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Biden Wants A Filibuster Carve-Out — But Only For Democrats

… but that’s not how it works.


Joe Biden was in Madrid today attacking American institutions. “The one thing that has been destabilizing is the outrageous behavior of the Supreme Court of the United States,” the president said of the Dobbs ruling, which sent the abortion issue back to the democratic process where it belongs. (Is this the first time in American history that a president has criticized a branch of his government on foreign soil?)

Biden went on to say that he wants to “codify Roe v. Wade into law,” and “[i]f the filibuster gets in the way … we should provide an exception to the filibuster to deal with the Supreme Court decision.”

Now, it’s become tedious to point out the shameless, unmitigated hypocrisy of the Democrats on the filibuster. Once upon a time, Biden called the filibuster “one of the pillars of American democracy,” and now he agrees with his former boss that it’s a “relic of the Jim Crow era.” Biden, who knows a bit about Jim Crow, had nothing to say on the matter from 2017-2020 when Democrats deployed the filibuster more than 300 times during the Trump administration — easily a record.

In 2017, in fact, 30 Democrats signed a letter written by Sen. Susan Collins, R-Maine, defending the filibuster as an imperative tool in maintaining the “deliberative” composure of the legislature. Sen. Dick Durbin, D-Ill., argued in 2018 that abolishing the filibuster “would be the end of the Senate.” He was right then. And maybe that’s the point. Now that his party is unable to unilaterally dictate policy, he says the filibuster has a “death grip” on American democracy.

Anyway, you’ll notice that Biden’s carve-outs only apply to his party’s legislative priorities. Last year, the president also advocated for a filibuster carve-out so Congress could cram through a bill that would have overturned thousands of voter-integrity laws around the country and created a corrupt national election infrastructure. That exemption was justified by the hysterical notion that asking a voter for ID, among equally rational regulations, was an assault on democracy.

What special justification is there for creating a carve-out for codifying Roe? It is a highly divisive issue. Polls show that the idea of codifying Roe nationally isn’t particularly popular. And when more voters learn that the president’s preferred policy would legalize abortion through all nine months of pregnancy on demand for any reason, paid for by taxpayers, it will be even less popular. This is why Democrats need to circumvent legislative norms in the first place. But since states can now, thanks to the Supreme Court, legislate their own abortion policies, there is no need for federal regulation.

Moreover, there is no such thing as a carve-out, anyway. After Harry Reid blew up that 60-vote threshold for short-term political gain in 2013, perhaps under the impression that Democrats would be running Washington for the foreseeable future, his party paid a heavy price. Today, one imagines Democrats believe that they’ll either be able to demand the parties live by two sets of rules when the time comes — as they do with so many other issues — or their long-term goal is to hollow out the filibuster.

I lean toward the latter point of view. The progressives’ crusade to end the filibuster is a Constitution-eroding, radical play to nationalize politics by empowering slim and fleeting majorities to institute wide-ranging, generational policies. First, they make the mistake of believing their own press, which constantly tells them their ideas are immensely popular. Second, they make the mistake of believing that Republicans won’t have the nerve to do the same. They used to be right about that, though it’s a risky proposition these days.

Whatever the case, just as there was no such thing as a carved judicial filibuster exemption specially crafted for Democrats, there will be no special exemptions for the legislative filibuster. In 2024, Republicans may well be in a position to repeal any new Roe-codifying law and pass an abortion ban. There is absolutely no reason for Republicans to allow Democrats to make carve-outs and not do it themselves. Back and forth it would go, with states and municipalities constantly being impelled to change their policies. Few things would be more destabilizing than allowing one party to overturn state laws and rely on centralized federal control without consensus or compromise. That is far more destabilizing than any SCOTUS ruling.

Abortion isn’t a federal concern just as it wasn’t a constitutional concern. And the filibuster, as usual, does the nation a great service.