05.04.2022 Washington Update

Supreme Court – We knew it was coming, but not now.  In what appears to be an unprecedented breach of Supreme Court protocol, Politico reported an apparent leaked draft opinion by Justice Samuel Alito to overturn Roe v. Wade and Planned Parenthood v. Casey.  The reaction from both sides of the aisle was predictable—but just how the potential decision affects the November elections may not be.

“This decision will put women’s rights and abortion rights front and center in the elections,” said Geoff Garin, a pollster who advises Senate Democrats.  “The House races that matter are in the suburbs,” said Doug Sosnik, White House political director under President Bill Clinton. “Midterm elections are generally about turnout and this type of ruling could energize the base of both parties.”

Maybe.  Yes, the decision—which, it should be emphasized, is not final; we’re still dealing with a hypothetical here—to end Roe will further polarize and energize the bases of both parties.  (Note – overturning Roe means returning the decision of the legality of abortions back to the states; it would not outlaw abortion.) Moreover, one could reasonably argue that the decision could inspire a much-needed boost to deflated Biden supporters, invigorating Democrats in November, thereby preventing a wave election.  But this concatenation seems too simplistic and premature.

The immediate reaction, hardened into an assumption, that abortion will be “front and center in the elections”—again, we have our doubts.  Of course, we’re not naïve to think that abortion, which has barely registered as a voter concern, would indeed register if the Court does what we expect it to do.  But would abortion, at least for some important voting cohorts, trump all other pressing concerns, now dominating the lives of most people, and the political debate nationally?  Namely, would inflation—higher prices for just about everything—fall by the wayside?  Would debates over school curricula and masking fade into irrelevance? Would President Biden’s approval rating ascend to influential heights?  Would the border crisis get pushed aside?  What about war in Ukraine?

As important: how will Democrats react legislatively?  It’s not our place to know.  But one can easily imagine the difficulties party leadership could have in forcing votes to codify Roe.  What would the bill say, for example, about partial-birth abortion?  How would college-educated suburban women respond?  How might moderates in the party react to voting for an unqualified, unrestricted right to abortion?  Would they support ending the filibuster to attain it?  These questions, and the debates surrounding them, could consume the remaining days of the legislative session—which may, or may not, play well with the American public.  In a very compressed period, Congress is juggling multiple tasks—Build Back Better, China legislation, a potential energy and climate bill, gas price legislation, NDAA, appropriations, scores of nominations—which Democratic leaders are furiously trying to address, in one form or another, before August.  Pushing these aside in favor of abortion could have electoral ramifications.

Our point here is to counsel caution in what the Court’s eventual decision, whatever it is, may mean for the midterm elections.  And who knows, for instance, what bombshell will emerge in October.  Nonetheless, it’s probably incorrect to assume the Court’s decision will have no impact.  But it’s probably also wrong to assume the impact will be decisive, either way, in determining who controls Congress in 2023.  Kevin Williamson, writing in National Review, summed it up this way:

“[T]here is no cause for hyperventilation on either side…The pro-abortion side will be disappointed at first with its symbolic loss, but it is very likely that the state legislatures in California, New York, New Jersey, Illinois, etc., will pass laws that secure abortion rights in those states. It seems reasonably likely that, for the foreseeable future, most Americans will live in states where abortion remains legal. A few big states, notably Texas, are likely to go the other way. Florida will probably enact some abortion restrictions but probably will not go as far as Texas or Oklahoma. The pro-life side will still have a great deal of work to do.”


China Legislation – With the Senate agreeing to conference with the House on the United States Innovation and Competition Act, talks can now officially begin. Some informal talks have already occurred in the weeks prior, and the Senate plans on conducting votes on as many as 28 motions to instruct conferees this week.

While the business sector has high hopes for an agreement, Republicans we have spoken with remain pessimistic that a final conference agreement can be reached.  No Republican believes that a final bill will be ready this work period and prospects are dim, they say, that a product will be finished by August recess.

We’ve already discussed in previous updates how many committee chairs and ranking members are involved in these talks—and the challenges that fact presents to getting something done.  As a result, some have speculated about a leadership “four corners” negotiation between Senate Majority Leader Chuck Schumer (D-NY), Senate Minority Leader Mitch McConnell (R-KY), Speaker Nancy Pelosi (D-CA) and House Minority Leader Kevin McCarthy (R-CA).  We see that as highly unlikely.

Leaders McConnell and McCarthy fully trust their ranking members, and there is little political motivation for Republicans to expedite consideration by moving to leadership level talks.  As much as the White House and Commerce Secretary Gina Raimondo would like to secure a legislative victory for Democrats to tout on the campaign trail, we don’t see Republican leaders horse-trading with Democrats just to meet an artificial deadline imposed by Democrats.

Another significant factor is logistics.  House members are only in session for 32 days over the next three months.  While staff can certainly negotiate on some disagreements, given the significant gulf between the proposals, significant member-to-member negotiations will be the only way to get a bill done.

This may all end with Congress passing a $52 billion funding bill for semiconductor chip manufacturing this summer and leaving all the rest to be figured out another day, potentially until next Congress when the House and Senate may be under Republican control and an even better deal can be cut directly with President Biden.