Senators whose phone records were sought by Special Counsel Jack Smith would gain authority to sue for millions in damages under a provision buried in the Senate-advanced deal to reopen the government.While Democratic Governors, elected officials, and activists are fighting to protect the rule of law against the Trump 2.0 regime, Schumer arranged a deal that includes something like this.
The spending measure, which cleared a Senate procedural hurdle Sunday night, would create a private right of action allowing senators who’ve been searched—without their knowledge—for their communications data to bring civil lawsuits against the US government and potentially individual federal employees. [my emphasis] (1)
The substance and the appearance on this were really bad.
The Democrats didn’t need to make a “deal” – actually, in this case, an abject surrender. The Republicans have majorities in the House and Senate. Trump himself was publicly calling for the Republicans to end the filibuster rule that was always terrible but which Republicans began to use so aggressively that it became a de facto practice that the Senate needed to have 60 votes to pass anything.
But instead of forcing the Republicans to eat the responsibility for their own blockade of the budget after the Democrats had stood up to them for weeks and scored a remarkable streak of election victories in last week’s off-year elections – which was about as strong an indication as we could have that lot of voters were rewarding the Democrats for fighting the Republicans, including fighting the Republicans on the shutdown - the Senate Democrats … stopped fighting. Surrendered. They didn’t even wait a full week after last week’s election to fold completely, including endorsing the Republicans’ attack on the rule of law mentioned above.
And I don’t see how the Republicans will take any other lesson from this than to see that the Democratic Senate will fold on anything the Republicans solidly back – and the party is now the Trump cult so they will back pretty much anything and everything Trump wants – during the remainder of this two-year Congressional session.
The Democrats had massive credibility among the public after last week’s elections. And Chuck Schumer and his fellow “how quickly can we surrender?” They bargaining position was better than before the election. But and his fellow “how quickly can we surrender?” Dems just tossed that advantage away. Why would Trump or Republicans take the Democrats seriously now in any such standoff until at the earliest a new Congress is elected? They just saw Chuck Schumer completely fold this week when the Democrats’ leverage was as strong as it has been during this whole shutdown fight.
Josh Marshall tries to find a silver lining in the Democrats’ capitulation:
There’s a key distinction I was trying to draw in what I wrote [previously]. And that is there’s a difference between the deal itself and where the deal leaves Democrats and the broader anti-Trump opposition. This deal shows us that Democrats still don’t have the caucus they need for this fight that will be going on at least through this decade. [Does he mean the Senate Democrats won’t be able to achieve anything until 2031?!?] But the shutdown also accomplished a lot. And not withstanding the WTF fumble at the 10-yard line, it’s still a dramatically different caucus than we had in March. To me it’s a proof of concept that worked. Democratic voters need to keep demanding more, keep up the pressure and keep purging the Senate caucus of senators who are not up to the new reality. [my emphasis] (2)The key element of the “deal” to which the Democrats caved in is that the Republicans agreed to hold a vote in December on a bill to extend Affordable Care Act (ACA) subsidies, the issue on which Democrats took their stand until this week’s cave-in. This would prevent a drastic increase in health insurance premiums, an increase which Trump is already using to discredit the entire “Obamacare” approach.
In other words, the Democrats caved in for a pledge by the Republicans to hold a vote on ACA subsidies which the Democrats have to be assuming they will lose.
How this is anything but an abject surrender by Chuck Schumer and his alliance of semi-Democratic Senators is very hard to see. NPR reports:
Republican Senate Majority Leader John Thune, R-S.D., said Sunday that he would hold a vote by mid-December on a bill of Democrats' choosing to extend the expiring [ACA] subsidies. Thune has said throughout the shutdown that Republicans would only negotiate on the subsidies once the government was open.It’s important to stress that, beyond the genuine fecklessness of Chuck Schumer, outcomes like this are what we get on a regular basis for a system dominated by money in politics. That is a problem that Congress will never, ever be able to fix unless they dispense with Schumer’s politics of surrender.
"This deal guarantees a vote to extend Affordable Care Act premium tax credits, which Republicans weren't willing to do," Sen. Tim Kaine, D-Va., wrote in a statement. "Lawmakers know their constituents expect them to vote for it, and if they don't, they could very well be replaced at the ballot box by someone who will."
But the majority of Senate Democrats disagreed that this was the best deal they could get, doubting that Republicans would agree to extend the subsidies without the pressure of an ongoing shutdown. After Democratic victories on Election Night last week, some senators said it was a mistake to back down. [my emphasis] (3)
And that will require major pressure from the party’s electoral base to accomplish.
The team at The American Prospect were not happy with the surrender. Bob Kuttner:
Coming out of Tuesday’s election blowout, the Democrats were riding high and unified. They won big in places like New Jersey that were supposed to be close. Republicans were taking increasing blame for the government shutdown, now in its sixth week. The Republicans were fracturing, with Senate Majority Leader John Thune (R-SD) wanting a deal and House Speaker Mike Johnson (R-LA) stonewalling. And Trump’s rants made him increasingly irrelevant.David Dayen weighs in on what he calls “the Cave Caucus.” That label could refer to the Schumer allies’ propensity to cave in to Trump and his cult followers in the Senate. Or to their comfortably relaxing in a cave controlled by big-money donors. He writes:
Less than a week later, it is Democrats who have given it all away, and Democrats who are fractured. ...
In this topsy-turvy political era, let’s see whether self-defeating House Republicans save self-defeating Senate Democrats from themselves. [my emphasis] (4)
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 [Democratic] 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. [my emphasis] (5)He goes on to note the provision to reverse Trump’s firing of federal workers just squeaked through the surrender negotiations. But that also meant that “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.”
But after rolling the Democrats so badly, and successfully replacing the story of the Democrats’ scoring electorally against the Trumpists by fighting for their own side, will Trump actually implement the reversal? Will he stop his illegal practice of sequestration of appropriated funds? And if he doesn’t, what will Congress do? Chuck Schumer just flushed his best chance for forcing the rogue Administration to comply down the toilet by showing he’s willing to back down when his side’s own negotiating position was at a maximum.
Jeet Heer describes the Schumer surrender this way:
Many Democratic lawmakers acknowledged that the deal does not come close to fulfilling the party’s promise to defend healthcare spending. House minority leader Hakeem Jeffries said, “I don’t think that the House Democratic Caucus is prepared to support a promise, a wing and a prayer, from folks who have been devastating the health care of the American people for years.” Representative Greg Casar, chair of the Congressional Progressive Caucus, said the deal was a “betrayal of millions of Americans counting on Democrats to fight for them. Republicans want health care cuts. Accepting nothing but a pinky promise from Republicans isn’t a compromise—it’s capitulation.” Senator Elizabeth Warren described the deal as “a mistake.”The Democrats took a strong stand against the health insurance sabotage on which the Republicans insisted. Their stand was popular and showed its popularity at the polls.
In an interview … on Sunday, Lindsay Owens, executive director of Groundwork Collaborative, a progressive strategy group, spoke of the way the deal is politically damaging to the Democratic Party’s brand. She noted that the exit polls from the elections show that “Democrats were benefiting a lot from pressing their historic advantage on healthcare and from fighting to lower healthcare costs. It really helped there be a message that Democrats were running on, but with consonant actions.” Owens added that affordability has been a dominant issue over the last few election cycles, both helping Trump win in 2024 and costing Republicans this year after Trump’s failure to solve the cost-of-living crisis. She argues that if Democrats “now surrender, I just don’t think they have credibility on cost of living.” [my emphasis] (6)
And Check Schumer folded. He couldn’t even wait a full week after the election to capitulate.
Schumer and the Cave Caucus looking a lot like Monty Python’s Brave Sir Robing about now: (7)
Notes:
(1) Penn, Ben (2025): Shutdown Deal Would Let Senators Sue for Jack Smith Searches. Bloomberg Law 11/10/2025. <https://news.bloomberglaw.com/us-law-week/shutdown-deal-would-let-senators-sue-over-jack-smith-searches> (Accessed: 2025-11-11).
(2) Marshall, Josh (2025): With a Day to Think About It. TPM 11/10/2025. <https://talkingpointsmemo.com/edblog/with-a-day-to-think-about-it> (Accessed: 2025-11-11).
(3) Gringlas, Sam (2025): Senate approves shutdown ending legislation, sending bill to the House for a vote. NPR 11/10/2025. <https://www.npr.org/2025/11/10/g-s1-97245/senate-shutdown-vote> (Accessed: 2025-11-11).
(4) Kuttner, Robert (2025): Democrats Get Rolled by Their Own. The American Prospect 11/10/2025. <https://prospect.org/2025/11/10/democrats-get-rolled-by-their-own/> (Accessed: 2025-11-11).
(5) Dayen, David (2025): The Most Frustrating Thing About the Shutdown Cave. The American Prospect 11/10/2025. <https://prospect.org/2025/11/10/most-frustrating-thing-about-shutdown-cave/> (Accessed: 2025-11-11).
(6) Heer, Jeet (2025): After This Shutdown Surrender, Chuck Schumer Needs to Go. The Nation 11/10/2025. <https://www.thenation.com/article/politics/chuck-schumer-shutdown-senate-democrats/#> (Accessed: 2025-11-11).
(7) Brave Sir Robin Ran Away. Anthropocon YouTube channel 09/10/2012. <https://youtu.be/l8IkbCeZ9to?si=Dwo_1R4zeJuyx5b-> (Accessed: 2025-11-11).
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