washington, dc

The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Ed Kilgore

September 16: You Can’t Save Democracy By Appeasing Its Enemies

Having spotted an argument for stubborn bipartisanship on voting rights, I decided to respond at New York:

Right now, voting rights in America are subject to a condition of partisan gridlock in Washington that preserves Republicans’ ability to wreak havoc on voting and election laws in the states they control. So long as centrist Democrats Joe Manchin and Kyrsten Sinema refuse to consider a carve-out for voting-rights legislation to liberate it from the Senate filibuster, that’s where things will stand at least through the 2022 elections, in which the GOP has a very good shot at busting up the current Democratic trifecta.

The Manchin-Sinema position is that voting-rights protections must be enacted by a bipartisan coalition to instill confidence in the system given the Trump-induced mistrust that metastasized during and after the 2020 elections, inspiring the attempted and ongoing MAGA coup to challenge or overturn the results. The central question now is what happens when (it’s no longer really a matter of “if”) it becomes unmistakably clear that Republicans won’t cooperate with “compromise” efforts like those in which Manchin has engaged twice this year.

At the invaluable Election Law Blog, Ohio State University professor Ned Foley answers the question by suggesting Democrats might just want to let the GOP do its worst for a while, assuming the “worst” doesn’t fall below some hypothetical “floor” of “minimal conditions necessary for an election to qualify as being small-d democratic.” His basic argument provides sort of a theoretical underpinning for Manchin’s reflexive belief (sincere or merely tactical, given the very red political coloration of his state) that election reforms that aren’t bipartisan simply aren’t worth enacting.

Before addressing Foley’s take, I will emphasize that his counsel of strategic surrender for Democrats is contingent, not absolute: If Republicans violate the hypothetical “floor” that Foley discusses but does not define, then he says Democrats have no choice but to override GOP voter-suppression measures if they can, even if such partisan action exacerbates the GOP’s “electoral McCarthyism” (his term for the Big Lie ideology of pervasive but never documented “voter fraud” claims).

But Foley pretty clearly thinks that what Republicans are doing in states like Georgia and Texas isn’t so very bad, and concentrates his argument on the importance of keeping Republicans from falling into an authoritarian pit forever:

“[W]hen as now the especially dangerous and distinctive paranoid conditions of electoral McCarthyism have taken root, and are growing, it seems as if that kind of one-party imposition of its electoral policy preference upon the other party that suffers from the paranoia of electoral McCarthyism has the potential of being extremely counterproductive. Indeed, it risks propelling forward the possibility of a reaction that would cause the society to fall below the floor of what’s essential for small-d democracy, thereby bringing out the circumstance that is exactly desired to be avoided.”

It’s less obvious how Foley (or Manchin) would ameliorate “electoral McCarthyism,” other than this very wishful thinking:

“Might it not be a smarter strategy to let Republicans write the rules for upcoming elections (as long as they remain within the realm of adequacy in terms of casting and counting votes), and then be able to say to them after they have lost, ‘Hey, we conducted the process exactly how you wanted it; what possibly gives you a basis for complaining with the result just because you lost?'”

There are two pretty big and obvious problems with this surrender strategy. The first is the most obvious: What if Republicans don’t lose in 2022 or 2024? If they win, they may very well be convinced that making it harder for their enemies to vote saved them, and ask for more helpings of the same satisfying meal. They will, moreover, have the power to do just that in more states, and to thwart Democratic voting-rights efforts in Washington for the foreseeable future. A Democratic surrender on voting rights that produces defeat would be accurately viewed as a betrayal of the loyal minority constituencies that lifted Democrats to victory in 2020.

The second flaw in the surrender strategy is it relies on the premise there is some silver bullet that will slay the Big Lie; that there is a single item feeding Republican “mistrust” of the electoral system that can be disproved by letting them indulge their malign fantasies. There really isn’t.

Yes, some Republican base voters believe without evidence that there is currently rampant “voter fraud” that can be prevented with greater vigilance. Others think voting by mail is inherently corrupt; since it hasn’t been outlawed anywhere, wouldn’t reestablishing the traditional Election Day — part of the lost America Donald Trump promised to restore — be an important agenda item to be pursued with renewed vigor? Still others think the problem is easily herded minority voters who want to vote themselves government benefits (the heart of Mitt Romney’s famous “47 percent” remark); they might favor a return to literacy tests or polls taxes. Some “constitutional conservatives” reject any electoral outcomes that undermine “natural rights” (e.g., to property or to fetal “personhood”) that they regard as having been established by the Founders and God Almighty. They aren’t going to wake up and recommit to small-d democracy.

And then you have the people who exist in both political parties, and indeed every political party from the beginning of time, who don’t bother with theories or evidence or “rights” at all and simply favor whatever electoral arrangements improve their chances of victory. What makes today’s Republicans distinctive in that respect is that their leader, the 45th president of the United States, exemplifies that attitude as much as Jesus Christ exemplified the Golden Rule. Indeed, winning at any cost is Donald Trump’s Golden Rule.

Even in the more “reasonable” precincts of the Republican Party, among people who don’t promote the Big Lie and all but visibly roll their eyes at Trump’s excesses, there is currently an iron and nearly universal opposition to the enhancement of any federally established voting rights, even those (most notably those protected by the Voting Rights Act of 1965) that their own party accepted and even celebrated until the U.S. Supreme Court began tearing them apart in recent years. So even if Foley is right and the current passion for vitiating voting rights at the state level burns itself out, does that mean bipartisan support for establishing a durable national floor for voting rights via federal legislation will magically return? There’s no reason to think so.

It’s regrettable that purely partisan avenues are the only ones available to Democrats right now on this and so many other crucial questions. And yes, wherever possible, Democrats should exhibit reasonableness unilaterally as the sole custodians of small-d democracy. A voting-rights bill imposed by a filibuster carve-out or (even less likely) budget reconciliation need not include every conceivable or advisable reform, so as to enable Republican claims of a “power grab.” Restoring the Voting Rights Act to its original dimensions might be enough, along with modest measures to clarify how post-election challenges work so the courts don’t have to litigate them endlessly.

If today’s wave of voter suppression in the States grows worse next year and after the midterms, the folly of Manchinism will become more evident than ever. You cannot restore bipartisanship, on voting rights or anything else of significance, by giving power to your extremist opponents in hopes they will come to their senses or become glutted with too much winning.


You Can’t Save Democracy By Appeasing Its Enemies

Having spotted an argument for stubborn bipartisanship on voting rights, I decided to respond at New York:

Right now, voting rights in America are subject to a condition of partisan gridlock in Washington that preserves Republicans’ ability to wreak havoc on voting and election laws in the states they control. So long as centrist Democrats Joe Manchin and Kyrsten Sinema refuse to consider a carve-out for voting-rights legislation to liberate it from the Senate filibuster, that’s where things will stand at least through the 2022 elections, in which the GOP has a very good shot at busting up the current Democratic trifecta.

The Manchin-Sinema position is that voting-rights protections must be enacted by a bipartisan coalition to instill confidence in the system given the Trump-induced mistrust that metastasized during and after the 2020 elections, inspiring the attempted and ongoing MAGA coup to challenge or overturn the results. The central question now is what happens when (it’s no longer really a matter of “if”) it becomes unmistakably clear that Republicans won’t cooperate with “compromise” efforts like those in which Manchin has engaged twice this year.

At the invaluable Election Law Blog, Ohio State University professor Ned Foley answers the question by suggesting Democrats might just want to let the GOP do its worst for a while, assuming the “worst” doesn’t fall below some hypothetical “floor” of “minimal conditions necessary for an election to qualify as being small-d democratic.” His basic argument provides sort of a theoretical underpinning for Manchin’s reflexive belief (sincere or merely tactical, given the very red political coloration of his state) that election reforms that aren’t bipartisan simply aren’t worth enacting.

Before addressing Foley’s take, I will emphasize that his counsel of strategic surrender for Democrats is contingent, not absolute: If Republicans violate the hypothetical “floor” that Foley discusses but does not define, then he says Democrats have no choice but to override GOP voter-suppression measures if they can, even if such partisan action exacerbates the GOP’s “electoral McCarthyism” (his term for the Big Lie ideology of pervasive but never documented “voter fraud” claims).

But Foley pretty clearly thinks that what Republicans are doing in states like Georgia and Texas isn’t so very bad, and concentrates his argument on the importance of keeping Republicans from falling into an authoritarian pit forever:

“[W]hen as now the especially dangerous and distinctive paranoid conditions of electoral McCarthyism have taken root, and are growing, it seems as if that kind of one-party imposition of its electoral policy preference upon the other party that suffers from the paranoia of electoral McCarthyism has the potential of being extremely counterproductive. Indeed, it risks propelling forward the possibility of a reaction that would cause the society to fall below the floor of what’s essential for small-d democracy, thereby bringing out the circumstance that is exactly desired to be avoided.”

It’s less obvious how Foley (or Manchin) would ameliorate “electoral McCarthyism,” other than this very wishful thinking:

“Might it not be a smarter strategy to let Republicans write the rules for upcoming elections (as long as they remain within the realm of adequacy in terms of casting and counting votes), and then be able to say to them after they have lost, ‘Hey, we conducted the process exactly how you wanted it; what possibly gives you a basis for complaining with the result just because you lost?'”

There are two pretty big and obvious problems with this surrender strategy. The first is the most obvious: What if Republicans don’t lose in 2022 or 2024? If they win, they may very well be convinced that making it harder for their enemies to vote saved them, and ask for more helpings of the same satisfying meal. They will, moreover, have the power to do just that in more states, and to thwart Democratic voting-rights efforts in Washington for the foreseeable future. A Democratic surrender on voting rights that produces defeat would be accurately viewed as a betrayal of the loyal minority constituencies that lifted Democrats to victory in 2020.

The second flaw in the surrender strategy is it relies on the premise there is some silver bullet that will slay the Big Lie; that there is a single item feeding Republican “mistrust” of the electoral system that can be disproved by letting them indulge their malign fantasies. There really isn’t.

Yes, some Republican base voters believe without evidence that there is currently rampant “voter fraud” that can be prevented with greater vigilance. Others think voting by mail is inherently corrupt; since it hasn’t been outlawed anywhere, wouldn’t reestablishing the traditional Election Day — part of the lost America Donald Trump promised to restore — be an important agenda item to be pursued with renewed vigor? Still others think the problem is easily herded minority voters who want to vote themselves government benefits (the heart of Mitt Romney’s famous “47 percent” remark); they might favor a return to literacy tests or polls taxes. Some “constitutional conservatives” reject any electoral outcomes that undermine “natural rights” (e.g., to property or to fetal “personhood”) that they regard as having been established by the Founders and God Almighty. They aren’t going to wake up and recommit to small-d democracy.

And then you have the people who exist in both political parties, and indeed every political party from the beginning of time, who don’t bother with theories or evidence or “rights” at all and simply favor whatever electoral arrangements improve their chances of victory. What makes today’s Republicans distinctive in that respect is that their leader, the 45th president of the United States, exemplifies that attitude as much as Jesus Christ exemplified the Golden Rule. Indeed, winning at any cost is Donald Trump’s Golden Rule.

Even in the more “reasonable” precincts of the Republican Party, among people who don’t promote the Big Lie and all but visibly roll their eyes at Trump’s excesses, there is currently an iron and nearly universal opposition to the enhancement of any federally established voting rights, even those (most notably those protected by the Voting Rights Act of 1965) that their own party accepted and even celebrated until the U.S. Supreme Court began tearing them apart in recent years. So even if Foley is right and the current passion for vitiating voting rights at the state level burns itself out, does that mean bipartisan support for establishing a durable national floor for voting rights via federal legislation will magically return? There’s no reason to think so.

It’s regrettable that purely partisan avenues are the only ones available to Democrats right now on this and so many other crucial questions. And yes, wherever possible, Democrats should exhibit reasonableness unilaterally as the sole custodians of small-d democracy. A voting-rights bill imposed by a filibuster carve-out or (even less likely) budget reconciliation need not include every conceivable or advisable reform, so as to enable Republican claims of a “power grab.” Restoring the Voting Rights Act to its original dimensions might be enough, along with modest measures to clarify how post-election challenges work so the courts don’t have to litigate them endlessly.

If today’s wave of voter suppression in the States grows worse next year and after the midterms, the folly of Manchinism will become more evident than ever. You cannot restore bipartisanship, on voting rights or anything else of significance, by giving power to your extremist opponents in hopes they will come to their senses or become glutted with too much winning.


September 9: Anti-Abortion Movement Won’t Be Satisfied With Reversing Roe

As the specter of a Supreme Court repudiation of a constitutional right to choose an abortion becomes very tangible, I offered some thoughts at New York about where the fight over reproductive rights might ultimately go:

These are high times for the movement to abolish the constitutional right to an abortion. It has long since conquered one of our two major national political parties. Via that partnership, three justices strongly supported by the movement ascended to the Supreme Court when Donald Trump was president. Last week, all three joined justices Clarence Thomas and Samuel Alito in a shocking decision to green-light, at least temporarily, a Texas law banning all abortions after the sixth week of pregnancy. And now the odds are high that the Court will reverse or significantly modify its precedents on abortion in a case on the immediate horizon involving a Mississippi law that directly challenges the Court’s protections for pre-viability abortions laid down in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

If that’s how the deal goes down, anti-abortion activists, after they finish celebrating, will focus on spreading abortion bans into contested territory beyond the red states where they have routinely been enacted in recent years, right? Having spent 48 years arguing that states, not courts, should control abortion policy, they’ll be happy to slug it out with their pro-choice opponents in state capitols where neither side has a prohibitive advantage, right?

Not necessarily. Truth is, hardly anyone has ever joined the anti-abortion movement out of passionate support for states’ rights. Sure, in the immediate shock of Roe v. Wade, the idea that a policy matter controlled by state laws since time immemorial would instead be dictated by the federal courts seemed alien. But 48 years later, that shock has surely faded. There are no state legislators pining for the power they lost in 1973 when many of them weren’t yet born or were children playing with toys rather than the lives of women. And the official position of the anti-abortion movement has been clear from the beginning: As early as 1973, it had backed various versions of the Human Life Amendment, a device to place fetal rights into the U.S. Constitution and ban abortion nationwide, not simply reversing but displacing the privacy-based right to abortion identified in Roe.

While the movement suffered from a strategic split between those supporting both an amendment and a return to state-controlled election law and those for whom only the former would do, there was never any question that banning abortion everywhere by the most efficient means available was the common goal. The Human Life Amendment made its way into the national Republican platform as early as 1980.

But securing a constitutional amendment these days isn’t just problematic. The process — with its requirement of a proposal by a two-thirds vote of both houses of Congress (or a much less likely state-called constitutional convention) and ratification by three-fourths of the states — has made the prospect all but extinct for anything remotely controversial. So unsurprisingly, support has grown steadily among anti-abortion advocates for securing protections for “human life” by the same means once used to strip them away: the Supreme Court. As Garrett Epps notes, a recent amicus brief filed by two highly distinguished conservative legal thinkers, John Finnis and Robert George, makes the argument explicit:

“The prohibition of abortion, they told the [Supreme] Court in their brief, is ‘constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.’ No state can permit it, they say.”

The idea that the congressional devisers of the 14th Amendment thought the term persons included zygotes is preposterous, says Epps. But as a strategic matter, getting an increasingly conservative Court with members closely associated with the anti-abortion movement to adopt the Human Life Amendment by judicial fiat makes excellent sense, at least as a goal.

Even if that outcome presently looks distant, its logic is powerful to those accustomed to arguing that “the unborn,” from conception, are people who are metaphysically and morally indistinguishable from those we see walking around. As Harvard professor Jeannie Suk Gerson observed in 2019, the growing tendency of Republican legislators to discard the exceptions for pregnancies resulting from rape and incest, which used to be standard fare in legislation restricting abortion, reflects a “personhood” point of view. It’s significant that neither of the state abortion laws adopted in Mississippi and Texas that are creating such a stir right now has a rape or incest exception. That’s not because the lawmakers drafting them are simply stupid or cruel (though Texas governor Greg Abbott was arguably both in his ridiculous claim that he would eradicate rape in his state so pregnancies resulting from it would no longer exist). They simply reflect a different concept of personhood. And though efforts to put this radical concept into state constitutions have fared poorly in ballot tests over the years, it’s clearly gaining momentum in the anti-abortion movement and conservative legal circles.

Short of that long shot, if Roe is knocked down, you can expect conservatives to do the same thing progressives are talking about doing: promoting legislation in Congress to establish a preemptive national policy on abortion. It would be a statute, not a constitutional provision, and thus could quickly be reversed after one adverse election; but as long as it was in effect, it would ban abortions in New York, California, and Vermont just as surely as in Alabama, West Virginia, or Utah. It’s not a practical immediate possibility for Republicans because they control neither Congress nor the White House (a Democratic president would obviously veto such a law). But if Republicans regain the trifecta they lost in 2018 at a time when Roe has already been overturned, of course they would try to enact a preemptive statue, and, in fact, given the power of the anti-abortion movement in the GOP, they might well sweep aside or change the rules allowing filibusters to make it possible without a supermajority.

The bottom line is that happiness over a potential Supreme Court counterrevolution on the right to choose isn’t going to make anti-abortion activists complacent or even willing to play by a new set of rules in the traditional sandbox of state legislation. Give ’em an inch and they will want to take control of the reproductive systems of every woman in America. And let’s not concede any false equivalence between the two “teams”: Nobody is talking about forcing anyone to have an abortion. But the anti-abortion movement is very definitely talking about, and planning toward, a system in which every pregnant woman will be forced to carry pregnancies to term. And that would be true from sea to shining sea.


Anti-Abortion Movement Won’t Be Satisfied With Reversing Roe

As the specter of a Supreme Court repudiation of a constitutional right to choose an abortion becomes very tangible, I offered some thoughts at New York about where the fight over reproductive rights might ultimately go:

These are high times for the movement to abolish the constitutional right to an abortion. It has long since conquered one of our two major national political parties. Via that partnership, three justices strongly supported by the movement ascended to the Supreme Court when Donald Trump was president. Last week, all three joined justices Clarence Thomas and Samuel Alito in a shocking decision to green-light, at least temporarily, a Texas law banning all abortions after the sixth week of pregnancy. And now the odds are high that the Court will reverse or significantly modify its precedents on abortion in a case on the immediate horizon involving a Mississippi law that directly challenges the Court’s protections for pre-viability abortions laid down in Roe v. Wade (1973) and Planned Parenthood v. Casey (1992).

If that’s how the deal goes down, anti-abortion activists, after they finish celebrating, will focus on spreading abortion bans into contested territory beyond the red states where they have routinely been enacted in recent years, right? Having spent 48 years arguing that states, not courts, should control abortion policy, they’ll be happy to slug it out with their pro-choice opponents in state capitols where neither side has a prohibitive advantage, right?

Not necessarily. Truth is, hardly anyone has ever joined the anti-abortion movement out of passionate support for states’ rights. Sure, in the immediate shock of Roe v. Wade, the idea that a policy matter controlled by state laws since time immemorial would instead be dictated by the federal courts seemed alien. But 48 years later, that shock has surely faded. There are no state legislators pining for the power they lost in 1973 when many of them weren’t yet born or were children playing with toys rather than the lives of women. And the official position of the anti-abortion movement has been clear from the beginning: As early as 1973, it had backed various versions of the Human Life Amendment, a device to place fetal rights into the U.S. Constitution and ban abortion nationwide, not simply reversing but displacing the privacy-based right to abortion identified in Roe.

While the movement suffered from a strategic split between those supporting both an amendment and a return to state-controlled election law and those for whom only the former would do, there was never any question that banning abortion everywhere by the most efficient means available was the common goal. The Human Life Amendment made its way into the national Republican platform as early as 1980.

But securing a constitutional amendment these days isn’t just problematic. The process — with its requirement of a proposal by a two-thirds vote of both houses of Congress (or a much less likely state-called constitutional convention) and ratification by three-fourths of the states — has made the prospect all but extinct for anything remotely controversial. So unsurprisingly, support has grown steadily among anti-abortion advocates for securing protections for “human life” by the same means once used to strip them away: the Supreme Court. As Garrett Epps notes, a recent amicus brief filed by two highly distinguished conservative legal thinkers, John Finnis and Robert George, makes the argument explicit:

“The prohibition of abortion, they told the [Supreme] Court in their brief, is ‘constitutionally obligatory because unborn children are persons within the original public meaning of the Fourteenth Amendment’s Due Process and Equal Protection Clauses.’ No state can permit it, they say.”

The idea that the congressional devisers of the 14th Amendment thought the term persons included zygotes is preposterous, says Epps. But as a strategic matter, getting an increasingly conservative Court with members closely associated with the anti-abortion movement to adopt the Human Life Amendment by judicial fiat makes excellent sense, at least as a goal.

Even if that outcome presently looks distant, its logic is powerful to those accustomed to arguing that “the unborn,” from conception, are people who are metaphysically and morally indistinguishable from those we see walking around. As Harvard professor Jeannie Suk Gerson observed in 2019, the growing tendency of Republican legislators to discard the exceptions for pregnancies resulting from rape and incest, which used to be standard fare in legislation restricting abortion, reflects a “personhood” point of view. It’s significant that neither of the state abortion laws adopted in Mississippi and Texas that are creating such a stir right now has a rape or incest exception. That’s not because the lawmakers drafting them are simply stupid or cruel (though Texas governor Greg Abbott was arguably both in his ridiculous claim that he would eradicate rape in his state so pregnancies resulting from it would no longer exist). They simply reflect a different concept of personhood. And though efforts to put this radical concept into state constitutions have fared poorly in ballot tests over the years, it’s clearly gaining momentum in the anti-abortion movement and conservative legal circles.

Short of that long shot, if Roe is knocked down, you can expect conservatives to do the same thing progressives are talking about doing: promoting legislation in Congress to establish a preemptive national policy on abortion. It would be a statute, not a constitutional provision, and thus could quickly be reversed after one adverse election; but as long as it was in effect, it would ban abortions in New York, California, and Vermont just as surely as in Alabama, West Virginia, or Utah. It’s not a practical immediate possibility for Republicans because they control neither Congress nor the White House (a Democratic president would obviously veto such a law). But if Republicans regain the trifecta they lost in 2018 at a time when Roe has already been overturned, of course they would try to enact a preemptive statue, and, in fact, given the power of the anti-abortion movement in the GOP, they might well sweep aside or change the rules allowing filibusters to make it possible without a supermajority.

The bottom line is that happiness over a potential Supreme Court counterrevolution on the right to choose isn’t going to make anti-abortion activists complacent or even willing to play by a new set of rules in the traditional sandbox of state legislation. Give ’em an inch and they will want to take control of the reproductive systems of every woman in America. And let’s not concede any false equivalence between the two “teams”: Nobody is talking about forcing anyone to have an abortion. But the anti-abortion movement is very definitely talking about, and planning toward, a system in which every pregnant woman will be forced to carry pregnancies to term. And that would be true from sea to shining sea.


September 7: Abortion Politics Could Help Democrats in the 2022 Midterms

As I continue to mull the consequences of the U.S. Supreme Court’s conduct in its review of Texas’s new abortion law, I offered these thoughts at New York:

The growing brouhaha over Texas’ new law banning all abortions after six weeks of pregnancy, and the Supreme Court’s refusal to declare it unconstitutional by hiding behind its weird private-citizen enforcement mechanism, are competing for attention with other crises at this late-summer juncture. But the new controversies over abortion law are likely to remain at the center of public attention — to the point that abortion could even be a bipartisan voting issue of unprecedented significance in the 2022 midterms.

The legal calendar makes it entirely possible. Whatever the murky trajectory of legal maneuvering over Whole Women’s Health v. Jackson — the case that triggered last week’s Supreme Court order at least temporarily green-lighting a pre-viability abortion ban — compliance (so far) of abortion providers is giving pro-choice Americans a taste of what life was like before Roe v. Wade struck down state abortion bans in 1973. And perhaps more importantly, the same Court that provided five votes to smile upon Texas’ mischief will soon hear Dobbs v. Jackson Women’s Health Organization, involving Mississippi’s direct challenge to Roe. The decision in that case will probably (given the usual big-case timetable for SCOTUS) come down in June or even July of 2022, just as the midterm election campaign is gearing up. And if, as is widely expected, the Court reverses or significantly modifies the federal constitutional right to abortion that has been in place for 48 years, it could become a major campaign issue for supporters of both parties and rare groups of swing voters in both federal and state elections. Below is a primer on how the legal fight over abortion could impact the vote next November.

Why would congressional elections be affected by a Court decision that has already been handed down?

If SCOTUS reverses Roe next year, and particularly if it’s a close and not entirely definitive decision, the salience of Supreme Court decisions (and Senate confirmations) in the immediate future could go up rather than down. Should, for example, Stephen Breyer still be on the Court when voters vote in November 2022, control of the Senate could be critically important to the confirmation of a successor — even one appointed by Joe Biden — and to the shape of the Court going forward. After the Merrick Garland saga, there is no doubt that a Senate controlled by Mitch McConnell would sit on a Biden nomination as long as it took to preserve the SCOTUS seat for a Republican presidential successor.

Beyond that contingency, the return of a pre-Roe state of affairs on abortion law would open up the possibility of a federal statute preempting state abortion laws and establishing a national standard. This kind of action would be on the table if Democrats continue to control both Houses of Congress and the presidency after the midterms. It wouldn’t actually come to pass, of course, so long as the Senate minority can block legislation via the filibuster; abortion policy is not one of those topics that can move forward via the budget reconciliation process, since it’s not budget-germane under the Senate rules. But as my colleague Eric Levitz has suggested, it’s possible the subject could add critical pressure on Senate Democrats to reform the filibuster rules, perhaps via a “carve-out” for legislation involving individual rights like the right to choose and the right to vote.

Would local elections be affected in states other than Texas?

While SB 8 will likely make Texas ground zero for abortion politics in 2022 (it will already be competitive generally thanks to the separate red-hot controversy over the GOP-sponsored voter suppression law), a reversal of Roe could make nearly every state a battleground. Yes, the immediate focus might be on Republican-controlled states where legislators and governors will come under hellish pressure to abolish reproductive rights as quickly and thoroughly as possible. But Democrats in states they control will be just as eager to consolidate a right to abortion via new or newly implemented state laws.

Most obviously, in states where the governorship or control of legislative chambers is in play, abortion laws will have a fresh urgency as a campaign platform. And it will be an issue that is difficult to ignore, even in hard-core red states where anti-abortion activists may want to push for ever-more-draconian laws, and in hard-core blue states where issues like abortion funding and provider regulation could divide some pro-choice Democrats while giving Republicans traction.

After nearly five decades of abortion politics being mostly rhetorical, and mostly dealing with marginal issues like rare late-term abortions, a Wild West period will arrive. There will be plenty of gun-fights and saloon brawls as well: As with so many other issues, the two major parties have been totally polarized on abortion policy, with pro-choice Republicans and anti-abortion Democrats being almost hunted to extinction at the level of elected officials.

Which side of the abortion fight will have the most energy in 2022?

Since Roe at least, anti-abortion activists and their aligned voters have been thought to be more focused on elections and motivated to turn out for them than their pro-choice counterparts. The reason is obvious if you think about it: The status quo has been largely pro-choice thanks to Roe, so all the energy associated with any movement for change has been associated with the anti-abortion cause. Pro-choice folk could rely (or so they thought) on the Supreme Court to protect their rights. Their opponents knew they’d have to move mountains to move the relevant Court precedents.

SB 8 has changed those dynamics overnight, which is one important reason (others are fear that SCOTUS’s favor will be temporary, and a tactical interest in playing down the immediate impact) the reaction to the law taking effect has been much less intense in anti-abortion than in pro-choice circles.

If SCOTUS goes the whole hog and kills or seriously wounds federal abortion rights next year, the topic could become a central focus of national Democratic messaging, in part because the perceived status quo would switch sides, and in part because rank-and-file Democrats are more unified than Republicans on abortion policy. According to a Pew survey earlier this year, Democrats and Democratic-leaning independents favor keeping abortion “legal in all or most cases” by an 80-19 margin, while Republicans and Republican-leaning independents want to make abortion “illegal in all or most cases” by a smaller 63-35 margin. In the past, Republicans have occasionally succeeded in creating splits among Democrats by focusing on side-issues like rare late-term abortions or abortion funding, but with the basic legality or illegality of abortion now front-and-center, the shoe may be on the other foot.

Will abortion swing voters?

While base mobilization will likely be the principal focus of those on both sides exploiting concerns over abortion policy, it’s possible the topic could help flip a slice of the small and shrinking but sometimes crucial portion of the electorate that is truly independent. All in all, self-identified indies stand pretty much where the electorate as a whole stands on abortion, with a significant but not overwhelming lean towards the pro-choice position. But again, a focus on the basic availability of legal abortion rather than poll-driven proposals to restrict when and why abortions will be permitted should help Democrats on average. And abortion politics could be especially helpful to Democrats defending the suburban congressional districts they won in 2018 and then held onto in 2020.

Certainly the salience of abortion politics in 2022 will depend on what else is in the news and on the minds of voters, and on the strategic thinking of partisan decision-makers and sometimes individual candidates. But with Democrats looking down the barrel of historical data suggesting likely midterm losses at both the congressional and the state level, any issue that could break the mold will be welcome.


Abortion Politics Could Help Democrats in the 2022 Midterms

As I continue to mull the consequences of the U.S. Supreme Court’s conduct in its review of Texas’s new abortion law, I offered these thoughts at New York:

The growing brouhaha over Texas’ new law banning all abortions after six weeks of pregnancy, and the Supreme Court’s refusal to declare it unconstitutional by hiding behind its weird private-citizen enforcement mechanism, are competing for attention with other crises at this late-summer juncture. But the new controversies over abortion law are likely to remain at the center of public attention — to the point that abortion could even be a bipartisan voting issue of unprecedented significance in the 2022 midterms.

The legal calendar makes it entirely possible. Whatever the murky trajectory of legal maneuvering over Whole Women’s Health v. Jackson — the case that triggered last week’s Supreme Court order at least temporarily green-lighting a pre-viability abortion ban — compliance (so far) of abortion providers is giving pro-choice Americans a taste of what life was like before Roe v. Wade struck down state abortion bans in 1973. And perhaps more importantly, the same Court that provided five votes to smile upon Texas’ mischief will soon hear Dobbs v. Jackson Women’s Health Organization, involving Mississippi’s direct challenge to Roe. The decision in that case will probably (given the usual big-case timetable for SCOTUS) come down in June or even July of 2022, just as the midterm election campaign is gearing up. And if, as is widely expected, the Court reverses or significantly modifies the federal constitutional right to abortion that has been in place for 48 years, it could become a major campaign issue for supporters of both parties and rare groups of swing voters in both federal and state elections. Below is a primer on how the legal fight over abortion could impact the vote next November.

Why would congressional elections be affected by a Court decision that has already been handed down?

If SCOTUS reverses Roe next year, and particularly if it’s a close and not entirely definitive decision, the salience of Supreme Court decisions (and Senate confirmations) in the immediate future could go up rather than down. Should, for example, Stephen Breyer still be on the Court when voters vote in November 2022, control of the Senate could be critically important to the confirmation of a successor — even one appointed by Joe Biden — and to the shape of the Court going forward. After the Merrick Garland saga, there is no doubt that a Senate controlled by Mitch McConnell would sit on a Biden nomination as long as it took to preserve the SCOTUS seat for a Republican presidential successor.

Beyond that contingency, the return of a pre-Roe state of affairs on abortion law would open up the possibility of a federal statute preempting state abortion laws and establishing a national standard. This kind of action would be on the table if Democrats continue to control both Houses of Congress and the presidency after the midterms. It wouldn’t actually come to pass, of course, so long as the Senate minority can block legislation via the filibuster; abortion policy is not one of those topics that can move forward via the budget reconciliation process, since it’s not budget-germane under the Senate rules. But as my colleague Eric Levitz has suggested, it’s possible the subject could add critical pressure on Senate Democrats to reform the filibuster rules, perhaps via a “carve-out” for legislation involving individual rights like the right to choose and the right to vote.

Would local elections be affected in states other than Texas?

While SB 8 will likely make Texas ground zero for abortion politics in 2022 (it will already be competitive generally thanks to the separate red-hot controversy over the GOP-sponsored voter suppression law), a reversal of Roe could make nearly every state a battleground. Yes, the immediate focus might be on Republican-controlled states where legislators and governors will come under hellish pressure to abolish reproductive rights as quickly and thoroughly as possible. But Democrats in states they control will be just as eager to consolidate a right to abortion via new or newly implemented state laws.

Most obviously, in states where the governorship or control of legislative chambers is in play, abortion laws will have a fresh urgency as a campaign platform. And it will be an issue that is difficult to ignore, even in hard-core red states where anti-abortion activists may want to push for ever-more-draconian laws, and in hard-core blue states where issues like abortion funding and provider regulation could divide some pro-choice Democrats while giving Republicans traction.

After nearly five decades of abortion politics being mostly rhetorical, and mostly dealing with marginal issues like rare late-term abortions, a Wild West period will arrive. There will be plenty of gun-fights and saloon brawls as well: As with so many other issues, the two major parties have been totally polarized on abortion policy, with pro-choice Republicans and anti-abortion Democrats being almost hunted to extinction at the level of elected officials.

Which side of the abortion fight will have the most energy in 2022?

Since Roe at least, anti-abortion activists and their aligned voters have been thought to be more focused on elections and motivated to turn out for them than their pro-choice counterparts. The reason is obvious if you think about it: The status quo has been largely pro-choice thanks to Roe, so all the energy associated with any movement for change has been associated with the anti-abortion cause. Pro-choice folk could rely (or so they thought) on the Supreme Court to protect their rights. Their opponents knew they’d have to move mountains to move the relevant Court precedents.

SB 8 has changed those dynamics overnight, which is one important reason (others are fear that SCOTUS’s favor will be temporary, and a tactical interest in playing down the immediate impact) the reaction to the law taking effect has been much less intense in anti-abortion than in pro-choice circles.

If SCOTUS goes the whole hog and kills or seriously wounds federal abortion rights next year, the topic could become a central focus of national Democratic messaging, in part because the perceived status quo would switch sides, and in part because rank-and-file Democrats are more unified than Republicans on abortion policy. According to a Pew survey earlier this year, Democrats and Democratic-leaning independents favor keeping abortion “legal in all or most cases” by an 80-19 margin, while Republicans and Republican-leaning independents want to make abortion “illegal in all or most cases” by a smaller 63-35 margin. In the past, Republicans have occasionally succeeded in creating splits among Democrats by focusing on side-issues like rare late-term abortions or abortion funding, but with the basic legality or illegality of abortion now front-and-center, the shoe may be on the other foot.

Will abortion swing voters?

While base mobilization will likely be the principal focus of those on both sides exploiting concerns over abortion policy, it’s possible the topic could help flip a slice of the small and shrinking but sometimes crucial portion of the electorate that is truly independent. All in all, self-identified indies stand pretty much where the electorate as a whole stands on abortion, with a significant but not overwhelming lean towards the pro-choice position. But again, a focus on the basic availability of legal abortion rather than poll-driven proposals to restrict when and why abortions will be permitted should help Democrats on average. And abortion politics could be especially helpful to Democrats defending the suburban congressional districts they won in 2018 and then held onto in 2020.

Certainly the salience of abortion politics in 2022 will depend on what else is in the news and on the minds of voters, and on the strategic thinking of partisan decision-makers and sometimes individual candidates. But with Democrats looking down the barrel of historical data suggesting likely midterm losses at both the congressional and the state level, any issue that could break the mold will be welcome.

 


September 1: Biden’s Underwater Approval Ratio Is Not Unusual At All

The freak-outs some Democrats are experiencing over the president’s declining job approval ratings show the need for some historical perspective, which I tried to supply at New York:

It’s unclear how much the brouhaha over the U.S. withdrawal from Afghanistan will matter in terms of the 2022 or 2024 elections, or even exactly how much it is contributing to increasingly sour public and media perceptions of Joe Biden. But there’s not much question that the intense glare of publicity over the president’s management of the situation in Kabul has eroded his previously amazing ability to lurk in the background, seemingly protected from Republican attacks, even when his policies aroused controversy. So what we may now be seeing in his job approval ratings are how well Biden fares when the eyes of the nation are riveted on his every action.

Given how Americans are feeling about current conditions in the country (at RealClearPolitics the right track/wrong track polling averages have eroded from 44-50 in May to 30-60 now), it’s not that surprising that Biden’s job-approval ratio is now underwater for the first time (47 percent approve to 49 percent disapprove in the straightforward RCP averages and 46.7 percent approve to 47.2 percent disapprove at FiveThirtyEight, which adjusts polls for partisan bias, and weighs them for reliability).

As I noted in an earlier post, reaction to adverse overseas developments can fade pretty quickly, as occurred soon after the Fall of Saigon in 1975, when Gerald Ford’s approval rating rose significantly as soon as the Mayaguez incident (in which the U.S. freed merchant sailors captured by the Khmer Rouge off the Cambodian coast) replaced the Vietnam collapse in the news.

Whatever it means, Biden’s plunge underwater is hardly unique. According to a UC Santa Barbara analysis of Gallup data, every president dating back to Lyndon Johnson had net-negative approval ratings at some point. (John F. Kennedy’s abbreviated presidency was very unusual; his lowest monthly Gallup approval rating was 56 percent, not long before his assassination. His Republican predecessor, Dwight D. Eisenhower, was also blessed with consistent popularity.)

The most relevant points of comparison to Biden should comfort him. Barack Obama was regularly underwater in weekly Gallup surveys nearly all of 2010, in the first half of 2011, and throughout 2014. But he managed to serve two full terms. And Donald Trump didn’t achieve his first net-positive Gallup approval rating until the spring of 2020, and came close to getting reelected despite a 46-52 Gallup rating on the eve of the 2020 election.

So there’s no reason for Team Biden to freak out, unless congressional Democrats become frightened and cannot sustain their remarkable degree of unity this year long enough to enact the combo platter of infrastructure and budget-reconciliation legislation that contains much of Biden’s agenda. But while you never know what lies ahead these days, the odds continue to diminish that the 46th president is going to be popular enough (and he would need to be very popular to defy midterm history) to lift his party to victory in the 2022 elections.


Biden’s Underwater Approval Ratio Is Not Unusual At All

The freak-outs some Democrats are experiencing over the president’s declining job approval ratings show the need for some historical perspective, which I tried to supply at New York:

It’s unclear how much the brouhaha over the U.S. withdrawal from Afghanistan will matter in terms of the 2022 or 2024 elections, or even exactly how much it is contributing to increasingly sour public and media perceptions of Joe Biden. But there’s not much question that the intense glare of publicity over the president’s management of the situation in Kabul has eroded his previously amazing ability to lurk in the background, seemingly protected from Republican attacks, even when his policies aroused controversy. So what we may now be seeing in his job approval ratings are how well Biden fares when the eyes of the nation are riveted on his every action.

Given how Americans are feeling about current conditions in the country (at RealClearPolitics the right track/wrong track polling averages have eroded from 44-50 in May to 30-60 now), it’s not that surprising that Biden’s job-approval ratio is now underwater for the first time (47 percent approve to 49 percent disapprove in the straightforward RCP averages and 46.7 percent approve to 47.2 percent disapprove at FiveThirtyEight, which adjusts polls for partisan bias, and weighs them for reliability).

As I noted in an earlier post, reaction to adverse overseas developments can fade pretty quickly, as occurred soon after the Fall of Saigon in 1975, when Gerald Ford’s approval rating rose significantly as soon as the Mayaguez incident (in which the U.S. freed merchant sailors captured by the Khmer Rouge off the Cambodian coast) replaced the Vietnam collapse in the news.

Whatever it means, Biden’s plunge underwater is hardly unique. According to a UC Santa Barbara analysis of Gallup data, every president dating back to Lyndon Johnson had net-negative approval ratings at some point. (John F. Kennedy’s abbreviated presidency was very unusual; his lowest monthly Gallup approval rating was 56 percent, not long before his assassination. His Republican predecessor, Dwight D. Eisenhower, was also blessed with consistent popularity.)

The most relevant points of comparison to Biden should comfort him. Barack Obama was regularly underwater in weekly Gallup surveys nearly all of 2010, in the first half of 2011, and throughout 2014. But he managed to serve two full terms. And Donald Trump didn’t achieve his first net-positive Gallup approval rating until the spring of 2020, and came close to getting reelected despite a 46-52 Gallup rating on the eve of the 2020 election.

So there’s no reason for Team Biden to freak out, unless congressional Democrats become frightened and cannot sustain their remarkable degree of unity this year long enough to enact the combo platter of infrastructure and budget-reconciliation legislation that contains much of Biden’s agenda. But while you never know what lies ahead these days, the odds continue to diminish that the 46th president is going to be popular enough (and he would need to be very popular to defy midterm history) to lift his party to victory in the 2022 elections.


August 25: Trifectas Don’t Grow on Trees

As part of a continuing effort to urge Democrats to be bold in use of the power they have right now, I examined past and future prospects for governing trifectas at New York:

In the last 50 years, there have been 13 in which one party or the other held a trifecta in Washington — governing the White House, Senate, and House — and 37 when they didn’t. The odds are very high, as I previously noted, against today’s Democrats holding onto the House in 2022. More broadly, though, it’s helpful to understand how rare and precious trifectas have become generally, at a time when they have become essential for big legislative accomplishments.

Until the 1990s, the ideological diversity of both parties meant trifectas or the absence of one could be misleading. Jimmy Carter had a trifecta the entire time, but struggled to get major legislation through “his” Congress. Subsequently, Ronald Reagan never had a trifecta, but was able to attract enough moderate-to-conservative Democratic support to create a working majority in Congress for six of his eight years in office. Indeed, the power of a “conservative coalition” of southern Democrats and Republicans in Congress made it possible for Republican presidents Dwight D. Eisenhower and Richard Nixon to have decent legislative records.

Since the ’90s, trifectas became much more essential to getting one’s way in Washington thanks to two changes: increasing partisan polarization and then the use of the Senate filibuster to create a de facto supermajority requirement for virtually all major legislation. Meanwhile, close partisan divisions in the country and the tendency of presidential parties to do poorly in midterms has made trifectas more fragile. Bill Clinton lost his two years into his presidency, in 1994. George W. Bush lost his almost immediately due to a Senate party switch, won it back in 2002, and then lost it again in 2006. In 2009, Barack Obama had a Senate supermajority for a hot minute, but lost that in a 2010 special election, and then lost the House later that year, never to win it back. Donald Trump’s trifecta also lasted two years. Lately Democrats have really struggled to assemble or keep one. According to David Shor, they’ve averaged about one trifecta every 14 years since Jimmy Carter’s presidency.

Let’s say for the sake of argument, I’m wrong about the House in 2022, or I’m right and Democrats are fighting to win back a trifecta they lost that year. How does it look for 2024? It’s no slam dunk for Democrats to hang onto the Senate in 2022, of course: They have a slight advantage in that Republicans are defending more seats (20 to 13 for Democrats), including three (possible four depending on what Ron Johnson does) open seats in competitive states. But if Republicans get the usual national midterm wind in their favor, it could protect their seats in states like North Carolina, Ohio, Pennsylvania, and Wisconsin and endanger Democratic incumbents in Arizona, Georgia, Nevada, and New Hampshire.

If they do keep control of the Senate in 2022, things get tougher in 2024. That year Democrats will be defending 23 Senate seats, three in states carried by Trump in 2020 and six in states carried by Trump either in 2016 or 2020. Republicans will be defending just 10 Senate seats, all of them in states Trump carried twice. In 2024, of course, Democrats will either retain or lose the presidency. If they win then, 2026 is likely to be another bad year for them in House races. But if they lose, the trifecta is gone for sure until 2028.

So without question, Democrats need to maximize use of the current trifecta if they don’t want to risk a long wilderness stretch of divided government or Republican trifectas, when the kind of legislation they are contemplating in the upcoming $3.5 trillion budget reconciliation bill will be unimaginable. There has been a lot of debate about whether Biden will come out of this year and next with a record of progressive social policy accomplishment rivaling that of LBJ. Democrats should also debate whether the 54-year gap between the end of the Great Society era and the window of Democratic opportunity today is one they are willing to risk repeating.


Trifectas Don’t Grow on Trees

As part of a continuing effort to urge Democrats to be bold in use of the power they have right now, I examined past and future prospects for governing trifectas at New York:

In the last 50 years, there have been 13 in which one party or the other held a trifecta in Washington — governing the White House, Senate, and House — and 37 when they didn’t. The odds are very high, as I previously noted, against today’s Democrats holding onto the House in 2022. More broadly, though, it’s helpful to understand how rare and precious trifectas have become generally, at a time when they have become essential for big legislative accomplishments.

Until the 1990s, the ideological diversity of both parties meant trifectas or the absence of one could be misleading. Jimmy Carter had a trifecta the entire time, but struggled to get major legislation through “his” Congress. Subsequently, Ronald Reagan never had a trifecta, but was able to attract enough moderate-to-conservative Democratic support to create a working majority in Congress for six of his eight years in office. Indeed, the power of a “conservative coalition” of southern Democrats and Republicans in Congress made it possible for Republican presidents Dwight D. Eisenhower and Richard Nixon to have decent legislative records.

Since the ’90s, trifectas became much more essential to getting one’s way in Washington thanks to two changes: increasing partisan polarization and then the use of the Senate filibuster to create a de facto supermajority requirement for virtually all major legislation. Meanwhile, close partisan divisions in the country and the tendency of presidential parties to do poorly in midterms has made trifectas more fragile. Bill Clinton lost his two years into his presidency, in 1994. George W. Bush lost his almost immediately due to a Senate party switch, won it back in 2002, and then lost it again in 2006. In 2009, Barack Obama had a Senate supermajority for a hot minute, but lost that in a 2010 special election, and then lost the House later that year, never to win it back. Donald Trump’s trifecta also lasted two years. Lately Democrats have really struggled to assemble or keep one. According to David Shor, they’ve averaged about one trifecta every 14 years since Jimmy Carter’s presidency.

Let’s say for the sake of argument, I’m wrong about the House in 2022, or I’m right and Democrats are fighting to win back a trifecta they lost that year. How does it look for 2024? It’s no slam dunk for Democrats to hang onto the Senate in 2022, of course: They have a slight advantage in that Republicans are defending more seats (20 to 13 for Democrats), including three (possible four depending on what Ron Johnson does) open seats in competitive states. But if Republicans get the usual national midterm wind in their favor, it could protect their seats in states like North Carolina, Ohio, Pennsylvania, and Wisconsin and endanger Democratic incumbents in Arizona, Georgia, Nevada, and New Hampshire.

If they do keep control of the Senate in 2022, things get tougher in 2024. That year Democrats will be defending 23 Senate seats, three in states carried by Trump in 2020 and six in states carried by Trump either in 2016 or 2020. Republicans will be defending just 10 Senate seats, all of them in states Trump carried twice. In 2024, of course, Democrats will either retain or lose the presidency. If they win then, 2026 is likely to be another bad year for them in House races. But if they lose, the trifecta is gone for sure until 2028.

So without question, Democrats need to maximize use of the current trifecta if they don’t want to risk a long wilderness stretch of divided government or Republican trifectas, when the kind of legislation they are contemplating in the upcoming $3.5 trillion budget reconciliation bill will be unimaginable. There has been a lot of debate about whether Biden will come out of this year and next with a record of progressive social policy accomplishment rivaling that of LBJ. Democrats should also debate whether the 54-year gap between the end of the Great Society era and the window of Democratic opportunity today is one they are willing to risk repeating.