When You Have ‘No Cards,' You Will Lose Battles but Must Still Try to Win Hearts and Minds

Last Thursday, I published two defenses of the genuine leadership that Senator Chuck Schumer showed in preventing the Democrats from giving Elon Musk and Donald Trump the gift of a government shutdown: "Schumer Was (Unfortunately) Right, But Either Way, the Infighting Must Stop," on Verdict, and "Trashing Schumer is Wrong on the Merits and Is Self-Indulgent in the Extreme," here on Dorf on Law.  Somehow, my arguments did not move the needle with the entirety of the anti-Trump majority in America (shocking, I know), and the pillorying of Schumer unfortunately continued over the weekend.  Those who are angry with him, however, continue to refuse to engage with the merits of his decision.

Despite my defense of Schumer on those merits, I do understand that many people are unhappy about his leadership in some larger, hard to define sense.  And because (as I noted in the Verdict column), I have never been much of a fan of the now-Minority Leader in the US Senate, I in no way intended to argue that he can do no wrong.  I do, however, think that it is important to point out that the people who are angry about the "lack of vision" from New York's senior senator can do everyone a favor by making that case without getting the argument over the shutdown vote wrong.

Here, I will first reengage with the Democrats who have hung Schumer out to dry, showing that those politicians are not making a "vibe" argument but are insisting -- quite incorrectly -- that voting against a government shutdown was "a lost opportunity," or something like that.  That is, they are saying that Schumer actually could have obtained a substantively better outcome than the CR (continuing resolution) that is now the law of the land through September 30.  After responding to that mistaken claim, I will turn to some thoughtful comments that I received from several readers who share my despondency about the state of the opposition in the United States today.

To recap what set all of this in motion, the CR was passed with only one Democratic vote in the House and was then sent to the Senate.  Under current rules in the Senate, the CR required 60 votes on a procedural motion to move it to a final vote.  There are 53 Republicans in the Senate, so the Democrats had the votes to kill the CR.  Had the CR not passed, however, the government would have shut down at midnight on Friday the 14th, with no way of knowing when -- if ever -- the Republicans would introduce a new CR to open things up.  And even if they were to do that, they could again pass on party lines a new CR that was as bad or worse than the one that Schumer and some of his colleagues allowed to go through.

Somehow, most Democrats immediately blamed Schumer for doing something bad, crying that he had supposedly "not met the moment," that he had not done something earlier in the process, or that he had failed to use some imaginary leverage that other people are sure existed.  Even his erstwhile ally Nancy Pelosi snarked that "I myself don't give away anything for nothing."  But what Schumer got was not nothing, because he and his small band of colleagues prevented the government from shutting down.  As he has explained repeatedly and clearly, that was the binary choice: CR (terrible) or shutdown (much, MUCH terribler).  And anyone who says that he could have done something earlier in the process is obligated to say exactly when that was and what Schumer's bargaining advantage was.

In a different context, Trump recently uttered this infamous line: "You don’t have the cards right now."  The reason it was outrageous for Trump to say that is that Ukraine should not be playing against the US in a geopolitical poker game.  But because Trump viewed it that way, President Volodomyr Zelensky suddenly realized that Trump was ready to exploit Ukraine's lack of leverage.

As soon as the new House and Senate were sworn in on January 3, 2025, the Democrats had no cards.  It would not have mattered how far in advance Schumer started, because his is the minority party, and the Republicans are voting in virtual lockstep.  Schumer has pointed out that he tried to get the Republicans to pass a 30-day CR, to provide more time to negotiate a better CR for the remainder of the fiscal year.  Republicans said no.  Schumer did not "fail to lead."  Democrats lacked the votes.

Aha, but did Schumer not provide the votes needed to hit the 60-vote threshold, meaning that he could have withheld those votes?  Again, yes, but that would have been worse.  He did not lead the faction to pass the CR as a means of giving in to the Republicans but rather to limit Trump's power.  The closest any prominent Democrat has come to stating otherwise is California's US Senator Adam Schiff, who had this exchange with Jimmy Kimmel three days ago (at the 7:07 mark):

Kimmel:  As far as the Democratic Party goes, there's ... a rift in the party, and it seems there is to a certain extent "young versus old," although it doesn't exactly run that way.  Chuck Schumer said, "Hey, we needed to keep the government open," and so that's why he and some Democrats voted with the Republicans.  You voted against that.  Explain that.  Why is he wrong on that?

Schiff: Well, we know what we would get, and will get, with this six months of autopilot for the federal government.  Basically, a continuing resolution is a fancy name for autopilot.  You basically continue funding the government the same way you've been doing for the last several months.  The problem is they're tearing everything down, they're violating the law, they're withholding funding from vital services, they're going after Medicaid.

So giving them six more months of running room seems to me a terrible thing to do.  Now, I get that people were worried about, "Well, what's the alternative?  Maybe they really wanna shut down the government."  And for me, the certainty of knowing what the next six months would look like?  I will trade that for the uncertainty if they end up shutting down the government.

But I will tell you this one thing I think is certain.  That is, we cannot be divided in the minority.  The only way we're gonna stop bad stuff from happening is if we're absolutely united and speaking with one voice.

We need to fight.  They are not going to give up power willingly.  No one ever gives up power willingly.  We're going to have to get it by fighting.  and we had an opportunity to fight last week, and we should have taken it.

With all due respect, that is not a response.  Kimmel did not interrupt Schiff, so Schiff could have explained what "the certainty of knowing what the next six months would look like" means and why he would be willing to trade that for shutting down the government.  Indeed, everything that Schiff listed in his first paragraph -- and much more -- would be worse under a shutdown than it will be under the CR.  And as I pointed out in my columns last week, people like Schiff would not even have the opportunity in a shutdown to say that "they're violating the law" if the Democrats had voted as one to block the CR, because there would be no law.

So when Schiff says that "we had an opportunity to fight last week, and we should have taken it," he is simply wrong, assuming that he meant that Democrats had the opportunity to fight against Trump and the Republicans by blocking the CR.  Again, that would have been good for Trump et al.  The Democrats had no cards other than the ability to make things worse, and Schumer made the better choice.

I wrote this in last Thursday's Dorf on Law column: "Bernie Sanders knows better.  Elizabeth Warren most certainly knows better.  AOC is so busy talking about 'betrayal' that I am not sure whether she knows better."  Schiff is also very smart and also knows better -- certainly better than to say that Democrats need to "speak with one voice" while joining in the cacophony of voices that are criticizing his leadership for preventing (or at least delaying) an even bigger catastrophe.

In general, I have a lot more respect for Adam Schiff than I do for Chuck Schumer.  But wrong is wrong.  More to the point, this situation -- precisely because of the need for unity that Schiff mentioned -- was not one in which the Democrats should have treated this as a "free vote."  What does that mean?  It is common for party leaders to allow backbenchers to vote against the party in situations where those votes are not needed and the politics of the issue are difficult for some members.  One frequent example is the House Republican leadership during its many contrived debt-ceiling crises, which always scrounged up just enough votes to join Democrats in voting to prevent a disastrous default while allowing the majority of Republicans to beat their chests and brag that they had voted against a dastardly betrayal by party leaders.

That is clearly what happened with Senate Democrats here.  Schumer gathered just enough Democrats to do the difficult-to-explain least-bad thing and then gave everyone else the opportunity to distance themselves from Schumer.  As we have seen, however, this has only further enraged the Democrats' natural supporters, who are whipped into a fury after being told by a majority of their officeholders that the right thing was the wrong thing.  Too many Democratic and independent voters are now convinced that this was a craven, unprincipled, treacherous double-cross.  AOC has complained that Schumer caused House Democrats to "put themselves out there" by voting against the CR, only to have their legs cut out from them.  But how is that bad for those House members?  "If I'd known that Schumer and a few other Democrats would not block the CR, I would have voted for it?"  That is ridiculous.  Democrats should have voted against it in the House, allowed a vote in the Senate, and then voted against it on the merits in the Senate.

Oh wait, that is exactly what happened.  So why the disunity?  Apparently Schumer (per Schiff) did not allow them to "fight."  But that was not an opportunity to fight Republicans.  It was an opportunity to fight the urge to think that being blindly contrarian -- "If Republicans are for it, then I should be against it, no matter the consequences" -- is smart politics or even minimally humane.

As I noted at the beginning of this column, however, there is a larger sense in which people who are worried about the future of this country are disheartened by the Democrats and are using the Schumer controversy as a way to vent their very understandable frustration.  I received three challenging but thoughtful emails from Dorf on Law readers late last week, all of which are interesting and helpful here.

Emailer #1: No, this is not exactly correct. What many of us are upset about is the lack of strategy and planning from the Democratic “leadership.” Schumer may have actually made the right decision in that moment, but he should never have gotten to that moment. The House Democrats stood firm, but there was no Plan B to execute when the Republicans passed the bill and then swiftly left town so the Senate had no options but to take it up. If the Democrats had any imagination they could have thought this scenario through (as the Republicans obviously did) and taken action to thwart the Republican plan. Maybe they would have failed, but there is no evidence that suggests there was any thought given to anything other than a “no” vote.

I could be wrong, so please prove me wrong.

Emailer #2: Neil, Your point that a no vote on the CR would give Trump even freer rein to disrupt government programs ignores the sad reality that Trump needs no help from Democrats to misuse his power. An important reason to produce a solid Democratic no vote is that progressives are desperate for something tangible to organize around—both in terms of a structure and leadership for the Resistance. Schumer denied progressives both.

My hope is that Democrats will soon begin to home-in on the reauthorization of the Trump Tax Act as a way to unify voters with otherwise differing persuasions. It has such powerful symbolic and substantive features and can be messaged successfully without getting too wonky.

Emailer #3: Neil, the Dems have to stop saying there is nothing we can do; they can put forward alternatives to everything the Rs want; e,g, we can not afford 'debt creating tax cuts'. Getting hold of the national narrative is key; believing you can do it is step one!

So, Chuck has to get this; he should have started to talk about the September CR when he went on his post vote book tour, not just letting Hayes take him and the perception of the Dems down. E.G., offer to hold bi-partisan talks in his office every Tuesday, to 'lead the country to economic stability' for everyone, not just the 'already rich' ( the Dem policy) as the Patriotic ( a Dem value!) thing to do, and so have a deal finished by and celebrate the deal on the Fourth of July. Control the narrative and its timing/framing. Then in September he has them as the ones fouling up the 'economic stability', if they do not meet his deadline - July 4th. Maybe this not the best idea, but it is past time to start trying. Do something, but act/do what seem to be 'reasonable things'; now.

There is a broad theme of "Please, someone lead!" in these emails that I both respect and share, although I do feel compelled to push back on a few specifics.  For example, it is not that the Democrats failed to plan and thus did not prevent things coming down to a bad-or-worse choice.  As I noted above, that was in fact the only possible outcome, because Republicans had the votes.

And I respectfully disagree that Democrats should stop saying that there is nothing that they can do, because they need to be clear with people that bad outcomes are happening because of Republicans' moral emptiness, not Democrats' strategic failures.  Even so, I certainly agree that Democrats have to remind people that "We don't have the votes or any institutional leverage" without saying that there is no reason for people to protest, complain, agitate, and show that we are not OK with a Musk-Trump dictatorship.  "The Republicans have the power to steamroll us" and "But we'll join with and lead the people in creative resistance" are not mutually exclusive.

Also, I did in fact explain in my Verdict column that all hope might already be lost:

To be clear, Trump might well be in the final stages of pulling the plug on the rule of law entirely, which would mean that he will not even abide by the requirements of the CR that has now passed (and that he himself signed). If that is where we are headed, however, that would not make Schumer wrong but instead would mean that nothing matters anymore. If Trump is going to spend what he wants, and only what he wants, then Congress will be irrelevant.

In other words, the fact that Trump might finally go full autocrat is not a reason to make doing so even easier for him.  "We're all dead in at most six months anyway, so why not join hands and jump off a cliff together now?" is hardly a sane strategy.  If Republicans were to call for votes in Congress to make Trump Dictator for Life, Democrats should not say, "Well, he's already a dictator, so whatever," and then vote yes.  What Schumer and his group did was, in fact, the opposite of that: "He's not a dictator yet, and we're not going to give him even more unchecked power by shutting down the government for him."

Delaying horrible outcomes is a good thing in general, and it is all the more important now because it gives the Republicans more opportunities to make mistakes and for other possible huge changes to happen (such as a sudden presidential succession).

Again, however, my purpose here is not to debate individual points.  I appreciate the tone and good will in those emails, and I know that many people share our sense that we need something to make us feel empowered.  As I noted last week, if Schumer does not survive this, it would be an injustice in an immediate sense, because he will have been dumped for doing the right thing.  Overall, however, he might indeed be the wrong leader at a time when his greatest skill -- parliamentary maneuvering -- is at least temporarily neutered.

There are ways for Democrats to seize the narrative, because that does not require votes in Congress.  Democrats' policy positions have always been much more popular than Republicans', and now the public is seeing the possibility of Social Security being zeroed out, the country's allies being abandoned, and elections being bought or canceled.

For that kind of leadership, Schumer might be the wrong guy.  To be honest, however,  nothing that I have seen from Hakeem Jeffries, Adam Schiff, Gavin Newsom, or anyone else is making me think that there is an Obama-like charisma machine out there.  I will end by simply repeating what I wrote last week, which is that further disparaging Schumer's leadership on the merits in avoiding a shutdown is wrong, and people of good faith need to understand what is and is not possible in order to unite around a compelling opposing vision for the country.