My colleague Bob Kuttner has ably explained the particulars and the political dynamics of the sudden surrender on the government shutdown from eight Senate Democrats (with Chuck Schumer’s tacit support), what I’m calling the Cave Caucus. Senators dissatisfied with this deal are going to deny unanimous consent to draw out the conclusion, in part to let the situation sink in for the House, where the reaction has been sharply negative. But House Speaker Mike Johnson (R-LA) only needs his own party members to get the bill passed, and he has delivered tough votes throughout the year. I don’t think House Republicans will rescue the Cave Caucus.
I share a lot of the frustrations expressed all over social media. But the biggest one for me comes on page 12 of the continuing resolution that advanced in the Senate last night. There, the drafters demonstrated that they have every ability to constrain Donald Trump and OMB director Russ Vought’s desires and stop the consolidation of executive power. But they only did it in one area, to grab one necessary vote for passage, not because they care about Congress’s relevance as an institution. That this Senate knows how to restore the power imbalance in Washington and chose not to is almost worse than completely ignoring it.
On the details, I do agree that the existing dynamics, particularly with air travel chaos and the Trump administration losing ruling after ruling on food assistance (including one just last night), were actually pushing Senate Republicans to bow to their president and eliminate the Senate filibuster, or at least create some semantic carve-out for government spending that would end the filibuster in all but name. The Cave Caucus was likely mindful that their power to dictate events is tied to the rule by minority in the Senate, and they stepped in front of that process like human shields.
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I also agree that for Sens. Jeanne Shaheen (D-NH) and Dick Durbin (D-IL)—the two Cave Caucus members who are retiring next year—the real goal was to preserve their three-bill “minibus” appropriations package, which is objectively better than the usual work product and preserves some funding Trump wanted out. It in no way makes up for the cave, but it speaks to how parochial interests and turf wars in Congress often play an outsized role in outcomes. Shaheen and Durbin weren’t thinking about the national Democratic position of giving up on health care improvements right after a big electoral victory and Republican chaos; they wanted their little bill to pass.
But I have been arguing consistently throughout the shutdown that Democrats were running into problems by saying one thing in public and another in private. The public argument of the shutdown was about Affordable Care Act subsidies, and Democrats didn’t have much of a policy plan for what to do if Republicans just said no. Politically, they reset the conversation to friendly turf; getting Republicans to express their bonkers health care ideas out loud is where Democrats want to be. But it was easy to see where this impasse would lead. In fact, on October 6 I wrote that the endgame would look something like Republicans offering an “assurance” of negotiations or a vote as long as short-term funding passes, and Democrats deciding that was a real rather than a dubious offer. Of course, that’s what happened.
But there was a behind-the-scenes factor in the shutdown too, namely, that Trump was making a mockery of the appropriations process by withholding funds and dismantling agencies and rescinding programs. The Democratic counteroffer had provisions for a “No Kings” budget, to stop the withholding and rescinding of funds. But because that was largely in private, without any momentum behind it politically, that was destined to flounder.
Yet Senate Democrats needed Tim Kaine’s vote, and Kaine represents a large number of federal workers in Virginia. So after the rest of the Democratic caucus balked on a straightforward cave, the Cave Caucus decided to reverse Trump’s firings of federal workers, in a way that reveals their options to use the power of the purse.
So let’s turn to page 12, and section 120 of the continuing resolution. It is described as a “prohibition,” and says that between now and January 30 (when this continuing resolution runs out), “no federal funds may be used to initiate, carry out, implement, or otherwise notice a reduction in force to reduce the number of employees within any department, agency, or office of the Federal Government.”
That’s a pretty sweeping prohibition, applied to all civilian positions in the government, including temporary and part-time positions, regardless of their sources of funding! (There are only exceptions made for voluntary quits or retirements, or complying with a court order.) The idea here is that Congress decides how money is spent, and it can withhold money to HR departments that would conduct reductions in force (RIFs) in the government.
In addition, any RIFs that were instituted during the shutdown that began October 1 must be reversed; in fact, they “shall have no force or effect,” language that totally nullifies them. Employees who received RIF notices will be restored to employed status and receive back pay for the entire shutdown period; they must be informed of this within five days of enactment.
Now that is a Senate that knows how to get its prerogatives in order. Trump has two choices: agree to this language and refrain from firing people as long as this continuing resolution is in place, or veto the bill and be held singularly responsible for the shutdown. He’s pretty happy about the unpopular shutdown that he’s already been blamed for ending, so he’ll opt for the former.
What’s so maddening is that this could have been how the bill was put together in its entirety. Right now, there’s nothing in there saying that Trump has to spend the money in this continuing resolution. He can keep withholding funds, and even rescind them with a party-line vote. None of the problems that inspired the shutdown are resolved.
Worst of all, the RIF prohibition shows that Congress has the authority to require that money is appropriated. They could have bypassed Vought’s Office of Management and Budget for direct appropriations to grantees, prohibited rescissions on this funding, and so on. They just declined to do so. The RIF prohibition is only in there for Kaine’s vote, teasing us that checks and balances exist while deciding not to advance them throughout the spending measure.
If this was a real No Kings budget, even with the same Lucy-and-the-football move on health care, I would have some sympathy for Josh Marshall’s argument that Democrats got caught trying, raised the salience of health care as an issue, showed some fight, and just couldn’t hold the caucus together to the conclusion. Republicans are still in a terrible situation on health care; they will either give in to Democratic demands or suffer painful electoral consequences. That will play out regardless of appropriations. But ensuring that legislative funding actually gets spent was something tied directly to the shutdown fight that Democrats had within their power to control. That’s what they fumbled, and that’s not forgivable.