Kamala Harris’s Attack on the Filibuster Puts ‘Democracy on the Ballot’

I n re-endorsing the nuclear option on the filibuster, Kamala Harris also detonated many glib “democracy is on the ballot” talking points from her allies. Many opponents of Donald Trump and American populism have invoked some state of political emergency — that radical measures would need to be taken for the sake of “norms.” Yet Harris’s position on the nuclear option has revealed how this politics of emergency undercuts itself, at least if the goal is preserving the American constitutional order.

Eliminating the filibuster would at once overturn longstanding protections for individual senators and usher in a period of heightened constitutional conflict, if not deterioration. No limited filibuster “carveout” on abortion seems likely to stand, as there would be immediate appeals to weaken the filibuster for other proposals. A post-filibuster Senate would let the narrowest of partisan majorities to pass sweeping legislation on a range of topics. By making it easier to pass one-size-fits-all legislation, this empowered central government could severely damage the interests of federalism and further inflame civic tensions. Trying to impose the same exact policy paradigm on California and Texas is a way to guarantee that at least one state is disappointed.

An increasingly polarized Congress would be likely to swing from periods of frantic activity during trifectas to protracted years of acrimonious deadlock under divided government. To some extent, that would represent the escalation of our present political dynamics. So much for a new way forward.

But there could be an even darker turn than that politics of convulsion. Narrow partisan majorities could also muscle through reforms that would entrench their own power. For instance, some Democrats have proposed adding states (such as Washington, D.C.) on a party-line basis as a way of padding their party’s congressional majorities.

Leading Democrats have also indicated that they intend to target the judiciary if they achieve a trifecta. Rhode Island senator Sheldon Whitehouse has pilloried the nation’s courts for years and has announced a “court reform” proposal that could essentially force three Republican-appointed Supreme Court justices from the bench by stripping them of jurisdiction to hear appellate cases. This is the most sweeping attack on judicial independence since Franklin Delano Roosevelt’s failed 1937 Court-packing plan. And at the time, Roosevelt’s Democrats had just won landslide victories in the 1936 election and controlled over 75 percent of both houses of Congress. Democrats are considering their own takeover of the courts with much less of a popular mandate.

As The Dispatch reported in August, Whitehouse has publicly said that “Democrats would tie their Supreme Court legislation . . . to an omnibus package that would include a bill creating a national right to abortion and other top Democratic priorities.” The abortion bill that Harris just supported the nuclear option for could thus be a vehicle for that broader omnibus Whitehouse has outlined. Harris has endorsed a form of “court reform” that aligns with Whitehouse’s proposal, and Whitehouse has said that her team has told him that his legislation is “precisely aligned with what we are talking about.” Oregon senator Ron Wyden has just released an arguably even more expansive bill that would do everything from adding justices to the Supreme Court to restricting the ability of the courts to overturn congressional legislation.

Nuking the filibuster, then, is an enabling condition for a full-scale assault on constitutional checks and balances. Regular order in the Senate serves as an important procedural guardrail, which can irritate both parties. All presidents of the hyper-contentious post-2008 era — Barack Obama, Donald Trump, and Joe Biden — have called for the nuclear option for the filibuster, which makes Harris’s endorsement of the nuclear option not some major change but more of the same. In 2018, Senate Republicans rebuffed Trump’s call to eliminate the filibuster, and many Republican senators have indicated that they will continue to protect that core part of Senate procedures. The picture is less clear for Democrats, however. All but two members of the Democratic caucus went along with an attempt to use the nuclear option against the legislative filibuster in January 2022, and neither of those two will be in the Senate in January 2025.

The fact that a Democratic trifecta could potentially challenge the separation of powers indicates the folly of conflating “democratic norms” with the political success of the Democratic Party. One of the gravest temptations of factional passions is the identification of partisan victory with the health of the nation as a whole. In recent cycles, both Republicans and Democrats have indulged in apocalyptic rhetoric if “the other side” wins. But that apocalypticism has often undermined good judgement.

Because the American constitutional order is composite, maintaining it is a multivariate exercise. A fixation on the presidency has often caused the “democracy in crisis” alliance to misunderstand the real underpinnings of the American Republic. While the presidency is an august and powerful office, the Oval Office is not the singular pillar of the constitutional order. Instead, the American constitutional order relies upon a play of forces and a diffusion of power. Preserving that Republic means protecting that diversity.