Shutdowns and Filibusters

You are probably going to regret reading this much about Senate rules

Dear Friends,

Last week I wrote a piece arguing that strategic shutdowns are bad policy and bad politics, in response to a flurry of center-left and liberal Democrats calling for Senate Democrats to do just that. Since then, a lot of smart takes have been written on the topic. I recommend reading this piece by Matt Green and two pieces by Jonathan Bernstein, here and follow-up here. I will also flag a follow-up interview I did with the New York Times about my viewpoint.

But in particular I recommend this piece by Josh Huder, who argues that all of this is actually just Democratic coalition maintenance:

Chuck Schumer is facing the problems well known House Republican leaders. Internal divisions have placed him in a losing position. As a result, coalition management becomes the priority. How can he satisfy members clamoring to oppose Trump and those wary of flagging poll numbers and elections? You pull a John Boehner. Shutdown the government to offer a fig leaf to the a base until defeat is obvious and some face-saving message can be found. (Or maybe you just move on and try to forget it ever happened.)

Put simply, this shutdown decision is a Democratic coalition issue masquerading as a Republican v. Democratic showdown. Democrats will not win a shutdown. So how do you gracefully exit an impossible situation? Jurgen Klopp, Liverpool Football Club’s former manager, once said, “If we fail, then let’s fail in the most beautiful way.” For Chuck Schumer and congressional Democrats, finding the least-worst exit strategy is as critical as it is elusive. It will determine whether Democrats lose completely or just mostly. Regardless, deciding to close the government may be the most rational choice for Schumer. Whether it’s the most rational for the Democratic Party remains to be seen.

I think that’s right. If Schumer and the Sente Democrats do end up shutting down the government, this sort of coalition maintenance will likely be the primary driver. In some very real sense, it doesn’t matter if the liberals are wrong about a shutdown on the substantive political merits. If they are a substantial part of your coalition, you need to cater to their preferences. Leaders who don’t follow that maxim are not long for their jobs. The liberals feel completely burned by Schumer’s choices back in March. His job may very well be on the line if he cuts a deal again without shutting down the government.

And I don’t want to come off sounding like coalition maintenance is unimportant. It’s extremely important. Keeping your party together is vital in democratic politics, and leaders often have to make choices that are bad for the party brand because they prevent an internal crack-up of the party that would be worse. Not only because they want to keep their jobs as leaders, but because keeping the coalition functioning—both among their Senators and, to a lesser extent, in the nation as a collection of voters, groups, and interests—literally is their job. A party is a coordinating device for people who are likeminded by not robotically in lockstep with each other on policy or strategy; the leader is the coordinating device for negotiating the differences.

The world’s weirdest deliberative body

I also want to flag a nice piece by Matt Yglesias, who mostly agrees with me that a shutdown is unwinnable, but sees a path to at least making it more palatable by focusing on a narrow, plausibly-winnable issue, so that the shutdown isn’t handed over to lefty wishcasters:

I talked myself into this by starting with the premise that the base and the rank-and-file are clearly demanding a fight. And while I agree with Glassman that a shutdown fight is unlikely to work, a shutdown focused on A.C.A. subsidies had, I thought, two key virtues:

1)Even if it totally failed on substance, it would drive attention to the expiring subsidies, an issue that plays strongly in Democrats’ favor but is also boring and always getting crowded out of the news agenda.

2)There is non-zero Republican support in Congress for doing what Democrats want on this, so it’s at least conceivable that Dems could win the fight.

Basically, I was arguing for a harm-reduction shutdown. In a world where members and the base are champing at the bit for a fight, it’s best to pick a fight that you have some vague chance of winning and where, even if you lose, getting the issue in the headlines has upside. The risk is that if everyone who sympathizes with Glassman’s points takes his position, the baton passes to guys like Will Stancil, who want Democrats to pick obviously unwinnable fights that do nothing to help in any of the key Senate battlegrounds.

I agree. If a shutdown is inevitably going to happen because of party coalition maintenance concerns, you really need to make sure that your demands are at least reasonable and vaguely work to split the Republican coalition, rathe than unifying them by promoting things that will never, ever happen and also split your coalition. Nate Silver had a similar take today on his podcast (and hinted at an article-length piece arguing the same), where he suggested tariff reform as demand.

I doubt any demand can be won by actually shutting down the government—and especially stuff unrelated to appropriations—but at least stuff like ACA subsidies and tariff reform are popular and make for winning election issues that you want front and center in the public sphere.

Enter the Filibuster

Yglesias’ piece also has an extended discussion of the role of the filibuster in all of this. He makes two broad points:

• the filibuster is especially dumb here, because if the Democrats refuse to vote for a bill they dislike and a deal they believe Trump will welch on, the government shuts down; and

• if the Democrats dig in on a shutdown, the GOP may end the filibuster in order to end the shutdown

I think the first point is only true in some technical procedural sense that doesn’t really matter. And I think the second point is just wrong.

Buckle Your Senate Procedure Belts, This Discussion is About to Get Dumb

Votes in the Senate on proposed legislation are done by simple majority. There are 100 Senators, so if you can get 51 on your side, your bill will pass or your amendment will be adopted.¹ This majoritarian principle also extends to situations where there are absences and/or a Senator opts not to participate in the vote. So long as you have a quorum (which, per the constitution, is a majority of Senators, so 51) taking the vote, you still just need a simple majority to pass a bill or adopt an amendment. So you can approve legislation 38-19, or 45-7, or 51-0. All of those vote totals are as good as 100-0 or 51-49. The bill passes or the amendment is adopted.

At this point you might be wondering about the filibuster. Doesn’t that come in to play? Yes, it does. Votes to limit further debate on bills or amendments require a supermajority in the Senate.² There’s a presumption in the Senate rules of the right to individual Senators to speak at length, and strategic use of this right can stall out legislation indefinitely—that’s what a filibuster actually is.

And the only method for ending the debate against the will of some of the participants is to get cloture, which requires a supermajority of 3/5 in order to limit debate, and is where the now-famous 60-vote threshold comes from.³

One rub of the cloture process, however, is that it doesn’t operate like a regular vote. You don’t need a 3/5 majority of those who participate in the vote, you need an affirmative vote of “3/5 of Senators duly chosen and sworn.” And that means that you can’t win the cloture vote 38-19, 45-7, or even 59-0. You need to actually get 60 Senators to vote in favor of it. Anything short of that—no matter how big the majority is on the actual vote tally—and you can’t end debate.

This is what Yglesias is talking about when he says the Democrats “refusal to vote for such a bill would shut the government down.” When a cloture is voted on in regard to the continuing resolution that would fund the government, the Democrats can’t even sit on their hands and not vote, because not voting on a cloture vote is the equivalent of voting against it. So in order to get cloture on the bill and keep the government open, at least 7 Democrats would have to sign off on it. And that seems silly.

It’s also a very technical point that IMO is not of much practical concern.

And that’s because you only need a cloture vote to end debate if you want to get to a vote on your bill and Senators are continuing to, well, debate. If the Senate floor is quiet and no Senator is seeking recognition to continue debate, the Senate rules require the chair to put the question and hold the final vote. And that’s the vote on the bill, which is by simple majority. No cloture vote is needed because there’s no debate to end. It ended naturally.

Senator Manchin, with a now-outdated floor chart

Of course, the Senate is so off the rails these days that this totally common reality basically never occurs. The minority essentially threatens to filibuster every single bill all the time, and in response the majority leader preemptively files cloture petitions as soon as the bill is brought up for debate. Everyone just assumes that there is always going to be a filibuster and an eventual cloture vote to end debate and get to the final vote.

Now, since the 70s the Senate has allowed all of this to happen without even having to have the bill on the floor and actually have people debating it, so in practice what happens is that the majority leader files the cloture petition, the Senate does something else for two days while it ripens (under the rules you have to wait a period of time), and then they come back to it when they are ready for the vote. The minority doesn’t have to actually physically filibuster, and the majority doesn’t have to actually sit around and watch them do it. Welcome to the 60-vote Senate.

So if the Democrats don’t want to cause a shutdown but don’t want to be forced into some of them having to vote for cloture on the Continuing Resolution, they could just announce that they are no longer interested in debate and are ready to proceed to the final vote whenever the Republicans are ready. No cloture vote necessary, because there’s no filibuster.

But it gets dumber, because that doesn’t actually work. The majority leader can still file a cloture motion and force a vote on ending debate, even if the Democrats have said they are done debating. And if they don’t want to vote for that cloture motion, the cloture motion will fail and the GOP can try to claim that the Democrats are holding up the CR.

Now that’s silly. At that point, the only filibuster the Republicans would be trying to end would be a Republican filibuster—remember, the Dems would have announced at this point that they are done debating. But also recall that there’s no actual debate here at all—Dem or Republican, the cloture motions are ripening while the Senate does other things. All you would have would be a failed vote to end debate on a bill to keep the government open, with either the Democrats voting no or not voting at all.

And I’ve seen political hay successfully made out of more ridiculous procedural gimmicks than this. So it’s a plausible line for Thune and the GOP to take, in order to try to get the Dems to sign on to a bill they don’t actually want to cast a vote for.

I also don’t think any of this would happen in practice.

If the Democrats want to adopt a strategy where they want the CR to pass and the government to stay open, but do not want to have any of their members take any vote in relation to making it pass, they can get there in practice. Schumer can announce that they are done debating, happy to go to a final vote, and Thune will probably just go for it. They could also make unanimous consent requests to schedule the final passage vote and force Republicans to object. Even if the GOP doesn’t look foolish at first, holding faux cloture votes will eventually run out of steam. Probably quickly.

In the end, if the concern is that Dems don’t want to support the bill with an affirmative votes but don’t want the government to shut down, the should be able to accomplish it.

How the Republicans will respond to a shutdown

A more practical question is whether the Democrats could use a shutdown to force the Republicans to kill the filibuster once and for all.

This has actually become a talking point for some liberals who are pro-shutdown. Even if they agree that a shutdown is unlikely to win the substantive concessions the Democrats are seeking, they think that eventually the Republicans will will be so desperate to reopen the government that they will resort to killing the filibuster in order to bypass Democratic opposition.

And this appeals to many liberals who believe that, in the long run, the Democrats will benefit from the filibuster being gone, even if it helps the GOP in the short-run. So their new theory of shutdown is that it will structurally reform the Senate.

This theory is plainly garbage.

I can tell you procedurally what is going to happen if the Democrats shut down the government. On the executive branch side, Trump is going rail against the “Schumer Shutdown” and use his discretion to close popular public-facing parts of the government (as Obama did in 2013) while also railing against the problems the shutdown has caused in other parts of the government. He’ll be like a pig in shit parading around like a carnival barker and discussing it. Totally in his element. Meanwhile, in the Senate, majority leader Thune will be regularly presenting cloture petitions to repeatedly force the Democrats to go on record reaffirming their commitment to keep the government shut. And the Democrats will continue to defeat those cloture votes. Until they crack.

The GOP will never consider ending the filibuster, because the Democrats will be employing it in order to do something that will become increasingly unpopular. The only way out of that for Dems would be to win the public opinion battle over the shutdown, which is something no party shutting down the government has ever been able to do. Eventually—maybe even right out of the gate—a few Dems will break from the party and support cloture, and then the pressure will really ramp up to cut a deal. Instead of considering killing the filibuster, Thune and the GOP are going to be sitting in the leader’s office laughing their asses off at the corner they boxed the Dems into.

The Democrats can unilaterally end the filibuster whenever they want

But the real reason this strategy is dumb is that the Democrats can end the filibuster whenever they want. They don’t need the Republicans help. If you are in the minority in the Senate and you are fine with the filibuster going away while the other party has the majority, there is a very simple, unilateral move you can make.

You can simple stop filibustering.

Schumer could announce, tomorrow, that the Democrats had decided, as a party, to no longer filibuster appropriations bills. And when they get back in the majority, they will formally end it. But it’s over. Forever. Starting now.

That would end the filibuster! Republicans could write a party-line CR, and do a party-line appropriations bills for FY26, and the Democrats could vote against them and critique them as awful and know that the GOP would own the bills and their consequences and the Democrats wouldn’t have to negotiate with the looming threat of executive rescissions and impoundments undoing the deals they cut.

You might say that’s insane why would they do that? but this is the exact same result you would get if you conducted a shutdown in order to kill the filibuster and the GOP took you up on in. The actual plan is to allow them to write party-line appropriations bills. The only difference is that you don’t have to go through with the shutdown and turn public opinion against you until you meekly cave and agree to a bad deal.

Keeping the Senate in all night and brining in the cots, back in the day

Now, under this alternative plan, Thune could continue to bring cloture motions that you would have to vote on, because saying you will never filibuster isn’t the same as abolishing the cloture process. But the Democrats could just announce that they are done filibustering, this is all a waste of time, and that from now on we will always vote for cloture on appropriations bills. If hypothetical 100-0 cloture votes scare you into thinking the Dems would “own” the subsequent bills they vote against, you are just being silly.

This whole deal feels like Alice in Wonderland to me. For years, the problem with the filibuster has been that the only people who want to get rid of it are the people in the majority, and the only people defending it have been the party in the minority. Based on current positions and likely strategies, it’s not impossible that we could see the exact opposite play out in the next few weeks. Never underestimate the wild world of the Senate.

But if liberal Dems are serious about being willing to give up the filibuster while the GOP has a unified government, the entire gordian knot unravels. They can good-faith give it up now unilaterally, and then junk it formally the next time they get control of the Senate. And there’s nothing that can stop them if that’s what they want as a party.

There’s no catch here, unless you think one of two wrong things

There are two pretty obvious objections to this, both of which I think are wrong.

Objection one is that what the Democrats really want is for the Republicans to get rid of the filibusters, so that the Dems can get politically mileage out of the fact that the Republicans got rid of it. A related argument would be that my proposal of unilateral minority disarmament would force the Democrats to formally kill the filibuster when they got the Senate back, and they would take a political hit for it then.

Neither of those things will happen. The so-called nuclear option has that name because everyone has always thought that if you get rid of the filibuster as the majority, the minority will go nuts, gum up the Senate in every way possible (there are lots of opportunities outside of the traditional filibuster) and lead a public opinion avalanche that buries you.

That has not materialized at all. The filibuster has been chipped away at in ways large (on nominations) and small (on technical details about baselines for reconciliation bills) and it has never really made much political hay, inside the Senate or with the public. It’s mostly a losing public relations fight to defend the filibuster, and that’s even if anyone is really paying attention. Most people have no clue how any of this works, and when you tell them about it, they side with the majoritarians.

The other objection is that unilaterally disengaging and walking away from the filibuster denies the Democrats the “fight” that so many on the left are looking for right now. From a coalition management standpoint, there’s some merit to this. But if your goal is to “fight” by shutting down the government in order to force an outcome that you can have unilaterally, you are taking an awful big risk and putting a heck of a lot of stock into the value of having the fight. And on the merits that just doesn’t seem worth it to me.

The only practical objection to my hypothetical plan that has some merit is that you’d really prefer a unified Democratic party in the Senate if you were going to take this approach, and you are highly unlikely to get that. If you don’t have everyone on board with giving up on the filibuster unilaterally, the public relations would get really muddy, you could have wildcat filibusters by individuals, and the power of the 100-0 cloture vote would lost.

That said, my point here is not to endorse ending the filibuster this way. It’s just to point out that if you are going to go through the effort to force a shutdown in order to end the filibuster, you have a much more attractive option.

What are we even doing here?

I really have no idea what is going to happen in the next two weeks. The logic of coalition management and the pressure on minority leader Schumer has me thinking that a shutdown is more likely than I did a few weeks ago. A lot of Democrats have shifted their philosophical views about shutdowns. And there really does seem to be a drive to “fight” or “do something” even if it’s counterproductive in the end. Is that enough to sum to a shutdown?

I really don’t know.

What I do know that clarity about what you are trying to do is a prerequisite for smart decision-making, and if the Democrats are serious about causing a shutdown, they should have some clarity of mind about what their goals are, how they are going to achieve them, and how they are going to revise their thinking if nothing goes according to plan. I don’t really see any of that right now. Schumer and Jeffries are talking pretty tough about the House bill, but that’s the easy part. What Schumer does when he’s on the spot in the Senate is the only important question.

And all this is perhaps the hidden reason they should try to avoid a shutdown. There’s little chance they will be able to come up with a unified message that satisfies the various factions of the party and doesn’t create intense pressure and strife internally and among the various external party-aligned interests. Whatever the value of coalition maintenance in the Senate is for Schumer, there’s a distinct possibility that the result of shutdown is going to be a more general coalition chaos during and afterwards. Yes, they will have “done something.” But it’s very easy to see that many of them will quickly regret it.

Cheers,

Matt

1. Technically, you only need 50 on your side if you also have the Vice President there to support you in a tie-breaking vote.

2. Or other debatable motions, which we don’t need to get into, I promise you.

3. This isn’t technically true, you could wait them out and enforce the 2-speech rule, but that’s not realistic or actual practice. I’m only including this footnote to satisfy James Wallner, and maybe @ringwiss.