After Texas’s Abortion Ban, Dems Must Go Nuclear

Ban the filibuster, not abortions.
Photo: Sergio Flores For The Washington Post via Getty Images

In the U.S., constitutional law guarantees pregnant people the right to have an abortion without “interference from the state.” Judicial precedent also empowers Americans to preempt any state law that flagrantly violates their constitutional rights: Even before an illicit statute takes effect, individuals can seek a court order barring state officers from enforcing it.

The pro-life movement abhors these legal niceties. In recent years, red states have routinely enacted de facto repeals of Roe v. Wade, only to see their unconstitutional laws nipped in the bud. Of course, conservatives did not respond to these setbacks by revising their agenda to better fit the demands of law and procedure. Rather, they used every tool at their disposal — including unprecedented violations of Senate convention — to assemble an anti-abortion Supreme Court majority. Meanwhile, in Texas, Republicans devised a cockamamie scheme for nullifying abortion rights immediately — with just a small favor from their friends on the high court.

The Texas GOP passed a law that effectively bans abortions after the sixth week of pregnancy — before many women even realize they are pregnant — but outsourced enforcement of this ban to private citizens. Under the law, known as SB 8, “any person, other than an officer or employee of a state or local governmental entity in this state,” can sue anyone who “knowingly engages in conduct that aids or abets the performance or inducement of an abortion” after the sixth week of pregnancy. In other words, any doctor, clinic staff member, nonprofit, or even taxi driver who consciously helps someone end their pregnancy could be legally liable. The law entitles plaintiffs who win such suits to at least $10,000 from the defendant.

This is an unusual way to enforce a law. It turns every private citizen in the state of Texas into a potential hybrid of spy and bounty hunter. It threatens to besiege the state’s court system with lawsuits. But it also offers the judiciary a pretext for sitting on its hands as a blatantly unconstitutional law is implemented. Precedent empowers individuals to block the enforcement of unconstitutional laws by suing the state officer tasked with enforcing those measures. In the case of SB 8, however, no such state officer exists. So there is none to sue.

This pretext is absurd. As Vox’s Ian Millhiser writes, the tactic “could be used to undermine virtually any constitutional right. Imagine, for example, that New York passed an SB 8–style law allowing private individuals to bring lawsuits seeking a $10,000 bounty against anyone who owns a gun.”

Nevertheless, Texas’s gambit proved compelling to five of the Supreme Court’s six conservative justices. On Wednesday night, they issued an order allowing the law to take effect. In her dissent, Justice Sonia Sotomayor wrote, “Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand.”

Those justices aren’t alone in their willful blindness. Moderate Democrats also refuse to see the constitutional crisis they are abetting. For even as Republicans gleefully nullify constitutional protections, Kyrsten Sinema & Co. put the Senate’s procedural norms above our democracy’s integrity.

This week, Republicans in the Texas state legislature passed a battery of voting restrictions, including measures aimed at making it harder for voters in Democratic-leaning Harris County to cast their ballots. Texas is just one of 18 states that have collectively passed more than 30 bills restricting voting this year, a development that the New York Times describes as “one of the greatest contractions of access to the ballot since the Voting Rights Act was passed in 1965.”

Whether these measures will significantly depress turnout or affect election outcomes is unclear. But the intentions of their authors are transparent. The conservative movement no longer makes a secret of its contempt for democracy. Republicans openly argue that voters in (overwhelmingly white) rural areas deserve more political power than those in urban ones. Conservative pundits suggest that Democratic majorities are inherently illegitimate because they owe their existence to recent immigrants. The notion that the 2020 election was stolen is not merely popular with the GOP base; it has become one of its animating causes.

In February, former White House chief strategist Steve Bannon called on Trump supporters to avenge Trump’s stolen reelection by seizing control of the Republican Party from the bottom up: By taking lowly “precinct officer” positions in critical swing states, they could influence the selection of poll workers and election-oversight boards. As ProPublica reports, it appears that a great many Republicans heeded this call: GOP leaders in 41 battleground counties have seen an unusual influx of precinct officers. Altogether, at least 8,500 new officers have joined these county parties. No parallel surge has occurred among Democrats.

Again, whether Bannonite activists will succeed in subverting election administration in key states is unknowable. All things considered, the prospect seems unlikely. But the radicalization of the American right is indisputable. A large and growing portion of this movement considers Democratic election victories inherently illegitimate and aspires to prevent them through the subversion of electoral processes.

Meanwhile, our political system’s large structural biases, which overrepresent rural areas in both the House and the Senate, make it eminently possible for the GOP to secure full control of the federal government in 2024 while losing the popular vote by more than four points. Democrats owe their current, paper-thin Senate majority to multiple blowout election cycles. Barring a realignment, the party will likely lose its Senate majority by 2024 and struggle to gain a new one for many years to come.

In sum, an openly anti-democratic political movement has secured control of the judiciary and is using it to abet flagrant violations of constitutional rights. It is simultaneously passing voter-restriction laws, and giving partisan actors greater control over election administration, in states across the country. Its most zealous recruits are joining county Republican parties in key battleground areas as part of a conscious plot to ensure that the 2024 election does not turn out the way the 2020 one did. Anti-democratic biases embedded within existing electoral maps give this movement a massive advantage in federal elections, such that it can rule in defiance of majority will, even if its voting restrictions and administrative chicanery prove impotent. In fact, if one simply projects existing electoral trends forward, one would expect the Democratic Party to lose its trifecta in 2022 and fail to regain one for a decade or more, a scenario that would give the most pro-carbon political party in the developed world veto power over climate legislation until the mid-2030s.

For now, congressional Democrats have the power to arrest the anti-democratic right’s momentum. They can pass voting-rights legislation that makes casting a ballot easier for all Americans, no matter where they live. They can ban partisan gerrymandering in congressional elections and mitigate the Senate’s overrepresentation of white Americans by granting statehood to D.C. and any U.S. territory that wants it. Such measures would not ensure “one-party government” (nor should they). Rather, they would bring the partisan composition of Congress into greater alignment with that of the electorate. As a result, the Republican Party would likely be forced to put greater distance between itself and its most reactionary wing.

Democrats can also pass a law codifying abortion rights. And they can reform the Supreme Court in a manner that would prevent the conservative movement from advancing its anti-majoritarian goals by judicial fiat.

Unlike Texas’s abortion ban, none of these measures would contravene constitutional law. Enacting them would, however, require abolishing the Senate filibuster. And for a critical mass of Senate Democrats, that is simply a bridge too far.

I’ve rehearsed the argument for the filibuster’s abolition many times over the past four years. Suffice to say, the Senate’s 60-vote threshold for the passage of major legislation is not actually a tradition (because it has existed for roughly two decades); it defies the Constitution’s intent (because the Framers considered mandating a supermajority threshold for the passage of bills in the Senate and decided against it); it is inherently conservative (because it biases the legislative process toward the status quo); and it is inherently anti-democratic (because it gives representatives accountable to a tiny fraction of the electorate veto power over all legislation).

The filibuster’s Democratic proponents never acknowledge these realities. Nor do they make any serious attempt to grapple with the nature of their opposition or our political moment. Arizona senator Kyrsten Sinema has repeatedly argued that Democrats must not eliminate the legislative filibuster to pass democracy-enhancing reforms because doing so would enable a future Republican government to more easily impose voting restrictions nationwide. Yet we do not need to imagine a hypothetical future in which the GOP runs roughshod over democratic rights. That crisis is already upon us. The conservative movement is wielding power far in excess of its popular support. The second most populous state in the country has already effectively repealed Roe v. Wade. Regardless of what Democrats do today, a future Republican Senate majority could abolish the legislative filibuster any time it wished. Banning partisan gerrymandering and granting D.C. statehood — which is to say making House and Senate representation more equitable — would offer far better protection against the reactionary right than the filibuster ever could.

Joe Manchin, meanwhile, cites the January 6 insurrection as an argument against democracy reform. In the West Virginia senator’s view, the more radical the right becomes, the more acquiescent Democrats must be. In fact, it seems that Manchin may not even be willing to support a budget-reconciliation bill that makes meaningful investments in climate infrastructure.

This asymmetry between each major party’s appetite for hardball is a defining fact of our politics. One party is so committed to its ideological objectives that it is willing to violate the Constitution to achieve them. The other is so ambivalent about its own goals that it fetishizes procedural obstacles to their enactment.

To an extent, this reality is a symptom of our democratic crisis rather than a cause. It is the overrepresentation of conservative voters that has left Democrats reliant on Manchin for a Senate majority. But whatever its origins, the Democratic Party’s inability to wield power with the fervor of its opponents has placed our republic in needless jeopardy. The time to go nuclear was yesterday. If Democrats don’t press that button soon, we’ll reap the fallout tomorrow.

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