The Senate is tied, and without some formal arrangement the Democrats will find it very hard to run.
Once the two Democratic winners of Georgia’s Senate runoff races are sworn in, around January 20, the two parties will each hold 50 seats in the Senate. On the face of it, that means the Democrats will control the chamber, since the Constitution gives the vice president a vote on the floor when the Senate is equally divided. But as a practical matter, it may well mean something more like shared control of the Senate in some key respects, and exactly what that will look like will need to be worked out in short order.
The Democrats can’t really count on the incoming vice president to be available for every procedural vote over the next two years, and they can’t form the Senate schedule around her schedule either. If they insist on treating a tied Senate as under their control, moreover, they would only increase the likelihood that Republicans who are unhappy with that arrangement will look for opportunities to use their 50 votes to cause mischief, and there would be lots of such opportunities all the time. To enable themselves to get anything done, Senate Democrats will almost certainly need to come to a power-sharing agreement with Senate Republicans. Such an agreement would give the Democrats the edge — their leader would be the majority leader, their committee leaders would be the committee chairs, and so on. But it would also need to give Republicans a lot more power than the minority party normally has in the Senate.
This is what happened the last time we had a 50–50 Senate, in the wake of the 2000 election. In the opening days of that Congress, in January of 2001, Republican leader Trent Lott and Democratic leader Tom Daschle reached an arrangement that made Lott the Majority Leader (since Vice President Dick Cheney could break tied votes) and made Republicans the chairmen of all the committees, but also gave the two parties equal numbers of members on each committee and subcommittee and equal budgets, office-space allocations, and access to congressional resources.
That agreement, the core of which took the form of a Senate resolution that you can read here, also made some crucial allowances for the equal balance of forces when it came to control of the schedule and took some steps to prevent tied votes in (what were rendered tied) committees from incapacitating the Senate.
The chair of a full committee could essentially treat as passed any measure or nomination that was not reported out of a subcommittee because of tie. And then, crucially, either the majority leader or the minority leader could move to bring out of committee and to the Senate floor any measure or nomination that the full committee was tied on. The full Senate would then vote on whether to put that measure or nomination on its calendar for action.
This arrangement was basically a way to avoid tied committees from just having tied votes on every issue and therefore killing every bill and nomination. That meant it was largely a way to empower the majority. The vice president can’t vote in any Senate committee, so by creating a vehicle for bringing bills and nominations to the floor, the deal made it possible for the most partisan and divisive measures to break for the majority with the vice president’s help. But it also gave the minority leader some meaningful power in situations when the full Senate might break differently than the relevant committee.
The agreement did give the majority leader effective ultimate control of the Senate schedule, noting only that in doing so he should “seek to attain an equal balance of the interests of the two parties when scheduling and debating legislative and executive business generally.” An important later addition to the agreement included a commitment from the two leaders to avoid filling the amendment tree — a technique by which the majority leader takes up all possible opportunities for amendment of a bill to prevent controversial amendments from being offered by other members — and so to allow robust amendment processes on most legislation.
The Senate has become much more contentious and partisan in the two decades since that arrangement was reached, but it’s not actually clear which way that fact cuts. It might mean that such an arrangement would be less likely to happen now, since it requires a cooperative agreement between the two party leaders. But it could also mean that such an arrangement is all the more necessary for the majority now, since the minority party is more likely to cause mischief in the absence of formal power sharing. If Republicans wanted to do that, they could make the Senate extremely difficult to run in the regular course of things, and require the vice president to essentially become another senator and be left unable to do much else.
Senate Democrats will need some Republican support to move legislation. They appear unlikely to eliminate the filibuster. And even if they loosen the rules that govern the budget-reconciliation process (which I think is likely) there will still be serious limits to what they can achieve through that process, which in any case can only be used rarely. That means they will need ten Republicans even for most bills that have the support of every Democrat, so Republicans have some significant leverage to make procedural demands at the outset of this Congress.
Equal numbers of Republicans and Democrats on committees and subcommittees seems a particularly likely arrangement, which may matter especially when it comes to nominations. Some of the limits of the 2001 arrangement, particularly the fact that it did not apply to House-Senate conference committees, have been made less relevant by changes in the culture of the Congress in the interim. There just aren’t many conference committees now, and the chambers tend to work out their differences by exchanging amendments instead. But there may have to be some creative new approach to the confirmation process for presidential appointees in a new arrangement, since things have changed a lot on that front in the Senate — most notably as the use of filibusters to hold up nominations has been much constrained.
A power-sharing agreement is not a sure thing. Some Senate Democrats may want to try to do without one, so they can flex more of their muscles as a majority. But at the end of the day, the Senate is tied, and without some formal arrangement the Democrats will find it very hard to run.
The Democrats simply did not do well enough on Election Day to get much done. They will struggle to move their agenda, and will need some Republican support for almost any measure they want to move. That means they won’t achieve most of what they want. But it also means they will very likely need to agree to an arrangement that takes some meaningful account of the 50–50 tie if they want to get anything done at all.