National Review Online
Thursday, September 26, 2024
Michael Kinsley once defined a gaffe as when a
politician accidentally tells the truth. If this has come to be known as a
“Kinsley gaffe,” perhaps it should be called a “Harris gaffe” when a
stage-managed politician accidentally reveals her plans.
In one of her rare unscripted media appearances, Kamala
Harris told Wisconsin Public Radio that she supports ending the
Senate filibuster in order to pass federal abortion legislation. “I think we
should eliminate the filibuster for Roe,” she said, so that “51 votes
would be what we need to actually put back in law the protections for
reproductive freedom.”
This is not the first time that Harris has backed ending
the filibuster, having done so in 2019 (to pass the “Green New Deal” she was endorsing as a
presidential candidate) and in 2022 (when she joined Joe Biden in claiming that it was
necessary because Democrats needed to pass a voting and elections bill). Harris
had defended the filibuster in 2017, but that was different because Democrats were in the
minority then in both houses of Congress, and Republicans held the White House.
A principled stance, this is not. But it is revealing.
Harris has made abortion the overriding theme of her
campaign. It is nearly the only issue upon which she speaks with clarity and conviction. The substance of what she is proposing is
radical — Roe was more sweeping than is commonly understood,
while the Democratic bill is more sweeping still.
It is characteristic of her past words and deeds that,
because she favors abortion, she brooks no restraints on supporting it. Thus,
she claims that the federal government has the power by statute to override
state abortion bans (it does not). Thus, she is willing to remake the United
States Senate and bulldoze two centuries of its traditions in order to get this
unconstitutional law.
Like the nine-member Supreme Court, the Senate filibuster
is not commanded by the Constitution but has grown by long and continuous usage
to be part of the small-c constitution of the country, the collection of rules
and norms by which our government functions. It serves a particularly valuable purpose when the federal government
is proposing to replace a diversity of state laws — each reflecting the varied
political preferences of different parts of the country — with uniform national
legislation. That purpose is triply valuable where, as here, the issue is a
divisive social question, and the proposed federal expansion is a novel
expansion of power with no visible basis in the Constitution. The more the
federal government has burst its traditional Madisonian design, the more
careful it ought to be not to enact national legislation further expanding
those powers on the basis of narrow partisan majorities without broad
geographic support.
In the long run, it does not matter what excuse is used
to tear down the filibuster; once it is gone, it will be nearly impossible to
revive (and Democrats would surely use the change to push other legislation,
not just a federal abortion law). Such is the nature of structural changes to
our system; such has been the nature of prior revisions to Senate cloture
rules. Doing so will, in turn, raise both the stakes and the temperature of all
future federal elections, as if they are not already sufficiently acrimonious.
It will also further sap the vitality of democracy at the state level. And it
will once again amplify the voices on the right who argue that Republicans
shouldn’t abide by rules because Democrats just get in power and change them to
get what they want.
With the retirement of Joe Manchin and Kyrsten Sinema
from the Senate, it is unclear if any Democrats remain who will stand up for
the institution and its norms. The saber-rattling of Harris and Chuck Schumer
on both the filibuster and the Supreme Court shows why it will be so essential for
Republicans to regain control of the Senate. It also illustrates, yet again,
the contempt Harris has for basic American civics.
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