How will Democrats’ control of an evenly-divided Senate work?
While Democrats will have some advantages controlling the 50-50 Senate, their majority could also be quite complicated.
Georgia certified election results Tuesday confirming the victories of Georgia Democratic Senators Raphael Warnock and Jon Ossoff to the US Senate. Their arrival in the Senate splits the partisan makeup in the chamber equally between 50 Democrats and 50 Republicans, a divide that has occurred only three times before in the nation’s history.
Warnock and Ossoff are expected to be sworn in this week after defeating former Republican Senators Kelly Loeffler and David Perdue, respectively, in a pair of dramatic January 5 runoff elections in the southern state of Georgia that determined control of the Senate. Under the US Constitution, the vice president, in his or her constitutional role as Senate president, has the power to break tie votes, so Democrats will technically control the chamber when Democrat Vice President-elect Kamala Harris is sworn in on January 20.
Although the slim Democratic control is good news for incoming President Joe Biden, it raises many questions about how the Senate will operate and perform its most basic functions. The split comes at a time in which the country is deeply divided following four years of President Donald Trump and days after a deadly insurrection attempt that his supporters made against the US Capitol building in Washington, DC on January 6.
Biden’s limited power
A Democratic majority in the Senate will allow Biden and Democrats to set the policy agenda as well as make it easier to pass limited parts of that agenda, particularly regarding nominations for executive personnel and judicial appointments, which only require a majority vote to pass. Although Republicans can use the filibuster to block most legislation, Democrats can pass some budget items, including limited forms of tax law, infrastructure spending, COVID-19 relief and health reform through what is known as budget reconciliation, which cannot be filibustered.
“It really narrows down what Democrats can pursue,” said Joshua C Huder, a senior fellow at the Government Affairs Institute at Georgetown University. “Democrats are going to be threading a very narrow needle.”
But first, before Democrats can pass legislation, the Senate must agree to new rules that govern how the chamber will operate under the 50-50 split, a motion that will require bipartisan agreement. Senators Chuck Schumer and Mitch McConnell, who will be majority and minority leaders, respectively, in this split Senate, are set to meet this week to negotiate that agreement.
History as a guide
Luckily, there is some precedent. The parties split the Senate evenly in 1881 in what was known as The Great Senate Deadlock, then again in 1953. Senate leaders’ most recent response to a 50-50 split in 2001 – which occurred during a comparably divisive moment in American politics – offers something of a blueprint.
At the time, Republican President George W Bush had just been narrowly elected in a contest that many Democrats considered illegitimate. Outgoing Democratic President Bill Clinton had been impeached only a few years earlier. Republicans controlled the White House, the House of Representatives and, technically, the Senate. Tensions between the parties were high.
Mississippi Senator Trent Lott, the Republican majority leader at the time, negotiated a power-sharing agreement with Democratic Minority Leader Tom Daschle of South Dakota. The compromise, which was worked out carefully behind closed doors, gave Republicans – the majority party – chairmanship in Senate committees but gave committees equal numbers of Republicans and Democrats; it allowed bills that tied in committee to be sent to the floor; it provided equality of staff and office space; and made it possible for both parties to offer amendments to legislation, among other things that allowed the chamber to function.
“It wasn’t easy, but we did come up with an organizational resolution,” said former Oklahoma Republican Senator Don Nickles, who in 2001 served as the majority whip, the number two leadership role behind the majority leader. “We were able to get stuff done.”
The circumstances forced the party leaders to cooperate. And success relied upon open lines of communication between them.
Passing a new organising resolution in 2021 will also require compromise. Because the Senate’s organising resolutions can be filibustered, the majority party must make concessions to the minority, a dynamic that will give Republicans leverage.
“The minority has a pretty strong tool with which they can negotiate the power-sharing agreement,” said Richard Arenberg, who served as deputy chief of staff to former Democratic Senator Carl Levin in 2001. “There’s not much of an alternative. The parties have to deal with each other.”
Given the toxicity between Republicans and Democrats, finding that common ground today will not be easy. Years of rising partisanship have eroded relationships between party leaders and polarisation among rank and file members has increased.
“We’re in a very different political world with a different climate and different leaders from 2001,” said Norman Ornstein, a resident scholar at the American Enterprise Institute who specialises in congressional polarization. “Mitch McConnell is no Trent Lott. There’s no understanding or willingness to try and accommodate the other side. McConnell will do nothing that is not in his own naked self-interest and what he sees as the party’s interest. I don’t see many instances where you’re going to have cooperation.”
Considering how divided the chamber is, party unity will be crucial for Biden and Democrats. Without Republican support on measures that only require a majority vote to pass, Democrats will not be able to afford a single absence or protest vote from within the ranks. This reality will restrain the party’s ability to appease its energetic leftist flank, which is hungry for legislative victories after years of Republican control. Biden and Democratic congressional leaders could struggle to live up to high expectations now that they are in power.
“A narrow majority oftentimes is a curse in disguise,” said Stewart Verdery, who served as general counsel under Senator Nickles when Republicans were in a similarly precarious position in 2001. “For Schumer and the rest of Senate Democratic leadership, it’s great that they got the nominal majority, but that also comes with an opportunity to be blamed for failure to win.”
It also puts disproportionate power into the hands of the Democrats’ more conservative members, particularly Senators Kristen Sinema of Arizona and Joe Manchin of West Virginia.
Manchin has already broken with Biden and other Democrats by opposing direct payments of $2,000 cheques for COVID-19 relief, and he has voiced concerns with liberal policy initiatives like the so-called Green New Deal and Medicare for All.
“You could say that Manchin is the king of the Senate at this point,” said Arenberg. “That also applies to Sinema or really anybody else who wants to play an aggressive role on a particular issue. You’re going to need all 50 senators.”
How long will it last?
The Republican hold on its power in the 50-50 split is just as tenuous. The Republicans’ radical pro-Trump faction could drive more moderate lawmakers out of the party, which would disrupt the balance of power and weaken the GOP. Alaska Republican Senator Lisa Murkowski recently floated the idea of abandoning the party. This would presumably make her an independent; she told Alaska Public Radio that she would not join the Democratic Party.
In 2001, after just four months of being in place, the power-sharing agreement was dismantled when Vermont Republican Senator Jim Jeffords left the Republican Party and joined the Democrats, giving them true majority control.
“Since the deal was only in place for four months, it never really got tested in the way it might have had things gone on longer with tougher issues,” said Verdery. “On paper, it looked pretty good and it worked fine, but it was only in effect for a short period of time.”
Should there be no disruptions, the agreement negotiated between Schumer and McConnell this year would last until 2023. How it will look – and how well it will work – has yet to be tested.
“There probably will be a power-sharing agreement that will be a very lame version of what was produced in 2001,” said Steve Smith, a professor of political science at Washington University in St Louis. “Those were different times.”