On the 24th of June, the Supreme Court of the United States overturned Roe v. Wade and Planned Parenthood v. Casey, decisions which for half a century had guaranteed women in all 50 states the rights of full citizens. Also on the 24th of June, “Blessed by God” former Ohio State Senator, failed Democratic Congressional nominee, and bête noire of Twitter centrists, Nina Turner, had her priorities straight. She tweeted to her half a million followers: “F*** the Democratic fundraising emails that will come from this.”
To be clear, it was the Republican Party and conservatives who spent 50 years building a legal infrastructure with the express purpose of overturning Roe. It was the Republican Party and conservatives who played a patient legislative game, incrementally advancing towards Dobbs at both the state and federal levels by way of waiting periods, ultrasounds, and propaganda coups like the 2003 Partial-Birth Abortion Ban Act. And, ultimately, it was Senate Republicans who wielded power bestowed by a minority of voters to seize the court for a generation. Democrats, by contrast, are the party of choice; indeed support for abortion rights has become arguably the litmus test for a prospective candidate; a pro-life stance is largely disqualifying. The contrast, therefore, between the two could not be clearer.
Yet whilst six unelected augurs wave their hammers, strip away rights, and gut the administrative state, Turner elects to attack Democrats. And the worst part is that she is not alone; not remotely. There is a video of two pro-choice protestors in which one says that “My rights should not be a fundraising point for them [Democrats]”. It has been viewed over six million times on Twitter.
This article is intended as a defence of the institutional Democratic Party, which possesses a better record than is commonly thought, and an attack on the Republican Party; the real enemies, now and always. But, much more, this article is intended as a reminder: legislative action in a democracy is only achievable if there are enough motivated politicians to carry it out. Democrats are neither derelicting their duties to their female constituents, nor do they lack the motivation to protect abortion rights. The problem is that there are inadequate numbers of Democrats in the relevant institutions. The corrective for this is not to throw toys out of prams and abandon faith in America’s sole non-insane party; it is to get more Democrats into essential positions through the democratic process.
In short: political power has limits, the only solution for which is more political power.
There are a lot of critiques of Democrats, but the most substantive is neatly typified by #BernieSanders2020 National Press Secretary, Briahna Joy Gray. Gray, in response to Michelle Obama’s statement on the Dobbs decision, tweeted: “Ok, but why didn’t your husband codify Roe?” It is, ostensibly, a fair question. In its telling the Court returned the decision on abortion rights to the democratic process in the form of the states, but this could have been negated by federal legislation on abortion rights. So, why was no legislation forthcoming?
The observant reader will have noted the word “ostensibly”. In reality, there were real constraints on what Obama could have done vis-à-vis abortion, contraints which do not factor into the fantastical world occupied by Gray et. al. First of all, Democrats held unified control of government for just two years of Obama’s eight year presidency. Unless Gray imagines that Republicans could have been prevailed upon to back abortion rights under a Democratic President, the window for Roe codification was 2009-2011. The problem there is that in 2009, Democrats were not nearly as unanimously pro-choice as they are now. In fact, on the 10th of November that year, 64 House Democrats, along with every single Republican, voted in favour of an amendment that would have prevented federal dollars from financing abortion services as part of the (later defunct) public option of Obama’s signature healthcare proposal, thus closing a possible loophole in the Hyde Amendment. For reference, the current House Democratic majority is six.
The story was the same in the Senate. Initially, Majority Leader Reid opposed the measure and sought to avoid its language appearing in the final bill. However, Senator Nelson demanded the inclusion of his own amendment with the language to the same effect as that which had cleared the House. Seven Democrats voted with Nelson against tabling (de facto against providing the abortion services). Most of those represented some of the reddest parts of America, places like Nebraska (Nelson’s state), and Arkansas (Mark Pryor – D). Sadly, American politics is not faithfully rendered in The West Wing and soaring rhetoric about liberty or equality breaks like a wave against reality. To put it a different way; if Senators really do not want to support something, they will not.
Furthermore, as Joe Manchin has since very publicly proven, it is not possible for a Democratic President to exert political pressure on a conservative Democrat in conservative America. Indeed, attempts to do so often backfire. When Manchin killed Biden’s flagship domestic legislation, Build Back Better, his approval ratings in West Virginia jumped around 15 points.
The bottom line is that anyone who argues that Obama could have codified Roe through federal legislation at any point during his presidency is either mendacious or poorly informed. It should also be noted that legislating takes a long time; the ACA (Obamacare) was not passed until March 2010. It was therefore necessary to prioritise during that Congress. In January 2009, Roe was not under any imminent threat; there was not a majority on the Court for overturning the decision and at any rate a Democrat, Obama, had the power to fill any vacancies for at least four years. Moreover, in 2009 the priority had to be the economy, then facing the worst downturn since the Great Depression. This is all to say that it would have been deranged had a freshly inaugurated Obama decided to expend his political capital on an almost certainly doomed fight to pass federal abortion legislation. It also goes almost without saying that if Congressional Democrats were too conservative in 2009 for national abortion legislation, then they were too conservative in 1993 when Bill Clinton held his ephemeral governing trifecta.
In a dark and bitter irony, there was an opportunity to protect abortion rights; perhaps for a generation, perhaps even forever. It came and went in 2016. That February, trenchant, pearl-clutching Antonin Scalia, an associate justice of the Supreme Court with strong views on the “homosexual agenda”, died. Then-Republican Majority Leader, Mitch McConnell, the most boring wrecker of democracy one can imagine, refused to confirm Obama’s compromise pick, Merrick Garland, refused even to grant Garland a hearing. This provoked volcanic Democratic anger; it shattered norms of propriety and deference to the executive on judicial nominees, and it did so on self-serving grounds that turned out to drip with hypocrisy.
Unfortunately, McConnell’s actions were also entirely rational from a Republican perspective. Replacing Scalia would have shifted the court to the left, substituting a 5-4 conservative majority for a 5-4 liberal majority. Given the importance of the Court, particularly in the light of an ossifying legislature, McConnell recognised that norms mattered a whole lot less than power. He could block Garland, so he did.
There was, however, one flaw in McConnell’s obstructionist ploy. It was widely anticipated that Hillary Clinton would win the presidential election looming that November. It was also widely anticipated that a narrow Democratic Senate majority would sweep in on her coattails. In this scenario, McConnell’s brinkmanship would have achieved nothing except, arguably, radicalising the liberal stance on the judiciary.
Regrettably, none of those things happened. Clinton underperformed her polls, most notably in three key rust belt states: Michigan, Wisconsin, and Pennsylvania. The Democratic Senate nominees also underperformed in Wisconsin and Pennsylvania, narrowly losing races they had been favoured to win. That night in November nearly six years ago, Roe was doomed.
What makes reflections on that cycle taste quite so sour is that Clinton was very clear that abortion rights were on the ballot. She shot up warning flares all throughout 2016. She pointed out that the continuation of the uneasy Roe stasis depended on the Court not shifting further to the right. At the top of the other ticket, Trump likewise made no effort to disguise that the race was in large part about abortion. Quaintly, during his first run, Trump was not regarded as particularly conservative; he had previously held comparatively socially liberal views, and had been a registered Democrat between 2001 and 2009. Evangelicals therefore showed no great initial enthusiasm to back him in November, and without that constituency, no Republican nominee stands a chance. Tapping Mike Pence was part of the effort to woo Bible thumpers, but Scalia’s open seat was the real gift.
Capitalising on the opportunity provided by a Court vacancy, Trump took the unusual step of releasing a list of prospective Supreme Court nominees, one part in May and another in September. The intention was to signal to movement conservatives that a Trump presidency would deliver for them on judges, specifically on judges opposed to Roe. In an October debate with Clinton, Trump actually said this part out loud: “Well, if we put another two or three justices on, that… [the end of Roe] will happen automatically in my opinion because I am putting pro-life justices on the court”.
He was absolutely right. In their eight year presidencies, Barack Obama, George W. Bush, and Bill Clinton got two Supreme Court appointments each. In four years, Trump got three. In January 2017, he inherited an open seat, an 80 year-old Anthony Kennedy looking to retire, and an 83 year-old Ruth Bader Ginsburg with a history of health problems, who ultimately passed away six weeks before Trump lost reelection. For these reasons, in the very plausible scenario in which Clinton won, the Supreme Court would likely be the precise inversion of its current iteration; 6-3 liberal, not 6-3 conservative. In such a world Roe would remain the law of the land, quite probably reinforced, and for the first time in decades rights would be broadly expanding rather than contracting.
2016 was a narrow race and in a narrow race one can point to any number of factors and claim that they were decisive; in a sense they all were. Perhaps Clinton lost because the Comey letter drove undecideds towards Trump, perhaps it was white non-college voters migrating from Obama to Trump, perhaps it was reduced African-American turnout, perhaps it was “Pokemon Go to the polls.” Honestly, it probably was not that; but it did merit electoral punishment.
There was also another factor. 2016 was notable for an unusually high third party vote share. In 2012, Obama and Romney combined won 98.26% of the vote. For Clinton and Trump, the total was 94.27%. Trump’s share of the vote was 1.1% lower than Romney’s had been, and Clinton slipped 2.9% below Obama. The data is clear; in addition to voters switching from Obama to Trump, voters switched from Trump and Clinton to the Libertarian and Green parties. Jill Stein, the Green nominee, got 469,000 votes in 2012, and 1.46 million in 2016. This surge in Green support was driven by left-wing voters, many of whom had backed Sanders in the primary and were unwilling to vote for Clinton in the general election.
In all three of the decisive states, the Green vote total alone was greater than Donald Trump’s margin of victory. In Michigan, Trump won by 10,704, Stein got 51,463 votes. In Pennsylvania, Trump won by 44,292, Stein got 49,941 votes. And, in Wisconsin, Trump won by 22,748, and Stein got 31,072 votes.
It is quite hard to look at this, plus votes for the Libertarian, Gary Johnson, plus abstentions, and not at least to entertain the notion that unpragmatic voting by American leftists cost Clinton the election. Briahna Joy Gray, who as previously noted has been right in the trenches attacking her own party, voted for Jill Stein. In 2017, she tweeted: “@nprpolitics you guys are completely wrong re the importance of SCOTUS in support for HRC.”
So, to recap: Gray supported Sanders in the primaries, did not support Clinton in the general despite Clinton’s focus on the Court, minimised the importance of the Court once Trump became President, and then, in a remarkable acrobatic feat, attacked institutional Democrats like Clinton for failing to prevent the predictable and predicted outcome of handing Republicans the presidency and the Senate. Briahna Joy Gray is, of course, an individual, and to cite her alone is irresponsible. Yet she functions very well as a case study; after all, in 2017 the University of Massachusetts, Amherst, published data showing that 12% of Sanders backers did not go on to vote for Clinton. That is 1.6 million ballots either not cast, or cast for Trump, Stein, or Johnson.
This is not to exonerate Clinton. The former Secretary of State has been unflinching in her introspection. She wrote in the author’s note to What Happened, “I’ve tried to learn from my own mistakes[…]There are plenty[…]and they are mine and mine alone.” Nonetheless, the essential fact remains. There is a correlation between those who denied support to Clinton at what she clearly broadcast as the pivot point in the abortion struggle, and those who now blame and attack the Democrats for the Dobbs decision, and it is an infuriating correlation.
If the end of Roe was locked in almost six years ago, one might reasonably ask how Democrats have prepared for this moment in the interim; they do technically control the legislature and the executive and have since January 2021. At this point, Nancy Pelosi is perhaps the most important figure to examine.
Pelosi is the Speaker of the House of Representatives and Leader of the House Democratic Caucus. She is regularly excoriated by progressive media and Twitter circles, in addition of course to the entire American right. Consequently, her approval rating is – 12%.
Pelosi is also the example par excellence of a bizarre phenomenon in American politics often satirised by the Twitter account “New York Times Pitchbot” in which equivalences get drawn, often by people on the left, between Democrats being cringe and Republicans being downright evil. Yes, Nancy Pelosi is cringe; no one can deny it. To mark the one year anniversary of the Jan 6th Insurrection, she introduced the cast of Hamilton to perform, quoting in the process the song, Dear Theodosia: “We’ll make it right for you. If we lay a strong enough foundation, we will pass it on to you, and we will give the world to you.”
This tiny, inconsequential absurdity was very widely reported, and much mockery ensued. In the process, a not insignificant number of people lost sight of the fact that one year previously American democracy came under siege, a siege aided and abetted by Congressional Republicans.
A similar thing happened post-Dobbs. At her press-conference, Pelosi quoted from the Hebrew poem, I Have No Other Country, by Ehud Manor: “I have no other country even though my land is burning[…]I will not be silent because my country has changed her face. I shall not give up on her, I shall remind her and sing into her ears until she will open her eyes.” People were quick to jump on this; the critique was essentially that Democrats were providing poetry in lieu of action and women were going to die because of it.
Yet this was entirely untrue and entirely unfair. Once again, rhetoric was dissected and substance brushed aside, reinforcing a narrative not reflected in reality. In September 2021, the House, the legislative body over which Pelosi presides, passed the Women’s Health Protection Act (WHPA). The bill sought to embed abortion access in statute and strip away the restrictions built up in red states over the preceding decades. The vote was 218-211. One Democrat voted nay. Nancy Pelosi, whose control over her caucus is legendary and certainly far superior to any Speaker since Sam Rayburn, lost only one vote on a controversial bill that was certain to fail in the Senate. Pelosi did her bit in protecting the right to an abortion; she can do nothing more than send legislation from the House to the Senate.
The WHPA, as expected, died in the Senate this February. The analysis of what happened here constitutes the crux of this article. The great tumour slowly killing the Senate is an arcane procedural rule known as the filibuster which, simply put, means almost all legislation requires 60 votes to pass, a super majority, rather than a simple majority of 50 in the 100 seat chamber. The filibuster was both created and discovered almost by accident and, like most highly destructive things, went mostly unused for much of its history – the shameful exception to this being its efficacy in delaying the legislative progress of civil rights by several decades.
In the political environment of the 21st century, it is essentially impossible for one party to boast 60 Senators. Off the back of two incredibly successful cycles (2006 and 2008), as well as a defection from the Republicans, Democrats and their Independent allies held such a supermajority; but this lasted for just 72 days in 2009. At no other point in the last 30 years has one party wielded such power, and this is highly unlikely to change any time soon. What this means, therefore, is that passing legislation necessitates bipartisan agreement.
On the face of it, this sounds inoffensive. Defenders of the filibuster trumpet grand notions of agreement and compromise and argue that by forcing buy-in from both parties, tyranny of the majority is avoided and all legislation is moderated and mainstreamed. The corollary to this is the absurd and circular claim that any legislation which cannot achieve 60 votes is too radical and does not merit being passed.
The flaw here is breathtakingly obvious. As Mitch McConnell figured out in 2009 (though the political winds had been blowing in this direction for a while), the minority party has all the power to obstruct the agenda of the majority. Not only does the majority’s agenda then not get passed, voters tend to blame those nominally in control of government for gridlock and punish them accordingly in midterm elections. The incentive structure of US government is thus as follows: use the filibuster to block everything you do not like, and get back into power for doing so. This works particularly well for Republicans because, particularly in comparison with Democrats, they are not actually that interested in legislating when in power.
What this means is of critical importance: the filibuster does not produce compromise, rather it is used to kill almost every bill which it encounters. Voting rights, climate change mitigation, gun control, immigration reform; sweeping bills addressing all these subjects have had majority support, often from both parties, and fallen to the filibuster.
As of 2022, Democrats hold a governing trifecta. Joe Biden is the President, Pelosi has a sliver of a majority of the House, and the Senate is divided evenly, 50-50. In the case of a tie, it falls to the Vice President, now Kamala Harris, to break the deadlock, giving Democrats an effective 51st vote.
Yet, as anyone paying attention will have realised, 50, or 51, is a lot less than 60. Thus far, the reason that Democrats have been able to legislate in a partisan manner even a little bit is that certain fiscal bills are subject to a byzantine workaround called Budget Reconciliation which allows them to pass with 51 votes. Abortion rights, however, are not principally a fiscal matter and accordingly must clear the 60 vote threshold. This will not happen. Barring a once in a century political realignment, there will never be 10 Republican votes for legislation like the WHPA. Two Republicans (Lisa Murkowski in Alaska, and Susan Collins in Maine) actually support abortion rights and Roe, but both voted against the WHPA, accurately noting that the bill was more expansive than the original Roe decision.
With this explanation out of the way, we arrive at the actual Senate vote of February 2022. For cloture (the vote taken to break a filibuster, effectively functioning as a proxy vote on the legislation itself) on the WHPA, there were 46 “ays” and “48 nays”. Three Democrats and three Republicans did not vote. Based upon absolutely everything about the six non-voting members, one can confidently state that had they been present the Democrats would have voted “ay” and the Republicans “nay”. This would have produced a vote of 49-51. Therefore, one Democrat must have voted against the bill. This Democrat was the senior Senator from West Virginia, Joe Manchin.
Manchin is a complex figure. He is both unfairly maligned by Democrats who do not understand his importance (holding the tipping-point Senate seat and representing a state Joe Biden lost by 40 points), and fairly criticised by Democrats who point out that he is a mercurial, capricious, often downright disingenuous negotiating partner. Manchin, as he clarified post-Dobbs, does actually support Roe and a woman’s right to choose, even whilst personally being pro-life. At any rate, Manchin’s vote against the WHPA, like the votes of Murkowski and Collins, was immaterial. The cloture motion could not have been broken, even with 52 votes.
The conclusion one might draw from reading this article is that the situation is hopeless and unredeemable. Democrats can control the House, Presidency, and Senate, but without 60 votes, all of this comes to naught. Additionally, the Court is now comparatively youthful and the conservative majority thus appears locked in for the foreseeable future. This conclusion is inaccurate. There is reason to hope and there is one solution to the problem.
Court-packing does not, in the near term, seem feasible. It does not have deep support in Congress and besides, if American politics were not farcical enough already, one can imagine a scenario in which Democrats construct a new, 13 seat Court, only to see it supplanted two years later by a 21 seat Republican Court. The only solution is to pass legislation at the federal level which protects the right to abortion, and the only way to do this is to get rid of the filibuster.
Perversely, though the filibuster mandates 60 votes for legislation, Senate rules can actually be changed on a majority vote basis. The filibuster has been tweaked in the past, most recently by Democrats in 2013, to make appointing federal judges and executive branch nominees easier, and by Republicans in 2017 in order to get Neil Gorsuch onto the Supreme Court. The legislative filibuster, however, has only become a subject of contestation comparatively recently. 48 Democratic Senators are willing either to abolish the rule or to gut it further, and voted as such in January during an effort to pass voting rights legislation. The two Democratic holdouts are Kyrsten Sinema (Arizona), and Joe Manchin. They will not budge. It would be laborious and painful to recount the torturous history of Democrats trying to sway those two, so it must suffice to say that their minds are made up and essentially nothing will change them.
The good news, however, is that two votes in one chamber stand in the way of national abortion protections. Joe Biden made this perfectly plain in his remarks on the 8th of July: “We need two additional pro-choice senators and a pro-choice House to codify Roe as federal law.” If, after the midterm elections in November, Democrats were to remain in control of the House and pick up two Senate seats, legislation rendering Dobbs essentially moot would reach Biden’s desk and be signed into law. The solution to a lack of political power is more political power.
Unfortunately, this is unlikely for reasons I described in an article in February. To summarise with the aid of newly available forecasting, 538 currently gives Republicans an 85% chance of winning the House and has Senate control at roughly 50/50 with 52 Democratic senators as far less likely.
There are two winnable Senate races with anti-filibuster, pro-choice Democratic candidates (Wisconsin and Pennsylvania), but the electoral lift is undoubtedly a heavy one. Achieving the midterms result required to protect fundamental rights and freedoms would be historic and historically rare, particularly given polarisation and an economic outlook that, to the voters at least, appears bleak.
But of course it is not easy. Republicans and conservatives have been organising towards Dobbs for half a century. Their incrementalism and their patience has been both impressive and chilling. The idea that this can be reversed or meaningfully assuaged by Biden and Democratic leadership overnight is fantastical and indicates a petulant unawareness that democracy and democratic success take thoughtful, long term work. In addition to work, victory against a well organised and highly focussed opponent requires unity. There is a pro-choice party, it is imperfect, it is often cringe, and many of its leaders do sort of suck. However, if said party gets more political power, abortion rights can be protected. If the opposition party gets more power, they cannot be. Not only that, there is no reason to think that the rights of women would not be further impinged upon by bolstered Republicans. On the 7th of July, The Hill, among other outlets, ran an article with the headline, “House Republicans weigh national abortion restrictions.”
Democracy is hard, and it is flawed. Democracy in America was ragged even before Donald Trump. And yet it does at least present a clear choice. On the one hand, each day that passes it feels more and more as though Republicans are engaged in a Rothesque “plot against America”; on the other hand, Democrats are a little annoying and are actually constrained by the political realities which Turner, Gray, and other parts of the left have never faced (since they do not and cannot actually win elections). Attacking Democrats at this juncture, rather than spending every hour reminding voters that Republicans are the enemies of democracy and personal freedoms, is a childish and petulant act of self-immolation, and should always be dismissed as such.
The narrative of civil rights is one in which many Americans take pride. Martin Luther King Jr. is a mostly inviolable figure in America, commemorated today with a federal holiday originally signed into law by Ronald Reagan. Yet, for all that popular histories of the civil rights era centre protest, civic action, and stirring rhetoric, King himself understood that these components were wan without political power. From 1963, following Kennedy’s assassination, until 1965, King worked closely with President Lyndon B. Johnson. The two invoked the legacy of the dead Kennedy to gather both popular and congressional support for the Civil Rights Act of 1964. King then supported Johnson during his towering election campaign that same year. And, in January 1965, several weeks prior to his State of the Union Address, Johnson informed King of his plans for the Voting Rights Act, requesting that King “find the most ridiculous illustration you can on voting, point it up and repeat it” in order to mobilise public opinion. That March saw the Selma to Montgomery marches and ‘Bloody Sunday’. One week later Johnson introduced the Voting Rights Act with the words: “And we shall overcome.”
Productive social change requires the marriage of politics and protest. Even prior to the Vietnam War, King and Johnson had differences, but both acknowledged adjacent goals. King knew that the civil rights movement would only be successful once the political battle was won, and he knew that this necessitated incrementalism, passing one bill and then going back for another. It is a project that remains unfinished. King also acted in accordance with the truth forgotten by today’s left: legislating requires political capital, and when political capital is insufficient, more must somehow be acquired. The surest way to weaken your own position is to devolve into a circular firing squad.
40 million women of reproductive age live in states in which abortion is either banned or threatened. The political fight over this issue is too urgent for too many people to countenance the present vanities and internecine squabbles.
Image Credit: Gayatri Malhotra
