Cozen Currents: Look Out Below 

April 16, 2024
The Cozen Lens
  • In the inverse of traditional political wisdom, down ballot candidates may be more helpful to President Biden’s re-election than the other way around.
  • As the importance of immigration rises in voters’ minds, President Biden is tacking to the right, embracing conservative border policies in an effort to neutralize Republicans’ historic advantage.
  • Data privacy has returned to the spotlight on Capitol Hill with the introduction of a new bipartisan comprehensive consumer privacy bill.


The Up-ballot Effect

AKA, the “Reverse Coattail” Effect. President Biden’s political weakness is such that he’s more reliant on Democrats in state office to give him a leg up than he is able to let them ride on his popularity.

  • The idea that a popular presidential candidate can buoy the prospects of other members of their party is well known. However, the precise opposite — the “reverse coattail effect” (or “up-ballot effect”) — may be the more important phenomenon in 2024.
  • To be the rising tide that lifts all the boats of one’s party requires the party’s figurehead to be well liked. Both Biden and former President Trump, however, are historically unpopular. Trump’s favorables are 42.4/52.7 percent (net -10.3 percent) while Biden’s are 39.0/55.8 percent (net -16.8 percent).
  • This wouldn’t be the first appearance of the up-ballot effect. In 2020, Trump broadly performed worse than GOP House candidates across the country. While Biden received more votes than Democratic House candidates in the vast majority of districts that year, it seems likely this will be less true this November. At the time, Biden was much more popular; now he’s even more unpopular than Trump.

All Politics is Local. The combination of statewide Democrats also up for election who are more popular than Biden and MAGA candidates may make Biden’s election pitch more persuasive.

  • By and large, the pool of Democratic incumbent talent up in the Senate this cycle is impressive, including Senators Jon Tester (MT), Sherrod Brown (OH), Bob Casey (PA), Tammy Baldwin (WI), and Amy Klobuchar (MN). All have established strong brands with their state and have strategically bucked the party to support local interests.
  • The direction of the coattails isn't the only thing that can be flipped. A bad candidate can damage the rest of their party by association. Biden’s making part of his re-election bid on preventing “MAGA extremism.” This message may punch harder in places where the other GOP candidates play into this concern.
  • Former gubernatorial candidate Kari Lake in Arizona is an election denier and MAGA darling and businessman Bernie Moreno in Ohio is a Trump-picked candidate. Especially in Arizona, where the memory of McCain maverick Republicans runs strong, doubling down on Trump carries risks. Another example would be GOP North Carolina gubernatorial candidate Mark Robinson, whose controversial statements are too numerous to list. As polls show Trump leading Biden in NC, they simultaneously indicate Democratic candidate Josh Stein leading Robinson by a substantial margin. Even if Stein doesn’t end up giving Biden the boost required to win, the increased competitiveness of the presidential race could divert GOP funds from elsewhere.

Abortion on the Ballot. The presence of major ballot initiatives regarding the future of reproductive rights or cannabis in a state could also give Democrats a shot in the arm.

  • Arizona campaigners announced they had received enough signatures to qualify an abortion referendum there the same week the state Supreme Court ruled that the 1864 law that completely banned abortion would be enforced. In Florida, the state Supreme Court ruled in separate cases that a six-week abortion ban could take effect and that an abortion measure would be placed on the ballot in November. Activists are also trying to add a referendum legalizing recreational cannabis in the Sunshine State. Other states that could feature abortion ballot measures include Nebraska and Nevada.
  • Democrats think these will help for a couple reasons. First, they juice turnout from the base. Second, they highlight key issues that dovetail with the national race. The abortion status quo is a result of the three Supreme Court justices Trump appointed to the bench who overturned Roe v. Wade; even Trump had to admit that the law had gone too far in Arizona and his home state of Florida and assured people it would change. Meanwhile, Arizona Republicans are trying to shut down discussion of repealing their 1864 ban and the current six-week ban in Florida was approved by GOP lawmakers. A lot of the success of campaigns is telling a persuasive story. The role abortion and cannabis play in crucial presidential swing states certainly isn’t making this job any easier for the Trump campaign.

Border Politics

Trump Puts Immigration Front and Center. Former President Trump and congressional Republicans are capitalizing on voters’ criticism of the Biden administration’s immigration policies as the issue’s salience rises, placing it at the forefront of campaign rallies and messaging.

  • Alongside a dramatic increase in migration at the southern border, the number of voters listing immigration as their top concern has also increased significantly.
  • That’s good news for Republicans whose border politics voters overwhelmingly prefer. January polling from Bloomberg found swing-state voters favor Trump over President Biden to handle the surge in migration by 22 points. According to polling from the AP and NORC, 68 percent of adults disapprove of Biden’s handling of immigration and just under half of those surveyed blame Biden and congressional Democrats for the recent challenges at the southern border.
  • Trump is leaning into the issue, warning voters that Biden’s policies amount to an open border at  every campaign stop. In a show of just how important the issue is to Trump, the former president openly campaigned to kill the Senate’s bipartisan immigration deal despite its broad popularity.

Biden’s Immigration Reversal. Conscious of his significant polling disadvantage on immigration, Biden is embracing conservative border policies in a dramatic reversal from his 2020 campaign.

  • In a sign of just how much the politics of immigration have changed, Biden turned around and negotiated “the toughest set of reforms to secure the border ever in history” in February, only a few years after using his day-one presidential authority to halt construction of the border wall and roll back Trump’s “remain in Mexico” policy.
  • For Biden, moving toward voters’ more conservative positioning on immigration could be essential to the success of his re-election campaign. Since the bipartisan border deal fell apart, Biden has only leaned further into the issue, countering Trump’s calls for greater border enforcement with his own calls to “shut down” the border.
  • With voters continuing to criticize the White House’s border policies, Biden is now considering taking things a step further and issuing an executive order to severely restrict asylum policy. According to the New York Times, the central tenet of the planned policy would draw on Section 212(f) of the 1952 Immigration and Nationality Act to block individuals who cross the border illegally from applying for asylum. Section 212(f) is the same authority Trump used to justify his “Muslim ban” early in his presidency.

The Path Forward. The Biden campaign’s ability to address voters’ concern over increased migration at the southern border will be pivotal to his re-election campaign, but the president faces significant obstacles to doing so.

  • The White House and Biden’s allies in Congress are looking to Rep. Tom Suozzi’s (D-NY) February special election victory as a roadmap for successfully countering Republican’s immigration advantage in the current environment. Suozzi embraced the bipartisan border deal and vocally supported stricter immigration enforcement.
  • As further evidence of the strategy’s efficacy, Punchbowl News reported that a recently commissioned poll from House Democrats’ campaign arm found voters prefer a Democratic candidate who backs strict immigration enforcement over a Republican candidate focused on the border wall and deportation by seven points.
  • While taking steps to address the trust gap on immigration could help Biden, some analysts are skeptical that the White House’s new strategy will be enough to neutralize the issue. Despite Suozzi’s conservative rhetoric on the border, polling from the New York Times and Siena College found voters still preferred his Republican opponent by nine points on the issue.

Data Privacy Returns to the Fore

New Bill. Comprehensive data privacy legislation is under consideration in Congress.

  • Senate Commerce Committee Chair Maria Cantwell (D-WA) and House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA) proposed the American Privacy Rights Act (APRA). The APRA would preempt most state privacy laws and  restrict companies to collecting and using only data that is “necessary, limited, and proportionate.”
  • The APRA includes a number of new consumer rights. These include the rights to access, correct, delete, and export personal information and identify third parties who have received their data. Consumers would also be able to opt out of the use of algorithms in housing, employment, education, health care, insurance, credit, or access to public accommodations.
  • Enforcement would be via litigation from individuals over privacy violations, state attorneys general, and the Federal Trade Commission (FTC). The bill also gives the FTC a role in drafting rules to implement certain provisions.
  • Crucially, the APRA enjoys the support of Cantwell, who never got on board with the last Congress’ major data privacy bill. This gives it a better shot of passage.

The Path Forward. Privacy advocates will be racing against the clock to pass the APRA before the end of the 118th Congress.

  • The APRA may undergo some key changes. House Energy and Commerce Committee Ranking Member Frank Pallone Jr. (D-NJ) has praised the bill but noted that “there are some key areas where I think we can strengthen the bill, especially children’s privacy.” This could potentially mean the addition of the Children and Teens’ Online Privacy Protection Act or the Kids Online Safety Act, or similar provisions. Lawmakers recently introduced House versions of these two bills, both previously introduced in the Senate.
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Howard Schweitzer

Member, CEO, Cozen O’Connor Public Strategies

(202) 912-4855

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