It's the legislation, stupid!

·2 min read
Chuck Schumer.
Chuck Schumer. Illustrated | Getty Images, iStock

After the Democrats' abortion bill failed in the Senate yet again, Sen. Elizabeth Warren (D-Mass.) made an odd comment. "I believe in democracy, and I don't believe the minority should have the ability to block things that the majority wants to do," she said. That's not in the Constitution… It's time to get rid of the filibuster."

It's technically true that the expansive abortion bill failed on a cloture vote and therefore was filibustered. But the legislation failed 51 to 49. It did not garner majority support, as opposed to simply not meeting a 60-vote procedural threshold. It would have been defeated on the Senate floor even if the filibuster was somehow eliminated.

Moreover, as has happened on a number of issues, Democrats chose to push a maximalist bill that checked all the activist boxes rather than legislation that could have won enough bipartisan support to exceed 50 votes. While the abortion measure was sold as codifying Roe v. Wade as the Supreme Court seems on the verge of overturning it, its provisions went far beyond the policies that precedent permitted. A bill that really did limit itself to codifying Roe could have gotten Sens. Susan Collins (R-Maine) and Lisa Murkowski (R-Alaska), both pro-choice, to vote for it, and ostensibly Sen. Joe Manchin (D-W.V.), too.

Yes, that more modest bill still would have failed. But then it would really have been due to the supermajority requirements of the filibuster, and it would have been a bipartisan majority of 52 senators.

The Democrats' democratic absolutism is largely opportunistic. You cannot talk about the Senate being undemocratic because your party's senators represent more people — a deliberate part of the constitutional design without which the country as we know it would likely not even exist — while pushing an overreaching abortion policy favored only by 19 percent of the country. The filibuster, the Electoral College and the makeup of the Senate only became a problem for liberals because they now command less popular support than they did in the New Deal/Great Society eras.

And that brings us back to the filibuster, a subject about which Democrats may reverse themselves yet again after November. The Democrats' problem is that they barely won the Senate and are dependent on the votes of their most conservative lawmakers, yet they are trying to legislate as if they enjoyed supermajorities. That's not on procedures, or even the GOP.

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