If the Senate’s 60-vote rule goes for abortion, it goes for everything.
by The Wall Street Journal Editorial Board, July 1, 2022
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. “We have to codify Roe v. Wade in the law,” Mr. Biden said this week. “If the filibuster gets in the way, it’s like voting rights, we provide an exception for this.”
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. In 2013 Democratic Senate leader Harry Reid used the “nuclear option” to confirm some appellate judges. Sen. Mitch McConnell’s prescient reply: “You’ll regret this, and you may regret this a lot sooner than you think.” In 2017 Mr. McConnell returned the favor by nuking the filibuster for Supreme Court nominees. Three conservative Justices later, Roe v. Wade went on the ash heap.
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.
Democratic Senate candidates in Wisconsin and Pennsylvania are calling for the filibuster to be demolished. Both seats are now held by the GOP, and both are tossups. If Democrats gain two Senate seats and hold the House, the filibuster could be a goner. Mr. Biden has put the filibuster rule on the ballot, which could mean a Supreme Court with more than nine Justices and an American flag with more than 50 stars.