It’s totally understandable that Kamala Harris wants to run for president on the issue of abortion. It’s just as understandable that Harris is proposing a national law protecting the right to choose. But to get there, she’s proposed what may be the most short-sighted move conceivable, eliminating the filibuster.
“I’ve been very clear: I think we should eliminate the filibuster for Roe,” Ms. Harris told Wisconsin Public Radio in the interview, which was recorded on Monday. “Fifty-one votes would be what we need to actually put back in law the protections for reproductive freedom and for the ability of every person and every woman to make decisions about their own body and not have their government tell them what to do.”
For supporters of the right to abortion, this may seem a bold move. I, too, am a supporter of the limited right to an abortion as a matter of good policy, regardless of whether Roe v. Wade was good law. But unlike Harris, and those who believe this is the right move, it reflects a massive failure to grasp the role the filibuster plays in our government, and there can be no ending the filibuster for this one thing that we really, really want without ending it for the vast array of things we really, really don’t want.
“Shame on her,” Mr. Manchin, who is not running for re-election, told CNN. “She knows the filibuster is the Holy Grail of democracy. It’s the only thing that keeps us talking and working together. If she gets rid of that, then this would be the House on steroids.”
When Harry Reid chose the “nuclear option” for eliminating the filibuster for judicial nominations, the immediate gratification gave way to the consent to the three Trump nominees for the Supreme Court. Whether you like his choices or not, that fact remains that with a Republican majority in the Senate, there was nothing to be done to stop them. It’s a vision of what the future holds should the nuke drop on the filibuster again.
She’s couching this procedural coup as related only to imposing a national abortion law on all 50 states. But anyone paying attention knows that’s a ruse. Once the 60-vote filibuster rule ends for one piece of non-budget legislation, it will end for everything.
It’s not just that the other team will seize the same opportunity for its own purposes, including repealing any national law protecting abortion, but the unduly passionate activists on her own side will ram their cause down the Democrats’ throat.
It won’t stop there. Sen. Sheldon Whitehouse says he wants to break the filibuster to restructure the Supreme Court. Sen. Bernie Sanders has recently given up on his former institutional objections and now favors 51 votes to pass his proposals.
Every interest group in the Democratic coalition will demand that its priorities pass with 51 votes too. Think statehood for the District of Columbia. And think Big Labor’s PRO Act that would ban right-to-work laws nationwide, among other ideas that would normally require bipartisan majorities to pass the Senate.
Whichever team gets that 51st vote will not only be able to dictate to the 49 what the law will be, but will be hostage to the worst demands of their radical fringe needed as part of their coalition for re-election. Once the precedent is set, it’s barely a baby step onto the slippery slope that will be demanded by every senator whose vote is needed for passage.
Obviously, once one side does the dirty, so too will the other. The irrational assumption that only the good guys will hold power in perpetuity is a dangerous delusion. We’re a nation divided and power goes back and forth as we continually try to do better, or at least different, than what we’re doing now.
But there is another institutional reason that the filibuster plays a critical role in our government. A nation cannot stand when it’s controlled by tyranny, whether that’s tyranny of the majority or the minority. If 51 votes is all that’s needed to enact a radical change in the way our government functions, and about half our citizenry believes this shift to be fundamentally wrong and unacceptable, it will exacerbate divisions among Americans, perhaps beyond its breaking point.
It’s similarly obvious that there is little to no bi-partisan cooperation in Congress, including in the Senate. This not only makes government functioning impossible, but has proven the disingenuous nature of our politics. Even things we all largely agree with can’t get done lest the other team get credit. Better to cut off our nose to spite our face than let the other tribe get the win.
This, too, is untenable. We need to function, and stymieing necessary legislation just to prevent the other side from accomplishing anything we all want and need is idiotic and hypocritical. It doesn’t matter if your side can come up with nonsensical rationalizations for doing so.
But both right and left getting along to not let this nation wither and die on the vine is the alternative to using one vote fiat to push through a radical scheme that half a nation will never accept and fundamentally changes the nature of America in a way that may never be fixable. The former provides the path to a sustainable nation once we get beyond the demagoguery and idiocy that currently permeates our politics. The latter is a recipe for disaster from which we may never be able to recover.
Greenfield, you get it. Despite your prejudices and instincts, you know that giving your nominal side everything they want is the recipe for disaster. The only thing that keeps guys like me out of your comment section on the regular is your ego. I get it. You’d have to eat metric tons of crow.
You probably don’t consider this, but you and the rest of us are here to read Scott. Nobody is here for you. Nobody gives a shit whether you exist or not. Do you get that?
Indeed, nuking the filibuster for a national abortion law would almost certainly require the immediate use of the same means to neuter the Supreme Court, as there is little in the Constitution, post-Dobbs, authorizing Congress to legislate on the subject.
If it seems apocalyptic that a majority of Senators and a majority of Representatives and the President can change the law if they all agree, you may just not want Congress to pass laws.
Does your mommy know you’re using the big boy computer? You want the Republicans to ban abortions? You want Republicans to repeal the ACA? Maybe repeal the ’64 Civil Rights Act? What about making machine guns lawful to own again?
The only thing that prevents a 1 vote majority from taking extreme action that could prove ruinous to half a nation is the filibuster. Grow up.
Somebody on twitter said that it’s all about immediate gratification, without any appreciation of what comes afterward and the damage down the line. They want what they want now, and are really that simplistic.
At the end of the day, you either think voters should be able to change the law by electing new representatives or not. That means being able to vote for people who will make the “wrong” choice. If you think otherwise, that’s fine, but if so, just admit you think the Constitution is wrong about representative democracy.
Was your lobotomy painful?
MIles, Miles, Miles. I would be more inclined to give your argument credence if I didn’t lawfully own, manufacture and repair automatic weapons aka “machine guns”. But I do. Many of my clients are individual citizens who have purchased from the original pool of over 220,000 such weapons reserved for transfer to individuals by the GCA.
The average citizen can legally own a machine gun if they can afford the purchase price plus the $200.00 transfer tax and pass a simple background check. Take a walk over to ATF.gov and search for Form 4 to see the actual form the government requires for such transfers.
The GCA also covers, among other things, short barreled rifles and shotguns and suppressors. There are many in the GOP who would like to remove suppressors from the GCA but, to my knowledge, no one with any credibility in the party wants to junk the entire GCA.
For the sake of clarity to those reading: nothing posted above relates to the GCA (Gun Control Act of 1968).
The laws being referred to are the National Firearms Act of 1934 (the original law requiring registration and taxation of suppressors, short barreled rifles and shotguns, machine guns, “destructive devices,” and “any other weapons”) and the Hughes Amendment to the Firearms Owners Protection Act of 1986 which banned the registration of machine guns manufactured after its effective date by ordinary citizens but allowed the continued ownership and transfer of those already registered.
Does anyone know how these laws act to prevent me from mounting a real cannon on my sailboat that can fire not just round shot, but grape, chain, and bar-shot (all quite nasty), in case I need them in my future activities as a privateer? Not actually using them until I receive my letter of marque, but right now, in preparation for that event.
I know that the USA has disavowed commissioning of privateers (but not signed any treaties or changed the Constitution), but the ability to do so is explicit in the Constitution and the weapons were in very common use at the time of the establishment of the Constitution. Given the sad state of the Navy these days, maybe the nation might decide that a few cannons could be mounted on boats much quicker and cheaper than buying nuclear-powered vessels from greedy contractors.
As Thomas Jefferson once said “Their fleet will annihilate our public force on the water, but our privateers will eat out the vitals of their commerce.”
Oddly enough, 1964 Civil Rights Act passed only because of overwhelming Republican support. Opposition was centered in the Democratic party who filibustered it in the Senate for 54 days.
Who ends up on a particular side of an issue changes over time.
Has changing the rules ever worked out as planned?
Good intentions with bad outcomes feels like a series from the Reason website.
On abortion, anyone who does not accept that never ever, not for any reason is just as abhorrent as any time, anywhere, no reason needed should exit the discussion IMO.
My SO and I have no progeny nor potential for future progeny so I have no dog in this fight.
Just advocating for compromise (16 weeks is when pain centers and nerves have developed so a good time to require general anesthesia, 24 weeks is generally considered viable outside the mom so seems a good time to require a medical reason. Just my suggestion as a pediatric ICU doctor, law is clearly above my pay grade).
It would make sense to change the filibuster rules, I think–but the people with sense aren’t running the government. 60 votes is too high, and causes stagnation. No filibuster would be too low. My own plan, to be picked apart by commenters 😉 would be:
1) Changes would be locked in now, to take effect in 8 years. This would theoretically allow folks to analyze the pros/cons without as much bias caused by current desires. We’ve been here as a country for ~250 years; we should be capable of planning for the future.
2) The threshold should only drop one vote at a time (from 60 to 59); should not drop at a rate of more than one vote every 8 years; and should never go below 55.
FWIW (not much), I could live with 55. 51 is a tyranny of one vote while 60 is perpetual gridlock.
Unfortunately the warnings are fruitless because “recipe for disaster” is seen by partisans as a feature, not a bug. If the downside of the short term gain is having another sword of Damocles that can be held over the electorate’s head, that’s good for politics as usual. The fundraising appeals and campaign ads will practically write themselves.
Having government organized as two state-sanctioned political parties means the issues and the outcomes don’t matter as much as the teams and the fear-mongering. Political parties turn reasoned debate and statesmanship (even the pretense of it) into WWF kayfabe.
Nuking the filibuster is insane. Take 5 seconds and look at what could have happened from 2017-2018 with no check on Trump…
However, the filibuster is too easy today. Make those folks stand up and talk to actually block legislation. That was the tradeoff that prevented its abuse, namely that it was painful to use. If Tommy Tuberbille had to stand on the floor of the senate for 4 years (or however long it was), we wouldn’t have had his nonsense.
What about going back to the original filibuster where to use it one had to stand up and talk and talk until one could talk no longer?
Harris doesn’t care. She is a “one and done” president if she is elected. Her place in history would be assured as the first woman of color to be president and saving abortion. Anything after that is meaningless to her.
No government should ever arm itself with a power that it would be terrified to let its political adversaries use. And any government that insists on giving itself very broad powers to accomplish a specific, narrow task plans on using those powers to do other things, no matter how much they swear that they never will.
It would be interesting to know Harris’s response to all the reasons given for why eliminating the filibuster is a bad idea. For example, wouldn’t she fear the other side using 50 votes to, say, pass a national abortion ban? It’s too bad she’ll either never be asked the question, or if asked she won’t give a responsive answer.
I disagree with your assessment. Right now, each party can advocate for silly laws knowing that they will not be enacted. This allows them to play to their extremes without alienating the swing voters. With no power, comes extreme rhetoric.
If the ruling party could actually enact laws, they would have to choose between being responsible or being extreme and losing the next election. With moderate power, comes moderate responsibility.
It could take a few years but I believe that blowing up the filibuster would reduce idiocy.
You make an interesting point, but given the Squad on the left and the Freedom Caucus on the right, it seems quite possible they would blow up the nation without grasping that they might alienate anyone because they believe they are doing god’s work.
Whether it is idiocy or not, it is driven by Harris wanting to run on abortion. To keep her useful fools from seeing that this is a red herring, she has to convince them that leaving the issue to the states is no good, AND that she actually has a viable path to federally re-imposing Roe. Hence, the demise of the filibuster is needed to further her “at all costs” bid to defeat Trump. If it’s unwise, it doesn’t matter. It’s a cost. Sacrifices must be made. There is probably nothing she wouldn’t do to gain the presidency (already so far past selling her soul that the outer limit is practically unimaginable).
The filibuster protects the minority from the tyranny of the majority. In a sane world, it encourages compromise to get anything done. There isn’t anything wrong with the current rule; the problem is the extreme partisanship on both sides and the prevailing view that if you don’t get your way 100% you won’t give an inch. Reasonable people on both sides need to start making compromises, and not be held hostage by the extremes on either side.
“Ms. Harris, let’s say that you lose in November and there is a Republican majority in the Senate. Would you still favor abolishing the filibuster with regard to bills relating to abortion?”
I find that a useful gauge on whether a policy provision is actually principled is to see if the proponent still supports the change when it gores her team’s ox.