Democrats swept Congress on Tuesday, flipping Senate seats in Iowa, Kansas, Ohio, Maine, North Carolina, South Carolina, and Texas, and taking the House by a margin wide enough that Speaker Mike Johnson told his staff he would not stay on as Republican leader. By Wednesday morning, Vice President JD Vance had posted a long explanation on 𝕏. "The reason we lost is the war," he wrote. "The president himself said so last night." He went further, daring anyone who thought the Iran war was worth it to argue that "losing the Senate for the next 6 years was worth it." That candor has made him a lightning rod, and a familiar complaint is back in circulation on the right. If Vance saw the cliff coming, the argument runs, why didn't he walk into the chamber months ago, take the gavel, fire Parliamentarian Elizabeth MacDonough, kill the filibuster and pass the SAVE America Act himself?
The frustration is fair. The theory behind it is not, and it is even less workable now than it was in the spring. The Republican Senate that exists today expires on January 3, 2027, when the 20th Amendment seats the new Congress and hands the majority to Chuck Schumer’s party. Whatever conservatives want from this Senate has to happen in the lame duck, and the lame duck runs on the same arithmetic that sank the takeover idea the first time.
Start with the Constitution, because that’s where the takeover fantasy goes to die. Article I, Section 3 says the Vice President “shall be President of the Senate, but shall have no Vote, unless they be equally divided.” That is it, period. Everything else he does in the chamber comes from rules the Senate writes for itself under Article I, Section 5, which lets each house “determine the Rules of its Proceedings.” Elbridge Gerry and George Mason fought the clause at the Convention, with Mason warning that “the legislative and executive are hereby mixed and incorporated together.” It passed ten days before adjournment, 8 states to 2 with 1 abstaining, and it passed only because the job was kept small.
The chair’s limits show up most clearly in the fight conservatives care about most. MacDonough has held her post since 2012, when Harry Reid installed her, and she has carved up Republican priorities across two Trump terms. She serves at the pleasure of the Majority Leader, on the staff of the Secretary of the Senate. Robert Byrd fired Robert Dove in 1987, and Trent Lott fired him again in 2001 after Dove’s rulings got in the way of the Bush tax cuts. Dick Cheney was Vice President in 2001 and had nothing to do with it. If MacDonough was going to go, John Thune had to order it, and he never did.
Here the 𝕏 version of the story skips a step. The Parliamentarian advises; the presiding officer rules. William Hoagland of the Bipartisan Policy Center put it best: “She advises who’s sitting in the chair. She doesn’t rule.” So yes, Vance could sit down and rule against her advice. But Senate Rule XX makes every ruling of the chair “subject to an appeal to the Senate,” and a simple majority decides the appeal. Nelson Rockefeller beat Parliamentarian Floyd Riddick in 1975 because the Senate backed him and tabled the appeals. Kamala Harris, sitting over a 50-50 Senate in March 2021, refused 24 House progressives who wanted her to overrule MacDonough on a $15 minimum wage, because Joe Manchin and Kyrsten Sinema would have overturned her within the hour. The chair has precisely as much power as 51 senators lend it, and not a vote more.
Vance has said all of this himself, in plain English, long before Tuesday. In a September 29 interview with Vince Coglianese, he admitted that he and President Trump had “war-gamed” the whole maneuver. “Could I assume the chair of the Senate and fire the parliamentarian? Yes, I could,” he said. Then he played it out: “Four or five Republicans, at least, and maybe ten Republicans, they join the Democrats to then overrule the new chair.” He named the four: Mitch McConnell, John Cornyn, Thom Tillis and Lisa Murkowski. Forty-seven Democrats plus those four make 51, and at 51 the Vice President cannot break a tie because there is no tie. “You have a fun little ceremonial battle that you lose,” he said. The man being blamed for not seizing the Senate is the same man who did the math in public and explained why it fails.
Nothing about Tuesday improved that math for the next 59 days. The lame-duck Senate is still 53-47. McConnell and Tillis are retiring, and Cornyn lost his primary, which means three of Vance’s four have no voters left to answer to and no reason to change their minds now. Recognition is no better. Rule XIX requires the chair to recognize the first senator who seeks the floor, and the one exception, set by John Nance Garner in 1937, gives priority to the Majority Leader, not the Vice President. A Vance takeover in December would be a televised loss followed by a Democratic victory lap, and the left would spend January 3 dancing on the result.
The nuclear option never ran through the chair either. Reid used it in November 2013 for most nominations, and McConnell extended it to the Supreme Court in April 2017. Each time the Majority Leader raised the point of order, lost the ruling, appealed, and won on a party-line vote. Thune has said flatly that “there aren’t anywhere close to the votes, not even close, to nuking the filibuster,” and Collins, Tillis, Murkowski, and McConnell have all said publicly they oppose it.
So stop yelling at the Vice President. The man who still holds the levers for the next 59 days is the Majority Leader, and conservatives should spend every one of those days on him. Thune has three moves left, and each of them is his to make.
The first is nominations. The Hill reports that more than 30 administration nominees have cleared committee and are waiting only for a floor vote, with a batch of judicial nominees expected in the lame duck as well. Under Senate rules, nominations not confirmed before this Congress ends go back to the President, and a Democratic Senate is not going to confirm them. Nominations now need only a simple majority, which Reid himself made possible, and Republicans have 53 seats until January 3. Thune should keep the Senate in session, file cloture in batches, and confirm every one of them before Christmas.
The second move is the one Thune has refused all year. If the Senate will not confirm the President’s people, it can get out of the way and let him appoint them. Article II, Section 2 lets the President fill vacancies “during the Recess of the Senate.” In NLRB v. Noel Canning in 2014, the Supreme Court held that a recess of fewer than 10 days is presumptively too short to count, and that pro forma sessions, where the Senate gavels in for a few seconds every three days, count as sessions that block the clock. Thune knows the trick well, because he used it in August, when the Senate left town for more than a month and met only in pro forma sessions on dates like August 10 and August 13, keeping recess appointments off the table. He can stop doing that. If he adjourns for more than 10 days with no pro forma sessions, the President can install his nominees until the end of the next session. Article II, Section 3 also gives the President the power to adjourn Congress when the House and Senate disagree on the time of adjournment, a power no President has ever used, but one that exists precisely for a Congress that will neither act nor leave.
The third move is the SAVE America Act, the photo ID and proof-of-citizenship bill Republicans have chased all year. It failed under the 60-vote rule, and Thune rejected Trump’s call to keep the Senate in town in August to grind it through. There is a way to pass it with a simple majority without abolishing anything. Rule XIX says no senator “shall speak more than twice upon any one question in debate on the same legislative day.” A legislative day lasts until the Senate adjourns, and a recess does not end it, so a majority that refuses to adjourn can keep the whole fight inside one very long day. Every Democrat who wants to filibuster has to stand and talk, and once each has used his two speeches, debate ends, and the presiding officer can call the vote.
Senator Ron Johnson has pointed out the catch honestly: a 1986 precedent pushed by Robert Byrd means offering motions and amendments does not count as a speech, so Democrats can stall with paperwork instead of stamina. That is a real obstacle, and it is exactly the kind of obstacle a determined Majority Leader fights through with rulings from the chair backed by 51 votes, the same 51 votes Vance was missing. It would mean nights, weekends, and the holiday calendar; it would mean Democrats explaining on live television why Americans should not have to show identification to vote, and it would mean the Senate actually working for once, which is definately not the worst thing that could happen to Republicans who just lost an election in part because voters thought Washington wasn’t fighting for them. If it fails, Democrats own the failure on the record. If it works, this Republican Senate's last act is the law Trump wanted most.
Vance will be argued about for a long time, and his post has given his critics plenty of material. But the argument that he could have rescued the Senate from the chair was wrong in May and is wrong now, because the Founders built a Senate that answers to 51 votes and to its own leader. That leader is John Thune, and for 59 more days the votes are still his. Confirm the nominees. Or recess and let the President appoint them. And make the Democrats talk.
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Alexander Muse is a Fellow at the John Milton Freedom Foundation and publishes political analysis at amuseonx.com. Readers who identify errors are invited to contact me directly. Each op-ed is edited for grammar and clarity using AI in partnership with Grammarly. Data provided in a sponsored partnership with Polymarket.
John Thune has stalled this entire time and won't do SH__. He needs to be a Democrat or removed from his positionperiod.
Why would you think Thune would do anything now after doing nothing for the last 2 years?