How a GOP Congress Could Roll Back Freedoms Nationwide
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If Republicans win control of one or both congressional chambers this week, they will likely begin a project that could reshape the nation’s political and legal landscape: imposing on blue states the rollback of civil rights and liberties that has rapidly advanced through red states since 2021.
Over the past two years, the 23 states where Republicans hold unified control of the governorship and state legislature have approved the most aggressive wave of socially conservative legislation in modern times. In highly polarizing battles across the country, GOP-controlled states have passed laws imposing new restrictions on voting, banning or limiting access to abortion, retrenching LGBTQ rights, removing licensing and training requirements for concealed carry of firearms, and censoring how public-school teachers (and in some cases university professors and even private employers) can talk about race, gender, and sexual orientation.
With much less attention, Republicans in the U.S. House and Senate have introduced legislation to write each of these red-state initiatives into federal law. The practical effect of these proposals would be to require blue states to live under the restrictive social policies that have burned through red states since President Joe Biden’s victory in 2020. “I think the days of fealty [to states’ rights] are nearing an end, and we are going to see the national Republicans in Congress adopting maximalist policy approaches,” Peter Ambler, the executive director of Giffords, a group that advocates for stricter gun control, told me.
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None of the proposals to nationalize the red-state social agenda could become law any time soon. Even if Republicans were to win both congressional chambers, they would not have the votes to overcome the inevitable Biden vetoes. Nor would Republicans, even if they controlled both chambers, have any incentive to consider repealing the Senate filibuster to pass this agenda until they know they have a president who would sign the resulting bills into law—something they can’t achieve before the 2024 election.
But if Republicans triumph this week, the next two years could nonetheless become a crucial period in formulating a strategy to nationalize the red-state social-policy revolution. Particularly if Republicans win the House, they seem certain to explore which of these ideas can attract enough support in their caucus to clear the chamber. And the 2024 Republican presidential candidates are also likely to test GOP primary voters’ appetite for writing conservative social priorities into national law. Embracing such initiatives “may prove irresistible for a lot of folks trying to capture” the party’s socially conservative wing, Patrick Brown, a fellow at the conservative Ethics and Public Policy Center, told me.
It starts with abortion. Senator Lindsey Graham of South Carolina in September introduced a bill that would ban the procedure nationwide after 15 weeks of pregnancy. In the House, 167 Republicans have co-sponsored the “Life Begins at Conception Act,” which many legal analysts say would effectively ban all abortions nationwide.
In elections, Senator Rick Scott of Florida has proposed legislation that would impose for federal elections nationwide many of the voting restrictions that have rapidly diffused across red states, including tougher voter-identification requirements, a ban on both unmonitored drop boxes and the counting of any mail ballots received after Election Day, and a prohibition on same-day and automatic voter registration.
In education, Senator Tom Cotton of Arkansas has proposed to federalize restrictions on how teachers can talk about race by barring any K–12 school that receives federal money from using “critical race theory” in instruction. Several Republicans (including Senator Josh Hawley of Missouri) have introduced a “Parents’ Bill of Rights,” which would mandate parental access to school curriculum and library materials nationwide—a step toward building pressure for the kind of book bans spreading through conservative states and school districts. Nadine Farid Johnson, the Washington director for PEN America, a free-speech advocacy group, predicts that these GOP proposals “chipping away” at free speech are likely to expand beyond school settings into other areas affecting the general population, such as public libraries or private companies’ training policies. “This is not something that is likely to stop at the current arena, but to go much more broadly,” she told me.
Representative Mike Johnson of Louisiana, along with several dozen co-sponsors, recently introduced a federal version of the “Don’t Say Gay” legislation that Governor Ron DeSantis of Florida pushed into law. Johnson’s bill is especially sweeping in its scope. It bars discussion of “sexually-oriented material,” including sexual orientation, with children 10 and younger, not only in educational settings, but in any program funded by the federal government, including through public libraries, hospitals, and national parks. The language is so comprehensive that it might even prevent “any federal law enforcement talking to a kid about a sexual assault or sexual abuse,” David Stacy, the government-affairs director at the Human Rights Campaign, an LGBTQ advocacy group, told me.
[Read: Want to understand the red-state onslaught? Look at Florida.]
Johnson’s bill is only one of several Republican proposals to nationalize red-state actions on LGBTQ issues. During budget debates in both 2021 and 2022, Republican senators offered amendments to establish a nationwide ban on transgender girls participating in school sports. Representative Marjorie Taylor Greene of Georgia has introduced a bill (the “Protect Children’s Innocence Act”) that would set felony penalties for doctors who provide gender-affirming care to minors. Cotton, in a variation on the theme, has proposed to allow any minor who receives gender-affirming surgery to sue the doctor for physical or emotional damages for the next 30 years.
Meanwhile, Senator Steve Daines and Representative Richard Hudson of North Carolina have introduced legislation requiring every state to accept a concealed-carry gun permit issued in any state—a mechanism for overriding blue-state limits on these permits. When Republicans controlled the House, they passed such a bill in 2017, but the implications of this idea have grown even more stark since then because so many red states have passed laws allowing residents to obtain concealed-carry permits without any background checks or training requirements.
Ambler told me he expects that the NRA and congressional Republicans will eventually seek not only to preempt blue states and city limits on who can carry guns, but also to invalidate their restrictions on where they can do so, such as the New York State law, now facing legal challenge, barring guns from the subway.
Brown, of the conservative EPPC, said it’s difficult to predict which of these proposals will gather the most momentum if Republicans win back one or both chambers. Some congressional Republicans, he said, may still be constrained by traditional GOP arguments favoring federalism. The strongest case for contravening that principle, he said, is in those instances that involve protecting what he calls “fundamental rights.” Graham’s national 15-week abortion ban can be justified on those grounds because “we are talking about, from my perspective, the life of an unborn baby, so having a federal ceiling on when states can’t encroach on protecting that fetus in the womb in the later stage of pregnancy makes a lot of sense to me.”
In practice, though, Brown thinks that congressional Republicans may hesitate about passing a nationwide abortion ban, particularly with no hope of Biden signing it into law. He believes they are more likely to coalesce first around proposals to bar transgender girls from participating in sports and to prohibit gender-affirming surgery for minors, in part because those issues have proved “so galvanizing” for cultural conservatives in red states.
[Conor Friedersdorf: The constitutional case against a federal abortion ban]
Stacy, from the Human Rights Campaign, said that although Senate Republicans may be less enthusiastic about pursuing legislation restricting transgender rights, he hasn’t ruled out the possibility of a GOP-controlled Congress advancing those ideas. “It’s hard to know how far a Republican majority in either chamber would go on these issues,” he told me. “But what we’ve seen again and again in the states is that when they can, they have moved in these directions. Even when you take a look at more moderate states, when they have the power to do these things, they move these things forward.” That precedent eventually may apply not just to LGBTQ issues, but to all the red-state initiatives some Republicans want to inscribe into national law.
These approaching federal debates reframe the battle raging across the red states during the past few years as just the first act of what’s likely to become an extended struggle.
This first act has played out largely within the framework of restoring states’ rights and local prerogatives. As I’ve written, the red-state moves on social issues amount to a systematic effort to reverse the “rights revolution” of the past six decades. Over that long period, the Supreme Court, Congress, and a succession of presidents nationalized more rights and reduced states’ leeway to abridge those rights, on issues including civil rights, contraception, abortion, and same-sex marriage.
Now the red states have moved to reverse that long trajectory toward a stronger national floor of rights by setting their own rules on abortion, voting, LGBTQ issues, classroom censorship, and book bans, among other issues. In that cause, they have been crucially abetted by the Republican-appointed Supreme Court majority, which has struck down or weakened previously nationally guaranteed rights (including abortion and voting access).
But the proliferation of these congressional-Republican proposals to write the red-state rules into federal law suggests that this reassertion of states’ rights was just a way station toward restoring common national standards of civil rights and liberties—only in a much more restrictive and conservative direction. “All of these things have been building for years,” Alvin Tillery, the director of the Center for the Study of Diversity and Democracy at Northwestern University, told me. “It’s just that Mr. Trump gave them the idea they can succeed being more [aggressive] in the advocacy of these policies.”
Like many students of the red-state social-policy eruption, Tillery believes that Republicans and social conservatives feel enormous urgency to write their cultural priorities into law before liberal-leaning Millennials and Generation Z become the electorate’s dominant force later this decade. “The future ain’t bright for them looking at young people, so they are acting in a much more muscular and authoritarian way now,” he said.
With Republicans likely to win control of the House, and possibly the Senate, the next two years may become the off-Broadway stage of testing different strategies for imposing the red-state social regime on blue America. The curtain on the main event will rise the next time Republicans hold unified control of the White House and Congress—a day that may seem less a distant possibility if the GOP makes gains as big as those that now seem possible this week.