McConnell seeks to protect filibuster in talks with Schumer

Senate leaders Chuck Schumer and Mitch McConnell have yet to strike an agreement on how to run an evenly split Senate. And McConnell is driving a hard bargain.

In a letter to colleagues, McConnell indicated he wants a commitment from Schumer (D-N.Y.) to preserve the legislative filibuster as part of their agreement governing the rules of the 50-50 Senate. He said while he is taking his cues from the last split Senate in 2001, he also believes "we need to also address the threats to the legislative filibuster."

"The time is ripe to address this issue head on before the passions of one particular issue or another arise," McConnell said. "A delay in reaching an agreement could delay the final determination of committee assignments but it is important to maintain the status quo on the legislative filibuster."

The two leaders met for about a half-hour on Tuesday in McConnell's office, during his last day as majority leader. There was no apparent resolution afterward; Schumer told reporters that "we discussed a whole lot of issues." Schumer declined to comment on the future of the legislative filibuster, but a spokesperson threw cold water on addressing it in an organizing resolution.

"Leader Schumer expressed that the fairest, most reasonable and easiest path forward is to adopt the 2001 bipartisan agreement without extraneous changes from either side," the spokesperson said. The spokesperson said that Schumer and McConnell had made progress on confirming Biden's nominees and holding a "fair impeachment trial" for outgoing President Donald Trump.

McConnell’s spokesman Doug Andres later Tuesday night said in a statement that “McConnell expressed his long-held view that the crucial, longstanding, and bipartisan Senate rules concerning the legislative filibuster remain intact, specifically during the power share for the next two years. Discussions on all aspects of the power-sharing agreement will continue over the next several days.”

It could be days before there's a resolution between Schumer and McConnell on how the Senate will operate. And a protracted standoff will result in a bizarre Senate stasis where it will take agreement of 100 senators to do much of anything, particularly confirming Biden's Cabinet.

Republicans will even still control majorities on some committees, since new senators haven't been added to those panels and the two leaders haven't hammered out committee ratios. All that could change with unanimous consent from senators, or an agreement from the two leaders.

In his letter to GOP colleagues, McConnell said he hoped the House would wait until at least Thursday to send the impeachment articles for Trump's Senate trial to allow the inauguration to take place on Wednesday without the trial clouding it. He also said his party will resume in-person party lunches next week. The letter was first reported by National Review.

Schumer will formally become majority leader on Wednesday afternoon, wielding an effective 51-50 majority after his new Democratic senators are sworn in and Kamala Harris becomes vice president and Senate tie-breaker, according to a source familiar with the schedule.

Schumer told reporters earlier on Tuesday that “we hope we can come to an agreement" with McConnell. McConnell is currently the majority leader and will still have major sway over incoming President Joe Biden’s agenda, particularly as long as the legislative filibuster is around.

“They’re both pragmatists in that they have to get this done for us to move forward. I think they will. I don’t get the sense McConnell is going to hold out for weeks or anything like that,” said Sen. Shelley Moore Capito (R-W.Va.), who attends GOP leadership meetings with McConnell.

“Given what we’ve been through as a country: a pandemic, and an attempted coup, this relationship simply has to work,” added Sen. Brian Schatz (D-Hawaii), who helps run the party’s whip operation. “The normal political calculus about maximizing advantage in the next election has to be set aside.”

But the filibuster could be a big challenge. Schumer would be giving away much of his leverage early on if he bowed to McConnell's hopes of enshrining official protections for the supermajority requirement.

Currently most legislation requires 60 votes, meaning at least 10 Republicans would have to work with Democrats on most bills. If Democrats grow frustrated with a McConnell-led blockade, Schumer could in theory get all his members to get rid of that rule with a vice presidential tie-break.

Some Democrats have said they will not vote to change the rules, though Republicans may want an ironclad commitment. Democrats would view any agreement on preserving the filibuster as a departure from past precedent of operating an evenly split Senate.

Schumer (D-N.Y.) and McConnell (R-Ky.) are largely expected to run the Senate in a similar fashion to how former Senate leaders Trent Lott and Tom Daschle devised the last 50-50 blueprint in 2001. That allowed for committee memberships to be evenly split, with bills that receive tied votes advancing to the floor; the party controlling the White House would still set the Senate schedule and determine which legislation would get taken up.

But there’s so much to be negotiated this time around beyond just the operations of the Senate. Among the unanswered questions: When will President Donald Trump’s impeachment trial start and how long will it go?

Speaker Nancy Pelosi and other top Democrats have been tight lipped about planning for the trial, including when they plan to transit the impeachment article to the Senate. Democratic aides have said they don’t expect an announcement until Thursday at the earliest, not wanting to distract from the inauguration on Wednesday. Democrats also said trial timing is determined more by the power sharing agreement Schumer and McConnell reach than when the House transmits the article.

It's also unclear whether Biden gets any of his Cabinet nominees confirmed before or during the trial, though Sen. Josh Hawley (R-Mo.) said he will prevent Biden's Homeland Security chief from being confirmed on Wednesday. And Democrats are also eager to learn whether Republicans will work with them on a Covid-19 relief package before they decide to move unilaterally.

“Obviously there’s a lot of suspicion and doubt on our side given the history of McConnell in the minority under the Obama administration. A lot of reasons for skepticism and cynicism,” said Sen. Richard Blumenthal (D-Conn.). “It should be a reset moment for all of us. Not just Schumer and McConnell.”

Rank-and-file senators were largely in the dark on how close — or far — the two leaders are from cutting a deal on all those critical items. Schumer said bluntly: “We’ve got three things we’ve got to do quickly, impeachment, nomination, Covid.”

In a Senate speech on Tuesday afternoon, McConnell said the "marching orders from the American people are clear. We're to have a robust discussion and seek common ground."

And senators are eager to see how that all shakes out at a historic time, with an outgoing president’s impeachment trial set to start amid a devastating pandemic and an evenly divided upper chamber.

“It’s gonna be interesting. We’ll just have to wait and see. People are excited about getting going,” said Sen. Tommy Tuberville (R-Ala.), who was among the eight Republicans who objected to certification of Biden’s Electoral College win in two states hours after the pro-Trump riot. “Everybody’s kind of excited about putting it all behind us and going forward.”

Heather Caygle and Marianne LeVine contributed to this report.