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+McConnell didn’t get all he’d hoped, but got some Democrats to reaffirm their commitment to the filibuster. +

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+Minority Leader Mitch McConnell is no longer holding up the Senate organizing resolution — after two Democrats confirmed that they won’t be blowing up the legislative filibuster any time soon. +

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+In the past few weeks, Senate Majority Leader Chuck Schumer and McConnell have been working to negotiate the organizing resolution — which governs committee membership and funding allocation — in the 50-50 Senate. The leaders had previously been at an impasse because McConnell was demanding that Democrats commit to keeping the legislative filibuster intact as part of the resolution, something Schumer was unwilling to do, since it would reduce the party’s leverage in negotiations over future legislation. +

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+Since the organizing resolution could be filibustered — and would need 60 votes to pass — McConnell’s opposition effectively allowed him to block the measure from advancing. +

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+And while he didn’t get the changes to the organizing resolution he wanted, McConnell’s approach still worked in a way: Amid the impasse over the agreement, two Senate Democrats — Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) — publicly restated that they would not vote to eliminate the filibuster. Without their backing, Democrats simply won’t have the numbers to do a rules change: All 50 members of the caucus would need to get behind a change to the filibuster for it to happen. (It’s worth noting that this position is consistent with stances both lawmakers have vocalized before.) +

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+It’s because of Sinema and Manchin’s statements that McConnell now says he’s satisfied and willing to move forward with the organizing measure, after causing some annoying delays. Without this resolution, Democrats have been unable to formally take over committee chair positions, and new members have yet to be seated in committees. Republicans also retained the ability to oversee consideration of nominees and other policy priorities. +

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+“Today two Democratic Senators publicly confirmed they will not vote to end the legislative filibuster,” McConnell said in a statement Monday night. “With these assurances, I look forward to moving ahead with a power-sharing agreement modeled on that precedent.” +

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+McConnell’s statement came as pressure from Democrats was growing for him to relent — and as his refusal to compromise was beginning to threaten Senate business. “We’re glad Senator McConnell threw in the towel and gave up on his ridiculous demand. We look forward to organizing the Senate under Democratic control and start getting big, bold things done for the American people,” said Justin Goodman, a Schumer spokesperson. +

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+McConnell secured a commitment from some Democrats, though that could still change +

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+While McConnell is not getting the pledge he wanted from Schumer about preserving the legislative filibuster, he effectively got one from Manchin and Sinema — whose votes would be vital to approve a rules change. +

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+Both lawmakers have issued strong statements expressing their opposition to blowing up the legislative filibuster, which requires most bills meet a 60-vote threshold in order to pass. +

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+“She is not open to changing her mind about eliminating the filibuster,” a Sinema spokesperson told the Washington Post on Monday. Manchin echoed this stance in an interview with Politico: “If I haven’t said it very plain, maybe Sen. McConnell hasn’t understood, I want to basically say it for you. That I will not vote in this Congress, that’s two years, right?” +

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+Armed with these assurances, McConnell signaled that he’d be comfortable advancing the organizing resolution, since his focus had been keeping the filibuster around to preserve the minority’s ability to block legislation that it disagrees with. Lawmakers’ positions on the filibuster could, of course, still change, despite the statements they’ve issued. +

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+Ultimately, keeping the filibuster is likely to make passing any sweeping legislation difficult, as Democrats would need every member of their caucus plus 10 Republicans to do so. It’s because of this that many of the more progressive members of the caucus, like Sens. Elizabeth Warren (D-MA) and Ed Markey (D-MA), have called for the filibuster to be abolished. And some other Democrats, including those who have been hesitant to change the rules, have acknowledged this difficulty as well. +

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+A statement that Sen. Jon Tester (D-MT) gave to the New York Times sums up how some Democrats currently unwilling to end the filibuster are thinking about the issue. They may be in favor of keeping it now, but are open to considering more drastic action if McConnell maintains obstruction to Biden’s agenda. “If all that happens is filibuster after filibuster, roadblock after roadblock, then my opinion may change,” said Tester, who is currently in favor of keeping the filibuster. +

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+Manchin and Sinema have said they don’t expect their positions to shift. Whether they maintain this stance in the face of ongoing Republican opposition, however, remains to be seen. +

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+A fight over the Senate’s organizing resolution could push Democrats to consider passing it unilaterally. +

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+A fight over the Senate organizing resolution has put questions about the legislative filibuster front and center. +

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+At the moment, Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell are still negotiating what this organizing resolution — which establishes committee memberships and funding allocations for both parties — will include. +

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+An ongoing disagreement between the two lawmakers has centered on the legislative filibuster, which effectively requires most bills to hit a 60-vote threshold in order to pass. +

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+McConnell has demanded that Democrats commit to keeping the filibuster around as part of this resolution. But Schumer has refused to acquiesce to this request because doing so would unnecessarily limit the procedural options that Democrats, who only have a slight majority with Vice President Kamala Harris’s vote, have moving forward. Refusing to commit now will also allow Democrats to use threats of ending the filibuster as leverage in future negotiations. (A promise to protect the filibuster in the resolution would not necessarily prevent Democrats from eliminating it, but it’s a way to have them on the record on the subject if they decide to change the rules in the future.) +

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+“All I can tell you is we are not letting McConnell dictate how the Senate operates. He is minority leader,” Schumer recently told reporters. +

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+By withholding backing for the measure unless his demands are met, McConnell is preventing the Senate from setting up the infrastructure it needs to function, since the resolution requires Republican support to pass. Schumer, meanwhile, has pushed for a resolution similar to the one approved by Sens. Tom Daschle and Trent Lott in 2001, the last time the Senate had a 50-50 breakdown. That measure did not address the issue of the filibuster, which McConnell argues needs to be included this time around to preserve the rights of the minority party in the Senate. +

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+In holding up the organizing resolution, McConnell is causing some annoying delays. Without the passage of this measure, Democrats are unable to formally take over committee chair positions, and new members have yet to be seated in committees. Republicans also retain the ability to oversee consideration of nominees and other policy priorities, a dynamic that could slow the progress of President Joe Biden’s legislative agenda. In many ways — at least for the time being — McConnell’s refusal to budge gives the minority party some residual control of the Senate. +

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+McConnell’s request has also compelled some Democratic lawmakers including Sens. Joe Manchin (D-WV) and Kyrsten Sinema (D-AZ) to reaffirm their commitment to the filibuster — underscoring ongoing Democratic divides on the issue. “She is not open to changing her mind about eliminating the filibuster,” a Sinema spokesperson told the Washington Post on Monday. Manchin echoed this stance in an interview with Politico: “If I haven’t said it very plain, maybe Sen. McConnell hasn’t understood, I want to basically say it for you. That I will not vote in this Congress, that’s two years, right?” Because a change to the filibuster would require all 50 members of the Democratic caucus to be on board, Sinema and Manchin’s statements provide McConnell with a guarantee if they maintain these positions. +

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+Democrats’ next steps will depend heavily on whether McConnell keeps up his push amid these recent statements and the growing pressure from lawmakers who are frustrated by their inability to fully govern. McConnell on Monday told Punchbowl News that the two leaders were “getting close.” +

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+Depending on how long this impasse continues, and how incensed lawmakers are by McConnell’s obstruction, Democrats could opt to eliminate the filibuster specifically for the organizing resolution. Such a move would open the door for potential rule changes down the line, including more sweeping ones. +

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+Senate Democrats could blow up the filibuster — in a narrow way +

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+There are a couple different ways this stalemate could end: McConnell could concede and drop his request, Schumer could cave and offer a statement signaling Democrats’ commitment to maintaining the filibuster, or Democrats could try to pass the organizing resolution with a simple majority vote. Neither McConnell nor Schumer has signaled that they intend to give in yet. +

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+That last scenario is the one that could require Democrats to consider eliminating the filibuster specifically for the organizing resolution, and such a move would likely indicate a strong possibility of other procedural tweaks to come. Under current rules, the organizing resolution is subject to the filibuster, and Democrats require 60 votes to advance it. +

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+To pass it with a simple majority, or 51 votes — including Vice President Kamala Harris as a tiebreaker — Democrats would need to alter the rules and eliminate the filibuster, a change they could apply solely to the resolution. By ending the filibuster just for organizing resolutions, they’d be able to advance this measure with the support of only the Democratic caucus, but they wouldn’t be getting rid of the legislative filibuster completely. +

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+“There could be a narrow nuking of the filibuster,” says Josh Huder, a senior fellow at the Government Affairs Institute. And there is some precedent for a tailored alteration of the filibuster rules: In another instance in 2013, Democrats eliminated the filibuster for the majority of presidential nominees, but did not do so for Supreme Court nominees. +

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+Part of the motivation for taking this step could be growing frustration over how the organizing resolution is holding up progress in the Senate. Since the heads of committees haven’t been able to formally claim their chair roles, they haven’t been able to move forward with the types of hearings and policy markups they’d like to pursue. Manchin, for instance, is in line to become chair of the energy and natural resources committee, but hasn’t yet been able to fully take up that mantle. Before any of the Democrats’ agenda items can come to the Senate floor, they have to go through these committees — and Republican heads have shown little interest in expediting Democratic priorities. +

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+Those against such changes warn that Democrats may not always be in the majority, and a future Republican majority could then organize in some way they find objectionable. This move could also set up a slippery slope toward eliminating the legislative filibuster entirely in the future, since it requires all members of the 50-person caucus to be on board. Once moderate Democrats publicly opposed to filibuster changes were to vote for this alteration, they would face pressure to do so again. +

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+“That would be a very large crack in an already broke dam,” says Huder. +

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+It’s worth noting, though, that this scenario would mark a significant step for Democrats, several of whom have otherwise been firm in their opposition to changes to the legislative filibuster. As such, there’s a strong possibility lawmakers stop short of going this far. +

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+In the previous 50-50 Congress, Daschle told Vox that he and Lott were ultimately able to come to an agreement, despite pushback from Republicans who claimed it gave Democrats too much power. He notes that passage could be more challenging now given the present environment of increased partisanship. +

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+“We didn’t have the social media, we didn’t have the hyperbolic cable news opinion makers. We certainly didn’t have impeachment,” he told Vox. +

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+This debate has reaffirmed Democratic divides over the filibuster +

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+At the moment, there’s not only a chasm between Republicans and Democrats on the filibuster, but a divide among the Democratic caucus as well. +

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+The Democratic caucus, which includes 48 Democrats and two independents, is not currently united on plans to eliminate the legislative filibuster — and the ongoing spotlight on the issue has underscored this split. +

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+While Manchin and Sinema have directly rejected changes to the filibuster, other lawmakers including Sens. Dianne Feinstein (D-CA) have stated their wariness in the past as well. On the other hand, more progressive senators, like Sens. Elizabeth Warren (D-MA) and Ed Markey (D-MA), have argued for abolishing the rule. +

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+Ultimately, keeping it is likely to make passing any sweeping legislation difficult, as Democrats would need every member of the caucus plus 10 Republicans to do so. And some lawmakers, including those who have been hesitant to change the rules, have acknowledged this. +

+

+A statement that Sen. Jon Tester (D-MT) gave to the New York Times sums up how Democrats may be considering more drastic action if McConnell maintains ongoing obstruction to Biden’s agenda. +

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+“If all that happens is filibuster after filibuster, roadblock after roadblock, then my opinion may change,” said Tester, who is currently in favor of keeping the filibuster. +

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+In the long term, abolishing the filibuster would radically alter how the Senate does business and make it far easier for the majority to advance its agenda. In the short term, too, it would significantly change the chamber’s dynamic: If the legislative filibuster were broadly eliminated, moderate senators like Manchin and Sinema would become the key votes on any bills that were contentious, giving them significant influence within the caucus, while also ramping up the pressure they face for each of these votes. +

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+The organizing resolution could well be the first test of how willing Democrats are to change Senate rules for their immediate gain — and a preview of how the caucus will respond to McConnell’s procedural obstruction. +

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+The House transmitted its article of impeachment to the Senate. Here’s what we know about the trial. +

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+The House of Representatives officially presented their article of impeachment of Donald Trump to the Senate Monday evening, setting up his second impeachment trial and the first ever of a former US president. +

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+The main action in that trial is still about two weeks away, set to start around February 9 (though we’ll be seeing documents — including Trump’s response to the charges — sooner). Many details about how the trial will be structured and proceed remain unsettled, though it will likely be short. Majority Leader Chuck Schumer said Sunday it will “move relatively quickly” because the Senate has “so much else to do” — for instance, confirming President Joe Biden’s nominees and trying to pass a coronavirus relief bill. +

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+Trump became the first-ever president impeached twice days before he left office, with the charge being “incitement of insurrection,” related to his attempting to overturn his presidential election defeat and egging his supporters on to interfere with Congress’s count of the electoral votes on January 6. +

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+The lead House impeachment manager, Rep. Jamie Raskin (D-MD), read the charge on the Senate floor Monday. “President Trump gravely endangered the security of the United States and its institutions of Government,” Raskin said. “He threatened the integrity of the democratic system, interfered with the peaceful transition of power, and imperiled a coequal branch of Government. He thereby betrayed his trust as President, to the manifest injury of the people of the United States.” +

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+Because Trump is now out of power, the main issue at stake will be whether he should be banned from holding federal office in the future. But despite the violence and five deaths that took place when his supporters stormed the Capitol, Trump’s conviction still seems a tall order — because it would require a two-thirds majority of the Senate, which means at least 17 Republican senators. And there have been few signs of late that such Republican support will materialize. +

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+How a Senate impeachment trial works +

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+Though senators will be sworn as jurors this Tuesday, Trump’s trial isn’t really getting started yet. Schumer and Minority Leader Mitch McConnell have agreed that both the prosecution (the impeachment managers designated by the House of Representatives) and the defense (Trump’s team) will have at least two weeks to prepare, to submit required pretrial briefs, and to respond to each others’ briefs. During this time, the Senate will vote on more of Biden’s nominees. +

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+The action of the trial itself will kick off in two weeks — the week of February 8. And since there’s no set-in-stone guideline for how an impeachment trial is structured, the first step will be for the Senate to try and pass a resolution laying out how things will go. +

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+For Trump’s previous impeachment trial under a GOP-controlled Senate, presided over by Chief Justice John Roberts, there were essentially three main phases of action. First, the prosecution had several days to present its case in opening arguments. Second, the defense presented opening arguments, also over several days. And third, senators got to submit questions for each side’s legal team to answer. +

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+The Senate could have opted to continue the trial after that but it did not. Republicans then voted against calling any witnesses and decided to proceed to a verdict. And on February 5, 2020, they made that verdict official — acquitting Trump on both articles of impeachment, 52-48 and 53-47. (Remember, it takes a two-thirds majority — 67 votes — for conviction, so they weren’t particularly close. Mitt Romney of Utah was the sole Senate Republican who voted to convict Trump, on one of the articles.) +

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+Trump’s second impeachment trial will likely be structured similarly to the first, but with some differences. For one, because Trump is no longer the sitting president, Chief Justice Roberts won’t preside — Senate president pro tem Patrick Leahy (D-VT) will instead. Additionally, relevant documents from federal agencies (which could shed light on, say, why the National Guard wasn’t mobilized sooner as protesters stormed the US Capitol) may be more available, if the Biden administration chooses to hand them over. (The Trump administration famously withheld cooperation from the impeachment inquiry in 2019, spurring the House to make that the basis for the second of his two articles of impeachment then: obstruction of Congress.) +

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+Democrats face a quandary +

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+A major problem for Senate Democrats making decisions about the trial is that the question of whether Trump will be convicted is not up to them. If all 50 Democrats vote to convict Trump, 17 Republicans would have to join them, or else Trump would just be acquitted again. +

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+So in deciding how to structure this trial — particularly how much time to allot to it compared to Biden’s other priorities, whether to call witnesses for testimony, and how much they should work with McConnell on shaping it — Democrats also have to make up their minds on what they are really trying to achieve here. +

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+That is: Is convicting Trump a real possibility, or is it a pipe dream? +

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+Because if conviction actually is on the table, it would be enormously consequential for American democracy, due to the prospect of disqualifying Trump from running for president again in 2024. Trump’s actions since November (and, of course, many of his actions before) show that he personally is a major threat to the functioning of our electoral system. And while he may seem beaten and discredited now, he remains quite popular among Republican voters. A political comeback for him is a real possibility. +

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+In the days after the storming of the Capitol, various anonymously sourced stories appeared suggesting that McConnell and other Senate Republicans really were open to convicting Trump. But of course, anyone familiar with Senate Republicans’ conduct in recent years is aware that they tend to find their way toward sticking with President Trump eventually. Few were willing to speak so boldly in public, and in the House, just 10 of the 207 Republicans present voted to impeach Trump +

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+Predictably, on Friday, CNN’s Manu Raju, Ted Barrett, and Jeremy Bird reported that, per their interviews with more than a dozen Senate Republicans, “only a handful” in the GOP conference “are truly at risk of flipping to convict the former President.” Several who are hesitant to outright defend Trump’s post-election conduct have latched on to the argument that it’s unconstitutional to hold an impeachment trial for a former president. (As Ian Millhiser writes, there’s not really a clear answer to this question, but it’s a convenient dodge for Republicans seeking to cloak their defense of Trump in a newly discovered supposed constitutional principle.) In any case, for conviction to succeed, Democrats would need a lot more than a handful. +

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+If the impeachment trial is already headed toward certain acquittal, it may not change some things about how Democrats hope to structure the trial — they’ll surely want to try and make a strong case regardless. But it would certainly affect their decisions about how much time they want to spend on it. The recent tradition has been that while the Senate holds a presidential impeachment trial, it puts all other business aside — meaning all confirmations and legislation would grind to a halt. Democrats have floated the idea of a half-day impeachment, half-day ordinary business, but it’s unclear if that would pass muster from the Senate parliamentarian’s office, and even that would curtail their ability to pursue Biden’s legislative agenda. +

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+This may be why Schumer has already suggested he doesn’t want to spend too much time on the trial. Because if it’s anything like Trump’s last impeachment trial, little that happens there will change any senator’s mind. +

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