Democrats' leverage in Congress may be less than people think

Much has been made of President Trump’s reliance on executive orders instead of going through the legislative process for much of his agenda. This even when legislation would seem to be required for priorities like tariffs and agency “downsizings.”

A comparison is sometimes made to FDR who, in contrast, rammed numerous legislative initiatives through Congress in his first 100 days on the way to radically restructuring the role of federal government. Setting aside the fact that FDR also used executive orders liberally,¹ Trump’s legislative record, while perhaps not Rooseveltian, is actually pretty impressive.

The second term legislative record
Everyone knows about the big, beautiful bill passed earlier this year. It was multi-faceted — much more than just an extension of the 2017 tax cuts. It included other tax changes involving the state and local deduction, Social Security, and tips, and big boosts were given to budgets at DHS and DOD.² Not only that, Medicaid and food stamp requirements were changed in such a way that will likely result in substantial savings due to reduced coverage, and clean energy incentives were phased out. Simply put, the bill was a major legislative accomplishment, and really many bills rolled into one.

But that’s not all. The Senate has rubber-stamped Trump’s Cabinet picks and other high-level administration appointments, and is currently working through federal judge slots, with five approved to date with many, many more likely to come.

What distinguishes all of the above is that they were done by bypassing Senate rules that effectively mandate a 60-vote requirement for most measures. Tax cuts and some forms of direct spending (the big, beautiful bill) can be passed through the reconciliation process by simple majority, and since 2013³ nominations have similarly been fast-tracked by whim of the majority.

Everyone gets that the House, with its longstanding simple majority requirement for most everything, is able to pass the president’s agenda items (sometimes after pro-forma negotiations with certain members of the Freedom Caucus). The Senate is the tougher nut to crack.

To be clear, 60 votes is not technically a requirement; it’s a choice. Senators choose to maintain the practice for the broad sweep of legislation involving authorizing programs and agencies, as well as appropriations. Why do they do it? The custom gives an individual senator a great deal of power, specifically the power to hold up legislation, in practice sometimes indefinitely, until leadership negotiates with him or her.

Is the 60-vote requirement here to stay?
Nothing stops the Republican-controlled Senate from doing away with the 60-vote requirement if they can muster up 50 votes⁴, just as nothing stopped Democrats from ending the requirement for most nominations. It’s often forgotten that Democrats came only two votes short (Manchin and Sinema) of ending the requirement once and for all to enable passage of their ambitious voting rights agenda in early 2022.

When it comes to considering the value of maintaining the 60-vote status quo, there are two competing impulses at play.

As noted above, the ability each and every senator has to stop action on agency authorizations and appropriations (placing a “hold” on a given measure) is what makes being in the Senate worthwhile. Given Senate customs, in order to move most legislation at faster than a snail’s pace every senator has to agree to move forward. For those of you who aren’t Congress junkies: you read that right — every single one must go along. In practice this gives senators the ability to add provisions, sometimes unrelated to the measure under consideration, or at least push for votes on amendments, as a condition for ending a hold.

A classic example was then-Sen. Dianne Feinstein’s ability to delay for months consideration of the FDA reauthorization in 2017 — a bill she and most senators of both parties by and large supported — in order to negotiate specific changes on provisions affecting polychlorinated biphenyls (PCBs). Eventually she was satisfied and the bill moved forward with support from her and most other senators.

If the Senate operated under simple majority rules like the House this kind of leverage would all but disappear for most members. There would still be more avenues for obstruction than in the lower chamber, but the majority party could in relatively short order get what it wants.

All other things being equal, a majority of senators including many Republicans would like to keep live the power for individuals to obstruct proceedings. But all other things aren’t equal now. There’s another impulse at play called “political self-preservation.” Loyalty to the president appears to be a big part of that.

When the rubber might hit the road
Were the Supreme Court to rule against the president’s edicts on tariffs, some deportations, and impoundment (to name a few biggies), wouldn’t Trump begin a campaign to pressure Republican senators to end the filibuster and enable legislation to achieve his ends? Surely he would. Could the rank-and-file members resist such a campaign? Well, that’s the question.

It would take only four GOP senators, together with all 47 Democrats, for the 60-vote requirement to be maintained. Of course all it would have taken were four senators to torpedo the Kennedy and Hegseth nominations. Didn’t happen.

There would be another interesting twist to any debate over whether to end the filibuster. Consider that in ‘22 Democrats nearly undid the practice in order to press forward with electoral reform and other priorities that couldn’t attract GOP support, even though everyone understood that the party’s hold on the majority was tremendously precarious. Back then it was easy to imagine a day in the near future when the shoe would be on the other foot, with the 60 vote requirement being absolutely essential to a Democratic minority having any legislative leverage. A scenario which of course came to pass with the 2024 election.

Republican senators in favor of ending the filibuster could argue that their electoral advantage in the Senate is solid — the chamber is very likely to remain Republican-controlled for the foreseeable future. Why should we let Democrats obstruct the MAGA agenda, they might ask, when the shoe is unlikely to be on the other foot for many years?

Here’s the choice Republicans would have — and a dilemma Democrats now have
So there may come a day in the near future when Republican senators will face a very consequential choice between, on the one hand, maintaining their individual leverage when they have views that aren’t perfectly in synch with the party, and, on the other, supporting their president whose agenda has been thwarted by the (unelected) judiciary. Will four Republican senators really stand up for the filibuster against an administration unafraid to play hardball in intra-party politics? I wouldn’t count on it.

The situation for Democrats today, then, is to enjoy your leverage while you have it or … be very careful how you use it.

1. Perhaps the most notable among them established industrial policy for various major industries. Sound familiar?

2. It’s still DOD at this writing.

3. Harry Reid’s Democrats ended the filibuster for all nominations save for the Supreme Court in 2013. Republicans made the change for the Supreme Court after Trump was first elected. This article by venerated political scientist David Mayhew gets into the prospects for the future of the filibuster.

4. Throw in JD Vance ending a deadlock and, voilà, it’s done!