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.
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.
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.
“The filibuster is going to protect the interests of Democrats in the future, as it has in the past,” said Ronald Weich, who was chief counsel to Reid and is now dean of the University of Baltimore School of Law. “We’d live to regret it. … I don’t know how you get the genie back in the bottle.”
Besides, Senate Democrats don’t even have a majority ready to codify the principles of Roe. A vote in May only mustered 49 votes. Nor should Democrats take any solace that two Republican women currently in the Senate identify as pro-choice. Alaska’s Lisa Murkowski faces a tough reelection fight in November. Pro-lifers may not even need the vote of Maine’s Susan Collins.
Biden surely understands these dynamics, and he’s spoken eloquently in the past about the virtues of the filibuster. So why did he announce his support for suspending the rules? It’s the same reason he backed “going nuclear” this year to expand voting rights, which also fell short.
Grassroots Democratic activists are angry and talk to each other in a deafening echo chamber called Blue Twitter. The president is insecure about his standing with his base. He is worried liberal voters will stay home this fall if he doesn’t take steps to secure reproductive freedom. And his aides know that abortion is not an issue he has always been comfortable discussing.
Nonetheless, it would be madness for Democrats to roll back the filibuster four months before midterm elections when the president’s approval rating is below 40 percent, and the Senate is split 50-50. Democrats only control the chamber because of the tiebreaking vote of Vice President Harris.
Five years ago, when she was a freshman senator from California, Harris joined 60 other senators in signing a letter that called for saving the legislative filibuster. Back then, Trump was publicly berating GOP leaders to change the rules to pass his agenda. But McConnell resisted that pressure.
Now it’s time for Biden, Harris and the current Democratic leader, Sen. Charles E. Schumer (N.Y.), to do the same and reject demands from their left.