The results of the 2020 election continue to be finalized, but one possible outcome is an evenly divided Senate sometime after January 5, 2021. This raises questions regarding which party will hold the majority and who the majority leader will be, as well as whether we should anticipate a completely deadlocked Senate on every vote, among others. Here are seven things you need to know
1.) The party composition of the Senate may be decided by two runoff elections in Georgia.
Based on current projections, there will be at least 50 Republican senators in the next Congress. There will be no fewer than 48 Democratic senators. And two Senate races, both in Georgia, are not yet determined as they are headed to runoffs in January 2021.
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Georgia’s election rules require a candidate to receive a majority of the votes cast in order to be declared the winner. If no candidate does so in the general election, a runoff takes place between the top two candidates. For the 2020 general election, that runoff would be scheduled on January 5, 2021.
In 2020, Georgia had two Senate races. Sen. David Perdue (R) was up for re-election as his regular six-year term will expire at the end of the current Congress. Neither Perdue nor his opponent, Jon Ossoff likely received the votes necessary to avoid a runoff.
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Georgia also had a special election for its other Senate seat. Sen. Johnny Isakson (R) retired partway through his term—one scheduled to end in 2022—on December 31, 2019. Georgia Gov. Brian Kemp (R) appointed Kelly Loeffler (R) to fill the vacancy until the 2020 election could determine who would serve through 2022. Neither Loeffler nor her Democratic opponent, Rev. Raphael Warnock, seem likely to break the 50% mark.
In the event both Democratic candidates win the runoffs, their party will also have 50 Senate seats.
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2.) The party composition of the Senate may change three times between January 3, January 6, and January 20.
The current Congress, the 116th, will conclude sometime between now and January 3, 2021, and at Noon that day the 117th Congress will begin (unless the date is delayed by an act of the 116th Congress). Here are the likely scenarios:
Start of 117th Congress
2 D candidates win GA runoff
1 R, 1D win GA runoff
2 R candidates win GA runoff
January 3: Even with both Georgia general elections undecided, Loeffler will still occupy the seat she was appointed to and currently holds, advantaging Republicans. Perdue’s term expires with the end of the 116th Congress and that seat becomes temporarily vacant.
January 6: The Georgia runoff is scheduled for January 5. Depending on how quickly the race is decided, the winners could be sworn in as senators as early as that evening, but most likely sometime after. The Senate is the judge of its own elections. If there are irregularities or the results are challenged, the winners may be delayed in assuming office until those are resolved.
January 20: Vice President-elect Kamala Harris, a sitting senator from California, will take the oath of office on Inauguration Day and then becomes President of the Senate. She will need to resign her Senate seat sometime before she takes the oath. That vacancy will also need to be filled.
3.) Tie votes in the Senate are broken by the vice president.
A Senate split evenly between Democrats and Republicans raises the potential for tie votes. Article I, Section 2 of the Constitution states that, “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”
The vice president may decline to vote on a tied matter. In recent history, the vice president’s presence in the Senate is a rare occurrence, but in an evenly divided Senate, he or she may need to break tie votes more often if the parties cannot agree. Senator Harris, the vice president elect, may not be getting far away from Capitol Hill after all.
4.) Breaking ties is not the limit of the vice president’s duties as President of the Senate.
The position of President of the Senate makes the vice president the presiding officer of the chamber. In modern practice, that duty may be and often is delegated to a senator in the majority party, but as stated above, in a split chamber the vice president might expect to preside more often.
recognizing the first senator who seeks recognition to speak, with exceptions for priority given to party and committee leaders when managing legislation
recognizing members who wish to introduce bills from the floor, or to offer amendments and motions to bills being debated
ruling on points of order, with the advice of the parliamentarian, subject to appeal to the full Senate
enforcing voting and amending procedures
referring bills to committees, on the advice of the parliamentarian
These duties allow the vice president some discretion and influence over how the Senate operates. The Senate can overturn just about any ruling of the vice president, but assuming the vice president and a majority of senators agree on a matter, they will prevail.
5.) The vice president is key to determining which party can carry a majority in the event of a 50-50 Senate.
The vice president’s duties noted above have implications beyond any individual matter before the Senate. In a split Senate, the vice president’s tie-breaking authority, combined with his or her authorities as the presiding officer, may determine which party can carry a majority of the Senate at any time, and therefore, set its agenda, bring nominations and measures to the floor, assign committee rosters and leaders, and so on.
Hypothetically, if both Democratic candidates are sworn into office on January 6, the Senate will be split 50-50 and Vice President Mike Pence will still be the President of the Senate until January 20. Absent some other agreement, Republicans should be able to maintain majority control over the Senate on any matter where they can keep their conference unified and gain the support of the vice president in the event of a tie.
On January 20, after Kamala Harris has taken the oath of office—and assuming her seat is promptly filled with a Democrat by Gov. Gavin Newsom (D-CA)—the Democratic Party should be able to maintain majority control of the Senate.
6.) The full Senate does not select the majority leader.
The possibility of a tied Senate has brought questions about who would become majority leader, since most Americans and—for better or worse—senators are accustomed to this position holding great power and discretion.
Though the Speaker of the House is elected by a majority of votes cast by the full chamber, that’s not the case here. The Democratic Caucus and the Republican Conference separately select their own leader by their own procedures. It is understood that the leader of whichever party has a majority of senators will be the majority leader, and the leader of the other party will be the minority leader. (In modern practice, the leader of the minority is referred to as the leader of their party, either the “Democratic Leader” or the “Republican Leader.”)
Senate rules and precedents do recognize the role of the majority and minority leaders, despite the fact that they are not official officers of the chamber. Importantly, the majority leader enjoys the privilege of first recognition on the floor under current precedent. This is one of the primary mechanisms by which the majority leader actually controls the Senate.
In a 50-50 Senate, the leader of the vice president’s party would likely be recognized as majority leader, as has been past practice.
7.) We’ve had a split Senate before, and they mostly figured it out.
The most recent 50-50 Senate occurred following the 2000 election. Sens. Tom Daschle (D-SD) and Trent Lott (R-MS), then Democratic and Republican leaders of the Senate respectively, formed a powersharing agreement to guide the chamber. Key features of the agreement included:
Majority Leader: Lott was recognized as the de factor majority leader following Inauguration Day, based on the tie-breaking vote of Republican Vice President Dick Cheney.
Committees would have equal numbers of Republicans and Democrats;
If a tie vote prevented a measure or nomination from being reported to the full Senate, the majority or minority leader could move to discharge the committee from further consideration; Debate on the question of discharge was limited, and therefore, a filibuster could not block it.
Debate: Cloture motions, which are used to bring debate on a measure or nomination to a close and prevent filibusters, could not be filed on any amendable item of business during the first 12 hours of debate.
Scheduling and agenda: the leaders were to attempt to balance the interests of the parties in setting the Senate’s schedule and deciding what matters to bring up for consideration.
Calling up business: the majority leader maintained the privilege of controlling the Senate’s agenda. The motion to proceed, a mechanism by which the Senate moves between business items, was generally only to be made by the majority leader.
An important caveat in the agreement noted that “Senate Rules do not prohibit the right of the Democratic Leader, or any other Senator, to move to proceed to any item.”
The agreement remained until there was a mid-congress party switch by Sen. James Jeffords of Vermont, formerly a Republican who became an Independent caucusing with the Democratic party. Democrats then had a 51-49 majority.