Could This RFK Jr. Gambit Cause Biden a Battleground Nightmare?

President Joe Biden’s wobbly re-election campaign might have 99 problems, but a group of savvy women championing the Equal Rights Amendment could prove to be a giant one nobody expected.

Third-party candidate Robert F. Kennedy Jr., already a thorn in Biden’s side, has decided to make the ERA a campaign issue.

The document was ratified by the necessary 38th state, Virginia, in January 2020, after a five-decade struggle beginning in 1972, when Congress proposed the amendment. Biden has repeatedly lavished praise on the ERA but as president he has refused to order the United States Archivist to publish it in the Federal Register, which would give it the force of law.

Seeking to capitalize on Biden’s reluctance, Kennedy told The Daily Beast: “The constitution provides a process for its amendment. Those conditions have been fulfilled. The Biden administration should respect the constitution and publish the amendment in the federal register. The amendment has the support of the majority of the American people, and my support as well. [If elected president] I will direct the archivist to publish.”

RFK Jr.’s declaration comes as welcome news to ERA activists led by the nonprofit advocacy group Equal Means Equal (EME), which is mobilizing in three battleground states—Michigan, Pennsylvania, and Wisconsin—to pressure Biden to tell Archivist Colleen Shogan to publish.

“The unconstitutional governance by the Biden administration is being challenged, and rightfully so,” said EME President Kamala Lopez, who founded the organization in 2009. “This is very good news for our democracy, and it means that Biden needs to publish right away or he will jeopardize his ability to win the election.”

Fringe candidates Cornel West, Marianne Williamson and Jill Stein have also promised to publish the amendment, but polls indicate it is Kennedy who could pick up double-digit support in some battleground states, possibly draining votes from Biden where the 81-year-old president is locked in a knife’s-edge contest against convicted felon Donald Trump, the presumptive Republican nominee.

“We need this thing published before the election, because we have no leverage after that,” Lopez said. “It takes one three-minute phone call from President Biden to do so. And the fact that he’s not doing it really means that we need to withhold our vote from this president until he agrees to do so.”

Longtime Democratic strategist James Carville, doubtless speaking for many Biden supporters, condemned the tactic of withholding votes from the president.

“It’s a really stupid position to say that when you’re running against someone I would consider a traitor and a criminal, if you don’t do what we want, then we’ll stay home,” Carville told The Daily Beast. “It’s childish. And this idea of election-year blackmail is, on its face, reprehensible.”

Carville added: “The country can survive without an Equal Rights Amendment. But it can’t survive Donald Trump.”

EME Vice President Natalie White countered: “We would love to turn our campaign into ‘Thank you, Joe Biden, for publishing the amendment.’ But until he publishes, we don’t believe his lip service. We need to make sure that Biden fulfills the promises that he made to women, which is why we went out and voted for him in 2020.”

The text of the ERA, barely modified since it was first written by women’s suffrage activists a century ago, reads as follows: “Section 1: Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex. Section 2: The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Section 3: This amendment shall take effect two years after the date of ratification.”

Lopez notes that while Biden recently asserted that “it is long past time that we heed the will of the American people and make this amendment the law of the land,” there is little substantive difference between the Biden administration and former president Trump.

Indeed, the Biden Justice Department has kept the policy of Trump attorney general William Barr’s Office of Legal Counsel which argued, just before the Virginia legislature voted to ratify the ERA four-and-a-half years ago, that the amendment is illegitimate because the ratification process busted a constitutionally debatable deadline imposed by Congress in the 1970s.

While five states voted during the last 50 years to revoke their ratifications, a previous archivist, David Ferriero, declared in October 2012 that any “proposed Amendment becomes part of the Constitution as soon as it is ratified by three-fourths of the states…[and federal law] also states that my certification of the legal sufficiency of ratification documents is final and conclusive, and that a later rescission of a state’s ratification is not accepted as valid.”

Lopez said: “If we can’t get this president, who talks up and down about this stuff, to put his money where his mouth is and make a three-minute phone call, then we are already living in a failed American experiment.”

Former Wisconsin senator Russ Feingold, now president of the American Constitution Society, said he’s baffled by the Biden White House’s adherence to the Trump DOJ’s position.

“It’s bizarre,” said Feingold, who has lobbied top White House advisers to discard the Trump policy. “There is no reason not to reverse it. It is not a legitimate opinion. And the archivist really has no right to not move forward. The archivist’s role is merely ministerial. There is no suggestion in the constitution that the executive branch has any right to do anything other than acknowledge that there are 38 states ratifying and it is now in the constitution.”

Feingold disagrees with EME’s pressure tactics, but adds: “I would think that the last thing the Biden administration would want is to be accused of having killed this amendment and not letting it go through when it seems to have met the basic requirements that the founders intended.”

And while there would be predictable legal challenges from rightwing groups and Republican attorneys general, the president telling the archivist to publish would be “the ultimate political no brainer,” Feingold said.

In Congress, Sen. Kirsten Gillibrand (D-NY) and Rep. Cori Bush (D-MO) have been gathering co-sponsors for a joint resolution urging the Archivist to publish.

Despite repeated requests, spokespeople for both the Biden campaign and the White House declined to offer comment. Lopez said that since Biden’s inauguration on Jan. 20, 2021, White House and DOJ officials, as well as the president’s campaign, have rebuffed efforts to engage.

Lopez’s pro-ERA colleague, Washington attorney Nicole V. Bates of the women’s advocacy group Shattering Glass, managed to get four meetings about the ERA with staffers of the White House counsel’s office from January to September of 2022.

“In those meetings and written communications, the White House was less than forthcoming,” Bates said.

“We were repeatedly told that they could not discuss the ERA as it was the subject of litigation. The very litigation where the Trump administration fought against the ERA, and the Biden administration continued the Trump fight, despite Biden’s public statements of support for the ERA”—a reference to the Biden administration repeatedly deploying DOJ attorneys to oppose ERA advocates in federal court.

Bates’s efforts to meet Jennifer Klein, executive director of the White House Gender Policy Council, were also unavailing, as was her Freedom of Information Act request for email communications concerning Biden DOJ policy opposing publication of the amendment.

“It’s been a complete ghosting,” she said.

Legal scholars including Drexel University Law Professor David S. Cohen argue that the ERA would not only ensure equal treatment for categories of people beyond women—including LGBTQ+ communities—but it could also effectively reverse the U.S. Supreme Court’s 2022 Dobbs v. Jackson ruling that overturned the 1973 Roe v. Wade decision that affirmed a privacy right to abortion.

“The argument would be that the Equal Rights Amendment is a strong statement about equality based on sex, and if you’re banning reproductive health care that women get but not any reproductive health care that men get, that’s discrimination based on sex,” Cohen said.

He added a caveat, however: “Any constitutional amendment would be subject to the interpretation of the Supreme Court, and the current justices of the Supreme Court certainly are not very hospitable to any claims around reproductive rights.”

In a soon-to-be-published article in The Ohio Northern University Law Review, EME’s top attorney, Wendy Murphy, draws an implicit parallel between the way in which the American political establishment viewed the suffragettes of a century ago, especially the ERA co-author Alice Paul, and the reception accorded to today’s ERA activists.

Paul and her cohort were effective in getting women the right to vote in 1920, Murphy suggests, precisely because they were, as a Southern congressman put it, “annoying and persistent and troublesome and being just like the sand that gets into your eyes when the wind blows.”

Thus the current controversy over the ERA is likely to become yet another troublesome irritation for the White House and the Biden campaign.

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