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So yesterday morning we got into contact with three Senate offices trying to see where everyone was on Roe and Reform. We contacted the offices of Sens. Feinstein, Casey and King. (We also reached out to Sens. Tester and Coons. But in those cases it wasn’t clear we got through the forest of out of office emails and voice mail messages. Congress is currently on recess.) Yesterday afternoon Sen. Feinstein’s office released a statement affirming that she’s ready to suspend the filibuster rules for the Roe bill. Around the same time, Sen. Casey’s office confirmed to Kate Riga that Casey also supported suspending the filibuster rules for a Roe bill. And that leaves us with … hmm? Who’s left? Oh right! Sen. Angus King of Maine, an independent who caucuses with the Democrats. So far no response or clarification on this issue. Crickets.

(We also had a conversation with Sen. Kaine, which we’ll get to in a later post.)

This covers some ground we’ve discussed already. But I wanted to come at it from a slightly different angle. The following is a note from a law professor TPM Reader whose initials I’m omitting because it’s a small world. I’ll call them LP …

Codifying Roe is not so easy. Congress has only the legislative power explicitly provided in the constitution. In the ACA case, the Court (per CJ Roberts) decided that “health care and insurance” was outside the domain of the commerce clause. And perhaps that’s a good thing, because it’s something of a safeguard against a national anti-abortion law. So what about the enabling clauses of the 14th Amendment (sec 5) and the 13th Amendment (sec. 2). The Court has cut back Congress’ power to use sec 5 to “expand” rights. So you’ve made a point of pushing Biden on “give me 2 more Senators and we’ll run over the filibuster to codify Roe,” I think TPM should do some reporting on what “codifying” would mean and whether it’s practicable with this Court, without something like the ERA. And so maybe you ought to be pushing Biden on “give me 2 more Senators and we’ll enlarge the Court.”

That was quick. Yesterday, Sen. Feinstein’s staff refused to commit to changing the filibuster rules to pass a Roe law in response to questions from The San Francisco Chronicle. TPM’s Kate Riga followed up with her office earlier today and Feinstein has now changed her position. This afternoon she released a statement committing to suspending the filibuster rules to pass a Roe law.

It looks like there may be only one senator standing between voters and passing a Roe law in January 2023. And it’s of all people the senator from California: Dianne Feinstein! We mentioned this yesterday after a staffer in Feinstein’s office told TPM Reader RM that the senator could only commit “to discuss filibuster reform” to allow an up or down vote on the Roe bill in January 2023. Now Joe Garofoli of The San Francisco Chronicle got a more definitive not-at-all-definitive statement from Feinstein’s spokesperson Adam Russell.

One sentence in a post from earlier this afternoon really set off a firestorm in your emails. I’m going to print a selection of them later. For now, let me explain or clarify. As is so often the case, I think this is at least in part that so-common thing in political arguments: two sides tossing the same slogan back and forth and basically talking past each other because they are interpreting it as meaning different things. This is about “just vote” as some kind of generalized slogan and those who say that they’ve voted enough, voting hasn’t worked, it’s not a good enough answer, etc.

From your emails it’s clear that many of you interpret this phrase as “all you need to do is vote,” or “don’t ask questions, just vote,” or “don’t do anything else but vote.” I don’t know why anyone interprets this that way. But then again, it’s not something I tell anyone in the first place. I’m hardly someone who says, “just take the party leadership’s word for it” or “go with whatever strategy or lack of strategy they propose” since I’ve dedicated my writing at TPM for the last couple months to arguing that the White House and congressional leadership are making a category error in how they are approaching Roe and the midterm election and that it will require ordinary voters and activists to force their hand to follow a better strategy.

From the moment Justice Alito’s draft decision leaked in early May (and really much earlier) it’s been clear that the only path to restoring Roe‘s protections was to elect two more senators to pass a Roe bill and change the filibuster rules to allow an up or down vote. The current leadership on the Hill simply doesn’t grasp the necessity of firm pledges from all 48 Democratic senators besides Manchin and Sinema. 48 pledges are there. But as we’ve discussed a few will require some real pressure. That’s why getting all the other pledges banked is so key. Then you can narrow the pressure down on any hold outs.

From the outset I’ve figured that high on the list of potential foot-draggers are Sens. Feinstein, Casey and King.

Today I want to talk about Sen. Feinstein, because we’ve got some new information on that front.

From TPM Reader LE …

I’ve been thinking about this too, the ongoing, tiresome noise from those frustrated that Democratic leadership and politicos don’t have a magic bullet to fix everything. Take Roe, for example. Some on the left are upset, claiming Democrats and the party have done nothing over the years to protect reproductive freedom and other rights and liberties by, for example, ginning up interest in voting Democratic and for candidates who will protect those rights. But is their claim true? Seems to me the alarm has been sounded for years, just not with the volume and persistence that Republicans deploy to keep their base riled up and ready to fall in line.

From TPM Reader ES …

I don’t think it is only “left-wing wreckers trying to break things” who are feeling growing frustration with the Democratic party. There is opportunity cost when the Democratic party leads the opposition – they take space, they demobilize other efforts by the implicit or explicit “trust us” logic of vote us in again, etc. And their response to the clear and systematic dismantling of norms and laws since Gore’s acquiescence, through failure to hold anyone accountable for the Great Crash of 08-09, to the denial of Garland’s nomination, up through the expanding Koch-envisioned and Tea Party / Trumpian grassroots fueled widening institutional erosion and now full, brazen takeover of the Supreme Court…has been astoundingly… small, tepid, narrow. 

As I’ve pressed the case for centering the 2022 election around the House and Two More Senators (“Roe and Reform”), one of the most consistent rejoinders I get is, “What’s the point? The Court will just throw out the law.” Or, “There is no point unless you reform the Court at the same time.” These are reasonable questions. But they’re wrong both as politics and law.

Here’s the short version: The near-term threat of the Court rejecting such a Roe law is real but overstated. But “Roe and Reform” is the best strategy regardless of what the Court decides to do. The details — the long version — are important, though. So let’s go through them.

I continue to believe — in fact it’s all but a certainty — that continued Democratic control of Congress and any near-term restoration of abortion rights across the country rests almost entirely on Democrats making a firm commitment to pass such a law in January 2023. It’s creeping forward. A handful of Senate Democrats who hadn’t committed before have now done so. President Biden has said he supports doing so — not relevant in any direct sense but a very important signal. But it needs to move quickly.