The Civics Project: US Senate rules almost dictate a power-sharing agreement in 50/50 split

Kevin Wagner
In this 2018 picture (from left) new Senate Majority Leader Charles Schumer, D-N.Y., and new Senate Minority Leader Mitch McConnell, R-Ky., walk side-by-side to the Senate Chamber at the U.S. Capitol in Washington, D.C.

Question: Since the Democrats control the U.S. Senate majority, why can’t they just take control?

Answer: The current U.S. Senate is evenly divided when it comes members on either side of the aisle. There are 50 Republicans and 48 Democrats, along with two independents (Angus King I-Maine and Bernie Sanders I-Vermont) who caucus with the Democrats. Since the Vice President breaks tie votes, and the current Vice President is Democrat Kamala Harris, the Democrats have a perilously narrow majority.

More:The Civics Project: Constitutionally, a 50/50 US Senate could get a bit messy

While the Democrats could attempt to organize the Senate themselves, it would likely be unworkable. Vice President Harris cannot spend all her time in the Senate breaking ties over every technical or procedural vote that comes up. The Senate opposition could do a great deal of mischief every time the Vice President is away, or when there are Senators absent.

Kevin Wagner

The solution is a power-sharing agreement that recognizes the majority, but makes concessions to the minority, and that is what the parties did the last time we had a 50/50 Senate in 2001. Republican Sen. Trent Lott and Democratic Sen. Tom Daschle divided Senate committees and resources evenly, but left critical powers such as committee chairs and control of the floor with Lott, who had the benefit of the tie-breaking vote of then-Vice President Dick Cheney.

Reaching a similar agreement is proving challenging this time because of the issue of the legislative filibuster, which permits a Senator to block most legislation unless there are 60 votes to end debate. The legislative filibuster is a significant issue, since in a closely divided Senate, it can kill most legislation, even when a majority of the Senate would vote to pass it. In the current Senate, under the existing filibuster rules, there need to be 10 Senators willing to vote with the majority party just to bring a bill up for a vote. With the high level of partisanship we currently see, that is highly unlikely.

Republicans fear that the Democrats will end the filibuster, which would greatly reduce their ability to block legislation, and want a commitment in the power-sharing agreement protecting the right of the minority party to filibuster legislation. While Democrats have not committed to ending the filibuster, they are not willing to commit to protecting it either.

In truth, the U.S. Senate has been slowly chipping away at the filibuster. In 2013, Democrats changed the rules to prevent the use of the filibuster of most presidential nominees and federal judges. In 2017, the Republican majority under Sen. Mitch McConnell, R-Ky., did away with the filibuster on U.S. Supreme Court justices to overcome Democratic opposition to now-Supreme Court Justice Neil Gorsuch.

In the absence of a new organizing resolution, the last resolution when the Republicans had the majority is still in effect, which is at best confusing and at worst hampering the chamber from getting to work. At some point, the parties will have to reach an agreement.

Kevin Wagner is a noted constitutional scholar and political science professor at Florida Atlantic University. The answers provided do not necessarily represent the views of the university.

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