The Once and Future Senate

Is the Biden Administration about to enter another season of Republican obstruction?

Dec 05, 2020

President James Buchanan reportedly called it the “world’s greatest deliberative body.” Half a century later, Theodore Roosevelt quipped, “When they call the roll in the Senate, the Senators do not know whether to answer ‘Present’ or ‘Not Guilty’.”

The 116th Congress ends on January 3, 2021. Having lost one seat in November’s election, the Republicans will hold a 52-48 majority in the Senate (the minority caucus consisting of 46 Democrats and 2 Independents) for the remainder of the current session. With Georgia’s two Senate seats to be decided in a special election on January 5*, the Senate majority in the next Congress remains undetermined. There are three possible outcomes: Either one party or the other wins both seats, or they each win one. If the Republicans sweep, they will maintain their 52-48 majority and Mitch McConnell will remain as Majority Leader. If the Democrats take both, the 50-50 tie will give them the majority as Vice-President Kamala Harris will be the tie-breaking vote (see below) beginning January 20.

In addition to determining which party will be in the majority, the Georgia run-off presents the short-term problem of how the Senate will proceed with its business in the interim. As Paul Kane wrote in The Washington Post last week, '“the Senate’s usual perfunctory task of approving an “organizing resolution,” creating new majority ratios on legislative committees and installing new chairmen where necessary, remains on hold… Georgia’s election officials could take a few days, or even up to two weeks, to declare winners”, meaning “Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Charles E. Schumer (D-N.Y.) will be in a bit of a standoff until there is clarity about which side will hold the majority”.

If there is a split and the result is a Senate with a 51-49 Republican majority, the political possibilities will be fraught with intrigue. Since the filibuster no longer applies in cases of executive branch or judicial nominees being confirmed, the Democrats need only poach one Republican to force a tie-breaking vote by VP Harris. If an intrepid GOP Senator (Romney? Murkowski?) votes with the Democrats, that Senator could wield some leverage in deal-making negotiations and may even loosen McConnell’s grip on his caucus. The filibuster, however, remains in place for most legislation and still requires sixty votes to end debate and move legislation to a vote.

On the other side, the Democrats will have their own issues keeping their forty-eight, forty-nine, or, if they sweep Georgia, fifty members united. Blue dogs- conservative Democratic Senators such as Joe Manchin and Krysten Sinema- are likely to go their own way on some issues. Manchin, for instance, is already on record as opposing the elimination of the filibuster for all legislation.

The Senate operates in its own peculiar fashion, its procedures resting on five bases: the Constitution; the Standing Rules of the Senate; statutory rules; standing orders; and precedents. Day-to-day business is conducted mostly according to the precedents, informal rules based on past actions on the Senate floor, such as a ruling by the presiding officer. The last formal compilation of Senate precedents was in 1992 and was over 1600 pages. Precedents adopted since have yet to be added to a formal document but are in effect.

It is the manipulation of Senate procedures, especially the precedents, which are at the core of the Byzantine mechanisms by which the Senate operates. The Constitution makes the Vice-President the “President of the Senate”, the presiding officer. In the Vice-President’s absence, a “president pro tem” (president pro tempore, a Senator chosen by the Senate at large) serves as the presiding officer. In practice, the Vice-President is rarely present and the role of presiding officer is usually delegated to a junior Senator of the majority party. While the presiding officer has few duties- for example, the Vice-President can cast a tie-breaking vote when present- they do have the sole authority to recognize Senators to speak on the floor. The modern precedent of recognizing the Majority Leader as the first to speak dates to 1937 when Vice-President John Nance Garner deviated from the practice that he"recognize the Senator who shall first address him". Instead, Garner established a new precedent by ruling the Majority Leader be recognized first, followed by the Minority Leader.

It is this precedent that is the key to Mitch McConnell’s power. As the first to speak, he makes motions to proceed to legislation and nominations, and decides on the number and the order of amendments Senators may propose. The Majority Leader controls both the Senate’s agenda and its schedule. He has the ability to file for cloture**- the motion to end debate- and table the matter under discussion. The most Machiavellian parliamentary maneuver he uses is to move to proceed on a particular matter and immediately file for cloture, allowing him to table the bill and move onto other business. The argument can be made that taking possession of the Majority Leadership is the true prize of gaining the majority itself.

So, short of reaching the fifty-fifty tie and the effective majority, the Biden Administration will be dealing with a Republican-controlled Senate led by the obstruction-minded McConnell. The current attempt by a group of Republican and Democratic Senators to pass coronavirus relief package is a hopeful sign there may be some movement on bipartisan bills. But with some Republicans already grousing about the budget deficit- a large share of which they bear responsibility for after the last four years- an ambitious agenda by the incoming Biden Administration may be put on hold pending the outcome of the mid-term elections in 2022.

As for substantive structural reform of the Senate itself, that will have to wait until another time.

*Democrat Jon Ossoff is attempting to unseat first-term Senator David Perdue. Republican Kelly Loeffler is facing the voters for the first time, having been appointed by Governor Brian Kemp to replace Senator Johnny Isakson who resigned for health reasons. Her opponent is Raphael Warnock. According to the early polls, both races are very close.

**A motion to invoke cloture requires 60 votes to be carried. The threat of a filibuster is often enough to prevent a bill from even being considered if there is little chance of having 60 votes to end debate.

1hundredsixty8

Discussion about this post

Ready for more?