November 30, 2020

50-50: How a Split Senate Might Operate

Marty Paone

If the Democrats win both Georgia Senate elections on January 5, there will once again be a 50-50 Senate. If that happens, Senator Schumer will be the Majority Leader as the Vice President, Kamala Harris, will hold the title of President of the Senate and will vote in cases necessary to break a tie. There is ample history from which to draw to understand how the Senate resolves complications arising from a 50-50 split.

In 2000, I was serving as Secretary for the Minority, a post to which I was elected in 1995 by the Senate Democratic Caucus. While the country awaited the Florida election result to see who would be President, we in the Senate waited on the result to determine our final Senate ratio. A decision in favor of Gore meant that we would lose Senator Lieberman (D-CT) to the Vice Presidency, a loss we dearly wanted since we were rooting for Gore, but a decision in favor of Bush would give us an even 50-50 Senate split. I spent several hours researching previous evenly split Senates. While Vice President Cheney’s vote would technically give the Republicans the majority, it did not necessarily mean that Democrats would simply agree to a one vote margin for committee majority/minority ratios. Such ratios also had major ramifications for committee budgets and space allotments.

Once the Supreme Court made its decision and we had a 50-50 Senate, Senator Daschle (D-SD) took the position that, if we had half the seats in the Senate, then Democrats should be accorded equal representation on each committee. The Republicans were not happy with this position at all and they tried to paint Daschle as being unreasonable. Senator Lott’s (R-MS) chairs complained, “How can we govern if bills are defeated in committee on a tie vote?” and, “We have the Vice President and need to be able to govern.” Senator Daschle would calmly point out to Senator Lott that the Vice President doesn’t vote in committee and that it was only fair that we have equal committee representation, equal staff levels and equal space for our staff.

Up until then it had been the norm for the majority to control two thirds of the committee’s budget and two thirds of its office space so that when there was a change in power the losing chairs not only were demoted to the position of ranking members but they also lost half of their staff budget and half of their staff office space. The power sharing negotiations of 2001 changed that forever. The Republicans were incensed at Daschle for these demands but they could not roll over him because the organizing resolution, which must be done at the beginning of each Congress, assigns new senators their committee assignments; allows existing senators to move from one committee to another; appoints new chairs; and fills any open seats which occurred as a result of retirements and defeats. It is especially important in the case of appointing any new committee chairs: that year, Chairman of the Finance Committee Senator Roth (R-DE), had been defeated by Senator Carper (D-DE), leaving this very important committee without a chair until adoption of the organizing resolution. Even simple requisitions for supplies had to be approved by the Senate Disbursing Office until a new chair had been appointed.

Since the Senate is a continuing body, the committees’ membership compositions remain the same from one Congress to the next. However, in cases where several members may have retired or been defeated, there may be situations wherein, until the new organizing resolution is adopted, the minority controlled more seats on the committee than the majority. In a 50-50 situation, the same will hold true for this upcoming Congress: the seats of Republican Senators Roberts (KS), Alexander (TN), Enzi (WY), Gardner (CO), Perdue (GA) and Loeffler (GA) will be vacant. On the Democratic side, so will those held by Senators Udall (NM) and Jones (AL).

This freezing of the committee structures was a good negotiating tool for Senator Daschle, but he had to find a way to respond to Republicans’ valid concern about bills failing to be reported out of committee because they would lose on a tie vote. Senator Daschle drew up a proposal: he offered Senator Lott the creation of a temporary privileged motion to discharge a bill from committee. A motion to discharge is subject to a possible filibuster so it has never been a very useful legislative tool, but Daschle offered a time limit of 4 hours for debate on any motion to discharge for a bill that had failed to be reported because of a tie vote in committee. That guaranteed a swift vote by the full Senate on the motion to discharge and, in the case of a tie vote, the Vice President could vote to report. As for committee funding, Daschle suggested that along with equal funding for the two parties, there should be an additional amount of money, no more than 10% of the total, set aside for the majority to cover the cost of administrative expenses for which they were responsible.

Senator Lott was able to sell this to his conference as a way to move on with the organizing of the new Congress. They were able to assign new members their committee assignments and appoint their new chairmen and, a few months later, pass the President’s tax cuts in a privileged budget reconciliation bill. Thereafter, the template was established whereby the minority would be accorded funding and space in direct relation to its representation in the full Senate. The days of two-thirds to one-third division of money and space at the committee level were over.

The unique part of the organizing agreement which put this all into place was a built-in self-destruct mechanism, a phrase which stated that the organizing resolution would be null and void if there was an interim change in the ratios and that the chairmanships would immediately go to the party that had achieved a real majority:

“…that the members appointed by the two Leaders, pursuant to this resolution, shall no longer be members of the committees, and the committee chairmanships shall be held by the party which has attained a majority of the whole number of Senators.”

We didn’t expect to avail ourselves of this clause, but little did we know how important it would soon become. In May 2001, I was summoned to a meeting asking me if I could find an additional Democratic page slot for Senator Jeffords (R-VT) should he decide to switch sides. I laughed and offered to build a bunk bed if necessary.