Schumer Blinked
The end of the Senate
One of my favorite books is the Foundation series, written by science fiction grand master Isaac Asimov. It's a fantastical retelling of Edward Gibbon's history book "The Decline and Fall of the Roman Empire," but with a twist.
Hari Seldon, a mathematician who lived at the end of the First Galactic Empire, foresaw the fall of civilization, predicting thirty thousand years of misery and suffering before the rise of the second Galactic Empire. Using a science he invented, called psychohistory, Seldon put in motion an audacious plan to reduce the period of galactic barbarism to a mere millennium. The Foundation recounts the end of the empire and how a small group of people, guided by Seldon's plan, would soften the fall and rebuild civilization.
I am sure our friends on Capitol Hill would love to have had Seldon's psychohistory available last week when trying to decide what to do about the continuing resolution. This newsletter is the First Branch Forecast, and it's our job to look into the future. In our view, Senator Schumer made the wrong decision and his error fundamentally changed Congress and the course of our country.
We will explore Schumer's fateful decision and what comes next. We will also cover a number of other important developments on the Legislative Branch, transparency, and what's next for our country.
Forking Congress
Congress's greatest power is the power of the purse. Through appropriations bills enacted by Congress, the federal legislature writes into law tens of thousands of decisions about government operations. They decide what programs get funded, at what levels, and under what circumstances. They also decide what programs and actions are not funded and put into effect reporting requirements and limitations on federal agencies. Spending money without an appropriation is a violation of federal law and risks civil and criminal penalties for those who violate it. Because the appropriations process happens each year and federal agencies' heads must request funding anew, Congress is able to assert control over the federal government.
As I wrote last time, the Trump regime has a plan to dethrone Congress. That plan centers around destroying Congress's power to make funding decisions and installing it in the White House. They seek a confrontation whereby Congress grants its powers to the president or is incapable of stopping a lawless power grab by the president.
This was exactly the situation on March 14th. We had known for months that the short term federal spending resolution would run out on that day. The common practice is appropriations bills are the product of negotiations between the parties. An appropriations bill requires 60 votes in the Senate, so it could not become law without the affirmative support of members of both parties. This means that members of the minority in both chambers, and especially in the Senate, must be given some provisions in the bill to induce them to support it. Votes for the bill are earned and require give and take.
This time, however, Trump's allies teed up a 99-page full year continuing resolution. It was a blank check for the Trump regime, shorn of the thousands of decisions and requirements normally contained in an appropriations bill. It had no meaningful concessions to Democrats. It also disempowered congressional Republicans. The House of Representatives passed it on a party-line vote. The Senate lacked the votes to enact the bill without Democratic support.
The political context was fraught. The Trump administration had spent the last two months illegally canceling federal agencies, firing watchdogs, and challenging Congress's authority. They were, and are, in the process of dismantling our system of checks and balances to put power in the hands of one man.
Should Democrats not support the bill, the government would shut down. If some supported the bill, it would provide a legal basis for the Trump regime's power grab. What to do?
Schumer's choice
Let's back up for a minute. I mentioned that everyone could see this coming a mile away. On January 28th, I criticized "some Democrats [who] are signalling they are unwilling to use their leverage over the debt ceiling and federal spending to extract policy concessions or protections for democracy." I went so far as to provide a list of ten legislative proposals Democrats should demand be included in any spending bill.
Senator Schumer should have spent the last few months unifying Senate Democrats around their minimum requirements to support any spending proposal.
So ten Senate Democrats, led by Schumer, voted for the CR without obtaining any concessions. It did not matter that some House Democrats, state leaders, and ex-Speaker Pelosi opposed the move. Or that 160 organizations opposed the Republican CR, including much of the base. Or that four-our-of-five Senate Democrats voted against the CR.
Why? According to Schumer's interview with the New York Times, it's because he believes the courts will save us.
NYT: You know, I’ve heard you and other Democratic leaders talk about the next election as if it’s just going to be another election like any other election. But there has been all of this discussion about Trump auguring the end of democracy.
Schumer: I worry about this. When I say we’ll win the election, I’m assuming democracy stays, but that we have to fight to make sure that happens. I think that Trump is destroying norms that have preserved our democracy for centuries, certainly for decades, and he’s destroying them, and he doesn’t care. What is our best bulwark? It’s the courts.
With all due respect, the courts are the weakest branch and Republicans and Democrats alike spent decades confirming judges who are in thrall to unitary executive theory. The best bulwark is the Congress, the strongest branch of government. Moreover, time is not on our side. With every passing day, the Trump regime dismantles more of our democracy and consolidates power. The best thing to do is to have a confrontation now.
Everyone will be affected by the dismantling of the government, but not everyone will feel it immediately. A government shutdown makes it real, focuses attention, draws action. The Trump regime will try to use it as an opportunity to consolidate power, but they're consolidating power regardless. This was a chance to expand the political playing field.
Moreover, if Democrats have a united request that is sensible to most people – e.g., protect Medicare, save Veterans' health care, keep kids from starving – they could "win" the confrontation. The party in power gets blamed when there are governing problems.
The consequences of Schumer's decision
Instead of doing this, Schumer and nine Senate Democrats voted for the CR. This terrible decision does more than give Trump a free hand for the next six months. It destroys the appropriations process for years to come.
Remember, the appropriations process is bipartisan because everyone knows that the minority party won't vote for the bill unless they have skin in the game. Except now Sen. Schumer has shown that Democrats will sacrifice what they believe in to keep the government funded at whatever levels Trump decides. Is there a price Schumer won't pay? So why, then, would Republicans strike any deals with Democrats when they can take them for granted?
The voluntary giving up of Congress's greatest power and the destruction of any leverage congressional Democrats might have. It means that the only real push back against the Trump administration must happen from the people, organized in a popular movement, because the three major political institutions are collapsing into rule by one man
There is a possible way out of the box – although I suspect it is too late. A number of Democrats are calling on Sen. Schumer to step down as Democratic leader. Schumer is defiant – too late, and at the wrong people – but Democrats need to do something to show that they won't make that mistake again. (They also need to show the American people that they're willing to fight, but that discussion goes beyond the focus of my newsletter.)
Schumer appears to be stuck in an old frame of reference. He thinks the courts will stop Trump. He thinks that there are guardrails on what Trump can do, restrained by Trump's superego or external checks-and-balance or adults in the room. None of this is true. Our America is in uncharted waters, led by a narcissistic demagogue unbound by any of what has come before. Schumer has not adapted to that reality.
Let's give Schumer the benefit of the doubt
Imagine, however, that Schumer has adapted to this reality. Are there other reasons he led the effort for Senate Democrats to give in without a fight?
It could be that many members wanted to vote for the CR now. A number of members could have felt that the CR was the best way to go but felt intimated because the base and Democratic stakeholders opposed the CR. Schumer could have swooped in to protect them politically from taking a tough vote by rounding up safe and retiring members to make it happen. However, taking a tough vote and explaining your reasoning to your constituents is part of the job of being a senator, this is the most important vote most of them have ever taken, and a huge disconnect between what you believe and what you do is unhealthy for the party and for democracy.
It could be that Schumer knew Democrats would eventually vote for the CR. If Democrats couldn't unify around a set of demands, or couldn't sustain a long shutdown, it might be better to fold now than later on. On the other hand, isn't it Schumer's job to help them identify common political ground on which they could extract concessions and motivate voters?
It could be that Schumer feared a shut down would accelerate the Trump take-over by closing down the courts or accelerating the power grab. This doesn't make sense in that the Trump regime is weakest in its control over the government now. It is a gamble to assume that fair elections will continue and it's tough to know what the courts would do. But if you assume things will stay status quo ante, then waiting your turn is not unreasonable.
Ultimately, I don't think there are very good reasons. Schumer isn't stupid, but this was the wrong decision.
Pushing Schumer out?
Let's say Democrats wanted to push Schumer out of his leadership position. Could they do it? I read the Senate Democratic Caucus Rules and consulted with several Senate experts.
The expected time to push out Democratic leaders is after an election. Democrats hold a leadership vote at the start of a new Congress. The vote is by secret ballot and a nomination to serve as Leader can be made by any member. A winning candidate must receive a majority of the votes cast.
The Senate Democratic Caucus does not hold regular meetings. And there are no provisions to recall a leader or hold an intra-session vote. But ten Democrats could request an unscheduled meeting of the Democratic Caucus, including an agenda of items to be considered. That meeting would have to occur within three days of when the Senate is in session.
In addition, any member can directly propose a rules change to the conference, so long as the text of the proposed change is shared with the conference one week before its consideration. They could do this to take advantage of an unscheduled meeting or for the next scheduled meeting.
On the agenda of a scheduled or unscheduled meeting could be a resolution to hold a no-confidence vote in Sen. Schumer, for example. Or to hold a new election for leader. Senator Schumer on his own, as conference chair, could call a meeting of the conference and place a confidence vote on the agenda.
In all practicality, a number of members who lose confidence in Sen. Schumer would probably speak with him privately first to encourage him to step down while saving face. I was informed that Sen. Byrd, who was challenged twice as Senate Majority Leader, ultimately stood down because of a loss of support in the caucus. He was viewed as a poor messenger for the party and too out of step with modernity.
Would this happen to Schumer in the clubby senate? There is a lot of anger at Sen. Schumer from House Democrats, party constituencies, and some members of the Senate. He and his leadership team did thwart the will of Senate Democrats. But I imagine that Schumer has spent the last week shoring up his reputation and relationships with other senators, working to tamp down their discontent. Drastic times call for drastic measures. But this would be a big move and it seems highly unlikely. However, with high levels of constituent anger at senators and Trump tightening the noose on democracy, it is not unthinkable.
Even if Schumer succeeds at tamping down discontent, his decision to destroy the appropriations process must be repudiated. It's likely too late for Congress, but some level of resistance inside the Legislative branch might provide encouragement to a nascent pro-democracy movement that is likely the only realistic push back against the authoritarian takeover underway.
Now is the time for a more charismatic leader who can articulate pro-democracy values and policies that resonate with ordinary Americans. We will see.
Odds and ends
FOIA me. The U.S. Capitol Police released FOIA-like regulations, as directed by appropriations and requested for years by the public, but no one knew about it. So here they are. It's nowhere as good as the model regulations we published, and we weren't consulted on what was contained, but at least it's something.
CRS Reports. Thanks to appropriators and hard work by Library of Congress staff, some Congressional Research Service Reports will now be published online in HTML format, made available via API, and fully integrated into Congress.gov. We tested it out and it's not fully working yet. At the recent Legislative Data Task Force Meeting, we were led to understand it would take several months to fully deploy. The next step, should Congress choose to direct the Library, is to make the back catalog of CRS reports – which contains thousands of still-relevant reports – available online for the public and congressional staff.
How should political reformers encourage congressional leaders to modernize Congress as an institution? "Delicately," writes Chris Nehls.
Capitol Police Chief Manger announced he will retire on May 2nd. You can see him testify this Tuesday before the House Legislative Branch Appropriations subcommittee.
New GAO restricted reports: "Terrorist Watchlist: Actions Needed to Improve Nomination and Redress for U.S. Persons," "F-35 Aircraft: Actions Needed to Address Long-Standing Risks to Operational Effectiveness," "Ukraine: Readiness Implications of U.S. Military Assistance GAO-25-107190C." Plus "Controlled Unclassified Information Annex for GAO-25-107016: Technical Details on Nuclear Weapons Explosives Program Supply Chain and Infrastructure Risks." More here.
No news. The House of Reps. has halted circulation of "China Daily" to House offices.
Parent proxy vote. 218 members have signed Rep. Luna's discharge petition on a resolution to allow new parents to vote by proxy. Leadership opposes the common-sense bipartisan measure.
Rep. Sarah McBride found a way to address being deliberately misgenerated by Rep. Keith Self, referring to the deliberately offensive presiding officer as "Madam Chair." It seems that others could learn from this approach.
The immoral representative. It only seems like members of Congress serve forever. A new analysis from Casey Burgat shows that "just over 12% of members have served for more than 20 years" – 17 senators and 49 representatives. The average tenure is just under 11 years.
Senate staff diversity. The Joint Center has finalized their tracker of racial diversity of top staff hires.
Congressional Republicans are aiming to impeach judges whose rulings they dislike. Or to clip their wings.
America First is attempting to place GAO under the White House's thumb by asserting it is an executive branch agency and thus subject to FOIA. We are sympathetic to having GAO respond to FOIA requests – and they do have a FOIA-like process – but GAO is most certainly a legislative branch agency.
The Ethics Committee will meet on Tuesday to hold its organizational meeting. Has the committee been poisoned?
Last week was Sunshine Week. Ten organizations sent a letter to the international Open Government Partnership asking that the United States Government be placed under review for taking actions contrary to the principles of the partnership. Last year, I wrote about why we should care about open government. It's still worth a read. If you'd rather listen to an interview, I spoke with the Federal News Network on the dismantling of the open government federal advisory committee.
The Council of Inspectors General released their 2024 annual report.They claimed $71.1 billion in savings in FY 2024, a ROI of 18:1.
Data skills for Congress. Once again I'll be teaching a class as part of the Goldman School of Public Policy's Data Skills for Congress program. It's a certificate program and it's approved by House and Senate Ethics. Sign up here.
Thank you.
Brilliant analysis of the caucus rules. Super interesting. Nice work, Daniel!