]: Hey, it’s me breaking in early, in case you missed who Mark Elias’s over the winter. He’s the super-lawyer who leads most high-profile Democratic litigation over voting rights laws and ballot challenges, and who cleaned the GOP’s clock when they were trying to overturn the 2020 election. He’ll be a key player as Democrats try to blunt the impact of new voter suppression laws. But his kryptonite may be the fact that Trump littered the federal judiciary with loyal Republican judges.

Perry Bacon: So what I think is interesting here is: has the judiciary changed on these issues would be my question. And so I would say this in sort of three different ways. The first is: Trump appointing a lot of people who are, in my view, Republican-party judges in a way that even the median Bush Reagan appointee was not. Like you have some people who worked on the Republican voting rights agenda, who wrote voter ID laws, now on the bench. They are on the Republican team on voter laws. They’re not, they’re going to defend every Republican law on voting. So you have that group that is there. So you’re going to see, at the lower levels to be really hard for the Democrats to win some of these cases. You then, but then at the same time have—John Roberts is a man—my impression is—pretty invested in his sense of his own intelligence and his own wisdom and so on. His opinions in which he said that we don’t have these problems of voting laws anymore, seem kind of stupid now. So I’m guessing Roberts, Kavanaugh, like, I like these sort of George Bush, George W. Bush-style Republicans that are on the Supreme Court, I think that they might be looking at these laws a little differently than they would have 10 years ago, and be more open to the idea that there is some mal-intent at the center of them. So if you’re, so my sense is if you’re Democrats found these losses, what you’re hoping for is that you get certain parts of these things struck down that are the most extreme parts. Like Lindsey Graham was on TV the other day, he wasn’t comfortable defending the water thing himself.

[clip of Chris Wallace] Senator, why on earth, if Americans are willing to wait an hours to vote, would you make it a crime for people to come and give them a bottle of water?

[clip of Lindsey Graham] Well we, uh, all I can say is, that that doesn’t make a whole lot of sense to me. I agree with you there.

Perry Bacon: The water thing is not very powerful, but it’s like a small part of it. So I think the question might be, if you get—and, I assume the Republicans have written these bills thinking this, that if we have 15 things in this bill, if four of them get struck down by the courts, that gives the courts a way to look reasonable but still gives us the 11 things we still have. And that’s what I would kind of look for, is like a Roberts and Kavanaugh are sort of, you know, country-club Republicans who don’t want to be perceived as being racist, and I think that’s the real opening for the Democrats in terms of the legal issues here.

Brian Beutler: Yeah, that’s interesting that the legacy of the provision saying you can’t give water to people standing in line, might be that it colors the whole law—that no law that has that provision, even if it doesn’t have much of an effect, any law that has that provision in it will be viewed widely, I think as malign in some respects. Right? And that leaves it to judges to decide whether they want to be seen upholding a law that contains that provision. And from there, like, can they, can they avoid the stink of it simply by severing out those kinds of provisions that look so bad?

Perry Bacon: I’ll be curious, and I haven’t seen this, I have not seen any polls of this Georgia law, but it strikes me as the kind of law that would get national attention and where all Democrats would oppose it, some Republicans would defend it, but other Republicans would be sort of neutral on it because it’s not that obvious, the water thing is the most famous provision so who wants to defend that? So my guess is this doesn’t poll well. Which again, John Roberts seems quite a—he’s no longer the swing justice, Kavanaugh is—but they both seem somewhat aware of like kind of where public opinion is, so I don’t think they’re going to be eager to defend the water provision. But I think, like I said, the important part of this law is the, you know, the state government being able to sort of pre-empty the local election boards. And I’m having a hard time seeing that being struck down by the courts, if only because if you flip it around, you can imagine a scenario where a person like me would support the state overturning the local election board’s decisions if the local election board was trying to stop Black people from voting and the state one was trying to make it easier. Because your position on this inevitably depends on, a little bit on, whether you think a pro-voting position is the right position, and that has a partisan lens in this environment. And so I’m not sure how easy it’ll be for the Supreme Court to take a position like this. Because there’s no, there’s not necessarily a clear position that voting law should be federal or state or local. The position that a lot of people are taking instead are that voting should be made easier. I like the position. I grew the position, but I’m not sure the Roberts court is going to come up with that position itself, as opposed to a more technocratic solution that sort of is a compromise of sorts.

Brian Beutler: Yeah, although it is sort of funny, right? Like the whole notion that election law is a state issue is something Republicans like to say, which falsely say, like voting rights is also a federal issue. But the reason they give is that, you know, state governments are closer to the people than the federal government. And like where do they take that logic when they’re trying to usurp power from the local boards that actually oversee elections and individual precincts. Like: psych, we don’t really believe that after all. I mean, I don’t know how it’s going to factor into how they argue the case in court but it just seems like if your argument against a federal effort to overturn a state election law is that state law should prevail because it’s closer to the people, then what if that state law is saying that the part that’s closest to the people, we have to be able to supersede them?

Perry Bacon: The one argument they’ve been giving, I think in the last—there was a voting rights case in front of the Supreme Court in February, and it was in Arizona, and the Republican lawyer’s position was basically the one thing the Republican lawyers are doing that is smart is that they’re saying that: these laws hurt Democrats, they don’t hurt Black people specifically or Latinos specifically, they hurt Democrats. A part of the issue that I think is really going to be at play here is since the Democrats are the party of Black people and Latinos, obviously those things are related, but if the court defends these laws, they’re likely to say that: the Republicans are allowed to pass laws that help Republicans and hurt Democrats, and if those laws have a racial effect, meh, that’s just part of it. So if you, I think you’re likely to hear the Republicans suggest to some extent, these laws hurt Atlanta-area voters, not Black voters, and those are the same people in some cases. But, yes. And in fact, that actually is sort of true. I’ve been reading that Heather McGhee book, The Sum of Us, about how racism tends to hurt white people, too, and it is probably, it is likely true that the changes in Georgia laws that are intended to make it hard for Democrats to vote probably will make it harder in some cases for white people, Black people and Republicans to vote, too. That it probably is actually true.

Brian Beutler: Yeah, but how do you—this idea that race-based voting restrictions are prohibited but partisan voting restrictions aren’t, how does that fly in an era where political polarization has made it so that you have one multicultural party, multiracial party, and one that’s overwhelmingly white? Like if you happen to be living in a time when that’s the case, then partisan restrictions on voting are inherently racist or inherently racial anyway.

Perry Bacon: That seems sort of obvious to me, particularly in a state like Georgia where everything is racial and where the—I think the vote in Georgia was close to majority Black, was the Democratic electorate and majority Black. It’s like heavily, it’s more Black than it is white, because that’s how—and the Georgia Republicans are almost all white. So like if you took a law in Iowa or Arizona, that’s a little bit different because the demographics are not exactly the same, but Georgia’s hard to argue that a law making it harder for Democrats to vote would not make it harder for Black people to vote because those are the same people. So I don’t know how you—this, yeah again, I think it’s sort of obvious that in this environment, voting laws are racial, but I’m not, but John Roberts and Brat Kavanaugh may not agree with me.

Brian Beutler: [laughs] All right. So Biden and Democrats seem to be responding with, I guess, proportionate alarm to the threat to voting rights posed by the Georgia law and other bills that will probably soon become law in other states. But there’s a broader context here that I think we have to mention. One part of it is that protecting democracy is pretty popular in the abstract. I don’t know what the polling says about the Georgia law, but I know that the For the People Act polls pretty well. So Democrats aren’t really out on much of a political limb protecting voters, overwhelmingly voters of color, from voting rights restrictions. The other part of it is that voting rights isn’t the only civil rights issue the country faces right now. There’s still a mass uprising against police brutality. There’s a backlash to that. There’s scapegoating of immigrants. And I wonder if you see a difference between how Biden and Democrats have responded to the voting rights threat versus the bigger picture of threats to civil rights.

Perry Bacon: So they’ve been pretty up front in dealing with this. Seems like they view the voting rights issue as one where they’re on pretty safe ground politically, like there’s no risk. Like when he invoked the idea of Jim Crow, it’s like, oh, you know, he sort of went there and he used that direct language. He used language Obama often avoided as president about describing Republicans. But the implication obviously is Republicans, some Republicans, are being racist. So he didn’t use the word racist, but he’s definitely been much more aggressive about making those kinds of remarks in that context. And most the Democratic Party has been pretty aggressive about suggesting that Republican officials, not necessarily Republican voters, Republican officials are being racist about voting laws. Now, outside of that, I think is a little harder, because on the policing issues based on the polls for voters is: I don’t support defund the police, I also don’t want the police to be too mean to Black people. So what the sort of policy looks like, they have the bill that they passed, the George Floyd Act that bans police from chokeholds and increases training and so on. That’s like a bill that both is probably popular but also probably doesn’t address the problem, is what the people who work on policing would say. So the policing, it’s not clear that there’s a easy solution on policing that activists say would actually help the problem but it’s also politically popular. On immigration, I would say, for example, the activist positions: you’ve got to really reform ICE, change ICE, you should be more humane to people trying to come into the country—those positions are a little less popular. A little of the polling is mixed. Obviously, “do not separate children from their families” is popular. I think, you know, giving people on DACA the ability to stay in the country and not be deported: popular, I think a path to citizenship is actually pretty popular. So it’s not as if everything’s unpopular. But I think the voting rights issue has the very, the Democratic position is popular. The Republican position is not popular. And there are clear legislative policy solutions that Democrats can embrace—you know, filibuster aside—in a way that I think other civil rights issues don’t necessarily fall into that same—well, I should say, like the Equality Act. I think generally provisions in which you say LGBT people should not be discriminated against are actually extremely popular. You know, and that’s the place where the Republicans are in a bad place too. The Equality Act would pass, it would pass overwhelmingly and it’s not something you’re going to see the average Republican criticize too much. It’s hard for me to imagine that they’ll be able to make the For the People Act unpopular. Or like: should there be early voting for three weeks? Look, it’s hard for me to imagine they’re going to make that unpopular. So what I think is more likely is they will drive up opposition among Republicans. Like, so the right now—I haven’t seen all the polling on the For the People Act specifically—the language there they’ve settled on is: this is a power grab by the federal government so Democrats can control elections. My guess is power grab, democrats will make sure—like what you saw in the summer was the, at some point Republicans were able to increase the opposition to Black Lives Matter among Republicans. Like the majority or plurality of Americans still supported the movement of Black Lives Matter movement, but the Republican opposition from like the 30s to the 45. So the key thing would be they get their own base to like 80% disapproval of the For the People Act and that’ll show up in the numbers. Once an issue is partisan’ized sufficiently, Manchin and Sinema will be very sensitive to that. And I think the key thing is to make the opposition in the 40s to the For the People Act and I think that’s very easily doable. In fact, the fact that Stacey Abrams and other Black Democrats are the most prominently featured people advocating for H.R.1 will make this extremely easy to make it sort of racialized and partisan’ized and that that will drive up Republican opposition.

Brian Beutler: OK, so I’ll take that to mean that you think that the For the People Act, the John Lewis Act, they’re probably immune in some sense from being turned into unpopular bills because their provisions are, like mostly unobjectionable. But that doesn’t mean that Republicans can’t successfully polarize the public around them—

Perry Bacon: correct.

Brian Beutler: —in a way that might make it harder for Democrats to just forge ahead on a purely partisan basis.

Perry Bacon: So Biden’s approval rating is at 54-40, something like that, but the stimulus was like at 70-30 or something like that. So the stimulus was so popular it got outside of a normal partisan box. But in most issues, if the Republicans are smart about it, they can get it to where there are 40% who disapprove of Biden and will also disapprove of his bills, and that means a Biden bill that has 40% disapproval among Americans overall, it’s probably at 55 in West Virginia and probably 45 in Arizona. I still think on For the People, though the Democrats are invested in that, I don’t think they’re going to, like, sort of wimp out on that issue as much as they would in others because of the coalition who’s leading it. Biden is president. Manchin has a lot of power, but I don’t think a lot of things in which Jim Clyburn says this is a commitment to the—I do think the sort of Black wing of the Democratic Party when it makes moral claims like they’re making on H.R.1 and the John Lewis Bill, are actually fairly popular and they’re not, they’re like—the Democratic elite or establishment has no problem dissing the left when it’s necessary. I don’t know if they’re as comfortable dissing Stacey Abrams and Jim Clyburn and Raphael Warnock on the racial issues.  I think even if this gets more popular, it will stay in the conversation.

Brian Beutler: I do sort of see what you’re saying, that like is as much as maybe Democrats lean too much into public opinion on certain issues they do seem to talk about this bill, talk about this issue, in a way that you would expect them to if they saw themselves in a moment like 1965. Like this is a defining issue of the time, and there’s like a bigger issue of principle at play here than anything that we should allow whatever a public opinion poll says at any moment, to warp. So it is really, you know, they talk about it like it can’t fail, like, like failure is not an option, in a way that I haven’t heard them talk about any bill since maybe the Affordable Care Act, and maybe not even then. So maybe that’s like the right note to end it on, is it is the public opinion lens through which so much of legislative politics is looked through, might actually be the wrong one on this particular issue.

Perry Bacon: Obama, I’ll be honest, rarely says sort of really sharp partisan things. When he said at John Lewis’s funeral that, compared the filibuster to a Jim Crow relic—

[clip of President Obama] And if all this takes eliminating the filibuster, another Jim Crow relic, in order to secure the God-given rights of every American, then that’s what we should do.

Perry Bacon: He gave the rest of the party language it could use, the most popular person saying the filibuster is not just bad, but racist. That kind of language, like who in the Democratic Party is strongly defending the filibuster? As far as I can tell, one and a half people: Manchin most days and Sinema some days. Like beyond that, it’s like really hard when the issue has been so racialized and moralized, where the right side of it, so as long as the Democratic Party is so united on this it’s hard—I think that is going to affect the public opinion part of it, because that’s going to mean that they’re going to be pushing it hard. That affects media coverage. That affects, like Manchin is in a zone sort of by himself—I don’t think even the moderates in the House are, particularly they who complain about everything and everything is going to hurt their election and how dare AOC speak about, tweet about this once—you know they’re not criticizing H.R.1, because they seem to know that this is one place in the party where they’re not sort of allowed to.

Brian Beutler: Yeah, there’s a reason why 49 out of 50 senators co-sponsored the For the People Act before they knew how it would possibly poll in the real world. And maybe they’ll get that 50th vote by, like, adding another round of $1,400 checks or something [laughs] a, uh, I don’t know, like a high-speed train to West Virginia.

Perry Bacon: You know, I think Jonathan Martin wrote a piece on Sunday in the Times. It’s not clear that Manchin operates that way, though. It’s not, like it’s not clear he’s pushing for money for West Virginia. Like that’s the old way to sort of pay off somebody. My sense is that he is, his sort of centrism is sort of bipartisanship is also sort of a personal virtue. And so on some level, he’s like the hardest vote to get because Susan Collins and Romney are not going to vote for this because it is a, it has been defined as a sort of battle between the parties. It’s interesting because Romney has either moved to the left, or not moved while the rest of the Republicans have moved to the right. But on racial issues, you know, Romney went to the BLM protests. Like he has been, for whatever reason the racial part of this bill and this discourse has not hit Collins and Romney and Murkowski, who usually are somewhat sensitive to kind of moral arguments.

Brian Beutler: Yeah, well, it’ll be interesting to see how those three and Manchin respond when this is sort of on the Senate floor and those issues are really in their face and it’s impossible to take a vote on it without sort of taking a vote on those dimensions of it. I’ll leave it at that, then. Perry Bacon, thanks for joining us.

Perry Bacon: Of course, thanks for having me Brian.

Brian Beutler: Keep sending us your questions, our email address is Rubicon@Crooked.com. Listener Peter writes: It’s hard to see a minimum wage increase passing, but could Congress pass through budget reconciliation, an earned income tax credit added to any wage that is less than $15 an hour, provided that the credit is capped such that the wage plus credit doesn’t exceed $15 an hour? They probably could. During the debate over the American rescue plan, Democrats even considered a similar workaround: imposing a tax on employers who don’t set their in-house minimum wages at or above $15. But solutions like these create administrative complexity, which can become complexity for workers, rather than the straightforward satisfaction of seeing their paychecks grow. For that reason, Democrats seem much more likely to fight the issue out with Republicans, and either increase the minimum wage to somewhere below $15, or do it on their own, after abolishing the filibuster.

Brian Beutler: Rubicon is written hosted by me, Brian Beutler. It’s produced by Andrea Gardner-Bernstein. Veronica Simonetti is our audio engineer. Production support from Brian Semel. Thanks for listening. We’ll be back next week.