On Thursday, New York City Mayor Bill de Blasio became the 23rd candidate and the third mayor competing for the Democratic presidential nomination. In recent posts, Hans Hassell, Jonathan Bernstein, and Vox’s Dylan Scott and Tara Golshan offer explanations for this rash of candidates. This post is on the next question: How could the Democrats shrink their pool of contenders? I suggest two approaches: party-centered and market-oriented.

But first: What’s wrong with 23 candidates?

Lost Senate candidates. Party insiders and observers have highlighted the opportunity cost: Several of these candidates (Steve Bullock, John Hickenlooper, Beto O’Rourke, Joaquín Castro) face long odds of winning the presidency but could be very competitive Senate challengers. The Democratic Party is worse off overall by having them swing and miss for the presidential nomination while decreasing Democrats’ prospects in 2020 Senate races.

Crowded “lanes.” The wide array of candidates may make it difficult for party members to coordinate on the best type of candidate. In 2016, there were several Republicans who were well-positioned to champion Reagan-style conservatism while following through on the Republican National Committee’s mandate to reach out to a more diverse coalition, including Marco Rubio, Jeb Bush, Ted Cruz, and John Kasich. Meanwhile, there was only a single candidate in the “virulently anti-immigrant” lane, which helped him consolidate a base of like-minded voters.

If, for the sake of argument, the best candidate for the Democrats is a center-left white male, that “lane” is crowded by Bullock, O’Rourke, Hickenlooper, Michael Bennet, Joe Biden, Jay Inslee Seth Moulton, Tim Ryan, and Eric Swalwell. Or if the Democrats think the best competition against Donald Trump would be a female candidate, there is still the coordination problem of choosing among Tulsi Gabbard, Kirsten Gillibrand, Kamala Harris, Amy Klobuchar, Elizabeth Warren, and Marianne Williamson.

Gimmick Campaigning. Finally, an overcrowded field creates incentives for candidates to engage in “spectacle” campaigning and debate tactics, such as simplistic policy proposals and reality TV-style confrontations.

Obviously, the Democratic National Committee (DNC) does not directly control who runs and who does not. But it does have some indirect influence by regulating who can participate in DNC-sanctioned presidential debates. While general election debates do not seem to influence voters very much, it is possible in the modern era for candidates to rise from the pack based on their debate appearances, as John Sides and Lynn Vavreck observed during the 2012 Republican cycle. The harder it is for candidates to qualify for Democratic debates, the more they might rethink their long-shot bids for office. How could the DNC best restrict debate participation?

Strategy 1: let the party decide

The DNC’s current plan is to hold 12 debates with up to 20 candidates each. To qualify, candidates must register at least 1 percent in three national or early primary state polls or raise money from 65,000 donors, with priority going to candidates who meet both criteria.

One problem for these standards (as with the 2016 Republican debate criteria) is that public opinion polls are a terrible basis for allocating access. Early polls are primarily a measure of name recognition, so this criterion is vulnerable to an unqualified celebrity (say, a reality TV star) crashing a party debate. In particular, polls with conventional sample sizes (~1,000) typically have a margin of error around 4 percent and are thus incapable of telling the difference between zero percent and 1 percent support. Meanwhile, 65,000 donors represent 0.22 percent of all votes cast in the 2016 Democratic presidential nomination, and since there is no minimum donation size, it is a weak guarantee that a candidate can afford to run a viable campaign.

But, most importantly, these criteria outsource the role of party leadership in screening and selecting presidential candidates. As readers of this blog know well, a prominent political science study of presidential nominations, The Party Decides, posits that party elites effectively choose their party’s nominee by endorsing the candidate who can best unite the party coalition and win the general election.

Donald Trump’s success in the 2016 Republican primary was inconsistent with the empirical predictions of the book, but his presidency has demonstrated the logic of the book: Absent effective party screening, the Republican Party is saddled with a leader who is likely to be devastating for the party’s long-term image. If the Democratic Party wishes to avoid making a similar mistake and can no longer rely on endorsement signals to coordinate on the candidate who is best for the party, the obvious solution is to directly involve party leaders in choosing the candidates who qualify for party-sanctioned debates.

How could it work?

1. Choose a set of Democratic elites — perhaps members of the DNC, or all qualified superdelegates (DNC members, governors, members of Congress, past party leaders).

2. Choose a limit on the number of debate participants — perhaps gradually decreasing from 10 to four.

3. Conduct secret ballots of Democratic elites to determine who they think are the best candidates. Note that there’s a range of voting rules the DNC could use:

a) Each voter could support a limited number of candidates (without pooling votes for a favorite candidate), e.g., a ballot that simply says, “Who are your top five presidential candidates?”

b) Borda count: Each voter could rank candidates from 1 to X, with the top candidate getting X votes and the Xth candidate getting 1 point. This is how reporters and coaches rank college football teams, with X = 25.

c) Ranked-choice voting: Again, voters rank candidates, but this time they get one vote, and last-place candidates are eliminated one at a time and their votes reallocated to remaining candidates.

d) One vote, one candidate.

If I were designing the process, I would vary the voting rules to become more restrictive as the process unfolds.

Polling Democratic leaders could benefit the party in several ways. A DNC poll would provide a clear basis for regulating access to the debate stage, based on the judgment of people with a lot of information and high stakes in the outcome to prioritize candidates who represent the party’s interest. Conversely, it would allow the DNC to screen out candidates who are underqualified or curiously Russia-adjacent.

Of course, this strategy would mean directly confronting the Sanders supporters who felt the 2016 nomination process was “rigged” and have fought to weaken the role of party leaders in screening presidential candidates or determining the outcome. What would be an alternative?

Strategy 2: let the market decide

As Hans Hassell notes, several candidates seem to be running for president for the publicity that will help them audition for other jobs — Cabinet posts, TV anchor, reality TV guest. Meanwhile, the DNC lags far behind the RNC in fundraising this cycle. One solution for both problems is to raise the price of the DNC’s most valuable commodity: access to presidential debates. To paraphrase Rod Blagojevich, the DNC has these debate slots and they’re [very] golden, so the DNC should not give it up for nothing.

How can the DNC monetize access to the debates? The most straightforward mechanism would be, again, to reduce the debate slots to a more manageable number (five to 10) and then auction them off among Democratic candidates. The candidates who pledge the most campaign funds to the DNC get debate slots. The rest sit at home and rethink their choices.

It would be fair to argue that this system would put the Democratic donor class in the center of the selection process. This is a good reason to favor a superdelegate voting system instead. However, the DNC could offer candidates a “people power” path to a debate slot. The current debate eligibility requirements state that a candidate shall offer proof of 65,000 unique donors, but not that the candidate shares the donor list with the DNC. Instead, a campaign could sign a joint fundraising agreement with the DNC so that one penny of every contribution goes to the DNC, as well as the name and contact information of the donor. The DNC could credit a candidate some dollar value (say, $5) for every unique name they provide. By gaining direct access to candidate donor lists, the DNC can consolidate a database of potential donors and activists.

If this sounds preposterous, what would you say if I told you the DNC is already charging presidential candidates to use DNC resources? BuzzFeed reports that state parties and the DNC are charging candidates for access to party-owned voter databases:

To purchase the voter file in Iowa, the first caucus state, it’ll cost you $120,000. To buy it in New Hampshire, the first primary state in the nation: $100,000. And in the pair of key early-voting states that follow, Nevada and South Carolina, it’s another $100,000 — each. For voter file data covering the rest of the country, compiled by the Democratic National Committee in its own national voter file, campaigns must agree to a strict set of terms requiring candidates to raise money for the party in emails, videos, and at events — on top of a $175,000 price tag.

Auctioning debate slots would serve the same purpose: charging candidates to make use of a party resource. The DNC could earmark all such funds for the DNC’s own 2020 campaign, or divide the funds between the national party committees (DNC, DCCC, DSCC, DLCC, DGA).

As the primary season unfolds, it seems likely that the Democratic Party will seek to focus attention on a subset of viable candidates. This post has described two strategies for selecting candidates who have the most support among party experts and/or make the biggest contributions to helping the Democratic Party succeed in the 2020 election. 

Now that the Democrats are assured the majority in the House of Representatives for the next two years, they can begin to plan their policy agenda going forward. Even if they reclaim the White House and a majority of the Senate in 2020, one of the key legacies of the Donald Trump presidency is the Republican majority on the Supreme Court. Left unchecked, this Republican faction has the power to nullify Democratic policies going forward.

Congress has a few options for pushing back against the influence of the Supreme Court. Here are five, beginning with the most obvious:

1) Overturn Court decisions by constitutional amendment

If a majority of Congress disagrees with the Court’s interpretation of the Constitution, one option is to override that decision with an amendment to the Constitution. This has happened before. The 11th Amendment overturned Chisholm v. Georgia, which allowed citizens of one state to sue a different state without its consent in federal courts.

The 14th Amendment (specifically dual birthright citizenship) overturned Dred Scott v. Sandford, while the 16th Amendment (allowing direct income taxes) overturned Pollock v. Farmers’ Loan and Trust Company.

The obvious limitation to this strategy is that it requires a supermajority of both chambers of Congress and of the states. Any decision by the Republican faction supported by most Republicans in either chamber, or in 13 states, will be impossible to overturn. For example, a proposed amendment to overturn Citizens United has languished in Congress for years while the campaign finance system has disintegrated.

2) Impeach and remove Justice Brett Kavanaugh

A second Constitutional option (possibly under discussion) is to impeach and remove newly confirmed Supreme Court Justice Brett Kavanaugh, or some other current justice. Removing someone from the Court would require an investigation and formal charges by the House Judiciary Committee, a majority vote in the House, a trial in the Senate, and a two-thirds majority.

This approach would need extremely compelling grounds for removal in order to gain support from more than 20 Republicans. As a practical matter, the House would need new information — such as abuse of office, financial improprieties, or further evidence of sexual assault or perjury — to provide the basis for removal, while the search for material would itself be easily criticized as partisan.

3) Expand the Supreme Court so the next Democratic president can fill extra seats

Another proposal, widely discussed among progressives, is simply to allow the next Democratic president to add new members to the Court. There is no constitutional requirement that the Court have nine members, so a Democratic majority could nullify the effects of the 2017 Neil Gorsuch and 2018 Kavanaugh appointments by passing a law to increase the size of the Court.

The disadvantage of this move is that it breaks a norm dating back to 1869. When President Franklin Delano Roosevelt attempted to pack the Court in 1937, he ran into bipartisan resistance to violating this norm in a transparent effort to dilute the influence of an opposition faction.

Breaking the norm may be justifiable in 2021, but it would legitimize future violations of the same norm when Republicans are in power (such as the Republican extension of the “nuclear option” in the Senate in 2017) and, more broadly, may fuel a cycle of retaliation in a system based as much on norms as on rules.

4) Jurisdiction-stripping

Article III, Section 2 of the Constitution grants the Supreme Court appellate jurisdiction over most cases, “with such exceptions, and under such regulations as the Congress shall make.” Put simply: Congress can declare some legal questions to be outside the purview of the Supreme Court.

On issues where the Court majority has previously acted in error, violated congressional authority, or acted as an extension of the Republican Party, Congress may have a strong argument for excluding the Supreme Court from future cases on those issues.

Two examples: campaign finance laws and the Voting Rights Act. In the latter case, for example, the majority asserted in Shelby County v. Holder that “things have changed dramatically” since 1965. This case’s decision to nullify the pre-clearance provision of the Voting Rights Act unleashed a wave of racially discriminatory election rules and practices across the country, and especially in the South.

As a civil rights decision, it was breathtakingly naïve. As a Republican stratagem, it has set in motion a self-reinforcing cycle of restrictions, electoral success, and more restrictions.

As with Court-packing, the risk of this approach is that it would legitimize similar actions by the other party when the political pendulum swings. A Republican Congress could, for example, pass a law banning abortion that excluded constitutional challenges to the bill from the Court’s jurisdiction.

5) Pass. laws.

In the current political environment, it is understandable that progressives are concerned —and Republicans overjoyed — by the solid Republican majority on the Court. For more than a decade, Congress has struggled to legislate on a range of issues. Even the high point of this stretch, the 111th Congress (from 2009 to 2010) included a second session that petered out as the majority party members realized that the more they accomplished, the madder people seemed to get.

Like nature, politics abhors a vacuum. In the absence of legislative action, Presidents Barack Obama and Donald Trump have rewritten regulations and issued executive orders to enact major shifts in environmental and immigration, and in doing so illustrated the instability of presidential actions.

The federal courts have also become a major source of policy change on campaign finance, same-sex marriage, and voting rights. Whether one agrees with these rulings or not, it is hard to say that the Court is passively “calling balls and strikes” when, in reality, it is a major source of new national policies. This is why the fight over Supreme Court nominations have become so bitter: They are a proxy fight for all the decisions Congress avoids.

Congress, however, can diminish the effect of executive and judicial policymaking by actually passing laws on several fronts, including.

• DACA: Congress could enact its own Deferred Action for Children of Arrivals law so hundreds of thousands of lives do not depend on executive inaction.
• Voting Rights: Congress could nullify Shelby County v. Holder by revising the Voting Rights Act pre-clearance authority.
• Health Insurance: Congress could overturn the Hobby Lobby decision to amend the Religious Freedom Restoration Act to clarify that corporations cannot have religious views and thus cannot avoid providing full health insurance benefits.
• Abortion Access: Since 1973, abortion policy has largely taken the form of states proposing restrictions to abortion and the Supreme Court deciding whether each state law passes constitutional muster. By 2018, the practical effect of these restrictions is that many people have to travel long distances to have an abortion, and may face state-imposed costs and delays when they get there. Congress has the power to invalidate many state laws as restraints on interstate commerce, ensuring continued access to abortion services nationwide.

These are just examples. The main point is that the power of the Republican faction on the Supreme Court depends, in part, on congressional inaction. A proactive Congress can limit Supreme Court overreach.

Last month, the New York Times reported that House Democrats do not plan to present a campaign agenda, and instead will encourage candidates to “tailor their own messages to their districts” with only a “bare-bones national agenda” to unite them.

This is unusual for the party on the winning side of a “wave” election. This year, the Democrats have several major electoral advantages: the president’s party typically loses House seats during a midterm election, the president’s poll ratings are mired around 40 percent while House Democrats hold an 8-point lead in the generic ballot.

However, the party on the losing side of unified party control of Congress and the White House is at an institutional disadvantage. The White House is the preeminent “bully pulpit” in the land, so the president can help set a party message and amplify it across the country. (This is not President Trump’s strength.)

The president’s party, additionally, can set the floor agenda in the House and at least screen the floor agenda in the Senate, so they can prevent the minority party from drawing attention to its own priorities. Minority parties hoping to ride a “wave” election often respond by “nationalizing” the election with a common campaign platform, so candidates have a shared set of poll-tested policy proposals to talk about.

Reading between the lines, the House Democrats think they are better off with candidates choosing their own policy positions (even if they are inconsistent with each other), setting their own policy priorities, and riding a wave of (anticipated) anti-Trump turnout. “Better off” is compared to an alternative of spelling out which issues the Democrats would priorities and which policies they will propose.

Under the “no campaign agenda” approach, if the Democrats win a majority in the House, they will choose from a wide range of options. For example:

• Taxes: Will the Democrats repeal the 2017 tax law completely, or make revisions? If they choose a repeal, will they “replace” it with something?
• Health care: Will the party seek to reform the Affordable Care Act’s insurance exchanges, or work toward a “Medicare for all” plan in which the government directly provides health insurance?
• Immigration: Are the Democrats willing to strike a bargain with President Trump, e.g. funding for a border wall in exchange for a DACA program? Or will they attempt another comprehensive reform bill? Or targeted legislation to allow refugees to stay in the country, prevent family separation at the border, reform ICE, and end the don’t-call-it-a-Muslim-ban halt in migration from seven countries?
• Trade: Will Democrats try to revoke the president’s ability to impose tariffs? Will they try to revive the Trans-Pacific Partnership?

By “localizing” their elections, the House Democratic candidates will choose their own positions on these issues, then the winners will come to DC to sort out their collective positions. This “bottom-up” approach is helpful in that it allows voters and to determine the Democrats’ agenda, but it also means the Democrats will have to invest a lot of effort into reconciling their differences if and when they become the majority party.

The risk of this strategy is that Democratic leaders in the 116th Congress will find it easier to ignore major issues than to reconcile the disagreements within their party caucus. They may, for example, focus the House agenda on investigations and “message bills” that make political points without addressing larger issues.

By avoiding issues where there is disagreement within the caucus, the House Democrats could keep their intra-party fights behind closed doors so the media has no conflicts to report on and the Republicans have no divisions to exploit. This was the House Republicans’ strategy on health care and tax reform from 2010 to 2016, and it helped them win four elections.

The experience of the House Republicans, however, clearly illustrate the costs of ignoring internal divisions by keeping them off the agenda. In the past, periods of divided government have often featured partisan battles over major legislation. In the short term, this looks like “gridlock,” with the two parties unable to compromise.

However, these periods of gridlock can set the stage for speedy action when the next period of unified government arrives. Here are some examples:

This table doubtlessly omits important laws enacted after failed efforts in the previous Congress. But it suffices to make a point: Periods of divided government can be an opportunity to develop initiatives for the next period of unified government. And when an out-party fails to do so (Republicans, 2011-16) the result is that when their chance comes they are wholly unprepared for it, and end up slapping together enormous, complex legislation on the fly.

These investments in future legislation take four forms:

1. Entrepreneurship: A few legislators developing actual legislative bills (as opposed to sets of talking points) and building a coalition of groups supporting these bills.

2. Educating members: Legislators who do not specialize in a topic will want to know enough about the policy proposal to feel comfortable voting for it, so actually putting a bill on the floor ensures that members and their staff are familiar with their own party’s proposals. And once they vote for it, they are presumably committed to vote for it next time.

3. Negotiations: Bringing a bill to the floor helps a party to identify and resolve disagreements. If a bill is kept off the floor, there may be latent conflicts that the party never identifies, or known conflicts that are never resolved without a deadline. Again, the Republicans’ “replacement” health care bill is a prime example. They never attempted a comprehensive repeal, so they didn’t know where their own fault lines were and they did not have any solutions already worked out.

4. Educating the public: Ultimately, a party that wants to make major policy changes will benefit when the public understands what the laws will do. It is harder to get press coverage or voter enthusiasm for dormant proposals.

Days ago, Minority Leader Nancy Pelosi signaled to House Democrats that they should be prepared for an active legislative agenda in the 116th Congress should they win the majority of House seats.

To do so, they will have to overcome the conditions that made a bottom-up strategy smart in the short run — a diverse set of competitive districts, disagreements over the priorities and ideological direction of the party, and distrust of party leaders. These conditions will follow the newly elected members into the 116th Congress. 

In my June 20 explanation of how Democrats could break a quorum in the Senate, I made the point that Democrats could obtain more bargaining leverage over the Senate agenda by being more disruptive. I did not include fine details about how exactly one breaks quorums, or how the majority would respond.

Then Justice Anthony Kennedy announced his retirement, and my post attracted attention from progressives looking for some way — any way! — to keep President Donald Trump and the Senate Republicans from filling another seat on the Supreme Court.

As a follow-up, I intend to provide more detail about how quorum-breaking works, and how the majority party can overcome a quorum-breaking effort if it really wants to. Quorum-breaking can be very disruptive (my original point), but does not provide a long-term option for blocking a Supreme Court nomination.

Historical background on quorums

A “quorum” is a sufficient number of people to make binding decisions for a group. Quorum requirements for legislatures vary widely, from two-thirds of the membership for the Texas legislature to about 6 percent (40 out of 650) for the UK House of Commons. Article 1, Section 5 of the US Constitution sets the quorum threshold for Congress at a simple majority, so 51 of 100 senators.

There is a long tradition of quorum-breaking in American legislatures, dating to before the Constitution. In recent state politics, both chambers of the Texas legislature fled the state in 2003, while Democrats fled Wisconsin and Indiana in 2011 to block anti-union legislation.

In Congress, the heyday of quorum-breaking was the late 19th century, as explained in my book, Filibustering. For the first century of congressional history, quorum-breaking (also known as a “disappearing quorum”) was increasingly common, and occurred more frequently in the House than the Senate.

I measured these attempts by identifying roll-call votes on which most members of one major party voted while most members of the other party did not vote, and this difference was statistically significant.

Of course, not every apparent attempt to break a quorum is successful. From the 1870s to the 1890s, quorums were much more likely to “disappear” in the Senate, leaving the chamber paralyzed.

Quorum-breaking continued on occasion in the 20th century, but senators tended to use dilatory motions and long speeches until the Senate shifted toward “invisible” filibusters in the 1960s. As discussed below, senators utilized disappearing quorums as recently as 1988.

The mechanics of quorum-breaking

How would a group of senators go about breaking a quorum?

First, they’d initiate a quorum call or a roll-call vote. This, of course, would require a Democrat to be in the chamber, and perhaps several other Democrats to support a request for a vote or quorum call.

However, their physical presence in the chamber does not mean they automatically count toward a quorum. The Senate does not have turnstiles to count people as they enter or exit; instead, senators usually count toward a quorum when they cast a vote or answer when their names are called during a quorum call (more on this below).

Getting a vote on a procedural matter would require some rejecting unanimous consent agreements that preclude spontaneous roll-call votes and some preparation, perhaps in consultation with the Senate parliamentarian.

The most impressive example I have come across is former Sen. James Allen (Democrat from Alabama) resisting cloture reform in 1975 with a series of creative roll-call votes from February 24 to March 7. For example, on February 24, Allen made a multi-pronged motion to bring up a cloture reform resolution, raised a parliamentary objection to his own motion, and then moved to table his own appeal. He forced a roll-call vote by arguing with himself.

The rest of the disappearing quorum tactic is simple: The remaining senators do not come to the chamber, cast votes, or note their presence for a quorum. To make any policy decision, the majority party would have to provide enough members to furnish a quorum or resort to drastic tactics. If there is no quorum (as shown by a quorum call or roll-call vote), the only actions the Senate can take are to adjourn, to recess, or to compel absent members to come to the chamber.

Notably, this tactic would reduce the downside to Democrats of the Senate staying in session through August: Republicans would have to remain in Washington, DC, furnishing a quorum while Democratic senators up for reelection could go home and campaign.

My original point, however, is that quorum-breaking — or the threat of it — in the current environment would be disruptive enough to make the Senate Republicans more amenable to allowing roll-call votes on Democratic priorities, and without the complex safeguards that Senate Majority Leader Mitch McConnell usually places between the will of the Senate and the preferences of the Republican Party.

Or Democrats could use the threat of quorum-breaking to extort a promise from McConnell and Senate Judiciary Committee Chair Chuck Grassley that the Judiciary Committee will take no action on a Supreme Court nomination — no hearings, no background questionnaire — until President Trump has testified under oath with representatives of the Mueller investigation.

What quorum-breaking is not good for, however, is indefinitely blocking a high-priority measure like a Supreme Court nomination. There are classic responses to quorum-breaking that enable a determined majority to overcome the tactic.

Majority responses to quorum-breaking

If the Senate Democrats refused to participate in quorum calls or roll-call votes, here are five ways the Republicans could respond:

1) Instruct the sergeant-at-arms to request (first round) or compel (second round) absent senators to the chamber. This was done in 1988 to break a Republican filibuster when GOP senators were avoiding the Senate floor. (Here are more details on attendance).

2) Currently, the presiding officer of the Senate cannot count members who are present but not voting toward a quorum. (See page 14 here; and pages 1,051 to 1,052 and 1057 here.) But nonvoting senators can be asked to explain why they refuse to vote, and the Senate can then vote on whether to excuse the nonvoting senator. (See rule 12, section two here.)

After consulting with the Senate Historian’s office, I cannot find any rule or precedent regarding fining senators for not voting, or for absence. This has been done, though, in the House of Representatives, and was done in Texas in 2003 to end quorum-breaking. 

3) However, McConnell and the GOP would likely make some incremental changes in how senators are counted so they can muster a quorum on key votes. There are historical precedents dating back to 1879 for and against allowing the presiding officer of the Senate to count nonvoting members toward a quorum.

After the extreme measures taken by Senate Republicans to deny a vote on the nomination of Merrick Garland to the Supreme Court in 2016 and then forcing the Neil Gorsuch nomination through the Senate in 2017, it is extremely likely that the Senate Republicans would do whatever is necessary to ensure a quorum if it meant gaining another Supreme Court seat.

4) The Senate’s cloture rule cuts both ways. On one hand, once cloture is invoked it provides protection against dilatory (a.k.a. delaying) motions, such as motions to adjourn. On the other hand, there is a mandatory quorum call before any cloture vote, which the minority party can avoid.

Cloture on most legislative matters, including many items on the summer agenda, requires three-fifths of the Senate. (By precedents set in 2013 and 2017, the cloture threshold for nominations is a simple majority.) Finally, votes on parliamentary disputes are still allowed after cloture is invoked and cannot be decided without a quorum voting.

5) In addition to parliamentary tactics, there would presumably be a political messaging war raging at the same time. Democrats could be criticized for taking advantage of Sen. John McCain’s (R-AZ) absence due to cancer, of refusing to do their job by not voting, or of being insufficiently “civil.”

For these reasons, I would expect that prolonged quorum-breaking would be politically costly, and that it matters what the Democrats are asking for. A short-term stoppage to obtain basic parliamentary fairness, or in defense of the rule of law, could be defensible. Shutting the Senate down indefinitely over a Supreme Court seat would almost certainly be a losing battle.

Let’s say Democrats want to shut down the center in order to force a vote on one of their own proposals — for example, a bill to prevent the federal government from separating parents and children as they seek asylum at our nation’s borders. They can do it anytime they want. Let me explain.

 In order for the Senate to do anything, there must be a sufficient number of members present. Article 1, Section 5 of the Constitution states:

a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide.

Other than quitting for the day or calling for others to come to the chamber, the Senate can do nothing without a majority of its members — 51 senators — participating in a vote. No bill can pass, no amendment can be decided on, no nominations can get approved.

At present, it would be extremely difficult for Republicans to provide a quorum with their own numbers. Their majority stands at 51-49, with Sen. John McCain on extended leave in Arizona. If no Democrat participates, the Republicans cannot provide a quorum.* In the month of June, there have been an average of 1.8 Republican absences across 18 roll call votes, so even if McCain returned to the Senate, the majority would struggle to consistently provide a floor majority.

This provides Senate Democrats with real leverage. If they refuse to participate in roll call votes, the Senate will come to a halt for lack of a quorum.

This tactic would put pressure on every Republican to be near the chamber whenever the Senate is in session and Democrats are able to force a vote on any procedural question. If Republicans are busy in the morning raising money and holding committee meetings, Democrats can force them into the Senate chamber and keep them there. The same is true during peak fundraising time in the early evening, or if the Senate is in session on Friday, or during the month of August. Meanwhile, vulnerable Senate Democrats will be doing their part by staying out of the Senate chamber and using their time more productively.

This would be a confrontational tactic; the Senate Democrats would probably only use it to make a fundamental point about the Senate’s role in American democracy. And that point should be that the Senate must be an institution where there is free and open debate so the majority can rule. As James Wallner argues, current Majority Leader Mitch McConnell’s strategy has long been to avoid any issue that harms the majority party’s image or the electoral prospects of Republican senators. Wallner states:

For McConnell, winning elections is necessary to control the Senate’s means of production: its committee chairs, leadership positions, and votes…Winning elections to maintain (or regain) a majority is therefore the ultimate end of his efforts. He is unwilling to tolerate freewheeling debates à la Mansfield precisely because these can’t be controlled. And while the Senate has proved incapable of accomplishing very much with McConnell’s approach … the majority leader can at least keep divisions within his party under wraps and thus present the electorate with a unified — and inoffensive — message during elections.

“Mansfield” here is Montana Democrat Mike Mansfield, who served as Senate majority leader from 1961 to 1977 and managed the Senate with the philosophy that every senator is equal and his job was to facilitate their will. McConnell’s mantra, on the other hand, is, “I’m the one who decides what we take to the floor. That’s my responsibility as the majority leader.”

At present, there are several critical bills kept from the Senate floor by McConnell’s policy:

• A bill to protect special counsel Robert Mueller’s investigation from presidential influence, reported out of the Senate Judiciary Committee by a 14-7 majority.
• A bill to give Congress final authority over tariffs imposed to protect “national security.”
• A bill to reinstate the Deferred Action for Childhood Arrivals program, without the debate restrictions imposed by McConnell in February.
• A bill to prevent family separation at the border, the Keep Families Together Act, which currently has united Democratic support.

The current uproar over Trump’s policy of separating families seeking asylum could provide Democrats a justification for shutting down the Senate until McConnell loosens his grip on the floor agenda. This is especially true since Trump has falsely blamed Democrats for this policy. And any Republican opposed to Trump’s family separation policy can tacitly aid the protest simply by avoiding the Senate floor during votes.

 *I’m uncertain whether Vice President Mike Pence could contribute a 51st vote toward a quorum. The Senate precedents on quorums do not mention this question.

Both chambers of the US Congress have faced ample criticism over the past decade. In the House, Republicans have been the majority party since 2011 but are often paralyzed because a subset of conservatives dubbed the Freedom Caucus has held Speakers John Boehner (2011-’15) and Paul Ryan (2015-’18) hostage to its all-or-nothing legislative strategy.

Meanwhile, the Senate struggles to debate any legislation that is vulnerable to a filibuster, so the current Republican majority has focused on items it can push through without obstruction: nominations, overturning regulations, and using the budget process to repeal and replace the Affordable Care Act (which failed) and force through $1.5 trillion in tax cuts.

These are completely different dysfunctions, but they share the same core problem. Legislative chambers face a problem known as a tragedy of the commons: Individual demands on a common resource exceed the supply. Each chamber has developed a system to manage its chamber time that is subject to exploitation and needs to develop a new way to operate.

Tragedy of the commons

The classic example of a tragedy of the commons, as related by William Lloyd and popularized by Garrett Hardin, is a plot of land that is open to grazing by local farmers. Each farmer has an individual incentive to grow his or her herd, adding to the grazing demand on the shared land. This incentive can lead to overgrazing because each farmer receives the full benefit of increasing his/her herd but only pays a fraction of the cost of the additional grazing, with the rest of the grazing costs borne by the other farmers.

In general terms, a “tragedy of the commons” is a problem humans encounter in a variety of settings. It is characterized by:

• A limited supply of a nonrenewable (or slowly replenishing) common-pool resource that actors desire
• An individual incentive to overuse the resource, often because the benefits of use are privatized while the costs are borne by all.
• Degradation of the resource due to overuse

Solutions to the tragedy

Hardin sketches two basic solutions to the tragedy:

Divide the shared good into privately controlled property

Maintain collective control of the good but allocate access on the basis of some criteria, such as wealth (by auctioning access), merit (by some agreed-upon standard), luck (by lottery), or patience (first come, first served).

Political scientist Elinor Ostrom won a Nobel Prize for her research on how communities actually manage common-pool resources. She finds that communities can prevent overuse by developing their own rules, monitoring compliance, and punishing violators.

The tragedy of the Congress

Each chamber of Congress has a valuable common-pool resource: the time of the chamber. For each individual member, the floor of the House or Senate is the place to:

• Make speeches
• Bring up and pass bills
• Offer amendments
• Get everyone on the record with a roll call vote

The total demand for floor time will vary with the number of members in the chamber and as the rewards for speaking, legislating, and forcing roll call votes increase.

On the other side of the ledger, the time of each chamber is limited. There are 17,520 hours in the two years between the first gavel and sine die for any given Congress (used here as a unit of time).

Legislators decide how many of those hours to actually meet as a chamber, and how much to devote to competing priorities like sleep, family, recreation, fundraising, campaigning, and meeting constituents. The 114th Congress (2015-’16), for example, met for 10.6 percent (Senate) and 8.6 percent (House) of available time.

As an illustration of how chamber time can be scarce, this table also shows the number of bills introduced and passed in each chamber, with a passage rate of 5.5 percent in the Senate and 11.8 percent in the House. While this is a rough measure of legislative frustration, it is fair to suspect that there were lots of bills that never came up in committee or on the chamber floor that someone would have liked to talk about.

The next two posts will discuss how each chamber copes with its tragedy of the commons, and how the resulting agenda-setting rules explain a lot of Congress’s dysfunction.

This post is part of a series on reforming Congress. Previous posts:

Don’t look to the past to fix Congress
What we want from Congress
Congress should defend democratic norms

In earlier posts, I suggested the way to improve the US Congress is not to set back the clock to some earlier system of “regular order” but rather to define what we want Congress to do and then identify reforms that will change how members of Congress think and work.

This post focuses on one last expectation we should have for Congress as an institution: defending democratic norms.

One of the clear lessons of the past two years is that our system is based on norms as well as rules. “Tell the truth, or at least statements with some factual basis.” “Don’t threaten to lock up your electoral opponent.” “Presidents should respect the free press, the judicial branch, and the rule of law.” And so on. There is no rule against the president’s statements, but the unsanctioned violation of these norms means that our political system is much weaker, and that other actors are free to violate them as well.

After each Trump outrage, reporters often ask members of Congress for their reactions, with particular focus on Republican members because their criticism of the president is more costly, and thus more meaningful; because Trump’s reputation is increasingly synonymous with the Republican brand; and because Republican members need the donations and votes of Trump supporters to win reelection.

For example, New York Times did a roundup of Republican responses to Trump’s tweets criticizing the Mueller investigation on March 18. They ranged from anodyne (House Speaker Paul Ryan) to supporting Trump (House Whip Steve Scalise) to critical (Sen. John McCain). And there were simply a large number of Republican leaders with no response at all, including Senate Majority Leader Mitch McConnell.

But the varied responses of individual members do not speak for the House, Senate, or Congress as a whole. Once reporters have enough quotes and each norm violation fades from memory (often displaced by another), the lingering impression is the impotent silence of the first branch.

Congress can play a collective role in defending the norms and traditions of American democracy. Each chamber, or both together, can pass resolutions stating what our shared norms are and applying these norms to recent events.

There is a positive example of congressional defense of racial equality. After the white nationalist demonstrations and murder of a counterprotester in Charlottesville, Virginia, last summer, Congress passed a joint resolution condemning “the racist violence and domestic terrorist attack” and urging the president to “speak out against hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy.” Because it was a joint resolution, it went to the president for his signature, so Trump had to sign a resolution implicitly rebuking his own words. This resolution had no direct policy consequences, but it provided an option short of impeachment for Congress to express its disapproval of the president’s remarks.

Of course, it would have been preferable if both chambers held roll-call votes on the resolution so that legislators like Rep. Steve King (R-IA) had an opportunity to express their condemnation of racism, or to make clear how far they deviate from the American mainstream, but the resolution was a positive step.

This resolution illustrates a broader point: Through its internal deliberations and collective expressions, Congress can play a significant role in defining and defending democratic norms. The rest of this post suggests norms Congress should defend. First, though, a parliamentary point. Congress can consider three types of resolution:

• Simple resolutions, which are only intended for deliberation by a single chamber
• Concurrent resolutions, which pass both chambers but do not go to the president
• Joint resolutions, which pass both chambers and go to the President for a signature or veto

These resolutions provide a variety of options, allowing each chamber to make its own point, Congress to express a bicameral view, or Congress to force the president to support or oppose statements of norms.

Norms for congressional decision-making

One way Congress can promote democratic norms is by providing an example of appropriate discourse. Indeed, these norms are built into the rules of Congress, so legislators simply have to live by their own rules.

Discourse: Focus on policy, not personalities or motives. Both chambers of Congress require that members address their comments to the chair and not each other, and prohibit insults. However, legislators could go further and ensure that all of their public discourse is focused on trying to craft policies that will improve the country.

Truth: Legislating is an uncertain business. In the best of times, it can be hard to accurately assess a problem, and it’s even harder to predict the effects of policy proposals. In this atmosphere, legislators should be able to at least agree on basic facts, such as official statistics and scientific consensus, and to acknowledge expert projections of predicted policy effects such as Congressional Budget Office budgetary scores. When legislators ignore these shared facts, slander experts, and assert lies and opinions as if they are facts, they provide a poor example to the country.

Transparency: Congressional actions should gain legitimacy when citizens can observe their development and understand the justification for new policies. Several Congress watchers have suggested that transparency can be taken too far, since it may be more difficult for legislators to compromise or shift positions when they are being watched. But the regular process of debating a bill in committee and the floor — with adequate time for discussion and a real opportunity to offer amendments — serves a purpose. When party leaders craft a bill behind closed doors and rush it through both chambers, they invite suspicion of their motives and misunderstanding of their policies.

Defending democratic norms

Congress also has a vital role in promoting trust in the democratic process and respect for the norms of a free society. Some of the norms under attack over the past two years include:

Maintaining free and fair elections

Congress has two obligations. First is to enact policies that ensure (within the limits of federal power) that all elections are free and fair. This would include preventing states from imposing voting restrictions that disadvantage one party more than the other, or one racial group more than others. It also means ensuring that the voting process is legitimate and not tainted by foreign hacking.

Once Congress has ensured that the process is actually fair, it should also strive to preserve faith in elections as legitimate mechanisms. When candidates decry a “rigged” system or insinuate wide-scale illegal voting without evidence, they don’t just harm their opponents; they devalue democratic elections in general and the legitimacy of its outcomes. Congress could pass resolutions denouncing such rhetoric and affirming a shared commitment to the democratic process.

Accepting opposition parties as legitimate

One of the great innovations in American democracy is mass political parties. While the authors of the Constitution did not anticipate or care for political parties, the logical consequence of our political rules is organized competition between teams of candidates and supporters. A fundamental part of this system is accepting the legitimacy of the opposing party. The competing party represents a somewhat different set of principles, policies, and voters, but with ample overlap.

More important, the competing party represents a legitimate strand of American political tradition. As such, it is out of bounds to threaten to jail opposing candidates, to denounce the opposing party as the greatest enemy, and to welcome assistance from foreign governments for your campaign, and Congress has a collective responsibility to make this boundary clear.

Free society

American government is limited and checked by a set of individual rights. Around the globe, politicians have found sympathetic majorities willing to disregard those rights, only to find that they have embraced autocracy in the bargain. It is the responsibility of Congress and its members to defend the free press, religious liberty (not just for evangelical cake bakers), and equality for all under the law — even presidents.

In practice, the first venue for these challenges has been the federal court system, with individual judges bearing the brunt of public outrage.  Congress could pass resolutions affirming the rule of law, and specifically calling for the FBI to continue an impartial and professional investigation into Russian influence in the 2016 campaign.

Oppose corruption and bias

In addition to the above, the Trump presidency has violated several clear norms, laws, and constitutional provisions with little response from the current Congress.

Racism and sexism: Our laws commit us to be a nation where all are treated equally. A Congress that represents all of this diverse nation can clearly articulate a vision of this country’s principles and its future direction, and condemn presidential statements and actions that challenge our shared commitment to equality.

Corruption and nepotism: The Constitution prohibits the president from receiving any “emolument” from a state and prohibits anyone from receiving payments from foreign governments without the consent of Congress. At some point, this may lead to new laws or presidential impeachment. Pending that, Congress has the option of clearly stating its commitment to public service and equal opportunity.

Transparency: There is no law that says presidential candidates must reveal their tax returns, or that the White House must reveal its visitor logs. However, Congress is in a position to insist that these norms be followed, including the right to unilaterally disclose the president’s taxes. 

In an earlier post, I suggested that the best way to improve Congress is not to yearn for the “good ol’ days” but to to imagine the legislature we want and then develop a realistic road map to improvement. This post takes the next step: sketching in broad strokes what we want — and should expect — from the first branch.

1) Pass laws that address the nation’s problems

Agenda setting

Let’s start with the obvious: Our constitutional system gives Congress responsibility to improve the general welfare across a range of issues. This expectation has grown over time as both the national economy and the federal government became more complex.

The first challenge for Congress is deciding which problems need fixing. Agenda setting is the essence of politics, so it’s unlikely there is some purely objective formula for deciding which problems need fixing. But we can reasonably expect that Congress will use objective statistics and real science to identify problems.

One practice Congress has developed to keep its focus on major policy problems is periodic reauthorization: From education to farms to civil rights, major laws have built-in self-destruct clauses (often around five years) that force Congress to revisit and renegotiate its decisions. These reauthorizations push issues onto the congressional agenda.

But this is not a panacea: There are major policy areas without reauthorization deadlines to force action, such as immigration and banking. Congress often grants itself extensions on its deadlines, such as the six-year breakdown in federal highway funding from 2009 to 2015 marked by repeated short-term continuations of the 2005 law.

And if a crisis emerges between authorization deadlines, there is no guarantee that Congress will react. This has been the fate of the Voting Rights Act of 2006, which extended the preclearance requirements for states and localities until 2031. There is now no deadline forcing Congress to respond to the Supreme Court’s decision in Shelby County v. Holder, which struck down the formula used to identify which jurisdictions were subject to preclearance.

Policy design

The second task is to design legislation that effectively solves a problem. This requires actual policy knowledge, but also an understanding of how people will react to a policy. Laws that are intended to help people purchase a good (education, homes) may simply allow sellers to charge higher prices. Citizens may respond to laws prohibiting or taxing some practice (say, drinking alcohol) by developing a black market or using a substitute good.

To this end, many congressional experts have advocated increasing the number of professional staffers in Congress. Congress will struggle to maintain its autonomy from the executive branch and the “swamp” of Washington lobbyists and interest groups unless it has policy experts staffing member offices, committees, and auxiliary agencies like the Congressional Research Service.

Legislative capacity

A third challenge for Congress is keeping up with the demand for new policies. During the early years of Congress, this was not difficult: Legislators had ample time to discuss the narrow set of problems facing the federal government while still producing legislation on time. However, as the range of issues before the federal government and legislators’ appetite for floor speeches increased over time, both chambers of Congress began to hold longer sessions and — particularly in the House — to streamline floor decision-making so the chamber made adequate progress on its pending business.

Decades later, chamber decision-making is still a possible constraint on Congress. At present, Congress could spend more time in the Capitol if necessary. Most weeks, both chambers only hold votes from Tuesday to Thursday, so lack of time per se does not seem to be a constraint on either chamber. The Senate, however, faces time shortages due to its cloture rule. Outside actors often focus on the 60-vote threshold for limiting debate, but the time delays imposed by the rule also slow down the Senate significantly.

2) Represent the American people

Congress’s second core function is to represent the people of the United States. Generally, this means that individual legislators should speak for, and act on behalf of, their constituents. And collectively, Congress should act like an enlightened microcosm of the general public, so that all segments, every industry, each locality has active agents explaining and promoting its interests.

Descriptive representation

One yardstick for representation is whether the membership of Congress “looks” like America in politically relevant ways, such as race and ethnicity, gender, profession, religion, and wealth. If members of Congress explicitly advocate for people who are “like them,” then Congress will better represent all citizens if its membership is a representative sample of the population. More subtly, legislators’ perceptions of policy problems and solutions will be influenced by their life experiences and social interactions.

Constituent interaction

Do legislators talk to their all constituents to learn about their lives and policy needs? Or do they focus on subsets that are especially relevant to their reelections, such as party members, interest group and community leaders, and donors? The narrower the set of constituents who communicate with a legislator and his/her staff, the harder it is for the member of Congress to represent them well. Furthermore, as communication narrows, constituents may be less likely to feel represented.

Constituent interests

Last, but perhaps most important, legislators should represent the policy interests of their constituents. This does not necessarily mean blind obedience to polls, but it does mean identifying and advancing policies that improve the lives of their voters. To the extent that party loyalty or out-of-district donors sway legislators to subvert their own constituents’ interests, legislators represent poorly.

This formulation emphasizes local representation (senator-state, representative-district) because that is how our electoral system is set up. Alternatively, we might expect that Congress as a whole will represent the national interest. One might hope that the aggregation of well-represented local interests will advance the common good, but our system is not designed to ensure this is the case.

3) Preserving the first branch

The authors of our Constitution expected Congress to be the preeminent branch of the federal government, which is why it is the first and longest article. To maintain this status, it needs to do two things well: enact policies to solve national problems in a timely fashion (discussed above) and maintain autonomy from the executive and judicial branches.

Checking the executive branch

Obviously, oversight is a critical component of Congress’s job. This includes regular hearings to query administrators about their agencies and investigations of possible wrongdoing. Witnesses should be compelled to provide relevant information without stonewalling. And, ideally, congressional oversight would not vary with the partisan affiliation of the president because legislators share an interest in the integrity of the executive branch.

When writing laws, Congress necessarily delegates some discretion to the executive branch over how to interpret and enforce laws. In doing so, Congress should try to minimize delegation and not use it as a tactic to offload difficult political choices to another branch. And Congress should readily correct agency actions as necessary.

Checking the judicial branch

One of the Supreme Court’s advantage is judicial review, the power to make a final decision on the constitutionality of congressional laws. The other is congressional lethargy; like agencies, the courts have latitude to interpret statutes subject to congressional correction.

Congress has multiple options to respond to court encroachment, including constitutional amendments, new statutes, review of appointments, and regulating court structure and jurisdiction. Appointments receive a great deal of attention in the Senate, but it is worth noting that Congress can also respond to unfavorable decisions by removing issues from the purview of the courts.

Although there are several gun control measures, such as universal background checks, that enjoy broad support among the general public, Congress has not enacted laws in the wake of mass shootings from Newtown to Parkland. Nor it is clear that the mass murder of 17 people on Valentine’s Day will lead to an ambitious response from Congress.

In theory, this policy stagnation in the face of widespread terror and death should be an electoral issue, with the minority party holding the majority party accountable for inaction. In practice, the Democratic Party has been reluctant to embrace gun control as a core part of its agenda, believing that gun control costs more votes than it gains in more rural districts where Democratic candidates would be competitive otherwise.

Sean McElwee argues that this is shortsighted, citing research by David Broockman and Chris Skovron showing that state legislative candidates drastically underestimate the high level of support for gun control (among other issues) in their districts.

Is this also true of the US Congress? Do national polls for gun-related proposals mask so much diversity across districts and states that gun control is a losing issue for Democrats in swing districts?

To answer this, I collected polling responses for four gun policy questions administered by the Consortium for Congressional Election Studies (CCES) in 2016. Unlike many national polls, the CCES strives to collect a sample from each congressional district. Actual samples from these questions ranged from 60 to 348 respondents, with samples of 100 to 200 in most districts. Obviously, polls from 2016 do not include any lasting shifts in public opinion resulting from the Parkland shooting and thus might understate public support for gun control. However, they do illustrate the diversity of opinion about gun control across parties and districts.

District partisanship and gun control

First, here is the percentage of respondents supporting an assault rifle ban in each House district for Democrats (blue circles) and Republicans (red triangles), with Donald Trump’s share of the two-party vote (i.e., his percentage of all Trump and Clinton votes, ignoring votes for third-party candidates) on the x-axis.

There are two obvious patterns. First, citizens support an assault rifle ban across most districts (389 of 435) within each party, so if every House Republican sided with public opinion in his or her district, the House GOP would schedule a vote on an assault weapons ban and most Republicans would vote for it.

Second, there is a lot of variation across districts with the same partisan leaning (measured in Trump’s vote share). A district that split 50-50 between Trump and Clinton might have a majority opposed to the ban, or might have 90 percent support for a ban. In this sense, support for gun control is weakly correlated with district partisanship, but there is a lot of local variation.

For comparison, the next figure shows the percentage of constituents who support proposals to “make it easier for people to obtain concealed carry permits.” Since this is a gun deregulation measure, we expect a positive relationship between Trump support and looser concealed carry laws. 

Clearly, this policy proposal is unpopular in districts represented by both parties. Indeed, this proposal polled above 50 percent approval in just 61 of 435 districts. And, again, it is weakly correlated with each district’s presidential voting patterns, with a range of around 30 percent for most levels of presidential vote.

Last December, the US House passed a bill promoting one of these two policies, 231-198. If you guessed it was the popular-across-the-country assault rifle ban, well, I have a surprise for you. No, in the wake of the October mass shooting in Las Vegas, the House passed a bill allowing citizens with a concealed weapons permit in one state to carry a concealed weapon in a different state. It also sought to improve the national background check system and called for a study on bump stocks (devices that allow semiautomatic weapons to function as fully automatic ones), but the base bill was the concealed carry bill that had been waiting to come up until there was a lull in mass shootings.

Marginal members and gun control

The next three charts break House members into four groups:

• Clinton-Democratic — a district with a Democratic incumbent and Hillary Clinton received most of the two-party presidential vote (181 members)
• Trump-Democratic — a district with a Democratic incumbent and Donald Trump received most of the two-party presidential vote (12 members)
• Clinton-Republican — a district with a Republican incumbent and Hillary Clinton received most of the two-party presidential vote (23 members)
• Trump-Republican — a district with a Republican incumbent and Donald Trump received most of the two-party presidential vote (215 members)

Universal background checks

Consistent with national polls, there is universal support for universal background checks. In particular, districts represented by Republicans but won by Clinton are slightly more likely to approve of this reform than any other subgroup.

The same pattern recurs on assault weapons ban and expanding concealed carry permits: districts that elected Republicans but voted for Clinton are actually more supportive of gun control than other subgroups, and just as skeptical of gun deregulation as other Clinton districts.

Assault rifle ban

Make it easier to obtain concealed carry permits

Should Democrats campaign on gun control?

Not necessarily. The popularity of a single issue position does not necessarily translate into votes in the next campaign. Gun control is an effective campaign issue to the extent that voters supportive of gun control prioritize it, either by making support for gun control a necessary condition for their vote or by making it the decisive issue when choosing between candidates.

In other words, when gun control supporters begin to vote against (or abstain from voting for) candidates they would otherwise support on the basis of their positions on guns, then the general popularity of gun control will translate into electoral power. From this perspective, the test for the #NeverAgain movement and other gun control initiatives is not to change minds about gun control but to make the issue salient when people go the polls in November.

This week is supposed to be “Immigration Week” in the Senate, when Majority Leader Mitch McConnell makes good on his promise to allow a fair, open debate.

President Trump campaigned on building a “wall” on the southern border and then endorsed reductions in legal immigration (although not the H-2B workers employed by his own Mar-a-Lago club). Democrats refused these proposals, so Trump took a “hostage” by canceling the executive branch’s Deferred Action for Childhood Arrivals (DACA) program. Notably, Trump’s announcement that he was canceling the program (which Congress had never authorized) was paired with a call for Congress to finally pass a law granting legal status for undocumented residents who were brought to the US as children.

Of course, Trump insisted that any law to provide for these DREAMers, as they’re known, would have to include his immigration proposals as well, including reducing immigration from “shithole” countries.

DACA makes a bad hostage, however. On the one hand, the kidnappers need to extract a huge ransom. A non-trivial portion of Trump voters and congressional Republicans object to any legal status for anyone who came or stayed without documentation, so any DACA bill will be denounced as granting “amnesty.” This is why the White House’s ransom demand — a border wall, reduced diversity and family visas — is extremely high, and negotiations broke down in February.

On the other hand, killing DACA is bad politics. Allowing DREAMers to stay is supported by 70 to 80 percent in various polls, while Trump’s demands — including the border wall — poll much worse. Every day that the focus is on DREAMers who broke no laws (as adults) and, in many cases, have worked hard to join and contribute to American society is a day that Trump fails to convince Americans that immigrants are criminals.

This is the background for the “free-for-all debate” that the Senate is supposed to be having this week, in which senators offer amendments to an empty bill. As of Wednesday at noon, this wild, raucous deliberation has yielded exactly zero votes on amendments. The reasons are a great illustration of what is wrong with the Senate.

1) All senators are equal, but McConnell is the boss

This bill nicely illustrates how the majority and minority party leaders of the Senate are increasingly involved in structuring the terms of debate. There are two strategies that highlight the role of party leaders.

Unanimous consent agreements: As it turns out, “freewheeling debate” means “do what you want as long as you conform to agreements negotiated between party leaders and accepted by all 100 senators.” Instead of actually allowing any senator to offer any amendment, the Senate is stalled while McConnell and Minority Leader Chuck Schumer negotiate which amendments will be allowed, and in which order.

60-vote thresholds: Senate rules only require a simple majority to amend a bill. But Senate GOP leaders have announced that any amendment to the bill must garner 60 votes to win. This threshold is not required by the rules and can only be imposed if it is part of a unanimous consent agreement. Of course, that means that any senator interested in actually passing something has to agree to this ground rule or the Senate will go nowhere.

2) Is the Senate making policy or writing campaign ads?

McConnell’s opening proposal to Schumer is that the Senate would vote on a Pat Toomey (R-PA) amendment to punish sanctuary cities, while the Democrats could hold a vote on any proposal they choose. The Toomey amendment is a classic example of what Frances Lee calls a message vote: a vote used to reinforce a partisan contrast rather than change policy for the better.

Assuming Democrats vote down the Toomey amendment, Senate Republicans and the National Republican Senate Committee would communicate their outrage to the world via tweet and press release in the short term. And come the fall, Republican candidates and the NRSC could run television ads against Democratic senators running for reelection in red states.

Of course, McConnell’s offer is fair in that Democrats could bring up their own message amendment and get Republicans on the record. Most interestingly, Democrats could bring up their preferred DACA/DREAMer legislation as a standalone proposal and force Republicans to either vote against a popular policy or vote with the Democrats and allow a simple DACA plan to become the first — and possibly only — policy in the immigration bill.

Schumer, however, would prefer to eschew the messaging and only consider comprehensive proposals like the bipartisan McCain-Coons or Graham-Durbin plans, or the Trump proposal introduced by Sen. Chuck Grassley (R-IA). Maybe Schumer prefers these proposals because the Democrats are more inclined to focus on realistic proposals, but it could also be that Democrats fear a round of messaging amendments more than the Republicans because they have more incumbents at risk in 2018 than the GOP.

3) Sequence matters

The McConnell-Schumer negotiations highlight the importance of sequence. Schumer wants to hold the first vote on the Trump plan, presumably so that the Democrats (and perhaps a few “no amnesty” Republicans) can vote it down and then focus on passing a less restrictionist proposal.

McConnell, on the other hand, would prefer to hold the Trump-Grassley proposal until the very end and then propose it as the only viable option (all others being defeated already) or as the alternative to any amendments already adopted. Senate expert James Wallner (whom you should follow on Twitter!) explains:

At this point, it is not clear how events will unfold. But the sheer difficulty of having any debate at all illustrates why the Senate has ground to a halt. It is not simply the supermajority thresholds that stall the chamber; it is the combination of supermajority rule and the practice of negotiating the agenda between party leaders who are trying to balance their parties’ electoral interests (force votes on their own message issues, avoid votes that endanger members in electoral jeopardy) with senators’ desire to actually move the country forward.

However, it seems quite possible that at some point, the Democrats may conclude that they are better off calling President Trump’s bluff and refusing to negotiate with kidnappers. It is not clear whether Trump would actually proceed with deporting current DACA recipients, and if the Democrats gain a majority in the House — and even the Senate — in the 2018 elections, they will be in a much stronger position to set the agenda and decide which immigration package makes it to the president’s desk.