Yes, Democrats do need ‘more than a majority ... to codify Roe vs. Wade’

A leaked draft opinion that indicated the U.S. Supreme Court could soon strike down the landmark Roe v. Wade decision establishing the right to abortion has sent shockwaves through American political, religious and societal circles. 

If the 1973 ruling is overturned, in Wisconsin an 1849 ban on nearly all abortions would go back into effect. Nationally, with Democrats controlling Congress and the White House, there has been a push to codify the right to an abortion in federal law.

But that’s not as easy as it may sound.

And that gets at a vexing issue that we wanted to use this fact-check to help address: Where does the Senate fit in a political world in which most everything else — including the Supreme Court — is majority rule?

"Because the U.S. Senate is a minority institution, meaning you don't have to get the most votes and still control the chamber, we need to have more than a majority of Democrats in control to codify Roe v. Wade," state Sen. Kelda Roys, D-Madison, said May 8, 2022, on "Capital City Sunday." 

On Wednesday, Senate Democrats failed to advance legislation intended to protect abortion access nationwide even if the Supreme Court overturns Roe v. Wade. On a 51-49 vote, Democrats fell short of the 60 votes they would have needed.

When we asked Roys for backup, she – unsurprisingly – pointed to the Senate rules, specifically the 60-vote requirement for "cloture," or what is needed to end debate for a (majority rules) vote on the underlying bill.

"Without 60 votes, a minority of senators can filibuster any proposal to which they object," Roys told us.

There are some exceptions to this rule, such as budget reconciliation measures, but those exceptions provide limited opportunities and would not apply to a proposed bill codifying abortion rights. 

Republicans say the filibuster protects the rights of the minority party.

In recent years, the focus on eliminating the filibuster has centered on federal court nominees. The filibuster used to apply to all judicial nominees, but Democrats eliminated it for many nominations under President Barack Obama, and Republicans eliminated it for Supreme Court nominees under President Donald Trump.

Right now, the chamber is evenly divided, but Democrats have the tie-breaker vote in the form of Vice President Kamala Harris.

Roys said the situation is compounded by the U.S. Senate’s "unbalanced representation."

"Right now, the 50 Democratic senators represent 41 million more Americans than the 50 Republicans," Roys said, a statement confirmed by a Nov. 6, 2020, Vox report.

This is because Democrats typically garner more votes in high-population states, while Republicans fare better in states with lower populations. But each state gets two U.S. senators regardless of population.

For example, Wyoming, with a population close to 600,000 and called the most Republican state in the U.S., has two senators; while California, with a population close to 39 million and considered to be a Democratic stronghold, also has two senators. 

Norman J. Ornstein, an emeritus scholar at the American Enterprise Institute, a Washington, D.C., conservative think tank, said the Senate is a minority institution in two ways.

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stated on June 12, 2021 in Twitter

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"Because each state, regardless of population, gets two senators, a tiny majority of the population can determine the outcomes," Ornstein said in an email to PolitiFact Wisconsin. "To give a contemporary example, we are almost at the point where 70 percent of Americans live in just 15 states. Meaning 30 percent of Americans will elect 70 senators." 

Ornstein, who serves as an election analyst for CBS News and writes a weekly column for Roll Call, also explained that the filibuster rule means that "41 senators can block action on any bill except for those that are protected by rules like reconciliation." 

According to the U.S. Senate reference website, using the filibuster to delay debate or block legislation has a long history. 

"The term filibuster, from a Dutch word meaning ‘pirate,’ became popular in the United States during the 1850s when it was applied to efforts to hold the Senate floor in order to prevent action on a bill," the Senate site says. 

In 1917, according to the website, in response to pressure from President Woodrow Wilson and the crisis of World War I, the Senate adopted a new rule establishing the "cloture" procedure. This allowed the Senate to end debate with a two-thirds vote (67 votes in a 100-member Senate). In 1975, the Senate reduced the number of votes required from two-thirds to three-fifths (60). 

"So, even if Democrats had 50 or even 59 votes to codify Roe v. Wade, so long as the filibuster rule remains as is, unified Republican opposition can block the bill," Ornstein said. "Right now, all Republicans are opposed. The Democrats could find a way to alter the rule, as was done for confirmations, by majority, but right now at least two of their own won't agree."

Roys said due to U.S. Senate rules, Democrats need "more than a majority ... to codify Roe vs. Wade." 

Roys was referring to Senate rules which require 60 votes for ending debate prior to a vote on a bill, which means it’s possible to have a party with control — in this case the Democrats — but without the ability to move measures forward that don’t have support from the other.

We rate Roys’ claim True.