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.