On Thursday afternoon, reporters asked Illinois Sen. Dick Durbin if he could tell them who was chairman of the Senate Judiciary Committee. Was it Sen. Lindsey Graham, who had chaired it in the last Congress? Was it Sen. Chuck Grassley, who’s reclaiming his senior Republican status on the committee this Congress? Or was it Durbin, who’s supposed to be the new chairman under the new Democratic majority?
Durbin told reporters he wasn’t sure. “We know it could be one of three people,” he said.
The Senate is weird right now. Democrats took the majority at 4:30 p.m. on Jan. 20, when new Democratic Sens. Jon Ossoff, Raphael Warnock, and Alex Padilla were sworn in, giving them 50 senators plus the tiebreaking vote of Vice President Kamala Harris. Chuck Schumer is majority leader, and he’s setting the floor schedule. Yet the committees are still technically in Republican hands. During Pete Buttigieg’s confirmation hearing for secretary of transportation on Thursday, for example, Mississippi Sen. Roger Wicker, a Republican, gaveled in the proceedings. It was awkward.
At issue is the as-yet-unpassed organizing resolution, a typically uncontroversial measure often passed by unanimous consent at the start of a new Congress, which formalizes committee membership and ratios. Since Senate membership is 50-50, this organizing resolution is being referred to alternately as a “power-sharing” resolution.
Schumer and Republican leader Mitch McConnell are negotiating their “power-sharing” resolution off a framework from 2001, the last time the Senate was split 50-50. Under that plan, Democrats would be the majority and take over committee chairmanships, but committees would be equally divided between the two parties. If legislation and nominations receive tie votes in committee, the Democrats could still bring them to the floor.
McConnell, though, has dug in trying to secure another commitment in the organizing resolution: the preservation of the legislative filibuster. While Senate Democrats don’t yet have the votes they need to eliminate the filibuster, McConnell, as he wrote to his caucus a few days ago, believes “the time is ripe to address this issue head on before the passions of one particular issue or another arise.” McConnell’s leverage in forcing the question of the filibuster is, well, the use of the filibuster: The organizing resolution needs 60 votes.
Maybe McConnell is playing one of his four-dimensional parliamentary chess games here, and his tactical genius will reveal itself in the end. But so far, this play isn’t really working out for him.
It’s important to recognize, first, that whatever McConnell is seeking is ultimately unenforceable. What does he want, and what would he accept? A written pledge from Schumer not to blow up the legislative filibuster? A gentlemen’s agreement announced in floor speeches? A rule change? The requirement of a three-fifths threshold to end debate is already very much in writing as part of the Senate’s standing rules. But the mechanism that Democrats would use to blow up the filibuster if they chose to do so—the so-called nuclear option—is one in which a simple majority votes to override a standing rule, thus setting a new precedent.
“Once a majority is prepared (i.e., it has 50 votes) to pay the political costs of nuking the legislative filibuster, an agreement to preserve the current 60-vote requirement to cut off debate on legislative measures can’t be enforced,” Sarah Binder, a political science professor at George Washington University, told me via email. “Bottom line: Senate rules can’t protect themselves from an ambitious, cohesive majority.”
The best McConnell could do is get Democrats to go on the record for preserving the legislative filibuster and charge them with high hypocrisy if they change their minds. No political figure has more clearly demonstrated how dismissible such a charge would be in the pursuit of raw power, though, than Mitch McConnell.
His strategy for securing the symbolic commitment hasn’t shown any signs of panning out, either. Theoretically, he could get some Democratic moderates, who are eager to assume their chairmanships, and who may appreciate how the filibuster protects them from tough votes, to turn on Schumer and push him to accept McConnell’s demand.
That’s not happening. Schumer’s answer to McConnell over the last few days has been a strict “no,” and his caucus is backing him up. Democrats are offended that McConnell is trying, right off the bat, to tell them how to run their majority and to table one of their weapons. He cannot be rewarded.
“Chuck has the right to do that, he’s the leader,” West Virginia Sen. Joe Manchin told reporters Wednesday.
“Chuck Schumer is the majority leader and he should be treated like majority leader,” Montana Sen. Jon Tester told Politico. “We can get shit done around here and we ought to be focused on getting stuff done. If we don’t, the inmates are going to be running this ship.”
The endgame here has not yet come into view. Both Schumer and McConnell stuck to their positions in their floor remarks Friday morning. “We’ll continue to request that our Democratic colleagues reaffirm this standing rule of the Senate, which they have been happy to use themselves [while in the minority],” McConnell said. Schumer, meanwhile, was firm: “Leader McConnell’s proposal is unacceptable, and it won’t be accepted. And the Republican leader knew that when he first proposed it.”
That the Senate appears headed into a schedule-clearing impeachment trial next week will give leaders a little more time to resolve the standoff without obstructing too much Senate business. But what is that resolution? McConnell folds? Schumer reads a well-caveated statement about the filibuster on the floor? The three quasi-leaders of the Judiciary Committee take to the Octagon to determine the one “true” chairman by combat?
There is one way for Democrats to resolve this on their own if they so choose. Moderates like Manchin or Tester or Arizona Sen. Kyrsten Sinema could get so frustrated with McConnell impeding their majority with extraneous demands that it radicalizes them procedurally, and they agree to utilize the “nuclear option” to blow up the filibuster on organizing resolutions. That would be the beginning of the end for the legislative filibuster. Senate Democrats aren’t there yet. But they could get there before they agree to let Mitch McConnell tell them how to run their majority.