How a tied Senate could lead a divided America

All eyes now turn to Georgia, with not one but two runoffs in Senate elections that will determine whether Republicans hold onto a narrow, but crucial, majority at 52-48 or 51-49, or fall back into a 50-50 tie. With the presidential election highly likely to be decided in favor of Vice President Biden, a 50-50 Senate tie could make new vice president, Kamala Harris, the ultimate power-broker in the Senate.

Of course, Sen. Harris does not become vice president, and thus president of the Senate, until Jan. 20, so there will be at least two weeks of massive uncertainty in the Senate after the new Congress convenes on Jan. 4. Both races likely have a slight lean Republican tilt, but for sake of argument, let’s assume the Democrats pull off the trifecta of closing the presidential race and winning both of the Georgia run-offs between Republican Sen. David Purdue and Democrat Jon Ossoff and Republican Sen. Kelly Loeffler and Democrat Raphael Warnock. How would a 50-50 Senate function?

It’s hard to remember because it was brief but the Senate actually was a 50-50 institution for about four months in 2001. While this brief period of forced bipartisanship has been overlooked amid the bitter Bush-Gore election and eventual Supreme Court decision, the parties’ leaders, Republican Trent Lott (Miss.) and Democrat Tom Daschle (S.D.), actually negotiated a workable power-sharing agreement that led to a reasonably productive Senate early in 2001.

Lott and Daschle agreed to make Senate committee rosters evenly divided and provided an even split in staff resources. With Vice President Cheney occupying the role Harris would fill in this scenario, Republicans technically retained the chairmanships and the ability to convene hearings and markups. And Majority Leader Lott retained the power to schedule the floor calendar, including the ability to proceed to legislation that had received a tie vote in a committee.

Much like the country, the Senate of 2001 was much less divided than what 2021 will look like. The 2001 Senate included at least 11 members who would either switch parties during their career (Sens. Ben Nighthorse Campbell (Colo.), Lincoln Chafee (R.I.), James Jeffords (Vt.), Arlen Specter (Pa.), Richard Shelby (Ala.), Bob Smith (N.H.), and Strom Thurmond (S.C.)), work in the opposing party’s administration (Sen. Chuck Hagel (Neb.)), or campaign actively against their party’s presidential nominee (Sens. John McCain (Ariz.), Joe Lieberman (Conn.), and Zell Miller (Ga.)). And the roster included many more senators who routinely broke party lines including Sens. Max Baucus (Mont.), John Breaux (La.), Richard Lugar (Ind.), Olympia Snowe (Maine), Ted Stevens (Alaska), George Voinovich (Ohio) and John Warner (Va.).

During the four months of the 50-50 forced marriage, Republicans were able to work with Democrats to pass a major tax cut in the 2001 reconciliation bill, enact “No Child Left Behind,” move a Biden-led bankruptcy bill (despite protests by then-law professor Elizabeth Warren) and confirm notable appointments like Attorney General John Ashcroft and Solicitor General Ted Olson. In addition, Daschle and McCain were able to essentially take over the floor to move the McCain-Feingold campaign finance bill to final passage.

Should this scenario unfold, Sen. Charles Schumer (D-N.Y.) will no doubt be under tremendous pressure to jam the Republicans and give no ground on the Democrats’ procedural rights. But unless he can get all of his colleagues on board with a scorched-earth play, Majority Leader Mitch McConnell (R-Ky.) has a strong argument to bring the 2001 agreement back to life as a template for how a 2021 50-50 Senate should operate. In particular, McConnell will need to dig in on several additional procedural issues:

• Obtain a commitment from Schumer not to change the Senate’s rules regarding the legislative filibuster. After the erosion of the filibuster for nominations, first by Majority Leader Harry Reid (D-Nev.) and then by McConnell, using the fig leaf of 50-50 ‘majority’ to end minority rights should be off the table.
• The minority leader will always have an opportunity to offer amendments to bills before the majority leader ‘fills the tree’ to block amendments.
• The 50-50 deal remains in place until one party captures a 51st vote. Obtaining a temporary majority by a vacancy due to death, disability or resignation should not be grounds to revisit the power-sharing agreement. Only once the vacant seat is filled by an appointment or special election should either party be allowed to return to the normal majority-minority tradition of the Senate.

The Trump era has seen an unproductive explosion of partisanship and procedural gamesmanship. If Georgia voters create an evenly-divided Senate, our leaders can help move into a post-Trump era by structuring a Senate that requires compromise and encourages bipartisanship. The concept of power-sharing may seem quaint but it will be necessary.

C. Stewart Verdery, Jr., is CEO of Monument Advocacy, a public policy and strategic communications firm. He served as General Counsel to U.S. Senate Assistant Majority Leader Don Nickles (R-Okla.) from 1998-2002.