By Bruce N. Gyory | January 29, 2018

I want to offer a dissent to the consensus view of pundits that Senator Charles Schumer badly mishandled the government shutdown.  I do not dispute that Senator Schumer lost the battle among pundits following the end of the shutdown.

On January 22nd, the Washington Post’s headline proclaimed, “Democrats caved on the shutdown, and they’re admitting it”, and the Huffington Post’s headline screamed “Liberals Fume at ‘Worst Negotiator’ Chuck Schumer After Deal to End Shutdown.”  Come January 23rd the onslaught continued, as the Wall Street Journal editorial headline was, “Chuck Schumer, Shut Down.”

How can I muster a credible argument contesting this congealed convention wisdom?  Let me suggest that the proper lens to analyze the denouement of this shutdown comes from assessing its long-term implications.

David Leonhardt of the Times was persuasive in a column which appeared on the morning of the day the shutdown ended, “Democratic leaders are certainly right to insist on protection for the Dreamers….The smart move now for Democrats is to accept a short-term funding bill that ends the shutdown and diffuses the tension….That solution feels a bit unsatisfying, I know.  But tactical retreats can lead to big victories in the future.”

Let’s assess where things stood for Schumer and the Senate’s Democratic conference heading into the shutdown to better gauge the long-term success or failure of how they played their hand.

The Democrats’ progressive base is correct to assert that the public broadly supports the Dreamers.  That support ranged from 70 percent in the CBS News poll taken between January 10-12th, to 87 percent in the Washington Post/ABC News poll taken January 15-18th, 2018.  A Hart Research Associates poll showed that support for the Dreamers in the Senate’s 12 battleground states was at 73 percent.

But in terms of the shutdown an SSRS poll for CNN (taken January 14-18th) while confirming that 84 percent supported maintaining DACA, also found that voters prioritized approving a budget plan avoiding a shutdown at the 56 percent level, while only 34 percent prioritized holding out for the Dream Act over avoiding a shutdown.

In addition, a Politico/Morning Consult taken January 18-19th, revealed a muddled public view: 41 percent would blame the Republicans for a shutdown while 36 percent would blame the Democrats.  This Politico/Morning Consult poll also found that among Independents only 35 percent thought holding out for DACA was worth shutting down the government, while 43 percent opposed shutting down the government over DACA.

This Politico/Morning Consult poll reported that the public put a higher priority on long-term funding for the Children’s Health Insurance Program (by 64-22 percent the public felt shutting down the government was worth a long-term renewal of CHIP program) and by 55-30 percent the public felt increasing defense and homeland security funding was worth shutting down government, than shutting down government over DACA.

In the Red States where the swing Senate races would be fought this November, the Washington Post reported that a Senate Majority PAC (that PAC is directed toward electing Democrats) poll, found that 48 percent of voters would blame the Democrats vs. only 39 percent who would fault Trump and the Republicans for a shutdown.

Alternatively, Trump’s priority of funding a wall along the Mexican border, had little public support.  In a Quinnipiac poll released on January 11, 2018, only 34 percent of voters supported a wall along the border with Mexico with 63 percent approved and that precise 34-63 percent negative reading was confirmed in the ABC News/Washington Post Poll of January 15-18, 2018.  So Trump had no persuasive sermon in his already weak bully pulpit to move Democrats to vote for funding the wall, but not DACA.

Consequently, when you boil down all this polling data here is what you get.  In terms of brass tacks politics: protecting the Dreamers has broad public support, but the American people do not think it worth shutting down government for DACA.  Moreover, if Trump really wanted to prioritize funding for portion of his signature wall, he needed to move the House Republicans on DACA.

The admonition from the polling data was quite clear: whichever side was blamed for shutting down government, unless their motive was clearly established as securing funding for CHIP or defense/homeland security, the political price could be high, especially among independents and in Red States.  The political lessons from past shutdowns (1995, 2011 and 2013) underscored the fact that the longer shutdowns’ drag on, the political pain advances for the party blamed as if a geometric, not an arithmetic, progression.

With that baseline political state of play set, let’s assess how Senator Schumer and the Democratic conference handled the shutdown.

First, they correctly pursued a bi-partisan approach led by Republican Senator Lindsay Graham of South Carolina and Dick Durbin of Illinois for the Democrats.  The Tuesday before the shutdown, it seemed as if President Trump had internalized that state of play, offering in front of the assembled TV camera to take the “heat” for any bipartisan compromise.  But when Trump back flipped with his “s…hole” histrionics at the Thursday meeting rejecting that very kind of compromise, there was only a Hail Mary available to Schumer’s Democrats.  Schumer threw that pass Friday, in a one on one meeting with Trump: the only way to get some funding for his wall was to pass DACA protections.  This pass implicitly prioritized the cause of the Dreamers.

Second, once Trump had reneged on a bi-partisan deal, Schumer’s Democrats no choice but to invoke a cloture vote, denying Trump an easy win for, his vulgar tirade.

Third, once no deal was forthcoming, Schumer would have put his marginals at grave risk had the shutdown lingered.  When you are in the minority, as Schumer’s Democrats are, in both houses of Congress, the political equivalent of Grant and Patton style military tactics don’t work, instead a minority leader is wise to emulate’ Sir Francis Marion’s Swamp Fox tactics of striking and retreating, only to strike again.

Schumer simply had to protect his marginals.  It is worth noting that even die hard progressives like Sherrod Brown of Ohio and Tammy Baldwin of Wisconsin voted to end the shutdown.

Fourth, Schumer took all the arrows from pundits and brick bats of complaint from his party’s progressive left flank, but the votes in the House and the Senate among Democrats to oppose ending the shutdown to continue protecting the Dreamers, were only painless politically, because the shutdown had ended.  Had the shutdown continued, the polling data was pretty clear, Democrats would have lost support from the very independent voters who are raising the storm surge underneath the wave forming for next November.

Fifth, Schumer realized that this vote around the continuing resolution on the Budget, was not the time to force DACA through.  Not because it was not worth the fight, but because it would not succeed.  Instead, the maximum leverage for DACA will come when the debt limit must be extended.  That is the only point when the Democrats will have the leverage to overcome the Hastert Rule in the House.

The Hastert Rule is an unofficial rule that no Republican Speaker will bring a bill to the floor of the House, unless it has the support of a majority of the Republican Conference.  Hastert’s majority of the majority rule, it is literally a perversion of democracy, as it denies any bi-partisan majority of the whole House a chance to pass major legislation.

Schumer is being pilloried for accepting the so-called empty promise by McConnell to allow a DACA bill to the floor of the Senate to go through the normal rules of amendment and compromise on the floor.  I would argue accepting that promise was a very smart move.  In doing this, the Democrats snatched DACA back to its maximum popularity – as a standalone bill (the near 80 percent level), rather than as a measure supported by only a third of the electorate (if DACA were perceived as extending the shutdown).

Schumer’s next play was nuanced.  His strategic retreat on the shutdown, opens up a narrow path to passing DACA in the near term, but a far wider path to passing DACA later in the Spring or even next year.  Schumer and the Democrats will strive mightily to pass DACA as a part of the next continuing budget resolution, or better yet as part and parcel of a full budget agreement on February 8th.

If that fails, the Democrats have an assurance that they will have a fair opportunity to advance a DACA bill on the Floor of the Senate, for full votes on the bill and any amendments offered (the so-called regular order).  If such a bi-partisan DACA bill passes the Senate, that provides leverage toward transforming DACA protections into the law of the land.  If Trump’s price becomes too high (e.g., funding level for the wall or ending chain migration) the Democrats will have a strong campaign issue for November, even in the battleground states (where according to that Hart Research poll, 73 percent of voters support DACA).

But the most promising lane for passing DACA will come from back flipping Trump’s very own “crazy man” theory of negotiating against him, vis a vis the need to extend the debt limit.  It is this lane, that I suspect was the method to what pundits labeled as Schumer’s madness.

Why do I say that the debt limit extensions are the Democrats maximum point of leverage?  To pass the debt limit extension this Spring, the Republicans in the House will have to break the Hastert Rule.  In fact, the Republicans in the Senate and the House will need massive numbers of Democratic votes to pass the debt limit extension.

Who will want the debt limit extension passed more than any other human being on the face of the earth – President Donald J. Trump?  Rationale: we know that the failure to pass the debt limit extension in Obama’s first term, wreaked havoc on the markets, especially the stock market.  Since Trump has been bragging until the cows come home, about the rise in the stock market, which has accelerated in his term, unlike in GDP and job growth, beyond what occurred in the Obama years, Trump will be apoplectic if his singular economic taking point were erased in a sea of red losses in a stock market selloff, attending a failure to extend the debt.

So if Trump, and Paul Ryan want the Democratic votes for the debt limit extension they desperately need, they will have to ignore the Hastert Rule, and if by that point a DACA compromise has passed the Senate, even if DACA protections were not enacted by the next continuing resolution date of February 8th, Schumer can demand, not ask, that the DACA bill being put on the floor of the House, where all agree that would pass (why overcoming the Hastert Rule is an imperative), as the price of producing Democrat voters on the debt extension.

Trump now has to wonder would Schumer’s Democrats actually not provide the votes to extend the debt limit.  For unlike the last continuing resolution, the Republicans do not have the votes in the House to extend the debt limit.  In Trump’s mind who would be hurt more by that Republican impotence on the debt limit and its derivative sea of red ink in the stock market – Trump or Schumer’s Democrats?  The answer is Trump would be hurt exponentially more.

My gut hunch is that Schumer folded on a sure losing hand last week, in order to advance the probability of increasingly odds for winning hands on February 8th, later in the Spring over the debt limit extension, or in January of 2019, if the Democrats regain control of one or both houses of Congress.

To pundits, last week looked like Schumer got rolled, but to in my mind, it was classic Swamp Fox tactics – increasing your odds in a future political battle at a time and place of your choosing when facing a larger force (i.e., Republicans in control of the White House and both houses if Congress).

Sixth, Trump lost something central to his political persona in that weekend shutdown, something that the pundits never really focused upon.  Trump lost his underlying and first brand, Donald Trump as master of the art of the deal.  Schumer’s line that negotiating with Trump was like negotiating with Jello stuck, precisely because it was so accurate.  The weekend shutdown and its resolution, forced Trump to the sidelines.  Schumer’s Democrats acted as Dorothy in the Wizard of Oz, for when the Senate Democrats pulled back the curtain, President Trump was revealed to be a very bad Wizard, when it came to closing deals.

Seventh, implicitly the left wing of Schumer’s party held the efforts of that bi-partisan group of 25 moderate Senators somewhat in contempt.  Many grumbled, that Schumer should never have let that bi-partisan group drive the ending of the shutdown.  But that criticism misses an ever so smart long-term move by Schumer.

If the Democrats retake the Senate majority this November, the challenge will become, can they govern? Hard to see the Senate going Democratic, if the House does not also go Democratic.  Can a Democratic Congress produce will become the refrain?  That will mean getting to 60 votes to break cloture in the Senate on major issues in 2019 and 2020.

No one today could credibly project, given where this year’s swing races are being run (Indiana, Missouri, Montana, West Virginia, North Dakota, Arizona, Nevada, Wisconsin, Ohio, Pennsylvania and Florida) with the Democrats defending seats in 9 of those 11 states, that the Democrats could seriously aspire to a majority much above 52 seats come January.  That would mean that to break cloture the Democrats must pick up at the very least 8 GOP votes on critical cloture votes.

So developing the muscle memory for bi-partisanship among Republican Senators like Collins, Murkowski, Graham, Alexander and the Good Lord willing McCain as well as Romney in all probability, and on specific issues with Toomey (on background checks for guns), Portman (infrastructure), Rubio (on hurricane relief), becomes a crucial test should the Democrats reclaim the Senate’s majority.  Therefore, the relationships that Schumer’s Democratic colleagues are forming with moderate and traditional Republicans Senators, should not be seen as a luxury, but as a long term political necessity.

My point here is not to say last week was not a tough week for Chuck Schumer, because it was.  Schumer took his lumps.  It was foreseeable that the politics of government shutdowns are treacherous, particularly for Democrats, who as the party of government, recoils at deep levels, from government shutdowns, no matter how principled.

Instead, my point is that the conventional wisdom that Schumer played the shutdown poorly, may not look like such a trenchant analysis this Spring, or next year if the Democrats win back control of the Congress.

Pundits can blast Senator Schumer all they want, but Chuck Schumer can take some comfort in knowing that his conference avoided a trap on the shutdown and the prospects for ultimately advancing DACA protections have increased.  In time, perhaps those engaging in harsh punditry towards Chuck Schumer last week, might come to remember the eternal wisdom of Sir Francis Bacon’s admonition, “All rising to a great place is by a winding stair.”

Bruce N. Gyory is a political and strategic consultant at Manatt, Phelps & Phillips LLP and an adjunct professor of political science at SUNY Albany.