Shutdown Politics

More on the choices facing Democrats.

A crisis is “a period where everybody believes that something must be done.”

– Nelson W. Polsby

“Never waste a good crisis”

– Attributed to many; wordings vary

Sir Arnold: He’s suffering from politician’s logic.

Sir Humphrey: Something must be done; this is something; therefore we must do it.

– “Yes, Prime Minister” episode 2.5, “Power to the People.”

I’ve said already that the least-bad choice for the Democrats in the upcoming shutdown showdown is to refuse to sign on to a Republican bill, and instead to force a shutdown by filibuster. I’m afraid this is a long one; I’m going to run through the logic again, and suggest a gimmicky semi-alternative.

To recap: Democracy is under attack in the United States, and those who support it are, quite sensibly, looking for opportunities to fight back. Democrats in Congress are poorly positioned to do much; that’s just the truth for House and Senate minorities.[fn oversight, such as demanding to visit detention centers; filibustering laws in the Senate; otherwise making noise]. People such as Illinois Governor JB Pritzker and California Governor Gavin Newsom seem more effective in opposition than House Minority Leader Hakeem Jeffries and Senate Minority Leader Chuck Schumer because they are more effective – not because they are tougher or smarter politicians, but because of their institutional advantages.

But we’re coming up on one event in which it appears that Senate Democrats have some leverage: The end of the government fiscal year, at the end of this month. Congress must pass a measure to keep the government running, and Senate procedures allow the use of the filibuster against spending bills. Which means, essentially, that the 53 Republican Senators need 60 votes to pass anything. Without that, the government shuts down.

So Senate Democrats can, for a change, actually do something. And what pundits of various different stripes – Ezra Klein and Brian Beutler and Josh Marshall – are all telling them is to force a shutdown.¹

But is a shutdown by filibuster a logical error — “We have to do something. This is something” — or is it a form of using a crisis productively?

I looked at this back in July and concluded that Democrats have no good choices. As long as the Trump administration refuses to abide with its agreements, including those signed into law, there’s no point in negotiating for anything. That means a shutdown, and I thought it was the least-bad option for Schumer and the Democrats.

And yet forcing a government shutdown by filibuster is likely to be unpopular. What’s more, with no end game in sight, the most likely end result will be majority-imposed change in the Senate that will end the de facto supermajority requirement for spending bills, and therefore leave Democrats with even less leverage going forward.

The problem is that there’s virtually no chance that Republicans would accept, much less that Trump would sign, serious big-picture, republic-affirming demands Democrats might make. Filibustering a temporary spending bill unless it includes, as Marshall suggests, an “Ending Dictator Rule” package is a path to a shutdown that ends with killing the filibuster.

What’s more, while it’s true that Trump cannot be trusted to abide by any negotiated deal, it’s still probably the case that a negotiated deal passed into law is better for the Democrats’ policy agenda than simply allowing the Republicans to draft spending bills with no Democratic input. In a normal negotiated bill, there are hundreds of details, and at least some of those may be carried out as the law demands just because no one in the administration thinks to overturn them. (I should be clear: Once it’s law, it is massively illegal and unconstitutional to disobey it…but Democrats know that it’s happening anyway and this Supreme Court is likely to shrug its shoulders and allow it). It’s also possible that the most high-profile policy compromises might survive after all.²

And there are plenty of real, meaningful policy changes that Senate Democrats could bargain for that Senate Republicans would almost certainly accept. At the end of the day, that means that a normally negotiated set of bills does have very real policy gains that Democrats would be giving up for a “This is something. Therefore we must do it.” approach. Just…not very many.

As far as a shutdown?. Look: The most important constraint that anyone starting a government shutdown needs to know about is that shutdowns end. With divided government, that means that eventually the leaders of both parties and the president will have to come to some agreement, whether it’s before the deadline or after a shutdown lasting a day, a week, or six weeks. In this case, however, there’s an option available to the Democrats of never voting for a bill…as long as they are willing to live with Republicans nuking the filibuster and passing a hard-line bill, probably far more conservative than what the Democrats would get through negotiation.

Shutdowns, like it or not, have been proven again and again to be utterly useless as negotiating tactics. And in this case it will likely be even worse.

There’s also the even uglier (for the Democrats) possibility that the caucus could break over time, eventually giving Republicans the seven votes they need in exchange for just getting the ordeal over with. That’s a possibility Schumer cannot ignore.

As I said, on balance I think the downside of cutting a deal is worse than the risks of a shutdown by filibuster.

But make no mistake: A shutdown will end, and it will end without Democrats winning anything.

In practical terms it appears the Democrats have to pick one. They can negotiate normally, or they can force Republicans to act alone.

Unless?

Here’s where I’ll float my off-the-wall suggestion.

What if Democrats treat a shutdown not as a negotiating tool – which, again, doesn’t work – but as a protest? Suppose they worked for a deal up to the last minute, and then announced a one-month filibuster before they were willing to vote for a short-term spending extension, re-open the government, and resume negotiations. It would give them their “something” without throwing away their actual leverage. They would have one month to make their case, and then it would be over and they could still try to cut their best deal.

Would it work? Dunno. One the one hand, Democratic voters and party actors who want a fight might not consider a date-certain shutdown to be a “something” after all. Some would (mistakenly, in my view) think the party could have won big victories if only they were willing to fight harder. There’s a good chance many “neutral” observers would blame Democrats for all the damage that happens when the government isn’t functioning. I suspect it wouldn’t poll well.

Another downside? Trump would surely push Senate Republicans to eliminate the filibuster just as much with a fixed-date shutdown as in an open-ended one. Perhaps they would be willing to wait it out. Perhaps not.

On the plus side, some Democrats would surely think it was “something” and feel good about that. It would be easier to stay united with a date certain endpoint than without one. A protest shutdown wouldn’t build expectations of winning, and would end when the clock ran out, not by losing.

The maneuver might allow them to have the benefits of a shutdown without giving up the benefits of a deal on spending. Maybe. Perhaps.

I don’t know; maybe it’s too convoluted. But I figured it was worth trotting out.

By the way, there is one other possibility. Democrats were defeated earlier this year because they assumed that Republicans couldn’t find the votes to pass a spending bill. They were wrong. This time, they are surely anticipating that Speaker Mike Johnson will find the votes for a Republican-only bill, and whatever House Republicans pass will have at least 50 Republicans plus the vice-president in the Senate. But it at least possible that Johnson will fall short, leaving the possibility of a GOP shutdown or a real bipartisan bill. Democrats need to be ready in case that happens, but they shouldn’t count on it.

Anyway, a shutdown is probably the least-bad option for the Democrats; they perhaps might consider a fixed-time shutdown followed by normal negotiations with an abnormal president; and while this is something of an opportunity for the party, no one should expect too much from a situation in which they really don’t have all that much leverage at all. They should do what they can, but as long as Republicans have working majorities in both chambers, Congressional Democrats are just not the ones in a good position to defend the republic.

1. Marshall argues that Democrats shouldn’t accept responsibility for a shutdown, but should blame it on the party with the White House and majorities in both chambers of Congress. That’s probably good advice, but realistically a shutdown by filibuster is going to be blamed by most people on the party that is filibustering. That said: It is true, as Beutler has argued, that memories fade quickly. And it’s also true that even if people blame the Democrats more, it’s likely that both sides would take a public opinion hit, and the president’s approval matters more than that of the out-party.

2. After all, the Democrats’ position is popular on most of the spending they would push for. And I suppose we shouldn’t rule out that even Trump might find it uncomfortable to undercut a high-profile deal he made. Not saying that the Democrats should count on it, but it’s possible.