Abortion and the Filibuster

Assuming they had the votes, should Democrats carve out yet another exception?

MR SMITH GOES TO WASHINGTON (1939) – JAMES STEWART. Credit: COLUMBIA PICTURES / Album

WaPo columnist James Hohmann declares “Busting the filibuster for abortion now is madness.”

Democrats hoping to change the rules of the Senate in a futile bid to pass a federal law protecting abortion rights are displaying the most myopic political thinking since liberals called for defunding the police.

Then, as now, their anger was righteous and raw. Millions of Americans took to the streets in the spring of 2020 to protest systemic racism after the murder of George Floyd in Minneapolis. But the shortsighted demands to divert resources from law enforcement continue to hobble Democrats who never even embraced the idea. Revising the filibuster will hurt even more in the long term.

The left’s thirst for Senate Democrats to do something about Dobbs is understandable, but the reality is that weakening the filibuster would simply open the door for Republicans to pass their own, far-more-punitive federal restrictions once they inevitably return to power.

Sen. Kyrsten Sinema (D-Ariz.) points to seven bills restricting abortion rights that would have passed the Senate in recent years had it not been for the 60-vote threshold necessary to overcome a filibuster. With Roe gone, Sinema says the filibuster is “more important now than ever.”

Republican visions of an abortion-free America will turn very real if the Democrats pursue this goal. Just two years ago, when Donald Trump was president, 53 senators voted to advance a 20-week abortion ban and 56 senators backed a Born-Alive Abortion Survivors Protection Act, which would have created criminal penalties for doctors who failed to follow new federal standards after procedures went awry. In 2015, 53 senators voted to ban federal funding for Planned Parenthood. In 2006, 57 senators voted to make it a federal crime to transport a minor across state lines to get an abortion without notifying her parents in advance.

Pretending Democrats can carve out a narrow filibuster “exception” that Republicans won’t exploit to their own ends later requires a willful blindness to political reality. Republicans would use an abortion exception to pass all sorts of federal restrictions on abortion as soon as they have the votes.

There’s more but that’s the gist.

At first blush, it’s a pretty strong argument. Especially since, as he later notes, Democrats likely don’t have a majority to pass the bill even if the filibuster were lifted.

While my longstanding view was that the filibuster was helpful, precisely because it precludes wild swings on major policy issues ensuing from modest changes in the Senate balance, I’m no longer sure that’s right. The filibuster has been abused so often for so long that, rather than a tool for forcing compromise and consensus-building, it’s simply a tool for obstruction.

Our system has plenty of checks and balances built in. To pass major reforms requires a majority vote in the House of Representatives (which has 435 members who stand for election every two years and represent smallish districts) and the Senate (which has 100 members, a third of whom stand for election every two years on a staggered basis, hold six-year terms, a represent states on an at-large basis) and must be signed by the President (elected every four years through a national popular vote filtered through the bizarre mechanism of the Electoral College).* It’s pretty rare for one political party to hold all three bodies simultaneously and they seldom do so for more than a single two-year election cycle. Do we really need to impose a super-majority requirement on top of that?

Given that the Democratic Party has control of all three bodies, despite a system that inherently advantages Republicans, they really ought to be allowed to govern within the bounds of the authority granted under the Constitution. Assuming they could get Sinema and Joe Manchin on board, why shouldn’t they be able to pass an abortion rights bill under the authority of the 14th Amendment?

The voters would then factor that into their decision four months from now as to whom to send to the House and Senate.** Maybe the backlash is sufficiently severe that Republicans take back the House and Senate (they’re likely to do the former, regardless). Or maybe the voters are so happy that the expected midterm bloodbath is averted and Democrats stay in power. How democratic!

If the Republicans do take back both Houses of Congress, they’re unlikely to be able to do much to reverse the vote, given that Biden won’t sign the repeal bill. There is essentially*** no chance that there will be a two-thirds majority in both Houses to override a presidential veto.

Ah, but what if the Republicans win back the White House and keep both Houses in 2024. Won’t they be able to pass sweeping anti-abortion legislation then? Well, yes. Presumably, though, that’s why we have elections.

Yes, again, the system is stacked in their favor. It’s quite possible that a Republican wins the White House in 2024 despite losing the popular vote. And that it wins the House and Senate despite getting fewer votes than Democrats because of our geography-based structure. So, they could potentially enact draconian policies for which there isn’t majority support. Don’t we want Democrats to have the ability to stop that via the filibuster?

The problem with that is twofold. First, it perpetuates a system that allows Republicans to stymie Democratic policy initiatives even when they control all three pieces of the system. Second, do we seriously believe that Republicans will keep the filibuster in place if they have control of all three pieces and are dead-set on enacting an abortion ban?

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*This simplifies matters, eliding the unrepresentative nature of the system, the veto override process, and other mechanisms that further complicate an already-complicated process.

**Yes, in most states and districts, the primaries are for all intents and purposes the election. Our system is essentially one of swing states/districts right now.

***I qualify because I haven’t done the math on the open Senate seats. It’s so unfathomably likely that it’s not worth the effort.

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James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Paine says:

    Any pundit that brings up the old “Well, gosh golly, if Reid has never nuked the filibuster for lower court justices McConnell would never have done the same for SCOTUS nominees” line can be safely ignored.

    “Democrats should have learned this lesson by now. In 2013, then-Senate Majority Leader Harry M. Reid (D-Nev.) wrangled the votes to get rid of the filibuster for most presidential nominations, but he insisted it would not apply to the Supreme Court. That opened the door in 2017 for his successor as majority leader, Sen. Mitch McConnell (R-Ky.), to remove the high court exemption so he could confirm Justice Neil M. Gorsuch. If Reid had left the original 60-vote threshold in place for all nominations, Justice Amy Coney Barrett — who cast the deciding vote to overturn Roe — might not have been confirmed on the eve of the 2020 election.”

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  2. Rick DeMent says:

    There is no use making any change now with the filibuster. The GOP will ditch it as soon as they get all three branches again anyway. The Democrats should have done it in 2020, any change now is pissing into the wind.

    The GOP will pass a national abortion ban as soon as they get all three branches back again and SCOTUS will not strike it down because reasons. If the Dems did pass legislation to enshrine pro-choice into law the same SCOTUS will strike it down because reasons.

    If they get lucky and he Dems manage to get both houses back the first thing they should do is ditch the filibuster, pass a law enshrine pro choice. That will get struck down by the conservatives SCOTUS, but it will also make it harder for the same SCOTUS to uphold an anti abortion statue by a future GOP majority. Harder … not saying they wouldn’t do it anyway.

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  3. Kathy says:

    Second, do we seriously believe that Republicans will keep the filibuster in place if they have control of all three pieces and are dead-set on enacting an abortion ban?

    That’s the wrong question. The right question is “Do we seriously believe that Republicans will eliminate the filibuster if they have control of all three pieces and are dead-set on enacting an abortion ban?”

    And the answer to that is: “Of course they won’t. Only Democrats have agency.”

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  4. gVOR08 says:

    Cleek’s Law – Today’s conservatism is the opposite of what liberals want today, updated daily.

    There is a fundamental asymmetry between the parties. Democrats, as liberals, want to make things better. Republicans, as conservatives, mostly want to stop liberals from making things better. Moscow Mitch did kill the filibuster for SCOTUS nominees, one of of the few things he actually wants to do. I don’t think he’d kill the legislative filibuster. Of late it’s used to block everything. It used to be used mostly to block civil rights. Something the GOPs still like to do, e.g. their expected filibuster of any nationwide abortion right.

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  5. If the GOP is put in the position of being able to pass a national abortion ban in the Senate and the only thing in their way is the filibuster, the filibuster will be gone. This should be obvious.

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  6. The whole logic of the piece is so flawed: don’t govern while you can, because the other party might govern when it is in power.

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  7. @gVOR08:

    I don’t think he’d kill the legislative filibuster.

    I think you are ignoring the fact that they could amend the rules to narrowly allow an abortion ban to pass without the filibuster. He doesn’t have to kill the whole thing.

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  8. Beth says:

    @Steven L. Taylor:

    I think it’s based on the flawed premise that they know the guy they don’t like will pass legislation they don’t like, so they figure it’s worth the cost to not defect. All the while not understanding that the other guy jammed a crowbar in the defect button and walked away.

    I think at present there really isn’t anything the Republicans want to do. I mean they want tax cuts for the rich and some other things, but they can get those through the budget and the courts so they don’t really need to do anything. I guess I’m curious about when they radicalize themselves enough to actually want to do things.

    I’m of the opinion that the filibuster allows the Republicans to not govern and then blame the Democrats when things go wrong.

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  9. Kathy says:

    It may be Mitch is eager to start shooting, but not to fire the opening salvo.

    So, he lets Reid “go nuclear” ending the confirmation filibuster, then laments it but removes it for SCOTUS appointments when it suits him.

  10. Scott F. says:

    @Beth:

    I think at present there really isn’t anything the Republicans want to do. I mean they want tax cuts for the rich and some other things, but they can get those through the budget and the courts so they don’t really need to do anything.

    I agree, but I would add “Election Reform” (threw up in my mouth a bit) to tax cuts as a thing Republicans really want to do. Without voter suppression policies that secure their minority rule, they’d lose power. And without power, they’d lose control of the budget and the courts.

  11. Scott F. says:

    @Steven L. Taylor:
    Flawed logic or not, “don’t govern in a way that will upset anyone or you might lose power” is the conventional wisdom of most federal office holders who’ve served more than one term.

  12. gVOR08 says:

    @Steven L. Taylor: I was speaking of the filibuster generally. Yes. MAGAt pressure might put enough pressure on Moloch McConnell to do a carve out for abortion. But I suspect he’d rather have it as an issue than an accomplishment. After all, GOPs ran on overturning Rowe for fifty years. (OK, 49. And not even 49 as it took several years for the Evangelicals to adopt it as an issue. But many years.) And there’s a moral for Dems there. Not that they kept fighting ’til they won, but that they kept getting reelected on the issue for all those years while they were losing. You can’t guarantee you’ll win, but you have to be seen to be fighting.

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  13. Gustopher says:

    Carving out exceptions for the legislative filibuster will doom the entire thing quickly. We should do it.

    Yes, Republicans will pass some awful laws when they get power. This is good — elections should have consequences.

    For too long the Senate has been unable to function, so nothing gets done that voters care about, and so they might as well vote for the biggest clown. I’m willing to believe that if Republicans actually had to implement their terrible ideas, people would flee the party in droves.

    Sort of an optimistic version of “we have to burn the village to save it.”

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  14. Beth says:

    @Scott F.:

    Maybe I should reframe that a bit, at the Federal level, there isn’t much they want to do, so Federal disfunction suites them perfectly. They get what they want and ALL Dems look bad. At the state level there are a ton of things they can do now that they’ve jacked up the Federal level so bad that nothing can stand against them. WI no longer a democracy, TX and FL have whatever the hell it is they are doing down there going on.

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  15. DK says:

    Kill it. Let Democrats pass popular legislation, let Republicans pass their unpopular legislation when they get back in (or tear themselves apart trying), and let Americans get it through our thick skulls to stop voting Republican.

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  16. MarkedMan says:

    I haven’t thought the filibuster was worth keeping for a couple of decades at least. While it was once a seldom used emergency brake, it has become a ludicrous tool that allows any one of 100 Senators to require 60 votes to pass a law rather than 50, in direct opposition to the Constitution’s intent. And it is used every day, multiple times per day, even when it isn’t formerly invoked. How many laws and initiatives simply die because of the inevitability of the filibuster?

    A much more interesting question: Why has it persisted? It is not because of precedent, or institutional tradition or any of that nonsense. There is one thing it provides in today’s Senate that nothing else can, something that appeals to certain Pols regardless of party. Given the narrow division and the Republican lock step denial of every Democratic initiative, the filibuster ensures that no Democrat or Republican in a purple state or a tight race will have to cast a controversial vote. How does Manchin feel about this or that bill? We don’t know, and will never know because he didn’t have to vote.

    That’s why the filibuster remains, and any Pol who says it is for some noble reason is just playing you for a sucker.

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  17. Paine says:

    I’m still not convinced that McTurtle is willing to blow up the filibuster just to pass a nationwide abortion ban. It seems like the perfect leverage to hold over the head of democrats whenever they grumble about getting rid of it to pass their own agenda items.

    As for a filibuster carve out… I’m not exactly sure how that works.

  18. Chip Daniels says:

    @Steven L. Taylor:

    Yeah this logic of “This tactic might be abused by the other party later on” is confused because the converse of this- that there exists somewhere a tactic that CAN’T be abused by the other party is absurd.

    Every tactic, conventional or otherwise, can be used or abused by the other party which is why you need to prevent them from being elected in the first place.

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  19. Jim Brown 32 says:

    @Steven L. Taylor: Exhibit One that demonstrates that Democrats are operating from a 20th century paradigm its geriatric leaders cut their teeth in.

    Republicans are not going to value the lives of babies (in their worldview) over a procedural rule like the Filibuster. Their goal is to save babies and to prevent Democrats from systematically destroying America. They are not loyal opposition, they are hostile foes.

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  20. Yes, right now there is an ongoing minoritian supported constitutional revolution that allows reactionaries to get almost their entire policy and political program passed with anywhere from 0 to 51 votes in the Senate. Democrats if they have 51 solid votes should be able to get their program passed as well as curb and check the courts.