Jul 6, 2022

Passing an abortion bill (without the filibuster).

President Biden says he would make a filibuster exception for abortion rights.

I’m Isaac Saul, and this is Tangle: an independent, ad-free, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

First time reading? Sign up here. Would you rather listen? You can find our podcast here.


Today's read: 12 minutes.

President Biden said he may abandon the filibuster for abortion rights. Plus, a question about an Arizona voting law.

BIDEN HARRIS 2020
Photo by Gayatri Malhotra / Unsplash

Don't forget.


Quick hits.

  1. The Highland Park shooter has been charged with seven counts of first-degree murder. New details emerged that he planned the attack for weeks, had weapons taken from him by police in 2019 for threatening behavior, purchased his gun legally and evaded initial capture by disguising himself as a woman. (The details)
  2. A Georgia grand jury investigating alleged attempts to overturn the 2020 election subpoenaed Senator Lindsey Graham and former Trump lawyers Rudy Giuliani and John Eastman. (The subpoenas)
  3. Pete Arredondo, the school district police chief in Uvalde, Texas, resigned his city council seat. (The resignation)
  4. United Kingdom Prime Minister Boris Johnson is facing a political calamity after two of his top Cabinet ministers resigned in protest of his handling of misconduct allegations against a Conservative Party lawmaker. (The resignations)
  5. Russia took control over the Luhansk part of Ukraine's eastern Donbas region, and now controls about one-fifth of the country. (The control)

Our 'Quick Hits' section is created in partnership with Ground News, a website and app that rates the bias of news coverage and news outlets.


Today's topic.

The filibuster. On Thursday, President Biden for the first time expressed support for making an exception to the filibuster rule in order to codify abortion rights and the right to privacy through Congressional legislation.

Reminder: The Senate is the upper chamber of Congress. It functions on what's called unanimous consent. That means if a single senator objects to something, the entire Senate has to stop and address that senator’s concern, usually with what’s called a “cloture” vote. If the vote passes, the debate ends and the Senate moves to a final vote on a judicial nominee or piece of legislation.

However, it takes 60 votes to invoke cloture. Since the Senate is made up of 100 senators, for a long time that meant 41 senators could block the confirmation of a judge or a piece of legislation by refusing to move to the final vote. They would just endlessly call for more debate so no vote could happen. This is called a “filibuster."

Ironically, one of the big things you can't currently filibuster in the Senate is a rules change to the filibuster. So with 50 Democrats on board, Democrats could change the filibuster rules, either broadly or for a specific piece of legislation. In 2013, Democrats eliminated the 60-vote threshold on most judicial nominees. In 2017, Republicans did the same with Supreme Court nominees. Throughout history, the specifics of how the filibuster works have repeatedly changed, but it has remained intact on major legislation.

In January, Democrats floated the idea of changing the filibuster rules to address voting rights, but Biden seemed cool on the idea. When 48 out of the 50 Senate Democrats voted to change the rules, Sens. Joe Manchin and Kyrsten Sinema rejected the move.

Now, Biden is expressing a willingness to eliminate or change the filibuster rules for abortion rights. It’s the first time he has expressed that willingness related to abortion.

"The most important thing ... we have to change -- I believe we have to codify Roe v. Wade in the law," Biden said to reporters on Thursday last week. "And the way to do that is to make sure the Congress votes to do that. And if the filibuster gets in the way, it's like voting rights -- it should be (that) we provide an exception to this ... requiring an exception to the filibuster for this action to deal with the Supreme Court decision."

In a conference call with Democratic governors on Friday, Biden reiterated calls to end the filibuster or create a carve out to pass abortion rights laws. If Biden were to end the filibuster, or create a carveout, it would likely come after the November 2022 midterm elections. Given that Sens. Manchin and Sinema both maintain they would not end the filibuster, Biden would need two more Democratic senators in office to get to 50 votes.

We've done a deep dive on the filibuster's history (subscribers only) and also covered the news about it a few different times, as well as my own shifts in opinion about it. If you want a longer refresher, you can check out one of those articles.

Given Biden's comments and the recent Supreme Court rulings, this set off a wave of new commentary about how Democrats might move forward.

Below, we'll explore some arguments from the right and left, then my take.


What the right is saying.

  • The right argues Democrats will regret abolishing the filibuster, and should consider what's coming.
  • Many say it would create an untenable situation in Congress.
  • Some argue that the filibuster is now on the ballot in the 2022 midterms.

In The Washington Post, Marc Thiessen said it'd be a mistake for Democrats to take such a risk right before an election.

"In an act of stunning political and legislative incompetence, President Biden is calling on Senate Democrats to bypass the filibuster to pass legislation codifying Roe v. Wade — even though he knows full well he does not have the votes to make this happen," Thiessen said. "But even if he did have the votes, it would be foolish to weaken the filibuster just months before a wave election that is expected to sweep Democrats out of power on Capitol Hill. The president’s party has lost, on average, 27 House seats in midterm elections since 1946. And this will not be an average midterm election. Biden has been the most unpopular president since the modern polling era began with Harry S. Truman. Republicans are all but certain to win back the majority in the House, and need only a net gain of one seat to take back the Senate.

"It’s possible that Democrats could somehow manage to hold off a GOP Senate takeover in 2022, but the field is even more tilted toward Republicans in 2024," Thiessen said. "Democrats will be defending 23 seats, while the GOP will be defending just 10. None of those GOP seats are in states Biden won in 2020 — and only one, Florida Sen. Rick Scott’s, is in a state that Donald Trump won by less than five points. So the odds are overwhelming that if Republicans don’t win back the Senate this year, they will do so in 2024. And considering the unprecedented serial disasters Biden has unleashed in his first term, Republicans are more than likely to control the House, Senate and White House in just over two years’ time."

The Washington Times editorial board said Biden already forgot what a mistake this was.

"Mr. Biden, who will turn 80 in November, perhaps can blame a 'senior moment' for his inability to remember back to 2013, but Senate Democrats who were there at the time obviously learned nothing from then-Majority Leader Harry Reid’s detonating the 'nuclear option' and having it blow up in their faces," the board said. "Let’s refresh their collective memories. Mr. Reid, Nevada Democrat, orchestrated the elimination of the Senate filibuster on nominations of federal district court and appeals court judges so his party could ram through then-President Barack Obama’s radical left-wing judicial nominees over the objections of Senate Republicans. Sen. Mitch McConnell, then, and currently, the minority leader, warned Democrats at the time that it would be a Pyrrhic victory and a short-lived one at that.

"After Republicans recaptured the Senate and Donald Trump became president, they took the 'nuclear option' to its logical next step, abolishing the filibuster on Supreme Court nominees, stripping Democrats of their ability to block Mr. Trump’s three high court picks," they wrote. "Thanks in no small part to Mr. Reid’s shortsighted, partisan power grab, Justices Neil M. Gorsuch, Brett M. Kavanaugh, and Amy Coney Barrett are on the bench today. Their votes in Dobbs v. Jackson Women’s Health Organization resulted in Roe being overturned."

The Wall Street Journal editorial board said ending the filibuster is now on the ballot.

"As if the stakes for November’s elections weren’t high enough, President Biden now says he wants to bust the Senate’s filibuster to guarantee access to abortion," the board wrote. "It won’t happen before November, since the cooler heads of Sens. Kyrsten Sinema and Joe Manchin are defending the filibuster’s moderating purpose. Democrats will no doubt forget to thank them when Republicans next take power. But how long can they hold off progressive demands? The Senate is 50-50, so if Democrats pick up two seats in the midterms, that could be the end.

"Don’t be deluded by Mr. Biden’s sales pitch about a single-issue 'exception' to the 60-vote filibuster rule. This is like an engineer saying he wants to relieve pressure on the Hoover Dam by blasting a small section of concrete. The result wouldn’t be a trickle. Mr. Biden previously called for 'making the exception of voting rights for the filibuster.' Is a carve-out for climate bills next? Once the legislative filibuster is killed for one priority, it will go for everything. That’s what happened to the filibuster on judicial nominees... The legislative filibuster frustrates both parties when they’re in power, but it prevents policy whiplash. Without it Democrats could remake the Supreme Court. But Republicans could take over, add more Justices, and institute national right to work and private accounts in Social Security. Congress would be a policy yo-yo, and elections would feel even more existential than they do today."


What the left is saying.

  • The left is divided on the issue, with some supporting the filibuster and others opposing it.
  • Some argue that Biden is not the fighter the left needs, but should go as far as possible.
  • Others say there are better options than abolishing the filibuster.

In Bloomberg, Matthew Yglesias criticized the idea, saying it's an "ideal strategy if the goal is not to pass a bill but to placate Democratic interest groups."

"The legislation for which the filibuster would be lifted is something called the Women’s Health Protection Act, a bill Democrats characterize as 'codifying Roe v. Wade' but that goes further in some areas than the Supreme Court precedents that existed prior to this year," Yglesias wrote. "So the conditions are set for one of the Biden administration’s favorite ploys: assuring the various party factions that all their dreams would come true but for the dastardly senatorial duo of West Virginia’s Joe Manchin and Arizona’s Kyrsten Sinema, both of whom oppose filibuster reform... There is a better way.

"Republican Senators Susan Collins of Maine and Lisa Murkowski of Alaska have a bill that would federally entrench the 'undue burden' standard established by the Casey v. Planned Parenthood decision without going as far as the Women's Health Protection Act (WHPA) in blocking all kinds of state-level abortion curbs," Yglesias wrote. "Democrats could, without asking the more progressive members of the caucus to abandon their support for WHPA, hold a floor vote on the Collins-Murkowski bill. That wouldn’t pass either (thanks, filibuster), but it would put Republicans on the defensive as blocking a bipartisan bill. Vulnerable Democratic members such as Catherine Cortez Masto of Nevada, Raphael Warnock of Georgia, Maggie Hassan of New Hampshire and Mark Kelly of Arizona could be on camera shoulder-to-shoulder with moderate Republicans rather than ensnared in intra-party infighting."

In The Nation, Jeet Heer argued that Biden is not the fighter America needs.

"Some congressional Democrats have come out for bolder action [than a filibuster carveout]," Heer said. "As Reuters notes, 'Lawmakers including Senator Elizabeth Warren and Representative Alexandria Ocasio-Cortez have suggested Biden limit the Supreme Court’s jurisdiction or expand its membership, end the legislative “filibuster” rule, build abortion clinics on federal lands, declare a national emergency and establish Planned Parenthood outposts outside U.S. national parks, among other options.' To be sure, some of these proposals are risky in the sense that they would receive blowback from Republicans, including GOP-appointed judges. And following these actions would require even more radicalism in the future: If Biden leased out land to abortion clinics on federal land, he’d have to be prepared to give blanket preemptive pardons to doctors and patients in case they are charged in the future.

"Yet, despite the risks, these radical proposals also bring considerable benefit: They would establish that reproductive rights are crucial, worth fighting for, and have the full support of the Democratic Party," Heer said. "They would make Biden into a fighting president, the leader of a just and necessary cause. But it is precisely because they involve fighting that Biden shies away from them. He’s a conciliator, not a combatant... If you are a politician who really wants to secure backing for an agenda, these aren’t reasons for inaction but rather for forging ahead. After all, if you want to fight an election where you strongly disagree with the rival party, then polarization is good. You would want to underscore, highlight, and proclaim as often and as loudly as possible that you believe in abortion rights and the GOP doesn’t. And if you have a court that is deeply reactionary (not just on abortion but on a host of other issues you care about like climate, gun control, and election laws), then ‘undermining public trust’ is a good thing."

In The Atlanta Voice, Victoria Nourse said even abolishing the filibuster to codify Roe v. Wade will leave Democrats back before the Supreme Court.

“The current codification bill, the Women’s Health Protection Act, rests in part on the theory that Congress has power over ‘commerce,’ and abortions involve commerce. But there are weaknesses in this argument,” Nourse wrote. “The court, not Congress, ultimately determines what is commerce. Even when Congress has created an incredibly strong factual record showing a commercial connection, the court has sometimes seen fit to reject it. In the 2000 case, United States v. Morrison, the Supreme Court said that a sexual assault was not commerce, and therefore any national economic law allowing survivors to sue their attackers was unconstitutional — despite a ‘mountain of data’ showing a link between women’s economic prospects and gender-based violence.

“Is there an answer to this for Roe codification advocates? Yes. Very, very careful drafting, a raft of Senate and House hearings and clear thinking about the opposition. The bill must not say that it is changing constitutional law, it cannot rely upon the term ‘right to abortion,’ for after Dobbs, there is none. The drafters must focus on language that has already been upheld under the commerce clause involving the regulation of medical procedures. They should include language that specifically rejects, as a factual matter, the narrow Morrison analysis: ‘Congress finds that abortion is an economic activity and cannot be reduced to an operation or assault.’ … Members should emphasize why women’s actual life has constitutional protection that transcends the constitutional protection of potential life. They should rebut the Dobbs’ analysis of the Fourteenth Amendment’s equal protection clause, making clear that women are equal ‘citizens’ under the ‘citizenship’ clause of that amendment and that denying women the power to make medical decisions violates that amendment.”


My take.

We've covered the filibuster a lot, so there probably won't be many surprises here. I've said before and will say again that I oppose abolishing the filibuster. My position has see-sawed a bit on this, but if anything I think the last few months show why that position is rational for both Democrats and Republicans.

We've covered five Supreme Court rulings in the last week or two. I'd describe my position on those rulings as decidedly mixed, though each has presented real-world, tangible implications that concern me deeply. The one at question here is the end of Roe v. Wade, a reality that only came to fruition because Congress chipped away at the filibuster. If Republicans had needed 60 votes in the Senate to confirm Justices Kavanaugh, Barrett and Gorsuch, we'd be looking at a more moderate court and a different outcome. We'd be experiencing gradual changes rather than the whiplash of decades of precedent being undone or new precedent being created.

But if the changes happening to the country at the hands of the court feel big and swift and jarring, it seems obvious to me that we'd be in for something far worse if we abolished the filibuster for major legislation. Whatever Democrats think they could accomplish with 50 votes — an abortion protection bill, climate change funding, a federal minimum wage increase — would almost certainly be undone in 2022 or 2024.

And it wouldn't just be undone. It could come with mandatory voting ID, the repeal of Obamacare, or a massive immigration overhaul, depending on how ambitious or confident Republicans were feeling. These are nightmare scenarios for the left. The Republican moderates many Democrats lionize now — like Mitt Romney or Susan Collins or Lisa Murkowski — would be totally de-fanged. In a potential world in 2024 where Republicans have 53 or more Senate seats, the presidency, and a House majority, the center could be far less relevant.

Many on the left argue that Congress simply “doesn’t do anything,” and abolishing the filibuster would allow us to elect candidates who address our desires as voters. But I don’t find this framing convincing at all. In the last six years, Congress has passed some of the largest, most sweeping legislation in American history: Several massive Covid-19 relief bills, major tax reform, a gun control bill, the USMCA, The First Step Act, and a $1.2 trillion infrastructure bill, just to name a few. The reality is what hasn’t been passed are bills that are somewhat popular nationally but deeply unpopular in many red states, which keeps a lot of Republican senators and moderate Democrats from getting on board.

Each party's power is fleeting, and that is precisely what keeps both sides from wading into the filibuster reform abyss. Whatever gains Democrats think they could make with a few months or even two years of a Senate majority and no filibuster would be short-lived. And it wouldn't even be guaranteed: Manchin and Sinema take a lot of flak right now, but there are almost certainly other Democrats unwilling to take difficult votes whose position will become more obvious if their votes became more relevant with no filibuster and a stronger Democratic majority.

I understand there is considerable disagreement here on the left. Shoot, there is considerable disagreement here among my own staff, a few of whom I know strongly disagree with my position (and expressed their disagreement loudly today). But I think killing the filibuster is dangerous, bad for Congress, bad for Democrats, bad for Republicans, and would create more chaos than substantial progress in the short or long-term.

I also think there are much better options, politically, for Democrats. Yglesias, however you feel about him otherwise, is right about this.

The smartest move, from a purely political perspective, would be to take up the Republican abortion bill (sponsored by two Republican women) and push it forward. Democrats could also create their own, narrower bill that codifies the most popular abortion rights: Exceptions for rape and incest, protections for at least 10 weeks, guarantees that the life of the mother is prioritized, and the right to interstate travel to seek out abortions.

Worst case scenario is nothing passes before the midterms, which is the reality even if you try to abolish the filibuster, and you carry those talking points into 2024: Republicans won't vote to make exceptions for rape and incest, or to protect the life of the mother, or to allow abortion in the first 10 weeks. Best case scenario is you get 10 Republicans on board before the midterms or you motivate massive turnout on the issue with Republicans in the way. Both seem like better options for Democrats that trying to abolish the filibuster.

Instead, though, the party is mired in an internal dispute about abolishing the filibuster (which they don't have the votes to do anyway) to pass The Women’s Health Protection Act (a bill that won’t be all that popular nationally). When we covered Dobbs v. Jackson, I wrote that Republicans didn’t have a good plan for what to do if Roe were overturned. What’s become obvious, somewhat shockingly, is that despite the leak of the Dobbs decision in May and the years of work conservatives have put in to strike down Roe v. Wade, Democrats also don’t appear to have any kind of plan for what to do next.

And it’s showing.

Have thoughts about "my take?" You can reply to this email and write in or leave a comment if you're a subscriber.


Your questions, answered.

Q: I see the Justice department is suing Arizona over requiring proof of citizenship for voting. It seems reasonable to me that one would need to be a citizen in order to vote. Am I missing something?

— Frances, Lynwood, Washington

Tangle: Whether or not it’s reasonable, the big issue here is that it's actually unconstitutional — at least, according to the Supreme Court in 2013.

What the bill in Arizona requires is voters to provide proof of citizenship — like a birth certificate, passport or naturalization papers — on a voter registration form. It also mandates that county officials cross-check voter registration rolls with citizenship records and disqualify people if they aren't listed as citizens in the database.

That may all seem benign enough. As I've said in the past, I don't think non-citizens should be able to vote. But in 2013, the Supreme Court said a similar law was unconstitutional because federal statutes do not require such documentation. As the Justice Department's lawsuit put it, a prospective voter being able to provide documentary proof they are a citizen “is not material to whether that voter is qualified to vote by mail or in presidential elections.” In plain language: The inability to produce proof of citizenship at the ballot box is not proof you aren't a citizen.

Right now, Arizona already has an attestation of citizenship on the ballot, and lying about that is a crime. The Justice Department's argument is that without proof of widespread non-citizens voting, there is no reason to create an additional burden to voting (one that would impact immigrants and poor people more than other voters). For whatever it’s worth, Arizona's state legislature legal counsel also warned that the bill could run afoul of the law, and many legal experts seem to think the Justice Department's case is strong.

Want to ask a question? You can reply to this email and write in (it goes straight to my inbox) or fill out this form.


A story that matters.

Several states are stuck debating whether to send out "inflation relief" checks for their residents — the kind of fiscal stimulus some economists believe helped cause inflation in the first place. California is considering a $1,050 check to taxpayers as part of a $17 billion package, with more money going to lower-income residents. Colorado, Indiana, Maine and Delaware may initiate similar (but smaller) bills, according to Axios. If just a few states send out these checks, the impact nationally could be minimal. But if they gain traction, some experts warn it could worsen inflation in the short-term. With so many states in a budget surplus this year, and midterm elections around the corner, state officials could be tempted to appease voters with cash. Axios has coverage of the debate.


Numbers.

  • 21%. The percentage of Democrats who strongly or somewhat support the filibuster rule, according to a June YouGov poll.
  • 51%. The percentage of Republicans who strongly or somewhat support the filibuster rule, according to a June YouGov poll.
  • 23%. The percentage of Democrats who are unsure whether they support the filibuster rule, according to a June YouGov poll.
  • 27%. The percentage of Republicans who are unsure whether they support the filibuster rule, according to a June YouGov poll.
  • 69%. The percentage of Americans who said abortion should be legal in the case of rape, according to a Pew study from May.
  • 56%. The percentage of Republicans and Republican-leaning voters who shared that view.
  • 56%. The percentage of U.S. adults who think the stage of abortion matters when considering abortion’s legality.
  • 19%. The percentage of U.S. adults who think abortion should always be legal, with no exceptions.
  • 8%. The percentage of U.S. adults who think abortion should always be illegal, with no exceptions.

Have a nice day.

Florida's Craig Clark is known locally as the "tech fairy." That's because the retired computer technician is now spending his time fixing up old, broken computers and giving them to people in need. Clark says he has already given away over 430 computers. Clark began his mission after learning that a 7-11 employee he was talking to had dropped out of college because someone stole her computer. He ended up gifting her a refurbished laptop which she then used to graduate. So he started seeking out computers and pairing them with people in need on the NextDoor app, and now has a reputation for changing lives in his community. USA Today has the story.


❤️  Enjoy this newsletter?

💵  Drop some love in our tip jar.

📫  Forward this to a friend and let them know where they can subscribe (hint: it's here).

📣  Share Tangle on Twitter here, Facebook here, or LinkedIn here.

🎧  Rather listen? Check out our podcast here.

🛍  Love clothes, stickers and mugs? Go to our merch store!

Subscribe to Tangle

Join 40,000+ people getting Tangle directly to their inbox!

Isaac Saul
I'm a politics reporter who grew up in Bucks County, PA — one of the most politically divided counties in America. I'm trying to fix the way we consume political news.

Join the conversation