With Senate Democrats having secured the 50th vote needed to maintain control of the Senate, both parties are eagerly awaiting the results of the Georgia runoff on December 6 between Democratic Senator Raphael Warnock (D-GA) and Republican candidate Herschel Walker. If Walker wins, the Senate will be split 50-50. The implications of a 51–49 Democratic majority versus a 50–50 Democratic majority are significant.
An Equally Divided Senate
Since February 3, 2021, the Senate has operated under an organizing resolution negotiated by Majority Leader Chuck Schumer (D-NY) and Minority Leader Mitch McConnell (R-KY). The organizing resolution formalized a power-sharing agreement for the 117th Congress and was largely modeled on the 2001 power-sharing agreement reached by then-Democratic leader Tom Daschle (D-SD) and then-Republican leader Trent Lott (R-MS) following the November 2000 elections that resulted in a 50–50 Senate split for the 107th Congress. The 2021 power-sharing agreement laid out internal rules of the Senate, apportioned the makeup and control of committees, and prescribed procedures for the control of Senate business. Specifically, the 2021 power-sharing agreement provides that:
- Senate committees be equally balanced with members of both parties;
- The majority and minority on each committee have equal budgets and office space;
- If a subcommittee vote is tied on either legislation or a nomination, the committee chair may discharge the matter and place it on the full committee’s agenda;
- If a committee vote is tied, the Majority or Minority Leader may offer a motion to discharge the measure from committee, subject to a vote by the full Senate;
- No cloture motions may be filed during the first 12 hours of debate; and
- It is the “sense of the Senate” that both Majority and Minority leaders “shall seek to attain an equal balance of the interests of the two parties” when scheduling and debating legislative and executive business.
In an equally split chamber, the Senate in the 118th Congress will likely adopt a power-sharing arrangement identical to, or closely following, the current one described above.
Looking back to this Congress, with a Democratic-controlled House of Representatives, the Senate has passed some bipartisan legislation. For example, it passed an infrastructure bill, gun safety legislation, the CHIPS Act, extension of health benefits to veterans who are burn pits victims, and annual appropriations bills. Meanwhile, this Senate has also passed two bills— the American Rescue Plan Act of 2021 and the Inflation Reduction Act of 2022—on party-line votes using the budget reconciliation process. Vice President Harris ended up casting 26 tie-breaking votes so far—the third most of any vice president in United States history—including for the American Rescue Plan Act of 2021 and the Inflation Reduction Act of 2022. The majority of those tie-breaking votes, however, were on discharge, cloture, and final confirmation of executive branch and judicial nominees.
With Republicans now winning control of the House, it is unlikely that major legislation outside of must-pass bills will be passed by both chambers. Because the Republican House is unlikely to pass any bill that does not get at least a majority of Senate Republicans, the budget reconciliation process, which essentially allows bills to avoid the 60-vote cloture threshold, will have little utility to pass bills on party-line votes. Simply put, it is difficult to imagine many scenarios in which both chambers will agree on legislation.
Instead, the Senate in the 118th Congress is likely to spend significant time on executive branch and judicial nominations, which require only a simple majority vote. In the 117th Congress, the Senate confirmed more than 80 judicial nominees, including Justice Ketanji Brown Jackson to the Supreme Court and 25 courts of appeals judges. Prioritization of judicial nominees is likely to continue, and, with legislating more difficult, the pace of confirmation is likely to pick up. For nominees that enjoy support only from Senate Democrats and require discharge motions to get out of committee, Majority Leader Schumer will likely devote considerable floor time to debating and discharging those nominations to tee up full floor votes for confirmation.
For legislation or nominations that result in a 50–50 tie on the Senate floor, Vice President Kamala Harris will once again exercise her power as President of the Senate to cast tie-breaking votes. Vice President Harris was often called upon to break ties in the 117th Congress. In a 50–50 split in the 118th Congress, this is likely to continue. As we wrote in our January 2021 client alert, approving nominations or passing legislation in an evenly divided Senate is nonetheless perilous. It requires that the Democratic majority remain united with no defections and no absences, and it may require the Vice President to abandon executive branch business and come to the Senate to cast a tie-breaking vote.
A 51–49 Democratic Senate Majority
If Senator Warnock wins reelection in the Georgia runoff, he will provide Senate Democrats with their 51st vote. Most importantly, this will allow Majority Leader Schumer to pass a Senate organizing resolution, including Senate rules, without the support of Minority Leader McConnell and Senate Republicans. As a result, no power-sharing arrangement will be necessary. This will lead to several significant changes.
First, Senate Democrats and Republicans will no longer have equal representation on each committee. Instead, Democrats will outnumber Republicans on every committee and will have the ability to cast party-line votes that approve nominations or legislation without relying on Republican support.
Second, without the need to spend floor time on debate and motions to discharge, Majority Leader Schumer will be able to speed up the confirmation process for nominees. As of publication of this alert, there are 45 pending judicial nominees, and 88 total judicial vacancies. We can expect that the 45 pending judicial nominees will be more quickly confirmed, and, once President Biden nominates candidates for the remaining vacancies, those nominations will also be quickly ushered through. This will be particularly important should a second Supreme Court vacancy come up in the next two years. Under four years of Republican control, the Senate confirmed 234 of former President Trump’s judicial nominees. Should the number of judicial vacancies remain at similar levels, we can expect that President Biden will be able to confirm as many or more judges during his first term in office.
Third, with 51 votes, Senate Democrats will not have to rely on unity among its members for votes. Democrats could still pass legislation or confirm nominees even after losing the support of one member of the caucus or facing an absence. Over the last two years of a 50–50 Senate, any one member of the Democratic caucus enjoyed outsized influence and had the ability to defeat legislation or nominations. A 51–49 Senate would diminish the influence of any one senator. Also in the last two years, Senate Democrats have had to reschedule or push back votes to account for absences due to illness or injuries. The 51st Democratic seat gives the caucus more breathing room to account for these absences.
Lastly, a 51–49 majority will likely result in fewer 50–50 tie votes. As a result, Vice President Harris will not be required to cast as many tie-breaking votes in the Senate.