Joel Martinez/The Monitor via AP
Abortion rights supporters gather to protest the nation’s most far-reaching curb on abortions, in front of Edinburg City Hall, September 1, 2021, in Edinburg, Texas.
In one short week, Texas delivered the dreaded worst-case scenario for Democrats twice, first on voting rights, and then again on abortion. The Lone Star State, which Trump won by only five points in 2020 but remains in hock to a Republican trifecta at the state level, gutted voting rights protections in a bill that took months to complete after Democratic legislators fled the state to deny a quorum. Earlier, Texas had illegalized abortion after six weeks, with vigilante enforcement. Last Wednesday, the Republican-dominated Supreme Court sanctified the abortion law by denying an emergency injunction, allowing it to take effect. They did this on the shadow docket, without even pretending to entertain deliberation.
It’s shocking, but it’s no surprise. Republicans have openly telegraphed for years, even decades, their strategy for a two-pronged approach to minority rule. When in power, they pack the Court with hard-right ideologues with lifetime appointments who will happily rule from the bench. These judges then sustain conservative policymaking when they’re out of power, and the voting laws the judges bless in particular allow some semblance of power to flow to Republicans no matter what voters’ preference. The resulting functional termination of constitutional rights to vote and choose has openly, vocally been the plan from the very beginning.
So what are Democrats going to do about it? If you guessed “something” or “anything!” you would probably be wrong. Despite the most dreadful possible outcome being our current, lived one, there remains an immense amount of resistance to wielding the very standard, non-emergency constitutional authority that the party has, owing to its (thin) majorities in the House and Senate and its control of the presidency.
You know where this is going: Democrats could get rid of the filibuster and join the bulk of the industrialized world with a majority-vote threshold in the Senate, which would allow them to do everything from enshrining Roe v. Wade into law to reinstituting elements of the Voting Rights Act that the Supreme Court nullified to expanding the number of Supreme Court justices.
It’s worth asking seriously what that worst-case scenario is, and whether it’s actually any different from the current scenario.
And yet, still, the prevailing liberal argument cautions against doing so, because such a proposal doesn’t consider the downside. What happens when Democrats are back in the minority, insist Democratic brains big and small, seemingly counting down the minutes until that is the reality. Think of all the horrible things Republicans will pass once the filibuster, the last meaningful check on their power, is removed. Various mutations of this line of thinking propagate: For example, the Biden administration initially claimed it was unable to extend the eviction moratorium because the Republican Supreme Court would strike it down.
It’s worth asking seriously what that worst-case scenario is, and whether it’s actually any different from the current scenario. Texas has now made voting incredibly restrictive, and illegalized effectively all abortions that take place in the state. The Court has given the green light to every state with a Republican legislature and governor to follow suit, which is the majority of them, with even more restrictive laws.
Might a narrow Republican congressional majority in 2022 come together to pass a law illegalizing abortion outright as retaliation for Democrats enshrining Roe into law? They don’t even argue that in public; they say it’s something to be decided by the states. Might Republicans pass voter suppression laws at the federal level? They’ve already passed them at the state level, and thanks to the Court those laws are in place everywhere they can be put into place. Might they use court-packing to pack the (already packed) court with ideologues? Is that reality not the one we’re currently living?
Even progressives like Bernie Sanders have warned of what Republicans might do with a 50-vote threshold as a reason to protect the filibuster. Why? The worst outcome is the current outcome, just delayed a handful of years.
Let’s take as a lesson the eviction moratorium case. The Supreme Court did indeed strike down the moratorium, but there’s no question it was worth the Biden administration’s action. That move provided three more weeks for renters to remain housed, and to obtain rental assistance that has, incredibly, been hard to come by. It was better than nothing, and, despite the worst-case outcome manifesting, the attempt made things demonstrably better.
A party in power should be in power for the purpose of using it, not just serving as a placeholder before handing it back.
Some have suggested that Mitch McConnell, with a Senate majority, would simply do away with the filibuster once he’s back in power with 50 votes. He might or he might not, but it doesn’t really matter. The only two discernable legislative priorities of the GOP in recent years have been the courts and tax cuts, which only require 50 votes anyway. Tellingly, McConnell had the ability to end the filibuster with a Republican House and Republican president in 2017 and chose not to do so.
Forcing Republicans to band together and use a new, incipient majority (they would need a Republican president as well) to pass a law illegalizing abortion, despite the fact that Roe v. Wade is extremely popular nationally, would be good politics for Democrats generally. And one need only look to the last time Republicans controlled both chambers, in 2017–2018, to see how difficult it is to pass unpopular legislation even when you have the votes to do it. Despite only needing 50 votes using the budget reconciliation process and having 52 members, Republicans managed only to pass an exceedingly maligned tax cut and failed to repeal Obamacare or anything else before promptly losing their majority.
The other part of this is that Democrats not implementing their priorities after they win an election out of fear that the opposition will get to implement their priorities if they win an election is at the root a fear of politics itself. A system where voters see actual changes based on their vote, and can then assess whether they made the right choice, is far healthier than a system where whatever voters decide is immaterial, because their elected leaders are too scared of the future to act in the present. So long as there are levers to be pulled, not pulling them is inexcusable. A party in power should be in power for the purpose of using it, not just serving as a placeholder before handing it back.
House Speaker Nancy Pelosi announced last Thursday that she plans to bring up legislation that would codify Roe as soon as the House returns to session later this month. That’s pure theater as long as the filibuster is in place. And given that setting arbitrary deadlines seems to be in vogue right now, the return of Congress is as good a deadline as any for the Senate to announce a plan to end the filibuster.
