Only One Path on Codifying Roe

Pro-life and pro-choice activists clash as they gather at the US Supreme Court in Washington, DC, on May 2, 2022. - The Supreme Court is poised to strike down the right to abortion in the US, according to a leaked dr... Pro-life and pro-choice activists clash as they gather at the US Supreme Court in Washington, DC, on May 2, 2022. - The Supreme Court is poised to strike down the right to abortion in the US, according to a leaked draft of a majority opinion that would shred nearly 50 years of constitutional protections. The draft, obtained by Politico, was written by Justice Samuel Alito, and has been circulated inside the conservative-dominated court, the news outlet reported. Politico stressed that the document it obtained is a draft and opinions could change. The court is expected to issue a decision by June. The draft opinion calls the landmark 1973 Roe v Wade decision "egregiously wrong from the start." (Photo by Stefani Reynolds / AFP) (Photo by STEFANI REYNOLDS/AFP via Getty Images) MORE LESS
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Last night, Politico Nightly had a somewhat ungenerous read on Democratic efforts to codify Roe. Congress Editor Elana Schor noted that Democrats are resisting efforts to join a bipartisan effort that is backed by pro-choice Senators Collins and Murkowski. That seems odd. Why wouldn’t they add those votes? The Collins and Murkowski option wouldn’t provide as fulsome protections for abortion access. But it would like get more than 50 votes rather than a vote in the high 40s. It makes the Democrats sound more interested in purity than results. So why not do that? Sen Mazie Hirono explains: since getting to 50 votes actually has no practical impact on passing the law, why not vote on a law you can enthusiastically get behind rather than a more watered down one?

That’s a pretty good logic.

But this logic illustrates the broader dead end the Democrats are walking into. These votes are often called “symbolic” votes. But that’s not an accurate description. Votes like these are test votes to frame electoral choices. You either force the opposition to make unpopular votes with the intention of campaigning on those votes in an election or — more directly — you use the votes to frame a clear electoral choice. So you tell voters, this is what is at stake in this election. Elect us and we will do this thing. As I’ve argued, in this case that means something like, give us two more Democratic senators and the House and we will codify Roe on the first day of the new Congress.

But at least so far that’s not what they’re doing. Congressional Democrats are essentially telling abortion rights supporters that they’re on their side but won’t actually be able to do anything about it regardless of the outcome of the election. They may get some benefit in reminding voters that Roe is about to be overturned because of Republicans. But since the results of the election won’t change anything there’s simply no way that can galvanize the electorate around Roe as Democrats seem (rightly) to want to do.

It’s just basic electoral physics. You can’t galvanize the election around an issue if you’re saying the results of the election will have no impact on the issue. Again, this is really obvious! You can’t both elevate an issue to extreme importance and also say there’s nothing that can be done about it — regardless of the outcome of the election. This is basic electoral physics.

We’re coming off more than a year defined by Democrats being unable to pass the key elements of their agenda despite having nominal majorities in both chambers. The current approach seems to advertise in advance that even if Democrats greatly exceed expectations and add to their Senate majority, still nothing will happen on the issue that was — supposedly — at the center of the campaign. Doing that is just baking the demoralization and coalitional chaos into the mix in advance.

Now, sometimes you simply have no options. You can’t make them up because you want them to exist. That’s where things have been stuck for most of the last year: Democrats desperately wish they had 50 votes to change the filibuster rules and pass key parts of their agenda. But they don’t. And no amount of wishing will force Sens. Sinema and Manchin to change their position. That reality has caused no end of turbulence within the Democratic party over the last year. People desperately want something to be so that they have no power to make so.

But this is different because it’s about an election. An election is the opportunity to change the math. If the Democrats have 50 votes to codify Roe and change the filibuster rules, they can fix this. That probably requires two more Democratic senators willing to do both. That’s a very heavy lift in this election climate. But it’s a realistic challenge. If you meet it everything changes.

If you’re not clearly framing the stakes in this way you’re just wasting your time on performative nonsense, providing no galvanizing electoral message and — on the off chance you actually get those extra seats — setting up another demoralizing and enervating drama when it turns out not to have mattered.

I’m sure if you asked senators and strategists and people in the White House about this they’d say getting into the filibuster debate is just arcane stuff that no one knows anything about when the Roe issue is clear cut. They will say and they’d be right that even though 48 senators are open to reforming the filibuster rules for at least some kinds of legislation that that’s still a pretty complicated thing to get all 48 senators to commit to publicly in advance. That’s true. But if you’re not able to get over that hurdle you’re essentially saying that Roe or any federal abortion rights protections are over until at least two conservative Justices leave the Court.

As Kate Riga explains here, there’s a real chance the corrupt Court majority might try to invalidate such a Roe-codifying law. If that happens you need to be ready to either expand the Court or take the abortion issue out of its jurisdiction — both of which can be done if you are ready to change the filibuster rules.

Maybe you can only line up 47 votes, in which case you need three more senators. Not great. But at least then you’re giving a clear choice. You’re providing clarity about what will be necessary. If you don’t do this it’s no different from setting up an electrical experiment where you don’t connect all the wires. Or you refused to plug it in. It’s that straightforward. If these are truly symbolic votes, there’s really no point.

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